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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 08/07/2001
DOCKET ENTRY

"The Law is a Ass" Installment # 107
Originally written as installment # 96 and published in Comics Buyer's Guide issue # 683, December 19, 1986 issue


I'll let you in on a little secret: some of these columns are easier to prepare for reprint than others. This one is one of the others.

There could be many reasons for this. Jokes that seemed funny when I first wrote them but, after time, I realize actually work about as well as a Swiss cheese hang glider. Stupidity on the part of your humble servant which resulted in mistakes in the original column which have to be removed so as to keep me from being even more embarrassed. And sometimes, such as the column we have today, the legal analysis needs to be reworked.

Fifteen years ago, when I wrote this one: I was young, cocky and oh so sure of myself and my analysis. Now, fifteen years later, I'm old, cockeyed and I realize not everything is as cut-and-dried as I used to think it was. In the case of this column, I realized that what I had been oh so sure of waaaay back when--that anything Luthor said to Superman would have been ruled inadmissible because of Superman's initial illegal entry into Luthor's office--was open to interpretation. Oh, it's still possible that a court would rule the evidence inadmissible. But I also realized there were also ways in which a court could rule the evidence was admissible. So I expanded the legal analysis of this column to add this other possibility.

Sure, it may have cost me some standing in the Ayn Rand Society, but I have to live with myself. And that's hard enough as it is without my right by my readers.

******

"The Law is a Ass"
Installment # 107
by
Bob Ingersoll

It is, as I write these words, still an election year. The Equal Time Doctrine is still in full effect. That's why I'm once again giving the other side a chance at the limelight. In other words, no, there was no legal error in Superman # 2 and I'm not writing about a legal mistake.

But that doesn't mean I'm not going to write about the comic at all. I mean, what would this column be, if I didn't write about some comic? (Those of you who said, "A lot better," can just go to the other room. You're getting a time out, now. We have something more suited to your tastes in there.

(Okay, cue the Barney tape in the other room, guys.)

For the rest of you, the discerning among you, here comes the legal analysis of a comic that didn't have any legal mistakes in it. The background is simple this time. Lex Luthor suspects that there is a connection between Clark Kent and Superman, because Clark gets all the exclusives on Supes. So, he has two flunkeys (with an emphasis on the flunk) burgle Ma and Pa Kent's house. They steal the scrapbook of Superman missions that Ma has kept. They also kidnap Lana Lang. Why did they do all this? Luthor wants to feed all this information into a big computer, so that it can figure out what the connection between Clark and Superman is. Ultimately, and I don't think I'm giving anything away here, because this particular revelation is right on the cover, the computer tells Lex that Clark Kent is Superman. An idea--and here I am giving something away so here comes da SPOILER WARNING!!if you don't want given away what I'm about to give away, then don't read the rest of this paragraph. Skip to the next paragraph right now!-- that Luthor immediately rejects. Superman cannot be Clark Kent. Superman cannot be any mere mortal. Luthor reasons that anyone who has as much power as Superman would not--could not--conceal all that power under the guise of a mild-mannered reporter. It's a nice character bit for Luthor, revealing how truly vile and power hungry he is. It summed up his character better than anything he's done yet. I guess Lex just hasn't learned as yet that--all together now--"with great power comes great responsibility." Maybe we should kill his uncle.

OKAY, END OF SPOILER WARNING you can come back now. (No only the people who were skipping the spoiler part. Those of you who were in the other room on the time out have to stay there!) When Superman finds out about this, and when he finds out that Luthor tortured Lana to find out what she knows, he is, needless to say, miffed. He smashes into Luthor's headquarters to confront Baldie. But Luthor, who has taken Metallo's Kryptonite heart and fashioned a ring from it, incapacitates Superman and tosses him out.

However, Lex doesn't eject Superman, until after he's rubbed a little salt into the wounds. First, Lex calmly admits that he is, indeed, responsible for the Kent burglary, the Lang kidnaping and torture, and the murder of the two flunkeys. And, Luthor gloats, there's no way Superman can connect him with any of it.

Big words! Didn't this American version of the Mexican hairless learn to keep his big mouth shut after Man of Steel # 4? Didn't he learn that too much bragging will land him in the pokey? Didn't he learn that mum's the word? Didn't he learn that pride goeth before a fall? Wait don't go! I'll figure out some way to end this paragraph.

See?

Superman # 2 came out on a Friday here in Cleveland. Today is Sunday. So far I've had three different persons ask me, "I know it's just Superman's word against Luthor's, but wouldn't that be enough to prove Lex guilty of the crimes?" I'll let you in on a little secret: at first, I wondered the same thing myself. And here's what I came up with.

First of all, it wouldn't be just Superman's word against Luthor's. After the Kents testified about the burglary in their house, after Lana testified about her kidnaping, after Superman testified that he saw two flunkeys blown to bits before his very eyes; Superman would also testify that Lex Luthor calmly admitted his responsibility for all these acts and gloated that Superman would never be able to prove a thing. We's have other people and testimony proving the crimes occurred--proving what the law calls the corpus delicti--then we'd have Luthor's confession to the crimes. I've had clients convicted with less evidence against them. (And it's not because I'm a lousy lawyer, either; juries hate cocky defendants.)

Statements admitting one's guilt are called confessions. Once a jury hears that the defendant confessed and is sure that the confession wasn't beaten out of the guy, the trial tends to be over. Juries don't acquit people who confess.

So, once Superman testified that Luthor confessed to him, Luthor would be convicted. Sounds to me like Superman wouldn't have much of a problem connecting Luthor with the crimes at all. Unless, that is, Superman couldn't testify that Luthor confessed.

And that's where the discussion comes in. It is possible that Superman couldn't testify about what Luthor told him.

Now, stop that! Don't get ahead of me. I hear some of you saying hearsay. Yes, Luthor's confession is an out-of-court statement being offered to prove what was said was true. Ordinarily, the hearsay rule would prevent such evidence from being admitted. But hearsay isn't a problem here.

We're talking about a confession, an admission by Luthor that he is guilty. Admissions by the defendant aren't blocked by the hearsay rule. After all, the biggest reason hearsay statements aren't permitted into evidence, is because the person who made the statement isn't available for cross-examination. Luthor can't exactly complain that he isn't available for cross-examination, if he's the defendant, can he? In all jurisdictions in the country, an admission by one of the parties in a trial would be admissible. Either, as in Ohio and any state that has patterned its rules of evidence after the Federal Rules of Evidence, the admission isn't hearsay so is admissible. Or, in those states when it is still hearsay, it would be a declaration against penal admissions and admissible as an exception to the hearsay rule Either way it would be admissible..

No, the reason that Superman wouldn't be able to testify that Luthor confesses has to do with the Fourth Amendment, illegal search and seizure. Remember back to Superman # 1? Remember we learned that Superman has been duly deputized as a special operative of the Metropolis Police. That means that Superman's a cop and everything he does is state action. And that means, if Superman commits an illegal search and/or seizure, the evidence found during the search or any evidence gained as a direct result of exploiting that search will not be admissible.

In this story, Superman without a search warrant and without probable cause to search, broke into Luthor's office and confronted him. Here comes the first question. Was this an illegal search. Clearly it was an illegal entry. But as Superman didn't actually search, would a court hold this to be an illegal search?

Probably. If a police officer enters a building illegally and doesn't search it, but sees something lying out in plain view, it's still an illegal entry, which would make what followed an illegal search, even though there wasn't actually a search. Superman's mere entry into Luthor's HQ would probably be enough of an illegal entry for any court to invalidate anything he found while in said HQ.

But Superman didn't find anything, because, as we said, he didn't search. Instead, Luthor immediately incapacitated him, boasted to him of his crimes, and threw Superman out of the office. Could Superman testify about what Luthor told him, or would that be the fruit of the poisonous tree, evidence gained by exploiting the initial illegal entry?

This one is knottier. Yes Luthor's boastful confession was gained as direct result of Superman's illegal search. Deucedly clever of Superman, wot? Allowing himself to be exposed to Kryptonite, just so he could goad Luthor into confessing. The fact that the confession came about as a direct result of Superman's illegal entry might be enough for some courts to rule it was the fruit of the poisonous tree and inadmissible evidence.

But it is also possible that a court could rule that Luthor voluntarily coughed up this information and it didn't come about as a result of any exploitation of Superman's initial illegal entry. When the police make an illegal search and seize evidence, then confront the criminals with what the incriminating evidence they found in the hopes of getting that defendant to confess, that is an exploitation of the illegal search. The police used evidence found in the evidence to induce a confession. Superman didn't do this. Superman didn't use the fact that he entered Luthor's lair illegally in any way to induce Luthor to confess. Luthor confessed all on his own. In situations such as this, many courts rule that other circumstances intervened and removed the initial taint of the illegal search and hold the evidence is admissible, because it wasn't found as a direct exploitation of the illegal search.

How would the court rule in this case? I really don't know. It depends on many things. Things such as whether it's a liberal judge presiding over Luthor's trial or a conservative strict-constructionist. And how much did Luthor contribute to that judge's reelection campaign.

What, I'm not allowed to be realistic, if not cynical, in my own column?

Bob Ingersoll

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