Today is Halloween, so to mark the occasion we’re doing a post on Batman: The Long Halloween, a great series that was a major influence on the Christopher Nolan Batman films (or at least the first two). Without giving too much away, the story concerns an enigmatic serial killer named Holiday, who kills on, well, holidays, beginning on Halloween. That’s about all we’ll have to say about the story, since the legal issues presented in the series don’t revolve around the plot as such. Nonetheless, there may be spoilers.
I. Gordon and Dent’s Use of Batman
The Long Halloween contains a great example of the issues we considered in one of our first posts, “Is Batman a State Actor?” Police Captain (not yet Commissioner) Gordon and District Attorney Harvey Dent meet with Batman on the roof of the GCPD after summoning him with the Bat Signal. They openly address the fact that “[Batman] crosses a line we … can’t,” and Gordon says that he’ll allow Batman to “bend the rules, but … not break them.” Unfortunately directly using Batman to do their dirty work is breaking the rules, specifically the Fourth Amendment. If Carmine Falcone, the mob boss they were targeting, ever learned how they got the evidence used to go after him, it would be trivial to have it excluded, as well as much of the evidence derived from that original tainted evidence.
This is particularly ironic in light of Dent’s complaint that Falcone would likely buy off witnesses, cops, and judges in order to avoid conviction, hence the need for extraordinary action by Batman. Using Batman this way risks handing Falcone a perfectly legal way out, no bribery needed. It’s one thing when Batman works by himself, but when he coordinates with a high-ranking police officer and the district attorney to accomplish that which they openly acknowledge they can’t do themselves, well, that’s exactly the kind of subterfuge the state action doctrine is meant to get at.
II. The Offer Made to Calendar Man
Calendar Man (Julian Gregory Day) is one of the more unusual villains in Batman’s rogues gallery, but in this case his obsession with days and dates makes Gordon, Dent, and Batman think he may be able to help the investigation. Day is imprisoned in Arkham Asylum, and Gordon says that the district attorney’s office is willing to commute his sentence to time served if Day helps them solve the murders. There are a couple of issues here.
First, it’s not within the DA’s office’s power to commute a sentence. That would be up to the governor or the president. We could charitably say that it’s possible that the governor of the state gives significant deference to the recommendations of district attorneys, so if the DA says commute then the governor will oblige. This seems unlikely, though, as neither DAs nor governors like to be seen as “soft on crime.”
Second, this suggests that Calendar Man is, indeed, imprisoned at Arkham Asylum. That is, he was found “guilty but mentally ill” and so is serving his time at the asylum rather than being found “not guilty by reason of insanity” and involuntarily committed to the asylum. This fits pretty well with our analysis of many of Batman’s more deranged villains: they are likely mentally ill but not legally insane. Thus, it makes sense that Arkham Asylum would be a place where mentally ill convicts could be treated during their imprisonment.
Third, and related to the second, even if the DA could get the sentence commuted, the fact that Calendar Man is mentally ill means that he isn’t terribly likely to be set free. When a person is deemed mentally ill to the point that they are a danger to themselves or others, then regardless of whether they are convicted or acquitted on that basis, the state can move to civilly detain them until such time as they are deemed safe. So just because his sentence might be commuted, the state is unlikely simply to let him walk out. At best, he’s likely to move to a nicer cell—which is no small thing, considering the conditions in Arkham—but actual freedom does not seem to be on the menu. If the police offered the deal knowing that was the likely outcome, well, the police can often use deception and trickery to encourage cooperation. Frazier v. Cupp, 394 U.S. 731 (1969).
III. The Grand Jury Scene
Later in the series, a character (whose name we won’t reveal so as not to spoil anything) has been accused of being Holiday. We see part of the grand jury proceeding, and boy is that scene inaccurate. There are two major problems:
1. There’s a judge present, but a grand jury proceeding is run by the prosector, not a judge.
2. There are numerous members of the public present in the courtroom, but grand jury proceedings are secret. Even the witnesses are normally only let in one at a time to testify.
At least there doesn’t appear to be an attorney for the defense present. By contrast, the later trial scene is unobjectionable.
IV. Was Holiday Legally Insane?
Given what we know about Calendar Man (i.e. mentally ill but apparently not legally insane), it’s hard to know exactly what became of Holiday. In one scene Gordon says Holiday is headed to the gas chamber, but in another scene we see Holiday in Arkham in a cell across from Calendar Man. Does this mean Holiday was found not guilty by reason of insanity, thus avoiding the gas chamber? It’s possible. It’s also possible that Holiday was found guilty but mentally ill and is incarcerated at Arkham while awaiting the death penalty (or while appealing the sentence; although Holiday confessed to the killings, it’s still possible that Holiday would prefer life imprisonment to death).
Knowing what we do about the case, it’s hard to be sure that Holiday was legally insane. The killings took place over a long period of time and were carefully planned, which would tend to eliminate a temporary insanity argument. Furthermore, it seems pretty clear that Holiday knew that what he or she was doing was legally wrong (e.g. Holiday took significant steps to avoid being caught, which is not the action of a person who thinks they aren’t breaking the law), which knocks out one of the major elements of most tests of insanity. In real life the result would probably hinge on expert testimony, which we don’t see in the comics, but we think it’s most likely that Holiday was found guilty but mentally ill and is simply being treated at Arkham, either while awaiting or challenging the death sentence.
Note that, depending on the nature of Holiday’s illness, if he is mentally ill then he may not be executed, as the Constitution forbids the execution of the insane. Ford v. Wainwright, 477 U.S. 399 (1986). So another possibility is that he is guilty but mentally ill, and depending on the outcome of a competency evaluation he may not be executed unless his illness can be treated, which can even be done involuntarily. See Perry v. Louisiana, 498 U.S. 38 (1990) (declining to address constitutionality of involuntary treatment of death row inmates); Washington v. Harper, 494 U.S. 210 (1990) (upholding involuntary treatment of non-death row inmate); Singleton v. Norris, 319 F.3d 1018 (8th Cir) (en banc) (2003) (upholding involuntary treatment of insane inmate for purpose of rendering him competent to be executed).
The Long Halloween is a great series, and we highly recommend picking up the trade paperback or even the Absolute Edition. There are a few small legal issues, but nothing that harms the plot (it’s not as though a court ruled that evidence obtained by Batman was admissible or anything).