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THE LAW IS A ASS for 06/05/2001
DOCKET ENTRY
"The Law is a Ass" Installment # 98
Originally written as installment # 87 and published in Comics Buyer's Guide issue # 672, October 3, 1986 issue
With apologies to Bob Newhart
******
"The Law is a Ass"
Installment # 98
by
Bob Ingersoll
I've figured it out. I know why there's a liability insurance crisis. I know why the insurance rates have gone up so high.
It's because major New York City hospitals don't just deal with the risks of malpractice, they encourage them by allowing certified public accountants to perform major surgery.
You saw it yourself, right there in Dr. Strange # 80. Dr. Strange was seriously injured in battle. Apparently, the Flaring Force Fields of the Federation spell he put up were about as effective for him as they were for the U.S.S. Voyager. Anyway, the wounded wizard was taken to St. Vincent's Medical Center. The surgeon in charge of the operation lets Sara Wolfe, Dr. Strange's business manager, into the operating room. Later the surgeon lets Sara pick up a scalpel and perform part of the operation. Why? Because she convinced him that Dr. Strange's astral self was possessing her and it would be Dr. Strange, once the most capable surgeon in the world, who would be performing the surgery.
Eventually, the hospital administrator found out about what happened. When he did, he must have had a talk with his surgeon, and I think it would have gone something like this:
"Okay, Chet, you want to tell me why you let the accountant into the operating room?
"Th... The patient's astral form appeared to you and told you to let her in.
"Aw, Chet, now didn't you promise me that you weren't going to sniff ether on duty any more?
"Then the accountant told you that the patient was controlling her body, and that you should let her operate, because the procedure was one of his specialities, back when he was a surgeon.
"And that's when you told the accountant to take a hike, right, Chet? You did tell her to get lost, didn't you? You didn't let her operate? Chet, tell me you didn't let her operate!
"You... you let her operate, didn't you, Chet?
"You thought you had to.
"You didn't know what else to do.
"You didn't want to fight the mystically enlarged bacteria again.
"No, Chet, I don't think you'll lose your license. If you can get the Medical Board to believe in giant bacteria, you can get them to believe anything."
Not to worry, though. I happen to have it on the best of authority that no one suffered. Oh, Dr. Strange did try to sue the hospital for malpractice. It was after his Bleeker Street house got a little demolished by a bunch of demons. Turns out his homeowner's policy didn't cover him for demonic damage, so Doc needed the money to rebuild the house. He figured the hospital had some excess money so sued the hospital, Chet, and Sara.
Doc lost on a technicality. Remember Sara is an accountant. It's a little known fact, but she used to work as an auditor for the IRS. And everybody knows the IRS can do anything it wants with impunity. Not ever Sorcerers Supreme can withstand the tribulations of a full five-year audit. Turns out eye of newt was not deductible as a medical expense.
******
Gee, Matt, I know you were disbarred, but that doesn't mean you should have forgotten everything you learned in law school.
So the Black Widow came to you in Daredevil # 237 and told you the government wants Daredevil and other super-heroes to film some anti-drug ad spots. Doesn't mean you have to fly off the handle or forget the law. Doesn't mean you have to go into a rant and say that the drug testing programs in professional sports are unconstitutional, because they violate the principle of innocent until proven guilty.
See, they're not and they don't.
The Constitution only controls government action. Remember that little fact? It was in all the Con Law texts. The Constitution does not cover private action. Major league sports franchises are privately owned. Yes, they enjoy a federally-sanctioned anti-trust exemption, but that's never been enough state action to bring MLB under the aegis of the Constitution. So, when the owners or the league commissioners initiate some form of drug testing, there is no state action involved. As a consequence, the constitutionality of the drug testing program is not in question. The niceness of it, may be in question, but not the constitutionality.
In the same way, the presumption of innocence does not apply to private relations between employer and employee. That comes into play only when the state is prosecuting someone for a crime. It has no validity in the situation where an employer wants his employees to undergo drug screening. Again that is a purely private citizen matter and no state action is employed.
And don't say your outrage was because Black Widow told you the government wanted you and other heroes to make a public statement. No one said anything about forced drug testing. All they mentioned was voluntary public statements. I'd hardly call the government asking some celebrities to make a few anti-drug public statements an Orwellian intrusion into our private lives.
You may not like the drug testing situation, because it offends your sensibilities and constitutes a private invasion of privacy. I'm not overjoyed with them either. But, please, we're lawyers. Let's be precise. After all, words are our lives.
******
Okay, Vig, I said last time out, I was coming for you loaded for bear!
Well, sometimes you get the bear, and sometimes the bear gets you. To wit: all I can really say about Vigilante Annual #2 is, oh, come now!
Alan Wells, a fellow judge of the New York Supreme Court with Adrian (the Vigilante) Chase was also the Electrocutioner, a vigilante who killed bad guys by. Well, you guess how he did it--shouldn't be too hard. Anyway, when Vigilante tried to stop him (I don't know for what considering they were brother-in-arms, maybe trademark infringement) Wells died. That's when Lt. Stein of the N.Y.P.D. got involved. He was convinced Adrian Chase killed Alan Wells and, despite the fact that his bosses in the Department told him they wanted him to drop the case, spent the better part of the last year defying his superiors by trying to prove Adrian Chase was involved in the death of Alan Wells. So, after all that, Stein got enough evidence to have Chase indicted and brought to trial. And that's when Stein decided that Adrian isn't so bad after all and singlehandedly ruined the State's case by admitting on the witness stand that all the evidence he got was obtained in an illegal search. Boom! Out goes all the evidence on a technicality, and Adrian's case was dismissed.
So was Lt. Stein, because there's no way that the N.Y.P.D. would let him work for them after he embarrassed them twice. First by defying their orders to let the Adrian Chase matter drop and putting Adrian on trial. Second by admitting during this high-profile case that he conducted an illegal search to gather the evidence. First he forced the high-profile case the Department didn't want on them by pursuing the investigation, then he forced them to lose the high-profile case by sabotaging it. But that's another story.
I wouldn't worry too much for Stein, though. I have it on good authority he stayed in New York and found work at St. Vincent's Medical Center as a surgeon. Seems he had all the qualifications they were looking for in their surgical applicants: none.
I can't say that what happened in Vigilante Annual # 2 is wrong. If a cop is willing to admit under oath that he seized evidence illegally, it is going to be suppressed and the charges dropped. So there weren't any legal mistakes in the story.
Credibility mistakes are another thing. I've had cops who I know conducted illegal searches. I've had cops who liked my clients and wanted to help them. I've never had a cop admit he searched illegally. No lawyer I've ever talked to has ever told me about an experience, where a cop has admitted to searching illegally. Heck, I'll go out on a limb; I'll bet no lawyer in this country has ever had a cop actually testify that, yes, he searched the house illegally so please throw out all the evidence.
Still, if you want to believe that such a thing could happen in the real world, you probably also bought the ending to Blue Beetle # 7. The unified street gangs of Chicago, not to mention the organized crime families, have spent the better part of three issues trying to kill the Blue Beetle and the Question. Now both sets of lowlives have got the heroes outnumbered about 1,000 to 1 in Wrigley Field. But instead of killing the good guys, the gangs join Blue Beetle in applauding, because the Godfather's son died and recited Mercutio's death speech from Romeo and Juliet.
Come on, what was the real reason? It was night and, because Wrigley Field doesn't have any lights, they gave up so they wouldn't trip in the darkness and hurt themselves. That's got to be the reason. The other explanation may have been dramatic, but as for its depicting real life, it was about as accurate as a beadless abacus.
******
BOB INGERSOLL is still a comic book fan and is still the CBG's non-resident legal columnist. Now I'm a Cleveland public defender again. That job Frank Miller got me as prosecutor for Gotham City in Batman: the Dark Knight Returns didn't take. All the criminals in Gotham are insane Batman villains. I'd prosecute, and they'd all be found Not Guilty by Reason of Insanity.
I had a lousy conviction rate.
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