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THE LAW IS A ASS for 01/16/2001
DOCKET ENTRY
"The Law is a Ass" Installment # 78
Originally written as installment # 67 and published in Comics Buyer's Guide issue # 623, October 25, 1985 issue
Ah, yes I remember this time quite well. Things were something of a mess. I was falling behind in my work as a public defender in Cleveland, Ohio as well as my comic-book reading. And, at the same time, I owed Comics Buyer's Guide and, even though I knew which comic I would write about, I really didn't know whether I could face another Vigilante column. (Yes, I do. I couldn't.) So I'd like to thank the Professor, wherever he is up there, for filling in for me, setting Adrian Chase straight... again... and giving me a much needed week off.
******
"The Law is a Ass"
Installment # 78
by
Bob Ingersoll
Dave Winston opened the door slowly. He had been a bailiff long enough to know, that there were better things to do than disturb a judge, who was researching a decision. Dave included drilling and filling a crocodile's teeth among those better things. Still, he didn't feel that he had any choice but to disturb the judge considering who was waiting in the outer room.
"Excuse me, your Honor. I'm sorry to bother you, but..."
"That's all right, Dave," Judge Adrian Chase said looking up from the law books, which for the last fifteen hours had cluttered his desk, while he sought out precedent. "I think I've got the answer in the Diputs case. When the police arrested Diputs, they handcuffed him before it started to rain. Therefore, the arrest was invalid. Thus, anything they found, after they arrested Diputs but before they read him his rights, was obtained without a writ of Whatsmi Problum, so is inadmissible. Looks like I'm going to have to suppress the Uzi Diputs had sticking out of his back pocket.
"Too bad, too. The D.A.'s got fifteen eyewitnesses who saw Diputs open fire on a street mime convention, but without that gun as physical evidence, the state couldn't make its case. After all, the fifteen eyewitnesses could all have been mistaken."
"I just wish I had thought of this, before the jury found Diputs guilty," Judge Chase said. I guess I'll just have to dismiss the case tomorrow at sentencing.
"Now, who did you say wanted to see me?"
"I do, Judge Chase," said an overweight octogenarian wearing a grey herringbone suit and a bow tie and carrying a thick prospectus from Smith Barney under his right arm.
"Professor Kings..."
"I know who I am," the Professor interrupted. "You needn't repeat my name for me."
"But what are you doing so far from Harvard Law School?"
"I am here to instruct you on how to think like a lawyer. And, based on the preposterous opinion I just heard you deliver to Mr. Winston, I haven't arrived a moment too soon."
"You mean what I just said was wrong?"
"Everything you have said in your courtroom, since the first day you donned your robe has been wrong."
"Everything?"
"Everything of importance. Oh, you may have correctly opined that you had to relieve your self, and even that is not a guarantee. But everything you've said about the law has been wrong.
"For example: recite the facts of State v. Tucker and Arnell, if you please."
"The case is found in the 24th issue of Vigilante. Nancy Sherman was knifed to death on Times Square. After learning of her daughter's death Helen Sherman, Nancy's mother, overheard the defendants, Tucker and Arnell, on a subway discussing the woman they knifed on Times Square the night before. Mrs. Sherman took her information to the police and the defendants were indicted for felony murder.
"Two days later Tucker and Arnell appeared before me for their arraignment. At that time their attorney, Mr. Brodner, moved for a dismissal of the charges on the grounds that his clients had an alibi for the time of the crime and there was nothing linking them to the murder of Nancy Sherman, except what Helen Sherman overheard them saying on the subway, which was inadmissible hearsay."
"Very good. At least you can get something correct. And what was the decision of the court?"
"I dismissed the case, because I could not and would not indict a defendant on the basis of hearsay, regardless of its source."
"Again correct, at least in so far as you were able to duplicate your ludicrous reasoning. Now what was the court's first mistake in this matter?"
"Taking the case in the first place?"
"You attempt flippancy, Judge Chase. However, your answer is, in fact, the correct one. You are a trial level judge in the city of New York, are you not?"
"Yes."
"And are there not also arraignment court judges, such as Judge Harry Stone on the TV show Night Court, whose sole function is to preside over arraignments, preliminary hearings, and minor infractions?"
"Yes, there are."
"Then what were you, a trial-court judge, doing presiding over the arraignment proceedings in the Tucker and Arnell matter? Judge Stone or one of the other arraignment court judges should have been handling the affair.
"Now what was the court's second mistake?"
"Uhh..."
"It was entertaining a motion that sought to dismiss the case on the merits at the arraignment. An arraignment is a proceeding in which an initial plea is entered and a bond is set. It can also include a probably cause hearing. It is not, however, a trial. An arraignment is not a proceeding in which the merits of the case are to be analyzed and probed toward a possible dismissal for insufficient evidence. That is the province of the trial.
"Arraigning judges do not analyze or dismiss cases on their merits. They let the judge who is to preside over the trial concern themselves with such matters. The sheer number of defendants appearing for arraignment each day precludes the arraigning judge from considering the merits of each case. If they did, the work of the court would never be completed."
"So I shouldn't have dismissed the case at the arraignment, I should have waited for the trial to dismiss it, right?"
"That is correct, in so far as when you should have entertained the motion to dismiss. It is not, however, a completely correct statement. Which brings us to: What was the court's third, and might I add, biggest mistake?"
"Letting you in my office."
"That is incorrect. If I did not point out your judicial shortcomings to you, then Bob Ingersoll would have to do so in his columns."
"You or Ingersoll, huh? Don't I have a third choice?"
"We could re-educate you so that you could un-learn all of the incorrect assumptions of the law you foster. Given the sheer number of such incorrect assumptions, however, re-educating you would probably necessitate starting you off with Barney and Friends."
"Oh, all right, what was my third and biggest mistake?"
"You dismissed the case, because the only evidence against the defendants was hearsay."
"But it was hearsay. It was something that someone, here Mrs. Sherman, heard someone else say, while the speaker was not in court or under oath. That's hearsay, and inadmissible."
"In New York it is hearsay. In most other states, it is not. And in all states, including New York, it would still be admissible evidence.
"Huh?"
"When a party in a lawsuit, such as the defendants, Tucker and Arnell, says something that is inconsistent with his position in the suit, that is called an admission. In states which have adopted rules of evidence patterned after the Federal Rules of Evidence, admissions are specifically excluded from the definition of hearsay, so are not hearsay. And even though New York has not yet adopted its proposed analog of the Federal Rules of Evidence, there is abundant case law, which, had you taken the time to read it--you can read, can you not?--would have told you that an admission is admissible evidence against the party who made it.
"Admissions are a well-established and well-founded exception to the hearsay rule. The party who made the admission can hardly complain that he is unable to cross-examine the declarant who originally made the statement, because the party is the declarant. Moreover, as these statements were also against the penal interests of Messrs. Tucker and Arnell..."
"Against the what? You can't use that kind of language in my court room."
"Their statements of Tucker and Arnell would tend to cause them to be incarcerated in a penal institution, a prison, as they were admissions to a crime. Case law recognizes statements against penal interests as being another exception to the hearsay rule. The reasoning is that no one would lie about something that would cause him or her to be incarcerated, so the statement against penal interests must be true. Thus, there are sufficient indicia of reliability to allow the statement against penal interests to be admitted as evidence.
"So, even though, the statements of Tucker and Arnell were hearsay, they would be admissible either as admissions or as statements against penal interests as to both. It was, therefore, totally incorrect for you to dismiss the case against them on the grounds that it could not proceed on hearsay evidence alone. The evidence, hearsay or not, was admissible, and the case could have proceeded with it.
"Now it is true that the only evidence linking Tucker and Arnell to the killing of Nancy Sherman was the conversation that Helen Sherman happened to overhear. The sum total of that conversation was that Tucker and Arnell had knifed a woman on Times Square the previous night. It is hard to imagine that only one person is knifed on Times Square on any given day? Indeed, we know for a fact that there was more than one knifing in Times Square on that particular day. Thus, there was no evidence linking Tucker and Arnell to the specific knifing of Nancy Sherman as opposed to any of the other knifings. There may not have been sufficient evidence to convict either of the murder of Nancy Sherman.
"But that, Judge Chase, whether the evidence is sufficient to support a conviction, is a question for the jury to decide. Something that cannot happen when you dismiss the case.
"It is fortunate that jeopardy had not yet attached to the two miscreants. They were re-indicted and their case went before another judge, one who knows the law and Messrs. Tucker and Arnell are presently residing in the penal institution where they belong.
"Study the law, Judge Chase, so that you do not repeat your mistakes."
"But I don't have time to do that right now. How about if I call you, when I have a question about the law?"
"My days are already filled with my duties to my Contracts classes. Might I suggest that you consult with Mr. Ingersoll, if you wish to ascertain how the law should work in your future cases.
"Now, if you will excuse me, I have an appointment with Mr. Sapperstein."
"Sapperstein, the D.A. in the Tucker and Arnell case?"
"The same. Any district attorney who agreed that the testimony of Helen Sherman was inadmissible hearsay and failed to bring to your attention the overwhelming weight of case law proving the evidence was absolutely admissible needs my help almost as much as you."
BOB INGERSOLL
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