Habeas Irish Rose

[scarfman]

I have a question for the lawyers on my flist.

In tomorrow's AKOTAS Superman Kingman gets himself arrested on charges of obstruction of justice for failing to detain a suspect on behalf of a Homeland Security agent who declined to tell the suspect the charge(s) against him. Kingman let the suspect go because holding without being charged is unconstitutional, even though Homeland Security types have been detaining without charge for eight years or so now.

This was brought to mind by discussions on my flist of the unconstitutionality of several powers the office of the presidency granted itself over the past eight years, which haven't been reversed yet. I have in mind to possibly explore what would happen if someone like Superman were real, had like Superman pledged to uphold the law in order to keep from being just an alien bully, and ran afoul of the new directives because he has had the effrontery to question their constitutionality.

What I need to know at the moment, though, is what happens next procedurally. I mean, obviously the Batman the White Night comes across the river and bails him out, but where and when would he be expected to appear in court?

After that I suppose I'll have to decide whether I want to do a story where the case gets appealed all the way to the Supreme Court, or whether I'm just pastiching David E. Kelley. Or both. ETA: I also would like to know if anyone's heard of any case law on the subject.

Picked a good movie premiere week for this one, I guess.

Comments

[alienfish.livejournal.com]

And they're doing this on Heroes, too, aren't they?

[scarfman]

Unless there's something new in Monday's which I haven't seen yet, there's nothing in what's going on in Heroes that'll lead to any trials.

[scarfman]

I suppose, if I wanted to get really wacky and cynical, I could have Kingman held without charge and transported to a detention center, where misguided military types would attempt to torture him for months on end, to no avail.

Except he's already been charged. Too late.

[alienfish.livejournal.com]

*grin* Or drugged and put out with bombs taped to his chest in Washington D.C.

[redneckgaijin.livejournal.com]

The shoe-bomber, wossname, was originally charged, then yanked out of the criminal system for a while, then dropped back into it.

Same with Padilla, only he stayed in detention much longer.

[redneckgaijin.livejournal.com]

Not a lawyer, but...

... since this is Homeland Security making the arrest, this almost definitely goes into the federal courts, which means a looooooooooong wait to trial- months at least, maybe years. It also means a longer than usual wait for arraignment and bail hearings- a couple weeks or so. This is because there are a lot fewer federal courts than the others, and they're usually overloaded.

Had this happened while Bush was in power, Kingman would be himself saved from Guantanamo only by his extreme notoriety and popularity. The Bushies would do their best to drag things out, hold him as long as possible, and make things as unpleasant for him as possible- while libeling and slandering him to the people as "an ally of terrorists."

Obama, on the other hand, would squash this as soon as he heard about it- not necessarily because he agrees with Kingman (the jury is still out on whether or not Obama opposes indefinite detention), but because it'd be a distraction from his economic battles that he doesn't want.

One other note: in the first round of the court fight, Kingman's defense would be specifically prohibited from bringing up the constitutional issues of the law before the jury. As a rule, courts do not allow juries to consider whether or not a law is constitutional. That has to be saved for the appeals process... which, incidentally, requires that Kingman have some other foundation for a "not guilty" plea.

[scarfman]

One of the questions that occurred to me after I posted was, would this necessarily be a jury trial? I'm not clear on what the criteria is on what charges get heard by a jury and what by a bench, except that when Alan Shore gets bench trials it's always with judges who don't like him (there being so many of the other kind). Do criminal charges automatically go to jury? That'd include obstructing justice, wunnit? (I'd ask the lawyer in the household but she's at work...)

[redneckgaijin.livejournal.com]

Sixth and Seventh Amendments are still in force; Kingman gets a jury if he demands it, and the only way the feds get around that is to throw him into the military commissions that Obama has just halted pending their (apparent) eventual elimination.

[purpleranger.livejournal.com]

I'm having a flashback to Batman. Yes, the Adam West series. In one episode, Batman was arrested by a cop who was new to Gotham City, and who didn't know who Batman was.

If I'm remembering this correctly, the new cop broke up a confrontation between Batman (and Robin) and Catwoman (and her motley crew). When he announced that he was arresting Batman, even Catwoman said something to the effect of, "You've got to be kidding!" The cop wasn't going to believe a known felon, though.

Batman went along quietly with the cop, after first instructing Robin to contact his "lawyer" (Alfred).

A few scenes later, Commissioner Gordon asked the cop how he was doing on his first day in Gotham City. When the cop mentioned that he had apprehended this dangerous villain named Batman, Gordon said, "You did WHAT?" and immediately called the jail to have Batman released. But by that time, Alfred had already paid a visit, he and Batman had pulled a switch, and Batman had walked out of the jail (presumably disguised as Alfred).