Manhunter, Volume 4 Part 2

Today we’re continuing our analysis of Mahunter vol. 4.  In Part 1 we discussed conflicts of interest, fee arrangements, and client gifts.  For Part 2 we have more legal ethics issues and a note about grand juries.  These are some of the same ethical issues we discussed during our recent legal ethics CLE program.  Spoilers abound.

I. Trial Decorum and Grand Juries

During Wonder Woman’s grand jury hearing, Kate Spencer objects to a statement made by the prosecutor.  After being admonished by the judge, Spencer uses a feigned apology to plant seeds of doubt in the minds of the members of the grand jury (“I apologize your honor.  It was just reflex.  I’d almost forgotten how different grand juries were from real ones…how low the burden of proof, how geared in favor of the prosecution they are…”).  After a remark from the prosecutor the judge threatens them both with contempt.  Spencer admits to Wonder Woman that the disruption was intentionally calculated to anger the judge, causing her to forget to tell the jury to disregard Spencer’s statement.

There are many problems with this scene.  First, the potential defendant and his or her attorney are not present at a grand jury hearing, except that the potential defendant could be called as a witness.  The comic book sort-of acknowledges this with a line by the judge saying that an exception was allowed for this unique case.  The problem with this explanation is that there isn’t a judge at a grand jury hearing, either.  Grand jury hearings are led by the district attorney, who acts as both legal advisor to the grand jury and as the prosecutor.

Federal Rule of Criminal Procedure 6(d) explicitly spells out who may attend a grand jury hearing: “The following persons may be present while the grand jury is in session: attorneys for the government, the witness being questioned, interpreters when needed, and a court reporter or an operator of a recording device.  No person other than the jurors, and any interpreter needed to assist a hearing-impaired or speech-impaired juror, may be present while the grand jury is deliberating or voting.”  There is no room for a judge to make an exception.  Heck, there’s no room for a judge at all.  Even the witnesses are only allowed in one at a time (hence “the witness being questioned”).

This may seem unfair, but remember that a grand jury is convened in order to indict someone; the adversarial process has not started yet.  Thus, there is only a potential defendant, who is no different from any other witness.  However, after an indictment has been returned the defendant may challenge the composition of the grand jury (e.g. on grounds of bias).  28 USC 1867.  But this is after the fact, not during the hearing.

Of course, Spencer’s claim that she’d “almost forgotten” how grand juries work is ridiculous.  Not only is it basic criminal procedure, Spencer was a federal prosecutor herself for some time before moving to defense and would have conducted many grand jury hearings.  So her claim is either a lie or an admission of incompetence.  That’s the kind of nonsense that judges do not suffer gladly.

Second, Spencer’s outburst was also an unethical intentional disruption of the hearing.  ABA Model Rule 3.5(d) states “A lawyer shall not … engage in conduct intended to disrupt a tribunal.”  (And in case you’re wondering, the comments to Model Rule 3.5(d) together with Rule 1.0(m) show that a grand jury hearing is a ‘tribunal’ for purposes of the rule, judge or no.)

(On a more minor point, the comic portrays the wrong number of grand jurors.  A federal grand jury “must have 16 to 23 members.”  Fed. R. Crim. P. 6(a)(1).  The comic shows a typical jury of 12.)

II. Allocation of Authority Between Lawyer and Client

Spencer discovers that Wonder Woman killed Maxwell Lord because Lord was psychically controlling Superman, making him believe that his friends and allies were actually villains.  In fact, Spencer obtains video evidence proving as much.  However, Wonder Woman forbids Spencer to use that evidence out of concern for Superman’s reputation as a force for good.  Spencer agrees to the constraint even though it will make her job much harder.

As it happens that’s exactly right.  ABA Model Rule 1.2(a) states that “a lawyer shall abide by a client’s decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued.”  Rule 1.4(a)(2) essentially reiterates the obligation to consult with the client: “A lawyer shall … reasonably consult with the client about the means by which the client’s objectives are to be accomplished.”  Furthermore, the comments to Rule 1.2(a) specify that “lawyers usually defer to the client regarding … concern for third persons who might be adversely affected.”

So here Spencer is definitely doing the right thing.  If for some reason she felt that she couldn’t represent Wonder Woman under those constrains the solution would be to withdraw as her attorney.

III. Media Rights

In order to work around Wonder Woman’s prohibition against using the video as evidence, Spencer decides to contact Superman, apparently on the assumption that if he agrees to testify then Wonder Woman will be okay with it.  Since Spencer doesn’t exactly have Superman’s home phone number she contacts Lois Lane and asks her to relay the message.  The plan works but “[Lois] almost made me sign over exclusive media rights to ‘my story’ in this case.”

Spencer was right not to sign any such deal.  ABA Model Rule 1.8(d) says: “Prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation.”  The policy here is that lawyers with media deals will feel tempted to sensationalize or play up the entertainment value of the case to the client’s detriment.

Strictly speaking, this Rule is about agreements between the lawyer and the client regarding the client’s media rights.  However, Spencer’s duty of confidentiality means that she would almost certainly need Wonder Woman’s permission in order to sign media rights over to Lois Lane.  The result is the same.

Further, this also raises issues of inappropriate trial publicity, at least if the story was published while the case was ongoing.

IV. Conclusion

Today was a mixed bag for Spencer.  She got some things right and some things wrong.  Unfortunately, the writers sort of painted themselves into a corner by framing the story around the grand jury hearing instead of a trial.  At that point they had little choice but to contrive a way to put Spencer and Wonder Woman in the court room.  We guess they didn’t want Wonder Woman to even be indicted, but that led to some compromises.  We say stick to trials.  They’re more dynamic, and most people have at least a general sense of how they work.

11 responses to “Manhunter, Volume 4 Part 2

  1. Dennis Castello

    Have any comic book writers come to you guys yet for input on stories they are cooking up?

  2. Chakat Firepaw

    I can see an escape on the media rights issue. So long as no rights were actually signed over, it is within reason to say that part of the reason for it being ‘almost’ was that she couldn’t sign over the rights.

    • The Rule forbids not only actually making a media rights agreement but negotiating one as well (i.e. attempting to make one).

      But I didn’t mean to imply that Spencer did anything wrong in that case. She apparently refused to sign over the media rights, which was the right thing to do. And I think we can give her the benefit of the doubt and assume it was a flat refusal rather than a matter of the offer not being good enough.

  3. Martin Phipps

    What it were an inquest rather than a grand jury hearing? I saw an episode of CSI which dealt with the issue of a CSI who killed a suspect in self defense. (He was about to throw a stone at the CSI’s car so the CSI accelerated and knocked him down.) The judge instructed the jury that the facts of the case were such that they were to rule the homocide as “justified”, “excusable” or “criminal”. The jury decided that the CSI’s action was not criminal, that he was legitimately scared and was only acting in self defense. The family sued the Los Vegas police department and it was settled out of court.

    Now it seems to me that the situation here was very similar: Wonder Woman was acting in self defense and would have argued that her actions were either justified due to the danger that Max Lord represented or excusable due to the stress of having been attacked by Superman. So who got it right? Should there have been an inquest rather than a grand jury hearing or did CSI get it wrong?

    Oh and there is a series actually called Justified. Really, if a police officer shoots somebody every week is the claim that every killing was “justified” going to start to run untrue after a while?

    • Inquests and grand jury hearings have different roles, so it’s not an either/or thing. An inquest simply determines the apparent cause of death, and depending on the cause it can then prompt a criminal investigation. An inquest does not determine if there is probable cause to believe that a particular suspect caused the death; that is the function of the grand jury hearing. It certainly doesn’t determine whether the death was justified, excusable, or criminal.

      In California, for example, the inquest decision gives “the name of the deceased, the time and place of death, the medical cause of death and whether the death was by (1) natural causes, (2) suicide, (3) accident, or (4) the hands of another person other than by accident.” Cal. Gov. Code § 27504. Furthermore “such findings shall not include nor shall they make any reference to civil or criminal responsibility on the part of the deceased or any other person.”

      Inquest verdicts are inadmissible at the criminal trial, but the coroner or medical examiner’s report may be admissible as public record or expert testimony. So you can say “the deceased had bruising around the neck consistent with strangulation” but not “the inquest jury decided it was murder.”

      • Martin Phipps

        So, just to clarify, if a CSI (in this case) is responsible for the death of a suspect and there’s a question of whether or not he should be charged with a crime then that’s a (grand jury) hearing and not an inquest? Wow. Somebody got their terminology wrong then.

    • CSI isn’t exactly the strongest source on criminal justice. Admittedly I’d have to actually see the scene but I have to wonder how one could possibly feel so threatened by a stone that they were justified in running someone over.

      • It was a big rock.

        He was also defending the actual attack victim who was helpless on the ground. The rest of the gang ran off as he pulled up but the rock-wielder stood his ground then turned as if to throw it at him in the car.

        So he hit the gas, it was reasonably clean use of force given the circumstances.

  4. Martin Phipps

    One more question. On TV we see bail hearings. The suspect is brought to the judge who decides if the suspect is a “flight risk” and then, based on that, whether bail should be set and how much. Are those realistic? I imagine bail hearings would take place after grand jury hearings because one has to be indicted before one is incarcerated, right? It would have been funny if Wonder Woman had been considered a “flight risk” at a bail hearing. 🙂

    • They actually used that line in an episode of LOIS & CLARK: THE NEW ADVENTURES OF SUPERMAN. When Superman was charged with a crime and attended his bail hearing, the prosecutor asserted, fully aware of the double entendre, that Superman was “an obvious flight risk.”

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