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THE LAW IS A ASS for 08/03/1999
DOCKET ENTRY Installment # 4
Originally published in The Comics Buyer's Guide # 511
September 2, 1983
So, I had one in the bank, as it were.
But, I wondered, whether there would be sufficient material to keep me going, or would I run out of "column fodder" quicker than Brother Power, the Geek? Fortunately, as this week's and next week's installments will show, fate stepped in to supply me with a veritable endless supply with first "The Trial of the Flash" and the ...
No, for that you'll have to wait for next week.
One more thing: you'll understand this better, when you get to the end of the column. I once had a comic creator call me and ask if I was serious about my offer to consult on legal issues in comics and was I firm on my stated consulting fee. I assured the creator that I was serious in the offer, but the fee was only a joke. I don't then, and continue not to, charge comic-book creators any fees when I consult stories.
It's made me many friends. All of them in the industry. Visa and MasterCard aren't as thrilled with me.
"The Law is a Ass"
Installment # 4
by Bob Ingersoll
This column is going to make me rich and famous. Watch carefully and you'll see how shortly.
He was racing to save a life. Thawne had already killed once, had killed Barry's wife, in fact. Now Thawne threatened, no promised, to kill the woman who waited for Barry at the altar. So Barry raced to beat Thawne and prevent another murder.
He caught Thawne mere inches from Fiona, nanoseconds before Thawne could deliver the fatal blow. He grabbed Thawne from behind with a savage strangle hold powered by anger and an unspoken desire for revenge. He stopped Thawne. Eobard Thawne's body collapsed to the ground like a marionette suddenly deprived of its strings. Barry had stopped Thawne dead.
The foregoing was a retelling of the climatic events in Flash #324. It was admittedly a dramatic retelling, more dramatic than a newspaper column is supposed to be. The drama, however, was intentional, as it illustrates exactly what is wrong with the current Flash-murderer story line. The story is overly dramatic to the point of sacrificing realism.
The drama of the current Flash story line actually started months before issue #324. Letter column hype and overblown advertising campaigns promised a startling event, which would drastically change Flash's life. Flash would stand accused of a crime, but unlike similar stories in the past, Flash would be guilty of the crime. That's how the advertising went.
People, I don't know how to break it to you, but the only thing Flash is guilty of is false advertising. When Flash killed Reverse-Flash, he didn't commit a single crime. Not second degree murder. Not manslaughter. Not even driving left of center.
Go back and examine exactly what happened in Flash #324. Flash was racing to save a life. Reverse-Flash had already stated his intention to kill Fiona Webb, and Flash was saving her life. Unfortunately, in saving Fiona Webb's life, Flash broke Reverse-Flash's neck and killed him.
That, readers, is called self-defense A.K.A. justifiable homicide. The legal doctrine of self-defense is not limited solely to the defense of one's self. One is also allowed to defend others.
More specifically Flash could defend Fiona Webb and invoke self-defense to protect himself. And in defending Fiona, Flash would be permitted to use exactly the same amount of force Fiona could have used, if she were defending herself.
Reverse-Flash was going to kill Fiona. Legally she could have used any amount of force in defending herself, even deadly force, force sufficient to kill the attacker. If Fiona could have used deadly force against Reverse-Flash, then Flash could have used the same deadly force in defending Fiona. Thus, even though Flash did kill Reverse-Flash, he committed no crime. His act was a justifiable homicide.
So why is such furor being raised over a justifiable homicide? Blame the writer's and editor's desire to be dramatic rather than realistic. Comics are, after all, a dramatic medium, so the writer and editor chose to have Flash commit his crime in a dramatic scene: racing halfway around the world to save Fiona Webb and accidently killing Reverse-Flash.
Unfortunately the writer and editor forgot to consider what effect the drama would have on the outcome of the situation. As a result the writer and editor got their dramatic scene, but failed to get their larger goal. They failed to have Flash commit a crime. (I suppose it's also possible that when push came to shove the writer and editor had Flash commit a justifiable homicide, because any other type of homicide would have inalterably and adversely affected the way in which the readers regarded Flash. Heroes, after all, are not supposed to kill.)
The desire for drama at the expense of the logic of the story has continued throughout the Flash-murderer storyline. In Flash #326, Flash was arrested, because it was dramatic. When his mug shots were taken, he was still in his mask, because it was dramatic to have the classic "front and profile" of a super hero while still masked. But it wouldn't happen. Not in a logical world. Why, not even in ours.
Mug shots are a means of identification. Who can identify a man from a picture, when the man is masked in the picture? When the police capture a bank robber, who wore a nylon stocking over his head, they don't take his mug shot, while he is wearing the stocking. They take the mask off. In that way they get a useful picture of a face, that someone could use in the future to ID the face. If they take a picture of the stocking, all they've got is an ad for Leggs. ("Okay, Underworld, show us your Underalls!")
Even more ludicrous is the concept that the grand jury will hear the evidence and return an indictment against Flash. But that's what Mr. Harvey (the Central City District Attorney, I presume) predicts will happen in Flash #326. Flash #325 clearly established that every witness to the killing, including Captain Frye of the police, knew that Flash killed Reverse-Flash to save Fiona Webb's life. No grand jury could hear such evidence and return an indictment. It couldn't return any verdict but justifiable homicide. But again, because it will be dramatic for Flash to undergo the full rigors of a trial for a year, reality is discarded for effect.
(Actually there is another explanation for the storyline, and I'm going to go out on a limb by putting my theory into print. The only way I could conceive of a grand jury indicting Flash is if they were hypnotized or otherwise compelled to do so. Three of Flash's Rogue's Gallery could pull off such a trick. Mirror Master and Abra Kadrabra have shown themselves to be effective hypnotists, and Gorilla Grodd could use his force of mind. All three of those rogues were conspicuously absent, when the rest of the Gallery held a funeral for Reverse-Flash in issue #325. Remember also that we didn't get a good look at Mr. Harvey's face in issue #326. Is it possible that one of those three (I personally opt for Mirror Master) is disguised as Mr. Harvey and will use his abilities to compel the Grand Jury to return an indictment. If so remember you heard it here first. If not forget I ever said anything Please.)
The Flash-murderer story line is inaccurate from a legal point of view. However, I don't want to seem like I'm only pillorying the Flash creative team, so may I commend to your attention Peter Parker, The Spectacular Spider-Man #83.
In that issue the Punisher is going through what Peter Parker, the titular Spider-Man, describes as an arraignment (Page 7 Panel 1). An arraignment is the proceeding, wherein the defendant enters a formal plea and has a bond set. It is, in real life, an assembly line procedure. About forty defendants are called up to the bench one at a time, plead not guilty, and get their bonds. They do not argue the merits of their case, because the judge has thirty-nine other people to arraign. Nevertheless, in P.P.T, S. S-M. #83 Punisher is arraigned all by himself, and his attorney makes this impassioned argument that Punisher is delusional and insane.
Nope. Punisher wouldn't have been arraigned alone and his attorney wouldn't have argued Punisher's sanity or competency to stand trial. The judge wouldn't have let him. Such an argument would have occurred at a pretrial hearing. Admittedly this is a nitpicky complaint. The writer might have intended this to be a pre-trial hearing and chose the wrong word. (Still I wish he had done the basic research necessary to find the correct word. All it would have required would have been a phone call.) There is a much bigger legal gaff in the story.
The Punisher's attorney makes a very impassioned argument on the Punisher's sanity. It was beautiful. It was dramatic. It was also woefully insufficient. Did you see one psychiatrist or psychologist testify at the hearing? Did the lawyer make reference to any psychiatric opinions on the Punisher's sanity in her argument? The answer to both questions is no, so I can only conclude the judge ruled Punisher incompetent solely on the basis of the argument. Sanity is a complicated issue. You can't even get three psychiatrists to agree on what it is. No judge is going to take a lawyer's word alone, no matter how passionately given. Not without some expert opinion to support it. Trust me, judges just don't believe lawyers that often.
A similar mistake occurred in Detective # 530, where the Night-Thief rested on his "stated plea of insanity" without putting on any evidence. Now why was that line in the comic? It didn't advance the plot. It existed only as a setup for the joke which followed later. (When Night-Thief asks his lawyer why he didn't cross-examine The Batman and make him squirm, the lawyer answers, "You are insane.") Ha. Ha. We got a joke and lost any semblance of realistic courtroom proceedings.
Insanity is not a plea one can rest on without any evidence to support it. In most states the defendant must prove he was insane. If he doesn't put on some expert testimony saying he was insane, the judge will rule that the jury cannot even consider the defense, because it was not proven. Even if the prosecution has to prove the defendant was sane, as it must in the federal system, the defendant will have to put on some evidence. The prosecution would already have put on its expert testimony that the defendant was sane. If the defendant doesn't put on any expert evidence to rebut the prosecution's case, the judge will again rule that the jury must find the defendant sane.
Like I said the insanity line was a setup for a joke. All the writer cared about was the joke. He didn't care about accurate courtroom portrayals. So what we got was a joke and a totally inaccurate court scene. (Speaking of inaccurate courtroom scenes, would someone please tell the artist on Detective #530 to look at a courtroom, or at least a Perry Mason rerun, before he tries to draw a courtroom. A courtroom should not look like it could fit in my living room, and a judge's bench should not look like it was cobbled from remnants of last year's Soap Box Derby.)
It appears that today's comic writers are quite capable of creating very dramatic scenes. Unfortunately they are totally unaware of what the real legal consequences of those scenes would be. Now I can't believe that any writer would attempt to write a something like a courtroom scene without first researching it to insure accuracy. Thus I can only conclude that the writers do not have access to any research resources. Marvel and DC's lawyers must know only corporate law and be completely ignorant of criminal law, and the writers must not know any other lawyers willing to be consulted for the purposes of accuracy in a comic book. Therefore, as a service to those writers, I offer myself. If you have a question about the law for a comic book, write me in care of this paper. I will advise you on all legal points. In that way we'll all have accurate comics.
And (at a modest billable rate of $150/hour) I'll have that fortune I talked about earlier.
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