Murder, Incorporated on Gotham

Let’s start with Alfred is awesome. The ultimate butler who can fight off three assassins and put one in the ground. The world needs more marksmen butlers.

Alfred-VenusianAikidoThe Gotham mid-season finale focused on three assassins hired to kill Selnia Kyle (AKA Cat) at Wayne Manor. This small “league of assassins” killed a groundskeeper at Wayne Manor, shot Alfred (just a flesh wound), murdered Dick Lovecraft, and had a gunfight with the police.

“Murder-for-hire” assassins would violate both Federal and New York. Federal law specifically states:

(a) Whoever travels in or causes another (including the intended victim) to travel in interstate or foreign commerce, or uses or causes another (including the intended victim) to use the mail or any facility of interstate or foreign commerce, with intent that a murder be committed in violation of the laws of any State or the United States as consideration for the receipt of, or as consideration for a promise or agreement to pay, anything of pecuniary value, or who conspires to do so, shall be fined under this title or imprisoned for not more than ten years, or both; and if personal injury results, shall be fined under this title or imprisoned for not more than twenty years, or both; and if death results, shall be punished by death or life imprisonment, or shall be fined not more than $ 250,000, or both.

(b) As used in this section and section 1959 [18 USCS § 1959]–

(1) “anything of pecuniary value” means anything of value in the form of money, a negotiable instrument, a commercial interest, or anything else the primary significance of which is economic advantage;

(2) “facility of interstate or foreign commerce” includes means of transportation and communication; and

(3) “State” includes a State of the United States, the District of Columbia, and any commonwealth, territory, or possession of the United States.

18 USCS § 1958.

The murder of Dick Lovercraft was a completed murder-for-fire and could be prosecuted under Federal and New York law.

New York law specifically prohibits conspiracy to commit murder under NY CLS Penal § 105.15. Murdering a witness to a crime with the intent to prevent the witness from testifying in a trial is first-degree murder. NY CLS Penal § 125.27(1)(a)v).

The three assassins could be prosecuted under both Federal and State law for their conspiracy to kill Selina Kyle (thus attempted murder), because there was 1) a contract to kill the minor; 2) the intent to kill Kyle was to prevent her from testifying in the Wayne murder; and 3) interstate commerce was used in someway to give Federal jurisdiction, whether it was by communication or travel.

The death of the groundskeeper would qualify as a “death” under both statutes, as the groundskeeper was murder in the furtherance of the conspiracy. His death would carry a life sentence for all of the conspirators. Alternatively, if somehow the groundskeeper’s death and body mutilation was only second degree murder viewed separate from the conspiracy, the fact an assassin shot Alfred in the arm would qualify as an injury, thus carry a 20-year sentence.

The Legal Geeks Made the ABA Journal Blawg 100!

BasicIllustratorFileLetter—CSWords cannot express my joy that The Legal Geeks made the ABA Journal Blawg 100 for a second year in a row.

I feel like Grooting.

Thank you all very much for this wonderful honor. We are deeply humbled you enjoy The Legal Geeks.

I want to thank the editors of the ABA Journal for selecting us and for such a kind description of our blog:

The dictionary may define a “geek” as someone with “excessive enthusiasm for and some expertise about a specialized subject or activity,” but we would quibble about the word excessive. We hope that Josh Gilliland and Jessica Mederson never stop sharing their pop-culture enthusiasm with us. This year, we especially enjoyed the series of posts that coincided with the movie release of Guardians of the Galaxy. Their podcasts also should not be missed.

The ABA Journal is the flagship magazine of the American Bar Association, and it is read by half of the nation’s 1.1 million lawyers every month. It covers the trends, people and finances of the legal profession from Wall Street to Main Street to Pennsylvania Avenue. features breaking legal news updated as it happens by staff reporters throughout every business day, a directory of more than 4,000 lawyer blogs, and the full contents of the magazine.

I have had a lot of fun the past year using action figures, shooting video with green screens, and finding new ways to be creative. I want to thank New York State Court Judge Matthew Sciarrino for his friendship, sharing our blog, and joining us for the occasional podcast on Doctor Who or Star Wars. Judge Sciarrino introduced us to New York political consultant Gerry O’Brien, an amazing geek in his own right with his book 1901: Theodore Roosevelt, Robot Fighter. I had a blast discussing the legal and political fallout of Captain America The Winter Soldier and Agents of SHIELD with Judge Sciarrino and Gerry.

Jessica and I also had our first celebrity podcast when Matt Weinhold joined us to discuss Doctor Who, after Jess qualified Matt as an expert under Federal Rule of Evidence 702. I met Matt back when my family owned Rooster T . Feathers Comedy Club while I was in college, who is a wonderful person, and geek extraordinaire.

A lot of people have ReTweeted and promoted us over the past year, including the talented Madeleine Holly-Rosing, author of the Boston Metaphysical Society, San Diego Comic Fest, and our friends at The Geekie Awards. There are many others and thank you so much for your support.

I want to especially thank Jessica for continuing our adventure on The Legal Geeks. Jess is an outstanding lawyer, dedicated mother, and has a wicked sense of humor.

Voting is now underway in each of the 13 categories of the ABA Journal Blawg 100. We were so honored to win the For Fun category last year. We ask for your vote once again. If you could please vote for us in the For Fun category, we would greatly appreciate it.

To vote, please visit the ABA Journal, register, and vote for The Legal Geeks in the For Fun category.

Thank you all for reading The Legal Geeks.

OK, back to dancing to I Want You Back.


Let’s Go to the Comic Book Store

We love comic books. So, sit back, relax, and enjoy a rip-roaring discussion on comic book care, women in comics, and super-hero lawyers.

How was She-Hulk’s defense of Captain America? Moreover, why does Jess love Wonder Woman? And Just who is the new Thor? Check out my theory on Agents of SHIELD and Captain Mar-Vell in our new video and audio podcast.


Trial Procedure and Wrongful Death Jury Instructions in She-Hulk

The She-Hulk “Fogler v Rogers” courtroom drama focused on Daredevil representing the estate and family of an American who collaborated with Nazis, most likely convicted for treason, suing Steve Rogers for the death of Sam Fogler (the deceased plaintiff’s brother) in 1940. Granted, the evidence that the deceased Plaintiff was convicted for treason never came out during the trial due to the information being classified was a small wrinkle is an otherwise good defense for a nonsuit.

It is a rare day to see a comic book storyline focus on a trial. Sure, it skipped discovery and motion practice. That being said, it was three issues focused on a wrongful death lawsuit. It can be forgiven for not following Professor Thomas Mauet’s Fundamentals of Trial Techniques.

Josh_SheHulk10Trial Procedure: Who Called Captain America to Testify?

Normally in a trial, the Plaintiff presents their case, followed by the Defendant. The procedural flow for testimony of a witness is direct examination, cross-examination, redirect examination, recross-examination, and continuing thereafter by redirect and recross-examination.  Cal Evid Code § 772(a).

In the story, it appeared the Plaintiff called Defendant Steve Rogers to testify during the Plaintiff’s case-in-chief. Was this proper, or did Murdock need to wait and cross-examine Steve Rogers during the Defense’s case-in-chief?

Matt Murdock was within his right to call Steve Rogers to testify during the Plaintiff’s case-in-chief, because “[a] party to the record of any civil action, or a person identified with such a party, may be called and examined as if under cross-examination by any adverse party at any time during the presentation of evidence by the party calling the witness.” Cal Evid Code § 776(a).

There are best practices for direct examinations: The lawyer only does 10% of the talking with questions to the witness; the witness does 90% of the talking by telling their story. Most times this is done chronologically to make sense for the jury and for foundation. Questions may not be leading on direct examination. Cal Evid Code § 767.

After direct examination, there is cross-examination, where the adverse party questions the witness. Here, the lawyer does 90% of the talking with leading questions. Cal Evid Code § 767. The attorney exercises as much witness control as possible and above all else, avoids questions that start with “why,” to keep the witness from explaining away issues.

Redirect can follow, where the attorney can ask question to rehabilitate the witness if there were any attacks on their credibility during cross-examination.

Jury Instructions in a Wrongful Death Case

Josh_JuryInstructions_0344Causes of action have elements that must be proven for a case to be successful. For wrongful death, the Plaintiff has the burden to prove that Samuel Fogler was killed due to the negligence or wrongful act of Steve Rogers (and ignore the comparative fault of Harold Fogler). If the Plaintiffs did meet that burden of proof, the more complex issue would be determining the correct damages. Below please find California Jury Instructions for Damages from the Death of an Adult, as applied to the fictional case:

If you decide that Estate of Harold Fogler has proved their claim against Steven Rogers for the death of Samuel Fogler, you also must decide how much money will reasonably compensate the Estate of Harold Fogler for the death of Samuel Fogler in 1940. This compensation is called “damages.”

The Estate of Harold Fogler does not have to prove the exact amount of these damages. However, you must not speculate or guess in awarding damages.

The damages claimed by Estate of Harold Fogler fall into two categories called economic damages and noneconomic damages. You will be asked to state the two categories of damages separately on the verdict form.

Estate of Harold Fogler claims the following economic damages:

  1. The financial support, if any, that Samuel Fogler would have contributed to the family during either the life expectancy that Samuel Fogler had before his death or the life expectancy of Harold Fogler, whichever is shorter;

  2. The loss of gifts or benefits that Harold Fogler would have expected to receive from Samuel Fogler;

  3. Funeral and burial expenses; and

  4. The reasonable value of household services that Samuel Fogler would have provided.

Your award of any future economic damages must be reduced to present cash value.

Estate of Harold Fogler also claims the following noneconomic damages:

  1. The loss of Samuel Foglers’s love, companionship, comfort, care, assistance, protection, affection, society, moral support[; [and]/.]

  2. The loss of Samuel Fogler’s training and guidance.

No fixed standard exists for deciding the amount of noneconomic damages. You must use your judgment to decide a reasonable amount based on the evidence and your common sense.

For these noneconomic damages, determine the amount in current dollars paid at the time of judgment that will compensate Estate of Harold Fogler for those damages. This amount of noneconomic damages should not be further reduced to present cash value because that reduction should only be performed with respect to future economic damages.

In determining the Estate of Harold Fogler’s loss, do not consider:

  1. Harold Fogler’s grief, sorrow, or mental anguish;

  2. Samuel Foglers’s pain and suffering; or

  3. The poverty or wealth of the Estate of Harold Fogler.

In deciding a person’s life expectancy, you may consider, among other factors, the average life expectancy of a person of that age, as well as that person’s health, habits, activities, lifestyle, and occupation. According to, the average life expectancy of a male in the United States is 79 years in 2014. This published information is evidence of how long a person is likely to live but is not conclusive. Some people live longer and others die sooner.

In computing these damages, consider the losses suffered by all plaintiffs and return a verdict of a single amount for all plaintiffs.

2-3900 CACI 3921.

Damages would be highly difficult to determine, because the decedent died in 1940 (Nor would you use There was no guarantee Sam Fogler would have lived until his 90s and could have very well been killed during World War 2 if he had survived trying to save his brother Harold in 1940.  Moreover, according to the Social Security Administration in 1930 the average life expectancy was only 58. Furthermore, in 1940 only 53.9% of males in the United States survived to age 65, according to the Social Security Administration.

Courts have instructed juries on life expectancies to consider “the age, state of health and respective life expectancies of the deceased and each plaintiff but should be concerned only with “the shorter of the life expectancies, that of one of the plaintiffs or that of the deceased. . . .” Francis v Sauve, 222 Cal App 2d 102, 120-121 [1963], citing Redfield v. Oakland Consolidated Street Ry. Co. (1895) 110 Cal.277, 287 [42 P. 822, 1063].

Determining the “just” damages from the circumstances of the case would require evidence of mortality tables from World War 2 to determine the deceased’s life expectancy for damages. If a jury determined that Samuel Fogler might only have lived until 1943, that would be the shorter life expectancy to consider for damages, instead of Harold Fogler’s long life.

Sam Fogler was studying to be a doctor, but he was not one when he died. It is speculative that he would have graduated medical school, completed residency, and passed his medical boards. As such, determining how much income Sam Fogler would have made is highly speculative, thus could require the jury to actually have evidence of Sam Fogler’s grades in determining whether to consider Sam Fogler’s employment goal in awarding damages for lost income.

Another significant oddity would be grandnephews and grandnieces bringing a lawsuit for a granduncle who died decades before they were born. While it would be equally strange for an estate to bring a wrongful death suit for someone else who died decades before, in either case, damages would be complicated.

Why Not a Freedom of Information Act Request to Impeach Harold Fogler?

Steve Rogers refused to answer specifics on why there were no official reports of Nazis involved in Samuel Fogler’s death due to the events in 1940 being classified. Steve Rogers should have disclosed this information to She-Hulk when she took the case, because they could have filed a Freedom of Information Act Request for the report that Hellcat stole for Steve Rogers.

SheHulk_FOIA_4673There was no reason to have Hellcat steal the file (other then there is zero action in filing a FOIA request compared to Hellcat breaking in to a government facility). While it could have taken time for the FOIA request to be processed, it would be extremely unlikely the report would still be classified for events that took place in 1940. In present day, we know German U-Boats operated extremely close to US cities. Moreover, even in 1945 there were trials over whether a German immigrant committed treason for meeting with a German friend who illegally entered the United States by U-Boat to commit acts of sabotage. Cramer v. United States, 325 U.S. 1 (U.S. 1945).

Another option would be for Steve Rogers to call the President of the United States and ask for the file. Begin the conversation with, “Remember all the times I saved civilization? You know, from Nazis, the Kree-Skrull War, and Thanos? Yes, I need a report from 1940 to rebut evidence in a civil lawsuit. Can you help me out?” Unlikely any POTUS would say no. The file would likely be hand delivered by the Attorney General.

The National security concerns of 1940 would not prevent a FOIA request from being granted to Captain America as a defense in a civil lawsuit by someone who provided aid to Nazis on US soil in 1940.

The information about the Nazis operating in Los Angeles could also be used to impeach the credibility of the improperly admitted dying declaration of Harold Fogler.

SheHulk-BetterCallPOTUSCalifornia Evidence allows a party to attack the credibility of witness. Cal Evid Code § 785. One way to attack credibility of a witness is to show the witness was convicted of a felony (and in California it is any felony conviction). Cal Evid Code § 788. Impeaching a witness with convicted felonies that show the “former offender is a present prevaricator” are very powerful. People v Heckathorne, 202 Cal App 3d 458, 464-465, 248 Cal Rptr 399, 402-403 [1988]. Felonies such as treason, theft, and perjury bear a “rational relationship to credibility.” Id.

The fact Harold Fogler went to prison for his actions with the Nazis, which most likely would have been for treason, would have been extremely useful in impeaching the credibility of the Plaintiff’s claims against Steve Rogers. These facts would also completely carpet bomb the Plaintiff’s case into a nonsuit for trying to collect damages that originated from the deceased’s treasonous conduct in 1940.

Fanboy Thoughts on Agents of SHIELD and Captain Mar-Vell

I normally stick to the law and having fun with the shows I love, but I have had an idea about Agents of SHIELD that connects Inhumans, Captain Marvel, and to a degree, Guardians of the Galaxy.

AgentsofSHIELD_CaptainMarvel_TheoryThe Inhumans movie is not out until November 2018. That is a lot of world building for an Agents of SHIELD tie-in starting in 2014.

Here are some theories after seeing the Diviner and Skye’s forever young mother:

Skye’s mother is an Eternal. Sort of a long shot given the all of the Inhumans teasing, but would explain the lack of aging from 1945 to 1989. Moreover, as the Eternals were the product of the Celestials experimenting on humans before the Kree created the Inhumans through genetic experiments, it would make sense an Eternal could touch the Diviner without death.

Once Director Coulson and SHIELD find Attilan and unlock the city with the Diviner, the Kree are alerted (if aliens built an advanced city at the dawn of humanity, you think it would have an alarm if someone entered it). The Kree Empire responds by sending Captain Mar-Vell to investigate whether Earth is now a threat to the Kree Empire. As Mar-Vell was originally spying on Earth in the comics, this would fit well in a SHIELD storyline with Coulson and Mar-Vell facing off in interplanetary spycraft.

The Kree sending an expeditionary force out to Earth could also be a means to give Star-Lord (if not all of the Guardians of the Galaxy) a cameo in Agents of SHIELD and not necessarily on Earth.

If the Kree Captain Mar-Vell is introduced in Agents of SHIELD, and ultimately dies heroically defending Earth, or from cancer after saving humanity, or is lost in the Negative Zone, this could clear the complex back story for Carol Danver’s Captain Marvel film in July 2018.

As I said before, I am just a lawyer who happened to love Marvel space comics from the 1960s and 1970s. However, given the amount of time before the Inhumans and Captain Marvel movies in 2018, Agents of SHIELD could cover the Kree back story of Captain Mar-Vell, without it being a distraction from Captain Marvel, which should focus solely on Carol Danvers as the main character.


Flash’s Liability for Breaking Windows

The Flash is the fastest man alive. What happens when the Flash runs so fast that he shatters windows on cars and houses from his super speed?

The answer is the Flash could be sued in small claims court on a theory of Res Ipsa Loquitur.

BarryAllen_LiabilityLong ago, before the first Crisis on Infinite Earths, a person in New York sued Air France for a total of $127.20 ($333.09 in 2014 adjusted for inflation) for breaking windows on the house from an overflight in small claims court. Faby v Air France, 113 Misc 2d 840, 846 [Civ Ct, Bronx County 1982].

There are cases that impose liability for aircraft exceeding the speed of sound, thus creating a sonic boom, which is a “mechanical phenomenon of the air that consists of pressure and sound waves generated by an object moving through the air at speed equal to or exceeding that of sound.” Faby at *842-843, citing 8 Am Jur 2d, Aviation, § 125, at pp 509-510.

Air France argued that since they were flying below the speed of sound, liability could not be imposed. The Court disagreed, explaining that in negligence the doctrine of res ipsa loquitur (or the thing speaks for itself, for those who do not know Latin) had been applied “frequently in aircraft accident litigation. Faby at *843.

Applying the doctrine of Res Ipsa Loquituri to the Flash, we can see the same logic would hold the Flash responsible for the property damage for his high speed running, with or without exceeding the speed of sound:

(1) Exclusive control and management of Speed Force. Barry Allen can control how fast he runs and where he runs.

(2) Damage would not have occurred in the absence of the negligent operation of the Flash running in Central City. The Flash running around the residential areas of Central City and parked cars results in windows breaking. If the Flash was not running around the cars and homes, there would be no broken glass. Moreover, red light camera footage should be able to capture a “flash” around the breaking windows.

(3) Defendant had superior knowledge or means of information as to the cause of the injury. The Flash would know his high speed running is the cause of window damage around Central City.

(4) The occurrence is not fully explained by the evidence. In explaining and filling the gap between the breaking windows and the Flash’s running, “reliance must be bridged, through use of circumstantial evidence, or through a res ipsa loquitur inference.”

(5) Burden of rebutting inference. There is no evidence the Flash could offer to show some other event was causing windows to explode the same time he was running past the aforementioned property.

[Res Ipsa Loquitur analysis from Faby, at *844-845].

The Flash would have a large number of home and car owners seeking damages from him for broken glass in small claims court. Granted, these parties would have a difficult time with service or process, and likely would need to serve the Flash by publication.


No Going Back for Grant Ward Now

Grant Ward did not just kill his brother; Ward killed a [fictional] United States Senator.

Grant Ward already has a huge list of victims that would be a series of long murder and treason trials. Kidnapping and murdering a United States Senator has its own enhanced punishments in Federal Court. Federal law states that anyone who kidnaps and kills a United States Senator (or member of Congress or the Executive Branch) shall be punished by death or imprisonment up to life. 18 USCS § 351(b)(2).

Grant Ward beat Senator Ward, killed at least two guards, and tortured the Senator with the forced digging up of a buried well, followed by threats to throw the Senator down the well.

Federal Prosecutors could prove beyond a reasonable doubt that Grant Ward killed his brother with malice aforethought that included kidnapping and torture. 18 USCS § 1111.

There is very little a defense attorney could do for Grant Ward, other than try plea-bargaining for life in prison over the death penalty. Given the number of people Ward killed (at least five SHIELD Agents, four soldiers, two guards, and a Senator) plus the charges for treason by working with HYDRA, it is hard to imagine a Prosecutor even entertaining the idea of a plea; the literal bodies of evidence should end a trial with the death penalty for Grant Ward.

Can DA’s Flip Coins? The Ethics of Harvey Dent

Harvey Dent. The District Attorney who will one day be the villain Two-Face. This lawyer and future super-villain is a case study of prosecutorial responsibilities and attorney ethics on Gotham.

Coin-CourthouseHere are the relevant facts: Jim Gordon took Selina Kyle into protective custody as a witness in the Wayne murder. Gordon attempted to keep Kyle off the grid and away from dirty cops, who would leak her whereabouts, thus sequestered her in “stately” Wayne Manor.

Jim Gordon met Harvey Dent outside the courthouse where Dent elected not to prosecute a minor based on a coin toss and a promise to stay out of trouble. During the closed-door meeting, Dent shared his theory on a possible suspect in the Wayne murder, an extremely wealthy (and corrupt) businessman named Dick Lovecraft with an army of lawyers.

Dent’s plan was to leak there was a witness linking Lovecraft to the “secret witness” with no evidence. No charges were to be filed and no names were to be made public, but using the threat of a witness to force confessions or shake out the real party involved in the Wayne murder.

Duties of a Prosecutor

In New York state, since Gotham City looks a lot like New York City in a pre-Rudy Giuliani nightmare, a prosecutor “shall not institute, cause to be instituted or maintain a criminal charge” when they know there is no probable cause to support a charge against someone. NY CLS Jud Appx R 3.8.

The ABA Model Rules of Professional Conduct Rule 3.6 also provide limitations on what lawyers can say to the press (provided the state incorporated the model rules). Lawyers shall NOT “make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.” ABA Model Rules of Professional Conduct Rule 3.6(a).

Lawyers can disclose to the press information that is public record, or the matter is in progress, plus information such as whether the accused was arrested, the time of arrest, investigating officers, and length of the investigation. ABA Model Rules of Professional Conduct Rule 3.6(b).

District Attorneys also have “prosecutorial discretion” in “determining when and in what manner to prosecute a suspected offender” People v. Harper, 186 Misc. 2d 750, 755 (N.Y. City Ct.2000), citing People v Di Falco, 44 NY2d 482, 486. Moreover, “almost invariably it is the prosecutor who decides whether a case is to be pressed or dropped and what the nature of the specific offense or offenses to be lodged against a defendant is to be” Harper, at *755, citing People v Zimmer, 51 NY2d 390, 394; see also, Matter of Bytner v Greenberg, 214 AD2d 931).

Did Harvey Dent Violate His Duties as a Prosecutor?

Some lawyers will have to flip a coin on whether Dent violated his duty as a prosecutor. Others see the issues with moral clarity.

It was within Dent’s prosecutorial discretion to not press charges against the youth outside the courthouse. While the Mayor did bring back the 19th century practice of arresting children for being orphans or vagrants to be interned in “orphan asylum,” there is nothing that said such prosecutions were required to put children in protective custody. (See People ex rel. Horton v Fuller, 41 AD 404, 404 [2nd Dept 1899] and People ex rel. Van Heck v. New York Catholic Protectory, 101 N.Y. 195, 200(N.Y.1886)).

Harvey Dent’s coin toss was merely an act to encourage the youth to go back on the straight and narrow path. Moreover, given the fact the coin had two heads, the odds were in Dent’s favor the youth would act as Dent predicted. Non-conventional, but it does not seem to violate Dent’s duties as a prosecutor.

The same cannot be said for threatening Dick Lovecraft with criminal prosecution. Harvey Dent did not have any probable cause to bring Lovecraft in for questioning, let alone attempting to get him to sign a confession. Furthermore, Dent snapping in rage would have been assault, followed by battery when Dent placed his hands on Lovecraft.

Dent would be pushing his luck with publishing anything beyond there was a witness in the Wayne murder and the investigation was ongoing. Other than that, Dent’s ability to use the press would be limited, without committing defamation on those without any probable cause to suspect them of a crime.

Hit Me With a Bagel and You Can Kiss Me

There are 12-year-old males who would practice throwing bagels (and other Danishes) at targets for a kiss from a girl. While Selina Kyle made an oral contractual offer requiring the condition precedent of Bruce Wayne successfully throwing a bagel at her for a kiss, such a performance contract would be unenforceable and against public policy. Yes, consideration for a contract can be a bagel just as much as it could be a peppercorn, but we just cannot have food fights for kisses that go to court seeking specific performance as a remedy for assault with a bagel.

Sorry guys.

Now, anyone want to place bets whether Sean Pertwee will throw someone over his shoulder like his father used to on Doctor Who?

Who You Gonna Call? 1-800-LawRocks

Lawyers have the best ads. Seriously. And I’m not even talking about the William Shatner ads (although Captain Kirk’s connections to the legal profession are impressive). On a quiet, snowy Friday evening (such as this one), it is a ton of fun to cruise YouTube looking for excellent examples of legal advertising (do I know how to party or what?). And so I decided to share some of my favorites with you, with a brief discussion of a Supreme Court case and a few model rules thrown in to make it look like I’m actually working here.

Before I discuss the Supreme Court’s view on legal advertising, let me share with you one creative lawyer’s ad:

Yep, that’s a real ad for a real attorney.  Possibly one of the most famous legal ads around.  And in 1977 the Supreme Court upheld his right to make it.  In Bates v. State Bar of Arizona, the Supreme Court held that lawyer advertising was entitled to protection under the First Amendment as commercial speech. Prior to that (at least in the 20th century), it was generally believed that lawyers shouldn’t advertise, although there was some advertising in the 1800s.

Now let’s take a break for a singing commercial…

Most, if not all, states have rules governing these types of communications regarding lawyers’ services.  The ABA has provided model rules on these issues that have been used by some states.

The ABA’s Rule 7.1 (Communications concerning a lawyer’s services) says that: A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.

And now here’s a lawyer who’s giving you the blunt truth on family law:

ABA Rule 7.2 says that advertising, so long as it complies with  the other rules, is okay through written, recorded, or electronic communication, including public media.

So, thanks to the Supreme Court and the state rules, these lawyers can help make the rest of us look as cool on the outside as we feel on the inside!

Stealing Corpses and Obstruction of Justice

Was Skye correct in the Agents of SHIELD episode “The Writing on the Wall,” when she said they broke fourteen laws breaking into the home of a victim? Skye might be right. Let’s count.

AgentsofSHIELD-CountingCrimesDirector Coulson and Agent Skye entered the first victim’s upstate New York apartment, which was a crime scene. The act of knowingly entering unlawfully the home would be a trespass. NY CLS Penal § 140.05. However, if they entered the property with the intent to take an item, Skye and Coulson would have committed burglary. NY CLS Penal § 140.25.

If Coulson and Skye took the victim’s artwork any other property, they would have committed burglary. There is no question the act of entering the property was a trespass.

The victim’s home was also a crime scene. The purpose of a crime scene is to maintain evidence. Taking evidence from the crime scene arguably is the obstruction of justice, because it “obstructs, impairs, or prevents” the administration of law enforcement. NY CLS Penal § 195.05.

Mack and Fitz acted under Director Coulson’s instructions and stole the body of the first victim from the morgue. It possible an autopsy had been performed by law enforcement, but that was highly unlikely.

The act of taking the corpse could be trespass into the county morgue and obstruction of justice for taking the victim’s body, because it deprived the police of evidence (in this case, the body with ritualistic markings).

There is a significant amount of case law on handling dead bodies, grave robbing, desecration of corpses, medical experimentation on dead bodies, and unauthorized autopsies.

So the question: can you steal a corpse? The short answer is literally yes, you can take a body, but things get funky fast.

Under common law, the great Lord Coke stated in the 17th Century that a “corpse has no value.” Colavito v. New York Organ Donor Network, Inc., 8 N.Y.3d 43, 50-51 (N.Y.2006). Moreover, “ancestors, ‘nor can [an heir] bring any civil action against such as indecently at least, if not impiously, violate and disturb their remains, when dead and buried.'” Id.

AgentsofSHIELD-BlindEyeNew York also has cases that address the proper treatment of corpses, specifically that those handling a corpse have a high standard of care “and that breach of the duty of care by one who undertakes to provide care of a corpse is prima facie negligence, and thus tantamount to strict liability.” Whack v. St. Mary’s Hosp. of Brooklyn, 2003 N.Y. Misc. LEXIS 50, 10-11(N.Y. Civ. Ct.Jan. 22, 2003).

The classic case would be a hospital that had a freezer fail, allowing a corpse to rot. However, this is not the exact case with Mack and Fitz. There could be a claim against the morgue for letting the body “disappear,” but the victim did not have any living family members who would sue. Obstruction of justice would be the likely crime for stealing the corpse, followed by an unauthorized autopsy, and desecration of a corpse.

Simmons performed an unauthorized autopsy on the victim, not because she wasn’t a doctor, but because there is no color of law for her to perform an autopsy. Since Simmons knew the body was stolen and SHIELD is acting as vigilantes, albeit aligned with a US Senator in tracking down his brother, Simmons could not argue she performed the autopsy in good faith under the law. NY CLS Pub Health § 4210-b.

There are at least eight or nine charges that could be brought from initially trespassing in the victim’s apartment, depending on whether any art was taken, and the obstruction of justice from stealing a victim’s body from the morgue for an unauthorized autopsy.