(Note: We’ll have a review of the new X-Men movie up soon.)
This is the second post in our series on the Marc Andreyko run of Manhunter (here is the first). The second volume contains some interesting legal issues, including prosecutorial ethics and subpoenaing a superhero. Spoilers follow.
I. Prosecutorial Ethics
Kate Spencer (aka Manhunter) is a federal prosecutor. In advance of the trial of Shadow Thief for the murder of Firestorm, Kate appears on a Larry King Live-esque TV show to talk about the trial, which she is litigating. A caller asks Spencer if she thinks Shadow Thief will plead out or offer to turn state’s evidence against other supervillains. Spencer responds “Well, I can’t get into specifics about the prosecution’s plans, but Mr. Carl Sands has many connections in the supervillain community, so I would, theoretically, be interested in hearing what information he would have to offer” (emphasis in original).
This is a somewhat problematic statement. California Rule 5-120—California’s version of ABA Model Rule 3.6—governs trial publicity, and it specifically applies to prosecutors and defense attorneys. The general rule is that
A member who is participating … in the … litigation of a matter shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the member knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.
Here, Spencer is participating in the litigation of a matter and has made an extrajudicial statement (i.e. out of court) that will definitely be disseminated by means of public communication (she’s on a live national TV show). The question is, does the statement have a substantial likelihood of materially prejudicing the trial? That’s hard to know. Certainly the statement could be prejudicial because it suggests the defendant’s guilt by association. However, if it can be proved in court by admissible evidence, then that’s less of a problem. Unfortunately, we never see such evidence introduced, so it’s hard to say. This kind of statement is indicative of the careful line prosecutors and other litigators must walk when talking about a case, and Spencer’s other public comments (at least the ones we see) are carefully measured.
II. Serving Superman a Subpoena
Actually, Superman, Hawkman, and Batman are served, although we only see Superman and Hawkman testify. The interesting thing is, they are served at Justice League headquarters on the Moon. Naturally this raises a question: is such service of process effective? After all, it’s for a federal court case, but the Moon is explicitly not the territory of any nation.
Federal Rule of Criminal Procedure 17 states:
A marshal, a deputy marshal, or any nonparty who is at least 18 years old may serve a subpoena. The server must deliver a copy of the subpoena to the witness….If the witness is in a foreign country, 28 U.S.C. § 1783 governs the subpoena’s service.
The process server delivers the subpoenas in person the three recipients. But what about this “foreign country” business? We think a court would consider this to include the Moon, despite its non-territorial status. The Rules make a distinction between the United States and “foreign countries,” and a court could easily read this to mean “the rest of the universe.”
As the Supreme Court has said “Nor can it be doubted that the United States possesses the power inherent in sovereignty to require the return to this country of a citizen, resident elsewhere, whenever the public interest requires it, and to penalize him in case of refusal. … It is also beyond controversy that one of the duties which the citizen owes to his government is to support the administration of justice by attending its courts and giving his testimony whenever he is properly summoned.” Blackmer v. United States, 284 U.S. 421, 437-38 (1932). It is unlikely that the courts would allow a witness to escape this duty simply by fleeing to unclaimed territory, especially when service of process was otherwise carried out properly.
So on to 28 USC 1783:
(a) A court of the United States may order the issuance of a subpoena requiring the appearance as a witness before it … of a national or resident of the United States who is in a foreign country … if the court finds that particular testimony … by him is necessary in the interest of justice
(b) The subpoena shall designate the time and place for the appearance …. Service of the subpoena … shall be effected in accordance with the provisions of the Federal Rules of Civil Procedure relating to service of process on a person in a foreign country. The person serving the subpoena shall tender to the person to whom the subpoena is addressed his estimated necessary travel and attendance expenses, the amount of which shall be determined by the court and stated in the order directing the issuance of the subpoena.
Superman, Hawkman, and Batman are all identified as nationals or residents of the United States (“Superman of Metropolis, Hawkman of St. Roch, Batman of Gotham”), and presumably the court is satisfied that their testimony is necessary. And since the JLA has a teleporter, Superman and Hawkman can fly, and Batman owns his own plane, we’ll assume that either travel and attendance expenses were waived by the witnesses or that the court found them to be zero.
In sum: if you can find them, you can subpoena a superhero pretty much anywhere. And if they don’t show up, then the court can find them in contempt, fine them up to $100,000, and sell their stuff to pay the fine under 28 USC 1784.
III. Superheroes on the Stand
Hawkman and Superman both testify at the trial as witnesses for the prosecution. Hawkman testifies about the defendant, Shadow Thief, and Superman testifies about Firestorm, the victim. We want to address two issues raised by their testimony. First, Hawkman gives a good example of common hearsay issues, and Superman gives a good example of the practical reality of asking a superhero about their identity on the stand.
Spencer asks Hawkman “And did you, in your many confrontations with [the defendant], ever warn him of the dangers of prolonged use of the device [that gave the defendant his powers]?” Hawkman answers “When he wasn’t trying to kill me, yes, but [the defendant] wouldn’t hear of it. He believed that he was stronger than the belt and ignored my multiple warnings.”
There are two issues here. First, Hawkman is recounting his own out of court statements to the Shadow Thief (i.e. the warnings). This is not hearsay, however, because the statement is not offered to prove that the belt was, in fact, dangerous (Hawkman’s own expert testimony regarding the belt is sufficient for that). Instead, the statement is offered to prove only that Shadow Thief was on notice. This is a classic non-hearsay use of an out of court statement.
Second, Hawkman says “[the defendant] wouldn’t hear of it. He believed that he was stronger than the belt.” This is problematic. If Shadow Thief had made some statements to that effect (e.g. “I’m strong enough, Hawkman”), then Hawkman’s testimony as to those statements would be admissible under FRE 803(3) as “a statement of the declarant’s then existing state of mind.” As it was, though, the defense really should have objected to that answer.
Finally, the defense asks Superman point blank “what is your legal identity?” Naturally, Superman refuses to answer. Then the defense does the smart thing and simply notes that the witness is refusing to answer a direct question under oath, thus impeaching Superman’s credibility as a witness. Theoretically the defense could press the issue, and the court could even find Superman in contempt, but everybody knows that would be a pointless distraction. This is probably how things like this would actually play out in court.
There are more legal issues to cover in the next three volumes, so stay tuned for the rest of this series!