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The DC Universe: It's Just Unconstitutional!


I really hate it when writers write about criminal proceedings when they have absolutely no understanding of the American Criminal Justice system. Sadly, such is the case with J.T. Krul and the most recent arc of Green Arrow. As if Green Arrow killing Prometheus in an act of premeditated murder (a crime that in California is classified as first degree murder and carries a prison term of 25 years to life) wasn’t bad enough, but he did it by means of “lying in wait” (a special circumstance in California that would make Green Arrow eligible for the death penalty or life in prison without the possibility of parole) for Prometheus to return to his Limbo hideout.

That was disheartening enough as a Green Arrow fan for more years than I care to remember, but what occurred in Green Arrow #32 was just insulting to me as a lawyer.

First of all, Green Arrow did not commit a crime! What do you mean Troy? You just said that Green Arrow committed first degree murder and that he should receive the death penalty. Well Green Arrow did and he didn’t commit murder.

Factually, he killed a man but legally, he didn’t commit a murder. Where did Green Arrow kill Prometheus? He killed him in Limbo. In order for a crime to be prosecuted the government has to have what is referred to as “jurisdiction” to prosecute the crime.

Put another way the crime must have taken place within the boundaries of authority of particular prosecuting agency. A deputy district attorney in California represents the People of the State of California. As part of the proceedings the prosecuting attorney has to establish that their office has the authority to prosecute the crime by establishing that the crime took place in the California and more specifically their county (i.e., Santa Clara, San Francisco or Los Angeles).

An assistant U.S. attorney would have to prove that the crime took place on U.S. soil (embassies count). Even people in the Military are subject to the laws of the country they are stationed in unless there is a specific SOFA (Status of Forces Agreement) signed with the host country (essentially a mini treaty) that establishes which justice system will prosecute U.S. soldiers in case of a crime committed on foreign soil.

This was a mini-law school education to say that STAR CITY DOES NOT HAVE THE AUTHORITY TO PROSECUTE CRIMES IN LIMBO!

After Green Arrow killed Prometheus, I thought that future stories might revolve around how Green Arrow had committed a "perfect murder" and could not be prosecuted for it and how the other heroes would react because for them to punish Green Arrow in some sort of extra-judicial manner would, to use the language of the medium, "make them no better than the criminal they were attempting to punish."

The resulting angst amongst the heroes could have been interesting. Instead we got to watch as they all stood by while Green Arrow was unlawfully arrested and unmasked and stood trial for something that did not occur in Star City or even on the planet Earth. Star City might as well have prosecuted all the super-heroes for the Black Lanterns that they just finished "killing” in the Blackest Night mini-series (one cannot be convicted of murder for killing something that is already dead or not human).

Second, that "trial" was insane. Now I am aware that I am asking for rationality in a world where men and woman can fly; masked vigilantes are allowed to roam free; and a city exists where its inhabitants cannot figure out that its two most prominent citizens who sport identical blond Van Dyke beards are the same person; but reality can only be stretched so thin.

Defendants in criminal trials are not allowed to just stand up and deliver a monologue to the jury. Green Arrow would have had to take the stand after being sworn in and been subject to cross-examination by the prosecutor.

The only part of the trial that made any sense was the jury’s verdict in acquitting Green Arrow. I don’t believe this was an example of “jury nullification”, I think the jurors were the only people in the court room who actually read the jury instructions and realized that the crime did not take place in Star City.

Third, once Green Arrow was acquitted he was a FREE MAN. A Judge can throw out a guilty verdict if there is not enough evidence for any reasonable jury to convict but there is nothing that allows a judge to overrule a not guilty verdict. There is a “little” concept in the U.S. Constitution prohibiting double jeopardy. This means someone cannot be prosecuted for a crime after he has been acquitted.

The idea is that this prevents the Government from harassing a person once he has been found not guilty of a crime. When the Judge orders Green Arrow to leave town he simply did not have any power to do that. He was punishing Green Arrow for a crime that he had already been acquitted. Not Guilty means not guilty. When the jury returned their verdict of not guilty the Judge lost all authority over Green Arrow and could not force him to move simply because he didn’t like the jury’s verdict.

Green Arrow #32 was bad and then I read Brightest Day #0.

In that book, Professor Zoom and Captain Boomerang are in Iron Heights. This is supposed to be a real prison. It doesn't bother me that sometimes at Arkham we see the inmates in their super-villain gear. I always chalk that up to Dr. Arkham trying out some different form of therapy but Iron Heights is supposed to be a prison. There is no way they would let Captain Boomerang and Professor Zoom stay in their costumes.

(This also made me upset in the Green Arrow issue but I justified it by thinking that since the city had been destroyed maybe they couldn't find any clean prison jumpsuits for Ollie.)

More important than their wardrobe however is the question, “Why are Captain Boomerang and Professor Zoom in jail?” They've been dead for years. What crimes did they commit after they were resurrected? I'm sure even in the comic book world the law loses the authority to punish someone after they are dead.

I would think that Boomerang and Zoom's resurrections legally give them a clean slate as far as the courts are concerned. Barry (Flash) Allen can't just lock them up because of things that Zoom and Boomerang did before all three of them died and he certainly can’t lock them up for things they might do in the future.

Here’s hoping that the future of the DC Universe includes some criminal due process.

Troy Benson serves justice as a crusading deputy district attorney in a large metropolis somewhere south of Star City.

Troy Benson

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