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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 11/07/2000
DOCKET ENTRY
"The Law is a Ass" Installment # 68
Originally written as installment # 57and published in Comics Buyer's Guide issue # 605, June 21, 1985 issue


Once you get to the end of this column--another column about the Flash-murderer storyline--you're see that I made a couple of predictions about how it might end. You'll also realize that there's a reason that I'm a lawyer and not a prognosticator. And, no, it's not just that I went to law school. As my weekly luck with numbered ping pong balls proves, I can't see any farther into the future than those 1-900 number bimbos whose are so psychic, they have to keep asking their callers, "who is this?"

Reading the future is like reading The X-Men. Okay, maybe the future is a little less confusing. And that's why I became a lawyer. Between the future, X-Men, and the tax code, I'll take the tax code.

******

"The Law is a Ass"
Installment # 68
by
Bob Ingersoll

Today (as I type these lines) is Sunday April 14, 1985. As dates go April 14 wouldn't seem to have any particular importance or significance. Unless you're a wage earner.

If you are, then you know what April 14 means. It means that tomorrow is April 15. And that means I've spent the last two days--otherwise known as what should have been my weekend--figuring out my income tax.

And what significance does the IRS have to this week's installment of "The Law Is a Ass?" Simple. After spending a weekend with a Form 1040, I want to dish out to someone a little of what the IRS gave me. Pain and suffering.

Thus, without further ado, I wish to announce that this week's column is about The Flash.

(Stop worrying, Justin, so I intend on doing a hatchet job on The Flash, it's time. I haven't done a column about The Flash since issue # 345. We're up to # 347 now. And don't worry that I'm going to compromise my journalistic integrity by setting out to get The Flash. I never had any integrity in the first place.)

******

Let me start by expressing my complete awe at Flash's attorney, Cecile Horton, and her trial abilities. There's no doubt about it; when I go to trial, I want Ms. Horton in that courtroom with me.

As the attorney for the other side.

Let's study Cecile's performance in The Flash # 345. Kid Flash is testifying as an expert on super speed for the prosecution. Cecile objects once and solely on the ludicrous grounds that Kid Flash has retired as a super hero, so is no longer an expert. Naturally, once someone retires, he immediately forgets everything he ever knew about the field. That's why so many baseball teams hire former batting champs as hitting instructors.

Then, when Slater asks Kid Flash the big question, "In your opinion there were other ways [than killing Reverse Flash] Flash could have handled the crisis [Reverse Flash's intended murder of Fiona Webb] which occurred on June 21st last?" we get nothing from the defense except a whispered "Uh-oh. This is going to hurt us. Hurt us a lot."

Does Cecile object here? Is Mr. Magoo a good insurance risk? Should she have objected? Do Marvel mutants have a PR problem?

Both the question and Kid Flash's answer, detailing three ways Flash could have stopped Reverse Flash without killing him, are irrelevant. Neither will aid the jury in determining the existence or nonexistence of any material fact in dispute.

Flash is on trial for murder. (Yes, I realize some of you already knew that. But it's been over two years now since he was charged, some of you may have forgotten.) His defense, self-defense, admits he killed Reverse Flash, but claims the killing was justified because he did it while saving someone else's life. Do we really have to go over the reason why the affirmative defense of self-defense exists: That the law has decreed killing someone to save your own live or the life of another is a justifiable homicide? That the law says that the use of deadly force in repelling deadly force is permissible? I didn't think so.

The question before Flash's jury was, is, and will be: was Flash justified in using deadly force? That is answered by determining whether he acted to save Fiona's life when Reverse-Flash was going to kill her. If he was, then the use of deadly force was justified and completely excusable under the law no matter how unnecessary it may have been.

Let's look at it from another angle. Your mother is being attacked by a man with a gun. He's going to kill her. Fortunately, you are there, and you also have a gun. (Hey, you don't think I'd put my loyal readers into a hypothetical without some way of protecting their own mothers, do you?) Before she is killed, you shoot and kill her attacker. Self-defense right? Well, not according to DA Slater.

Killing the other guy wasn't necessary. You could have shot the gun out of his hand; that's what the Lone Ranger would have done. Or you could have shot his hand, or his leg, or just creased his scalp and knocked him unconscious. Or you could have used those all-purpose rubber bullets that comic-book guns always seem to be loaded with. But you didn't have to kill him.

Do you think any jury would buy the argument that your shooting the attacker wasn't self-defense, because you could have stopped the attacker without killing him?

And there's a very good reason that your answer was no. When properly instructed on the law of self-defense, the jury will know that the ability to use self-defense depends on how much force was allowable, not how much was necessary. Yes, there is a difference.

Deadly force is permissible to repel an attacker who is, himself, using deadly force, even if it's not necessary. So, as Reverse-Flash was going to use deadly force of Fiona, Flash could use deadly force to stop him, even if there were other, and non-lethal, ways Flash could have stopped Reverse-Flash. The question, "Was the force necessary?" was not, is not and never will be in front of the jury.

Okay, so we have Cecile allowing damaging but totally irrelevant expert evidence to go to the jury; something no good trial attorney would have allowed. But, do we have any thing else that she did wrong?

Would you like a typewritten list?

On page 19 of The Flash # 345 she allowed photographs, which the district attorney admitted had been altered, into evidence, again without objection. Said photos, lifted from a video tape of the killing, were computer enhanced to sharpen and focus the images. Cecile should have objected to their introduction, at least until the computer enhancement guy testified to verify that his technique in no way altered the images. Not a big point, perhaps, but the way Cecile has been missing points in this trial, even a small point for her would have been nice to see.

Now, let's move to the most incredibly stupid trial tactic I've ever seen in any trial, and remember I'm a veteran of heavens knows how many episodes of People's Court. Cecile has deduced that Flash is really Barry Allen, a fact she reveals in open court in the hopes of exonerating her client, by making a speech while pulling off the Flash's cowl to reveal his face. (Cecile's surprise move was thwarted by the additional surprise in issue 342, that Flash had Solovar change his face, so that he no longer looked like Barry Allen. Did I say surprise? Strike that. No one that I knew was surprised by this revelation. Everyone that I talked to knew that Solovar had changed Flash's face after they read The Flash # 342, and without having to wait for 345. Everyone! Yes, that includes my two-year-old daughter.)

Why was this tactic so stupid? Let's study Cecile's words as she pulled off Flash's mask. "For you see...The Flash's life had already been shattered once by the Reverse-Flash several years ago--when he murdered Flash's first wife, Iris!" There's more, but it's terribly over written and I think you get the drift of the argument without being forced to endure endless banalities.

Cecile's tactic was an attempt to get jury sympathy by telling it Reverse-Flash had killed Flash's first wife.

I would have bitten off my own tongue, before I would have allowed myself to say anything like the above in defense of a client. Think for a minute about the three classic elements of a criminal case. The prosecution says they need means, opportunity, and motive. As Flash was asserting self-defense, no one disputed means and opportunity. But up to the point where Cecile opened her big mouth, DA Slater had no motive for the Flash's killing Reverse-Flash. But in comes Cecile and hands Slater motive on a silver platter. Now Slater can argue that Flash purposely killed Reverse-Flash out of revenge, because Reverse-Flash killed Iris.

As I said, "Worst trial tactic ever."

******

Issue # 346 actually had no new legal inaccuracies in it. It did have one sequence wherein Flash saves the lives of his jurors, but leaves before they can learn that he did it. Flash is afraid that if they learned this, the judge would declare a mistrial, and then he'd have to go through all the agony again.

After thirty years of super-heroing in which he's saved the entire planet more than once, this is still the most humanitarian thing Flash has ever done. He was absolutely correct. If the judge had learned that Flash had saved his jurors' lives, a mistrial would have followed. The trial would have started over again from the beginning. To hell with Flash having to live through that agony again! Can you imagine us going through it again?

******

Flash # 347 proudly announces on its cover, "The trial concludes..." A statement which prompts the question whose, his or ours? It doesn't really matter, though. The statement, like everything else in this bloated story line, is wrong.

The trial is not over. The issue ends with the jury geting the case. No verdict has been announced. Maybe someone with the demonstrated legal acumen of a Cecile Horton doesn't think that the verdict is a part of the trial, but I don't know of any other lawyer who would agree with this position.

Saying that a trial is over, before the jury reaches a verdict is like saying that a whodunit is over, before Hercule Poirot points his finger at the guilty party and says, "It was you, mon ami." It ignores the one thing that everyone has been waiting for: the conclusion.

And that was just the cover. Inside the actual issue there was even more. Such as how Cecile allowed DA Slater to make the equivalent of a closing argument to the jury under the guise of cross-examining Flash about his motive. Slater doesn't ask a question he makes a speech. A long one. Does Cecile make a timely objection to this improper tactic? Do I really have to answer?

Okay, so she did object. But she objected, but weakly and only after letting Slater go on for quite a while, scoring his points with the jury. By then it was too late. The trick to objecting is to do it right away, before the damage is done, not after it's done and hope the jury will ignore it.

Second: Cecile didn't object to Slater's closing argument, that Flash is the only super hero to be charged and tried for second degree murder. Not only was this an irrelevant fact--what other super heroes may have done has no bearing on the Flash; he's not those other super heroes--it's also factually incorrect. Other heroes have been tried for murder. I think Superman's been tried a couple of times, now. Still, Cecile let Slater make these arguments without any objection. (I mention this only because I thought you might be gratified to know that Cecile stayed incompetent throughout the entire trial.)

So the trial is over, excuse me, hopefully will be over next issue. Well, that leaves me with a few additional comments on the story, none of them having to do with the legal aspects of the stories. For those of you who think I shouldn't ever talk about anything except the law, you'd better skip the next few paragraphs. I'm going to cheat.

What I'm going to do is to put myself out on a limb. Remember Newbury, the bald, moustached juror who was hit by a ray several issues ago? I predict that the ray was some form of mind control or mind transferal ray used by Abra Kadabra so that he could influence the outcome of Flash's jury, and that Flash will fight Kadabra in issue 348.

And, to go farther out on the limb, another prediction. (And remember these predictions are being typed before issue # 348 goes on sale, but will be printed after the issue hits the stand. I have no advance knowledge here and have no way of retracting them, if they should prove to be wrong. I'm going to look like a genius or a fool.) I predict that this "Reverse-Flash" character who's been running around for the last few issues is, in fact, Eobard Thwane, the Reverse-Flash. I predict that Reverse-Flash returned to the future a nanosecond before Flash grabbed him, killed someone, dressed him in a Reverse-Flash costume, then came back into the past and put the corpse into Flash's arms at the right moment to make it look like Flash killed him.

There are my predictions, we'll see if I'm correct. Mind you, however, I'd almost prefer finding out that I'm wrong about that second prediction. If I'm right, then, despite all the initial publicity about this story line, Flash never really killed anyone. And if Flash didn't kill anyone, then we've all wasted the last two years of our lives.

BOB INGERSOLL
<< 10/31/2000 | 11/07/2000 | 11/14/2000 >>

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