Ultimate Spider-Man #53
Writer: Brian Michael Bendis
Artist: Mark Bagley
Delving into the back issue bin, here we have an Ultimate Spider-Man issue from 2004, part of the "Claws" arc that introduced the Ultimate Black Cat. In the arc's last issue, Peter Parker discovers a newspaper article about a formative event in the childhood of Felicia Hardy, aka the Black Cat:
In case you can't make out that last paragraph, it reads "Attorney Franklin Nelson, who is representing Jack Hardy in the trial, had a different opinion. 'These crimes are much larger than Jack Hardy. He does not deny involvement, but this is much larger than him.'"
Ultimate Foggy Nelson is either a phenomenal lawyer, or an incompetent one. I'm leaning toward the latter, since comments later in the issue imply that he lost this trial, and Jack Hardy went to prison.
Here we have him essentially saying to the world, "Yes, my client is guilty as charged...but he wasn't the only one involved!" That's a tough hole to dig yourself out of, when your client is already on trial. Since Mr. Hardy is charged with committing a string of cat burglaries, and his attorney just admitted that Mr. Hardy is guilty of committing a string of cat burglaries, what exactly does Foggy expect to accomplish at trial?
There are occasions when a criminal defendant can admit to committing an act, but avoid conviction. In these instances, certain extenuating circumstances exist that negate the 'intent' aspect of a crime. If a defendant chooses this path, his attorney has to present what is called an "affirmative defense." The burden is on the defense to prove that the defendant should not be held criminally responsible for an act he admits to committing.
What are these affirmative defenses? And do any of them apply to Jack Hardy?
- Entrapment. Here the defendant alleges that he was induced into committing a crime by overzealous law enforcement, and that he wouldn't have committed the crime without significant prodding by the police. No luck for Hardy here.
- Insanity. This is perhaps the most complex of these, but it basically boils down to having committed an act but not understanding that it was wrong. And Hardy wasn't insane.
- Necessity. A defendant may argue that his actions were necessary to avoid some greater harm. There's a test for this, and Jack doesn't pass it. Burglarizing people's houses isn't in the service of some greater good.
- Self-defense. Pretty self-explanatory. But committing cat burglaries in self-defense? Nope.
- Duress. Some states recognize an affirmative defense when one commits a crime in response to a threat of physical force against himself or another person. And New York is one such state. Hypothetically, if Jack Hardy was committing cat burglaries because Kingpin had threatened to kill Felicia if he didn't, then Jack might have a valid duress defense.
Ah, but New York's duress statute has a second part: "The defense of duress...is not available when a person intentionally or recklessly places himself in a situation in which it is probable that he will be subjected to duress." So if Jack went to work for Wilson Fisk, and then found himself threatened when he tried to give up the criminal life, then Jack can't claim duress. He surrounded himself with criminals; he doesn't get the benefit of the doubt when they act as such.
Plus, there's no indication in the text that Jack Hardy was committing crimes under threat of force. All signs point to him being a willing participant. Rather, his defense, per Foggy, appears to be that there are simply bigger fish to fry. And unfortunately for Jack, 'Minor Player' is not a recognized affirmative defense. How does Foggy plan to convince a jury not to convict his client, who admits to willingly committing a string of inexcusable cat burglaries? It's easy to see why Foggy lost this trial.
If Jack Hardy really was part of a bigger scheme, and he really did have the dirt on his superiors, then the rational approach for the defense is to avoid trial entirely, and work out a plea bargain. Admit to his crimes, and get a lesser punishment in exchange for assisting in the prosecution of the higher-ups. It happens in every other episode of "Law & Order."
Incidentally, such an approach does remind me of a real-life trial, albeit a civil one (an important distinction), and also perhaps the most absurd and outrageous trial in modern memory. It was the wrongful death case filed by the King family against Loyd Jowers, accusing him of murdering Dr. Martin Luther King Jr. You can read the transcript here. The whole thing was a farce, with a defense attorney who was in cahoots with the plaintiffs, and a judge who was willing to allow anything as evidence (including the showing of an anonymous videotaped deposition). The Plaintiffs' allegation? That Mr. Jowers played a huge role in a conspiracy to assassinate Dr. King. The Defense's argument? The Mr. Jowers played a minor role in a conspiracy to assassinate Dr. King. Not surprisingly (since there was no evidence presented to the contrary), after 14 days of trial, the jury concluded that there was a conspiracy to kill Dr. King.