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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 12/05/2000
"The Law is a Ass" Installment # 72
Originally written as installment # 61 and published in Comics Buyer's Guide issue # 613, August 16, 1985 issue

"All good things must come to an end."

You must have heard that. It says so in the song. And we can believe songs, right; even if I haven't gotten rich by banking all those "Pennies From Heaven." Still, we'll go with the song on this one--all good things must come to an end.

And, fortunately, ending's not just limited to good things, as witness the fact that this is the last season for Star Trek: Voyager.

Or that, with this column, the "Trial of the Flash" story line ended.

You'd think I would have honored such an occasion with a special column, but I didn't. I didn't even devote the whole column to the end of the story; just the opening section of a column that talked about four comics. Still, as we come to the end of the millennium, we also come to the end of an era here in "The Law is a Ass," and I would be remiss if I didn't mention of the passing of this milestone.

Because, no matter what you may have heard, remiss is not as good as a milestone.


"The Law is a Ass"
Installment # 72
Bob Ingersoll

After all, I couldn't let an old friend leave without saying good-bye, now could I?

A little over two years ago the Flash killed Reverse-Flash and started one of the longest story lines it has ever been my misfortune to endure: the now classic Flash-murderer story. (Actually, I shouldn't complain. I've been this paper's faithful courtroom correspondent throughout the entire trial, and with the money I've made writing about Flash, I managed to take my entire family to Burger King. Who says comic fandom doesn't pay?)

Well, Flash # 350 was the last issue of the story line. It was also the last issue of the book (I categorically deny that it was my column which led to Flash's cancellation) Still, here it was the last issue and they couldn't even do it without a major mistake. Legal mistakes in "The Trial of the Flash" were as dependable as death and taxes.

Incidentally, I am not doing this column, just because my recent predictions about the Flash were totally wrong. After all, if I were in the prediction business, I'd be writing for The National Enquirer, not The Comics Buyer's Guide. "I see a dark cloud hanging over the horizon for President Reagan." What does that mean? That prediction covers everything from assassination attempts to thunder storms in Washington.

My reason for writing has to do with jury tampering and the verdict in Flash's case. Jury tampering committed by no less than two persons and no less than three times.

First there was tampering by Iris West Allen, Flash's first--and we thought dead--wife. Iris was dead, she got better. Somehow rather than die, Iris traveled to the future, where she had been living quite comfortably. From that far future, Iris used a ray capable of both time travel and mind control to take over the body of one of the jurors on the Flash's trial, Nathan Newbury, so that she could sit in on the deliberations posing as Newbury and insure that a not guilty verdict was returned. (The defendant's wife sitting on the jury; gee, that's only improper in about fifty out of the fifty states.)

Iris got the not guilty verdict she wanted by using different time travel technology and taking the jury back into the past so that they could see the actual killing of Reverse-Flash for themselves--so that they could see Flash acted in self-defense. She then gilded the lilly by revealing to them a fact that wasn't in evidence: Flash's secret identity. (Yes, Cecile Horton had tried to reveal Flash's identity earlier, but that ploy didn't work because Flash had Solovar the super gorilla give him new face. As a result, no one believed Flash was Barry Allen and the fact that Flash really was Barry Allen wasn't in evidence.) Now, armed with these two new pieces of information--their being able to see for themselves how the murder occurred and the Flash's secret identity-- the jury found Flash not guilty.

Yeah! Good triumphed over evil. Good cheated, but it triumphed.

Yes, cheated. The verdict in the Flash's trial was more improper than white after Labor Day. After all, the tardy wearing of the white is just a little faux pas, tampering with a jury is a crime.

A verdict cannot rest on any fact or consideration which is not in evidence. If the jury didn't hear about it from a witness or see it in an exhibit, the jury can't use it for its verdict. So the extra information that Iris gave the jury by letting them see the actual murder or reveling Flash's secret identity invalidated the verdict. She tampered with the jury by giving it information it wasn't allowed to have.

But if Iris's bit of jury tampering weren't enough to taint the deliberation process irrevocably--and it was--we have this extra little delight. After the jury voted on its not guilty verdict, Flash villain Abra Kadabra brainwashed the jury into doing his bidding and had them return a guilty verdict in open court. In order to counter that bit of sinister slight-of-hand, Nathan Newbury revealed to the world that he was from the future--notice I said "he" at least, no one was dumb enough to let Iris reveal who she really was--that he had come to the past to insure that the not guilty verdict history recorded was returned, then used advanced science to unbrainwash the jury. After the jury remembered it had been brainwashed and remembered its original verdict, the court reinstated that verdict.

And District Attorney Barney Slater who had been trying for two years now to convict Flash of murder, calmly accepted the word of Nathan Newbury that history recorded a not guilty verdict and accepted a not guilty verdict in the case of The People vs. The Flash.

And then the three bears returned to their cottage and found that someone had been eating their porridge.

Slater knew he had a verdict from a jury which was improperly influenced not once but twice; first by Abra Kadabra and then by Nathan Newbury. But because history had recorded a not guilty verdict, he went blithely forward and didn't protest. Is Slater's willingness to accept defeat far fetched? No, having your dog bring back a stick from a South American rain forest is far fetched. This goes a step or three farther.

Once the district attorney heard that there had been jury tampering, that the jury had been brainwashed and then unbrainwashed--and especially when he heard that the tampering caused a guilty verdict to be changed into a not guilty verdict--he'd move to set aside on the verdict because of the tampering. I don't know of a single judge who wouldn't grant his motion given the facts and the admitted jury tampering.

Not even that annoying rule about evidence aliunde would keep the judge from setting the verdict aside and ordering a new trial. The what? The Evidence Aliunde Rule, which has nothing to do with testifying acrobats, is this little rule we in the legal biz created to regulate how jury verdicts can be challenged for jury misconduct. I promise it will all make sense to you in a second, or as much sense as it makes to me.

The aliunde part of the Evidence Aliunde Rule refers to some foreign word that means from another place. And what the rule means is that before a court can accept testimony from a juror or jurors that alleged jury misconduct occurred, there must be evidence aliunde--that is extrinsic evidence from another place--which supports the allegations of jury misconduct. Without this extra evidence, the judge cannot overturn a jury verdict, simply because one, or more, of the jurors said misconduct occurred.

Well here we can get around the aliunde rule rather easily. First we got this super-villain who got beat up in open court right in front of everyone but not before he talked about brainwashing the jury. Then we have one of the jurors, right in front of the judge and prosecutor, shooting a mind-altering ray at the other jurors, who suddenly complained they were brain washed and that their guilty verdict should have been a not guilty verdict. What first Abra Kadabra and then "Nathan Newbury" did in open court would be enough evidence aliunde for the judge to accept testimony from the other jurors about misconduct.

And, okay, maybe the judge and DA bought that history recorded a not guilty verdict, one that Abra Kadabra ruined. Still, how valid was that not guilt verdict? I've already established that it, too, was improper because of Iris West's tampering. Once the jurors could testify about any outside influence, they could also testify about all the outside influences including what Nathan Newbury had done. How he had taken them back into the past so that they could see the actual murder for themselves and then how he had given them facts not in evidence so as to influence their verdict. Once the DA heard that testimony he would have, as I said earlier, moved to have the verdict set aside for jury tampering. After all, maybe history recorded a not guilty verdict, but it did so only because of improper jury tampering. The DA would want a clean trial without jury tampering, so would request the verdict be set aside and the new trial.

Once the verdict was set aside, a new trial would begin--not from the point where the mistake occurred, but from the very beginning of the trial. Flash's trial would start all over again and two years from now...

I'll tell you what. I'll pretend I didn't write any of this, if you'll pretend you didn't read it and we'll all just leave well enough alone.



Another long time column maker of mine is Vigilante and Vigilante Annual # 1 returns him to my poison word processor. Actually, it's not anything Vig did, it's what the N.Y.P.D. did. After reading Vigilante Annual # 1, I know why New York City is always so short of money. It's paying out on personal injury suits filed by city inmates.

It's right there on pages twenty-three and twenty-four. Charlie Block, a man who has never been arrested before, has been arrested for murder. I won't fault the arrest. Even though we readers knew Charlie had been framed, the police didn't. The police had enough probable cause for the arrest, and it was proper. It's what they did after the arrest that bothers me.

The cops put handcuffs on Charlie, because, "in a jail, you gotta wear handcuffs,"and locked him in a cell, without taking off the cuffs. Now despite what the cops said, once you're in the cell you don't "gotta" wear handcuffs, they tend to think those steel bars kind of make the old handcuffs redundant. As proof of this I offer the fact that the seven or more inmates who shared Charlie's cell with him weren't wearing handcuffs. And not just any seven or more inmates who shared Charlie's cell with him. These were mean and violent toughs guys, who approached Charlie looking as if beating him up was the nicest thing they were do to him. The least the cops could have done was to leave Charlie unfettered, so that he could try to defend himself. But they didn't. Charlie was unnecessarily beaten up or worse, because the cops unnecessarily and improperly left him handcuffed in the cell with several other inmates. And so Mayor Ed Koch, New York City and, the NYPD find themselves named in yet another law suit.

With the type of help that poor Ed is getting here, it's enough to make him say, "Good night, Gracie." (Mansion that is.)


Hulk # 312 (a well-written story, by the way) gives me a chance to correct a classic misconception about the law: temporary insanity. We care about temporary insanity, because Bruce Banner's father, who was both a wife and child beater and who had beaten his wife to death, was acquitted of the manslaughter charge on the grounds of temporary insanity. We also care because, like a pretty wart hog, there really ain't any such animal as temporary insanity and I don't know of any state that still recognizes the plea.

Insanity is a legal term not a medical one. Insanity means that at the time of a crime, the person who committed it was so mentally ill that he didn't know what he was doing was wrong or if he did, he couldn't refrain from doing it so that he didn't have the requisite criminal mentality to commit a crime. Insanity assesses mental illness only at the time of the criminal act. The actor might have been mentally ill before the crime, doesn't matter. He might still be mentally ill after the crime; still doesn't matter Under insanity the only thing that matters is the actor's mental state at the time of the crime and whether it kept him from knowing right from wrong. We concern ourselves only with the question was the actor insane at the time of the crime and never have to worry about how long his insanity lasted. By definition it only lasted as long as it took him to commit the crime. Once the crime was over, the criminal was no longer insane, just mentally ill.

Temporary insanity is an old ploy that people used, when the criminally insane automatically went to asylums. Defendants could be claim they were insane, be found not guilty by reason of insanity, and then claim they weren't insane anymore to escape institutionalization. That's not necessary anymore. Nowadays, after a verdict of not guilty by reason of insanity, a judge holds a civil hearing to determine if the offender is still mentally ill and dangerous. If he is, then he will be institutionalized. If he isn't still mentally ill, even though he was when he committed the crime, the offender will not be institutionalized. Temporary insanity no longer serves any purpose, and, as I said, I don't know if any state still recognizes the defense. (There's a challenge to you, readers. Check out your states and see if it still recognizes temporary insanity. You readers in Ohio needn't bother. I already know Ohio doesn't.)


Daredevil # 223, the big Secret Wars II tie-in issue, features The Beyonder asking Matt Murdock to help him [the Beyonder, that is] incorporate and then buy the entire planet Earth as a little fixer-upper. Why did the Beyonder choose Matt? Because, according to the Beyonder, Matt has a "most profound sense of justice," so wouldn't let the Beyonder cheat, that's why.

Hey, Beyonder, about Matt's alleged profound sense of justice...

How profound can Matt's sense of justice be when, as I discussed a few columns back, Matt looked the other way over the fact that his girlfriend, Glorianna O'Breen, aided and abetted IRA killers commit their murders? That's not a profound sense of justice, it's a convenient one.

Later in the story, the Beyonder gives Matt back his eyesight as a retainer. When Matt decides he can't accept the job, he demands that the Beyonder make him blind again. Why? Because, as Matt explains it, if he keeps his sight, he'll grow to value it so much, he'll do anything the Beyonder asks just to keep it, and that will corrupt his "profound sense of justice," that's why.

Okay, I can accept that, provided I can get past my stated reservations about Matt having the profound sense in the first place. (Actually, I can't, but it sounded noble and profound, so I said it anyway. After all, the ability to ignore these little foibles is the mark of a profound sense of justice.) Still, irregardless of what I could or could not accept from what went before, you'd have an easier time getting a waterfront bar to accept an out-of-town check that getting me to accept the rest of this story.

The Beyonder relieves Matt of all obligation to him, but tells Matt to keep the eyesight as a gift; "Consider it fair payment, if you must, for the insight you have given me into a strange facet of human nature." (Apparently the Beyonder had never encountered hypocrisy before.) Anyway, Matt refuses. His sense of justice wouldn't let him accept anything which might compromise it, except, of course, a murderess for a girlfriend.

Matt could have kept the eyesight without ever compromising his sense of justice, it was his free and clear and without strings attached and in no way threatened his pronounced sense of justice; still considering that whole girlfriend, thing, it was a sense of justice pronounced with a thick Irish brogue.

I don't know why Matt ditched the eyesight. Okay, I know from a continuity point of view. Daredevil is blind and relies on his hyper senses. That's his shtick. Give him back his eyesight and he's just another Spider-Man; except without the proportional strength of a spider, the spider sense and the webbing. Without the blindness, all DD's got is a billy club. Oh yeah, and this pronounced sense of justice. Moreover, the Daredevil is blind ploy is growing stale. this could have been a good way to ditch that and at the same time have Secret Wars make some of those permanent changes we were promised over a year ago. To date the only "permanent" change is a new costume for Spider-Man which I predict he'll ditch as soon as the Marketing Department realizes that the sales of Spider-Man Underoos are down, because no one recognizes Spider-Man anymore.

Matt forces the Beyonder to take his eyesight back by threatening to sue, if he doesn't. Fortunately for our dockets, the Beyonder falls for this ploy and makes Matt blind again. Because, if you thought there were frivolous law suits in the world now...

Sue for restoring my eyesight? Not me, boy! Old, Beyondy would have to restore both my eyesight and my hearing before I'd sue him. If he also took about thirty pounds off me, I'd probably file criminal charges.

I mean, get serious. Matt was going to sue the Beyonder for restoring his eyesight. I don't care how good a lawyer Matt's supposed to be, can you see him trying to sell that cause of action to a jury?

"Mr. Murdock, you've brought this suit against my client, The Beyonder, claiming that he has caused you great harm. Would you please tell the jury just what it is he has done to hurt you."

"He restored my eyesight."

I figure the jury would be out a whole five minutes on that case. And they wouldn't even need the multiple cerebellum launderings and improper evidence that the Flash's jury required to do the right thing. The right thing, nowadays being ending a comic-book trial in under three months.

<< 11/28/2000 | 12/05/2000 | 12/12/2000 >>

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