Manhunter, Volume 2

(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.

IV. Conclusion

There are more legal issues to cover in the next three volumes, so stay tuned for the rest of this series!

15 responses to “Manhunter, Volume 2

  1. ” As it was, though, the defense really should have objected to that answer.”

    As a matter of trial tactics, wasn’t it a smarter move to simply let that answer alone? If the defense did object, wouldn’t the prosecution be able to ask a clarifying question, or rephase it, and then that gives Hawkman another opportunity to work in a zinger like “When he wasn’t trying to kill me …”. Something like:

    Defense: “Objection: Witness isn’t giving words of defendant.”
    Judge: Sustained.
    Prosecution: “Do you recall a direct statement by the defendant to that effect?”.
    Hawkman: “Yes, during the battle we had last year, right after he had a wrecked a store and thrown a piece of debris at my head, as I was dodging, I yelled “That belt is making you crazy”. In reply, he screamed “No, I’m doing this all on my own!”, and laughed maniacally.”

    This would seem to fall into the category of “When you’re in a hole, stop digging”.

  2. “…the defense asks Superman point blank “what is your legal identity?” Naturally, Superman refuses to answer…”
    Have you previously discussed Superman’s legal identity?
    For most purposes, “Superman” would suffice to bind him to contracts and fill out tax forms for royalties on “Superman(tm)” products. The number of people who know that that he even has an alternative identify is insignificantly small, and AFAIK includes no government officials. He doesn’t wear a mask or bear any other indicator that his is not simply and always who he says he is (other than, perhaps, his habit of wearing his underpants on the outside) so I’m not clear on why a defense lawyer would demand to know his legal identity.

    • The citizenship issue has come up one way or another several times. In any case ‘Superman’ might not legally be enough, especially if they have reason to think he has another identity.

      • If he is addressed as “Superman of Metropolis” in the subpoena, doesn’t that indicate that that is a sufficient legal identity?

      • It depends on what you mean by ‘sufficient legal identity.’ It’s enough to uniquely identify him, yes, but clearly the prosecutor meant “do you have any alter egos or aliases?” Certainly that’s how Superman took the question.

    • “I’m not clear on why a defense lawyer would demand to know his legal identity.”

      Superman’s refusal to answer hurts his credibility as a witness. If he refuses to answer a question under oath because people might get hurt, couldn’t he also lie under oath for the same reason? The defense attorney knew Superman probably wouldn’t answer; that was the point.

      Of course, what if Superman had answered? Then the defense would have asked pointed questions about how often Superman/Clark Kent lies about his alter ego. Either way, Superman loses.

  3. On Superman, wouldn’t he be entirely entitled to answer Kal-El, son of Jor-El, of Krypton. People are perfectly aware that he’s an alien from another planet. Add to which he’s under oath and he isn’t lying since that is his identity.

    Also, on subpoenas what about foreign nationals being subpoenaed. Could say North Star be subpoenaed to testify at the trial of say Cyclops if he offed Professor Xavier? As far as I know North Star is a Canadian citizen, and last time I checked the Canadian courts aren’t in the habit of extraditing people for subpoenas (or a great number of things for that matter).

    • Martin Phipps

      Can trial lawyers subpoena anybody or do they have to be witnesses? And what about people who refuse to testify in criminal cases because they reasonably fear for their safety? That might not apply so much to Superman but it seems to me that in a world populated by super villains trying to kill our heroes it might not be a good idea for a superhero to make a scheduled court appearance.

    • “On Superman, wouldn’t he be entirely entitled to answer Kal-El, son of Jor-El, of Krypton.”

      Yes, but the defense attorney would just follow up with “please list all of the aliases or alter egos you have ever used” or something similar.

      “what about foreign nationals being subpoenaed.”

      Foreign nationals that are also non-US-residents are tricky. Basically the local court asks the appropriate foreign court for help. The law of the foreign jurisdiction will determine if the foreign court feels compelled to help or not. In some cases the local court may be out of luck.

      Anyway, this kind of discovery is called letters rogatory. If the proceeding is in a foreign court (i.e. the foreigner in this case is a US resident), then 28 USC 1782 governs whether the US court will compel discovery.

  4. Are there any countries in which it would be an offence and/or contempt of the local judicial system to serve a subpoena or other process of a US court without permision of the local court or other official body? Do the US rules of procedure make any allowance for that possibility?

    • I don’t think so, at least not for serving a US national or resident. In the Blackmer decision (admittedly, written in 1932), the Court said “With respect to such an exercise of authority, there is no question of international law, but solely of the purport of the municipal law which establishes the duties of the citizen in relation to his own government.” (NB: this is the old meaning of ‘municipal’—”relating to the internal affairs of a state as distinct from its foreign relations”—as opposed to the modern meaning of relating to a city).

      • Suppose the US national is in an English prison. I don’t know the legal situation, but presumably they’d need the consent of the prison authorities to get into the prison and serve the subpoena. Getting the prisoner to actually testify in court would be another problem.

        Serving a subpoena on someone in the British military might also be harder than normal. You wouldn’t be able to get access to them without the military’s cooperation.

    • This does not exactly asnwer the question, but in 2009, a Canadian physician was censured by the (Alberta) Information and Privacy Commissioner for releasing medical records in response to a subponea issued by an American court:

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