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THE LAW IS A ASS for 09/05/2000
DOCKET ENTRY
"The Law is a Ass" Installment # 59
Originally written as installment # 48 and published in Comics Buyer's Guide issue # 583, January 18, 1984 issue
Interesting contrast here: two long analyses of mistakes in comics I did like and one throw-away barb just to get one more shot in at ...
Boy, I really had it in for Void Indigo, did I?
******
"The Law is a Ass"
Installment # 59
by
Bob Ingersoll
"These hearings will be conducted under special rule passed for the occasion by both houses of Congress--a sort of free- wheeling approach which, we hope and trust, will bring out the truth of the matter."
So spoke Senator William Hopkins of Missouri at the beginning of America vs the Justice Society #2. The senior Senator from the Show-Me State, not to mention Roy Thomas, senior Writer/Editor from the selfsame state, may also have been hoping that by using special rules, their proceedings would escape this column.
No such luck!
The fact that there are special rules being used at all is unlikely. If there is one thing that the law wants to avoid, it is the appearance of impropriety. (Actually, the law also wants to avoid Groundhog's Day, but that's another story.) The law always wants everything to look like it's on the up and up. (That way, when everything is really down and dirty, it's harder to prove anything.) For that reason special rules are almost never adopted. When special rules are used, it looks like someone has bought off the system for an advantage.
Special rules are even more rare, when the case is a high publicity affair; like a congressional hearing to see whether allegations found in some old diaries supposedly written by The Batman that the JSA were traitors during WWII were true. For that reason I seriously doubt that any special rules would be adopted. The regular rules would suffice, if only for the appearance of propriety derived therefrom.
I think I can forgive this mistake, however. Have anyone of you ever actually sat through C-Span long enough to watch any part of a real Congressional hearing? I have. I've had a better time watching fences rust. The special rules made for a more free-wheeling and more interesting hearing.
There are, however, a few mistakes in America vs the Justice Society, which I can't forgive. First we have the title of the entire series. It is incorrect. Roy Thomas even admitted as much. America vs the Justice Society is what a court case would be called, if the JSA were on trial for treason. (Actually, it would be called United States v. the Justice Society, but why quibble about that minutia, when I've got this other minutia to get lathered over?) Congressional hearings don't usually have a name. Well, I suppose that many of the people called to testify before congressional hearings have names for them, but those names can't be printed on the cover of a family comic book. The committee calling the hearings have names. And the hearings themselves are usually known by the committed calling them--such as the HUAC hearings--or the type of proceeding--such as the Clinton impeachment hearings. But they don't usually give them specific names.
Let's move on to the arrest of the JSA in issue 1. Well, I'd call being led out of a building at gun point and in handcuffs being arrested. Wouldn't you? Know what? So would the Supreme Court, which consistently holds that no matter what the police may call the procedure, if the average person would believe he or she was being arrested, then he or she is under arrest. The trouble is the rest of the Government, apparently, doesn't communicate with the Supreme Court. We were told in issue 2 the mini-series that, when the JSA were taken away in handcuffs and at gun point in issue # 1, they weren't being arrested. They were merely being summoned to testify before the congressional hearing.
Right. And that whole Henry the VIII thing was just a little domestic squabble.
Since when are people who have not been charged with any crime and are only being summoned to testify before a Congressional hearing manacled like Public Enemy #1? Since never, that's when! Witnesses testifying before a Congressional hearing are summoned by subpoena and appear voluntarily. They are not arrested by the armed forces and brought in manacled. Okay, if they defy the subpoena and flee, they might be brought in manacled to insure their presence. But this wasn't the case with the JSA, who were more than willing to come in voluntarily and settle the matter. The scene was drama for drama's sake. It sacrificed reality for drama's sake. Dramatic license cannot excuse it.
And no, the manacles were not a "legal requirement--since [the JSA was] accused of a felony," as the story asks us to believe. There was never any formal accusation, simply a diary stating that the JSA was guilty of treason. The government had never filed charges. And if there were no charges; there was no arrest. And if there was no arrest, there was no "legal requirement" for restraints. Not only were the manacles not a legal requirement, they were an abuse of power. Frankly, if the JSA wanted to sue the federal government for false imprisonment, I think they'd win manacled hands down.
Next we have the issue of the attorneys for the JSA and for Congress respectively in those long-gone, pre-Crisis days, namely Helena (Huntress) Wayne and Richard (Robin) Grayson. They wouldn't be attorneys on opposite sides of the same hearing. Why not? Because they're both partners in the same law firm of Cranston, Wayne, & Grayson. (And what a great law firm it is! The Shadow, Huntress, and Robin all united together. The mind boggles! I mean, they might not be great in actual trial work, but oh their investigation techniques should be top-notch.)
The same law firm cannot represent both sides of an issue. It's a conflict of interest. I know that Dick hasn't been active in the firm for years, ever since his appointment to the UN. I know that he isn't acting now in his capacity as a partner in the firm, but as specially appointed counsel for the government. But Dick never left the firm, never gave up his partnership interest in it, even if he doesn't practice for it anymore. So he and Helena are still partners in the same law firm. The appearance of impropriety surrounding two members of the same firm being on opposite sides of this hearing is, too great to overcome. Dick and Helena would not both serve on the case.
Even if Dick had resigned from the firm, the fact that an attorney from the firm in which he used to be a named partner wanted to represent the other side would probably be enough of an appearance of impropriety to get one of them--Dick or Helena--booted off the case. Which would be up to the courts to wrangle out, but somewhere, somehow, sometime, one of them had to give
What would happen is that one of the parties, probably the government, would ask for the disqualification of the other party's attorney because of a conflict of interest. The committee chairman would weigh each side's right to have the attorney of his or its choice against the apparent impropriety and rule that the possibility of conflict was too great to ignore. He would remove one of the attorneys, probably Helena. Why? Well who do you think would win this fight?
Actually, that's not quite as open-and-shut as you think Taking Helena off the case would deprive the JSA of its constitutional right to the attorney of its choice. But, as I said, that would be for the courts or Congress to wrangle out. We don't really have to worry about who would go, just be confident in the fact that one of them would have to go.
Two more quick points. First, we all know that the JSA isn't going to be brought to trial, right? No, not just because we'll find out that the accusations are false and that The Batman's diary was a red-Kryptonite-induced dream in which a hoax was being perpetuated as part of an imaginary story. Even if the charges are absolutely true the case wouldn't come to trial.
What evidence does the government have? Some old diary, which wouldn't be admissible, because it's hearsay--i.e. a statement which wasn't made in court under oath and about which the declarant (The Batman) cannot be cross-examined given that he's dead. Coupled with that is the supposed corroboration of the Wizard, an eight- or nine-time loser whose known to have it in for every member of the JSA and who would have about as much credibility as Dean Martin sponsoring Foster Brooks at an AA meeting. I don't think the government would really want to venture into trial against Superman and the JSA on that evidence.
Second, I know Robin on Earth-Two never really got over his hero worship of The Batman, as the one-time Robin of Earth-One, did. (Hell, our Earth-One Robin even went so far as to change his name to Nightwing.) But even if the Robin of Earth-Two worshiped the ground that the Batman of Earth-Two jackbooted on, I still find it hard to accept his reactions to Helena, the JSA or his willingness to accept so readily the charges in this series. Robin knows the JSA; has know them for decades. Hell, he fought with them. He knows what kind of people they are: heroes, and what kind of people they aren't: traitors. His readiness to accept the unsubstantiated accusations of Batman's diary over his personal feelings and knowledge shows a disturbing lack of independent development. Robin, for all his aging, still manifests an unhealthy dependence on his father figure.
Do you know what the worst part about all this is? I like America vs. the Justice Society. For all its legal glitches, I really do like the series. It's only unfortunate that this column causes me to complain about legal mistakes, and that my kvetching makes it seem like I'm trashing the book.
I'm not, of course. I'm only trashing the bad portrayal of the law in an otherwise enjoyable book.
******
Ironically enough, I have the same problem with the next book on my kvetch agenda, Surge #3. I like the book, both art and story and can't believe the law in it. What law? Keep reading.
In issue # 3, we find Surge being tried for a murder he apparently committed in issue # 2. Here's the problem, the story started out in California, where Surge lives, but the murder occurred in New York City, where Surge finally found the victim, a professional assassin named Luger who killed Surge's girlfriend. Now the prosecution has asked for, and secured, a judicial order moving the trial from New York to Los Angeles, because all the witnesses who heard Surge threaten Luger are in LA.
Say what?
Well, pack up the United Van Lines trucks, because we've got to move the trial back to New York.
Criminal trials cannot be held just anywhere--in any state or in front of any judge--that the prosecution wants to plop them. If they could, then the district attorneys of every state would engage in forum shopping to find the strictest, most prosecution-oriented states and harshest-sentencing judge in the country in front of whom to try their cases. Probably some compassionate conservative. I can see it now: Judge Harold "Hang 'Em High" Hardcase, County Court judge of LaRouche, Iowa--the judge with the world's most crowded docket--trying every criminal case in the country. "Our first case, Your Honor, is the city of Peanutville, Pennsylvania vs. J. Wellington Nerd. Charge: public display of Void Indigo."
Before a court can try a criminal case, it must have three things: personal jurisdiction over the defendant, subject matter jurisdiction over the crime, and venue.
What are these you ask? I'm glad you asked. I get to show off again. Personal jurisdiction over the defendant means the court has the power to enforce its jurisdiction over the person of the defendant. Personal jurisdiction is found, wherever the defendant is found. In other words, a state court has the power to enforce its rules over a person, if the person is within the boundaries of the state where the court sits.
In the case of Surge, the state of New York had personal jurisdiction to try him, because Surge was in New York. California didn't have personal jurisdiction, because Surge wasn't in California. Simple huh?
Jurisdiction over the subject matter in a criminal case means does a specific state court, here California, have the authority to enforce the law violated, here the murder statute of New York State? To answer the question, all you have to do is look at the state where the crime occurred and the state where the trial is. If it the same state, then there is subject matter jurisdiction. If not, there isn't.
California and New York are separate entities. Each is responsible for enforcing its own laws. California has no authority to enforce the laws of New York. In other words, California has no subject matter jurisdiction over a murder committed in New York state; only New York has. Result? California cannot try Surge for a New York murder.
It can happen that more than one state can have subject matter jurisdiction. If a crime occurs as part of an overall multi-step plot and one step furthering the ultimate end takes place in one state and another step takes place in another state, then both states have concurrent jurisdiction and both could try the defendant. For example, if bank robbers steal a get-away car in New Jersey for a bank robbery in New York, then, because part of the criminal enterprise took place in New Jersey and part in New York, either New Jersey or New York could try the defendants. However, what would probably happen is that New York would try the defendants in New York for the bank robbery and New Jersey would try the defendants in New Jersey for grand theft auto.
In this story, however, none of the acts leading up to the murder took place in California, so there isn't concurrent jurisdiction. Only New York would have subject matter jurisdiction over the case.
Venue, the last component, is the county or district wherein a case is to be tried. Original venue in a criminal case is found in that county wherein the crime occurred. For Surge venue lies in some county in New York, as that is where the murder occurred. Venue does not lie in California, as no part of the murder happened there. Yes a defendant can ask for a change of venue, if the pre-trial publicity would make it hard for him or her to find an impartial jury. But in that case, the trial is moved to another county in the same state. It's not moved to another state, as there's still that subject matter jurisdiction matter to deal with. Moreover, venue is a right that exists for the defendant. The prosecution can't move for a change of venue, as happened in this story.
Some of you may be wondering about the Oklahoma Bombing trial, which was moved from Oklahoma to Denver, Colorado. How, you ask, could they have tried that case in Denver, when subject-matter jurisdiction existed in Oklahoma City? That's because we weren't dealing with a state court trial, but a federal court trial. Before, we had the problem of one state, California, trying to enforce the laws of a different state. With Oklahoma City it was an example of one government, the federal government, enforcing its own laws within its own boundaries. The federal government has subject matter jurisdiction anywhere within the United States, so can move a trial from one state to another, if the need arises. So the trial could happen in any federal district court in the land, even one in a state foreign to where the crime occurred.
So, we see that California lacks personal jurisdiction, subject matter jurisdiction, and venue. But, heck, 0 out of 3 isn't bad. Is there any way around that, which would enable Surge to be tried in California?
No.
Personal jurisdiction is malleable. For California to obtain personal jurisdiction, the police only have to move Surge. Venue can be waived. If both parties agree to a change of venue, then a case can be moved from the county with original venue to another county. But, as I said, it would be in another county in the same state. That way we don't run into that whole one state trying to enforce the laws of another state problem. In other words, subject matter jurisdiction, however, is an absolute road block.
If a court lacks subject matter jurisdiction, it has no authority over the case and cannot try it. Moreover, it can never obtain authority. A court which lacks subject matter jurisdiction always lacks it and can never try a case over which it lacks subject matter jurisdiction.
California cannot try Surge for a murder committed in New York. Like I said, pack your bags and get your hat. You've got to move Surge back.
Oh, and while we're on the subject of Surge's trial, there's another point. In the story, Surge asks for and is denied bail, because the State argues that Surge isn't human but an artificially-created life form. For that reason, the constitutional right to bail doesn't apply to him. Nope. If the state of Californiais willing to recognize Surge as human for the purposes of trial, then how can it claim Surge isn't human for the purposes of bail? If Surge is human enough to be tried for murder, he is human enough for the Constitutional right to bail to apply. They can't have it both ways.
Or maybe not. Perhaps being human isn't a requirement for being put on trial. They try lawyers, don't they?
BOB INGERSOLL
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