Tag: Bob Ingersoll

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Bob Ingersoll: The Law Is A Ass #397

HOMER SIMPSON’S NOT AN ABETTING MAN

I probably shouldn’t do this. But you know me. Even if you don’t, I know me. Know me well enough to know that, it doesn’t matter whether I should do it. Like the Mean Widdle Kid, I dood it.

(Boy, there’s a joke that you either won’t get or won’t want to admit you’re old enough to get.)

The Simpsons is a comedy show, satirical and not to be taken as an accurate portrayal of anything. The same applies to the comic books based on The Simpsons. Even if The Simpsons were supposed to be as realistic as a Rembrandt, their stories take place in Springfield, whose chief of police is Clancy Wiggum. Let’s face it, if Clancy’s the chief law-enforcement officer, then the laws he’s enforcing have probably been simplified so he can understand them. The Springfield law defining arson is probably, “Fire bad.”

So I can forgive the legal error contained in the story “In the Swim” from Simpsons Illustrated #24. But I can’t forget it. And I’m simply not going to not write about it. Hence what comes next.

In the story, Mr. Burns has invited all the employees of the Springfield nuclear power plant on a Family Fun Cruise. Turns out, however, that Burns was only throwing the party as a distraction while he illegally dumped the plant’s nuclear waste into the Springfield Channel. When Lisa Simpson pointed this out, Burns advised her not to tell anyone. “Remember, in the eyes of the law, everyone on this boat is an accomplice.”

And that’s all the set-up you need or get. Now it’s on to the meatier part of the column: the legal analysis.

So in the eyes of the law, would everyone on the boat be an accomplice to Mr. Burns’ illegal dumping?

No.

Okay, that analysis wasn’t so much meat as it was pink slime. Let’s see if I can’t get the meat content up to that of two all-beef patties hold the special sauce, lettuce, cheese, pickles, onions, and the sesame seed bun.

In the United States, the concept of aiding and abetting is fairly simple. Anyone who actually commits a crime is guilty as the principal offender. Anyone who aids, abets, counsels, commands, induces or procures its commission, is an aider and abettor (or accomplice) and is punishable as if that person were also a principal offender.

If I, for example, agree to drive the getaway car while you rob a liquor store, I’m helping you and am as guilty as you of the robbery, even though I didn’t actually rob it. See, that’s fairly simple. But it’s only half a beef patty. Let’s add more.

The aiding and abetting statutes also require that the accomplice be acting with the same kind of culpability as the principal offender. In other words, the accomplice has to know the principal offender is committing a crime and wants to help the principal offender commit it. So if I help you, but I don’t know you’re committing a crime, I’m not guilty as an accomplice.

In our previous example, if you ask me to pick you up in my car outside a liquor store, but I don’t know you’re robbing the store, I’m not aiding and abbetting your crime, even if I do drive your getaway car.

That principle applied to our story for a time. At first, no one knew what Mr. Burns was up to. And because they didn’t know what he was doing, they weren’t accomplices. Then Lisa Simpson had to spill the beans and tell everyone. So now that they do know what he was doing, are they accomplices to his dumping?

Ah another layer to the analysis. A little more beef. But the answer is the same as before. Even though everyone on the boat knew what Mr. Burns was doing after Lisa shot off her big mouth, no one other than Waylon Smithers. did anything to help him. They weren’t aiders and abettors, because they didn’t aid him.

The law actually has a name for this principle. We call it the Mere Presence Rule.

The Mere Presence Rule is kind of an oddity in the law, because it means exactly what it’s name implies. The rule dictates that if you are merely present when a crime is being committed, you are not guilty as an aider and abettor.

If you’re standing on a corner when that hypothetical criminal from a few paragraphs back robbed the liquor story, you’re not guilty as an aider and abettor, even if you didn’t do anything to stop him. As long as you didn’t do anything to help or encourage the criminal, you are not an aider and abettor.

If you were a passenger in the car while the robber went into the liquor store and then came out and drove away but did nothing to help him, you’re not guilty as an aider and abettor. Not even if you knew in advance that the other person was going to rob the liquor store. As long as you didn’t assist or encourage the robber, you’re not an aider and abettor.

Sure the law might question your decision not to get out of the car and tell someone what was going on when it stopped. (The law might also question your choice of friends. I mean, this friend of yours has robbed how many hypothetical liquor stores now?) However, the law does not require you to do anything to stop the crime; not even telling somebody else that it’s happening. The law only requires that you don’t do anything that actively assists or encourages the criminal.

Getting back to the Simpsons story, all of the nuclear power plant employees were merely present when Mr. Burns illegally dumped nuclear waste in the Springfield Canal. They didn’t do anything to encourage or assist him. They were too busy playing Limbo and drinking some yellow liquid with umbrellas in them. So Mr. Burns and the story were wrong to say that everyone on the boat was an accomplice to his illegal dumping.

Let’s face it, to be an accomplice Homer Simpson would actually have had to do something. And I don’t think he’s got any accomplice-ments to his credit.

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BOB INGERSOLL: The Law Is A Ass #396

DAREDEVIL SHOULD KNOW THE LAWS OF TEXAS AREN’T UPON YOU

Either the Punisher’s even crazier than I thought he was – and he once gunned down some litterbugs because “littering is a crime against society,” so I don’t just think he’s as crazy as a bedbug; I think he’s what bedbugs point to when they talk about crazy – or Matt Murdock http://marvel.wikia.com/wiki/Matthew_Murdock_(Earth-616) is the worst lawyer of all time. Or both; they’re not mutually exclusive.

I wrote last time about the first issue of Daredevil/Punisher: Seventh Circle #1 . In that story Matt Murdock, assistant Manhattan district attorney and secret identity of super hero Daredevil, was trying to get the trial for a hated gangster, Sergey Antonov, changed to a new venue, because Antonov couldn’t get a fair trial in New York City. Fair enough, that happens. The venue Matt wanted was Texas. Not fair. Not even constitutional and it couldn’t happen. Like I said before, the Constitution commands that a criminal trial must take place in the state where the crime occurred.

What I didn’t tell you was that crazed ex-marine Frank Castle, who was so traumatized when he saw his family gunned down by mobsters that he adopted the name The Punisher and started a one-man war against crime, didn’t want Antonov moved to Texas. It wasn’t that Punisher wanted to keep Antonov in New York, because he didn’t want Antonov to have a fair trial; he didn’t want Antonov to have any trial. He wanted to kill Antonov before there was a trial.

Look, Frank, I realize your name implies that you’re not exactly a spare the rod – or gat or roscoe, or heater – kind of guy. But don’t you think killing a gangster who’s been arrested and is facing trial is a little excessive? If you wait for the trial to be over, he’ll get punished just fine. Meantime you can get on with your important work; like shooting jaywalkers.

So for the next four issues of this mini-series – or eight issues of it’s on-line presentation in Marvel’s Infinite Comics – Daredevil tried to keep Punisher from killing Antonov. Then, in issue #4 somewhere toward the end of their battle, Punisher told Daredevil that the only reason Matt wanted Antonov’s trial moved to Texas is because Texas is a death penalty state. Murdock wanted Antonov tried in Texas, because he wanted Antonov to be executed; something which couldn’t happen in New York because it hasn’t had the death penalty since 2004. And Daredevil, who is Matt Murdock under that horned masked and supposed to know the law, doesn’t deny Punisher’s claim.

So I guess it’s up to me.

Unless Matt knows less about the law than a drama major who scored a big fat 0 on the LSAT, he wouldn’t have been sending Antonov down to Texas to be executed. Because he’d know Antonov couldn’t be executed in Texas anymore than he could in New York.

Yes, I know Texas has the death penalty. Yes I know they use it in Texas. I even know they use it a lot. Doesn’t matter. They couldn’t use it against Antonov.

Let’s ignore what I wrote last time about how Matt couldn’t get the venue of Antonov’s trial changed from New York to Texas and pretend that Matt did get the trial transferred to Texas (try saying that ten times fast), what then? Well, you’d have the trial and, assuming Antonov was found guilty, the sentence. But you’re trying a man in Texas for a crime committed in New York, so whose laws would apply Texas’s or New York’s?

During that trial, the laws and procedures of the state where the crime was committed would apply, not the laws and procedures of the state where the trial was being held. So in Antonov’s trial, the laws of New York would apply, not the laws of Texas. Any defense that was available in the original venue – here New York – would be available in the new venue state – Texas – even if that defense didn’t exist in the new venue.

And what do the laws of New York say about the death penalty? You can probably guess, but seeing as how I’m a stickler for details in this column, I’ll stick to the details. In the 2004 case People v. LaValle, the New York Court of Appeals, the highest court in New York, ruled that the state’s death penalty violated the New York Constitution. That case abolished the death penalty in New York. Since then New York’s death penalty statute hasn’t been amended so the death penalty has never been reinstated. In fact in 2008, then Governor David Patterson issued an executive order that the state’s prisons should remove all their capital punishment equipment.

All of which means, as you probably guessed, New York doesn’t have the death penalty. In his trial, Antonov would argue that as New York, whose laws and defenses apply in the trial, doesn’t permit the death penalty, Texas would not be able to use it against him. Not only could he argue it, he would win the argument. Texas wouldn’t be able to fry him, hang him, inject him, or even chainsaw massacre him.

Unless Matt Murdock was the Dr. Nick Riviera of lawyers, he’d know that Texas couldn’t execute Antonov. Which means he wasn’t sending Antonov to Texas so that Texas could execute him. He was sending Antonov there for some other reason. Maybe Matt wanted to take a side trip to LBJ’s spittoon or the Yogi Bear statue or the Dr. Seuss park  or visit the house where they filmed the original The Texas Chainsaw Massacre, which has been turned into a restaurant – and that certainly isn’t in bad taste.

I don’t know what the reason is, but I do know one thing: It wasn’t so that Antonov could be executed. Or Texecuted. Or even wrapped up in a tortilla and – Hey, someone’s got to say it – Tex-Mexecuted.

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Bob Ingersoll: The Law Is A Ass #386

DAREDEVIL IS GIVEN THE FINGER

Truer words were never spoken; or put into a first-person narrative caption.

You may recall that attorney – I mean I hope my old columns are at least a little memorable – Matt Murdock, who is secretly the super hero Daredevil, was recently disbarred in New York state after circumstances forced Matt to reveal publicly that he was Daredevil. When New York realized the number of ethical infractions Matt had committed to keep his secret identity secret, it barred him from its bar. Matt then moved to San Francisco, because he was still a licensed attorney in California. Well, that was then. This is now.

Now, everyone has forgotten that Matt is Daredevil, Matt is back in New York City, and his license to practice law in New York State has been reinstated. Don’t ask how.

Seriously, do not ask how, because I literally do not know. The current run on Daredevil simply dropped us in the middle of Matt’s new life without telling us how it happened. The only No explanation we’ve been given as to how Matt ignored Nat King Cole and proved his secret identity was forgettable is “unspecified circumstances.” Although I think we can safely rule out a deal with the devil though. Marvel tried this trick before; it had Mephisto make everyone forget Peter Parker was Spider-Man in “One More Day.” That bit of Faustian forgetfulness proved so unpopular Marvel retconned the Abaddon amnesia angle out of existence in “One Moment in Time.” (And you know what, don’t ask me about that either!)

All we know is what no one else knows, that Matt is Daredevil, that he can practice law in New York again, that he’s back in New York City, and that he’s working for the New York City District Attorney’s office. Considering Matt’s recent record is rife with a lack of legal ethics, some of us were taking bets on how long it would be before Matt breached legal ethics again.

Well, if you had five issues in the pool, you’re a winner.

For the first four issues of the new Daredevil run, Matt was fighting Tenfingers; a new crime lord in Chinatown who, true to his name, has a double dose of digits on each hand and some magic mojo he stole from the ninja assassin organization, the Hand. (Fingers? Hand? I’m sensing a theme here. I’m amazed we didn’t have guest appearances by Iron Fist or Mitt Romney.)

Anyway, Matt had been fighting Tenfingers in both his identities. Daredevil battled Tenfingers and his underlings in the streets. While ADA Matt tried to assemble a case against Tenfingers so he could be prosecuted. In both endeavors, Matt failed miserably. Not only could he not stop Tenfingers, he couldn’t even get Tenfingers to paws.

Because Matt had such spectacular lack of success, he was demoted from heading up the Tenfingers taskforce to the District Attorney’s E.C.A.B. or Early Case Assessment Bureau; meaning Matt will be spending a lot of time in Night Court. (Yes, the same night court where Harry Stone was a judge, but probably a different court room. Although this being a court room in the Marvel Universe, I’ll bet it has just as many crazies.)

imagesIn Daredevil v5 #5, Matt was heading to what was, I think, his first night in night court, when he got an alert that Daredevil should come to the temple in Chinatown where Tenfingers had his headquarters. Matt told his assistant, Ellen King, to cover for him in court. Ellen protested that she was a paralegal, not an attorney. Matt left anyway and narrative captioned those aforementioned truer words, “This is gonna bite me in the ass.”

I see one of three results from Matt’s actions. First, Ellen did the proper thing and told the judge that the attorney who was supposed to be in court skipped out and that she was only a paralegal, so couldn’t proceed. The judge was understandably upset with Matt then continued the court’s docket until either another day or until the DA’s office sent another attorney to cover for Matt. Either way both the judge and District Attorney Ben Hochberg were going to be pissed at Matt for this. (Can I say “pissed here at ComicMix? I guess we’ll find out.)

And I don’t mean a little bit pissed, I mean massively, Matt-gets-fired-and-brought-up-on-disciplinary-charges pissed. Cause in the real world, that’s what would probably happen to an attorney who was just reinstated after being disbarred for ethical violations and who then intentionally skipped a court date and left an unlicensed paralegal to handle his caseload.

The second possibility is that Ellen still did the correct thing and told the judge she couldn’t go forward. The judge then did the incorrect thing and forced Ellen to prosecute the cases in that night’s docket. Unlikely. This possibility would also result in Matt’s being fired and brought up on disciplinary charges, but it would also result in the judge being brought up on disciplinary charges for forcing an unlicensed paralegal to act as an attorney. It would probably also require all of the people who were arraigned that night to be arraigned again, when someone learned that a paralegal was operating as an attorney without a license. So I doubt the judge would do that.

The third possibility is that Ellen did the stupid thing and didn’t tell the judge she was only a paralegal and actually handled Matt’s caseload. This result is also unlikely. It would still result in Matt being disciplined and still force the court to re-arraign everyone who appeared in night court that evening. It would also probably result in Ellen’s being fired. She couldn’t be disbarred, because she wasn’t an attorney, but the DA’s office would fired her and possibly bring her up on criminal charges for practicing law without a license. I don’t see Ellen doing that to herself.

You may have noticed that in all three of my possible scenarios, Matt gets disciplined for skipping out on court and leaving an unlicensed paralegal to cover for him. No matter what the judge and Ellen did, Matt is going to take it on the chin. And considering he’s a super hero, that’s a pretty prominent chin.

So, yeah, I guess you could say it’s gonna bite Matt in the ass. I think it’s going to do a few more things to him, too, but I know I can’t say what those are here in ComicMix.

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Bob Ingersoll: The Law Is A Ass #380

AMANDA WALLER LOSES TO A CONFESSIONAL PROFESSIONAL

There’s an old saying, “Confession is good for the soul.” But what if the confesser has no soul? Then that confession’s not good for much of anything; especially portrayals of the law.

New Suicide Squad #15 had a scene you’ve seen dozens of times. Well I’ve seen it dozens of times, but I’ve been reading comics and watching TV lots longer than most of you. In this particular case, the scene in question involved Amanda Waller, head of Task Force X, also called the Suicide Squad – the secret, and probably illegal, government black ops group made up of DC Universe super villains culled from Belle Reve Prison – and Miss Pesta, CEO of Calvary Corporation, a multinational corporate conglomerate that for the past several issues of New Suicide Squad had been trying to bring the Suicide Squad down, because the Task Force had disrupted several deals Calvary had in place in other countries. (Sorry about that last sentence, it had more clauses than a family reunion at the North Pole.) (And while we’re doing asides, Calvary Corporation? Seriously? Your evil corporation has the same name as the place where Jesus was crucified? Does no one appreciate subtly? What was Calvary’s business address? 666 Satan Place?)

Anyway, Amanda Waller – who is nowhere near as competent or as intimidating as she had been in her pre-New 52 carnation – decided to confront Miss Pesta head on. Toward that end, Waller broke into Pesta’s office and confronted Pesta head on. And armed, not with a gun but with Deadshot, a costumed super villain assassin in the DC Universe. He had the gun, which he pointed directly at Miss Pesta. Waller and Pesta talked of many things. Not shoes – and ships – and sealing wax; just what Pesta and Calvary was up to and why.

Pesta freely admitted that Calvary wanted to bring Task Force X down and had convinced Task Force X’s new supervisor, Vic Sage, to help them. It wasn’t hard, Sage hated Waller and wanted to destroy her. Sage leaked top secret information about Task Force X through one of the Belle Reve inmates under his supervision. The inmate would be blamed for the leak, so it would never be traced back to Sage or Calvary, and Task Force X and Amanda Waller would be shut down.

When Waller pointed out to Pesta that she had just confessed to conspiring to bring down a government program, Pesta almost literally laughed in Waller’s face. Did I mention that this New 52 version of Amanda Waller isn’t anywhere near as competent or as intimidating as the previous version of the character had been? If I didn’t, she isn’t. And if I did, that hasn’t changed.

Pesta’s actual answer was to say, in what I assume was a mocking tone – Pesta’s word balloon didn’t contain a convenient stage direction like mockingly – “So I deny it later or say you coerced me. You did break into my office and held me at gunpoint, after all.”

Seriously, how many times have we seen this scene played out? Bad guy confesses to cop then says, “but I’ll deny ever making this confession and it will be your word against mine,” Or says, “I’ll say you beat it out of me;” actually believing that a judge or a jury will actually believe the bad guy and not the cop. I don’t know about you, but I’ve seen the scene more times than I could count on all the fingers at a polydactyl convention.

Please, if for some reason you’re ever braced by the police and you freely confess to some crime, don’t think you’ll be able to convince a judge or jury that either a) you never made the confession or b) the police beat/coerced the confession out of you. In the immortal words of Rocket J. Squirrel to Bullwinkle J. Moose, “But that trick never works!”

Judges and juries don’t want to believe that policemen lie. They don’t want to believe that the police do anything wrong or that any arrest was carried out in any manner other than “by the book.” They especially don’t want to believe that the police beat, torture, or in any other way coerce confessions. Judges and juries want to believe confessions are on the up and up, so that they can convict the defendant with a clear conscience. Having a confession makes keeping that old conscience clear all the easier. In other words, unless you’re a southern belle, you should never begin any sentence to a police officer with the phrase, “I must confess.”

Okay, maybe things aren’t quite as bad as that cynical preceding paragraph made it seem. Except for the part where I said judges and juries don’t want to believe that a confession was anything other than valid. That part is true. I spent twenty-eight years trying to convince judges and juries to the contrary with very, very limited success.

No, let me rephrase that. With no success. From time to time, I did manage to get a judge to suppress physical evidence seized during an illegal search, but I can’t think of even one time where I convinced either a judge or a jury that a confession was coerced and should be disregarded. And don’t think I didn’t try.

Now I’m not saying that it wouldn’t have happened in Miss Pesta’s case. Pesta’s an attractive and rich corporate CEO who could honestly testify that a government operative broke into her office and had an underling point a gun at her head before she confessed. She and her story might have some jury appeal. Which is more than we can say about Amanda Waller. Waller is curt and abrasive and heads up a secret, illegal government operation that most Americans would not want to know existed and who brought a costumed hired gun for intimidation purposes. Under those circumstances, it is possible – possible mind you – that a judge or jury would believe Miss Pesta that she never made the confession or that it was coerced. But it happens so infrequently that, were I Miss Pesta, I certainly wouldn’t want to confess and then bank my freedom on the possibility that I could get someone to buy the into the coercion ploy. Unless, of course, I was planning on going to my bank and buying someone into buying the coercion ploy.

So maybe Miss Pesta could be successful in convincing others that her confession was coerced. Remember she is an evil corporate CEO in a comic book story. (Hey, aren’t they all?) In other words, Miss Pesta is a trained professional bad guy, so don’t try this at home.

Because there’s another old saying you should remember, “Your results may vary.”

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Bob Ingersoll The Law Is A Ass #379

WONDER WOMAN GOES OUT FOR TRICK OR TREATMENT

“Who watches the watchmen?” Not sure that one’s ever been answered. Who judges the judges? Check the byline.

Deborah Domaine, A.K.A. the super villainess The Cheetah, was serving a sentence in Iron Heights Prison. In Sensation Comics Featuring Wonder Woman #15, a federal court was holding a hearing on Debbi’s motion to be transferred to the Ohlendorff Metahuman Psychiatric Hospital, because Iron Heights wasn’t equipped to treat her “severe dissociative identity disorder.”

Sensation Comics Featuring Wonder Woman #41 (2015) - Page 12

The prosecution called Wonder Woman as a court-appointed expert witness on prison security. During Wonder Woman’s testimony, we got all the background exposition they don’t put into captions anymore. Last year, Debbi escaped from the psychiatric facility of Concord Federal Prison and attacked Wonder Woman in the National Air and Space Museum. During the ensuing fight – what’s a comic book story without an ensuing fight? – one hundred thirty-eight innocent bystanders were injured. Collateral damage. Wow, that fight had more collateral than ten bank loans. Anyway, Debbi was recaptured and transferred from Concord to the more-secure Iron Heights.

According to Debbi’s lawyer, Iron Heights’s medical staff adjusted Debbi’s medication and Debbi’s behavior had stabilized. So Debbi filed a motion to be transferred to Ohlendorff where she could receive the treatment necessary to cure her of her mental illness. Wonder Woman opposed the transfer and testified Ohlendorff’s security protocols were too lax to insure that Debbi would remain incarcerated there.

Why was Wonder Woman called as a court-appointed expert on prison security? I guess because her foes escape incarceration every alternate Tuesday that gave her expertise on which DCU prisons are secure. Personally, I’d question Wonder Woman’s expert status unless she said none of them are. DCU prisons have the biggest Open Door Policy since John Hay.

Unfortunately for Wonder Woman but not for the story – this was only page 4, something had to fill out the remaining pages – Judge Holzman transferred Debbi Ohlendorff. Then, short story shorter; Debbi escaped, Wonder Woman captured her, and Debbi went back to Iron Heights.

You might be wondering how Ohlendorff, a psychiatric hospital dedicated to treating metahumans with mental illness problems, could lack sufficient security to make sure its extremely dangerous patients all stayed on the grounds. I know I did. Seems a bit counterproductive. But, then, so does making a hotdog that’s bigger than the bun and it’s not like that never happens.

I wondered even more about defense counsel’s argument that neither Iron Heights nor any other metahuman prison was equipped to treat Debbi’s mental condition. The Eighth Amendment’s cruel and unusual punishment clause requires prisons to supply inmates with adequate medical care. The US Supreme Court said so in Estelle v. Gamble. Federal courts have applied Estelle’s rule both to physical health and to mental health care. When prisons show an intentional indifference to the mental health issues of its inmates, they violate the Eighth Amendment. Among the ways prisons can show indifference are a failure to have an adequate, qualified mental health staff on-site and the failure of large prisons to have a licenced psychiatrist on staff.

We know Iron Heights, like other DCU prisons, locks its cell doors on the honor system, so it might also consider viol-Eight-ing the Amendment to be as a badge of honor. Maybe it didn’t have on-site psychiatric staff, either. In that case…

Wait. No. No. Defense counsel said that Debbi received medications in Iron Heights, that Debbi’s medication had been adjusted by Iron Heights, and that the medication had stabilized Debbi’s behavior. Someone on Iron Heights’s staff was administering those meds. More important, someone on staff was competent enough to evaluate Debbi’s medications and adjust them by prescribing a proper dosage which had stabilized Debbi. That someone had to be a doctor. Debbi was receiving some treatment in Iron Heights, treatment that seemed to be working. How was Iron Heights not equipped to handle her mental disorder?

But for the sake of argument, let’s assume Debbi’s argument was valid. There is a case which held the failure to transfer an inmate from a prison to a hospital when the prison could not adequately treat the inmate was deliberate indifference; lending support to Judge Holzman’s ruling. But transferring Debbi to a hospital the judge knew couldn’t keep her locked up, that’s a different matter.

Mentally-ill inmates may have the right to be transferred to a hospital, but they don’t have the right to choose which hospital. Courts have ruled prisons must give inmates medical treatment, but they don’t have to give the exact treatment the inmate requests if other treatments are adequate. In addition, the government’s responsibility to protect its citizens means mentally-ill inmates should be hospitalized in an environment that is consistent both with their treatment and with public safety. If the defendants demonstrate a threat to public safety – by, say, escaping every alternate Tuesday and injuring one hundred thirty-eight innocent bystanders – courts are justified in having them hospitalized in a more restrictive hospital than the one the defendant might choose.

Judge Holzman might have granted Debbi’s motion to be transferred to a hospital. But in light of her past record, I find it doubtful that Judge Holzman would have transferred her to a hospital that a court-appointed expert on security testified wouldn’t be able to hold her. Hell, Judge Holzman didn’t even let Debbi into his courtroom; Debbi attend the motion hearing via closed-circuit television. If Holzman thought Debbi was so dangerous that he didn’t want her in his courtroom; he would not have sent her to an insecure mental health facility. He would have sent her to a hospital but one that was more secure. Like Concord or Arkham Asylum. Then Debbi could receive the treatment she required and the public would be safer, because Debbi was in a more-secure facility.

One where she might only be able to escape every third Tuesday.

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Bob Ingersoll: The Law Is A Ass #378

BROADCHURCH’S LAWYERS COULDN’T HIT THE BROADSIDE OF A CHURCH

broadchurch-full-series-review

Sometimes there’s nothing for it but to put the unpleasantness front and center. This is one of those times. So, here comes an unpleasant:

SPOILER WARNING!

I want to discuss the British police procedural TV show Broadchurch and there’s no way I can do that without massive spoilers on both seasons of the show. Spoilers along the lines of SPOILER ALERT! not just revealing that Darth Vader was Luke’s father but doing it before the Star Wars came out.

Broadchurch is set in the small, seaside British village of Broadchurch, which explains why the show wasn’t called Bexhill-On-Sea. The first season started with the murder of Danny Latimer, a local eleven-year-old local boy then centered on the investigation by Detective Inspector Alec Hardy and Detective Sargent Ellie Miller of said murder. (Wait, who said murder? I thought she only wrote it.) Broadchurch was not a pure procedural. It dealt as much with how the murder tore apart the small, close-knit community.

That tearing-apart aspect came fully into play in the final episode of the first season when DI Hardy learned that the murderer was SPOILER ALERT! Ellie’s husband, Joe. The town of Broadchurch in microcosm was torn apart after Ellie watched Joe’s filmed confession and SPOILER ALERT! beat him up in the police station. The town of Broadchurch in macrocosm was torn apart by the murder then torn apart again in the show’s second season, when SPOILER ALERT! Joe didn’t plead guilty and stood trial for Danny’s murder.

That’s where the law came in. So I guess it’s where I come in, too.

I won’t stress over the niggling legal mistakes that aren’t even worthy of a SPOILER ALERT! such as the fact that the trial judge was wearing a barrister’s wig instead of a judge’s wig, even if legal experts in England did. We’ve got wacking great errors to deal with.

Before the trial began, SPOILER ALERT! Joe’s defense lawyers had Danny Latimer’s body exhumed without telling anyone, even the Latimers. And on rather flimsy grounds. (That is, the grounds for the exhumation were flimsy. The ground of the cemetery was fine old English sod.) I realize things are different in the British criminal justice system; what with the wigs and the “M’luds,” and all. So I did some research. I found an article from the British paper The Daily Mail about Broadchurch’s second season. It answered my questions and confirmed my suspicions.

The body of an English murder victim belongs to the coroner. No coroner would have released Danny’s body without consulting the surviving family, unless said family were suspects in the case; which they weren’t. A spokesperson for England’s Ministry of Justice quoted in The Daily Mail said it was “inconceivable” that the body would have been exhumed in the way shown in the show. And I think the word did mean what he thought it meant.

But that was just the start. When Danny’s mother was cross-examined, defense counsel SPOILER ALERT! asked her about her sex life and her husband’s affair. In America such questions wouldn’t be permitted unless they went to the witness’s credibility. The fact that a woman’s husband was having an affair might affect her gullibility but not her credibility. Legal experts interviewed by The Daily Mail said the questions wouldn’t have been allowed in England either, as they had no connection to the case being tried.

During the trial, SPOILER ALERT! all the witnesses were in the courtroom when the other witnesses testified. Dramatic as hell; we got to see Danny’s parents agonized faces every time something went wrong. But inaccurate as a caveman eating brontoburgers. According to The Daily Mail, British courts, like American courts, require a separation of witnesses http://criminal.lawyers.com/criminal-law-basics/excluding-witnesses-from-the-courtroom.html. Witness aren’t permitted in the courtroom until they’ve testified. That way, no witnesses can hear what other witnesses say and change their testimony to conform it with what had been said before.

But the most egregious error was the SPOILER ALERT! motion to suppress Joe Miller’s confession. (The British called it excluding the statement, not suppressing. Silly Brits, can’t even get their own language right.) After DI Hardy testified about how he arrested Joe and obtained Joe’s confession, defense counsel SPOILER ALERT! got Hardy to admit that DS Miller physically assaulted Joe while he was in custody. Then counsel argued that the police had beaten the confession out of Joe, so it should be excluded.

DI Hardy had testified that Joe confessed before DS Miller assaulted him. Moreover, the confession was filmed, so the judge could see that Joe Miller didn’t have any signs of a physical assault at the time he confessed. Despite all this, SPOILER ALERT! the judge agreed she could not discount the possibility that the injuries were sustained before Joe Miller arrived at the police station, suppressed the confession, and ordered the jury to disregard it.

This whole proceeding was the Lex Luthor of dash; balderdash.

First there’s the matter of the suppression motion being heard in open court in front of the jury. Suppression motions are questions of law not evidentiary matter. No American suppression hearing would be held in front of the jury, the way it happened on Broadchurch. No English hearing would either according to the attorney interviewed by The Daily Mail.

More egregious was the timing of the suppression motion; after the trial started. In the United States, defense counsel wouldn’t even have been permitted to make a motion to suppress a confession after trial had started. Motions to suppress evidence must be filed before trial starts. See, if the trial has started and the prosecution loses the motion to suppress, it’s stuck. The trial court won’t grand a prosecution motion for a months-long continuance, while the prosecution takes an interlocutory appeal on the suppression ruling. But the prosecution can’t wait until the trial ends before appealing the suppression ruling. Assuming the prosecution lost the trial – a totally warranted assumption; if the prosecution won the trial, it would bother appealing – Double Jeopardy would prevent it from trying the defendant a second time, should it win the appeal. So defense attorneys are required to file motions to suppress before trial starts. That way, the prosecution can appeal the decision before jeopardy attaches and, should it win the appeal, still be able to try the defendant.

England, apparently, doesn’t have the same requirement. However, the lawyer interviewed by the ubiquitous Daily Mail said that the suppression matter would still have been settled before trial started. Neither the defense nor the prosecution would want to start a trial with this question mark over the case.

Most egregious was the fact that the judge granted the motion to suppress Joe’s confession. Judges don’t like to suppress confessions; especially confessions of confessed child killers. No judge in her right mind would agree with the defense counsel argument that “we cannot discount the possibility that the injuries were sustained before his arrival at the police station,” when the video evidence before her clearly showed that not only did Joe receive his injuries after he arrived at the station, he received them after he confessed.

Sure the judge was wearing a barrister’s wig instead of a judge’s wig. But that only means she wasn’t in her right wig, not that she wasn’t in her right mind. This ruling was shakier than a selfie in an earthquake.

You’ll be glad to know the attorney quoted in The Daily Mail agreed that no judge would have excluded Joe’s confession. Even if you’re not glad, I certainly am. I’d hate to think my grasp of the law was as tenuous as Broadchurch’s.

I had a problem with Broadchurch’s second season on from a legal point of view. I also had problems with it from a story point of view. An underlying subplot of Broadchurch’s first season was that SPOILER ALERT! DI Hardy was trying to restore his career after he failed to bring to justice a different child killer from an earlier case. Broadchurch’s first season was also a story of Hardy’s redemption when he solved the murder of Danny Latimer. However in the final episode of Broadchurch season two, SPOILER ALERT! the jury found Joe Miller not guilty. This demeaned the whole redeemed story of the first season, because, once again, DI Hardy failed to secure the conviction of a child murderer.

Still, Broadchurch’s second season wasn’t as bad as it could have been. It wasn’t, for example, Gracepoint, the American version of Broadchurch. Gracepoint managed to undercut all of the themes in Broadchurch, not just the redemption one, by SPOILER ALERT! having a completely different solution and a different murderer.

Broadchurch’s second season also wasn’t as bad as the second season of True Detective. Broadchurch’s second season only undercut the themes of the first season, True Detective’s second season tarnished the memory of the first season by being lousy.

Oops. Guess I should have put a SPOILER ALERT! there.

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Columns

Mindy Newell: Hear Ye, Hear Ye, Bob Ingersoll!

Justice

But this Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be.” • Chief Justice Roberts

“I join The Chief Justice’s opinion in full. I write separately to call attention to this Court’s threat to American democracy. • Justice Scalia, with whom Justice Thomas joins, dissenting

“The Court’s decision today is at odds not only with the Constitution, but with the principles upon which our Nation was built. Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits.”  • Justice Thomas, with whom Justice Scalia joins, dissenting

“For today’s majority, it does not matter that the right to same-sex marriage lacks deep roots or even that it is contrary to long-established tradition. The Justices in the majority claim the authority to confer constitutional protection upon that right simply because they believe that it is fundamental.” • Justice Alito, with whom Justice Scalia and Justice Thomas join, dissenting.

I have a question for Bob Ingersoll.

I don’t understand the dissenting opinions of Chief Justice Roberts, Justice Scalia, Justice Thomas, and Justice Alito. From my reading of their dissents – of which only excerpts are shown above – it seems to me that these men would also, given the chance, vote down the May 17, 1954 Warren Court’s decision on Brown vs. Board of Education Topeka, which:

“…declared state laws establishing separate public schools for black and white students to be unconstitutional [because]’separate educational facilities are inherently unequal’ [and] as a result,de jure racial segregation was ruled a violation of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution…”

Hmm, there’s that damn Fourteenth Amendment again.

Bob, I was taught way back when that our Constitution is a “living document,” which is defined by David Strauss of the University of Chicago Law School as: “…one that evolves, changes over time, and adapts to new circumstances, without being formally amended.” But apparently the four dissenting opinions are based on “constitutional originalism,” which Straus defines as “…the antithesis of…a living Constitution…It is the view that constitutional provisions mean what the people who adopted them – in the 1790s or 1860s or whenever – understand them to mean…[and] the Constitution requires today what it required when it was adopted…there is no need for the Constitution to adapt or change, other than by means of formal amendments.”

So, Bob, does that mean that Justice Clarence Thomas, a black man, believes that he belongs in a segregated society, that he thinks it’s okay for black children to go their schools and white kids go to their schools and never the twain shall meet?

So, Bob, does that mean that Roberts, Scalia, Alito, and Thomas also believe that women should not be allowed the right to vote, much less sit on SCOTUS? (Yes, I know we women gained the right to vote through the Nineteenth Amendment, which is the formality referred to by Straus, but women not having the right to vote was not one of the original “constitutional provisions” back in 1790 when Rhode Island became the final state to ratify the document.)

Bob, why do so many conservative pundits on radio and TV accuse SCOTUS of “enacting laws, not judging them?” I mean, if it weren’t for SCOTUS, half of them wouldn’t even be able to be on radio or TV, right?

And what’s with the accusations of “playing politics?” I seem to remember that a certain Texan became President of the United States because of SCOTUS “playing politics.” Where was all the shouting then?

Personally, I think it’s very hard for a Justice, or a radio or TV pundit, or anyone to really separate him or herself from their personal biases and life experiences when balancing the wheels of justice –

But that’s why they have law schools, right?

Like I said, damn that Fourteenth Amendment!

 

Categories
Columns

Mike Gold: The Magic Of Comics

At MoCCA this past weekend – that’s one of my favorite shows, by the way – a surprising number of people asked me about how I felt about DC Comics Entertainment Periodical Publications moving to the Left Coast.

It amuses me to note that only one of these people actually worked at DC, and he was being sarcastic.

In its 80 years DC Comics has moved more frequently than a family of vaudevillians. I worked at only three of their locations; I know many who worked at five or six. Every time DC moves, they relaunch Aquaman. They are now a fully integrated part of Warner Bros., so moving to LALALand is a no-brainer.

And I hope my friends at Marvel are paying attention.

Once Marvel joins Disney out in Hollywood, only one comic book leaflet publisher will be left in New York City proper, that being Valiant. (If I’m missing anybody, forgive me – you really can’t tell the players without a scorecard, and, besides, I haven’t seen Jim Shooter in about a year). If you consider the entire New York metropolitan area, that number grows to… what, two? Archie Comics is in Westchester County. If ComicMix returns to leaflet publishing, and, yeah, we’re considering it but then we collapse in a fit of giggles – then that’ll make three. The combined output of the New York comic book leaflet publishers wouldn’t amount to a fart.

For the record: I think it is absolutely great that we have comics publishers all over the nation. There’s no magic to publishing comic books in Manhattan, despite what lazy publishers told poor cartoonists between the middle of the Depression until the election of Ronald Reagan.  Actually, I think it is great that we have so many comics publishers that they can be all over the nation.

I admit: the first time I dropped my butt into my chair at 75 Rockefeller Plaza – that’s four locations and 40 years ago – I was in fanboy heaven. It was a great feeling. Jenette Kahn offered me the job at a moment when, as they say in the business, I was “between radio stations.” In 1976, stations were changing their pretty much after every third song and I saw the handwriting on the wall. It said “Work for Superman.”

The fact is, most of my best and most enduring friendships have been formed while in the comics racket. I’ve lunched with Steve Ditko, I’ve worked with Will Eisner and Peter O’Donnell, I intervened in a, ah, friendly discussion between Stan Lee and Joe Orlando. Great stuff. ComicMixers Glenn Hauman, Martha Thomases, Denny O’Neil, Mindy Newell, Bob Ingersoll, and Robert Greenberger? These folks have been my friends forever, and I met them all through comics. Yes, they have amazing intestinal fortitude.

John Ostrander is different. (I can’t tell you how much I wanted to end this paragraph right here.) I’ve known John even longer, through our common interest in both theater and comics. I brought him into this business – at his own request, so he can’t complain.

I have absolutely no doubt that there are a ton of people just out of school out on the Left Coast who will put in their time at DC Comics and come out of it exhausted but with plenty of great friendships.

And for me, that is the magic of the comic book racket.