Earlier this month, I was fortunate enough to receive an advance copy of Silence & Co.: Money Is Power from its author, Gur Benschemesh. This is his first graphic novel, but the artist (Ron Randall) and letterer (John Workman) both have a long list of titles to their name, many with DC and Marvel. Silence is the story of Alexander Maranzano, the illegitimate but acknowledged youngest son of a major New York crime boss. After getting out of the Marines (for reasons which turn out to be important), he starts working as a hit man for the family. It’s a complete work in three acts, it avoids many of the common pitfalls in crime graphic novels, and it’s got one of the most realistic takes on the process of surveillance I’ve seen so far. Silence is scheduled to hit stores this May, but we’re taking an advance look at its handling of legal issues now.
I. The Criminal Trial
At one point, the judge in a criminal racketeering case is assassinated. A news reporter covering that event says three things about the case. First, that the death of the judge will likely result in a mistrial or new trial. Second, that the prosecution is worried about statute of limitations issues. Third, that the prosecution’s star witness has also recently died, of suspected foul play. We’ll look at each of these in turn.
A. Death of a Judge
This one is actually not that big of a deal in terms of criminal procedure, and for good reason. Fed. R. Crim. P. 25 provides that if a judge in a trial becomes unable to continue for any reason, including death, that any other judge in the district may take over upon certification of familiarity with the record. There is no provision for the grant of a new trial unless a verdict has already been rendered, and even then it is disfavored. So no, the assassination of a federal judge will not derail or otherwise affect an ongoing criminal trial other than a delay of perhaps a few days while the successor judge brings themselves up to speed.
This is for a very good reason, i.e., we don’t want criminal elements thinking that killing judges is likely to do them any good. So the rules provide for just about no benefit to criminal defendants pre-verdict and only minimal benefit post-conviction.
Things are slightly different in a civil case, in that there is a provision for granting a new trial if the successor judge thinks it would be unfair not to do so. But it’s disfavored there too.
B. Statutes of Limitations
There aren’t going to be statutes of limitations issues either. It’s clear that the design was to ramp up tension on the prosecution and even provide some motivation for the assassination of the judge by adding time pressure to the mix. But it doesn’t work that way. Once charges have been filed, they don’t need to be re-filed upon a substitution of the judge. But even if they did, they would almost certainly be found to relate back to the date that the first charges were filed.
Even more, this is likely a RICO case (18 U.S.C §§ 1961-68), as that’s what the feds use to go after organized crime these days. In its most basic form, if an “enterprise,” i.e., a criminal organization, is found to have committed two “predicate offenses,” i.e., crimes from a rather expansive list, within ten years of each other, then members of the enterprise can be charged with racketeering, a serious felony. The most obvious benefit of this statute is actually the forfeiture and sentencing provisions, which include treble damages and attachment of property pre-judgment. But it’s also of benefit for statute of limitations purposes. RICO has no limitation of its own, so it defaults to the five-year limitation in 18 U.S.C. § 3282. But the way this has been interpreted in the RICO context is that charges only need to be filed within five years after the last predicate offense. So the prosecution can potentially look back fifteen years from the date charges are filed, five from the date of filing to the last predicate offense, and then ten years from the last predicate offense to find another one. So even if charges hadn’t been filed, the only way the statute of limitations would be a problem is if the defendant had gone clean for fifteen years. That not being the case here, the statute of limitations is not an issue.
C. Death of a Witness
But the death of a witness definitely is. It’s not clear from the text whether the witness was killed before or after he testified. If it was before, that could sink the whole case right there. Charges have been dismissed for less. But even if it was after, that could still be a problem. If a new trial was ever ordered, either as a result of the death of the judge (very unlikely) or the result of a criminal appeal (entirely possible), they’d lose access to that witness. His prior testimony would be admissible (Fed. R. Evid. 804(b)), as prior testimony is an exception to the hearsay rule, but may not be as good for the prosecution as having him live a second time. So the loss of a witness is a huge deal.
II. Alex’s Detention
But the way the book handles Alex’s detention by the FBI is spot on. At the scene of the crime, two agents discuss the killing of Judge Walker. They both suspect Alex of the killing, as he’s been a person of interest in numerous murders related to the Maranzano crime family since he was discharged from the Marines. Much to their frustration, they’ve never been able to pin anything on him. But one of the agents has information from an informant that suggests that Alex uses a special, monogrammed gun which was a gift from his uncle Saul for hits like this one. The agents believe that Alex is unlikely to dispose of such a gun, and thus that the gun will be in Alex’s apartment. But they don’t actually have anything concrete to link him to this particular crime. Just suspicion.
Whether or not that’s probable cause turns out to be irrelevant, because even if the agents could have gotten a warrant, they don’t. They show up at Alex’s apartment, break the door down, and insist that he come down to the station for questioning. Without a warrant, this is generally illegal. Police may not arrest individuals in their homes, or take them into custody for questioning, without a warrant unless the suspected offense is serious and there is reasonable cause to believe that the suspect will destroy evidence or poses an immediate danger to the public. Killing a judge is clearly a serious crime, but there doesn’t appear to be probable cause to suspect that Alex is going to destroy any evidence he hasn’t already destroyed nor that he poses any immediate danger to the public. The agents also search the place and find the gun. Again, without a warrant, this is also illegal. The Fourth Amendment protection from unreasonable searches and seizures is in full force.
So the police screwed that one up. There’s the implication that they’re dirty, or at least not playing by the books (this will come out in more detail later), but it would hardly be the first or last time that this has happened, so it’s believable enough. But what happens next is classic, and a great example of getting it right. When a suspect is questioned in a police procedural, their lawyer is almost never present, and they almost always talk way more than they should. In this instance, Alex’s lawyer is right there, and Alex does the smart thing and keeps his mouth shut. And that gun which was obtained in an illegal search? Not the gun that killed the judge. Actually, it was, but Alex had switched the barrels out and tossed the one he used for the hit. So the gun that the police have does not show any evidence of ever having been fired. When this comes out, Alex’s lawyer does the right thing: he insists that the agents either charge Alex with a crime or let him go. So the agents have to let him go.
That’s how that’s supposed to work. Citizens may not generally be arrested without a warrant, and when they are arrested, they need to be arraigned as soon as practicable. They’re not allowed to let you sit in jail while they investigate the case and eventually decide whether or not to charge you. Once the arrest is made, things have to roll pretty quickly. It’s great to see someone finally get that right, and Alex’s skill in anticipating and subverting the agents’ skirting of the rules was fun to watch.
Silence & Co. is a fun read. It’s definitely on the crime noir/thriller side of things, which is handled in prose more often than graphic novel form, so it’s nice to see that. And the legal issues are handled far better than average for this medium. I’m told that the book is slated for release in May, so keep an eye out!