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THE LAW IS A ASS for 08/08/2000
DOCKET ENTRY
"The Law is a Ass" Installment # 55
Originally written as installment # 44 and published in Comics Buyer's Guide issue # 577, December 7, 1984 issue
"The time has come," the Walrus said, "to speak of many things."
Which means, once again, I had a bunch of little topics; individually each too small to make up a column, but collectively they make up ...
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"The Law is a Ass"
Installment # 55
by
Bob Ingersoll
Flash # 341, with its plethora of legal nonsense just came out a couple of weeks ago. Flash # 342, with God only knows how many more mistakes, isn't due out for another couple of weeks. Trouble is, I owe Don & Maggie a column this week. So, what's a legal columnist to do between issues of Flash?
Is there a new Vigilante handy?
Excuse me, while I look for column topics in the other comics. (Damn! Why isn't Flash a weekly, it makes things so simple?)
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Okay, I've looked. I didn't find much. Just one minor throwaway line in Daredevil # 215. There's this courtroom scene in a flashback on page 5 where the Two-Gun Kid, in his secret identity of attorney Matthew Hawk, convinces a circuit court judge to dismiss a case. Hawk was able to catch the state's key witness in no less than four inconsistencies, and the judge concluded that the man was lying, so threw out the case. After his success, Matt thinks, "Some day, the trial procedure will be a whole lot more complicated. A judge won't be able to dismiss a case so easily."
One hundred years later, we now know that Matt was right.
And wrong.
It's right, because judges today can't dismiss cases. You see, scenes like the one described above--where the state's witness is caught in major inconsistencies and cracks like a crab leg dinner on the stand--don't happen so easily in real life. Believe me, I know; I've been there and haven't done that.
I've been in trials, where I thought a state witness was lying through his teeth. (Which is only to be expected. What else would he tell lies through, his nose?) But I couldn't catch him in any inconsistencies. Why? Practice. The witness had time to make up a story and practice enough to have it down pat. He was able to recite it without a single inconsistency.
Keeno, the lying witness in the Daredevil story, had all night to create and practice his story. I find it hard to believe that he would have done it so badly. Perry Mason, and now Daredevil, notwithstanding, you just don't see the witnesses getting tripped up like that. Of course, you don't usually see innocent men on trial for murder while the real murderer watches from the audience instead of fleeing the jurisdiction like audiences from Battlefield Earth and that's a bit part of the reason, too. In fact, I'm sure that's the main part of the reason and has nothing to do with my trial abilities.
Matt's thought was also wrong, because judges are still able to dismiss cases. Both at the end of the state's case and at the conclusion of all the evidence, the defense can ask the judge for a directed verdict of acquittal. Such a motion asks the judge to rule that the evidence presented is of such a poor quality, that no reasonable juror could possibly be convinced of the defendant's guilt beyond a reasonable doubt by it. If the judge agrees that the evidence is inadequate, he grants the motion. The judge bypasses the jury and finds the defendant not guilty himself. Hell, defense counsel can even make the motion after the jury returns a guilty verdict and, if the judge thinks that the evidence was so bad that the jury erred in convicting, can overrule the jury verdict and enter a not guilty verdict despite what the jury said. (Although, as you might guess, judges taking the case from the jury and finding the defendant not guilty--particularly after the jury has already returned a guilty verdict--doesn't happen often. Not from judges who want to get re-elected.)
One last point, the judge isn't really dismissing the case; he's finding the defendant not guilty. The result is the same in either case, another man gets of on a technicality. Remember, a difference that makes no difference is no difference.
Well, that was it. I've shot my whole wad. No more topics for this column.
Go home now.
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Are they gone?
No?
Fortunately, I do have some unanswered mail.
Frequent CBG letter scribe (I hate the term "hack"), Bruce Mai of Kirkwood Missouri, sent me a letter with several questions. He first asked me 1) to speculate on the legal powers given to S.H.I.E.L.D. on the national and international level. He also asked me 2) under what circumstances S.H.I.E.L.D. is responsible for the incarceration of super villains.
I have no idea! I can't even get through the Congressional Record of my country, you think I'm going to try the one from Earth Marvel to find S.H.I.E.L.D.'s empowering statutes?
S.H.I.E.L.D.'s responsibilities are probably greater than the CIA's but less than The Impossible Mission Force's. (After all, did you ever see S.H.I.E.L.D. with a budget big enough to build a scale model duplicate of East Berlin in an abandoned warehouse, just to capture one Nazi war criminal?) S.H.I.E.L.D. We've seen stories showing S.H.I.E.L.D. responsible for incarcerating super villains, who have committed and been convicted of federal offenses, seeing as it is a governmental body and would be ideally equipped to deal with them, especially if said villain is to go to Project P.E.G.A.S.U.S.
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3) If a super villain, who possesses a mind power like telepathy or mind control or brain blasts or just plain genius level thinking, is restrained from using his power by the police during trial, could he appeal his conviction on the grounds of violation of his constitutional right to freedom of thought?
No.
There is no such constitutional right. There's freedom of expression, but not of thought. As to other forms of constitutional deprivation, such treatment might create, like interfering with the defendant's right to defend himself. I've dealt with some of that in other columns.
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4) If a super hero, like Professor X, uses some form of mind control or telepathy to extract a confession from some hapless bad guy will such evidence be admissible against a challenge on the grounds of self-incrimination?
Probably not.
I remember a really old Green Lantern story from issue # 46, the July 1966 issue, where Green Lantern used his power ring on a crook and ordered him to confess to a crime against his will. I mean, really against his will. This story had panels of the guy trying to gag himself with his hands so as not to incriminate himself and not being able to do so. He even tells the police that Green Lantern is forcing him to confess.
Even as a kid only thirteen years old, I figured this was wrong. I always wanted to see the follow up story, when the criminal in question was released, because there was no evidence against him except for his confession, which was thrown out of court for being coerced.
Here's the thing. The Fifth Amendment talks about people not being compelled to incriminate themselves. It doesn't say anything that limits the compulsion to state action. And there are cases which have held that confessions which were coerced by someone other than the state, such as private citizens who beat confessions out of suspects, are equally as violative of the Constitution as the state beating a confession out of a person.
The rationale behind these cases is that a confession which is the result of a beating is suspect. Such beatings go on until the beaters hear what they want to hear; a confession. And the beaten, who want to stop the pain of the beatings, will do almost anything to stop them; including confession to crimes they didn't commit, because they know it's the only way to stop the beating. (Torquemada used to use this technique to great effect against heathens and phone solicitors, when they torqued him off.) Such confessions are inherently unreliable, because they reason they are being made is suspect, so they are not admissible.
Now, one could argue that if a Professor X is only forcing someone to confess to what that person already knows is true, the suspect nature of the confession doesn't exist. That's one for the courts to decide. But I suspect most courts wouldn't allow confessions forced out of the criminal by mind control for the same reasons of suspect reliability.
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5) How likely are authorities to nail a criminal for lesser charges committed while committing a major felony, like speeding away from the scene of the crime? They aren't likely to bother with any misdemeanor crimes like speeding, but will prosecute the criminal on felony charges which crop up as a result of the crime. That's what makes plea bargaining. The prosecution stacks up all these charges, and the defense agrees to plead guilty to some of them, if the rest are dropped.
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6) Is it really possible for your basic recidivist super villain to be released from prison as frequently as he is released in comics?
No.
Your average felony conviction carries with it five years of prison time, if not more; lots more. If a criminal is released before the five years is up, he is released on parole. Most super villains seem to be released in less than a year, so are on parole. (It may be more than a year in actual calendar time, but it is less than a year in Marvel/DC time.)
If an ex-con commits another crime while on parole, said new crime is a parole violation. Parolees who violate their parole are subject to having the remainder of their original sentence reinstated. As a result, when recaptured, the criminal must serve two sentences: the remainder of the sentence he was paroled from and the sentence for the new crime. Moreover, these sentences are served consecutively, which means he has to finish serving one, before he starts serving the next. So the time all adds up. (The same is also true of crimes committed by people on probation, they face consecutive sentences stemming from the old crime and the new crime.)
Not only that, but it is less likely that the repeater will make parole the second time around. Parole Boards take a dim view of people to whom they gave a break coming back before them. This is especially true, if the offender's index for recidivism is as great as, say, the Penguin's. I wouldn't even be surprised to find out that the various prisons in comic books have special cells reserved for some of their repeat business. "We are now entering the Oswald Chesterfield Cobblepot, Jr. Wing. No umbrellas allowed."
It's no better for the criminal if he or she escapes. Escape is a separate crime which results in another separate sentence, which, again, is served consecutive to the original sentence from which the criminal escaped. In short, your average super villain is probably serving the equivalent of several life sentences, after all his time is added together. Even with time off for good behavior, I sincerely doubt he'd be released in time to participate in a 3001: space odyssey personally, let alone in time to be next issue's secret surprise villain.
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Neal Harkness of Roseville Michigan wanted to know why a caption in Alpha Flight # 14, page four refers to the murder of James (The Guardian) Hudson. Hudson, after all, died, because his power suit overloaded and exploded. Neal wants to know if Jerry Jaxon would be criminally liable for Guardian's death.
Felony murder is causing the death of another, while committing a felony. The murderer doesn't have to kill the victim himself. If the chain of events, which his crime initiated, causes the victim's death, and said death was a reasonably foreseeable result of the crime, then the criminal is legally responsible for the death and accountable for murder.
I think given all of Jaxon's actions in issues 11 and 12, like sending Beta Flight to kill off Alpha Flight, one would be safe in concluding that a death was a likely consequence of his crimes, even Guardian's death by power suit overload. Especially when you consider that Hudson built the power suit, while working under Jaxon, so Jaxon could have been familiar with the suit's limits. So, yes, one could make a case that Jerry Jaxon was guilty of the felony murder of James MacDonald Hudson.
Of course, seeing as how Jaxon's brain was fried as a result of his fight with Guardian ("One gray matter over easy and a side of ham!") I don't think the courts will be too hard on old Jerry. Do you?
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Paul Kusnerik of Beaver Falls, Pennsylvania, wants to know if J. Jonah Jameson would be criminally liable for the crimes of the Spider-Slayer robots, the Scorpion, The Fly, the new Mysterio, and anyone else whose creation Jameson funded in his numerous attempts to kill Spider-Man.
Some, yes. But not all. Jameson aided and abetted some crimes, when he helped create these villains, so would himself be guilty of those crimes. But exactly what crimes are we talking about here?
Each of those unsavories, after being given their powers, went on crime sprees. Jameson didn't aid and abet those crimes. He couldn't reasonably foresee them, so didn't really give any help in their commission. But Jameson did sic these people on poor Spidey. Jameson could reasonably foresee a felonious assault on Spider-Man as a result. So he is an aider and abettor to various counts of felonious assault. Trouble is no one knows about this, so he's going to get off scot-free.
You want to tell Adrian Chase about this, Paul, or should I?
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Speaking of the Vigilante, Steve Erwin of Houston wrote me and told me that old Mr. V is currently tracking down Richard Pryor. It seems that Vig took exception to my recent statements that Pryor committed several crimes in Superman III, but because no one saw him commit them, Pryor won't be prosecuted.
And Steve would know, eventually he became the artist on The Vigilante.
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Rick Norwood of Wayne New Jersey took me to task for saying Bazooka Joan's flying sled would crash from the recoil, every time she fired the damn thing. Bazookas, he pointed out, are recoilless weapons. Not being a weapons expert, I'll take his word for it.
Oops!
Blame it in the New Columbia Encyclopedia, which said in its entry on bazookas that bazookas have recently been "replaced by recoilless weapons." When I read that I assumed that bazookas were not recoilless, so did recoil.
Be that as it may, Rick, you don't challenge my contention that Joan's stupid sled couldn't fly, do you? I mean the thing is still aerodynamically unsound. (And, please, don't any of you write in reminding me of the bumble bee.)
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Remember a while back I was writing about Jon Sable's little excursion into Viet Nam in order to find a MIA? I said something about there not being any United States law against that sort of thing. A Mr. Sheppard of Bowling Green, Kentucky wanted to know if the Neutrality Act didn't cover such acts.
Not that I know of. To the best of my knowledge, the Neutrality Act only outlaws acts done in America which jeopardizes another country's neutrality. Like J.R. Ewing funding a revolution in Argentina from Dallas, because he hadn't done anything more rotten all week than hide Lucy's padded bras, and he felt out of practice. When an American citizen invades another country and breaks its laws, we usually just let the other country's and its laws take care of it.
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Finally, a large note of thanks to one Will Eisner of Tamarac, Florida. Recently I did a column pointing out several legal mistakes that Mr. Eisner made in a Spirit story called "The Head In the Desk". Mr. Eisner responded to the column with an original pen sketch of Commissioner Dolan looking very sheepish and saying, "Okay, Mr. Ingersoll, if the Statute of Limitations is not available... then... it's nolo contendere."
I only hope, when I'm in a similar situation , I will be able to muster even one-tenth the class that Mr. Eisner showed me.
BOB INGERSOLL
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