The Joker

We’re not talking about The Joker in general here, but rather the 2008 graphic novel by Brian Azzarello and Lee Bermejo. It’s got two legal issues up for discussion, one major, one minor. First, there’s the issue of a specific outcome of an insanity proceeding. Second, there’s the matter of what appears to be divorce papers. We’ll discuss each in turn.

I. Criminal Insanity and Parole

The premise of the story is that the Joker is being released from Arkham Asylum because he’s convinced his minders that he’s actually sane. This shouldn’t come as any surprise to our long-term readers, as we concluded back in January 2011 that the Joker probably isn’t insane, and then that he’s probably competent to stand trial. But we’ve still got a problem here. The book suggests that (1) the Joker was involuntarily committed because he was deemed insane and (2) that he isn’t insane anymore, so he’s being set free.

A. Civil Commitment

We need to know more about the facts and the law to know if this is the way it would actually work. If he was simply committed in the absence of criminal charges, this would be called “involuntary commitment,” “civil commitment,” “civil confinement,” or any number of related terms for the process by which the state puts people deemed dangerous to themselves or others in mental or support facilities. Exactly how this works varies somewhat from state to state. Some states will let basically anyone who suspects someone of being a danger to petition for an evaluation of their mental health. Others restrict this to “interested parties,” and D.C. restricts that to police officers, physicians, and mental health professionals. Regardless, it would involve convincing a judge to order the mental evaluation of the subject and for the evaluating psychiatrist to conclude that the person was, indeed, in need of confinement. The standard for where that need arises also varies somewhat.

But the important thing is that the “danger to one’s self or others” standard doesn’t generally encompass “is a murdering bastard”. It’s most often used in situations where the person doesn’t understand what they’re doing, can’t keep themselves safe, and might unintentionally engage in dangerous conduct, the implications of which they can’t understand. So having the tendency to light fires because one has a diagnosed, unrestrainable pyromania or because one simply doesn’t understand the danger might be grounds for commitment, but being a dedicated and intentional arsonist who is otherwise capable of taking care of himself wouldn’t. Otherwise the police would simply go around civilly committing anyone whom a psychiatrist believed was likely to commit a crime. That’s not how that works.

B. Criminal Commitment

So the conclusion is that the Joker was probably committed due to some sort of criminal proceeding. The characters certainly seem to imply that he was in Arkham as the result of a prosecution—they talk about the Joker as if he were serving a prison sentence, not as if he had gotten caught up in the mental health system—though it isn’t spelled out either way. But there are several ways in which he might have ended up in Arkham via the criminal justice system.

First, he could have been deemed incompetent to stand trial. Again, we discussed that last year, and this is very unlikely. To be deemed incompetent, a person must have an almost complete lack of understanding of what’s going on around them to the point that they cannot provide assistance to their defense attorneys. This is a very high bar to meet, and the Joker doesn’t seem to do it. He’s in full possession of his faculties, he’s just evil. But either way, this isn’t how that works. A criminal defendant deemed incompetent doesn’t have his charges dismissed. He’s just kept in a state facility until such time as he is deemed competent. So if this is what had happened, rather than being released, the Joker would just be moved to the county jail and his prosecution would finally start. So that’s not it.

Second, he could have been found “guilty but mentally ill.” About twenty states permit this plea or verdict. Essentially, rather than being acquitted, the defendant is found guilty and in need of mental health services. They are turned over to the prison system as normal, but they are also supposed to receive additional mental health services. In practice, they frequently don’t, as such services are expensive and prisons everywhere are overcrowded and under-funded. But the upshot is that a defendant found GBMI will only be released if they both serve their sentence and are found mentally healthy. If they serve their sentence but are mentally ill, they’ll be kept until such time as they’re found to be healthy. But if they’re found to be healthy and have time left to serve, they stay there until they serve their time as normal. This doesn’t seem to be a particularly likely option either, because if the prosecution has enough evidence to get a GBMI result to stick, he’d probably have a solid few centuries of prison time left to serve.

This leaves us with the third option, an acquittal by reason of insanity. We think this is unlikely—we also think that the GBMI result is unlikely—because the Joker probably doesn’t meet the definition of “insanity” here. He understands that his actions are wrong and he understands their consequences. But the story, like all Batman stories these days, assumes that the Joker is in Arkham because he’s insane, so we’ll just have to go with it. If a person is acquitted by reason of insanity, they’re generally confined until such time as they’re deemed to be mentally healthy. Here, apparently, he’s convinced his minders that he’s sane, and he’s immediately let go. This seems somewhat implausible, as he doesn’t seem any different than he normally is. The Joker never really seems to meet the legal definition, so why he should be committed before and released now with no perceptible change in behavior doesn’t seem to make a lot of sense. But as it’s the only legally likely result, we’re going to have to go with that.

So, for this story to work, the Joker must have been charged with a crime, pleaded not guilty, then been tried and acquitted by reason of insanity. The other main possibilities either wind up with him never being committed or never getting out.

II. The Divorce Papers

One of the characters is apparently in the midst of a divorce. At one point he’s served papers which read “Divorce Document. This is a divorce document that states that Johnny is being divorced by his wife and that he will not be able to visit his kids.” There’s a signature line for the wife with an indication that the wife’s attorney has waived his signature. It then reads “I hereby agree to the terms of this Divorce and will abide by them according to Gotham City and U.S. Government Law.” Then there’s a signature line for Johnny. At the bottom, it reads “Official Gotham City Document.”

That’s… not how that works. Any of it, really. “Divorce documents” are basically pleadings in civil cases. They’re litigation. Where’s the identification of the parties and the court? And they aren’t “official city documents,” they’re part of the public record in a court proceeding, and they’re drafted by the parties or their attorneys. Further, there is no federal divorce law. Family law is entirely state law. So the whole thing is nonsense. The artist would have been better off just titling the document “Divorce Decree” and going with lorem ipsum for the rest of it. This is one of those places where it’s better just not to try.

III. Conclusion

So it seems that for the story to work at all, the Joker needs to have been acquitted of criminal charges by reason of insanity. But the divorce papers don’t work at all. Should have just punted on that one.

25 responses to “The Joker

  1. James Pollock

    “Family law is entirely state law.”
    What about citizens who live in trust territories or other areas subject to United States, but not any of the 50 states, jurisdiction? Do they have to travel to a state to get married? (Obviously, I didn’t take family law, and oddly, this subject didn’t come up in Civil Procedure…)

    • Melanie Koleini

      Territories can pass laws too. The territory of Utah outlawed polygamy before it became a state. I think Puerto Rico has a non-voting member in the House of Representatives.

      • James Pollock

        Sure territories can create their own law… but the source of this authority is the federal government. (Yes, Puerto Rico has a non-voting Congressional delegate; so do the Pacific territories and the District of Columbia.)

    • I smell editorial insistence upon still trying to keep Gotham’s location vague beyond “on the Atlantic coast of the United States”-level detail behind the phrasing of that document.

  2. I wonder if some part of the publishing industry could just print a basic guide on things like law as a primer for writers. Clearly it would be stated to not actually advise a person of whether or not what they were doing was legal and it should not be taken as legal advice, but a guide to better writing based on the basics of American law at the time of writing. I can’t see it society changing so much that pointers like ‘family law is purely state law’ would be outdated in ten or twenty years.

    • Such books do exist. For example:
      The Writer’s Guide to the Courtroom
      Books, Crooks and Counselors: How to Write Accurately About Criminal Law and Courtroom Procedure
      Police Procedure & Investigation: A Guide for Writers

      I’ve never read any of those, so I can’t recommend them personally.

      To get a general sense of American law over the centuries (valuable for anyone writing outside the present day), I would recommend Lawrence Friedman’s A History of American Law. That one I have read.

      Without putting too fine a point on it, though, we kind of hope that our own book might fit that niche, at least for comic book writers.

      • I own Friedman’s book, along with a few others of his. I’d definitely call him essential for breaking complex law into the basic concepts and reasons.
        A side note, you’d be amazed how irritating citations become when you have three Friedman’s and two Marx’s to quote.

    • James Pollock

      The question, of course, is whether or not it’d be worth the time and effort to learn enough law to get the details right. Sure, the lawyers in the audience snicker over the mistakes, but most of America doesn’t recognize them… A very similar problem exists with fictional information technology. The writer doesn’t know how anything works, so they just make stuff up… and it doesn’t matter because most of the public doesn’t really know how information technology works, either. Sadly, most media “Science fiction” is short on science, too. The writers just throw some futuristic-sounding jargon at it and move on.

      • You are right, but it can be somewhat frustrating since the public can start to think that is how it works, especially if similar descriptions are repeated by numerous authors.

      • James Pollock

        You take the good with the bad. Every adult American in the country can list their Miranda rights because the TV cops read them off… although they tend to do it in situations where the real cops might not, so people think that if they weren’t read their rights when they were arrested, they can’t be convicted. Win some, lose some.

  3. A criminal defendant deemed incompetent doesn’t have his charges dismissed. He’s just kept in a state facility until such time as he is deemed competent.

    How does this interact with Statute(s) of Limitations? If there’s a statutory limitation on prosecution of a given crime, can someone be held for incompetence longer than that limitation? Does a given statute’s clock run while they’re being held?

    • Ryan Davidson

      Once charges are formally brought, statutes of limitations don’t matter anymore. The time limit is on the initiation of legal action. The involuntary commitment for incompetency is essentially an indefinite stay on the action. But because it’s been initiated, there’s no issue with the statute of limitations.

      • Ah, that makes sense thank you. Lay reader here, and from Canada yet, so forgive the basic question. 🙂

      • James Pollock

        Does a verdict of “guilty but insane” start the clock running on a prison sentence, or is the sentence stayed until the person is released from the (secured) mental health system? (Thinking of the McMurphy scenario, here.)

    • It’s a bit complicated, but basically the statute of limitations is tolled (i.e. paused) by the indictment, and since the incompetency argument isn’t made until after the indictment, the statute of limitations is no longer running while the defendant is undergoing treatment. For example, in Ohio, it basically works like this:

      1. The defendant is indicted but is found incompetent.
      2. The defendant may be subjected to involuntary treatment for up to a year (depending on the offense charged) in an effort to restore competency.
      3. If that fails, then the court may, under certain circumstances, retain jurisdiction over the defendant while having them civilly committed.
      4. At various points the defendant’s competency will be reevaluated. If competency is restored, then the defendant may go to trial.

      It’s a fairly complicated statutory scheme, but State v. Williams, 126 Ohio St.3d 65 (2010) tries to break it down (and also held it to be constitutional).

      • That’s fascinating, thanks for the detail. I keep a huge book of detailed bits of writing ideas, just little tiny snippets, stuff that makes the world feel real for the reader who knows it’s true.

        This is definitely going into it.

        This is also hardly the first time your work will make an appearance there! 🙂

  4. Donald Postway

    I was wondering how impossible would it really be to get the Joker acquitted by reason of insanity. I understand there are serious complications that would prevent a lawyer from believing that the Joker should be acquitted by reason on insanity, but I’m not sure that necessarily would transfer to jurors. I think it would be more conceivable than you suggest in the post. I think the Joker’s defense could make a plausible case for acquittal.

    What it boils down to would be the statement “He understands that his actions are wrong…” The Joker’s MO is hard to pin down, but one common interpretation is that the Joker views the violence and mayhem he causes to be part of a joke. It can be argued that he doesn’t understand that his actions are wrong, he merely thinks that everyday people like you or I fail to “get the joke.” He has a defect of the mind that prevents him from showing remorse or compels him to do more outlandish “jokes” in an attempt to make other people enjoy his form of “humor”. The Joker doesn’t think his actions are any more wrong than a mime on the sidewalk. To the Joker, mass murder and mayhem are just a form of performance art to him.

    Also, since the Joker’s crimes normally encompass all of Gotham, the defense could easily move for a change of venue. Once out of Gotham, painting Joker as the deranged product of the evils of Gotham City could possibly carry more weight with jurors than it would to someone who deals with the Joker’s schemes personally on a regular basis. The trial itself would offer more fuel to the fire. Every interview of the Joker with a psychologist or any courtroom interaction would lend credence to the “he thinks it’s a joke” argument. The Joker would laugh as he recalled the murders, show no remorse for his actions, talk about the situation as if he were describing a joke, continue to tell new inappropriately evil jokes with no regard for his situation, etc.

    Even if you can argue that he knew he was doing something illegal, one could counter that he didn’t understand the severity. Running from the scene of the orphanage he blew up would seem as minor as running from the cops after vandalize a mailbox. And since edgy, modern art sometimes involves breaking some laws (minor or otherwise), it fits into the idea that he didn’t know that what he was doing was wrong in the way that murder is wrong.

    I think the reason why it is so easy to disregard the insanity defense for the joker is that we know he’s sane enough and deadly enough to deserve the highest punishment. We’ve heard/read his private conversations, seen his machinations unfolding, and otherwise been privy to a point of view the average juror would not be able to get. And if there is one thing the legal system has taught us it’s that you only need to convince 12 people to get someone off. And not 12 incredibly intelligent people with college educations, good rational thinking skills, and the like. It’s 12 ordinary citizens. If you can convince 12 people that supposedly botched DNA sampling erroneously produced evidence linking the crime to the most likely suspect, then anything is possible.

    I think this would lead to the situation you described before where a) the Joker is tried, but b) found not guilty by reason of insanity, but c) committed to Arkham because of the danger his poses to himself and others.

    Sadly, I am no lawyer, so I look forward to seeing the legal flaws in my argument.

    • Ryan Davidson

      The Joker doesn’t think his actions are any more wrong than a mime on the sidewalk.

      Except he really doesn’t talk that way most of the time. A person who truly didn’t understand what he was doing would be surprised that the cops were after him. The Joker expects and even revels in it.

      Even if you can argue that he knew he was doing something illegal, one could counter that he didn’t understand the severity.

      You misunderstand the concept here. He understands that he’s killing people. That’s what’s important. If a man cuts his wife’s throat thinking it’s a loaf of bread, that’s one thing, but the Joker doesn’t seem to be under any delusion of that sort. He knows the consequences of his actions, and even if he doesn’t car that what he’s doing is evil, he still knows it. “I didn’t know it was a felony!” isn’t the sort of objection that’s going to get you anywhere.

      Note that insanity defenses are employed only about 1% of the time and successful only about 25% of that. This is because jurors are very, very reluctant to let someone off whom they believe has committed the acts charged. Further, in the vast majority of cases where the defense is successful, there’s been some kind of previous diagnosis of mental illness. With what, exactly, are we going to diagnose the Joker? He’s not hallucinating. He’s not delusional, i.e., he doesn’t believe things that aren’t true. It’s possible, if horrifying, to follow his chain of thought. He’s not catatonic. He doesn’t have any obvious thought disorders, i.e., he’s literate and numerate. He doesn’t seem to have any obvious mood disorders. In short, other than the fact that he’s a homicidal freak, there doesn’t seem to be anything wrong with him. He’s someone who’s looked modernity in the face and basically concluded “Okay, that’s gotta go.”

      • Donald Postway

        Thank you, I have a better understanding now of why the Joker is “legally sane”, but to be fair, I always thought that he was. The point I think I was trying to make, is that the arguments I laid out before could be used in defense of the Joker and that it could be accepted by jurors. The penultimate example I think would be John Hinckley Jr. He was just as legally sane as the Joker (you can insert Hinckley’s name in place of the Joker in your reply to my post and the analysis would still be accurate), and yet the defense was able to convince the jury to find him not guilty by reason of insanity. The prosecution certainly argued that Hinckley didn’t meet the legal definition, but the defense’s argument won the day.

        Most Americans, according to some polls at the time, felt that Hinckley was guilty and that justice had not been served. But as I said in my original post, you don’t have to convince “most Americans”, you only have to convince 12 people.

        I know that the standard for insanity defenses has changed since (and because of) Hinckley. So I realize that parts of my analogy may not hold up in a modern court.

        The other point I wanted to make was to your point that there is no diagnosis for what the Joker is afflicted with and no prior diagnosis of mental illness. Does it matter that the defense could easily find psychiatrists and doctors who were willing to testify that the Joker has an untreated case of a disorder, even if they hadn’t been treating the Joker prior to the trial? I know that these doctors would not be allow to say that the Joker is legally sane or legally insane, as this would violate the rules of evidence. But this wouldn’t prevent them from providing expert testimony about the Joker’s mental state outside of a legal context (i.e. they wouldn’t be able to sane the Joker is legally insane, but they could say that they believe the Joker is suffering from schizophrenia).

        A follow-up question or possible post topic is: What would writers need to do to make character’s more legally insane?

        As I said before, I’m no lawyer, so I thank you for entertaining my questions.

      • Ryan Davidson

        Jurors are–rightly–skeptical of expert witnesses a lot of the time. In the vast majority of cases where the defendant mounts a successful insanity defense, he had been diagnosed before he was charged with a crime. A psychiatrist treating a patient in the normal course of his business is going to be viewed much more positively than anyone hired by either side after litigation has started.

        So yes, a defendant can potentially hire a psychiatrist after the fact, but having that diagnosis before the crime is what makes the difference in most cases.

        The problem with making criminal insanity more plausible in fiction is that most crazy people aren’t interesting or even villainous. They’re almost uniformly a sad, pathetic lot, and if they’re dangerous to anyone it’s because they simply aren’t in control of their actions. Mental illness isn’t pretty. People with significant mental illness can sometimes have difficulty planning as cleaning themselves, let alone devising a plot to destroy a city or conquer the world. People drool. They’ve been known to eat their own feces. They can ramble to no purpose and obsess about trivial or delusional details. They frequently have trouble holding down jobs or apartments; a significant portion of the homeless population has some diagnosed or diagnosible mental illness. They sometimes forget who, where, and when they are. Of these sorts of people are not compelling villains made. So a character that is portrayed as insane but is entirely capable of dressing, feeding, and cleaning themselves isn’t true to life.

        It’s my personal belief that villains are frequently portrayed as “insane” because casting them as sane-but-evil would make for a far, far darker story than would have been acceptable to under the Comics Code. So the Joker needs to be “insane” because you couldn’t write a character that did all of those things and who wasn’t insane until the collapse of the Code. Creators had been slowly moving away from it since the 1980s and the Code c0llapsed entirely in the early 2000s. But the Joker, the Riddler, and most of the other “insane” comic book characters have all been around for decades, and it’s just part of their fixed characterization. By contrast, Bane, a more modern villain, isn’t insane at all.

      • “Note that insanity defenses are employed only about 1% of the time and successful only about 25% of that. ”

        And even that stat is a little misleading, because it includes cases where the defense asked for and the prosecution agreed to the disposition, or the judge ordered it prior to trial. The actual jury verdict rate is only about 25% of the “successes”.

        Of 1600 cases, 16 (1%) use the defense. 4 of those are successful (25%). But only 25% of those four were from a jury verdict. The other 3 were usually worked out as a plea deal or court order. That is, everyone agreed ahead of time the defendant was insane.

        So remember those odds. Only 4 in 1600 have a successful chance of using the insanity defense, and only one of those 4 will get the verdict from a jury.

    • Melanie Koleini

      Would the Joker really just need to convince 12 ‘ordinary’ people he was insane? As has been pointed out before, legal insanity is different than the common view of insanity. Could the judge in the case block the Joker’s lawyer from arguing he was insane in front of the jury?

      • No. He is entitled to claim the defence of insanity if he so chooses- and in any normal, non-Gotham setting, it would fail and he would be found guilty of everything. The judge is not allowed to tell you what your plea is, since that would mean he could tell the Joker “you’re not allowed to plead not guilty”.

        If the danger is that the judge believes that the jury is likely to buy his act in spite of all the overwhelming evidence to the contrary, then that is no different from him fearing that he (or, say, someone they actually like) will be found innocent if he entered a “not guilty” plea. It sucks, but there is little he can do about it other than, possibly, declaring a mistrial on the grounds of jury misconduct and starting again with twelve different people.

        Obviously this shouldn’t matter anyway since Arkham isn’t supposed to be a cushy alternative to prison in the first place, and the Joker will inevitably break out of any institution they put him in regardless of whether it’s a mental health one or an actual prison, but that’s Gotham for you. If the system worked then ideally either the Joker would be found “Sane, but mentally ill” (in which case he’ll be sent to Arkham and if he is ever “cured”, packed off to prison, or stuck in Arkham forever), criminally insane (Arkham again, but again stuck in Arkham forever), or “Guilty”, in which case either multiple life sentences and / or the death penalty. The biggest problem is not his defences, but the fact that he keeps escaping or even being released.

      • Correction- “Sane but mentally ill” means that he would be thrown in jail but would be given additional mental health treatment, e.g. he would periodically visit a psychiatrist, he would be on medication etc. My mistake.

  5. It’s entirely unrealistic that a character like the Joker would ever just be released from custody, whether he was determined to be “sane” or not. Charles Manson clearly had some mental issues but they didn’t rise to the level of legally insane and although he goes up for parole every so often, having avoided the death penalty by the pure luck that capital punishment was declared unconstitional for a few years shortly after he & his gang had been sentenced, the sheer notoriety of his crimes ensures neither he nor his accomplices will ever be paroled. Similarly, if a character like the Joker was ever captured and found guilty of the serial murders he has committed as depicted in the comics, it is highly unlikely he would ever be set free. And if, after the Joker has escaped and committed more murder and mayhem multiple times, Batman happened to “accidentally” kill him while trying to reapprehend him, the populace, including the police, would be more apt to cheer than to condemn Bats.

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