Law and the Multiverse Mailbag X

In today’s mailbag we have questions about ‘Batman, Prosecuting Attorney’ and supervillain jury tampering.  As always, if you have questions or post suggestions, please send them to james@lawandthemultiverse.com and ryan@lawandthemultiverse.com or leave them in the comments.

I. Batman, Prosecuting Attorney?

Christopher writes with two questions.  First: “I was watching the 60’s Batman episode ‘The Joke’s on Catwoman.’ … Batman captures the Joker, Catwoman, and her henchmen. Presumably he arrests them, as he seems to act as a law enforcement officer in this show. Then he acts as prosecutor at their trial (no doubt he is a member of the bar). Seems pretty strange, but is this actually allowed? I started wondering whether the sheriff in a Wild West town might do this if there were no one else around to prosecute the case.”

There are three main problems with this arrangement.  First off, it’s pretty unlikely that Batman is an admitted member of the bar because he would have to be admitted as Batman, not Bruce Wayne lest he give away his secret identity. While attending law school is not a necessary prerequisite of becoming an attorney in some states (actually, quite a few states didn’t require this in the 1960s), it is doubtful that Batman found the time to “read law,” i.e. work as an apprentice in a law firm for a few years before taking the bar exam.  While a frontier town might have employed a non-lawyer as a prosecutor out of necessity, the frontier era also preceded the relatively modern era of professionalization and standardization in legal education and licensing.  And the exigent circumstances of a frontier town hardly apply to Gotham City.

Further evidence that Batman wasn’t admitted is found in his questionable conduct of the trial (e.g. asking witnesses to testify regarding ultimate issues of guilt).  Of course, the defense attorney didn’t object, and some judges are happy to let such things slide if there’s no objection, so we won’t go into detail on that except to say that, were they found guilty, the defendants might have an ineffective assistance of counsel argument on appeal.  Normally such arguments are long shots, but this was pretty bad.

Second, Batman would be unable to serve as prosecutor because generally an attorney cannot be an advocate in the same case in which he or she is likely to be a necessary witness.  Since the defense could call Batman as a witness even if the prosecution did not, this is a problem.  ABA Model Rule 3.7, which has been adopted in almost every state, provides:

(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless:

(1) the testimony relates to an uncontested issue;

…

(3) disqualification of the lawyer would work substantial hardship on the client.

Presumably the defendants would contest the issues that Batman’s testimony relates to, so exception (1) is out.  And I have a hard time believing that the government couldn’t come up with a competent substitute prosecutor, so there goes exception (3).  The second exception, which deals with testifying about the value of legal services, is inapplicable here.

(For the pedants in the audience: the episode long predates the Model Rules and even the predecessor Model Code, but a rule against lawyer-witnesses was a part of the ABA Canons of Professional Ethics, which dates to 1908.  The result under the Canons would have been much the same.)

Third, Batman could have been disqualified because of his clear conflict of interest in the case.  There is a “broader consideration of whether on the facts of a particular case, the adversarial nature of the judicial process has resulted in such enmity toward the defendant on the part of the prosecutor that it will overbear his professional judgment in seeking fairly and impartially to see justice done.”  Powell v. Commonwealth, 267 Va. 107 (2004).  Batman’s long and acrimonious history with the Joker and Catwoman likely rises to that level.

Thus we can fairly safely conclude that Batman should not have acted as prosecutor, and in fact the defense attorney could have successfully challenged Batman’s appointment for cause.  That he didn’t shouldn’t be too surprising, however, since he knew the case was a lock because he tampered with the jury, which brings us to the second question.

II. Supervillain Jury Tampering

Christopher also asks “At the end of the trial, it is absolutely obvious to the judge and everyone else that the defendants have been proven guilty, but the jury returns a verdict of not guilty, leading everyone to suspect the jury has somehow been tampered with. The judge can’t do anything but make a statement upbraiding the jury for their outrageous behavior. What would actually be done at this point? Later, it is discovered that the defendants managed to infiltrate the jury with accomplices. What would the law do at that point?”

Here the law is pretty clear.  “A judgment of acquittal, whether based on a jury verdict of not guilty or on a ruling by the court that the evidence is insufficient to convict, may not be appealed and terminates the prosecution when a second trial would be necessitated by a reversal.”  United States v. Scott, 437 U.S. 82, 91 (1978).  This is a core part of the prohibition against double jeopardy, and it is an absolute bar, even if the jury was clearly acting contrary to the law and the facts.

So what’s to be done in a case like this?  The answer is that the State (as represented by Batman) had a full opportunity to challenge potential members of the jury during voir dire (i.e. jury selection).  The prosecution could even have moved for a mistrial when the jury refused to retire for deliberation; that should have been a sure sign something was up.  But if the State falls down on its job and a guilty defendant goes free, them’s the breaks.  The Constitution does not allow the State to try again until it gets it right.

All is not lost, however.  The jurors are probably guilty of perjury or the like, since during voir dire they were almost certainly asked if they knew any of the defendants.  So the jurors at least could be punished for their part in the scheme.

As for the defendants, as is so often the case their own foolishness lead to their downfall.  After Batman tried to move for a new trial they started a courtroom brawl and were recaptured, so they would at least face charges of assault and probably conspiracy to commit murder (the jury foreman pulled a gun on Batman at Catwoman’s order).  But if they had stayed quiet they would’ve gotten away it.  Maybe they should have gotten a better attorney than “Lucky” Pierre.

Note that this is not the case in civil trials. The right against double jeopardy only applies in the criminal context; judges routinely order new trials in civil matters when there has been some uncorrectable foul-up. They don’t like doing it, because it’s viewed as a waste of time and resources by just about everyone, but they will do it if necessary. In addition, judges are not so strictly bound to jury verdicts in civil cases and are entirely capable of entering judgment notwithstanding the verdict, known as a “JNOV” if the jury refuses to return a verdict consistent with the evidence. So just because the Joker could have objected to the above trial doesn’t mean he couldn’t be sued on civil charges, and as new trials are possible in civil cases, jury tampering isn’t nearly as effective a device as it is in criminal cases.

Bonus: One of the charges against the defendants was “mayhem.”  Mayhem is a felony descended from the common law, and a typical modern definition is “unlawfully and maliciously depriving a human being of a member of his body, or disabling, disfiguring, or rendering it useless, or cutting or disabling the tongue, or putting out an eye, or slitting the nose, ear, or lip.”  Cal. Pen. Code § 203.  A bit gruesome for an Adam West Batman villain!

That’s all for today!  Keep your questions and ideas coming in!