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Law is a Ass by Bob Ingersoll
Join us each Tuesday as Bob Ingersoll analyzes how the law
is portrayed in comics then explains how it would really work.

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THE LAW IS A ASS for 02/08/2000
DOCKET ENTRY
"The Law is a Ass" Installment # 30
Originally written as installment # 20 and published in Comics Buyer's Guide issue # 544, April 20 , 1984 issue


I remember writing this installment, like it was yesterday, even though it's almost old enough to drive. I remember, because I hated writing it at the time.

In 1984, I may not have hade my first computer yet, but I did own a nice IBM Selectric typewriter. It's what I used to write my early columns. That is, it's what I used, if I were home. As the column points out, however, I was in Florida at the time I wrote it. My Selectric was at home, so I had to bang this column out on the manual Olivetti lying around my Mother's house. A machine not conducive to touch typing.

First of all, the keys weren't responsive to my touch, and I had to press them much too hard for my tastes. Tastes that were further soured by the fact that the keys were also too small for my chubby fingers, making it virtually impossible for me not to hit more than one key at the same time. Writing this column was an exercise in frustration.

And now, sixteen years later, I find that I hated editing it for its revised publication here on World Famous Comics almost as much as I hated writing it. See, when I revise these old columns, one of the things I do is to re-read the comics I was writing about so that they're fresh in my mind, in case I want to change anything I wrote. To prep this column, I had to read Firestorm # 25 and World's Finest # 304 again.

Let me assure you, unlike fine wine, bad comics do not get better with age.

******

"The Law is a Ass"
Installment # 30
by
Bob Ingersoll

I'm sitting in central Florida on the third day of a one-week vacation, as I write this, although I ll be back to the cold of Cleveland by the time you read it. So why am I wasting precious vacation time writing an installment of my column? Because my loyal readers come first. (And if you believe that, then there is lots of land down here, I d like to show you.)

The real reason I'm writing a column instead of taking advantage of what Florida has to offer is far more embarrassing. Disney World is set for tomorrow. And when your score for a round of golf is an even seventy-two--sixty-eight on the back nine--eventually do something to get your mind off the fact your every shot will find the rough or the sand or the lakes--whichever gets you in the most trouble. Hell, on the golf course, I can't even drive a golf cart straight.

So anyway, here I am in Florida writing a column. But what, you ask could I possibly write about. How about Firestorm # 25 and World's Finest 304? You didn't think I could let those past, did you? I even brought them down with me, just so I could write about them.

Firestorm # 25 talked about aspects of an arrest, which I cannot ignore and World's Finest # 304 talked about a trial. (Gee, Arrest and Trial; would I be dating myself if I made an off-hand comment about Ben Gazarra and Chuck Connors? Anyone out there remember that old TV show from 1963? I could give more details but all my TV reference books are back in Cleveland.)

ARREST


Three punks are found mauled to death and partially eaten in Central Park near the Central Park Zoo. Detectives Wilson and Mackey of the NYPD find a beaded necklace that looks like it was of Indian origin clutched in one of the victims' hands. Wilson remembers that John Ravenhair, an Amerind who was also the super-villain Black Bison, fought Firestorm in Central Park a few months earlier. So automatically Ravenhair becomes a suspect and is rounded up. Not even as part of a "round up the usual suspects" sweep, Ravenhair is brought in all by his lonesome so the police can question him. Unfortunately, within fifteen minutes of his being arrested, his lawyer shows up to post his bond and Ravenhair is released.

So, where did this go wrong? Let me count the ways.

Let's start at the end. Assuming that John Ravenhair was lawfully arrested--we'll get to that in a moment--there's no way he could have been bailed out in only fifteen minutes. Bail requires that a person first be arrested, then charged with a crime then brought before a judge or magistrate who sets the bond. While this is a highly formulaized process that can move quickly, it can't happen in only fifteen minutes. Hell just finding a judge in New York City with a spare minute or two on his docket so he can hold the bond hearing would take longer than fifteen minutes.

So, let's move back to where I said that John Ravenhair wasn't lawfully arrested. Yes Ravenhair was a suspect in the story. Why I'm not sure, but he was a suspect. Nevertheless, his arrest was unlawful. Why unlawful? Remember the Constitution? It's this old document hat I keep talking about. A lot. (I certainly hope you remember it, not only does it mean I'm not wasting my time writing these columns, it puts you one up on most of the comic-book writer alive practicing today.) The Constitution sets out the supreme law of the land. No one can violate it. No one. Not even Michael Eisner. And certainly not police detectives in New York City.

So guess who violated the Constitution in Firestorm # 25? A free Belaboring-the-Obvious award goes to anyone who said two police detectives from New York.

Under the Constitution and the Fourth Amendment, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause." If we take out all the fancy words and commas, what this basically means is this: you can't arrest someone without first getting an arrest warrant from a judge. And you can only get said warrant, after you have convinced said judge that you have probable cause for the arrest. Probable cause means you have convinced the judge that it is more probable than not that the man you want to arrest committed the crime you want to arrest him for.

Absent a few exceptions, to arrest you first need a warrant backed by probable cause. Did the police in Firestorm # 25 get an arrest warrant? I didn't see it happen, so I assume that they didn't? Actually, I assume it for a better reason, how could they have gotten a warrant based on what they had? What evidence did they give the judge to support the warrant? "Your honor, three punks were eaten in Central Park Zoo. We found an Amerind necklace in the vicinity. Several months ago John Ravenhair, an Amerind school teacher became a super-villain called Black Bison and fought Firestorm in Central Park. Based on that, we believe that Ravenhair must be guilty of this multiple homicide."

Does that gives them probable cause? Does that make it more likely than not that Ravenhair--as opposed to the thousands of other Amerinds who live in New York City or the equal thousands of people who wear Amerind necklaces--committed the crimes? Do polar bears poop penguins? (The answer to these questions is no. Polar bears live at the north pole, while penguins live at the south, so they don't poop penguins. I just thought I'd get that last one right this time, considering the last time I threw the line in as a joke, I got my poles mixed-up.)

No, the police would never be able to get a warrant against Ravenhair based on that evidence, or more properly, lack of evidence. So they would not have been able to arrest them, as they did.

Probably there are those of you, who are saying, "Wait a second, Ingersoll, you said 'absent a few exceptions,' so don't always need an arrest warrant, to arrest someone. Maybe one of those exceptions applied" Ah good, you were paying attention. Unfortunately, the exceptions don't apply here. Sometimes, in the face of what is called exigent circumstances, one can arrest someone without a warrant. But what exactly are "exigent circumstances?" I'm glad you asked that question (I'm glad, when you ask any question, which I can answer easily, it makes me look so sage.)

Exigent circumstances exist, when the police have probable cause to believe that the person to be arrested committed the crime and securing a warrant would be a burdensome formality likely to hinder the arrest. The most common occurrence of an exigent circumstance is what we call "hot pursuit." It works like this: Hill and Renko see a typical street punk holding up a Decker Avenue liquor store. Does that give them probable cause to arrest the punk? Of course. They know that their suspect and no one else committed the crime, they say him do it. Can they get a warrant? No. By the time they got to Judge Watchel, the suspect would be long gone. So the exigent circumstances doctrine permits Hill and Renko to pursue and arrest the punk at that time, without first getting a warrant.

Note, however, that a warrantless arrest on exigent circumstances still needs probable cause. The cops in Firestorm didn't have probable cause before for an arrest. They didn't see Ravenhair committing the crime. They didn't have his fingerprints on the victims or bite marks on the victims that matched his own. They didn't have squat. Okay, they had a suspicion, a lousy suspicion--an Amerind might be involved, because this might be an Amerind necklace--but a suspicion. But suspicion isn't enough for an arrest, especially when it's a lousy suspicion.

Now, I know there are probably some of you who dispute my argument that you can't be arrested on suspicion and are quoting Hawaii Five-O, where Steve McGarrett is always saying, "Book him, Dano, suspicion of murder." God, I hate TV shows that give people the silly idea that one can legally be arrested for "suspicion." I remember the first time I mentioned that concept in law school. I thought my professor was going to pop a blood vessel. As that professor rather pointedly told me, there ain't no such animal as an arrest on suspicion. A person can be brought into the station house and questioned based on suspicion, but not arrested. You can only be arrested for a crime, and there is no crime called suspicion.

Ravenhair wasn't brought in on suspicion and questioned. He was arrested. The cops even said so. Moreover, you don't set bail on someone who has only been brought in for questioning, you set bail for someone who was arrested and charged with a crime.

While we're at it, I wish they would also abandon the fiction that the police can hold someone for up to seventy-two hours without charging them. Arrested individuals must be charged as soon as possible and then have a bond set. Sure, it can sometime take up to seventy-two hours to accomplish all of these things, but there is no seventy-two hour "don't get out of jail free" grace period for the cops.

Actually, what I really wish is that I were Ravenhair's attorney. The Public Defender office doesn't pay much. But Ravenhair has a megabuck lawsuit against New York City for false arrest. I wish I could get a piece of it.

AND TRIAL


Trial means we're at World's Finest # 304 and its opening trial scene. Oh lord, where should I start?

How about with the splash page? There we learn that the super-villain Void, is on trial and defending himself against a theft charge. No, I'm not going to use the old saw about a man who represents himself having a fool for a client. Rather, I want to talk about the fact that Void calls Superman and Batman as his key defense witnesses. What's wrong with this? Well, for starters, Superman was the victim of the crime Void's crime. Superman and Batman caught Void with the stolen jewel. Given this, the odds of Void calling Superman and Batman as his witnesses are nil. And void calls them anyway.

But why wouldn't Void call "The World's Finest Heroes" as witnesses? To answer that, let me explain a little about trial procedure, first. At a trial there are two sides, the plaintiff, the person who is suing, and the defendant, the person being sued. In a criminal, the prosecution is suing the criminal on behalf of the criminal's victims, so the plaintiff is also called "The State" or "The People" while the defendant is called "The Defendant." (See, not all of our legal terms are hidden in confusing double-talk. Just the ones we want to be confusing, so you people don't know what's going on.) Each side puts on its case by calling the witnesses it needs and the opposite side gets to cross-examine the witnesses testifying against it. The plaintiff has what is called the burden of proof, which is to say, the plaintiff must prove the elements its case is true by whatever quantum of proof is required. In a criminal case that quantum of proof is the famous "beyond a reasonable doubt" you've heard of so often on Matlock. This means the jury must be convinced beyond a reasonable doubt that the defendant is guilty. Because the plaintiff has the burden of proof, it puts on its case first. After the plaintiff puts on its case, the defense can, if it so chooses, put on a case.

What does all this have to do with World's Finest # 304? Well, as I said, Void calls Superman and Batman as witnesses. It's doubtful that Void did this. He wouldn't have to.

Void was on trial for robbing some jewel from Superman. That means that before Void put on his defense, the prosecution, which had the burden of proof, put on its evidence to prove Void stole the jewel from Superman. Superman and Batman were the only people who saw the theft. Superman and Batman were the only witnesses that the State could have called to make its case. We must assume that the State had already called Superman and Batman as witness in its case.

So, the State called Superman and Batman as its witnesses. That means Void got to cross-examine them during the State's case. So, of what use would it have been to call them as defense witnesses? Any question that Void could ask them as defense witnesses to discredit their testimony, he would already have asked on cross-examination. Void wouldn't have called Superman, or Batman, as defense witnesses, that would have been redundant. Still, he called them as defense witnesses, because the writer of this story showed an abysmal lack of trial procedure knowledge. The writer didn't even watch an old Perry Mason re-run, before he wrote this dumb scene. Hell, he didn't even bother to watch the new, turkey Perry Mason series with Monte Markham. At least Perry Mason, got this part right.

Then, to compound the error, we get to see the questions Void asked to discredit Superman and Batman. First Void points out that Superman is an alien from the stars, so how can he, an American citizen, be persecuted by Superman? Hmmm, we can discredit a witness, because he's an alien. If that's the case no Mexican or European could ever testify. As I know they can, maybe the writer got it wrong. (Gee, what are the odds of that, do you suppose?)

Yes, I know the story termed Superman an "alien from the stars." That's not good enough either. Remember, Superman has been granted citizenship by every charter nation in the U.N. Including the U.S.A. That means, Superman isn't an alien any longer, no matter what his point or planet of origin. He's an American citizen, whose testimony is as admissible as any other citizen's. Hey, if Kato Kaelin can testify, so can Kal-el.

Void's next question to Superman is what was the locket's true value, not emotional value. "Not enough, surely, to sustain this charade!" Now, there's a meaningless question. He who steals my purse may steal trash, but he's still stealing. In other words, it doesn't matter what the locket's value was, sealing it is still illegal.

The question of stolen property's value doesn't go to disprove that an illegal theft offense occurred, it goes to determine how big a theft offense occurred. The more the stolen property is worth, the higher the degree of a theft offense. Even if the locket were virtually worthless taking it would be theft. Petty theft and a misdemeanor, perhaps, but theft nonetheless and something for which Void could be tried. Moreover, Void didn't even give Superman a chance to answer the question before dismissing him. What, was he afraid of the answer?

Well, so far Void has "discredited" Superman by pointing out he's an alien and not ascertaining the locket's true value. Boy, I like his chances for winning the trial so far. A crippled race horse being jockeyed by a sumo wrestler has better odds.

Next Void calls Batman as a witness. Void then proceeds to discredit Batman's testimony because Batman won't unmask on the stand. That wouldn't work, either. It has been established, that Batman can testify in Earth-One courts, even though he wears his mask. Once such a precedent has been established, it must be followed by other courts. That's why they're called precedents and not whims

(Yes, I know my very first column I said, Batman couldn't testify while masked. But I was telling you what would happen in the real world. This story takes place on Earth-One, where there's some sort of constitutional amendment allowing costumed heroes to testify. Batman has testified in Earth-One courts in the past, so he would have been able to do so this time. His refusal to unmask himself would not have discredited him)

So Void argues that as there are no material witnesses against him, he can't be guilty. And the judge responds by dismissing the case, because "we do not trade on hearsay or hunch." Oh, the judge takes great pains to assure Superman and Batman that he believes every word they said, but he had to dismiss the case because the evidence was too slim to prosecute, and would be overturned on appeal for certain.

Let's see, overturned on appeal. I happen to work in the Appellate Division of the Public Defender Office, so I might have a little idea what type of conviction would be overturned for insufficient evidence. This ain't one of them.

The trial judge believed every word that Superman and Batman said. Such words were, no doubt, "Void stole the locket from Superman, we saw him do it. We found it on him." That's direct evidence of Void's guilt and not hearsay, as the writer of this story called it. (Hearsay is when "A" says something which "B" hears, then "B" testifies in court about what "A" said. It isn't when "A" and "Be" testify about what they both saw with their own actual eyeballs. You'd think the writer might, at least, check on the meaning of a legal term, before misusing it. But that would be like expecting logic in this story, so I've probably set my hopes too high.)

Anyway, the direct testimony of Batman and Superman would have left absolutely no doubt that Void was guilty. Moreover, as both Superman and Batman could legally testify, no judge could possibly have concluded that a conviction based on the direct evidence of two unimpeachable eyewitnesses would be overturned. It wouldn't be. Trust me, I know. I've seen convictions based on evidence lots flimsier that this be upheld on appeal. I see it almost every day.

In other words, no trial judge would have dismissed the case against Void. No judge, that is, except for the one we got in this story. Hey, forget that old saw about a man who represents himself having a fool for a client. How big a fool the lawyer is doesn't matter, as long as the judge is an even bigger fool.

BOB INGERSOLL
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