All-Star Superman II: The Trial of Lex Luthor

As we previously discussed, Lex Luthor is arrested and put on trial for his actions which result in the death of Superman. In the first issue of All-Star Superman, the arresting officer says that the warrant is for “attempted murder and crimes against humanity.” In issue 5, we see the conclusion of the actual trial, and it seems that at some point the attempted murder charge was seemingly dropped, as when the judge hands down the verdict, he says “Guilty on all counts, of crimes against humanity.”

This is interesting, because there isn’t actually indication of what court we’re in, and “crimes against humanity” aren’t actually crimes in most jurisdictions, in part because the term is at least as much a political term as it is an actual offense. Be that as it may, you will not find “crimes against humanity” listed in any criminal code in the US, state or federal (Well, technically it’s a crime in Puerto Rico (a first degree felony!), so maybe Luthor got busted while returning to his vacation home in San Juan, but we doubt it.). So right off the bat, there’s something we need to talk about. More than that, there’s also the question of what court, if any, would have jurisdiction over such charges. Lastly, we’ll look more generally at the issue of prosecuting supervillains, which as we’ll see is far from simple.

I. “Crimes against humanity”

What exactly are “crimes against humanity”? There are a variety of competing definitions, and the Wikipedia article does a pretty good job of covering them. Article Seven of the Rome Statute of the International Criminal Court defines it as “any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.”  Since Luthor’s actions were not widespread or systematic, this wouldn’t seem to apply, although if Superman is defined as a civilian population of 1 (i.e. the Kryptonian population of Earth; we’ll talk about Kandor in a minute), then perhaps a single planned murder is sufficient.

Notably, the ICC does not apply only to government officials and members of the military.  Article 27 of the Rome Statute explicitly states that “This Statute shall apply equally to all persons without any distinction based on official capacity.”  So in theory Luthor could be held to account by the ICC, if he were in a country under its jurisdiction.

II. Jurisdiction over “crimes against humanity”

The problem is that the US hasn’t ratified the Rome Statute. Democratic administrations are generally friendlier to this sort of international law than Republican administrations, but no administration has ever been able to convince the Senate to ratify it, generally on the grounds that it would diminish American sovereignty. So the US does not officially recognize the jurisdiction of the ICC, also known as “The Hague”, where the court sits, any more than it recognizes the authority of any international body to dictate terms to the US. And the US has no functional legal definition of “crimes against humanity” (again, not counting Puerto Rico).

So not only would it be impossible to put Luthor on trial for crimes against humanity in a US court, it’s vanishingly unlikely that the US would permit an international court to try him.  For example, if he had been captured, Osama Bin Laden would not have gone to the ICC, he would have been tried in a US court—either civilian or military—and probably executed, but not for crimes against humanity. So that’s just a non-starter.

What the US does have, however, is the crime of genocide, defined by 18 U.S.C. § 1091.  Notably, the definition of genocide here basically tracks the definition of genocide used by the ICC.  There’s a good argument that what Luthor did would fit the bill, too:

Whoever, whether in time of peace or in time of war and with the specific intent to destroy, in whole or in substantial part, a national, ethnic, racial, or religious group as such—
(1) kills members of that group;
(2) causes serious bodily injury to members of that group; …
(4) subjects the group to conditions of life that are intended to cause the physical destruction of the group in whole or in part; …
shall be punished as provided in subsection (b).

Since Superman is one of very few Kryptonians on Earth, Luthor’s efforts to kill him could be painted as genocidal.  (While Kandor exists in this continuity, it’s still miniaturized at this point in the story and is eventually moved to Mars anyway.)  So while Luthor might not be literally guilty of “crimes against humanity,” he could be guilty of genocide.

III. Prosecuting Supervillains

But let’s leave the “crimes against humanity” issue aside and assume that the court in question is a US court (we’ll say federal to keep it simple) for a plausible crime like, say, felony murder or even genocide. We’ve got another problem: how is the prosecution going to prove its case?

In this particular instance, it shouldn’t be that hard, because we’ve got multiple admissions both in and out of court. Way to make it easy on the DA there, Lex. But what if he hadn’t? What if he had said something along the lines of “I am so thrilled that Superman is dead, but good luck proving I had anything to do with it!” The DA would be left with a situation where he had to prove that the human bomb on the spaceship was modified by Luthor, put on the ship by Luthor, and activated by Luthor. Or one of his agents, but whatever. So the DA is going to have to sort through some very complex and sophisticated technology to be able to understand it well enough that he can prove to the jury’s satisfaction that this is actually what happened.

This means hiring an expert, because most lawyers, while smart, aren’t engineers or scientists, and most jurors certainly aren’t. In this particular case we’re talking about technology which is merely on the bleeding edge of available mundane tech, but we’d still probably need to get in touch with one of the one or two top scientists in the field. Only… most of them work for P.R.O.J.E.C.T., and thus have a conflict of interest in providing testimony on this case. The situation would be even worse if it were someone like Dr. Doom on trial, or anyone using technology they had developed themselves or which is significantly more advanced than that generally known, as the only people likely to be able to understand the tech and explain it to a jury are superheroes like Reed Richards, and thus also subject to a conflict of interest.  This doesn’t mean they couldn’t testify, only that the conflict of interest could be raised during cross-examination, which would hurt their credibility.

The problem is not limited solely to technology as such. A supervillain who commits his crimes telepathically will be very difficult to convict without the testimony of another telepath, and such persons are not exactly a dime a dozen. In the absence of such testimony, all the DA can prove is that people inexplicably started committing crimes in the presence of the allegedly telepathic defendant. That’s not the same as proving that the supervillain had anything to do with it. Same goes for things like releasing dangerous animals/aliens/robots into the public. There needs to be some evidence connecting the supervillain with the creature or construct, and that evidence is likely to require expert testimony.

Such testimony is also problematic for legal reasons. The Daubert standard, announced in Daubert v. Merrell Dow Pharmaceuticals, is the standard to which expert testimony must comply before it is admissible. Opinion testimony is generally disfavored, but since the eighteenth century, courts have recognized that the subject matter of litigation sometimes involves technical discussions which are beyond the normal knowledge of jurors, judges, and attorneys, so in order to come up with a result the input of an expert in the field is necessary. But just because someone calls themselves an expert doesn’t mean that they are one, and there are countless scientists, doctors, and engineers who are also quacks or cranks. So the Daubert standard exists to give judges some guidance in deciding who counts as an expert and the sorts of things about which they are permitted to testify.

Here we run into some problems. There a number of factors judges weigh in considering whether to admit expert testimony. The first is whether the principle at issue is subject to empirical testing and falsification. A lot of supervillain/superhero expert testimony falls into this category, but a lot of it wouldn’t, particularly where magic is involved. Then there’s the question of whether it’s subject to peer review. Most superhuman expert testimony would not be, as they don’t tend to publish articles in scholarly journals—wouldn’t want their tech to call into the wrong hands, etc.—and they don’t really have peers. Also, it helps a lot of the error rate is known. Scholarly science spends quite a bit of time focusing on the error rate of measurements, counting as insignificant those results which fall inside the margin of error. If we don’t even know what it is, and in many superhuman cases we don’t, it’s hard to give reliable testimony on a subject. Then there’s the question of standards and controls. Supervillains almost by definition don’t operate with any, but a lot of superhuman experts don’t really either, or if they do, they’re not really comprehensible to mundanes. But the most important is frequently whether the principle is generally accepted by the scientific community. In most superhuman cases, the answer is “Almost certainly not,” as they’re dealing with science and technology which is by definition way beyond anything the scientific community even recognizes as possible.

All that said, these are only factors to be used, and we wouldn’t be surprised if courts took some liberties with those factors in extraordinary cases like this.  There might be some cautionary statements made to the jury in order to underscore the fact that the expert testimony is on somewhat shaky ground, and no doubt the defense would have a field day on cross-examination.  In sum, the standards for expert witnesses would make prosecuting technology-wielding supervillains somewhere between difficult and impossible.

As a final note: even if Luthor were convicted and sentenced to death, it wouldn’t be by the electric chair.  The federal government only uses lethal injection, and the ICC doesn’t employ the death penalty at all.  For those of you still rooting for Puerto Rico, first degree felonies like crimes against humanity are punishable by 99 years in prison but not by death.

IV. Conclusion

This section gave us an excuse to talk about some of the larger issues in prosecuting supervillains. But really, Luthor’s fate is not critical to the plot of the overall story, so the fact that the legal implications here don’t really pan out is not as important as it might otherwise be. If Luthor failed to appear for the rest of the series, the plot would be largely intact. This isn’t a story about Superman overcoming villainy, it’s a story about Superman preparing for death.

23 Responses to All-Star Superman II: The Trial of Lex Luthor

  1. You’ve hit upon a serious flaw in the way scientists are depicted in comics. Scientists in comics are able to create technology far beyond that which is known by the scientific community at large simply by keeping to themselves and maintaining secrecy. In real life, of course, a scientist would not be able to progress very far in isolation. I think the most appropriate quote here would be Isaac Newton’s: when asked how he was able to see so much that others hadn’t seen he said it was because he “had stood on the shoulders of giants” by which he meant Galileo, Kepler and Copernicus. Indeed, it isn’t uncommon for scientists working separately to share a Nobel prize in science because they happened to make the same discovery independently based on what was already known at the time.

    So while the way scientists are portrayed in comic books would make it difficult to prosecute a “mad scientist” with advanced technology that no other scientist could understand, a more realistic portrayal of scientists and engineers in comics would alleviate this problem somewhat. I think in the case of Doctor Doom the bigger problem would be his status as a leader of a foreign country. The U.S. may demand copies of Dr. Doom’s prototype designs for the weapons he used to attack the Fantastic Four on U.S. soil (clearly an act of terrorism) but the sitting Latevarian government would just say “No” making the question as to whether an expert witness could make sense of them irrelevant.

    Good post though. It brings up some fresh issues not dealt with in previous posts.

    • While obviously Doom and Richards use technology beyond the ability of most engineers and scientists to replicate, that technology should have to work under the same basic laws as anything else. You can’t very well have a cape that makes you invisible (using science) without understood behavior of light, atoms and other things. In theory at least, a recognized expert in the field should be able to at least explain that the cape designed by this person causes this to happen for these reasons.
      As for Doom, he usually is the head of state in Latveria and if the U.S has him under arrest then we might be able to safely conclude that the U.S (or more likely NATO) might be able to have some kind of legal presence in the country.

  2. At the time of Luthor’s trial wasn’t superman still alive? The timeline is never explicitly laid out in how long it takes, but there is the attack on the ship at the sun; superman learns he is dying; luthor is arrested, tried, and sentenced to death and the state attempts to execute him; and then superman “dies” a few issues later. The arrest to attempted execution is implied to take place in just a few weeks or months, which seems awfully fast considering it takes at least a decade or so to execute even clearly.guilty people who admit to murder.

    How would he court deal murder charges considering the fact that the proximate cause of death (assuming superman didn’t tansform into a different permanent state of solar energy being) was superman flying into the sun? Superman was alive on earth the last time anyone saw him and he flew into space and never returned, so how would the state even prove he was dead? He has flown off into space before and came back a long time later before.

  3. As always an excellent article, but you might note that your link to the Daubert Standard on Wikipedia is broken. It points to instead of .

  4. I’m afraid there’s a basic misconception here, which is that the crime Luthor is on trial for is his attempted murder of Superman. That’s not the case. Early in issue 1 (p. 17 of the Vol. 1 trade paperback), Perry White commends his reporters for their work in breaking the story that Luthor had been engaged in a complex scheme (including “investing heavily in water” and “damming rivers”) “to profit from a global water shortage brought about by tampering with the Sun.” (Which doesn’t contradict what I said in an earlier comment about Luthor’s goal in tampering with the Sun being to lure Superman to his death. It’s just like Luthor to orchestrate a plan that has multiple layers of potential gain.) Such an alteration in Earth’s climate and water flow patterns could’ve deprived millions, maybe hundreds of millions, of water for drinking, farming, sanitation, etc., and could’ve cost countless lives due to dehydration, famine, disease, heatstroke, and the like if Superman hadn’t stopped it. Certainly a crime against humanity.

    Note also that on the aforementioned page and the following one, it’s established that Luthor was believed at the time to be a reformed supervillain — so we know he’d committed multiple crimes in the past. In the trial scene in issue 5 (p. 108 of the trade), the judge says, “Your insane schemes have placed in jeopardy the lives of every man, woman and child on this planet.” So this isn’t about trying to kill Superman. The “crimes against humanity” for which Luthor is being tried would have to be his Sun-tampering, global-drought-inducing scheme and perhaps some of the other, unseen global-scale crimes he committed before his alleged reform. (Perhaps he worked out some deal of immunity for past crimes in exchange for his cooperation with the military, and when he broke his end of the bargain by turning back to his evil ways, he forfeited his immunity and was exposed to prosecution for prior supercrimes?)

    • I’m not totally sold on that, but I think it’s ultimately moot, at least for the purposes of this post. “Crimes against humanity,” regardless of their content, aren’t something US courts have jurisdiction over, and tampering with the sun with the intention of causing a global drought is certainly the kind of thing about which the prosecution would need to secure expert testimony.

      • Well, in the fictional universe of the miniseries, a Silver Age-style continuity where humanity was constantly endangered by supervillains of all sorts, there might have been more incentive to develop clearer laws about “crimes against humanity.”

      • I think your point about jurisdiction is something that we laymen have trouble understanding. As I understand it, the United States only has jurisdiction against crimes committed in the United States plus crimes committed in international waters against American citizens so “crimes against humanity” would be difficult to prosecute: you would either need a world court whose jurisdiction the United States recognized (which may be a useful way to deal with supervillains and other terrorists who commit crimes in different countries) or you would need to have each country affected stage its own trial (obviously mostly in absentia) and come up with its own verdict and then have a judge in the country the villain is being held read the final verdict and sentencing. The latter would be a real mess. I know that when Magneto was put on trial it was in the Hague and he only got off because he had been at one point reduced to childhood and re-aged back to an adult, the argument being that he couldn’t be held accountable for crimes he committed in a previous lifetime. (I don’t know if this blog has ever dealt with that trial.)

  5. I seem to recall that under customary international law, predating the various 20th century conventions, pirates are deemed the common enemy of mankind. Any state which allows pirates to operate out of its ports is a rogue state, and all states have authority to prosecute pirates caught on the high seas..

    Terrorists and supervillains could reasonably be classed under the same heading. Acts against humanity committed outside national boundaries would be under the jurisdiction of all states.

  6. What I have to draw exception to is the idea that scientists would have a problem with something that they don’t understand and that appears to violate the laws of physics. The first step would be a cautious double checking to make sure what appears to occur is real and not some kind of mistake, fraud or illusion. When reassured that they’re dealing with a real phenomena, the result will be a feeding frenzy that would make a school of pirahna look like a couple of picky old ladies sipping tea.

    Given that scientific community would have been dealing with weird science since WWII, I’d assume there would be protocols for dealing with it and lots of people working on the underlying principles (assuming it’s real science and not really powered by the “inventor”‘s psychic or magical powers). Real world scientists don’t have an understanding of comic book physics simply because it hasn’t come up.

    • With respect to your first paragraph, the point is less that scientists would never be able to understand the tech in question but that no scientists would actually understand it. The Sixth Amendment guarantees a right to a “speedy trial,” and while there’s no bright-line rule there, Luthor could probably make the argument that waiting the however many years it would take for a scientist to actually be able to offer testimony that would pass the Daubert test would violate his constitutional rights. Basically, if the state isn’t prepared to go to trial within a few months of filing its indictment, there’s going to be a problem. So unless there are scientists lying around who already have a working understanding of Luthor’s tech, this is going to be a problem.

      With respect to the second, comic book timelines are somewhat… interesting. The rule of thumb in the Marvel universe is that superheroes came on to the scene no more than about fifteen years before whatever issue you’re currently reading. They don’t go back and change their history, it’s just sort of an impressionistic take on continuity. So there likely hasn’t been enough time for the scientific community to really get its collective heads around whatever superheroes and supervillains are up to, particularly as the latter are not likely to share their data all that willingly. DC, on the other hand, does tend to have fixed timelines. It just nukes them every so often (and with increasing frequency these days), so the result is about the same: whatever issue you’re reading, the story has only been running in-universe for a dozen-odd years at best.

      One of the main motivators for this does seem to be an attempt to avoid dealing with the long-term effects that superpowered individuals would have on history. Really, if someone like Superman showed up tomorrow, the world as we know it would probably change overnight. He’d be an unbelievably destabilizing influence on the political situation, and really just society in general. So by never really letting their stories progress to that point, the writers can constantly be writing in a world which is only just starting to come to terms with these people rather than taking any significant strides towards really dealing with them.

      • TimothyAWiseman

        DC does have a tendency to restart over and over again. Marvel’s history with the superpowered tends to go back a bit further than 15 years (Some X-men now have children, and a handful of superpowered beings like Mystique and Wolverine have been around individually for a long time), but I agree with your basic point that Marvel goes out of its way to keep the long term ramifications of their mere existence out of the comics.

        Outside of those comic books, certain media deals with it more head on. Much of the backstory of the Watchmen centers around the worl at large dealing with the mere existence of Dr. Mahnhattan. But there he was essentially the only superpowered being (though Vietch/Ozymandias certainly pushed the boundaries and Nite Owl got equipment that would be hard to replicate now, much less in the timeframe of the comics) and he largely worked voluntarily for the government. Also, the “Union Dues” series, which is available on Escape Pod amoungst other places, deals with the issue fairly directly in at least some of its stories.

      • The “current age of superhumans” in the Marvel universe started 10-15 years before the present, on a sliding timeline. However, a significant number of Marvel characters, most notably Captain America, had their start in WWII and this hasn’t changed. Many of these characters originated from or used comic-book super science.

  7. I know the presumption on this blog is, “law is assumed to be the same as in the real world, unless stated otherwise,” but I could see, given the presence of supervillains capable of tampering with the sun, destroying the universe, turning all humans into apes, turning Gotham’s water supply into strawberry jam, etc., states or the federal government creating a “crimes against humanity” statute. There are crimes some of these villains commit which, theoretically, could be prosecuted as “seven billion counts of aggravated assault,” but which might make more sense to hit differently.

    I understand that we can’t assume this, but it doesn’t seem to be a stretch at all, is what I’m saying.

    • I think you’ll find my response to John Kingston useful here. Basically, yes, the legal system would indeed need to adapt to the presence of superpowered individuals. But that’s going to take quite some time, and the writers never seem to let their histories run long enough for that to happen.

  8. Ryan, your Marvel timeline isn’t entirely accurate. John’s right — in the Marvel Universe, weird science has existed since WWII (Captain America, the Human Torch, Sub-Mariner — i won’t bother listing the others). You are correct in that the modern era only stretches back 10-15 years, but WWII is still a starting point for the superheroic age. Functionally, it’s mostly explained by keeping Cap asleep longer and making Sub-Mariner’s lifespan longer (I think the last I read Atlanteans now live 200 years or so). The same is largely true for DC, presuming the Justice Society still exists in whatever continuity we’re in.

    So John’s point is still valid — there would be some sort of track record/precedents regarding 60-odd years of super-science breakthroughs (and I love the feeding frenzy analogy, though I suspect it’s still a bit tame compared to what REALLY would happen). I would think the government would have its own stables of super-scientists (whether under STAR Labs or SHIELD or something else).

    That doesn’t really invalidate your point. It would still probably be tough to obtain expert testimony on bizarre science. But it’s not realistic to assume that no one is following those lines of research.

  9. TimothyAWiseman wrote: “But there he was essentially the only superpowered being (though Vietch/Ozymandias certainly pushed the boundaries and Nite Owl got equipment that would be hard to replicate now, much less in the timeframe of the comics)…”

    As I recall, all the advanced technologies in Watchmen were explained as outgrowths of Dr. Manhattan’s research or of the new physical principles that were discovered through the study of Dr. Manhattan’s nature and abilities.

    • That would certainly make sense, but it has been a long time since I first read it and wikipedia doesn’t immediately have an answer (though it does mention the material for Rorshach’s mask was based on Dr. Manhattan’s work).

      • It isn’t quite certain whether or not some technology (such as Nite Owl’s which was stated to be his own design) came from Dr. Manhattan but most of it probably was.

  10. If it isn’t too much trouble, perhaps we can have a short post on Dr. Doom and diplomatic immunity. An analogy could be with Fidel Castro as the U.S. doesn’t (as far as I know) have diplomatic relations with Cuba which means that Fidel Castro, assuming he would be allowed to enter the United States, would not necessarily (would he?) be granted diplomatic immunity even though he is a foreign head of state. Another analogy could be with Gaddafi (before he renounced terrorism) or Saddam Hussein (between the two gulf wars). Seriously, as a head of state who’s stated objective is to take over the world by force, you have to wonder why NATO wouldn’t launch an assault against Latevaria and be done with it! Ah but I guess most Dr. Doom stories were written pre-911.

    • IANAL, but Ghaddafi regularly came to the United States. New York, specifically, to attend the United Nations. It was kind of a thing, because he usually insisted on staying in a tent, rather than in a hotel. (He was a just a weird dude in general.)

      My understanding is that as the host of the UN, the US agrees to let heads of state attend UN meetings, regardless of the status of diplomatic relations. This story about Fidel Castro coming to New York to attend UN meetings seems to bear me out, but I don’t know how well the reporter actually covered the exact law–they’re rarely all that close on things I have personal knowledge about.

  11. national, ethnic, racial, or religious group

    If superman is an US citizen he can’t be a national subgroup. And as he is an alien, does the rest apply?

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