A Fact-Check for the Four-Color World

Tuesday, March 08, 2005

The Ultimates #3: The Trial of the Incredible Hulk

The Incredible Hulk may have never gotten his day in court on TV, but this month he finally finds himself in a courtroom in the Ultimate universe. Granted, the reader is only treated to about four pages of that nine-day trial, but thankfully, two of those pages can be read for free at Mile High's Marvel Firstlooks.

The opening splash page of the issue of of the Daniel Patrick Moynihan U.S. Courthouse in Manhattan. This is a real, and relatively new, federal courthouse, as seen here:

I'm not sure if Bryan Hitch used the same angle, so you can be the judge of his attention to detail.

As in Manhunter, the defendant is on trial for murder in a federal court. Based on Matt's closing, it sounds like he must be on trial for all 800 murders. But I've dealt with federal jurisdiction before, so I'll talk about the trial's location.

Unlike Manhunter, I think Banner would have a good case for a change of venue. Banner, as the Hulk, killed some 800 people in Manhattan, which is where this court is located. Manhattan Island is only 12 miles long, so the Hulk's murderous rampage was practically up the street from the courthouse. There must be a phenomenal amount of prejudice against Banner there; I can't imagine him getting a much fairer trial in Manhattan than Osama would. Jury selection alone must have been a nightmare, trying to find twelve people who weren't somehow acquainted with a victim. Jurors may well pass by some of the buildings the Hulk damaged on their way to court. The protesters on pages 1 and 2 might well have walked there from their homes. Moving the case to a different venue, at least out of Manhattan, would certainly be merited.

The first thing that catches my attention in the courtroom are the multiple TV screens with Bruce Banner's face, because Banner is not in the courtroom but rather is sitting in a cell in the Triskelion. In real court, a criminal defendant has a right to be physically present at his trial, because of the Constitutional guarantee to confront witnesses.

The exception to this rule is when the defendant continues to disrupt the proceedings. Courts have been known to bind and gag defendants to keep them in line, but that tends to be more than a bit prejudicial in the jury's eyes. So if a defendant refuses to be quiet, he can be removed from the courtroom in order to ensure that the trial can continue uninterrupted. Bruce seems too quiet to be disruptive enough to be removed, and since we join the trial at its start, he hasn't even had time to do so.

But people in the real world don't transform into unstoppable monsters when they get upset, either. That's a situation our courts have never had to deal with, but which a comic universe court must address. If the defendant could unconsciously turn into a rampaging beast at any moment, then that would sure as heck be disruptive to the process. And given that the risks of that potentiality include the deaths of every person in the courtroom, then it's plausible that an Ultimate universe judge would require the defendant be kept in a secure location, with full observation of the proceedings (given that the Ultimates were watching the trial, I'll assume that Bruce had a TV to watch).

Just as in the regular Marvel Universe, Matt Murdock seems to be the only private attorney in Ultimate New York, as well.

Matt makes two objections during the first minute of the prosecutor's opening statement. Objections during opening statements can be tricky. Sometimes an attorney will say something out of line (like referring to inadmissible evidence), and an objection is merited. But unnecessary objections that get overruled can make an attorney look bad, moreso than a failed objection during questioning. I think Millar wanted to squeeze in some exposition through the objections, but as a result I daresay Matt doesn't make a good first impression with the jury here.

(On the flip side, while Matt was a little objection-happy here, he was just begging for objections during his closing argument later in the issue. Matt's soliloquy about why he and Foggy took the case, and how much they believe in Banner's good character, is personal opinion that has no place in a closing argument. Such comments encourage the jury to decide the case not on the facts presented, but on the feelings of the attorney. The prosecutors must've been napping.)

His first objection strikes me as odd. The prosecutor says that Banner committed his crimes "in his drug-induced Hulk state," to which Matt objects "My client has never been diagnosed as chemically dependent." No one said anything about dependency. The judge makes the right call, but Millar makes Matt look sloppy.

During his second objection, Matt is holding a folder about the super-soldier serum marked "Top Secret." Really secret, that. I wonder if it's in braille.

We cut back to the Ultimates watching the trial on television in the mansion. On the next page, they catch Thor on 60 Minutes talking about how the trial is being "televised 24/7."

State court trials are occasionally televised, as are some federal civil trials. But federal criminal trials are never televised. That's been a federal rule since 1946, about the time that broadcasters started asking to put television cameras in courtrooms. As far as the federal courts are concerned, cameras negatively affect witness testimony and lessen the dignity of the courtroom.

Even assuming that that rule is different in the Ultimate universe, the Ultimates themselves probably shouldn't be watching. Given that they were the ones who took Banner down, there's a pretty darn good chance they'll be called as witnesses. And unless Matt or the prosecutor had a lapse at the start of the trial, at least one of them should have asked for the court to impose "the rule," and exclude all witnesses from hearing testimony. Listening to other witnesses is considered to run the risk of tainting or affecting later testimony. And I can't imagine that someone excluded from watching the trial in person would be permitted to watch it on TV. Fortunately, we don't see them watching any more than a few minutes of an opening statement, so maybe they behaved themselves for the rest of the trial.

Millar avoids the problem of dragging the trial out by only showing an opening and closing statement. This avoids making too many trial mistakes (though you can see he still made a few), but it also leaves the reader to wonder exactly what Banner's defense was. We do get some hints, though.

For most crimes, including murder, there must be both an criminal act (actus reus) and a criminal intent (mens rea). If a defendant killed someone, but did so purely by accident, then they lack the necessary mental state to have committed murder.

The prosecutor's opening analogies about alcohol and drugs aren't really in his favor. "Is a homicide not a homicide if you're under the influence," he asks. Well, sometimes it is, sometimes it isn't.

Intoxication is not an excuse for killing. But proof of intoxication can raise doubt about the defendant's malicious intent to kill, drawing the 'mens rea' aspect of the crime into question, and thus resulting in the crime of manslaughter rather than murder. The defense can argue that the serum impaired Bruce's judgment, and he never formed a coherent criminal intent. However, he admitted to Betty Ross that he took the serum in order to provide the Ultimates with a high-profile combatant. Her testimony could go a long way towards showing that he became 'intoxicated' with the serum intentionally, for the express purpose of causing harm.

Both in the prosecutor's opening and Matt's closing, it's admitted that Bruce actually did kill 800 people. So the defense isn't denying the act. Instead, based on a few of Matt's comments, it seems that the defense argument was that Banner was not in control of himself during his rampage, and never meant to kill anyone. That Banner lacked the necessary mens rea. And so Matt more or less asks for a conviction on the lesser charge of manslaughter (presumably, 800 charges of manslaughter).

Clearly, the jury didn't buy that defense. 800 unintended killings is a big pill to swallow.

After Matt's closing argument, Nick Fury visits Bruce's cell with a bottle of wine, telling him that the case was thrown out on a technicality. They toast, and after having a drink, Bruce falls unconscious to the floor. Nick had drugged the wine, because in fact, Bruce was convicted and sentenced to death. His unconscious body is then transported to an aircraft carrier, which is then blown up with a nuclear bomb (in the Ultimate universe, they can afford to sacrifice their largest military ship for the sake of an execution).

Aside from the obvious issue of the appeals process, and Bruce not being allowed to watch his verdict being read (both of which play into Millar's ending, but could've been done differently), there's a more subtle error in this sequence. Death penalty cases have two jury phases: a trial phase, and a sentencing phase. At the end of the trial, the jury deliberates and decides whether to convict or acquit. If they acquit, then the show's over and everybody goes home.

But if they convict, then comes the sentencing phase when the jury must decide whether to impose a prison sentence or death. So the jury gets to listen to victim accounts, and family testimonials, and see other evidence that may not have been presented (or allowed) at trial. The defense will try to mitigate all of this by bringing in witnesses who can testify to the good character of the defendant, friends and family who'll say that he doesn't deserve to die. They could spend days just watching home movies from when the defendant was a kid.

And they may hear from the defendant himself, asking for mercy. Because just like during trial, the defendant has an absolute right to participate in his sentencing. He gets to watch and listen to everything up until the last of the evidence is shared and the jury makes its decision.

Bruce, clearly, was denied this right. Probably because from all appearances, he didn't have a sentencing phase. The jury looks to have handed down one decision: 'We find the defendant guilty, and sentence him to die.' The fear of a 'Hulk-out' might allow for his exclusion from the courtroom, but it wouldn't allow for him to be railroaded like this. He was never allowed the opportunity to ask the jury to spare his life, or to present any evidence in his favor. He never got the chance to defend his life in court.

And that's a technicality that should've gotten him out of the death penalty, at least for a little while.