Law and the Multiverse Holiday Special – Halloween Edition

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).

V. Conclusion

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).

7 Responses to Law and the Multiverse Holiday Special – Halloween Edition

  1. Regarding the not allowing a mentally ill person to be executed, I remember that being a big thing in the Michael Carneal trial for the Heath High School shooting. Part of his defense involved a claim of “guilty due to mental illness” and there was much talk in the papers (probably incorrectly) about how he might still get the death penalty if he ever overcame his mental illness.

  2. In the movie The Dark Knight it was even worse though. Batman actually handled and examined evidence. That evidence then became worthless because Batman wouldn’t have accepted a summons to testify.

  3. Oh yeah and then there’s the fact that Batman questioned the Joker himself in The Dark Knight. It would have been very easy to establish that Batman was acting as a state actor in that situation.

  4. Here’s an open question: Dick Grayson was Bruce Wayne’s ward. I am wondering what legal obligations Bruce had as Dick Grayson’s guardian. For instance, why did we never see Dick attending school? I vaguely recall the Wayne family having a housekeeper on the 60s Batman TV series but in the comics it was just Bruce, Alfred and Dick and no evidence whatsoever of Dick ever going to school or having home schooling. It is one thing to neglect your own family’s education but here’s Bruce being appointed Dick’s guardian by the state. If social services had gotten involved, how likely would it have been that Dick would have been taken away and given to another guardian that would have given more consideration to his education? Oh and if a social worker had learned that Bruce and Dick were Batman and Robin then I think an even stronger case would have been made against him: even if what Bruce was doing wasn’t illegal (ie breaking either child endangerment or child labor laws) there’s still the question of what is best for Dick. Assuming that Gotham City is in either New York or New Jersey, at what age could Dick say he wanted to stay with Bruce and not be placed in another foster home? Could social services relocate Dick at will regardless of the wishes of either Bruce or Dick by citing what they believe is best for Dick?

    That’s another question: Dick wasn’t legally adopted by Bruce but was he a “foster parent” or just a “guardian” and if not what is the difference? This shows how little I know. I assure you I don’t know anything about foster parents plan(s) and won’t be offended if you assume I don’t. :)

    • First, not a housekeeper (although there *might* have been, most likely those chores were handled by Alfred directly) but rather “aunt Harriet”, who was then added to the comics for a while.

      Dick did, in fact, attend school, which can be seen in the comics and in the original run of the Teen Titans (by the time of the New Teen Titans, Dick was a college student.)

      Had a social worker learned that Dick was Robin, he’d have been removed from Bruce’s care on the spot… but Dick became Robin because he wanted to help others avoid his fate (his parents murdered because their employer wouldn’t pay protection money) and not because Bruce pushed him into it. There have been several episodes, in fact, where for one reason or another Bruce contemplates his decision to allow Dick to become Robin (although no examination of why Batman wears dark clothes to skulk around at night in the shadows, and Robin gets brightly colored clothes and short pants… doesn’t it get COLD at night in Gotham?)

  5. Cited this article in my book Batman and Psychology: A Dark and Stormy Knight, chapter 8. Thanks!

    I LOVE this website. I’ve enjoyed these articles so very much. I wish I’d discovered your work even earlier.

  6. On how Holiday was in Arkham and such, it’s said in the sequel Dark Victory that the killer was sentenced to the gas chamber, but funds provided by the Falcone crime family found its way into the hands of corrupt people in the legal system of Gotham, to get them(Holiday) into Arkham for “rehabilitation”, and then sent to house arrest for the remainder of the story, as part of a revenge plot orchestrated by Two-Face and the new district attorney.

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