HYDRA Tries To Kill a Mockingbird

As the Cutting Crew once sang, “All for the mockingbird, they broke one by one.” Let’s hope that we see Bobbi Morse continue to break HYDRA operatives in season two of Agents of SHIELD.

HYDRA_9747Bobbi Morse and Jenna Simmons undercover work in HYDRA appeared to be well within the rules for being undercover.

As discussed before in Hailing HYDRA, undercover law enforcement  officers are not supposed to “assume a position as one who leads, directs, manages, or officiates over the direction or goals of an organization” or “cause dissension within an organization or incite unlawful activity by any individual or organization. . . .” Rubin v. City of L.A., 190 Cal. App. 3d 560, 569 (Cal. App. 2d Dist. 1987), citing “Standards and Procedures for the Anti-Terrorist Division.”

Simmons conducted the research on HYDRA’s plans and reported the information to her superiors to stop any unlawful activity. More importantly, Simmons did not appear to ever make a weapon or willfully take the life of an innocent. Correspondingly, Morse positioned herself to take Simmons’ hard drive prior to their escape, depriving HYDRA of any information that Agent Simmons learned during her undercover work.

Now, did anyone else see the humor in Adrianne Palicki’s Mockingbird escaping in an invisible jet?

Uncorking Chilled Terrorism

Tessa_Lab_1039HYDRA added a new level of terrorism in the opening minutes of A Hen in the Wolf House: the targeting of Naval officers from an Anti-HYDRA unit at a wedding with poisoned champagne based on the 084 Obelisk.

Right out of the gate, we see a conspiracy to murder members of the armed forces and civilians with a new bio-weapon of mass destruction. As we further learned in the episode, HYDRA has goals to make the weapon more effective to kill billions.

The “HYDRA Dress White Wedding” was terrorism because of the use of weapons of mass destruction under 18 USCS § 2332a. HYDRA used the alien technology in a conspiracy to kill US citizens, in the United States, that required the use of interstate commerce (in this case, transit of roads and other means to move the weapons potentially across state lines). The chemical itself would be considered a WMD, because chemicals such as anthrax are considered a WMD. Provided that death was almost instant for many, Court could could easily find the weaponized champagne was in fact a “weapon of mass destruction.” Additional charges could be brought for targeting members of the US military and their families.

The fact a new head of HYDRA is planning an extinction level event, we should expect many of the upcoming actions by Director Coulson and his team to be justified by the necessity defense.

The Curse of the Friend Zone

The phrase “I love you like a brother [or sister]” is one of the most traumatic things a person can hear. Sleepy Hollow drove home the emotional damage of being “friend zoned” with the strange case of Mary Wells, the Weeping Lady.

Weeping_FriendZone_1193There are no cases on point for “friend zoning” someone as a cause of action for emotional distress.

However, in the case of Mary Wells, we learn her jealousy for Crane saying “I love you like a brother loves a sister,” resulted in her confronting Katrina during the Revolutionary War, falling to her death, then becoming an evil spirit that would drown women interested in Ichabod Crane.

Mary’s first victim is Caroline, the nice lady from the Revolutionary War re-enactment who has taken to making shirts for Crane, plus turning butter. Mary attempted to drown Abbie, who Crane is able to rescue, which required Hawley to give Abbie CPR.

Did Hawley have a legal obligation to perform CPR on Abbie? No, there is no duty to rescue, unless there is a special relationship between the parties. Moreover, it is difficult to say a librarian would have had a duty to rescue Abbie from drowning in a magic revenge portal to the river in the library, there could have been a duty to render CPR aid since Abbie technically is a business invitee in the library.

Hawley did not have a legal duty, but his actions to perform CPR would have been protected by the New York Good Samaritan Law. As Courts have explained, “[t]he broad goal of the Good Samaritan Law is to prompt aid by people under no duty to act who otherwise might be dissuaded by the prospect of ordinary tort liability.” Miglino v Bally Total Fitness of Greater N.Y., Inc., 20 N.Y.3d 342, 348 (N.Y.2013).

Now would Crane be responsible for Mary’s murder or Caroline? No, because magical actions of revenge would be a superseding act that is simply not foreseeable for telling someone “I am not that into you.”

Do Not Ask “Do You Like Boys or Girls” in a Job Interview

PopSingerGotham once again teaches a great legal lesson, this time with how to conduct a job interview. Fish Mooney separately interviewed two different female singers to perform in her nightclub. Fish bluntly asked each woman whether they like “boys or girls,” to which both answer “boys.” At that point, Fish asked each woman to “seduce her.”

There are questions you should not ask on a job interview. Sexual orientation is a big one. For example, California law states it is unlawful “for an employer, because of . . . religious creed . . . or sexual orientation of any person . . . to bar or to discharge the person from employment . . . or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.” Erdmann v. Tranquility Inc.,155 F. Supp. 2d 1152, 1159 (N.D. Cal.2001), citing Cal. Gov. Code § 12940.

New York has similar employment prohibitions:

It shall be an unlawful discriminatory practice:

For an employer or licensing agency, because of an individual’s age, race, creed, color, national origin, sexual orientation, military status, sex, disability, predisposing genetic characteristics, marital status, or domestic violence victim status, to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment.

NY CLS Exec § 296(1)(a)

Fish crossed a second interview “no no” in asking each women to seduce her as part of the interview. This easily could be found to be a “quid pro quo,” in that a sexual favor was asked in exchange for employment. This is a form of sexual harassment and is prohibited by law. Both women could demonstrate a claim of “quid pro quo,” because both suffered an adverse job consequence as a result of refusing the unwelcome sexual advances of a supervisor. Reed v. Hunt Corp., 2003 U.S. Dist. LEXIS 20774 (S.D. Ind.Nov. 11, 2003). The “adverse job consequence” each suffered was not only NOT getting the position because of merit, but being asked to fight each other.

It should go without saying that even in a cutthroat job market, no prospective employer can ask job candidates to have a death match.  Moreover, even though this is Gotham, you cannot hire nightclub singers to seduce and kill someone. Questions relating to employment performance are fair game, but you cannot ask job candidates about their sexual orientation and then a seduction demonstration.

Self-Defense & Brainwashing on Agents of SHIELD

HYDRA_Comply_9432Can Donny Gill claim he acted in self-defense for freezing the Moroccan innkeeper and HYDRA agents? While fear of brainwashing and threats of force would justify self-defense, Gill committed multiple acts of unjustified murder on Agents of SHIELD.

Self-defense requires that a person, “where from the nature of the attack, the assailed person believes, on reasonable grounds, that he is in imminent danger of losing his life or of receiving great bodily harm from his assailant, he is not bound to retreat, but may stand his ground, and, if necessary for his own protection, may take the life of his adversary.” People v. Zuckerman, 56 Cal. App. 2d 366, 374 (Cal. App.1942).

In the opening scenes of Agents of SHIELD, Gill is confronted by the innkeeper who serves him a drink, followed by two HYDRA Agents. The innkeeper made a passing comment that tipped off Gill to possible danger from HYDRA or SHIELD. After which, Gill froze the innkeeper.

The HYDRA Agent that confronted Gill was seated and apparently did not have a weapon drawn or pointed at Gill. The second HYDRA Agent also did not have a weapon drawn. However, Gill almost immediately froze the first HYDRA Agent where he sat at the table. While exiting the area, Gill knocked over the frozen innkeeper, shattering the frozen body.

It is difficult to find the lethal use of force was valid against the innkeeper, because there was no evidence the innkeeper was in anyway a threat to Gill. No weapon was drawn, nor other signs of threatening Gill.

The same can be said for the HYDRA Agent.

The best argument Gill could make was that the brainwashing he experienced was so horrible, he feared for his life to be taken back to such torture. Looking at the CIA brainwashing projects, the Agency funded research in project MKULTRA “to counter perceived Soviet and Chinese advances in brainwashing and interrogation techniques.” The program lasted from the 1953 through the 1960s that included biological and chemical materials in altering human behavior, plus the highly horrific administration of LSD to unknowing test subjects.  CIA v. Sims, 471 U.S. 159, 162-163, footnotes 1 and 2 (U.S.1985) [The FOIA case was brought by my Constitution Law professor at McGeorge, University of the Pacific]. These sort of experiments are now illegal and the prospect of enduring “treatments” more horrible MKULTRA might sway a jury.

Could a jury find that Gill’s brainwashing was so tortuous that a hybrid self-defense and insanity defense could justify his actions (a form of a battered-spouse syndrome due to his torture)? Perhaps, especially given HYDRA’s standing order to kill those who do not join them.

However, the “I Did Not Want to Be Brainwashed by Evil Immortal Nazis” Defense would have trouble with Gill boarding the HYDRA cargo ship to go on a killing spree.

Gill would have an effective insanity defense after his brainwashing was “triggered.” A jury could find that Gill was incapable of knowing or understanding the nature and quality of his act or was incapable of knowing or understanding that his act was morally or legally wrong. 2-3400 CALCRIM 3450. However, his actions prior to having his brainwashing being triggered would be extremely difficult to justify the legal use of force.


Attack of the Balloons on Gotham

Criminals are a cowardly and superstitious lot…which is why weather balloons strike terror into their hearts.

Well, not really, but Gotham again poses interesting legal questions in The Balloonman. The city is extremely corrupt, with police taking bribes and treating the Bill of Rights like it is an inconvenient obstacle to beating suspects. Throw in politicians on the take from the mob, a Cold War developing between crime bosses, plus the mayor illegally arresting children to be interned “upstate,” and it is no surprise a civil servant lost his mind. His weapon of choice to extract justice: weather balloons.

LeslieCrystal_Batman_BalloonThe Red Balloon

This might surprise you, but my legal research search for “weather balloon” w/p murder OR homicide OR manslaughter did not yield any search results.  Apparently, no one has tried “balloonicide” in a capital case yet besides on the Prisoner.

That being said, killing the corrupt police officer would have been first degree murder in New York (assuming New York State since Gotham looks like Manhattan), because the suspect intended to cause the death of a police officer engaged in his official duties (which included beating another suspect, but that illegal act does not negate the fact the victim was a cop on the clock). NY CLS Penal § 125.27(1)(a)(i).

It’s Raining Men

What about the poor lady walking her dog that is killed after the balloon pops and the victim falls to Earth? Her death would be at least second degree murder, because the suspect intended to kill the police officer, causing his body to fall back to Earth, evidencing a “depraved indifference to human life” and recklessly engaging in conduct that caused a grave risk of death to the dog-walking victim. NY CLS Penal § 125.25(2).

There is no way the Balloonman could NOT have excepted weather balloons to fall back to Earth. Gravity is a law of physics that cannot be ignored. The fact the Balloonman was launching human beings somewhere between 60,000 to 105,000 feet into the air would mean the bodies would fall that distance in return (also the velocity of a 180 pound person in free fall from 60,000 traveling at 9.81 meters a second would likely leave a crater). This conduct showed a “depraved indifference to human life” and would be enough for a jury to convict the Balloonman for second degree murder of the woman walking her dog.

Star Wars Rebels: A New Legal System

Star Wars Rebels is a fantastic feeling of stepping back into Star Wars in 1977. Hats off for creating the same feeling of awe in discovering the Force, the view of a Tie Fighter Pilot in the cockpit, and Storm Troopers missing at point blank range. We even have Ezra yell, “It’s a trap!” Well done.

Rebel_Scum_AirStrike0715Rebels is an excellent look at the laws of the Empire.

Sure, the Imperials have a great sense of fashion, but it is a nightmarish legal system.

In the opening minutes of “Spark of the Rebellion,” we see a merchant farmer harassed by Imperial officers, because “all trade must be registered with the Empire.”

After being knocked to the ground, with an inspection officer eating some of the farmer’s fruit, the merchant is charged with treason.

A government has a very strong interest in regulating sales of food to ensure it is fit for human consumption and proper sales licenses. However, charging someone with treason for not filling out forms for street sales of fruit is nightmarish. At best this should be a county fine, not a firing squad by a militarized Department of Agriculture.

Our Rebel heroes stole blasters and other items from the Empire. This act would not just be grand theft, violate a ton of gun-related laws, but also terrorism in arming the residents of Tarken Town (who likely had they property taken in Eminent Domain proceedings without just compensation). However, the entire heist provides a huge look into the Empire’s law enforcement procedures.

The Empire does not use a police force, but its military to conduct law enforcement. While the Rebels did steal the crates from Storm Troopers, the responses to the theft was ordering an air strike to end a high speed chase. By way of comparison, police helicopters are not armed with air-to-surface missiles to fire on anyone fleeing from a crime scene.

Chewbacca_Defense_WookieesWe also learn the “Kessel Mines” are slave labor camps for political prisoners of the Empire. The fact there are slave labor camps for “traitors” makes the Empire sound a lot like Nazi Germany, the Soviet Union, and every other totalitarian country. It is likely the Wookiees sent to Kessel were not tried for their “crimes” and merely sentenced administratively by the arresting officer (perhaps for indecent exposure). The Empire is a government without any sense of due process, because if there was, any good lawyer would defend those Wookiees with the Chewbacca Defense.

The Politics of Agents of SHIELD with Gerry O’Brien

SHIELD_Politics_PodcastCould President Ellis have a chance for re-election after his Vice President committed treason AND HYDRA’s helicarriers crashing in the Potomac?

Veteran politic consultant Gerry O’Brien shares his real world experience on the politics of the fictional Marvel Universe.

And both Gerry and Josh are not afraid to geek-out over the new season of Agents of SHIELD.

Can the Gotham Police Beat a Confession to Save 30 Kids from Being Eaten?

Oh, Gotham. Thank you for presenting such a wonderful legal issue on whether it is “OK” for the police to beat a confession from someone in order to save 30 kids from being sold overseas to be a meal. Or worse. We never really learned what the Dollmaker had planned for the children.

Gotham_Orphans_PoliceBrutalityWhile the orphans, the public, politicians, and press, would not have a problem with Detective Bullock beating a prisoner with a phone book to find out where kidnapped children were being held, a Court would begrudgingly say, “Don’t Do that Again.” Any thing learned from the suspect would tainted as “fruit from the poisonous tree” and in admissible in Court. The bad guy would walk because of the beating.

Police can conduct a search without a warrant when there are “exigent circumstances,” namely imminent and ongoing danger to life. Additionally, police can question someone arrested without giving them Miranda Rights if there are “overriding considerations of public safety.” New York v. Quarles, 467 U.S. 649 (1984). This generally involves finding bombs left around town or where a loaded gun was left in a field. However, it is rare to find a modern Court giving a judicial thumbs up to police brutality.

Which brings us to Detectives Harvey Bullock and James Gordon. The police arguably did not gain the exact location of the warehouse from the suspect, because Gordon figured out what the images were to identify the company logo. Even if the beaten suspect described the logo, there is an argument the information was available from the original child victims and if Bullock also saw the truck in the gunfight. As such, the information would have been available from independent sources other than the unlawful interrogation.

There is no question Bullock and Gordon had “exigent circumstances” to search the warehouse for the missing children without a warrant. However, there really is no way around a 1983 action against Bullock and the police department for beating someone in custody.

What Are Henry’s Ethical Duties to Frank Irving as an Attorney?

The Horseman of War on Sleepy Hollow is a lawyer. Or pretending to be one. Either way, just lovely for our reputation as attorneys.

Duty_of_Loyalty_SleepyHollow_6154The reveal came at the end of The Kindred when Henry visited former Sheriff Frank Irving in a prison psychiatric hospital. The NEW Sheriff in town apparently was pushing the limits on cruel and unusual punishment, seeking not just psych evaluations, but threats of electric shock therapy. “Henry the Lawyer” appeared to put a stop to the tests, which is what a lawyer is exactly supposed to do for his client at object police torture.

However, Henry had Irving sign papers (most likely the engagement letter) that pricked the former sheriff’s finger, in effect making him sign the engagement letter in blood.

This raises many important legal issues. No one should EVER sign a contract of any type without reading it first. God knows what evil clause is in there that could negatively impact Frank Irving. No legal fees or retainer could include someone’s soul, even though not specifically stated in any state’s ethical rules.

Henry might be a powerful warlock, but that does not mean he passed the bar in the late 18th Century. New York does not permit people to engage in the unauthorized practice of law, warlock or not. The law specifically prohibits any “natural” person from holding themselves out to the public to practice law (including appearing in Court and advertising), without having been licensed, admitted to practice law in New York, and taken an oath to the Constitution. NY CLS Jud § 478.

If Henry is a licensed attorney, he has several major breaches of his ethical duties. The first being having his client sign a blood oath that likely goes against his client’s interests. This act would violate his Duty of Loyalty to Frank Irving to not act adversely against his client.

Henry also has a significant conflict of interest with Irving, as Henry’s goal is to bring about the Apocalypse under the direction of Moloch, which goes against Irving’s interests.  A lawyer may not represent someone if a lawyer’s professional judgment will be adversely affected by the lawyer’s own business or personal interests. NY CLS Jud Appx R 1.7(a)(2). As Henry wants to destroy the world and use Irving in some way to achieve that goal, this conflict of interest unquestionably would violate Henry’s ethical obligations to Irving.

Henry is also violating his duties to New York State and the US Constitution, with his active criminal conspiracy to kidnap his mother, commit murder, and bring about the end of the world. All of these actions would result in disbarment.

I am She-Hulk!

She Hulk comicNinety percent of lawyering is conversation…[The other ten percent is] mostly beating up robots.”   Jennifer Walters

Okay, I didn’t get a blood transfusion from Bruce Banner, I’m not green, nor am I that strong, but I am a lawyer!  And, like Jennifer Walters (She-Hulk’s alter ego), I left a big firm to go smaller.  My departure wasn’t quite as dramatic (no tables were destroyed) and I joined a small boutique firm instead of going solo, but some of the challenges are the same (I just wish I could find some office space as cool as hers!).

Cash-EnvelopeThe perks of going smaller can be big, as life as an associate in biglaw (as we call life at the big firms) can be a grind, with long hours worked and health destroyed.  Like She-Hulk at the beginning of Episode 1, many associates work those long hours in the hopes of getting a big bonus (bonuses are a bit of an obsession for biglaw associates), which they need to pay off their massive law school debt.  So leaving biglaw can be a scary but liberating experience.

These similarities were the reason I started reading the new She-Hulk storyline, which I first learned about in the ABA Journal.  Josh has already discussed some other She-Hulk issues in the current storyline, but my favorite story to date was right there in the very first episode: the patent lawsuit with Iron Man.

Welcome to the world of IP litigation.  While patent troll plaintiffs are a problem, so too are big companies that can overwhelm individual inventors with armies of lawyers (from biglaw!), mountains of motions, and enormous ediscovery productions.  Patent litigation is an expensive mess, even as DC tries to correct some of the worst of the problems (with questionable success).

Fighting robotJennifer Walters, in her patent lawsuit, still had to deal with a creepy defense attorney, overwhelming litigation defense strategies, and other standard legal obstacles.  But, unlike most lawyers, she also had to fight Tony Stark’s robots.  Of course, she’s She-Hulk so she was able to deal with the robots with minimal problems.

She then circumvented Stark’s counsel by talking to Iron Man directly.  While it’s cool that she’s friends with Tony and (spoiler alert!) was able to talk sense into him about her client’s claim to the disputed invention, she violated a California State Bar Rule of Professional Conduct by speaking to directly to the opposing party about the lawsuit.  Under California’s rules (and the rules of most – if not all – states), a lawyer can’t speak directly to the opposing party about the lawsuit if the opposing party has an attorney unless the opposing party’s attorney consents to the communication.

Breaking the ruleI’m pretty certain Stark’s attorney didn’t okay the communication, which means he could file a complaint with the state bar about Walters’ violation of the rules of professional conduct.  But, as we know, superheroes don’t always have to follow all the rules we mere mortals are bound by!

She-Hulk is probably the first comic book that I can relate to at least a little, even if (once again) she is a better-dressed lawyer than I am.  Now if they just added in some kids so she had to juggle work, family, and being a superhero, I would truly be able to identify with her!