She-Hulk #1-2: Jury Duty

One of the first problems to emerge in the trial of Charles Czarkowski is the little matter of pre-trial publicity. Y'see, Czarkowski shot a man while he was being videotaped, and the tape was subsequently run on all the major news shows. This necessarily taints the jury pool, since all of New York is not only aware of the facts of the case, but has actually witnessed them on TV. This makes an unbiased jury very difficult to come by.

Usually, the solution for pretrial publicity is to change the venue of the trial, and move it to another court in another county. But in the Marvel Universe, they have the Time Variance Authority, and with the TVA's aid here, the jury pool is selected from a time before the video hit the airwaves. Publicity problem solved.

If time travel were as safe and easy as it appears in the Marvel Universe, could it be utilized to provide an untainted jury pool in instances like Czarkowski's? Frankly, I'm at a loss to say that it couldn't be done. We're told that the prosecutors agreed to it, and the judge must have OKed it as well. So since there's nothing even analogous to time travel in our caselaw, I'm willing to accept it.

Unfortunately, just because time travel could be used to select a jury pool doesn't mean it was carried out correctly. There are rules governing the selection of jury pools that would still have to be respected. The jurors would still have to come from the venue of the trial (here, New York City), they would have to be relatively diverse demographically, etc. Then a jury of twelve would be selected from the jury pool.

But in #1, there seems to have not been a jury selection stage at all. When Jen and Pug walk into the courtroom, the TVA has already been pulling jurors out of the past. And Jen doesn't say anything until Clint Barton, aka Hawkeye, appears. Juries are selected by the lawyers for each side striking potential jurors until a group of twelve is reached; here, the lawyers don't seem to have done anything during the process. Jen was apparently ignorant that it was even taking place until she walked in mid-way.

(This shouldn't be taken to mean that we should have seen the jury selection. By all means, we shouldn't have. It's the second most tedious part of a trial, after jury instructions. But the events as depicted don't leave room for this stage, even if it's off-panel. It's as if the TVA selected people from the past who automatically became jurors, without any input from the defense, at least.)

Hawkeye, being the good upstanding hero that he is, tries to get out of jury duty. "I just don't do jury duty. Ever. Not my thing." He tries to tell the judge who he is, but Jen twice cuts him off. When Pug asks why she cared so much about that particular juror, she admits that Clint is one of her "closest and dearest friends."

(Quick vocab note. Jen twice refers to Hawkeye as a 'jurist.' 'Jurist' means 'legal scholar' (and often 'judge'), and is not synonymous with 'juror.')

Pug says that Clint should be dismissed, because keeping a friend on the jury is unethical. He's right, more or less. There's not a firm rule stating that a friend of counsel can't be on the jury (usually, the question is asked of potential jurors by opposing counsel), but Jen's conduct in actively keeping that fact from the court is definitely unethical. I don't think it would rise to the level of getting her disbarred, as Pug suggests, but there could be some sanctions imposed by the state bar.

As for the jurors themselves, now there we have a problem or two. Over the course of the two issues, we see several jurors in...interesting clothing. A Revolutionary War soldier. A Puritan woman. A cowboy. An American Indian in native clothing. An Elizabethan woman. A dust bowl farmer. And so on. It certainly makes for an eclectic group, and fun to look at, but they're legally and practically troublesome.

On the more practical side, it would be foolhardy to pull jurors from the 19th century to sit in a 21st century trial. Especially one that is going to involve photographic evidence, not to mention a time travel defense. These people would simply not be equipped to handle a modern American trial. They might be unbiased, but they're also necessarily ignorant of far too much to be good jurors.

Their appearances also suggest a more basic legal problem, going back to how a jury pool is selected. We're told in the story that at least two of the jurors were New Yorkers, so the jury pool would have to be limited to persons living in that county. But some of those outfits don't look like New Yorkers of any time period. Rather, they appear to have been pulled from all sorts of places, and that's not legally permissible, even with the time travel conceit.

Sorry that this wasn't particularly riveting, but next time I'll be addressing the trial itself, and I promise that'll be more interesting.

Oooh! That's Gonna Hurt!

She-Hulk #1

As promised, here's the final panel from the third-to-last page of She-Hulk #1.


I think by this point I don't even have to say anything about it. I'll just throw it open for comments and allow the readers to have at it. Anyone? Bueller?

Curses! Foiled again!

Young Avengers #9

I have really been enjoying Young Avengers despite the downright silly archery portrayals; the character work is interesting, realistic and multi-layered, and on the whole the book is a great approach to the concept of a team of teen sidekicks for the Avengers, sort of a Marvel version of the Teen Titans. Great book, and one I highly recommend.

Just please don't follow any of their advice as involves what we call "martial sports," which is to say, sports derived from combat skills. In this instance, it's fencing, not archery.

Here's the page in question:


The dialogue probably isn't visible at this size, so here's a transcript:

PANEL 1
KATE: (reading paper) "Young Avengers no more"?
TEACHER: (offstage) Put the paper down and turn around. Slowly.

PANEL 2
TEACHER: (offstage) When you're distracted, you leave yourself open to attack.

PANEL 3
TEACHER: And lately you're distracted all the time, Ms. Bishop. I'm concerned.

PANEL 4
KATE: And you're showing your concern...

PANEL 5
KATE: ...by trying to embarrass me in front of the other students?

PANEL 6
KATE: Good thing I don't embarrass easily.

Okay, so now we're all on the same page. What's wrong with this scene?

First off, where are the fencing masks? No competent instructor would ever allow students to bout without masks, let alone engaging in such dangerous behavior himself.

Far more serious, however, is the entire portrayal of fencing in this scene. Fencing is a "martial sport" as I said earlier, but it is not in the same category as other martial arts; it is taught as a sport, not as a form of self-defense or combat. There are a lot of rules involved in fencing, and failure to follow them results in penalties and possible disqualification in a tournament setting. The instructor in this scene appears to be teaching swordsmanship as self-defense, which would appear to be a fairly useless skill unless one is planning to hang a rapier from one's hip while strolling down Eighth Avenue. I rather supsect New York's Finest would take a dim view of such shenanigans. With that in mind, why is our fencing master here prattling on about defense against attacks?

In fencing, one knows when one is about to be attacked; it is usually preceded by the combatants saluting one another on the strip. Beginning an attack without the requisite salute is a violation; it shows disrespect for the opponent, the judges and the sport.

Once a bout has begun, knocking one's opponent to the ground is also a violation. In fact, if a fencer disarms an opponent, the bout is stopped and the fencer usually picks up the opponent's weapon and returns it to him/her. Pressing the advantage and continuing the attack is, again, a rule violation.

The goal of fencing is to touch one's opponent with the tip of the foil (I assume these are meant to be foils based on the bell guards and body language; the weapons themselves are wildly inaccurate here). Pointing the foil at the opponent's throat is nice as dramatic gestures go, but it doesn't really accomplish anything, what with the rubber tip on the end and all.

So what we have here is a dangerously incompetent instructor given to dramatic posturing, and a dangerously irresponsible student disregarding all the rules of the sport in an instructional setting. I wonder which of the other students will report them both to the Headmaster.

She Hulk #1: The Conference Room

She-Hulk #1 by Dan Slott and Juan Bobillo

She-Hulk #2 hit shelves today, so it would be remiss of me to fail to comment on the first issue. I've already finished the new issue, and since I find myself with enough material to fill several posts, I'm going to focus on one scene for now.

As of her last series, She-Hulk (or rather, her human half, Jennifer Walters) is an attorney with the New York firm of Goodman, Lieber, Kurtzberg & Holliway*. More specifically, she works in the firm's Superhuman Law division.

Halfway through the first issue is a conference scene. It seems that the Young Avengers caught the villains Ox and Boomerang peddling illegal guns, and now Shulkie's firm is representing the bad guys. Around the table are Ox and Boomerand, their attorney Mallory, a prosecutor, and the Vision and Stature (Ant-Man Scott Lang's daughter).

I'm not sure what kind of conference this is supposed to be exactly. We have attorneys for both sides, the defendants, and the effective arresting officers. And it's in the defense attorney's office. That's not a common lineup for informal meetings. Moreover, I'm not sure why they're meeting. I would say that they're meeting to work out a plea agreement, except that all the defense attorney has to say is that she's motioned to exclude all the evidence and "fully intend[s] to bring both Stature and the Vision up on harrassment -- and numerous other charges." That doesn't sound like someone open to a plea deal. And since she's a private attorney, I'm a little curious as to how she plans to bring criminal charges against the heroes.

Boomerang and Ox are presumably out on bond, since they've already been arrested and charged. So why are they both wearing their supervillain outfits and (at least in Boomerang's case) carrying their supervillain weaponry? Judges tend to impose a number of terms when a defendant bonds out of jail, and in the MU, I would expect that judges would have a standard 'No carrying super-weaponry' requirement for a spandexed defendant. Then again, maybe Boomerang just broke the terms of his bond.

The defense attorney says the Young Avengers caught the two villains selling illegal weapons out of a warehouse, but that "they had neither my clients' permission nor any right to search the premises." The prosecutor counters by saying the weapons were in Stature's line of sight, which is rebutted with the fact that Stature was ant-sized at the time and "a miniaturized person looking through a crack under the door hardly meets reasonable expectations of 'line of sight'."

I'm not sure if all this is referring to a scene in another book, and this is frankly a little short on details. The gist of it has to do the legal consequences of evidence found during illegal searches. Any evidence found in an illegal search is deemed 'fruit of the poisonous tree,' and cannot be used to show guilt at trial. And since it sounds like the prosecution's entire case is built on what the Young Avengers discovered when they entered the warehouse, there's not much hope of the prosecution winning if the evidence of the weapons is excluded.

But based on what's given, the defense attorney's 'illegal search' claim has a few holes. One is that the search and seizure requirements of the Fourth Amendment only apply to the government, and the Young Avengers are (as far as I know) not government agents. The heroes might be guilty of trespass or breaking and entering (as mentioned in the issue), but that doesn't mean what they found can't be used in the villains' trial.

Also, I doubt that Ox and Boomerang have the necessary standing to object to the search. For a search to be illegal, the person must have had a reasonable expectation of privacy in that place. Unless these two are villains of the Dr. Drakken variety, and lease their hideouts, I think it's fair to guess that they didn't own or rent or lease that warehouse. (Then again, I just read the new JSA: Classified, where the Injustice Society does in fact lease their headquarters.) They were more than likely squatters utilizing an abandoned facility, and if they have no legal interest in the location, then they have no legal expectation of privacy there. Thus, the search would be OK even if the police did it, and the evidence would stay in.

When the prosecutor mentions Stature's point of view, he is referring to the 'Plain View' doctrine. One exception to search and warrant requirements is if the evidence was initially seen from a legal vantage point. For instance, the police don't need a warrant to search your car if they can see a person tied up in the back seat when they look through a rear window. There are also 'Plain Smell' and 'Plain Hearing' exceptions, which is why walking drug dogs around your car isn't an illegal search.

Now this is the best question to come out of the scene: does a miniaturized person looking under a door qualify as 'Plain View'? It's an easy to imagine scenario, and one the Marvel Universe would naturally have to confront and answer.

The Supreme Court has handled a number of 'Plain View' cases, but alas, none to my knowledge involve microscopic cameras. As far as other superpowers go, there is a fairly notable case called Kyllo v. US, where the Court said that a thermal imaging device pointed at a home constituted an illegal search. But homes carry a greater sanctity, and a greater amount of Fourth Amendment protection, than warehouses. Simply put, this is a good question, and depending on certain facts not clarified (e.g., was Stature beyond the plane of the door's exterior), I could see a court going either way on it. After all, Kyllo itself was a 5-4 split**, so intelligent minds could well disagree on Stature's scenario.

Finally, there's a little mention a couple of pages later about a bargain being struck, which involved "the bad guys got their shipment of weapons confiscated." I'm not sure how this was an upshot, since illegal weapons would be confiscated regardless of a conviction. It sounds like the bad guys managed to strike a deal that didn't involve giving up anything on their part.

That's it for this time, and I think it's more than sufficiently long for a single post. And I still have the whole trial to go.

* The firm's name is one big Marvel reference. Martin Goodman founded Marvel Comics, and I'm sure that Stanley "Stan Lee" Lieber and Jacob "Jack Kirby" Kurtzberg need no explanation.

** One of the neat aspects of this case is how the votes broke down. The Justices who said that the thermal imager was an illegal search were Scalia, Thomas, Souter, Ginbsberg and Breyer. The Justices who said the search was OK were Stevens, Rehnquist, O'Connor and Kennedy. It helps to remind us that the Justices aren't as one-note as their critics would claim.

Diplomatic Immunity

Smallville: Exposed

A little long in coming, perhaps, but this post concerns the Smallville episode from two weeks back. Chloe takes a scared phone call at the Daily Planet, and when she and Lois go to meet the mysterious caller, the woman is run down and killed by a speeding vehicle.

Long story short, she is revealed to be a stripper, and several strippers from the same exclusive club have gone missing over several months. The culprit turns out to be the son of a foreign diplomat, who ends up abducting Lois and then gets caught by Clark. Detective Maggie Sawyer and the Metropolis P.D. arrive at the scene, but tell Clark and Lois to let him go. Maggie explains in a rather convenient quote:

"I'm afraid Mr. Lyon is free to go...As a consulate guest in our country, Mr. Lyon can't be arrested or tried for any crime he commits on our soil. Even murder."

So did Smallville get this right? Of course not; it's Smallville. This line comes moments after a scene where Clark ropes a helicopter out of the sky, with Lois inside, and nobody catches on to the fact that he has powers. You can't expect them to get something like diplomatic immunity right when they can't help but botch the mere notion of hiding a secret identity.

The concept of diplomatic immunity has been around for centuries, but the general law of it was codified by the UN in the Vienna Convention on Diplomatic Relations in 1961 and on Consular Relations in 1963. And it can let you get away with murder. But not at all like the way Smallville shows.

First, the level of diplomatic immunity is different depending on what kind of diplomat you are. If you are an ambassador and work out of an embassy, neither you nor your family can be arrested, detained, or prosecuted for a crime in your host country.

But as the dialogue says (and as was evidenced earlier in the episode by Chloe's picture of the killer's license plate), he's the son of a diplomat who works in a consulate, not an embassy. This makes a fair amount of sense, as Metropolis is very likely to have a consular office, but is all but guaranteed to lack an embassy. And consular agents can be arrested and prosecuted for crimes, so Maggie's statement is flat-out wrong.

So, for the sake of argument, let's assume his dad did work for an embassy. Would he be entitled to diplomatic immunity then? No, because while diplomatic immunity does cover family members, the US defines 'family member' to include children only up through 23, if they are in school (up to 21 otherwise). Mr. Lyon is clearly over 23, so he could still be arrested and prosecuted even if his dad was an ambassador.

But maybe he just looks really old for his age. So if he was the 20-year-old son of an ambassador, then could he get away with murder? Well, maybe.

Perhaps the most infamous time this happened was 21 years ago in the UK, when two Libyan ambassadors shot and killed a British policewoman. The two were not prosecuted, but they were expelled from the country, and the UK cut off diplomatic relations with Libya.

Usually what happens in instances of truly heinous crimes (as opposed to the relatively common instances of double-parking and traffic violations), the host country asks the diplomat's home nation for a waiver of immunity. The US has apparently done this on several occasions, and such waivers are often given. I've read that there was a Belgian diplomat who murdered two people in Florida some years back, and Belgium was reluctant to waive immunity because Florida has the death penalty. But once the death penalty was conclusively eliminated as a possible punishment, Belgium issued the waiver, and said diplomat is now serving a 50-year sentence.

Even if the waiver is not granted, that does not mean the murderer is simply allowed to walk away as if nothing happened. The host country will declare him persona non grata, and he will have a limited amount of time to remove himself from the country forever (like the Libyans). And once he returns to his homeland, he may still face punishment from his own government for his crimes (again, rumor has it, like the Libyans).

So Maggie was wrong. A consulate guest in our country can be arrested and tried for a crime committed on our soil. And even if he had the highest level of diplomatic immunity possible, we still wouldn't turn a blind eye and allow a serial killer to walk free without repercussions.

One final and non-legal thought: I was sorely disappointed when, after being identified as the "son of a diplomat," Mr. Lyon's home country was not revealed to be Vlatava or Bialya or one of the other myriad fictional DC nations. Why pass up such an obvious opportunity to make an easy reference? Plus, it'd be a lot easier to believe that a country like Bialya would refuse a waiver of immunity.

(Hat tip to MacQuarrie)

Legal Aid

Fairly regularly in his column, Bob Ingersoll would address legal questions from comic issues that had been submitted by readers. That can be handy, especially since I buy less than a dozen new issues a month. I've gotten a couple of those over the past several months, but it occurred to me that I don't think I ever actually asked for questions. So now I'm remedying that.

I already have the new She-Hulk #1, and I've ordered Slott's first She-Hulk tpb from DCBS. I'll be taking on Wonder Woman #222 after I can get another look at it. I'm going to get my hands on Daredevil: Redemption eventually (I keep losing its auctions on eBay). And there was a good question raised in the Silver Agent comments that I'll be addressing in a separate post.

But what other recent comics have raised legal questions? Any trials in Daredevil? Arrests in Powers? Send me a description and the question (and, if you'd like to go the extra mile, a scan) at lorencollins [at] yahoo [dot] com, and I'll do my best to share the answer.

Astro City: The Trial of the Silver Agent

Recent issues of Astro City: The Dark Age finally revealed the fate of the Silver Agent. He was expertly framed for murder, convicted, and executed before the truth came to light.

We didn't see much of the Silver Agent's trial, and his legal experience is only specifically addressed in a handful of panels over three issues. But it's enough to make a couple of points.

We see the Silver Agent's "crime" on the opening page of Astro City: The Dark Age #2, as the Agent shoots the "Mad Maharajah" of Maga-Dhor in Paris, while yelling "Sic Semper Tyrannis" (the words famously spoken by John Wilkes Booth before he shot Lincoln; personally, I thought that was enough to suggest something was screwy). In the subsequent attempt to subdue the Agent, two American security officers were killed.

It's mentioned later in the issue that the Agent briefly escaped custody while "being held pending trial in an international court." I'm not absolutely certain (given that this involves early '70s international law), but I don't think that's very likely, if it's possible at all. International criminal law, even today, tends toward extreme offenses, like war crimes and genocide. A mere murder, even if it's an assassination of a national leader, is territory for a nation's courts, whether it be the nation of the victim, the offender, or the state where the act took place.

And that's what happens, because the Silver Agent ends up being tried and convicted in an American federal court. That's perfectly fair, because the US has jurisdiction over both the Maharajah's murder as well as the deaths of the two American officers.

In the Maharajah's case, he is an "internationally protected person," and the Agent is an American national, so jurisdiction exists. As for the two officers, there we have the foreign murder of American nationals. (It's never actually said if the officers' murders were among the charges, but they'd be fair nonetheless.)

There's a little matter of timing. As illustrated by the newspaper story linked to above, the Silver Agent was convicted in February 1973, and all indications point to him being executed not too long thereafter.

In the real world, the death penalty did not exist in the United States between 1972 and 1976. In the 1972 case Furman v. Georgia, the Supreme Court held that execution constituted cruel and unusual punishment. Some states continued to hand out death penalty sentences, but the carrying out of those sentences was not permitted until the Supreme Court's 1976 decision Gregg v. Georgia re-opened the door for executions.

And even then, the federal death penalty was not revived until 1988. Not that the federal government executes a lot of people anyway; they didn't execute anyone between Victor Feguer in 1963 and Timothy McVeigh in 2001. There have been two federal executions since McVeigh's, though.

Also, the story makes a couple of references to the Silver Agent's separate sentencing hearing, after the jury had convicted him of murder. While that is the way death penalty cases are always handled today (take note, other writers), I don't believe such bifurcated trials were approved until the 1976 Gregg case.

I could try to argue that this contradicts the depiction of the death penalty in Astro City, but I don't think it does. In a world of psychotic costumed killers, it's easy to imagine a Supreme Court that never handed down the Furman decision. Given the changing public opinion of superheroes that the story depicts, there would surely have been the political pressure to employ the rarely-utilized federal penalty. And in a country that never abandoned the death penalty altogether, it's readily conceivable that they could have made some procedural advances a few years before we did.

Anyhow, the issues correctly refer to the potential for requesting clemency from the President. Since this involves a federal crime, it would have been wrong to talk about getting a pardon from a governor. And I think I've said before that I liked seeing the Agent on trial in his real identity, and not sitting there masked in court, with the court addressing him by his superhero name.

The biggest question I have about the trial relates to what we saw nothing of, and that was the Silver Agent's defense. His other actions, including his refusal to appeal or to seek clemency, play into the story's hints that the Silver Agent thought he needed to die. But I'm still naturally curious about what his lawyer did at trial. Did they point out the Agent's seeming total lack of motive? His odd 'possessed' behavior at the scene? Maybe the only reason it went to trial at all was because you can't plead to the death penalty. But that's all my own obsessiveness; Kurt had another story to tell, and I daresay a more interesting one.