She-Hulk #5 (Year 2)

This is Sandy Hausler, a new addition to this blog. Loren asked me to start with my thoughts on She-Hulk #5. First off, I should say that I am a big fan of this rendition of She-Hulk. I love the idea of lawyers practicing superhero law. (I'm also a big fan of Batton Lash's Supernatural Law, a comic about lawyers representing monsters -- If you've never seen it. check it out.) But I'm also a lawyer, so it bugs me when Dan Slott makes mistakes in the law, which he could have avoided with a little research. (I don't think Dan is too pleasedwith me. We've had an ongoing discussion of these errors at the Comic Book Resources website.)

Now to She-Hulk #5. Shulkie has just finished an adventure concerning the Time
Variance Authority (I'm not going to talk about that. It's off topic. But I'm sure the first four issues in the series are easily found.) The TVA has asked Jennifer to take a former Avenger back with her -- The Two Gun Kid. All right. I'm in heaven. Two Gun is a great favorite of mine, and the chance to see him on a regular basis is a fanboy's dream come true. And let's not forget. Mat is a lawyer, and he's soon finding a place at Goodman, Lieber, Kurtzberg & Holliway. But not as a lawyer. And he may never practice law again. He's a bit behind on the law.

I'm intrigued by the possible relationship between the Kid and Mallory Book. We'll see how that develops.

And the law . . . Well, Reed Richards can control the harvesting of unstable molecules if he has a patent. But does he? That would mean revealing the secret of their creation by filing the application. And after a period of years, anybody could do it with impunity. Reed cannot get an injunction without a patent. And since the Court denied the injunction, it appears the action was not based on a patent, which makes me wonder why Shulky's firm even took the case. It's a dead loser. And, wasn't there a story in FF recently where Johnny granted a license to unstable molecules, indicating that the process is patented? Well, don't expect to find out by learning this issue. But since Reed loses, I guess Dan got it right (as long as there is no patent).

I really liked this issue. Hope you did.

I expect to be chiming in more regularly, so I'll see you all soon.

She-Hulk #4: Web of Lies

She-Hulk #4
Writer: Dan Slott
Artist: Juan Bobillo

Synopsis: Pug and Jen convince Spider-Man to sue J. Jonah Jameson (and the Daily Bugle) for libel. At trial, they call John Jameson, Betty Brant, Robbie Robertson, and more as witnesses to testify to Jonah’s history of printing lies about Spider-Man in the Bugle. After a brief interruption by the Scorpion, Pug calls Peter Parker to the stand, and after a few questions, announces that he’s adding Parker as a defendant in the case. The next morning, Spider-Man tells Pug and Jen that he wants to settle, and instead of asking for money, he merely asks that Jonah and Peter have to hand out apologies in public, while dressed in chicken suits.

Analysis: It’s an question Spider-fans have postulated for years. With all the horrible things that J. Jonah Jameson has printed about Spider-Man in the Bugle, would Spider-Man have a valid libel claim?

Now, anyone who’s seen the first Spider-Man movie remembers that slander is spoken; in print, it’s libel. The allegation of libel involves the charge that the defendant has been printing harmful lies about the plaintiff. We certainly have that here, given all the incidents over the years where Jonah has implicated Spider-Man as a criminal, as cited in the story.

The story also has Pug point out the second-most important aspect of a libel case such as this. As the trial starts, Pug says “They’re gonna keep pushing how, by wearing the tights, he’s making himself a public figure…but that don’t give ‘em the right to print flat-out lies…”

The law has two different standards for libel. One is for ordinary, private individuals like most of us. Merely printing injurious false statements about a private person can be enough to substantiate a libel claim.

But there’s a higher standard for public figures, those persons “involved in issues in which the public has a justified and important interest.” Public figures are naturally more newsworthy, and when one is the subject of media attention, it’s possible for false statements to accidentally slip past the editors. And when mistakes happen, public figures are more capable of countering such false statements than us normal folk.

So when it comes to libel and public figures, the courts require that the defendant have demonstrated some actual malice in printing the false material. Making a mistake isn’t enough; the defendant generally must have had good reason to know that what they were printing was a lie, and went ahead with it anyway just to hurt the plaintiff.

The comic doesn’t dwell on the issue, but I think it’s fair to declare that Spider-Man is a public figure. He is definitely someone in whom “the public has a justified and important interest.” So Pug and Jen have to show that Jonah printed all those anti-Spider-Man stories maliciously.

And frankly, based on Jonah’s history, I don’t think that would be much of a problem for them. The testimony Pug gets from Betty and Robbie and a police officer does a great job of illustrating the kind of intentional malice that Jonah had toward Spider-Man. Betty’s testimony (“He told me he wanted to pin [Dr. Doom’s attack] on Spider-Man.”) is particularly good in this respect.

Unfortunately, Jonah’s defense doesn’t seem as strong as Pug’s prosecution. Jonah’s lawyer seems more concerned with pointing out Spider-Man’s past troubles than in actually rebutting the evidence of malice. Maybe his point was to imply to the jury that Spider-Man’s history justified Jonah’s overt and intentional lies about Spider-Man’s other activities. It doesn’t strike me as a very strong defense, but then again, Jonah did pretty much do exactly what Pug’s accused him of doing, so there’s not a lot to work with.



Naturally, there were various other mistakes in the issue. The biggest one, and the one most harmful to the plot, is when Pug adds Peter as a defendant mid-trial. Can’t be done. It’s as simple as that. Imagine the situation from Peter’s perspective (and we need to do this as the court treats it, where Peter and Spider-Man are not related persons). The plaintiff has already called several witnesses, and Peter’s had no opportunity to cross-examine any of them. He’s had no time to look at evidence, or gather evidence of his own, or even to hire an attorney. There’s been a whole day of trial that he hasn’t even been privy to. He just shows up to testify in a normal court case, and is suddenly informed that the plaintiff wants to put him on trial too, starting immediately. It brings the case to a quick end, but it’s a legally absurd and impossible plot device.

(Not to mention that if Pug had proposed this earlier in the litigation, while it was still possible to add Peter as a defendant, it would be Spider-Man’s call, not Pug’s, as to whether Peter should be added. If Spider-Man said ‘no,’ Pug would have to oblige.)

The trial also flip-flops on who’s presenting their case. Pug calls several witnesses, then Jonah’s lawyer calls Jonah, then Pug calls Peter. I suppose Pug could be calling Peter as a rebuttal witness, but I can’t imagine why. And because this is a civil suit, Pug would’ve called Jonah as a witness himself, and wouldn’t have waited for the defense to do so.

Maybe the law is different in New York, but here in Georgia, we don’t normally use process servers to deliver subpoenas to witnesses. It’s possible if the witness is stubborn and refuses to cooperate, but that’s not the case with John Jameson or Peter Parker, so their subpoenas should have just been mailed to their homes.

And it’s petty, but it seems that Jonah got special permission to smoke in a New York City courtroom.

Finally, Jonah makes an excellent point when Spider-Man is called to the stand: how can the court know that the masked guy on the witness stand is actually the authentic Spider-Man? Masked superheroes testifying on the stand is a conceit that’s rather hard to justify under real-world law, but Slott concocts a decent enough explanation. Pug uses an Avengers scanner to verify Spider-Man’s identity through a federal database. I’m not sure the method would hold up under scrutiny (especially given Spidey’s history with clones), but I like the conceit so much that I’ll give it a pass. The fact that the Avengers have ties to the federal government lends the method some added credibility that, say, the Superbuddies wouldn’t be entitled to. And it’s a lot better than Jeph Loeb’s method in the “Challengers of the Unknown” mini-series, where Superman verifies his identity by lifting the jury box.



Previous She-Hulk (Vol. 1) Reviews
She-Hulk #1 (Vol. 1)
She-Hulk #2 (Vol. 1)
She-Hulk #2b (Vol. 1)
She-Hulk #3 (Vol. 1)

She-Hulk #3: The Ghost of Bailey Briggs

She-Hulk #3
Writer: Dan Slott
Artist: Juan Bobillo

Synopsis:
Bailey Briggs is an aeronautics engineer who is murdered at his job. Bailey's boss, Maxwell Newton, is charged with the murder, mostly because every last bit of the physical evidence points to Mr. Newton (i.e. fingerprints, voice recording). In fact, the only exculpatory evidence in Mr. Newton's favor is the testimony of Bailey Briggs.

You see, the ghost of Bailey Briggs has continued to roam the earth, and contacted Dr. Strange (see last issue) for help. Mr. Newton's attorneys have come to She-Hulk's law firm because "the courts won't acknowledge [Briggs'] existence," and thus won't allow his testimony.

At the trial, it's said that Bailey's testimony has been excluded because "He's dead, and as a dead man, he has no rights in a court of law." Jen calls The Thing to the stand, and through his testimony, she manages to convince the court to allow Bailey's testimony because of the possibility he might come back to life at a later date.

Analysis:
CBR poster, and new SoD member, Sandy Hausler has had several exchanges with Dan Slott about the law in She-Hulk issues. Among Dan's assertions is that the presence of the superhuman and supernatural in the Marvel Universe would have had such an impact on the MU's legal history, that it's unfair to judge the law as presented in comics by our legal principles.

My (and Sandy's) response to that argument is for another time, but the reason I bring it up now is because I can't help but think that such a position runs directly contrary to the kind of legal debate we see in this issue.

Our legal issue is simple: can a ghost testify in court? In particular, can the ghost of a murdered man testify at his own murder trial? This comic has it that the MU's answer is "no." That the dead have no rights, and that only living persons (or persons who may live again one day) may testify in court.

Once again, it's an issue real courts don't have to tackle, because it's inherently supernatural. The closest we get to such a restriction is that the rules tend to refer to witnesses as "persons." The courts have never formulated any rule requiring witnesses to be alive, because there's never been any alternative to beg the question.

So where does the Marvel Universe get such a rule? This is a universe where the courts would regularly grapple with non-humans. Let's ignore the obvious extraterrestrials and secondary earth races (e.g. Inhumans, mole men, etc.). Take Vision, the robot. Or Wonder Man, who at one point was essentially a post-human bundle of energy. Or Warlock, the sentient computer. Or Douglock, who (IIRC) was more or less Doug Ramsey's mind "reincarnated" into Warlock's tech body. And does Marvel have an equivalent of Deadman, someone who interacts with others by possessing people?

These are the kind of circumstances that the MU courts would be ironing out from day one. And I can't think of any legal principles that would keep them from testifying in a real-world court. They're competent, they're capable of giving intelligent and informed responses, and they can be cross-examined. There's nothing to distinguish them from a normal human witness aside from what their bodies are made of. And the same can be said of Bailey Briggs.

But none of them fit the standard that seems to be on display in this comic, which seems to suggest that none of those characters would be allowed to testify in an MU court. Either that, or they've developed some weird jurisprudence that allows you to testify if you return from the dead as purple energy or as a reincarnated robot, but not as a simple ghost.

It smacks of discrimination against ghosts, frankly.

So for all the hoopla on the page, I honestly can't imagine this question being a big deal in the Marvel Universe. And even if this was the first time it came up, only allowing him to testify because "he might rejoin the living one day" is just not the best reasoning.

Plus, for the record, I can think of at least one right that a dead man possesses: his right to property. That's why we have estates. If the dead didn't retain a legal interest in the property they left behind, determining inheritances and future ownership would be a lot more difficult.

Finally, the procedural stuff. A few panels before the defense calls Ben Grimm to the stand, the setting is established as "Monday. Ten minutes before the Bailey Briggs murder trial." There's no indication of any significant jump in time, so why is the defense calling witnesses early on the first day of a death penalty trial?

Second, there's an amusing panel where a court officer complains that he's having trouble swearing Briggs in, because Briggs' hand just passes through the Bible. Admittedly, it makes for a cute scene. But unless New York courts are substantially more archaic in this respect than down here in Georgia, witnesses aren't required to place their hand on a Bible anymore. Normally, the witness just raises his right hand.

Third, the final sequence of the comic doesn't add up procedurally. What makes it even odder is that the reasons why it doesn't add up are actually stated in the comic. After Briggs' ghost accuses his ex in the courtroom, the police decide to interrogate her. Jen watches this questioning, and chats with Mallory Book. Mallory points out "The case is closed...Reasonable doubt is in the bag. We've won." Jen suggests that Briggs' allegation doesn't sound right, and that they should investigate his claim.

(Apparently, this means that they didn't bother to find out what their own witness was going to testify to until he said it in court. Sloppy lawyering.)

Mallory says that's not necessary, and Jen replies:



So they go investigate, and afterwards (the captions specify that only hours have passed), we see Mr. Newton say "But I got off! The jury said I was innocent!"

How a death penalty case got all the way to a jury verdict in one day is amazing. Especially when Jen and Mallory cut out to investigate Briggs' claim. Then again, this is a case that had defense witnesses on the first day.

But more importantly, if the jury did manage to return a not guilty verdict, then why was Jen able to worry Mallory that they could still lose the case? If the jury's made its decision and sided with the defendant, then nothing the prosecutor does can undo that.

Next issue: Spider-Man v. J. Jonah Jameson

Taking Sides

The Eye of Agamotto Commands You To Confess!

One scene I glossed over from She-Hulk #2 was the Dr. Strange cameo. As it presents a neat little legal question, and had nothing to do with the rest of the issue, I wanted to talk about it separately.



Dr. Strange is seen in a small meeting at the office of Goodman, Lieber, Kurtzberg and Holliway. It seems that one of the firm's clients, Nicholas Wilkes, was arrested for stealing Strange's Wand of Watoomb. The police found the Wand on him when he was arrested, and he confessed to the crime after being read his Miranda rights.

However, the guy's lawyer, Mallory Book, points out that Wilkes was still under the influence of Strange's Eye of Agamotto. Presumably, this means he couldn't help but tell the truth. The cop then learns that Book has gone to the D.A. and gotten the charges dropped.

Involuntary truthfulness isn't something our courts commonly deal with, but it presents an interesting dilemma in supernatural law. How would the courts rectify the Constitutional right to remain silent with the physical inability to lie, and possibly the irresistable compulsion to confess?

First, a little familiar legal background. The Constitution guarantees us, among other things, the right against unreasonable searches and seizues and the right to not be compelled to be a witness against oneself (aka, the right to remain silent). For a long time, American law struggled with what to do when these Constitutional rights were violated when the state was gathering evidence against a person in a criminal matter. Rather than leave it up to civil suits between the individual and the police, the Court created the Exclusionary Rule. If evidence was gathered through an illegal search, or a confession obtained through force, then that evidence was excluded from use at trial. Law & Order invokes the Exclusionary Rule at least once per episode, although its judges are a little more happy to exclude evidence than real-life judges are.

So that's what we have at play here. A confession, obtained by police from a properly Mirandized defendant, and the confessor subsequently claiming that his statement was involuntary due to mystical influence. Was his right to remain silent violated? Does the Exclusionary Rule apply to his confession?

My first thought was to compare it to situations when the police interrogate a suspect who is intoxicated or high, and consequently has his mental defenses lowered. So long as it wasn't the officers who induced the intoxication, such confessions are often admissible.

But that didn't seem satisfactory. The evaluation of drunken confessions turns a lot on whether the confessor intelligently understood the legal consequences of the statements he was making. Moreover, a person who is drunk or high enough to not appreciate their situation is likely noticably drunk or high to the interrogating officer. So when the questioning is taking place, the officer is fully aware that he's more or less taking advantage of the person's condition.

Meanwhile, the circumstances surrounding our Dr. Strange thief are somewhat different. We aren't provided with all of the details, but it doesn't sound like the Eye rendered Mr. Wilkes stupid; merely truthful. And based on Book's comments, it sounds like the detective had no idea whatsoever that Wilkes was under the Eye's influence.

I ended up stumbling across a surprisingly useful Supreme Court case, Colorado v. Connelly. In the case, Francis Connelly approached a police officer one day and confessed to having killed a man. The officer gave Connelly his Miranda warnings, and made sure that he understood what he was saying, but Connelly insisted that he wanted to clear his conscience and confess.

Connelly was eventually diagnosed with chronic schizophrenia, and before trial his attorneys motioned to have all of his confessions excluded. The state courts agreed, saying that his confessions with "involuntary" and lacked "free will."

If that's where the story stopped, and where our caselaw stood today, I could say with a fair degree of certainty that Eye of Agamotto-compelled confessions would be similarly suppressed. But the story didn't stop there, as the case was appealed again to the Supreme Court.

The Supreme Court reversed, rejecting the state's reliance on the presence of "free will" in confessions. Rather, the Court said that for a confession to be "involuntary," there must be police coercion. The Constitution's provisions are there to protect the individual from the state, and the Exclusionary Rule exists to more or less punish the state when it oversteps its authority. When the police didn't push the defendant to confess, and didn't even have reason to know why he was willing to confess, then that doesn't fit the purpose of the Exclusionary Rule.

I think it's the same with the Eye of Agamotto. The police didn't force the guy to tell the truth, and they probably had no idea about the Eye or its influence. Without any misconduct on the part of the police, the Eye-induced confession would probably be admissible. But it would be a whole different story if the police had Dr. Strange cast a truth spell on suspects during interrogation.

Finally, I have a couple of residual comments on the scene. The persons in the meeting appear to be the defendant, the defense attorney, Dr. Strange, and a police officer. That's an unusual group to be meeting before a trial, and even more unusual when we're told that the charges have already gone away. So what was the meeting for? More importantly, the D.A.'s decision to drop the charges is grossly premature. Challenges to the voluntariness of confessions are handled at so-called 'Jackson v. Denno Hearings,' named for the case that established them. Both sides present their arguments to a judge, who decides whether the confessions is allowable. It's pure surrender for the prosecutor to just drop the case because the confession was challenged, especially when the law favors the state.

She-Hulk #2: Danger Man

She-Hulk #2
Writer: Dan Slott
Artist: Juan Bobillo

Synopsis: Jen Walters (aka She-Hulk) has her first day of work at Goodman, Lieber, Kurtzberg, & Holliway, and also takes on her first client. His name is Dan Jermain, and he was a Roxxon safety inspector who was knocked into a radioactive vat, from which he emerged as the atomic superman Danger Man. Dan wants to sue Roxxon for the changes he underwent, and the toll that's been taken on his life and marriage. In the end, Jen obtains an $85 million settlement.

Analysis: In this issue, Slott really starts having fun with the oddball aspects of superhuman legal practice. Salvage rights involving Atlanteans, territorial disputes among the Moloids, etc.

The biggest goof comes in the form of the introduction of what became an ongoing element of the series, the law office library's "long boxes." Since Marvel Comics exist as licensed products in the Marvel Universe, and since they still bore the seal of the Comics Code Authority until 2002, then they are deemed legal documents and are automatically admissible in court. It's a clearly preposterous notion, but it's so charming that it can't be frowned upon.

Besides, Jen implies at one point that the events depicted in the comics were all true events, merely adapted into printed form. Given that they're 'real' events, an attorney could still use them to bolster his argument. It would just be a bit more work-intensive than citing a comic book.

Slott does a good job of demonstrating how a superhero origin isn't necessarily all it's cracked up to be. Dan may be an atomic superman, but he's just a working class guy without any interest in dressing up and fighting crime. Imagine 'Bob Parr' from The Incredibles, without the costume.

We're provided with glimpses of how Dan's life has changed. He's uncomfortable in public. People on the subway stare at him suspiciously. His super-hearing picks up everyone's whispers. He's outgrown all his old clothes, and he regularly rips his new ones. His house is falling apart because every agitated motion can result in a broken door or a hole in the wall. He's lost his insurance because they refuse to cover superhumans. He nearly killed his wife when he rolled over in bed, but she still ended up with broken bones. His marriage is fraying at the edges, and his daughter resents him. Not to mention that he appears to have a permanent glow about his head and hands.

So yes, I think there's a good argument to be made that Dan's life has been negatively impacted by the accident. Granted, it might be a hard sell to a jury full of people who think it'd be swell to be superpowered, but it's surprising the Roxxon lawyers don't seem to even acknowledge the personal damage done.

It crossed my mind to wonder why Dan's complaint wasn't being handled through an ordinary worker's compensation claim. I think that that might be the right situation for the Roxxon lawyers to respond as negatively as they did. Worker's compensation typically exists for measurable physical and medical damages, not for personal and emotional suffering. In such a forum where the question is always "How much were you hurt?," it would be reasonable to say that making a person stronger doesn't merit a recovery.

I do have to take issue with Jen's proposed method of proving damages. She suggests to Dan that they employ the Jean Grey precedent, and suggest that Dan Jermain died when Danger Man was born. This suggestion totally changes the nature of Dan's claim against Roxxon, turning it into a wrongful death claim. It's not a terrible idea, and it could definitely be applicable in the context of certain origins (see Swamp Thing, Will Peyton Starman). Sometimes a character is completely remade by his origin.

However, I don't consider it very persuasive in Dan's case. Dan has been changed physically, but he's clearly the same person inside. He still feels the same way about his wife and daughter, and they still view him as the same man. In fact, his wife is outraged at Jen's suggestion that he's not the same person. His mind wasn't erased and recreated, and his fall into the radioactive vat didn't produce a second body and leave the first one to decay. Unlike the hybernating "real body" of the Jean Grey precedent, Dan specifically states earlier in the issue that he felt his body changing. He's the same mind in the same physical body (albeit an amped-up body), and that's something that the defense would lean on and the jury would see. Jen may be keen on it, but I don't see a wrongful death claim working here.

Plus, if it's determined that Dan Jermain did die when he fell into the vat, then Worker's Compensation should come back into play. Worker's Comp typically provides for benefits if a worker dies on the job, although accepting those benefits usually excludes the recipient from suing the employer.

Whatever Jen ended up arguing, the case ends with an $85 million settlement. I'm a little confused as to why it's referred to as a "settlement," since Jen also refers to the case having made it before the jury. That would suggest that they went all the way through trial, but Roxxon agreed to settle before the jury returned its decision. That's possible, and it does happen, but it's bizarre that Roxxon would offer so much money as a settlement deal. Were they afraid the jury might return with a $150 million verdict? For one guy whose injuries are personal problems?

Even $85 million is rather excessive. If Dan Jermain is dead, then Worker's Comp wouldn't have paid anything remotely close to that. And a normal wrongful death claim wouldn't have wrought a recovery that big. If he's alive and just suing for the negative impact on his personal life, then how could anyone reach a number that huge for what's basically a claim of emotional distress and marital troubles?

Jen says that she won by suppressing evidence (which can actually be quickly unethical in civil cases like this), and by "turning 'secret identity' shield laws on their head." Shield laws generally apply to rape victims, and the court's willingness to keep the victim's identity out of the public record. But that doesn't mean that the defendant doesn't see his accuser, or that the jury doesn't get a good view of the victim.

She says that all the jury saw of Dan was a "big blue dot on a video monitor." Whatever "secret identity shield laws" may be, I don't see this happening. Back during the infamous William Kennedy Smith trial, the blue dot over the witness' face was seen by television viewers, but the jurors had a full view of the person. Jurors are supposed to be the judges of a witness' credibility, and depriving them of the ability to see a witness' face sorely impairs their ability to do so. And if Danger Man was a plaintiff (which he shouldn't be if Jen pursued the wrongful death route), did they not have him sitting at the plaintiff's table during the trial?

What might Slott have meant when he referred to "secret identity shield laws"? My best guess is that he had in mind the kind of superhero universe judicial policy that allows Batman or Spider-Man to testify as 'Batman' or 'Spider-Man,' in full mask and without having to reveal their true identity to anyone in the court. I know that Bob Ingersoll tackled the possibility of such special protection at least once, and I'll try to dig it up.

Assuming such a law existed, utilizing it here would certainly be turning it on its head, as Jen said. Dan's wife would probably be a party to the case, and both she and his daughter would undoubtedly testify. His name, Dan Jermain, would have appeared in the case name. His testimony would have included a lot about his personal life, both before and after the accident. And 'Danger Man' appears to be little more than a nickname. There's no reason to hide 'Danger Man's true identity, and in fact, aspects of his true identity are all over the case. Having him appear only by video monitor, and blurring his face out, doesn't serve any purpose at all.

So all in all, it's an ingenious legal setup in this issue, but its resolution leaves a bit to be desired.