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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 09/12/2000
"The Law is a Ass" Installment # 60
Originally written as installment # 49 and published in Comics Buyer's Guide issue # 585, February 1, 1985 issue

As so it goes. On and on and on an on and on and ...

The trial of the Flash storyline had started sometime in 1983 and here it was, 1985 and it was still going strong. And I'm not talking just stench. In fact, it had been going on for so long, it left us with only one question: was it the Flash's trial our own?


"The Law is a Ass"
Installment # 60
Bob Ingersoll

I've got to admit that Cary (Mr. Surprise) Bates lived up to his name. I didn't expect the ending to Flash # 343 at all.

In case you don't' know what I'm talking about, this is the cliff hanger in which DA Slater calls a surprise witness--one who was hidden under a blanket as Slater led him into court, so that Slater could, for the issue's cliff-hanger reveal him to be Kid Flash. Nope, didn't see this one coming at all. Of course, that's because I couldn't believe that anyone would actually resurrect the old surprise witness chestnut. Let alone try to pass off this atavism as correct legal procedure in 1985.

Perhaps a brief history of discovery and witness lists is in order. In days of old, neither side in a criminal trial was obligated to talk to the other, so guess what? Neither side talked to the other.

In those days cases were prepared as follows. The prosecution had an entire department of investigators who tracked down witnesses, gathered evidence, took statements and did the general leg work. These investigators were called police.

The defense wasn't so lucky. By the time it got a case, usually sometime after the defendant had been charged, the prosecution's case had already been investigated and prepared. The defense started its preparation already in the hole.

Defense preparation consisted of pumping the defendant for whatever information he could remember and proceeding from there. If the defense attorney was lucky or financially successful, then he could hire a private investigator to do the grunt work much like Perry Mason had Paul Drake. "Paul, find out how many people in Van Nuys drink Perrier Water," Perry would demand. And sure enough Paul would come back with the exact number within the hour. (Of course, that particular investigation wouldn't have been so rough, all Paul would have to do is go out for a smoke, stay away long enough to make it look good then come back and say, "All of them."

Usually the defense attorney had to do his own leg work. This would present no problem, if the attorney had only one case at a time. Well, that would present something of an economic problem to the attorney, who, at one case per billing cycle, wouldn't be making enough money to live on. So let's assume hundreds of cases in a year. Even if only one out of ten cases go to trial, that's potentially, a dozen or more trials a year. So, try multiplying all that leg work by a case load that permits a living wage and you'll see the problem.

The system created inequities in preparation. The prosecution, which had an entire police force working for it, was often better prepared than the lone defense attorney. Under the circumstances, it would not be uncommon for the prosecution to uncover a witness about whom the defense never learned, your basis surprise or mystery witness. It should be noted that the defense could come up with mystery witnesses of its own. I don't want to imply that this was a one-sided affair.

Sometimes the surprise was a bit more intentional. It was not uncommon for one side to find a surprise witness then hide him or her away. In that way the other side would never find out about the surprise witness and would never prepare for said witness' testimony. (That is what we lawyers call sandbagging. Why? Get hit with a sandbag some time. You'll know.)

Eventually someone realized that the old system was unfair, because it produced inequities in preparation. The law, they said, was supposed to be a process of ferreting out the truth not a came of one-upmanship played by ferrets. To counter the inequities the discovery process was developed.

Discovery is a pre-trial procedure created by statute and court order, whereby each side in a criminal case talk to the other. They exchange certain information, including a list of all the witnesses that each intends to call.

There are no more secret witnesses! There hasn't been for over a decade!

Let's stop talking in generalities and get down to cases--specifically the Flash's case. Cecile Horton is supposed to be a competent defense attorney. Admittedly, I haven't seem any evidence of her competence so far in this story, but all lawyers are presumed to be competent, so, I give her the benefit of the doubt; no matter how reasonable that doubt may be. If Cecile is, in fact, competent, then she would have filed a request for discovery. D.A. Slater would have responded to the request with a witness list. Guess whose name would have been on the witness list? Anyone who said, "Kid Flash" is in trouble. Mind you, you're correct, but you're also starting to think like me. And that's trouble.

Assuming Cecile was competent and filed for discovery; she and Flash should have known that Kid Flash was going to testify. Then they could have talked to Kid Flash, found out what he was going to say, and figured out a way to counter it. No mystery witness. No surprise. And no grabber ending for Flash # 343 either. (Oh well, I guess sometimes you've got to take the bad along with the... er, the bad.)

What happens when a prosecution witness's name isn't on the witness list? The defense will move for sanctions, because of the prosecution's failure to comply with its discovery request. The rules of discovery contain a number of sanctions which the judge should impose in case of noncompliance. Which sanction the judge will impose depends on why the witness wasn't on the list.

If the witness wasn't on the list, because the prosecutor just found out about the witness himself, then the judge should order a continuance. The prosecutor didn't do anything wrong, so shouldn't be punished. But the defense shouldn't be punished either. A continuance will give the defense an opportunity to talk to the witness and prepare for his testimony. It's not an optimal solution, but, at least, the defense has a change to minimize the surprise and damage of this heretofore unknown witness. In the Flash's case, they would talk to Kid Flash--because the prosecution can't order Kid Flash not to talk to the defense and you know Kid Flash would want to talk to them--and be able to prepare for his testimony.

If, on the other hand, the prosecution knew about the witness for a long time and kept him off the witness list in an attempt to hide him, then the judge should order a harsher sanction. Again these sanctions vary in severity, and run all the way up to the judge barring the witness from testifying.

Slater kept Kid Flash off the list intentionally. Slater knew Kid Flash was going to be a witness, before the trial started. Remember, when Slater changed the charge against Flash from manslaughter up to second-degree murder, because of new information proving Flash had motive? Kid Flash told him that Reverse-Flash killed Flash's first wife. Slater knew Kid Flash was going to be a witness and wilfully hid him.

Such wilful prosecutorial misconduct, intentionally hiding a witness from the defense, should not go unpunished. Because of the wanton nature of Slater's misconduct, the judge presiding over the case should bar Kid Flash from testifying. If she doesn't, she should, at the very least, grant a continuance, so Flash and Cecile can prepare for his testimony. (To those of you who feel that if Judge Fisher imposed sanctions, we'll lose the drama in the story, I can only reply: you can't lose what you never had.)

I'm bothered by other aspects of Slater's using Kid Flash as a mystery witness. Other than the fact that Slater is a cheap shot dirty trick artist, I can't figure out why he did it. But there he was on page 22, dragging the mystery witness into court hidden under a blanket, until he could reveal his identity for the optimum, issue-ending effect. (Any one else wonder why Slater would bother hiding Kid Flash under a blanket on Page 22? Considering that Kid Flash could run into the court room faster than anyone could see, what was the point of the blanket? The same grabber ending could have been achieved by simply having Kid Flash appear in the witness box at the end of the story and without risking that wooly blanket giving Kid Flash hives.)

Slater said hiding Kid Flash was for "reasons which will become obvious." Well, they never became obvious to me. What reasons? That Flash would talk to Kid Flash? That's not a reason, he's allowed to talk to the witness. Even though Kid Flash is a witness against him, Flash is allowed to talk to him. That's what discovery is all about.

Neither lawyer in a law suit can prevent his witnesses from talking to the other side. Oh, he can ask his witnesses not to talk. But if the witness wants to talk, the lawyer can't do anything to prevent the conversation. In fact, if the lawyer does do something to prevent it--like hiding a witness as Slater did or even ordering the witness not to talk to the other side--he has violated the rules of professional responsibility. He could have a grievance filed against him. He could be sanctioned or punished. He could even be disbarred. So hiding Kid Flash might have prevented Flash from talking to him, but it was also unethical. That cannot be the reason.

Did Slater think that Kid Flash's testifying had to remain a secret to prevent a super-villain attack in the court room? That's kind of a barring the barn's egress after the equine has exited--excuse me, lawyer talk--kind of thing, isn't it? If super-villains were of a mind to attack the courtroom, Flash's presence alone should have been enough incentive. Then why doesn't he have a similar worry about one of Flash's enemies attacking in the court room, not prosecute him and spare us all these months of agony? (Which brings up another question: why did the Rogues Gallery bother with creating Big Sir to kill the Flash? Nuking the courthouse during business hours would have been more efficient.)

I'm sorry but I can't accept the mystery witness bit. Slater had no viable reason for hiding Kid Flash's identity. Moreover, he cannot have done so under the rules of discovery. The mystery witness is just one more example of the Flash-murderer story line's sacrificing reality for an attempt at drama.

When I was talking to Tony Isabella about Flash # 343, he told me I should consider retiring Flash's number. After all, he opined, no other story line will ever come close to it for sheer numbers of legal inaccuracies, and my readers may be getting sick of my attention to it.

Personally, I'm sick of the attention I pay Flash. I'm sick of the Flash-murderer story line. I wish DC would retire it. But that's not in the cards. At least not for the foreseeable future. As long as the story continues, and as long as it keeps making new mistakes, so that I don't repeat myself, I don't see how I can retire Flash's number.

After all, you can't retire a player's number, while he's still playing.

Don Thompson had a different suggestion. He said I should split my column earnings with Flash's writer, Cary Bates. I can't do that either. No, not because I'm greedy. (Well, not just because I'm greedy.) Fee splitting is a violation of professional ethics. You wouldn't want to see me disbarred, would you?


Old business: Several weeks ago I commented on a Hulk character; a lawyer named Price Claringer. I asked the audience in general wither I was just paranoid, or if Claringer's name was similar to my own.

Well, the votes have been counted.

I'm just paranoid.

<< 09/05/2000 | 09/12/2000 | 09/19/2000 >>

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