A Fact-Check for the Four-Color World

Thursday, February 17, 2005

The State vs. Daredevil: Yellow #1

To kick things off, here's a look at a scene from Daredevil: Yellow #1, an issue that may not be new, but comes from a writer who seems to have repeated difficulties with understanding the law.

In the first issue of this Loeb/Sale mini, Jack Murdock is murdered after he refuses to throw a fight. His killers, who had stopped by the apartment before taking Jack away, are arrested and charged with the crime.

Loeb then writes "But on the day of the bail hearing, suddenly they had a Park Avenue attorney." The prosecutors ask for bail to be set at one million dollars per defendant. The defense attorney responds by moving that the charges be dropped and dismissed, harshly criticizing the merits of the prosecution's case, and arguing that "the case against my clients is totally circumstantial." The judge agrees, saying that she has looked over the case's particulars, and so she dismisses the case and tells the prosecutors they can refile charges once they gather more evidence.

First, there's nothing wrong with a case, even a murder case, being built entirely on circumstantial evidence. Fingerprints, footprints, DNA...all of these can be very incriminating, but they are still just circumstantial evidence.

Loeb has Matt suggest that the judge was paid off, but given the context and lack of any follow-up, corruption wouldn't seem to be the best explanation for the judge's action. If nothing else, it's overkill to pay off a judge AND hire a high-powered Park Avenue attorney (who doesn't do anything remotely impressive) for a bail hearing.

And that's the second, and more serious, error in this scene. The fact that this is a bail hearing is made clear both in dialogue and in a caption box. Bail hearings are only for setting bail. That's it. Charges are never dropped at a bail hearing, and if an attorney attempted to make a motion to do so, the judge would quickly put him in his place. No intelligent attorney would even attempt to make a motion for dismissal of charges at a bail hearing.

In fact, it's possible that the judge may not be able to dismiss the charges at all. If the charges against a defendant were brought by a grand jury, which found probable cause of the defendant's guilt, then the judge does not have the authority to second-guess the grand jury. Here, it appears that there was no grand jury indictment, because of the quick arrest, in which case the defendants would have a preliminary hearing to determine if there was probable cause. During that hearing, the judge would decide whether there was probable cause for the arrest, and the prosecution would be allowed to defend the charges. Here, the judge listened to a spiel from the defense attorney, and never even asked for comment from the prosecutor before throwing the charges out.

Finally, I find myself a little surprised at the prosecutor's initial willingness to allow for the defendants to post bail at all. The two defendants are charged with the most severe of crimes, they're involved with gambling, and a caption even says that the police were not surprised at the notion of their involvement, implying a history of run-ins with the law. The prosecutor should be asking for bail to be denied, not opening with an offer of a high dollar bail.