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THE LAW IS A ASS for 07/06/1999
Installment # 0, Part 2
So last week we all learned how aspirin and a little nuhdzing from Tony Isabella-okay a lot of nuhdzing from Tony Isabella-started me down the road that led to my writing my columns analyzing how the law is portrayed in comics. That is, you learned it, I already knew this stuff, having lived it. And if you didn't learn it, because you weren't here last week, or you were here but forgot, I won't even criticize. I can be forgiving. That's the wonder of the World Wide Web and World Famous Comics, which is both archiving old installments of "The Law is a Ass," and running some new ones, you can just click on the link to those archives, find last week's first part of this two-part introductory column and read it to get up to speed. So, go ahead. As the sun-screened swimmer observed, "It's no skin off my nose." Heck, I'll even wait.
-And then the patient says, "Well, not quite everything, Doc, I don't think they'll ever let us back into Olive Garden again."
Ah you're back. So let's move on to how and why a soundless explosion also prompts me to write "The Law is a Ass."
Remember when you saw 2001: a Space Odyssey for the first time? (Speaking of which, you know 2001 is only two short years from now. Here it is 1999 and not only is Martin Landau nowhere near the moon, they haven't even started building that space station with the Howard Johnson's. It's obvious, gang, ain't neither of those things gonna happen within the ordained timetable. Politicians have robbed us of our future. But I deviate.)
Other than the psychedelic light show that climaxed the movie, possibly the single most memorable visual in the movie was the explosion in space when Dave Bowman was locked out of the Discovery by HAL and reentered by detonating the explosive bolts on his space pod door; literally blowing himself back into the spaceship. Remember how cool it was? There was this explosion, but we only saw it, we didn't hear it at all. The explosion was completely silent.
Why? Because, for once, a movie got the science right and remembered that space is almost a perfect vacuum. (There is the occasional hydrogen atom floating around, keeping space from being a perfect vacuum. To find a perfect vacuum you just ... No, it's too easy, just insert your own Ron Preleman joke here.) Anyway, as there's no air in space, there's nothing which can carry sound waves, so there's no sound in space. That's why, "in space no one car hear you scream," unless, of course, you happen to be on the planet of the Teletubbies. I figure a scream that loud would find a way to carry even through a vacuum. But I detour.
That soundless explosion was a great visual-more arresting and riveting than it would have been had a noisy boom accompanied it. I can't speak for you, but I was hoping Hollywood would notice and finally stop adding sound to the explosions in space.
No such luck. Not only did we continue to get noisy explosions in space, Hollywood went and designed complex THX, DTS and DSS sound systems, just so we could hear those explosions with crystal-and ear-shattering-clarity. Hollywood not only failed to live up to the promise of scientific accuracy, it did so intentionally.
After Star Wars, George Lucas was asked why he had audible explosions in space, didn't he know that sound wouldn't carry in space? He answered that he did, but because movies always showed noisy explosions in space, so if he hadn't included the big bang, the audience would have thought he got it wrong.
Do you see what he did? He made us all dumber. He intentionally perpetuated a mistake, because repeated use of the mistake had made people think the mistake was actually correct. Lucas intentionally did the science wrong, because we've come to believe that wrong was right and rather than fight the trend or try to enlighten us, Lucas took the path of least resistance.
I've dedicated "The Law is a Ass" to oppose such thinking. The law is a complex and multi- leveled practice. Lawyers made it that way intentionally so that none of you could understand it and you'd have to hire us to handle your legal affairs. It's called job security. However, because the law is complex, if one writes about the law and doesn't do the necessary research, one is likely to get the law wrong. That's where I come in.
"The Law is a Ass" analyzes how the law is portrayed in the popular media, pointing out where said popular media got it wrong or, on occasion, got it right. In that way, I strive to educate you as to how the law really works, so that you, too, can understand its arcane mysteries.
No, this isn't a Fox ratings-sweep special. I'm not the "Masked Attorney" bringing you The Law's Greatest Secrets Revealed and the rest of the profession isn't out to get me for making our hidden agendas public and risking that job security I mentioned earlier. First of all, we covered ourselves. Even if I reveal all our secrets, you can't become a lawyer. We protected ourselves by making the initiation ritual for becoming an attorney so onerous that no rational human being would want to participate in it anyway. It's called law school. In the second place, I'm not revealing any of the big secrets-like how to double bill a client.
Okay, so that's what I'm going to do here. I'm often asked why bother, after all it's only comics. First, because I want to combat the ignorance and misinformation that is so often perpetrated against the unsuspecting audience. Second, because "it's only comic books" isn't an excuse. Comic-book writers owe it to their readers to get things like the law correct.
This may come as a surprise to you, but the comic book's stock in trade is putting the fantastic into reality. They take fantasy elements such as Kryptonians or Asgardians or even boxing-glove tipped arrows that are aerodynamically sound and place them into otherwise real world settings. Treading this ground requires a delicate balance, one the late Rod Serling understood well in The Twilight Zone. Serling used to take one or two fantasy elements and inject them into the real world, but he was careful to make the rest of the story-the real-world elements-as realistic as possible. Serling understood that making the real world real gave the audience a ground in reality-a foundation upon which to build the fantasy-thereby making the fantasy accessible to the audience, because it started in something with which they were familiar. Serling knew if the real-world elements were as fantastic as the fantasy, the audience would reject the story, because it lacked an internal logic.
In the same way, comic books should treat the real world elements of their stories as realistically as possible, so that the readers have a ground of reality from which to approach the fantasy. If the real world is portrayed incorrectly, if, for example, the law used is wrong, then the necessary reality ground is missing. The story simply won't work properly.
And that's why, even though it is just comic books.
Okay, that's what I do and why. Now how do I do it? Kind of like this...
Despite what the old saying may say, in this case The Practice makes imperfect.
David Kelly, the creator, producer and head writer of such shows as Picket Fences and Ally McBeal was a practicing attorney in, I believe, Boston, before he wrote the screenplay for a movie called From the Hip and moved to Hollywood to become the creator, producer and head writer of such shows as Picket Fences and Ally McBeal. It was a wise career move on Kelly's part. Not only has he become the "flavor of the month" in Hollywood, Hollywood can teach even us lawyers a few things about creative bookkeeping.
One of Kelly's biggest successes is The Practice, a show about a struggling criminal-defense and plaintiff's personal injury law firm in Boston, a show firmly rooted in Kelly's own past, and a show which recently won both the Emmy and the Golden Globes award for best drama. By all accounts, a high-quality show.
I can't watch it.
I tried, but I just can't. See not only does it seem that Kelly forgot his lawyer past in The Practice, he's not even condemned to repeat it. As a result, the show frequently opts for the highly dramatic in its situations and portrayals, instead of the legally accurate. The Practice gets the law so wrong, that, for me, it's more infuriating than entertaining.
Case in point (and see how neatly I tie this all back to Rod Serling?): last season The Practice did a story arc in which the main character, Bobby Donnell played by Dylan McDermott, was sleeping with the enemy, in this case a female prosecuting attorney. One night the pillow talk turned to shop talk and the distaff DA let slip that the police were about to raid a major crack house in Boston. Problem was the owner/operator of said emporium happened to be Bobby's client. Bobby called his client to warn him of the impending raid, so that the client could clear out and not be arrested. Problem was, the client decided to fight it out instead of clearing out and in the ensuing gun battle between drug dealers and police, a cop was killed.
And Bobby found himself being prosecuted for aiding and abetting the murder of a cop. Surprisingly enough, we in the legal profession actually have a term for when this sort of thing happens; it's, "Oh, this is not good."
Aiding and abetting is a crime legislatures enact to keep people from helping criminals. Basically, it says that if you help a criminal commit a crime, you're as guilty as the criminal who actually committed the act, even if you didn't commit it yourself. For example, the man who drives the getaway car in a gas station heist is as guilty as the man who went into the station and took all the money, because he helped that principle offender commit the crime. (In the law, that's what we call the people who actually commit the crimes, the principle offenders, so as to differentiate them from aiders and abettors. My daughter calls the man who runs her school a principal offender, too, but I veer wildly into tangential matters which have little to do with the topic at hand.)
Anyway, Bobby was charged with aiding and abetting a murder and defended himself against these charges. Not surprising, in our legal system, the lowest of the law are entitled to a defense; yes, even lawyers. What was surprising was the defense Bobby used.
There is an actual and existing defense to the crime of aiding and abetting that Bobby could have used, one actually written into most aiding and abetting statutes. but, for some reason, Bobby chose not to use it. That defense was, he didn't know the gun was loaded.
No I'm not being facetious, that would actually be a defense in this case. The law requires that to be guilty of aiding and abetting, the aider or abettor must be acting with the same criminal intent as the principle offender. That's so if someone doesn't know he's helping a criminal, he won't be guilty of a crime. It's one of those strange quirks we have in our legal system, we keep trying to keep the innocent from being convicted of a crime.
Let's go back to our gas station heist. If the driver honestly thinks his friend is just going in for a pack of smokes and doesn't know that his friend is going to rob the place, he wouldn't be guilty of aiding and abetting the robbery, because he didn't have the same intent as the principle. Now let's take it one step further. Let's pretend the driver does know the heist is going down and goes along as the getaway driver. He is equally as guilty of robbery as the principle offender under an aider and abettor theory. But, let's assume that while the principle is taking the money, the clerk resists so the principle pulls out a gun and kills the station attendant. Let's further assume that the driver didn't know the principle was going to commit a murder, didn't even know the principle had a gun. In this case, the driver, while guilty of robbery as an aider and abettor, wouldn't be guilty of murder. The driver didn't have the same criminal intent as the principle, he didn't know a murder was coming down as it wasn't part of the original plan. He'd be an aider and abettor to the robbery but not the murder.
In Bobby's case, as he didn't know his client would try to shoot his way out or kill anyone, Bobby didn't have the same criminal intent as his client had and wasn't an aider and abettor to murder. That's what he could have argued and actually have been correct.
But Bobby didn't argue the appropriate, even legal, defense to his case. That wouldn't be dramatic. Instead Bobby argued that he had an ethical obligation to inform his client of the impending raid, so what he did wasn't illegal but sanctioned by the law.
Guess what? It ain't. Bobby had no more of an ethical obligation to inform his client of the impending raid than Universal has of foisting sequels on us, and maybe Babe: a Pig in the City will finally cure them of that little habit. At least there's a better chance of that than there was that Bobby had an ethical obligation to reverse-narc on his client.
Oh, it's true that Canon 7 of the Code of Professional Responsibility says, "A lawyer should represent a client zealously within the bounds of the law." It is also true one could argue that means a lawyer should inform a client of things that could be injurious to the client. But there's a catch in this legal obligation, it's those pesky words, "within the bounds of the law."
What that means is simple, a lawyer can't break the law, not even while representing a client. Indeed, the Code of Professional Responsibility specifically says a lawyer cannot knowingly engage in illegal conduct while representing a client and may refuse to participate in conduct he believes to be unlawful, even if there's some question as to its potential illegality.
It's a simple concept, a lawyer can't break the law, not even when zealous advocacy might require otherwise. Did Bobby break the law? Do polar bears poop penguins? I know of no jurisdiction that doesn't have some sort of obstruction of justice law on its books. In Ohio that law says Person A can't warn Person B of B's impending discovery, apprehension, prosecution, conviction, or punishment for a crime. Oh, the statute says it in language a lot more complicated than going from A to B, but that's the essence of the law-you can't warn someone he's about to be arrested in order to help keep him from being arrested. And if you do warn the other person of his impending arrest, you're breaking the law yourself.
What all this means for Bobby is that his warning his client of the impending raid was against the law-was "with[out] the bounds of the law." Bobby did not have an ethical obligation to warn his client, because it was against the law to do so. In fact, by warning his client and breaking the law, Bobby actually violated the Code of Professional Responsibility instead of obeying it.
Still, Bobby made his argument that he had an ethical obligation to tell his client he was about to be busted and the judge presiding over the case bought the argument and dismissed the charges against Bobby. Not surprising from a dramatic point of view, had Bobby been convicted, the show about his struggles to be a successful personal injury attorney would have ended. It's kind of hard to go chasing ambulances, when one's behind bars.
Still, the outcome brings up another question. The fact that Bobby didn't know he had no ethical obligation to warn his client and made his flawed argument was bad enough. The fact that the judge also didn't know it and dismissed the charges against Bobby was worse. What's the deal with the Massachusetts legal system? Are they participating in a different kind of Boston tea party before coming to work all high and mighty?
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