Eyes on Agents of SHIELD

The fourth episode of Agents of SHIELD “Eye Spy” presented several legal issues for criminal activity in foreign countries. How exactly would former Agent Akela Amador get a fair trial for the crimes she committed?

I Had a Bomb in My Eye Defense

Agent Amador had been very busy stealing diamonds and Lord knows what other crimes. A defense attorney would be able to look a judge right in the eye and say, “She had a bomb in her head.”

In a blink of an eye, we have the necessity defense.

Everything Amador did was done while she was under the control of whoever was controlling The Englishman, because 1) her controller could see through her right eye; 2) Amador felt pain when she did not comply with orders and 3) the bionic eye contained an explosive device for a fail safe.

Judge Robert Boochever summarized the necessity defense as follows:

Necessity is, essentially, a utilitarian defense. See Note, The State Made Me Do It: The Applicability of the Necessity Defense to Civil Disobedience, 39 Stan. L. Rev. 1173, 1174 (1987). It therefore justifies criminal acts taken to avert a greater harm, maximizing social welfare by allowing a crime to be committed where the social benefits of the crime outweigh the social costs of failing to commit the crime. See, e.g., Dorrell, 758 F.2d at 432 (recognizing that “the policy underlying the necessity defense is the promotion of greater values at the expense of lesser values”) (citation omitted). Pursuant to the defense, prisoners could escape a burning prison, see, e.g., Baender v. Barnett, 255 U.S. 224, 226, 65 L. Ed. 597, 41 S. Ct. 271 (1921); a person lost in the woods could steal food from a cabin to survive, see Posner, An Economic Theory of the Criminal Law, 85 Colum. L. Rev. 1193, 1205 (1985); an embargo could be violated because adverse weather conditions necessitated sale of the cargo at a foreign port, see The William Gray, 29 F. Cas. 1300, 1302 (C.C.D.N.Y. 1810)(No. 17,694); a crew could mutiny where their ship was thought to be unseaworthy, see United States v. Ashton, 2 Sumn. 13, 24 F. Cas. 873, 874 (C.C.D. Mass. 1834)(No. 14,470); and property could be destroyed to prevent the spread of fire, see, e.g., Surocco v. Geary, 3 Cal. 69, 74 (1853).

United States v. Schoon, 971 F.2d 193, 196 (9th Cir. Cal. 1992).

Defendant Amador could point to her eye patch and eye-bomb debris as Exhibits A and B to show she was under duress to commit international crimes. Exhibit C could be the body of The Englishmen to prove what would have happened to her for non-compliance. It would be extremely difficult to rule against Amador for the crimes she committed while being controlled through pain and threat of death.

However, as Amador’s body count goes up (she did after all kill a bunch of guys), her defense would be significantly weakened. Killing innocents out of necessity is something Courts would not give a free pass to a Defendant, no matter how creepy the red masks.

Skye is a Peeping Tom

The final moments of the episode show Skye is not just a hacker, but a Peeping Tom.

Skye “life hacks” Agent Ward’s own vision, which enabled her to see through his eyes. Just to make life interesting, this privacy invasion also includes x-ray vision: Skye could see Ward naked (and anyone else Ward was looking at).

Skye is a very bad girl.

Ward and anyone within his field of vision would have multiple invasion of privacy claims against Skye. HR would also have a field day with the sexual harassment allegations.

Agent Ward could demonstrate that Skye violated his right to privacy by showing the following:

1) Ward had a reasonable expectation of privacy in his own eyes and everything he sees in private, such as himself naked;

2) Skye intentionally intruded into Ward’s vision;

3) Skye’s intrusion would be highly offensive to a reasonable person; and

4) Ward would be harmed if he learned of such invasion, let alone the damage to manager-direct report employment relationship.

See generally, 3-18 California Forms of Jury Instruction 1800.

It is unlikely Ward could prevail on a cyber-stalking claim, because most cyber-stalking statutes require electronic communications. See, Fla. Stat. § 784.048(c), “Cyberstalk” means to engage in a course of conduct to communicate, or to cause to be communicated, words, images, or language by or through the use of electronic mail or electronic communication, directed at a specific person, causing substantial emotional distress to that person and serving no legitimate purpose, or Miss. Code Ann. § 97-45-15(a) Use in electronic mail or electronic communication any words or language threatening to inflict bodily harm to any person or to that person’s child, sibling, spouse or dependent, or physical injury to the property of any person, or for the purpose of extorting money or other things of value from any person.

Skye was stalking Ward with his own eyes by electronic means, however she was not sending him messages, thus missing an element of the violation.

Finally, while Skye did have a valid HR claim against Agent Ward after being told to use a water bottle for bathroom facilities, “life jacking” Ward’s vision was not the proper response. Go to HR with such claims.