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THE LAW IS A ASS for 10/10/2000
DOCKET ENTRY
"The Law is a Ass" Installment # 64
Originally written as installment # 53 and published in Comics Buyer's Guide issue # 594 , April 5, 1985 issue
There's this old saying about the asphalt on the highway to hades being composed of good intentions. And there's another old saying, this one from Rod Serling, "Case in point."
Mark Evanier really did find that piece of original artwork from an old story I wrote, exactly as I describe in this column. He really did send it to me as a gift. And it really is still hanging in my office. That was Mark's good intention. And he really did write me the letter I quoted, in which he said the page of art was a bribe for me to ignore certain aspects of the fourth issue of the Surge mini-series. And that was a joke. He knew, I wouldn't ignore the mistakes, if there were any and he wasn't really asking me to ignore them. He was, as I said, making a joke.
I acknowledged the gift and publicly thanked Mark for it in my column. That was my good intention. Because I thought it would make for an amusing moment in the column, I quoted from the letter stating it was a bribe and remarked with faux indignation that the bribe wouldn't work.
And thought nothing more of it.
I figured the people who read my column would understand that, first, Mark was joking when he offered the "bribe" and that, second, I was joking in my indignation about the bribe. But I was reckoning without another old saying, this one from Harlan Ellison, that the two most common elements in the universe are hydrogen and stupidity.
Because the next time I saw Mark Evanier, he told me he got letters from people taking him to task for trying to bribe me with the original art.
******
"The Law is a Ass"
Installment # 63
by
Bob Ingersoll
You know you've reached the big time, when they start to respond to your presence. And, for what it's worth, this column is getting some response from established professionals in the comic business.
Only some response, mind you. There are still those who continue to ignore me. That's why I keep writing about the same books over and over, and why on the top of my "Books to Write a Column About Pile" is this month's Fl...
No! My twelve-step sponsor made me promise, I wouldn't write about it again this week.
As I was saying, I'm starting to get some response. Marv Wolfman, whose stories about a certain character, taken to wearing V-neck jerseys, I have openly criticized, took me up on my offer to serve as a free legal consultant to writers who wish to promote legal accuracy in their works. (No, I'm not worried that I'm going to put myself out of business. For every writer that consults me, there are three more who will continue to ignore me. I'll still have them to kick around. And, of course, The Fl...)
Seeing as how in the 1985 Preview issue of Amazing Heroes, Marv made public the fact that he consulted me about The Terminator's trial I guess it's okay for me to talk about it here. (That's another feature of my consulting service; I keep my client's confidentiality. I won't write about the consultation, unless the writer involved either gives me express permission to do so, or reveals it him or herself.)
Marv consulted me. He told me where he wanted to go in his story, and I told him if what he wanted to do would work legally. We talked about which specific parts of a trial would serve to be the most informative and dramatic. It was entertaining, and I appreciated the chance to be of help. I hope to be able to do so again, either with Marv or anyone else who wants to research their legal issues.
A few people asked me a couple of questions about the book. I did want to take some time to answer them. Don Thompson asked me if it is proper to have witnesses who are going to testify in a trial, such as members of the Teen Titans, sitting in the courtroom while other witnesses testify. Normally, it is not. The court will, on the request of either party involved in a lawsuit, order a separation of the witnesses. This is done so that the later witnesses can't hear the earlier witnesses and try to conform their testimony to what they have heard in an attempt to eliminate inconsistencies.
Marv and I talked about separation of witnesses. For dramatic reasons he wanted the Titans, especially Changeling, to be present during the entire trial. He wanted to know if separation of the witnesses is automatic. It isn't. The judge will order a separation, only if one of the parties, the state or the defendant, requests a separation. If no one requests it; the judge won't order it. So the fact that the witnesses aren't separated isn't a mistake at all. It simply means that neither side requested a separation.
It's not as unlikely as you might think that no one requested a separation in this case. WARNING! If you haven't read Tales of the Teen Titans # 54 yet, don't read the next three paragraphs. I'm going to give away its story. There, you can't say I didn't warn you. Well, you can say it; but it won't be true.
Terminator, A.K.A. Slade Wilson, won his case, before it ever got to the jury. He showed that no one ever saw his face or heard his voice, when he kidnaped Samuel Abrams, so no one could prove beyond a reasonable doubt that he was the same man in the Terminator mask who kidnaped Abrams. We know it's the same Slade Wilson, but no one else does. That's also why Wilson hired someone to run around in a Terminator costume. To further the illusion that there is more than one Terminator and to add to the reasonable doubt that Slade Wilson is guilty.
Terminator, per his plan, won his case at the end of the state's case by moving that Judge Adrian (Vigilante) Chase dismiss the case, because the prosecution hadn't proven its case beyond a reasonable doubt. Terminator won his petition, and Vigilante let Terminator go on a technicality. I love it!
Terminator planned to win without putting on any witnesses, so he had no witnesses for the prosecution to separate. And Terminator wasn't worried if the state's witnesses heard each other, because they couldn't hurt him. He didn't need to move for a separation of witnesses. It is entirely likely that neither side moved for a separation in this case. So, there is no mistake in having the Teen Titans watch the trial.
I was also asked about there being a case named Joker vs. The Batman, which established that super heroes may testify in court, even though they are masked and don't reveal their true identities. Such procedure wouldn't be permissible here on Earth Prime (for those of you who subscribe to the omniversal theory that we live on something called Earth Prime). However, we have seen masked super heroes testifying on Earth One for years. This is possible only if there is, indeed, such a precedent on Earth One; probably a United States Supreme Court case, as having masked witnesses violates the Confrontation Clause in the Constitution. Marv decided that such a case must exist on Earth One, and I have no problem with his referring to it, as I agreed with him.
I do have a problem with it being the case of Joker vs. The Batman. That would be a civil case; one where the Joker is suing the Batman. There is no constitutional right to confrontation in a civil case, so it's doubtful that the issue of a masked witness would have arisen. The case should have been called State (or People) vs. the Joker. That's a criminal case.
I also have a problem with the Joker being the appellant in the case which established the masked witness rule. Joker is insane. In his trials he was found not guilty by reason of insanity. But, if he's not guilty, he couldn't appeal his trials. Any mistakes that occurred during his trials, didn't hurt him; he was found not guilty.
The case should have been State vs. the Penguin or some other villain, who's not insane. One who would be found guilty, then could appeal said conviction thereby creating the aforementioned Supreme Court precedent.
Now, this mistake, what name to give a supreme court case, is the result of a subtle procedural point of law. One that Marv would not have reason to know, and one which did not come up in our conversation. I'm only sorry that I didn't think of it. I apologize to Marv for not having thought of it in time to prevent it from happening. Its being there, however, in no way affected my enjoyment of Teen Titans # 53, as do the incessant mistakes in... Aw, you guessed it.
No, not The Fl. Remember, I promised.
******
Sometimes the response I get is a little different. After I had written about the first three issues of the Surge mini-series, I received a package from Mark Evanier containing a page of original artwork: specifically, the splash page to a House of Mystery story I wrote many years ago entitled, "Some Place Where the Sun Don't Shine." (Yes, back before I went to law school and became the respectable defender of technicality seekers that I am today, I sold horror stories to both DC and Charlton. I'd tell you which issues my stories were in, but I'd hate to create a "Bob Ingersoll Stories" category in next year's Overstreet.)
I want to thank Mark very much for the art. Frankly, I didn't think I'd ever see an original page from one of my old scripts. It's very nice to have one hanging on my office wall.
Accompanying the art was this letter informing me that the art was a "bribe" to get me "to ignore a few slight bendings of the law process" in the Surge mini-series. As an officer of the court, it is my legal duty report such illicit attempts at influence peddling. It's already too late for the bribe to affect what I had to say about the first three issues. And I promise you, my loyal readers, it won't affect what I have to say about issue four.
To recap briefly, in Surge # 1-3, a hired assassin named Luger killed Surge's girlfriend and Surge tracked him down and, apparently, killed him. In Surge # 4, Surge is on trial for the murder of Luger. In fact, Surge isn't simply on trial, he's facing the death penalty. And we're told that the California Supreme Court held a special session to grant a prosecution request to expedite the trial and execution of Surge and that, after this, Surge pled guilty.
To go on requires even bigger WARNINGS that I am going to reveal even more about the Surge mini-series, including the ending. Move onward at your own risk. Or, of you don't like Risk, move onward with Stragego.
I had real problems with Surge # 4. I had problems accepting the proposition that the California Supreme Court, normally very progressive in the arena of a criminal defendant's rights, held a special session to authorize the speedy trial and execution of Surge. Capital punishment is a hot legal issue, especially if it's death by electrocution. No state supreme court would authorize proceedings which result in little more than a summary execution. At least, it wouldn't, if it wanted to keep the U.S. Supreme Court off its back.
I had problems accepting that the state would drop all the other charges against Surge, just so that the murder charge could be tried more expeditiously. No one saw Surge kill Luger. Even though Surge confessed, the prosecutor would bolster said confession with other evidence, like Surge's motive or the fact that Surge threatened Luger. For example, Surge hijacked a plane and while doing it threatened to kill Luger. It was for this reason the stewardess aboard the flight Surge hijacked testified about Surge's threats. As she testified about the hijacking anyway, the state might as well have kept the charge. It wouldn't have added too much time to the trial. And, if the judge is going to hear the evidence about the hijacking, he might as well deliberate on Surge's guilt to the charge. Indeed, as this was a bench trial, tried directly to the judge instead of a jury, the likelihood of the state dropping charges is even less. The state would be more confident that an experience judge would be able to process all the charges and return an expeditious guilty verdict than it would a jury, which might get bogged down by a multiplicity of charges. So, as this was a bench trial, I don't see the state dropping charges.
In the same way, the state had to introduce evidence that Surge burned down Luger's house to kill him. That's arson. The judge had to hear evidence on arson, so how does the state save any time by not proceeding with the arson charge and letting the judge deliberate on it?
And, prosecutors don't like to drop charges either. What if, as happened in Surge # 4, something went wrong with the murder charge? Here we learned that Surge didn't kill anyone, because Luger killed himself seconds before Surge torched his house. Oops, no murder and all the other charges dropped. Moreover, Double Jeopardy now forbids reinstating those charges. As I said, oops. The prosecutor was left with more egg on his face that Cool Hand Luke.
Farsighted prosecutors like to have other charges to fall back on, just in case. Had the prosecutor not dropped the other charges, such as arson or hijacking, Surge could still have been found guilty of them
Of course, Surge, himself, made all this evidence moot, as he pled guilty to the crime of murder. In the past, I might have had a problem with a court accepting a guilty plea which qualified the defendant for the death penalty. I'm no longer so naive. I've seen that it happens all the time. Courts routinely accept guilty pleas which qualify the defendants for the death penalty. So, I guess that's a problem I have to have with the courts, not with the story.
Of course, after the plea, new facts came to surface. Namely, as I said, the discovery that Surge didn't really kill Luger, because Luger committed suicide seconds before Surge burned his house down, preferring a quick death by gunshot to being burned to death. And I had problems with the reactions to this bit of information.
I had problems with Surge himself. Big problems! His attitude has become arrogant, patronizing and offensive. His last line, "I still wish I'd killed that bum."--Yes, I know Surge's line was a bit stronger. This is a family newspaper, remember?--shows that he has no remorse about what he did, like the hijacking and the arson. I cannot accept him as a hero. No, I don't want all my heroes to be as unidimensional as Superman. But I don't want them to be callous and mentally disturbed either.
I had serious problems with the denouement. Revealing that Surge didn't really kill Luger, because Luger committed suicide seconds before Surge roasted him was a cheap gimmick that avoided the real issue of the mini-series: what should be done with a super hero who kills a super-villain. Mark Evanier is a better writer than this, and I am very disappointed that he chose the gimmick rather than to confront the issue. But what the ending says about the law is even worse.
But most of all, I had a problem with the ending to the Surge mini-series portraying the law as being something so impotent and ineffectual and utterly unable to adapt that it could do nothing with Surge but set him free. It isn't. The law is quite able to adapt. After all, it adapted to me, didn't it?
First of all, Surge could still have been found guilty, even if Luger killed himself. One could still make a case that Surge murdered Luger. Murder is no longer defined as killing another human being, it's defined as causing the death of another human being. Luger only killed himself, because he knew Surge was going to kill him, and Luger wanted to spare himself that. In that case, Luger wouldn't have died but for Surge. Thus, Surge did cause Luger's death. I'll grant you that the argument is esoteric, but it still could be made. I've heard worse arguments in court; sometimes even by someone other than me.
And even if Surge isn't guilty of murder, he torched Luger's house in order to kill Luger. The only reason Surge didn't succeed in killing Luger was because Luger was already dead. Surge entered into a course of conduct, which, if successful, would have resulted in the crime of murder. That, Ladies and Gentlemen of the jury, is attempted murder. But could Surge be convicted of attempted murder?
Is the "Trial of the Flash" too long?
The Surge mini-series asked us tp believe that, as all the charges except the murder charge had been dropped, and as Surge didn't really kill Luger, the state of California had to let him go free. Maybe California had better study a little Ohio law. We'd be able to handle the Surge snafu here.
Surge pled guilty. He could only undo that by moving to withdraw his not guilty plea. Under the circumstances, namely that Surge didn't kill Luger, the court would, on its own motion, vacate the guilty plea. (Yes courts can do such things on their own motion, when it's to prevent a miscarriage of justice. Keeping a person from pleading guilty to a crime he did not commit would qualify.) But then the case against Surge would start up again from the point where it left off: with Surge still facing a murder charge.
The prosecution would then move to amend the indictment from one charging murder to one charging attempted murder. The court would grant the amendment, but would then, to be fair, probably continue the case, so that Surge could prepare his defense against the new charge. Then, sometime later, Surge would be tried for attempted murder. After Surge was convicted, the court would sentence him to something like ten to twenty-five years, and Surge would spend a few decades percolating his fluorocarbons in the slammer. And, if the state wanted to proceed immediately, it could go forward with the murder charge. The trial court could then find Surge guilty of the lesser included offense of attempted murder, as that verdict would fit the facts, and Surge would still be convicted of attempted murder.
And anyone who thinks it would violate the double jeopardy provisions of the Constitution to try Surge on the amended indictment should know that an amended indictment is considered to be a continuation of the old case, not a dismissal of the old case and a new trial on a new case. Thus, amending an indictment doesn't constitute double jeopardy. Under the circumstances, the defendant was never in jeopardy on the old charges.
I'm afraid that the last part to the Surge mini-series, because it took a cheap, totally inaccurate way out, spoiled what was otherwise a very enjoyable story. Sorry about that, Mark. Thank you for the artwork, however. I'm just sorry that I couldn't let it influence my treatment of Surge #...
You know that original art is really pretty. Heck, maybe I was too hard on Surge # 4. The mistakes weren't that major. Look, just ignore what I said before. Okay?
BOB INGERSOLL
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