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THE LAW IS A ASS for 12/14/1999
DOCKET ENTRY
"The Law is a Ass" Installment # 22
Originally written as installment # 16 and published in Comics Buyer's Guide # 539 March 16, 1984 issue
This one was harder to prepare than the others have been.
As I proceed down Memory Lane preparing my old columns for the World Famous web page, some require a little more than others.
The columns I'm presently restoring are the ones I wrote in my first year as a columnist. These earliest columns were all written before I had my first computer--hammered out on a dependable IBM Selectric typewriter. So I have to take the paper copies of these earlier columns, which aren't computer files preserved on floppy disks, and manually scan them into WordPerfect files.
Scanning isn't an exact art, there's many a glitch 'tween the scan and the usable final product. Scanned files have to be tweaked and reformatted and generally fixed by restoring dropped copy and character transpositions caused when the scanner can't quite recognize something so substitutes it's own best guess as to what copy was intended.. Based on some of those transpositions, the scanner would have an easier time guessing Rumpelstiltskin's name than what copy was actually in the original document.
Sometimes, as this week, it seems as if it would be faster simply to re-key the installment from scratch than tweak the scanned file.
Then there was the column itself--not one of my best. The jokes, what few were there, were there and that's all. Not particularly funny, just kind of flat and unappealing. I don't know what kind of standards I had back in 1984, but the column certainly didn't fit my standards of today. So, in addition to tweaking the file, I had to tweak the writing and bring it up to my standards of today.
Still, after all the work, there is a final product, which you will find below. And there's a surprise in the final product. Somewhere toward the end of the column, I used the phrase, "But I digress." Remember, I wrote this in 1984: that was years before Peter David had a column in CBG; I think even before he had sold his first comic-book script to Marvel. So, when you get to that phrase, smile and think who used it in 1984.
Remember, you heard it here first.
******
"The Law is a Ass"
Installment # 22
by
Bob Ingersoll
True confession time: I'm a lawyer, but what I want to be is a writer. And next to being a writer, what I've always wanted to be is a piano bar player. Many is the night I've pounded the typewriter keys wishing they were the eighty-eight ivories of a piano. What I love, most about piano bar is the requests. Helping people through their troubles by giving them exactly what they want to hear; it's what life is really all about.
Well today I get to combine my dreams. Today is request day in "The Law Is a Ass". Today I address topics requested by my readers. Today I answer your requests.
(Okay, the truth. I've never wanted to play piano bar. I wish I could play the piano, but never piano bar. Who wants to be The Piano Man, when he could be Horowitz? It's like wishing you could be the third-string quarterback on the New Orleans Saints. I just lied to get your attention. I'm sorry.
(But not very.)
Our first request comes from Don and Maggie Thompson of Iola, Wisconsin. The Thompsons would like me to discuss the legal ramifications of The Fly #'s 5 & 6, and I can't turn that request down. (I'm not saying my editors wouldn't run my column if I refused their request. I'm just saying I'm not going to find out.)
The Fly # 5 came out a long time ago. I don't remember it. (Hey, if you had the option, would you choose to remember it?) The Fly # 6 came out last week, I don't choose to remember it, either. No wait, I do remember some details. The Fly fought the Crooked Man. I know Don feels the wimpiest super-villains around are Ringmaster and Paste-Pot Pete (or, if you prefer, The Trapster--as if a new name will make a difference in Pete's official, super-villain, machismo rating). Personally, I've always opted for the Ringer. (Anyone named after a game where "close" counts not only eats quiche but makes it as well .) But now I have to give some serious consideration to the Crooked Man. Here's a super-villain who wears a glove on his foot. Now, there's an MO! Couldn't even strike terror in the hearts of three-year-olds. The Fly # 6 also had on page 4, panel 4 some of the worst character-establishing dialogue since "young, but cool Harvey Lockman" burst upon the scene with his verbal and told us he was "young, but cool Harvey Lockman."
Excuse me, Don and Maggie wanted me to talk about the legal aspects of The Fly, the fact that Tom (the Fly's secret identity) Troy has been disbarred for suspicion of jury tampering, even though the criminal case against him for jury tampering had been dismissed. So okay, Don and Maggie, what did you want to talk about? I hear the weather in Belize is wonderful this time of year
Jury tampering is a felony punishable by a fine or two-to-five years up the river (or if your home state is geographically more like Ohio, two-to-five down the Interstate). If a lawyer is convicted of jury tampering, he will be disbarred, after a hearing before an ethics committee not only because he has been convicted of a felony, but because he has violated the canon against doing something that might call into question the integrity of the profession. (Not the most stringently-enforced of legal canons there; for many lawyers calling the integrity of the profession into question is just business as usual, they don't have to go to the trouble of committing felonies.)
Of course we all know that, as he is the secret-identity of the super-hero, Tom didn't tamper with any jury. Like that picture of the eccentric, but rich, aunt you keep on the piano; he was framed. He also wasn't convicted of jury tampering, because the key witness in the case against him died in a car crash, still his license was revoked. Can this be? If Tom was never actually convicted of jury tampering, could he still have his license pulled like a teenager with a lead foot?
Unfortunately, yes; the story of Tom's travails will go on. Just because someone isn't convicted criminally of jury tampering, doesn't mean, he can't be brought before the ethics committee and disbarred for jury tampering. Criminal prosecutions and disbarments are separate and distinct proceedings which can compliment each other but don't have to. A lawyer can be convicted of criminal charges without being disbarred. He can be disbarred without being convicted of criminal charges. And he can be both convicted criminally and disbarred. (In the legal profession, we have a high-sounding, Latin term for that last one: a screwed.)
So, yes Tom could have been disbarred, even though he wasn't convicted. Moreover, just because there isn't enough evidence for a criminal conviction, doesn't mean there isn't enough evidence for a disbarment. Criminal convictions require proof beyond a reasonable doubt (and as soon as we figure out what that is, we'll let you know). Disbarment is a civil matter requires only proof by a preponderance of the evidence (in other words more than fifty per cent). Disbarment requires a lot less evidence, so it is quite possible that Tom could have been disbarred based on the evidence the ethics committee heard even without that key and now-dead witness. In fact, disbarment proceedings don't have to follow the same niceties of evidence that trials follow, like the hearsay rule. (And when we figure that one out we'll ... Oh forget it, we'll never figure that one out!) Anyway, because the hearsay rule wouldn't apply, the hearing could have included people testifying about what this now-dead witness told them.
Besides, I can't say that what went on in the disbarment hearing was wrong: they didn't show it. Unless they show me what they did, I have to assume everything was hunky dorey. (Okay, I suppose I could assume they blew the disbarment hearing, because they blew everything else in the story, but that would just be cynical. As I understand it, lawyers aren't allowed to discard their idealism and become fully jaded or cynical until they have practiced for at least five years. All I've only got now is my cynicism learner's permit.)
The story isn't over yet, unfortunately. It is showing all the earmarks of being as long and as plodding as the Flash-murderer storyline, so Tom can still exonerate himself. (I'd ask for a show of hands on how many of you think he will ultimately do so, but all those arms flapping in the breeze would accomplish what the Big Bad Wolf couldn't and blow my house down.) But that begs the question of why Tom would want to clear his name and resume practice in a city where everyone including his former partner thinks him guilty. (And I mean everyone; the story shows total strangers on the street seeing Tom, recognizing him and think thoughts about him that are so nasty that, even mixed with Pixie dust, would get them as far off the ground as a root cellar) Naturally, Tom has to exonerate himself. We can't have the villains who framed him winning. But returning to practice law in that city? He'd do better running for office as the candidate for the Watergate Party.
Our next request comes from Goeffery Tolle of Columbus, Ohio. Goeff wants to know if a murderer is haunted by his victim, until the murderer can no longer stand it and confesses, can the confession be used in court?
Yes.
Next question.
Seriously, while the Constitution forbids a person's being compelled to give testimony against himself (remember taking the Fifth isn't a way of filling out your Beethoven collection), under present case law interpreting the Fifth Amendment, such spectral-induced confessions would be admitted into evidence.
(Yes, there is actually a whole body of case law on what to do when ghosts scare their murderers into confessing. Why else do you think we talk about both the letter and the spirit of the law?)
No one, especially judges, likes to suppress confessions on a technicality and let a confessed criminal walk. So judges usually interpret the facts of a case in some way so as to find no constitutional deprivation and admit the confession. (I know Adrian Chase claims otherwise, but the fact is suppression motions seldom win. Now who do you want to believe, some failed comic-book prosecutor or me, who has the Cliff Notes for every Perry Mason book ever written?)
In our haunting case the state could show that it did not coerce the confession with light bulbs, rubber hoses or even forced viewings of Glen Larson shows. Once the state proved it didn't coerce the confession, the defendant would have to prove that someone, or something, else did: here a ghost. Good luck. The defendant could have the most widely-recognized medium in the world verify that he had been haunted into and no matter how well-done her testimony, it would be the rare judge who'd rule a haunting coerced the confession and suppress it.
Now let me ask Goeff a question in return. Why the question about haunting ghosts, guilty consciences and murder confessions, Goeff? Been having trouble sleeping of late?
Goeff, who wants to monopolize this column worse than I do, also questioned the grammatical correctness of the name for my column. He wanted to know if it shouldn't be "The Law Is an Ass."
Grammatically, yes; historically, no. The column title is a quote derived from the Charles Dickens novel, Oliver Twist. In Chapter 51, one of the characters, Mr. Bumble, is told he is liable for the wrong acts of his wife, because British law supposes a husband can control the actions of his wife, so presumes him responsible for any wrongs committed by the good woman. Bumble's response? "If the law supposes that the law is a ass." It was ungrammatical in the original, so it's ungrammatical in my title.
I just thought I'd clear that up for everyone who thinks my title is ungrammatical. For those of you like Tony Isabella who think it's in bad taste, well it's from a classic. Nine out of ten English professors polled agree that one can be tasteless, when he quotes the classics. How do you think Balzac stays on the shelves?
Next question? Paul Feit of Princeton, New Jersey raises a question from Daredevil # 129. In the first three pages of the book the Man-Bull is on trial for premeditated murder. (Man-Bull, just one of the many characters with an inverse name. Man-Bull, Man-Bat, Man-Elephant. I'm surprised Destroyer Duck wasn't called Man-Drake. Maybe someone will finally take the trend to its natural conclusion and invent a villain called Man-Hole. But, I digress.)
Man-Bull is on trial for murdering Mr. Phillip Diamond. The facts of the case, of which there is no dispute, are that Man-Bull was robbing Mr. Diamond's jewelry exchange (after having, no doubt, just knocked over Mr. Painter's art gallery). Mr Diamond was so frightened by Man-Bull's "bizarre appearance" that he fainted. Six months later Mr. Diamond died of a heart attack. Medical experts confirmed that if Man-Bull hadn't robbed the store, Mr. Diamond wouldn't have had the fatal attack. The state prosecutes Man-Bull on a premeditated murder charge. The judge gives the cast to the jury as a premeditated murder. And eventually the jury returns a verdict of guilty as charged.
Mr. Feit feels there is something wrong with the above scenario. Mr. Feit is to be congratualetd for his insight. There is everything wrong with the scenario.
Premeditated means thought of beforehand, planned in advance. It's what's called a specific-intent crime, in which the criminal must have planned and intended to kill his victim. The evidence before the jury was crystal clear that Man-Bull did not intend to kill Mr. Diamond and did not plan to kill Mr. Diamond. The death was a freak and unfortunate accident. No judge would have let that case go to the jury on a premeditation theory. Moreover, no jury would have found premeditation. So why was the comic written with premeditated murder? Because it was more dramatic that way.
Trying Man-Bull for first-degree murder is more edge-of-your-seat than trying him for second-degree manslaughter or third-degree burns, so the writer opted for first-degree murder. Here is yet another dramatic courtroom which is wrong, because it substituted drama for accuracy. What's even more unfortunate is that the incorrect law for the sake of drama was totally unnecessary here.
Man-Bull could have been prosecuted for first-degree murder. First-degree murder will lie either for killing someone with prior calculation or design or causing someone's death, while committing a felony. The evidence was conclusive that Man-Bull caused Mr. Diamond's death, while committing a felony robbery. Had the law been researched more accurately and the felony-murder arm of first-degree murder found, we wouldn't have been subjected to the inaccurate court room scene we got. (People, I'm out here and available. If you're writing a court room scene and you want to check on its accuracy, just get in touch with me at the e-mail address on this web page. I'll get back to you with the answer, I promise.)
The last question comes from little Bobby Ingersoll of Cleveland, Ohio. He wants to know if, after Firestorm made a giant magnet to lift a runaway freight train and destroyed some computer software, could he really be sued for malpractice by Felicity Smoak, the incredibly bitchy owner of said ruined software? (See Firestorm # 231.)
No.
Okay, he could have been sued, but Ms. Smoak probably wouldn't have won the suit. Firestorm had no professional relationship with Ms. Smoak, so she couldn't claim malpractice because he violated his professional duty to her. No relationship means no duty. Ms. Smoak could try to claim that Firestorm didn't act with that degree of care requisite of a super-hero saving a train, because be didn't make sure there wasn't something that could be hurt by magnetism on the train, before he exposed it to super magnetism.
Well, we just got through talking about the Man-Bull, so let's deal with some woman bull. Firestorm was faced with an emergency: a train was about to go off a drawbridge, hit a tugboat, and plunge into a river. He had to act fast and lift the train. As Firestorm doesn't have super strength, he had to create something strong enough to lift the train out of danger in a matter of seconds. He didn't have time to check out the contents of the train, he had to act with the first idea that hit him and would make a really cool graphic on a comic-book page: a big magnet. He acted with the same degree of care any other super-hero would have used, so he wasn't guilty of malpractice.
Sorry, lady, but in your case, where there's Smoak, there's no Firestorm. Besides, you're insured, why are you suing in the first place? And even if you have to sue, why don't you sue the railroad company, which let one of its trains get out of control?. There was probably a maintenance problem or a driver problem at fault. And you'll get more money from the B&O then from Firestorm. (Any good lawyer can tell you, when something goes wrong, you shouldn't think, "Who can I sue?" You should think, "Who with money can I sue?")
One final point. Vigilante # 6 came out as I write these words. I'm not going to talk about it, but I've mentioned every other issue here, and I didn't want to break the string.
BOB INGERSOLL
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