Category Archives: constitutional law

Gotham City: Daydreams and Believers

This story was just a one-shot, written basically as a letter from the office receptionist, Stacy, to a friend on the West Coast. There isn’t a crime to be solved here as such, but it’s the most in-depth exploration of the relationship between Batman, the Bat-Signal, and the GCPD we’ve got on record. This implicates the state actor doctrine we’ve been talking about for a while and the discussion we started in our post about “In the Line of Duty”. But it adds two little details which complicate the analysis. Continue reading

Law and the Multiverse Holiday Special: Batman: Noel

For this year’s Law and the Multiverse’s Christmas post, we’re going to be taking a quick look at Batman: Noel, the graphic novel written and illustrated by Lee Bermejo that came out last month. It’s a sort-of retelling of Charles’ Dickens A Christmas Carol with Batman as Scrooge and various other characters as the ghosts of Christmas Past, Present, and Future. Well, maybe more like Batman’s Past, Present and Future. But it’s set on Christmas Eve, so hey. There you go. The main thing we’re going to be taking a look at is the legality of using wireless tracking devices without a warrant. Continue reading

Magneto’s Scheme in the X-Men Movie

This is a question we got a while back from Christopher, who wondered about Magneto’s evil plot in the 2000 X-Men movie.  In the movie, Magneto devises a plan to win respect for mutants by turning the world’s leaders into mutants, starting with a particularly anti-mutant U.S. Senator, which would force them to see things from the mutant perspective.  But what if the plan backfired, and anti-mutant sentiment led to an effort to remove the leaders from office?  In particular Christopher wanted to know about the President.*  There are four ways we can think of for getting rid of the President: two might actually work, one is tenuous for legal reasons, and one is tenuous for practical reasons.

* If you’re wondering, Senator Kelly could have been removed by expulsion by the Senate itself, impeachment, or constitutional amendment (more on those last two later).  The Senate, like the House, has the power to decide whether its members meet the constitutional requirements for election but may not do so in order to discipline its members.  Powell v. McCormack, 395 U.S. 486 (1969).

I. Impeachment

Strictly speaking, impeachment refers to charging an official with misconduct, not the resulting trial or getting kicked out of office.  It’s basically an indictment.  At the federal level, the President can be removed from office on impeachment for and  conviction of treason, bribery, or other high crimes and misdemeanors.  U.S. Const. art. II, § 4.  Getting the ball rolling requires a simple majority in the House, but conviction requires a two-thirds vote in the Senate.  The conviction cannot be reviewed by the federal courts.  Nixon v. United States, 506 U.S. 224 (1993) (NB: this was a case about a federal judge named Nixon, not former President Nixon, who was almost-but-not-quite impeached before he resigned).  Nor can the new President (i.e. the former Vice President) use the pardon power  to reinstate the ex-President.  U.S. Const. art. II, § 2, cl. 1 (impeachment is expressly excluded from the pardon power).

On the one hand, it’s unlikely that being a mutant would qualify as a “high crime or misdemeanor.”  The phrase is misleading to modern ears, and it encompasses more than just criminal acts and includes maladministration and subversion of the Constitution.  But even these broader terms require some kind of overt act or omission; simply existing as a mutant wouldn’t seem to qualify.  On the other hand, no one is perfect, and some trumped-up charge could probably be dug up.  Besides, the impeachment and conviction aren’t reviewable by the courts: once you’re out, you’re out.

The major downside of the impeachment route is that it’s still a trial, and since the Chief Justice of the Supreme Court would preside over the case, it’s unlikely that Congress could make a complete mockery of the proceedings.  The President would have the opportunity to present evidence and call witnesses, which buys a lot of time for building public support against removal.

II. The 25th Amendment

The 25th Amendment addresses the problem of Presidential succession.  This includes not only what to do if the President dies, resigns, or is removed from office (the Vice President takes over) but also what to do if the President is nonfatally disabled (the Vice President takes over as acting President).  This second option can be voluntary (e.g. for a planned surgery during which the President will be incapacitated) or involuntary (e.g. an unplanned incapacitation).  It’s the involuntary option that interests us because it can effectively be used to stage a coup, albeit one that needs considerable Congressional support.

The way the process works is that the Vice President and the majority of the Cabinet transmit a written declaration of the President’s disability to the President pro tempore of the Senate and the Speaker of the House.  This makes the Vice President the acting President.  The President can then challenge this declaration.  Ultimately, Congress decides the issue: if two-thirds of both houses vote that the President is indeed disabled, then the VP remains acting President.

The advantages here are that there’s no need for trumped-up charges, the executive branch can start the process, there’s no intervention by the judicial branch, the VP immediately assumes power, and Congress only has 21 days to decide the issue, so there’s a limit on how much time the President has to gather public support.  The downside is that it requires a majority of the Cabinet, who presumably are fans of the President, and two-thirds of both houses, which is a higher bar than impeachment.  And it’s probably still pretty difficult to sell mutant status as such a disability that the President couldn’t discharge his or her duties, although some mutations come close, particularly dangerous, uncontrolled ones.

III. Adding a Qualification for Office

Now we come to the legally tenuous approach.  Congress could try to force a new qualification for office on the President, but we don’t think it would work without a constitutional amendment.  The Constitution specifically lists the qualifications to be President and doesn’t provide for adding any new ones.  It’s also not one of Congress’s specifically enumerated powers.  The houses of Congress are explicitly empowered to judge the qualifications of their own members, which suggests they are not empowered to do so for the Presidency.  Finally, Powell v. McCormack and U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995) suggest that the qualifications to be President, like those for federal legislators, are constitutionally fixed and cannot be altered by Congress or the states (except by amendment).

Besides, the President would assuredly veto the bill, and overriding it would require a two-thirds vote in both houses.  It would probably be easier to go the impeachment route.

IV. Constitutional Amendment

And here we come to the wildly impractical but guaranteed effective nuclear option.  There’s no reason the President couldn’t be removed by amendment, either explicitly (“Amendment 28: John Smith, currently President of the United States, is hereby removed from office.”) or implicitly by barring mutants from holding office, notwithstanding all that stuff about equal protection and due process.

The downside is that it would be completely impractical unless virtually the entire country were rabidly anti-mutant.  The upside is that an amendment could affect all mutant office-holders at once, which the other three methods could not.

V. Conclusion

Magneto’s plan, though criminal and insane, would probably not have backfired.  Removing mutant politicians from office would have been difficult, fairly slow, and politically divisive at best and effectively impossible at worst.  It’s more likely that the mutant politicians, if they refused to resign, would have stuck around at least to the end of their terms.

Law and the Multiverse Retcon #3

This is the third post in our Law and the Multiverse Retcons series, in which we discuss changes in the law (or corrections to our analysis) that affect older posts.  This time around we’re revisiting another early post, a mailbag post from March.  In that post we considered an Adam West Batman episode in which the Joker and Catwoman were prosecuted by Batman.  One of the issues was whether their plan to pack the jury with henchmen would work or whether they could be re-tried.  Our conclusion was that the acquittal would stand, though there could be other charges (e.g. perjury for the henchmen, since they probably lied during jury selection, and maybe jury tampering for the Joker and Catwoman, or at least their attorney).

As it turns out, however, there is a chance that they could be re-tried.  This has implications not just for this case but lots of other kinds of supervillain courtroom shenanigans, including psychic manipulation of the judge or jury and replacing the judge or jury with henchmen, robot doubles, or shapeshifters.  But before we get to the possible exception, let’s review the general rule against double jeopardy.

I. Double Jeopardy

The Fifth Amendment provides that “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.”  There are several aspects and limitations to this rule, but we only have to consider two in this case: when is a defendant “in jeopardy” (a.k.a. when does jeopardy “attach?”) and can an acquittal by a jury ever be appealed by the state?

In a jury trial, jeopardy attaches when the jury is selected and sworn in, and this is true of both federal and state courts.  Crist v. Bretz, 437 U.S. 28 (1978).  In non-jury trials jeopardy attaches when the first witness is sworn in.  So it would appear that the Joker and Catwoman were “in jeopardy” at the time of the acquittal.

As to the second question, the general rule is that the prosecution cannot appeal a jury acquittal, an acquittal by a judge, or a judge’s dismissal on the basis of insufficient evidence.  The Supreme Court has stated this repeatedly and in very strong terms:

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. … To permit a second trial after an acquittal, however mistaken the acquittal may have been, would present an unacceptably high risk that the Government, with its vastly superior resources, might wear down the defendant so that “even though innocent he may be found guilty.” United States v. Scott, 437 U.S. 82, 91 (1978) (emphasis added).

The constitutional protection against double jeopardy unequivocally prohibits a second trial following an acquittal, for the public interest in the finality of criminal judgments is so strong that an acquitted defendant may not be retried even though the acquittal was based upon an egregiously erroneous foundation. Rodrigues v. Hawaii, 469 U.S. 1078, 1079 (1984) (emphasis added).

II. Is There an Exception for Foul Play?

The Court’s language, strong though it is, came out of cases where there was no allegation of foul play by the defendant.  Could a defendant really escape liability by bribing a judge or packing the jury?  If so, it seems like that rule would encourage desperate or powerful defendants (and supervillains looking at a life sentence or the death penalty would fit the bill) to go for broke.  Unfortunately for us, such cases are rare enough that there aren’t a lot of court opinions to go off of.  In fact, there’s really only one modern case: Aleman v. Honorable Judges of Circuit Court of Cook County, 138 F.3d 302 (7th Cir. 1998).

The Aleman case was an appeal brought by Harry “The Hook” Aleman, a Chicago mobster who was charged with murder, successfully bribed the judge for an acquittal, and then was re-tried (and ultimately convicted) after the bribery was discovered.  The 7th Circuit affirmed the validity of the re-trial, holding that double jeopardy was not violated because Aleman had never been in jeopardy the first time around because the judge was in Aleman’s pocket from the beginning.  Thus, Aleman was never in any real danger of conviction.

How solidly grounded is this rule?  Aleman appealed to the United States Supreme Court, but the Court declined to hear the case, so it’s hard to say definitively.  And the case has not been cited frequently, so we don’t know what other courts would think of it.  Legal scholars were divided on the issue both before and after the case, with some arguing for a limited exception for fraud while others find no room for it in the Constitution.

What’s more, some scholars that supported the Aleman court’s conclusion have proposed that the exception should be limited to corrupt judges and should not apply to a corrupted jury.  See, e.g., Anne Poulin, Double Jeopardy and Judicial Accountability: When is an Acquittal not an Acquittal?, 27 Ariz. St. L.J. 953, 989-90 (1995).

So, what can we learn from this unusual case?

III. Applying the Aleman Exception

The Aleman rule would seem to apply to the Joker and Catwoman, scholarly commentary notwithstanding.  Here’s how the Aleman court summed up its view:

Aleman had to endure none of these risks [“traditionally associated with criminal prosecution”] because he “fixed” his case; the Circuit Court found that Aleman was so sanguine about the certainty of his acquittal that he went so far as to tell [a witness] before the trial that jail was “not an option”. Aleman may be correct that some risk of conviction still existed after Judge Wilson agreed to fix the case, but it cannot be said that the risk was the sort “traditionally associated” with an impartial criminal justice system. Aleman, 138 F.3d at 309.

In the case of the Joker and Catwoman there was similarly no risk because the entire jury consisted of their henchmen.  Their attorney engaged in no cross-examination and even declined to deliver a closing argument, stating only that “we feel sure that the jury will bear out the truth in this case.”  It seems clear that the defendants were never in danger.

But what if they hadn’t gone whole hog?  What if the jury was only partially packed with henchmen?  Would that be enough risk?  Or what if the jury were initially uncorrupt but were later psychically manipulated or bribed?  The Aleman rule seems to imply that as long as there is some risk after jeopardy has attached, then the acquittal must stand.  The implication for a supervillain seems to be not to corrupt the jury until after the trial has started or to leave a couple of token regular jury members in place and hope that they are convinced by the others, although this approach risks a hung jury, mistrial, and re-trial.

Another lesson is not to be as brazen about the fix as the Joker and Catwoman’s attorney was.  In the Aleman case the defense still put on a show, even though they knew what the result would be.  It ultimately didn’t work, but it took about 16 years before the sham was discovered.

On the other hand, outright replacement of the jurors partway through a trial seems like a surefire route to a mistrial, however, as in the case of jurors who become unavailable or are dismissed.  Any robot doubles, shapeshifters, or henchmen would need to be put in place before the jury was sworn in for sure and quite possibly before jury selection.

IV. Conclusion

Under some circumstances it may be possible for a supervillain to abuse the double jeopardy rule despite the Aleman exception.  Nonetheless, the supervillain wouldn’t get away completely free, since he or she would still be guilty of jury tampering and potentially many other crimes (e.g. conspiracy and fraud), but that might be preferable enough to more serious charges to make the gamble worth it.

Gotham Central: Motive

The “Motive” arc takes up Gotham Central # 3-5, and wraps up a lot of loose ends from the previous story, “In the Line of Duty,” which we looked at last week. This one actually contains a real gem of a legal issue, which is handled exactly right. Spoilers inside! Continue reading

Gotham Central: In the Line of Duty

Gotham Central is the critically-acclaimed, 2003-2006 book focusing on officers in the Gotham City Police Department, i.e. the cops who live and work “in the shadow of the Bat.” It’s basically a police procedural, which makes it a little unusual for a DC or Marvel book in that while supervillains are still in play, superheroes are largely fringe characters. It’s definitely worth the read, and it’s uniquely suitable for our purposes here at Law and the Multiverse because it has so much to do with normal, everyday life in a world populated by larger than life figures. We’re not going to do much in the way of plot summary here, so as to avoid spoilers, and we’re only partway through the series* but we are going to take a look at the legal issues raised as we go. This post is about “In the Line of Duty,” the story which takes place in issues # 1-2. Continue reading

Grimm Round-Up

Grimm is a new TV series inspired by Grimm’s fairy tales (which have also been adapted into an unrelated comic book series).  The premise is that Nick Burkhardt, a Portland homicide detective, is a descendant of the Grimms, a line of monster hunters who fight the various monsters that inspired the original fairy tales.  The show’s intersection of police procedural and the supernatural is a good fit for us, and some readers have asked about it, too.  Since Grimm is a procedural, there aren’t too many legal issues on any given show, but we’ve picked up a few to discuss from the first three episodes.  Spoilers ahead for anyone who hasn’t seen them.

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Texas: The Worst State for Superheroes?

We’ll admit that the title to this post is a little incendiary, and actually Texas has several features that recommend it to superheroes, particularly of the gun-wielding variety.  But we happened across a law that, especially in light of its history, might make a superhero think twice about moving to the Lone Star State.  That law is Texas Code § 38.23(a) (emphasis added):

No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.

In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.

“Or other person” is the clincher here.  Effectively, Texas applies the exclusionary rule to everyone, not just state actors, and it broadens it to cover not just Fourth Amendment-type privacy violations but violations of all state and federal laws and constitutional rights.  This means that, in Texas, it doesn’t matter whether Batman or other crime-fighting superheroes work with the police or not.  Heck, they can even be actively opposed by the police, à la the Punisher.  If they break the law while collecting evidence, that evidence is inadmissible.  In fact, if there’s even reasonable doubt that the evidence was obtained lawfully, that’s enough for the jury to disregard it.  Given how often superheroes break or at least bend the law, that’s a big problem.

The application of this law to superheroes is especially interesting in light of its history, summarized in Miles v. State, 241 S.W.3d 28, 34-35 (Tex. Ct. Crim. App. 2007) (emphasis added):

The Texas Legislature enacted an exclusionary rule broader than its federal counterpart precisely because of … the widespread problem of vigilante-type private citizens acting in concert with the police conducting illegal searches for whiskey.  Long before national Prohibition laws were enacted, Texas had created its own local-option liquor and prohibition laws.  Enforcement of these local-option laws led to the formation of various citizen groups, including the “Law and Order League,” whose members pledged to aid officers to enforce the laws, especially local-option laws, and to clean up their town and county of crime.   

Presumably, the Legislature foresaw that, if the exclusionary rule applied only to government officials or their agents, these “Law and Order League” members might well continue their illegal search-and-seizure operations without the participation or supervision of police officers.  Then these vigilante members would hand over the illegally seized evidence, on a “silver platter,” to government officers for use in criminal trials.  To avoid the prospect of implicitly encouraging or condoning vigilante action by these citizen groups, the Legislature applied its statutory exclusionary rule to both law-enforcement officers and private persons.

If you replace “Law and Order League” with “Justice League,” you can see just how closely that history fits many superhero stories.  If superheroes were common, many states would likely follow Texas’s example and pass similarly expansive exclusionary rule statutes.

We should note that there is a glimmer of hope.  With the responsibilities imposed by § 38.23 come additional privileges.  The Texas courts have held that “a private person can do what a police officer standing in his shoes can legitimately do, but cannot do what a police officer cannot do.”  Miles, 241 S.W.3d at 39.  Thus, a private person can invoke doctrines such as exigent circumstances and the reasonableness standard of the Fourth Amendment as a defense to, for example, violating traffic laws while pursuing a suspect in order to make a citizen’s arrest.  Id. at 45-46.  Nonetheless, the rule remains significantly stricter in Texas than in other states.  Maybe that’s why there are so few Texan superheroes.

As an historical side-note, there was a brief period in Montana history where the Montana Supreme Court held that the state Constitution extended the exclusionary rule to private citizens.  The rule was articulated in State v. Helfrich, 183 Mont. 484 (1979), affirmed in State v. Hyem, 193 Mont. 51 (1981), and finally overruled in State v. Long, 216 Mont. 65 (1985).  The rule was derived from the Montana Constitution’s affirmative right to privacy, which is unusual among state constitutions.  Extending the exclusionary rule to the acts of private citizens at the constitutional level is even more unusual, and Montana was the only state to ever take that approach.  As far as we can tell, Texas is the only state to do so by statute.

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.

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Batman: No Man’s Land, Part 6

The main legal issues in No Man’s Land ended with the legal separation of Gotham from the United States—after all, if there’s no legal system there can’t be much in the way of legal issues.  But there are a few loose ends to address, including some that our readers asked about.

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