Tag: The Law Is A Ass

Categories
Columns

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.

Categories
Columns

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.

Categories
Columns

Bob Ingersoll: The Law Is A Ass #394

MR. McDUCK SCROOGED HIS COURAGE TO THE TRICKING PLACE

All of Scrooge McDuck’s arch-nemesees … Nemesissies… Numismatists? All the dastardly deed doers of Duckburg teamed up to take down Uncle Scrooge. Flintheart Glomgold, John D. Rockerduck, Magica De Spell, and the Beagle Boys all working together. Over the course of Uncle Scrooge # 13 and 14, they actually managed, working together, to do what none of them had ever been able to do alone. They got everything from Scrooge. His property, his businesses, his three cubic acres of money, his money bin, his number one dime. Even his stake in the lawsuit he filed against some johnny-come-lately named Ebeneezer. Scrooge was broke, destitute, well off from being well-off even.

But that was issues 13 and 14. The first two parts of a four-part story. Issue 14  saw Magica run off with all three cubic acres of Scrooge’s case and in issue 15, Scrooge reacquired it from her. Scrooge had physical possession of the cash, but he didn’t have title to it or anything else he had once owned. Then came issue 16, the fourth-part of the four-part story and guess what?

If you guessed Scrooge gets everything back you’d be…

3378851

Well, let’s see.

Scrooge convinced Rockerduck that Scrooge had died by having Donald give a fake interview about Scrooge disappearing while on a quest to rebuild his fortune. Then Scrooge pretended to be his own ghost and convinced Rockerduck that he shouldn’t trust Glomgold and that to protect himself, he should bring in a third partner. Someone so rich he’d be on equal financial footing with, and able to stand up to, Glomgold. Scrooge suggested Rockerduck sell all rights, shares, and deeds to Scrooge’s old companies to the Pasha of Pushbak.

The next day, Rockerduck prepared a contract of sale and sold it all to the Pasha. He also signed a confidentiality agreement prepared by the Pasha’s grand vizier.

Except that it wasn’t the Pasha of Pushbak. It was Jubal Pomp, a con artist who had once posed as the Pasha of Pushbak to try to swindle Scrooge. Now he was working with Scrooge, who was disguised as the “Pasha’s’ grand vizier to fool Rockerduck.

The next day, Scrooge showed up to lay claim to his newly-restored property. Naturally Glomgold doubted him, until Scrooge showed him a transference agreement signed by Rockerduck returning “everything back to me.” Then Scrooge showed Glomgold that the Beagle Boys, whom Glomgold had tried to have killed earlier in the story, were still alive (Scrooge and Donald having saved them) and were willing to go public about all the crimes Glomgold committed in his anti-Scrooge plan. Scrooge promised not to press charges, if Glomgold sold him back “everything you stole” for one dollar. Glomgold agreed.

And so, victorious once more, Scrooge got…

Nothing actually.

Scrooge’s whole plan was predicated on his getting title to his property back when Rockerduck sold his shares of Scrooge’s property to the Pasha of Pushbak. Unfortunately, he didn’t get title to anything from that transaction.

Don’t tell me, sure he did, right there on pages 14, 15, and 16 of the story. I know what’s in the story. But I also know what’s in the law books. And I tell you with confidence, Scrooge didn’t get quack spit from that Pasha of Pushbak transaction.

Rockerduck prepared his agreement transferring his share of the property to the Pasha of Pushbak. I doubt very much that when he prepared this document Rockerduck mistakenly inserted Scrooge McDuck’s name for that of the Pasha. Rockerduck may be an idiot, but he has too much ego to be that id-iotic. It stands to reason, therefore, that the contract Rockerduck drafted sold Scrooge’s former property to the Pasha and didn’t sell anything back to Scrooge. So what was the transfer document that Scrooge showed Glomgold.

It was exactly what Scrooge said it was. It was a document that transferred everything back to Scrooge. And it was signed by Rockerduck. But it wasn’t the one Rockerduck prepared. It was one Scrooge prepared.

It was the confidentially agreement that the Pasha had Rockerduck sign, which wasn’t actually a confidentially agreement but a contract that transferred everything back to Scrooge. Apparently Rockerduck got into some bad habits by signing his iTunes without reading them, and signed this “confidentiality agreement” without reading it. Scrooge even crowed that “Rockerduck doesn’t even know what he signed.” See, I told you Rockerduck was an idiot.

But the “confidentiality agreement” didn’t transfer anything, because it wasn’t legally enforceable. Rockerduck signed it, because he was told it was a confidentiality agreement. He didn’t know it was a transfer of property document, because Scrooge lied about what it was. That was fraud in the inducement. As Rockerduck didn’t sign what he thought he was signing, there was no meeting of the minds between him and Scrooge. The transfer agreement was null and void and Rockerduck still owned everything he was tricked into transferring to Scrooge.

Scrooge can’t even say that Rockerduck transferred his property to the Pasha of Pushbak under the contract that Rockerduck prepared and that the Pasha then transferred that property to Scrooge. The contract between Rockerduck and the Pasha was just as unenforceable as the “confidentiality agreement” was for the same reason. Fraud in the inducement. Rockerduck thought he was selling something to the Pasha. He wasn’t. He was selling it to a con man disguised as the Pasha. There was no meeting of the minds between Rockerduck and the Pasha, because there was no Pasha.

Of course, I don’t think there could have been a meeting of the minds between Scrooge and Rockerduck under any circumstances. If Rockerduck was stupid enough to fall for Scrooge’s ridiculous scheme, he didn’t have much of a mind to begin with.

Categories
Columns

Bob Ingersoll: The Law Is A Ass #393

ANT-MAN HITS THE HEIST

Sometimes I wonder why I bother getting out of bed.

So Scott Lang, former thief and current Astonishing Ant-Man, has a daughter, Cassie. Cassie is a teenager, meaning she’s in that rebellious stage. We’re not talking tattoos, emo outbreaks, and staying out after curfew to be with that boy. We’re talking the Boxer Rebellion of teenage acting out. Cassie decided that to get what she wanted, she should become a super villain.

What did she want? Revenge on industrialist inventor Darren Cross for one. Kind of a non-standard goal for an angst-ridden teenager, but Cassie had a kind of non-standard childhood, what with her having super powers, losing those powers, dying, and being brought back to life. Then there was the time, Cross’s son kidnapped her and stole her heart because he needed a transplant for his father. So I can see where Cassie might go all Wrath of Kahn  on Cross and start spitting at him for hate’s sake. (Okay, we know Captain Ahab beat Kahn to the “Hell’s heart” shtick, but Cassie’s young; she may not know from Moby Dick. To her a rousing sea story is probably Finding Nemo.)

Anyway Cassie went to Power Broker, a super villain whose gimmick is that he supplies super powers to people who want to become super villains in return for a cut of their ill-gotten gains. He even has an app – Hench– that people needing super villains can use to find his super villain database and find the suitable villains to hstingerire. And, it turns out, Power Broker has his own mad on for Darren Cross, because Cross’s son stole the platform for Hench and started a rival super-villain-hiring app, Lackey. So Power Broker convinced Cassie to undergo his process and regain her former powers.
She did and became Stinger, an insect-motifed super villain.

Power Broker wanted Cassie to use her Stinger powers to break into Cross’s super secure facility and retrieve Lackey. Cassie agreed. That way both she and Power Broker would get their revenge. (By the way, contrary to popular belief, revenge isn’t a dish best served cold. That would be vichyssoise. And I don’t really recommend adding either to your meal plan.)

When Scott learned what Cassie was up to, he gathered together a group of super powered individuals – himself, the new Giant-Man, Darla Deering AKA Ms. Thing, Grizzly, Machinesmith, Whirlwind, The Beetle, The Magician, The Voice, and Hijacker – to break into Cross’s super secure facility and rescue Cassie.1u1jnc Their twenty-two step plan succeeded well enough to get everyone into the facility. Then the team separated. The super-villains in the team – you did notice that most of the team was comprised of super villains, didn’t you? – went off to fulfill their goal, stealing technology from Cross. Scott headed off on his own for his goal, to rescue Cassie.

Scott found Cassie, who was in the middle of a face-to-face confrontation with Darren Cross, Cross’s son, and their super villain bodyguard, Crossfire. That’s when things went…

Ah, but you don’t want me to give that away, do you? I mean that would be a SPOILER and I’d have to do a SPOILER WARNING! and everything. Even though this is issue 9 which would be a bad place to stop a story arc, because 9 is a bad number of issues to collect into a trade paperback, so you probably already know the story was be continued in the next issue, you still don’t want me to tell you that things go badly and Ant-Man is captured by Cross and Crossfire. Right?

Okay, fine. Things go badly and Ant-Man is captured by Cross and Crossfire. Happy?

Now I’ve written before about my problem with super heroes who do stupid things that essentially break the law. But rather than do that, and like I said earlier, I shoula stood in bed, because apparently no one listens or cares. Hell, The Astonishing Ant-Man # 9 didn’t just not care, it doubled down on the trope. Instead of having Ant-Man do something stupid that essentially broke the law, this story astonished us by having Ant-Man do something stupid that actually broke the law.

Ant-Man teamed up with a bunch of super villains to break into a technology research facility. Sure Ant-Man’s motives were a little more pure than thieving. He wanted to rescue his daughter and keep her from becoming a super villain. But to do that, he aided and abetted a group of super villains he knew were going to burgle the research facility. That makes him just as guilty of their thefts as they are, even if Ant-Man didn’t, himself, steal anything. Ant-Man even knew he was guilty, because his narrative caption joked, “Cue Ocean’s Eleven soundtrack.” (BTW, Scott, your quip doesn’t work. In case you didn’t notice, or can’t count, there were only ten of you.)

I can’t say as I’m impressed with Scott’s parenting skills. I’ve got to show my daughter that the way to solve your problems isn’t to become a super villain. So I’ll solve that problem by becoming a super villain. I’d hate to see what Scott’s solution is when Cassie comes to him because it’s time for “the talk.”

Oh, and lest you think I’m being a little hard on Scott, because he wasn’t really a thief and his heart was in the right place, think again. Everything the astonishing Ant-Man did in this issue proves that, contrary to popular opinion, he was a thief. What did he do? He staged an elaborate heist to break into Darren Cross’s super secure technology research facility to steal something, only to be captured by Cross. See, Scott is a thief. He totally ripped off the plot to the Ant-Man movie.

Categories
Columns

The Law Is A Ass # 392: Bob’s Brain Has A Darkside

I am reminded of a story my father told me. What story, I’ll get to that shortly. First I’ve got to tell you about another story.

That other story is “Sleepwalker” from Tales From the Darkside# 1. For those of you who, unlike me, aren’t as old as Pangean dirt, there was a syndicated TV show of that same name combined back when Hector was a pup, and I was in my 30s. A half-hour anthology show featuring horror, science-fiction, and fantasy stories that usually climaxed with a twist ending. The show wasn’t bad, but I had a problem with it. I was raised on The Twilight Zone and EC comics. I cut my teeth on twist endings. For me the endings of Tales From the Darkside had as much twist as a pretzel rod.

Joe Hill, a fantasist with a pedigree, both a literary pedigree and a literal pedigree, tried to revive the series for the CW. The series didn’t make in onto TV, but Hill is adapting four of the scripts he wrote for the show into a comic-book series of the same name. And that first issue is the other story I’m telling you about first.

Ziggy was a recent high-school graduate who was working as a lifeguard at a municipal swimming pool on Brody Island. His lawyer mother was out-of-town on business, so he stayed out partying all night then went to his lifeguard job during the day. As bad ideas go, this wasn’t like texting and driving. This was more like typesetting a magazine article complete with multiple fonts and drop caps while driving.

The sleep-deprived Ziggy fell asleep on duty and Ellen Miller died.

Only she didn’t drown. Leastwise, I don’t think she did.

Neither did the coroner. He testified during some courtroom proceeding Ziggy called a trial that Ellen had a weakness in the wall of her heart and Ziggy he probably couldn’t have saved Ellen’s life even if he had “gotten to her in time.” According to Ziggy, the hearing ended in less than an hour with the judge telling Ziggy that he shouldn’t blame himself.

That’s when I went tilt. The story called the proceeding both a hearing and a trial. My brain, with it’s mind trained to think like a lawyer even though none of my law school professors looked even remotely like John Houseman wanted to know. Was it a hearing or a trial?

The proceeding happened so quickly that Ziggy’s mother had to cut her business trip short. That’s not enough time between event and proceeding for it to have been a full trial. Trials take time to mount. Even on small islands with small populations, trials for negligent homicide don’t generally come to court for weeks or months. So let’s take trial off the table. Ziggy, the narrator of the story, probably didn’t know the difference between a trial and a hearing and misspoke, or mis-first-person-narrative-captioned, when he called it a trial. Hearing it is.

Except there appeared to be a jury in what appeared to be the jury box and you don’t have juries in hearings. Only, was it a jury box? The group of people were seated in what looked like a standard jury rig, except for the fact that it was on the other side of the room from the witness stand. The judge’s bench separated the witness stand from the jury box. In every courtroom I’ve been in, the jury box is right next to the witness stand, the better to hear the witnesses with.

So, let’s assume this wasn’t a jury box because it wasn’t where a jury box was supposed to be. Maybe it was an auxiliary seating area for the spectators. Boy there must not be a lot to do on Brody’s Island other than that swimming pool, if the local courthouse routinely gets so many spectators it needs overflow seating. Okay, no jury box means that wasn’t a jury and the proceeding wasn’t a trial. It was a hearing.

But what kind of a hearing? The coroner testified. Could it have been a coroner’s inquest? Not likely. First, coroner’s inquests might be all the rage over in England, when they’re not too busy having their Brexit, lunch and dinner, but they’re aren’t as common in the United States. Moreover, a coroner generally presides over a coroner’s inquest, not a judge. Our hearing definitely had a judge.

I’m guessing it was a preliminary hearing, in which the judge heard some witnesses and determined whether there was enough probable cause to bind Ziggy over for trial. That would be in a courtroom and presided over by a judge. And it only last an hour after the judge heard the coroner testify that Ellen died from a weakness in the wall of her heart, like a ruptured aortic aneurysm, and Ziggy couldn’t have done anything to save her life. Even a tough-on-crime judge would have to find no probable cause after the coroner testified the defendant didn’t kill the victim.

I was almost satisfied. The only question I still had was this: What was Ziggy doing in the witness stand? The prosecution couldn’t call Ziggy to the witness stand. I don’t know what state Brody Island is in, but I don’t need to. All 50 of them recognize the 5th Amendment and its right against self-incrimination. So the State didn’t call Ziggy.

Did he testify on his own behalf? At a trial, maybe. Sometimes defendants testify in order to present a defense with the best possible evidence. But not at a pre-trial hearing. When all that’s happening is the judge hearing the state’s case to determine whether there’s probable cause, no “high-powered lawyer” is going to let the defendant testify. There’s a greater percentage of impurities in Ivory Soap, than there is of allowing a defendant to testify in a preliminary hearing.

I have a theory why Ziggy was in the witness stand. The story was about Ziggy being sleep deprived and sleepwalking through life. Maybe Ziggy sleepwalked into the courtroom and sat in the witness stand by accident. No one moved him because you’re not supposed to wake a sleepwalker.

Okay, it’s not a great theory. But it’s still a hell of a lot better than believing that a defense attorney let the defendant testify at a preliminary hearing.

So after studying the contextual clues of the story, I’ve determined that the proceeding shown in Tales From the Darkside # 1 was a preliminary probable cause hearing.

Now here’s the story my father told me that I was reminded of. When he was in college, my father took a course on Shakespeare. One day the professor came into class with the biggest, broadest cat-that-swallowed-the-canary smile imaginable on his face. The cat didn’t just eat the canary. It had canary cordon bleu, asparagus with hollandaise sauce, and La Bonnotte potatoes; washed it down with a bottle of Chateau Lafite, and got double points for the whole meal on his cash-back rewards card. The elated professor announced that after thirty years of close and intensive study of Hamlet’s text as well as the language, idioms, and word usage of Elizabethan England, he had concluded that, yes, Hamlet had definitely slept with Ophelia.

My father asked one simple question, “And that changes the play, how?”

The professor deflated quicker than a Macy’s balloon after a close encounter of the AK-47 kind.

I was reminded of that story, when I realized that my studying contextual clues to determine Ziggy was in a preliminary hearing didn’t change the story, either. But at least I didn’t spend thirty years determining the answer. Or even thirty minutes. And, unlike Ziggy, I didn’t lose any sleep over my problem.

Categories
Columns

Bob Ingersoll: The Law Is A Ass #391

IS THE LAW IN ASTRO CITY AN ATROCITY?

I have to admit, the city fathers of Astro City are smart. They won’t tell me where Astro City is. Okay, it’s somewhere on the eastern face of the Rocky Mountains, but that could be anywhere from New Mexico up through Colorado, Wyoming and into Montana. I don’t know which state Astro City’s in. So those smug city fathers think I can’t analyze Astro City stories, because I won’t know which state’s laws to use in the analysis.

Wrong!

I don’t need no stinkin’ laws to analyze the law. I can just make it up as I go along.

Which leads us to Astro City v3, #33 and #34. Hey, it had to be leading us somewhere. Super villainess Cutlass asked retired super villain turned civilian Steeljack for help. Someone was committing crimes and framing Black Masks – the nickname for costumed villains in Astro City – for those crimes. This trend was problematic for Cutlass. And when she was framed, it became an actual problem.

Steeljack and Cutlass investigated and learned that the real culprit was –

SPOILER WARNING!!!

***

Here’s where I give away the things you don’t want me to give away if you haven’t read this story. I, The Spoiler in the aforementioned Spoiler Warning, say, you have been warned.

– Jared Everall.

Who’s Jared Everall? A rich, fan boy collector of super power memorabilia who wanted to play with his wonderful toys, that’s who. So Everall played by committing crimes using super villain weapons in his collection and framing the super villain whose weapons he used.

Like a good little villain, Everall captured Steeljack and Cutlass in issue 33 just in time for the cliffhanger. Like a good little villain, Everall took them to his underwater lair in issue 34. And, like a really good little villain, Everall monologued long enough for Steeljack and Cutlass to escape.

Everall fled the scene, while Steeljack and Cutlass fought Everall’s Black Mask minions. One super powered obligatory fight scene later, Steeljack was ready for the main event; him versus Everall, who was back in his mansion operating some oversized armor by remote control.

Now because Astro City knows how to tell a story in a reasonable two-parts instead of subjecting it to Trade Paperback Stretch, this fight scene didn’t last long. Three pages into it Steeljack made the armor overload.

12

Steeljack and Cutlass went to Everall’s house to look for proof that he was framing Black Masks. They found the house in a state of disrepair, having sustained damage when the armor overload caused Everall’s remote control to explode. They also found Everall in a state of disrepair, having also sustained damage when the remote control exploded. Everall’s damage was a little more extensive. As in fatal.

Steeljack was arrested and charged with a “long list” of crimes, including Everall’s murder. So there Steeljack was, in court with a public defender who was so new and inexperienced “the tags were still on” her being asked how he pled.

Things looked pretty bleak for Steeljack. That is, until – cue “Park Avenue Beat” – Perry Mason arrived. Only in this story “Perry” was called Randal Sterling and was hired by Cutlass, because Steeljack couldn’t even have afforded to pay that public defender with the tags still on her.

Sterling and Cutlass even brought evidence. Cutlass hired someone to follow them and video record everything. In addition, Cutlass found Everall’s records before the house burned down. So she had the proof that Steeljack didn’t murder Everall, he had acted in self defense and that it was Everall who had committed all the other crimes.

She never bothered to explain why she hadn’t brought any of this evidence to light earlier so that Steeljack didn’t have sit in jail waiting for his day in court. Maybe it wasn’t her fault. Maybe Astro City didn’t have one of those one-hour photo developing huts.

Still the evidence was better late than never. After seeing the evidence, the judge granted Sterling’s motion to dismiss all charges.

Now my question is, all charges? Even the ones he was guilty of like breaking and entering. Because when Steeljack trespassed in Everall’s house to take evidence from it, that’s what he was doing. But my other – and bigger question is this: What kind of court proceeding was Steeljack in where he was both entering his plea and his defense attorney could introduce evidence?

Those two things usually happen in two different proceedings. First there’s a probable cause hearing– we call them preliminary hearings in Ohio – where the prosecution introduces evidence to prove that it has probable cause to charge the defendant with a crime. The defendant is also permitted to introduce evidence in a preliminary hearing. If the judge finds probable cause exists, the defendant is bound over to the grand jury for a formal indictment.

Then sometime after the grand jury indicts comes the arraignment where the court reads the formal charges to the defendant and the defendant enters a plea of guilty or not guilty. No evidence is admitted in an arraignment and no witnesses called, because there are usually dozens of defendants going through the cattle call that is the arraignment room. The arraignment judge doesn’t have the time to let any of the defendants call witnesses. Not when there’s another twenty-seven or so defendants waiting to be arraigned.

In our story, the judge read the charges to Steeljack then asked him how he pled. So it was an arraignment. Then the defense attorney called witnesses and moved to dismiss the charges. So it was a preliminary hearing. It was a prelimment.

So was the scene wrong? The end result was fine. The charges against Steeljack probably would have been dismissed after Sterling introduced his evidence in a preliminary hearing. If the story conflated the arraignment and the preliminary hearing into one proceeding because it didn’t have enough pages to show both, that’s not a big deal. Especially when there’s an actual reason why such a conflation might have occurred.

Steeljack was a high-profile defendant in a high-profile case. Sometimes high-profile defendants are arraigned in private procedures instead of the customary arraignment assembly-line. We did that in Cleveland on more than one high-profile occasion. There’s no reason why Astro City couldn’t do the same thing.

If Steeljack were being arraigned in his own private hearing so the judge didn’t have to arraign two dozen other inmates then the judge could have taken her own sweet time in the hearing. She might even have been willing to listen to the evidence brought into an arraignment. Especially when it was being brought in by a high-profile criminal defense attorney like Randall Sterling.

See Astro City fathers, I may not know where Astro City is, but that won’t stop me. When it comes to my legal analysis, you can hide but you can’t run.

Categories
Columns

Bob Ingersoll: The Law Is A Ass #390

MARIA HILL’S CONSTANT-TUTIONAL VIOLATIONS

For a place that has Matt Murdock, Jennifer Walters, Franklin Nelson, Jeryn Hogarth, Bernadette Rosenthal, Kristen McDuffie, Blake Tower, Rosalind Sharpe, Isaiah Ross, Holden Holliway, Emerson Bale, Dennis Bukowski, Grace Powell, Matt Rocks, Connie Ferrari, Justin Baldwin, Jason Sloan – Okay, >>gasp pant<< let me catch my breath here – Ebenezer Wallaby, Maria Alvarez, Maxine Lavender, William Hao, Nelson Mandella, and even some guy named Robert Ingersol (no relation); I can’t understand why the Marvel Universe doesn’t have any lawyers in it.

Now, I know you may think all of those people – and several others, I didn’t mention for fear of really padding my word count – are lawyers. Marvel may even think they’re lawyers. Trust me they’re not. Based on what I saw in Captain America: Sam Wilson #9, no one in the Marvel Universe would know what to do in a bar, let alone in a bar exam.

It’s like this. Maria Hill, Director of S.H.I.E.L.D., had Cosmic Cube fragments which her superiors ordered her to destroy. She didn’t. Instead she used their reality-altering power to create a super villain gulag that looked like a small American town called Pleasant Hill. She wiped the memories of several super villains so that they believed they were normal people who lived in Pleasant Hill. It was a Norman The Rock-well painting.

Several teams of Avengers found out about Pleasant Hill and went there to shut it down. At the same time, all the inmates dirtied their newly washed brains and revolted. So all hell broke loose.

Meanwhile, the Cosmic Cube fragments coalesced into a sentient being which took on the form of a little girl who left Pleasant Hill and was loose in the world. And did I happen to mention criminal mastermind and terrorist Baron Zemo had escaped and was also loose in the world?

To quote Joe Higgins, the Dodge Sheriff, Maria Hill was, “in a heap o’ trouble.”

Except that she wasn’t.

When Hill was confronted by some sort of informal Avengers tribunal composed of Steve Rogers, Sam Wilson, Rogue, Tony Stark, and The Vision; Hill freely admitted Pleasant Hill violated the Eighth Amendment ban against cruel and unusual punishment. Then she pled her case. She argued she shouldn’t be arrested and tried as that would make Pleasant Hill and the fact that there was a sentient Comic Cube wandering around as a little girl public knowledge. So they had to keep the whole Pleasant Hill debacle quiet.

Which makes a certain amount of sense except for two things; 1) it makes no damn sense at all and 2) we’re talking about S.H.I.E.L.D., a shadowy super spy organization. As a shadowy super spy organization in good standing, S.H.I.E.L.D. wouldn’t arrest or try Maria Hill. It would black site her. Unless it decided to terminate her employment. With extreme prejudice.

Even worse, however, was Maria Hill’s second line of defense, what happens if the lawyers for the Pleasant Hill inmates find out about the cruel and unusual punishment that went on there? “I’ll tell you – Every single one of them – the mass murderers, the cosmic-level threats, the ones with poor personal hygiene – they will all go free.” To which Rogue responded, “Damn it, she’s right,” and the rest of the Avengers tribunal concurred.

Proving, as I said before, that there are no lawyers in the Marvel Universe.

If there were, then one of them – probably more than one, but at least one of them – would have pointed out the fatal flaw in Maria Hill’s argument. That’s it’s complete and utter taurus turds.

Want to know what happens when a court rules a prison is subjecting its prisoners to cruel and unusual punishment? It makes the prison stop doing whatever it was doing that was cruelly and unusually punishing. But it doesn’t make the prison release all the cruelly and unusually punished.

Prisoners are in prisons because they’ve been convicted of crimes. They had their due process. Now the government has the right to imprison them. That doesn’t change just because a prison may have been inflicting improper punishment. The government still has the right to imprison them, just in a different way.

But don’t take my word for it. Look at some history. (Yes, summer school history class. Don’t worry, I’ll keep it short.)

Waaay back in 1972, the Supreme Court ruled the death penalty was cruel and unusual punishment. When it did, it didn’t order the prisons to release all the murderers who were on death row. It just had the prisons transfer them out of death row and into general population. Prisoners who were subjected to said cruel and unusual punishment aren’t automatically freed.

Maria Hill may have been an interesting character once. She’s not anymore. She’s become one-dimensional, strident, extremist, and, quite frankly, boring. And I’d really like to see her disappear forever.

The last thing I want to see is for her to continue on exactly as before. No, wait, that’s the second-to-last thing I want to see. The last thing I want to see is a spin-off series starring Maria Hill; Tales From the Crypto-Fascist.

Categories
Columns

Bob Ingersoll The Law Is A Ass #389

WE ARE ROBIN THE CRADLE

Now I know the answer to the question.

For years people have been asking me, what kind of laws would the Marvel or DC legislatures – federal, state, or local – have passed in light of the super-powered activities in their respective universes?

Now you know the question.

So, what’s the answer? Well, after what happened in the Robin War story that ran through several of the Batman family of books earlier this year, I deduced what the answer to that question must be. A two-thirds supermajority of Congress must have passed an amendment to the Constitution. Then a three-fourths supermajority of the fifty states ratified said amendment and the amendment became part of the Constitution, the supreme law of the land.

What did said amendment say? Again, based on what happened in “Robin War,” it must have said, “Hey, you know that whole Bill of Rights thing? Offer void where prohibited.”

Seriously, there can be no other explanation for what happened in “Robin War.”

Now, if you’re good, you should also know the next question: What happened in “Robin War?” And I’ll get to that. But before I can answer that question, I have to tell a little of what happened in We Are Robin, the comic book off of which “Robin War” spin-off spun.

We Are Robin was a comic book about an African-American teenager named Duke Thomas, who was so inspired by Batman and his succession of Robin sidekicks that he created his own startup comprised of teenage crime fighting vigilantes. Everyone in the group adopted the non du guerre Robin and wore something with an identifiable element of the Robin costume on it. Maybe a red shirt or hoodie or baseball cap. But something that was red and had the Robin insignia on it. The Robins fought crime in Gotham City, and spouted the team’s catchphrase, “I am Robin,” more often than a pod of whales with a dozen extra blowholes.

Which leads us to “Robin War.” In Robin War #1, one of the Robins stopped an armed robbery. The Robin subdued the robber and had taken his gun. That’s when an armed police officer entered the store and, upon seeing two masked people in the store one of whom was holding a gun, made the not unwarranted assumption that both the actual perp and the Robin were robbin’ the store. While the police officer tried to make an unwarranted arrest – well, it was a warranted arrest, the officer just didn’t have a warrant – the Robin didn’t put down the gun as ordered and tried to explain that he was one of the good guys and had apprehended a robber. The robber used the confusion to try to escape. Which created a “shots fired” situation. Unfortunately, shots were fired by the Robin into the officer, accidentally killing him.

That’s when the Gotham City Council, led by Councilwoman Noctua, passed the most sweeping and unconstitutionally overreaching laws I’ve ever seen. Which is why I hypothesize that there must have been a “void where prohibited” amendment added to the Constitution. Otherwise the “Robin Laws,” unlike a real robin, could never have gotten off the ground.

The laws placed City Council “in charge of all police matters related to Robin matters.” They also made possessing or wearing “Robin paraphernalia” illegal. “Anyone seen in a Robin mask, or a Robin ‘R’ or whatever they wear [would be] immediately identifiable as a delinquent and subject to arrest.”

How broad and overreaching were these laws? Well, when Duke Thomas was walking down the street, he was arrested simply for wearing red sneakers. “Red means Robin. And in Gotham, Robin means you’re under arrest.” The shoes in question had no Robin indicia on them. No Robin logo. Not even an R. Duke was arrested simply for wearing red shoes.

In a world where the Constitution hasn’t been declared void, this law would be struck down as unconstitutionally overbroad. You can’t make it illegal for all people to wear red clothing, simply because some kids wore red clothing to play at being Robin. Under the law, people who were wearing red for perfectly legal reasons would be subject to arrest. Ringmasters could be arrested. Revolutionary War reenactors. Hell, firemen could be arrested for wearing their red suspenders.

In the height of the Crips and Bloods wars, did Los Angeles make it illegal to wear black or red? No. If they had Wayne Gretzky would have won the 1993 Stanley Cup playing for the San Quentin team, not the Los Angeles Kings.

Know what else would be unconstitutional? City Council ordering the police department to search every locker in a school “for evidence of any delinquent activity.” So guess what happened in Gotham City schools after the Robin Laws were enacted?

I know in New Jersey v. T.L.O., the Supreme Court of the United States ruled that a school environment does permit some easing of the search and seizure requirements of the Fourth Amendment. But even T.L.O. didn’t authorize the wholesale abandonment of the Fourth Amendment shown in this story. Or the sort of blanket searches committed in this story. Hell, they weren’t even searching for blankets.

The T.L.O. court said a high school search is reasonable if 1) there are reasonable grounds for believing the search will reveal evidence that the student or students whose property is being searched violated the law and 2) the search is related to the objectives of the search and not excessively intrusive. The searches conducted in this story didn’t meet either of the T.L.O. criteria.

Search of every locker in a school to find out whether any of the students might possibly have Robin paraphernalia? Not based on reasonable suspicion. Search every locker even those of students you have no reason to believe might be Robins? Excessively intrusive. Let silly things like the Constitution stop you from doing whatever you want? Naw, constitutions are for wussies.

Then there was the question of what the Robin Laws allowed Gotham City to do with the Robins after most of the Robins were arrested. In Detective Comics v2 #47, we learned the Robins were being kept in supermax jail cells suspended from the ceiling like bird cages. Because, well when you’re dealing with a bunch of kids wearing bird-motif costumes, why be subtle?

Some of these Robins were under the age of 18, so juvenile offenders. Juveniles are treated differently than adults. When a juvenile is arrested in New Jersey, the courts must hold an initial detention hearing by no later than the following day and both the juvenile and the juvenile’s parents or legal guardians must be present. They can’t be held in supermax conditions indefinitely. Moreover, the parents or legal guardians of a juvenile must be notified of the juvenile’s arrest and must be present anytime the juveniles are questioned. The juveniles can’t be held incommunicado.

You know, the Robin Laws in this story were so extreme and sweeping and illegal and unconstitutional, you’d think that Councilwoman Noctua, who spearheaded the laws, had her own secret agenda and was benefitting financially from the chaos the laws created. Turns out –

SPOILER, THAT’S PROBABLY NOT MUCH OF A SPOILER, ALERT!

Noctua was lining her pocketbooks from the chaos created by the Robin Laws and using the laws to earn a place in the Court of Owls.

Of course, that doesn’t explain why the rest of the Gotham City Council agreed to these patently unconstitutional laws. But I only explain why legislatures in comic books can’t do the things they’re shown doing. I don’t try to explain why they do them. That way lies madness.

Categories
Columns

Bob Ingersoll: The Law Is A Ass #388

MARIA HILL GETS A STANDOFF O

When last we saw The Avengers, several of their branches – The All New, All Different; the New; the Uncanny; and for all I know Steed and Mrs. Peel – were standing off against S.H.I.E.L.D. because of Pleasant Hill. As it’s been a couple of weeks since I’ve been able to write about Avengers: Standoff!, I thought a quick recap might be in order.

S.H.I.E.L.D. and its director Maria Hill got a hold of some fragments of a Cosmic Cube, a device which is controlled by the will of its holder and can reshape reality. It’s kind of like Green Lantern’s power ring but without the weakness to yellow or the need to make all its constructs curry the favor of Kermit the Frog. They used the fragments to create Pleasant Hill, an idyllic, all-American small town somewhere in Connecticut which was neither idyllic or all-American. See they populated Pleasant Hill with super villains whose memories had been wiped so that they believed they were non-powered residents of Main Street, USA. Various Avengers teams were getting ready to square off against Director Hill and S.H.I.E.L.D. because they didn’t agree with what had been done to the villains. Meanwhile, the super villains, who had regained their memories, were getting ready to square off against Director Hill, and S.H.I.E.L.D., not to mention the various Avengers teams, because they didn’t agree with what had been done to the villains either. And, for good measure, math students were getting ready to square off against Geometry teachers, because… Well wouldn’t you?

That’s where I left you last time I wrote about Avengers: Standoff! It’s also where I’m going to leave you this time, too, because the same things that kept me from writing columns for the past few weeks also kept me from reading comics for the past few weeks. I haven’t finished reading Avengers: Standoff! yet so have no idea how it ends. Or even if it ends. (Considering what goes on in comic books these days, that’s not as facetious as it sounds.)

Last column, I wrote about how Pleasant Hill prison violated the Eight Amendment to the United States Constitution and it’s prohibition against cruel and unusual punishment. My friend and fellow comic-book writer Tony Isabella didn’t fully agree with me. Oh he thought my analysis was fine, up to a point. That point being the USAPATRIOT Act. He didn’t think my analysis took into account what provisions might have been enacted to imprison super villains in a post-9/11 world.

I told him that because so many of the early villains in the Marvel Universe were super powered Communists, Congress in the Marvel Universe probably enacted it’s version of the USAPATRIOT Act in 1961, not 2001. However, considering the USAPATRIOT part of the USAPATRIOT Act is an acronym for Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act, it’s Marvel Universe version would probably have been called something like the Emergency Xenogenesis Containment and Elimination Legislation and Super-powered Individuals Oversight and Regulation Act.

So what affect would our hypothetical act have on a place like Pleasant Hill? Depends. No, I’m not claiming that the answer might make you poop your pants, I’m saying that some inmates in Pleasant Hill might be treated very differently from other inmates.

We know from our own real-life experience that people designated as enemy combatants are treated differently from US citizens under the USAPATRIOT Act. Prisoners who are not US citizens and classified enemy combatants can be held indefinitely and without being charged in places like the Guantanamo Bay detention camp. So prisoners in Pleasant Hill such as Helmet Zemo or Ulysses Klaw, who are not American citizens, could receive the enemy combatant designation. Especially Zemo. Even money says the government would designate a German national who headed the terrorist organization Hydra an enemy combatant without even a second thought.

Other Pleasant Hill inmates, such as Mr. Hyde, the Trapster, and the Absorbing Man are American citizens. I practiced law for 8 years after the USAPATRIOT Act was enacted, so I know from personal US citizens who became inmates didn’t lose their 8th Amendment rights. Even after 9/11. Thus, it would be harder for Director Hill or S.H.I.E.L.D. to deny the American inmates in Pleasant Hill of their constitutional rights, with or without our hypothetical congressional act.

When governmental agencies – such as S.H.I.E.L.D. – seek to curtail the constitutional rights of inmates, they must be able to show they’re using the least invasive means possible. That is to say, their method of imprisonment must be consistent with both keeping the inmates in while depriving them of the fewest number of constitutional rights possible as possible. Pleasant Hill wiped its inmates’ memories and personalities and replaced them with different memories and personalities. I still think that was an invasive and unconstitutional assault which deprived the inmates of their constitutional rights, and I think many courts would likely rule in this manner, even after our super-human control act.

Prisons in the Marvel Universe have power dampening mechanisms which can take away inmates’ super powers. Super villains without super powers are just as easy to keep in prison as normal prisoners; you know, the ones who aren’t being mind-wiped. So mind wiping them wouldn’t be the least invasive form of imprisonment.

Sure super powered inmates would be kept in facilities whose security was even more maximum than Alcatraz. Call it a supervillainmax prison. But I just don’t think courts would side with the mass mind-wiping of the inmates.

Moreover, Maria Hill obviously didn’t think the courts would side with her. Or anyone else. After all, she kept the Pleasant Hill prison a secret from three different Avengers teams, her bosses in the World Security Council, the courts, and pretty much everyone else in the world. If she thought she was on firm footing with Pleasant Hill, she wouldn’t have pussyfooted around in secret.

I’m sure that when Avengers: Standoff! ends – no, I haven’t suddenly gotten caught up on my reading, I’ve been writing this column – Pleasant Hill prison will be somewhat more public. Super hero/villain battles tend to make things public, even when they happen in rural Connecticut. Then after Maria Hill’s pet prison has been outed, the World Security Council will have to decide how do they solve a problem like Maria. Ms. Hill and allies must now face the music. And I have confidence they’ll do something to her. I wish I could be sure it would be something good, like them telling her so long, farewell, but it’ll probably be little more than a slap on the wrist. Still, a guy can do-re-mi-m, can’t he?

Categories
Columns

Bob Ingersoll: The Law Is A Ass #387

THE AVENGERS GET STANDOFFISH

It’s getting so that in comics nowadays you can’t tell the good guys from the bad guys without a scorecard. And sometimes even then.

Maria Hill is currently the director of the Strategic Homeland Intervention, Enforcement and Logistics Division or S.H.I.E.L.D. for short – or SHIELD for even shorter and guess which route lazybones Bob is gonna take. So Maria should be one of the good guys, right? Then she came into possession of some fragments of a Cosmic Cube. A Cosmic Cube, when it was in full on cube form and not fragments, is a device that answers to the will of whomever possesses it and can be used to control matter and energy and even alter reality. So whomever holds the Cosmic Cube has to be careful with it, lest reality be warped in strange and dramatic ways. When the Cube is in fragment form, it’s just about as powerful but the holder has to be even more careful with it, because those fragments can go all Julia Child on you and cut the dickens out of your finger.

Avengers-standoff-welcome-to-pleasant-hill-1Hill and SHIELD experimented on the Cube fragments, hoping to be able to use them to reshape reality as SHIELD deemed necessary. What they got was a little girl. The Cube fragments merged into a sentient being and did what newly-formed fictional A.I. that are confuse about their identity have been doing for years; it adopted the form of a little girl.

Seriously, what is it about the symbology of little girl that screams confused and unsure of one’s self? I know a 63-year-old man who fits that descriptiPleasant_Hill_from_Avengers_Standoff_Welcome_to_Pleasant_Hill_Vol_1_1_001on pretty well, but you don’t see confused A.I. programs going all mid-life crisis.

Anyway, the little girl called herself Kobik. Director Hill called her an asset. Hill had Kobik create Wayward Pines… err excuse me, Pleasant Hill, a quaint little town in backwoods Connecticut. It was 300 Kobiks by 50 Kobiks by 30 Kobiks, so was big enough to house a lots of people. Lots of carefully chosen people. 96 SHIELD operatives who oversaw a town populated by super villains.

Hill called them reformed super villains. But they weren’t reformed, they were transformed, because, Hill had Kobik change 58 super villains. Now those villains look and dress like ordinary people. Then Kobik wiped the minds of the super villains; gave them new memories and personalities. They lived like common people and did whatever common people did; except listen to Shatner covers. For all intents and purposes, these super villains were new people, decent people living the American dream in a small American dream town.

A town that was surrounded by a force field so that none of its residents could leave. It wasn’t a small town, it was prison that really looked a picture print by Currier and Ives. Guantanamo Bay in Norman Rockwell drag.

Which is pretty much the set-up of the current cross-over series Avengers: Standoff! that’s currently playing itself out in several books. Then, complications ensued. Several of the Avengers teams opposed what Director Hill was doing in Pleasant Hill which created conflict between SHIELD and the Avengers. But not as much conflict as when the super villains started to get their memories back. (Oops, did I forget the SPOILER WARNING? Not really. Didn’t think it was needed. Seriously, who didn’t see that revoltin’ development coming?)

So why does Bob I. the Lawyer Guy care about this? Because SHIELD is a governmental agency, meaning all those things found in the Bill of Rights apply to SHIELD and its brainwashing Bastille. I wondered is Maria Hill a good guy or a bad guy for creating this program. And is Pleasant Hill was even remotely constitutional.

Obviously, I’m talking primarily about the 8th Amendment. Even the NRA isn’t concerned about denying the right to bear arms to convicts who are actually serving prison terms. (The only way to stop a bad guy with a gun is with another bad guy with a gun just ain’t gonna cut it.) But how does the prohibition against cruel and unusual punishment affect this Attica of amnesia?

It’s unclear. There is no definitive definition of cruel and unusual punishment. The Supreme Court has ruled that courts should follow an “evolving standards of decency” test in determining whether a punishment is cruel and unusual. So the test changes as the standards of decency evolve throughout the world. Centuries ago being drawn and quartered was considered a just punishment. Most societies would no longer consider drawing and quartering to be humane. (And not just because the strain it puts on the horses would be cruelty to animals.)

Pleasant Hill utilizes mind alteration of some sort to keep it’s inmates under control. Such mind alteration would be a form of assault, as they constitute a physiological change to a person. In most jurisdictions assault is a crime and I’m pretty sure that standards of decency wouldn’t permit prisons to commit actual crimes on their inmates.

This isn’t a situation like a mentally ill patient who is given medical treatment to restore that person to mental health. This is taking people who are mentally healthy – criminals, but mentally healthy – and altering their brains so that they don’t behave like criminals anymore. This is an assault on the inmates’ cognitive liberty, which many courts are recognizing as being protected by the Bill of Rights.

The Supreme Court might rule Pleasant Hill unconstitutional because it violates standards of decency and inflicted cruel and unusual punishment. Or it might rule the mind wiping was cruel and unusual, because it a crime. As we don’t actually have a real-world counterpart to Pleasant Hill, I can’t definitively tell you how a real-world court would view Pleasant Hill.

I can tell you this, however, one of the tests frequently used is whether the punishment is unnecessarily severe. We know prisons in the Marvel Universe have power dampening apparatus, which can suppress the super powers of their inmates so super villains can be held in prisons without having their personalities wiped and replaced. That being the case, Pleasant Hill might have difficulty withstanding a legal challenge, because its practice of committing assaults on the mind is a more severe punishment than is necessary.

Another test that is pretty much universal in its application to a cruel and unusual punishment analysis is that prisons may not deprive inmates of the basic necessities of life. While Pleasant Hill does provide food, clothing, shelter, sanitation, and medical care, there is another necessity that Pleasant Hill omits; the inmate’s ability to have visits from family members.

The leading case on this matter is Overton v. Bazzzetta where inmates sued Michigan because of prison guidelines which limited who could visit inmates. The guidelines eliminated visitation rights for inmates who violated certain prison rules. It also denied inmates the right to have visits from their children if their parental rights had been terminated. The inmates sued under the First (free association), Eighth (cruel and unusual punishment), and Fourteenth (due process) Amendments. The Supreme Court upheld these regulations and found they bore a rational relation to the government’s interest in maintaining internal security in its prisons.

Overton only dealt with a partial denial of some of an inmate’s visitation rights. Inmates in Pleasant Hill are Cosmic Cubed into believing they’re different people. They’re not receiving family visits because they don’t know they have any families. And their families don’t know where they are.

Would the Overton analysis apply to the wide-spread and complete denial of all visitation rights by an inmate’s family and friends practiced in Pleasant Hill? How would the courts balance complete denial against the state’s need to maintain order? Especially when, as I noted before, Pleasant Hill’s mind wipe is a more severe form of punishment than is necessary for the purpose of imprisoning super villains.

I don’t know. The courts might rule in favor of the inmates and hold that denying them all visitation from family and friends in a manner that is more severe than it needs to be, is cruel and unusual punishment. Or they might not.

So why did I write this column, if I don’t know the answers to the questions I’m posing? Because these are the sort of things I think of when I read comic book stories. Even if there is no definitive answer, I still wonder what would happen if this happened in the real world.

And sometimes, like when I don’t have anything else to write about, I share what I’m wondering about with you. To see, are you pondering what I’m pondering?

(The first one of you who says anything about getting a monkey to use dental floss is gonna get such a hit!)