We’ve made it to the last part of our series on Manhunter volume 4. This is also the penultimate entry in our larger series on Manhunter, since volume 5 is pretty light on legal issues. To celebrate wrapping up this series, we’re giving away a complete set of volumes 1-5 of the Marc Andreyko run of Manhunter. To enter, simply send an email with “Law and the Multiverse Manhunter Giveaway” in the subject to firstname.lastname@example.org. Please note that you must be 13 or older to enter. We’ll choose a winner at random from among all of the entries we receive and announce it with the final Manhunter post. (In the future we’ll probably give away books before we start writing about them, but we only had the idea for this recently.)
Now on to today’s post. The remaining issues to talk about in volume 4 are some evidentiary problems and the “elephant in the room” jurisdictional issue. Spoilers ahead!
I. Evidence, Grand Jury Procedure, and More Legal Ethics
After Spencer obtains Superman’s agreement to testify and to allow the use of the videotape proving that Superman was acting under Lord’s psychic control, she arranges a meeting at the judge’s home with the judge, the prosecutor, Superman, and herself. There she shows the judge and prosecutor the videotape. As we’ve discussed, there would ordinarily be no judge involved at the grand jury stage of things. Curiously, the comic gets several things right at this point that almost make up for things it got egregiously wrong earlier.
First, the judge correctly remarks that she can’t speak to Spencer without the prosecutor present. California Rule of Professional Conduct 5-300(B) states that attorneys cannot communicate with a judge regarding the merits of a case except
(1) In open court; or
(2) With the consent of all other counsel in such matter; or
(3) In the presence of all other counsel in such matter; or
(4) In writing with a copy thereof furnished to such other counsel; or
(5) In ex parte matters.
So Spencer was right (so far as it goes) to call the prosecutor into the meeting.
Second, the comic correctly shows that both the judge and the prosecutor are not at court while the grand jury is deliberating. As mentioned in the last post in this series, no one except the jurors and any necessary interpreters may be present for federal grand jury deliberations.
Third, the judge correctly tells Spencer that the evidence can only be offered at trial. The prosecutor can choose what evidence to present to the grand jury, and once the grand jury has begun deliberating it is too late for the prosecutor to offer any new evidence. Of course, it’s highly unlikely that the prosecutor would show such evidence to the grand jury anyway. Although prosecutors may have an ethical duty to give the defendant any evidence tending to prove the defendant’s innocence (ABA Model Rule 3.8(d)), it’s up the defendant to actually use that evidence. The prosecutor has no obligation to do the defense’s job for it.
Although the comic gets a lot correct there, there’s still a significant error here. Specifically, a judge would look at the video or listen to what Superman had to say outside of the proper context (i.e. a trial or at least a pre-trial hearing). For one thing, Superman wasn’t under oath, and for another the prosecutor wasn’t given an appropriate opportunity to contest the admissibility of the video (he made a lame show of opposition but the judge told him to shut up). So we’ll have to give this part a mixed review: kudos for getting some of the ethical and procedural issues right but minus points for trying to present evidence outside of court.
We saved this issue for last because it actually makes almost everything else in this case moot: the United States has no jurisdiction over Maxwell Lord’s murder because Wonder Woman killed Lord at Checkmate’s headquarters in Switzerland, which is outside both the US’s territorial boundaries and the federal government’s special maritime and territorial jurisdiction. The fact that Lord is a US citizen doesn’t change the result.
Of course, Wonder Woman could have been charged and tried in Switzerland. It’s not entirely clear where Checkmate headquarters is located within Switzerland, so we’re not sure which canton’s laws would apply. In some cantons, Spencer could represent Wonder Woman but it would require the permission of the local authorities and the assistance of a local attorney. See, e.g., Article 23 of the Geneva Loi sur la profession d’avocat. In cantons that allow non-lawyers to represent people in court she could certainly represent her. See, e.g., §§ 2-3 of the Basel Advokaturgesetz. But in other cantons there doesn’t seem to be any provision for a foreign, non-EU attorney to represent a client in court. See, e.g., the Bern Kantonales Anwaltsgesetz.
However, even if she could represent Wonder Woman we don’t think it would be a good idea. Spencer doesn’t appear to speak any of Switzerland’s official languages, and she presumably knows little or nothing about Swiss law, which is a civil law system and thus fundamentally different from US law. Even if Wonder Woman requested her services, Spencer would have to consider whether she could competently represent Wonder Woman as required by the California Rules of Professional Conduct. Those rules still apply even if Spencer is outside of the country. Rule 1-100(D)(1).
Since we know about as much about Swiss law as Spencer, we will not speculate as to what the result might have been had Wonder Woman been tried in Switzerland. If there are any Swiss lawyers in the audience we’d love to hear from you in the comments.
That’s all for this issue. Be sure to enter the drawing!