Comic book fans around the world have been geeking out over the preview for Captain America: The Winter Soldier. The movie looks fun.
The Winter Soldier story arc in the Captain America comic was one of the best written. I normally do not care for the resurrection of characters, but this one worked. Ed Brubaker did an amazing job turning Marvel history on its head.
Captain America represents all the positive qualities about the United States. That we are the good guys; that we stand for justice; that we do the right thing.
Cap stands in extreme contrast to Nick Fury’s shades of grey and secret wars. This nobility of purpose gave Steve Rogers the “worthiness” to use Thor’s Hammer in battle in Thor #390 (Besides Beta Ray Bill and a teenager named Dargo in story that took place in 2587 in Thor #384).
I am expecting that to happen in Avengers 3.
Since It Is a Comic…
When Captain America joined the Avengers in the 1960s, his sidekick Bucky had been killed trying to stop a drone with a warhead on it in the final days of World War II. Captain America fell into the icy waters to be frozen for decades until the Sub-Mariner threw the block of ice with Cap into the ocean to be found by the Avengers in the 1960s (which tends to get updated every 20 years, so our heroes are not in their 70s to 90s). Bucky did not let go did not let go of the drone and was killed.
Winter Soldier re-wrote what was established comic book history.
Lukin ran a global company named Kronas Corporation as a front for his plans of domination by killing the Red Skull whose spirit was in a clone of Steve Rogers to get an artificial Cosmic Cube.
Lukin was a boy during World War II in the Russian town of Kronas. The town was destroyed in a battle between the Red Skull and the Invaders. Lukin was rescued by Vasily Karpov, who ran Soviet assassinations with advanced weapons during the Cold War.
Karpov was in a stealth Soviet submarine when Cap and Bucky were “killed.” Karpov recovered Bucky’s heavily injured frozen body missing his left arm.
The Soviets kept Bucky in suspended animation and added a bionic left arm. The Soviets would awaken Bucky over 60 years, and due to memory loss from his injuries, reprogram him with orders to kill political targets. Bucky killed the following under the code name Winter Soldier:
November 5, 1954: Three US soldiers in Berlin as a field test;
January 11, 1955: Entire UN Diplomatic Negotiation Team in Cairo;
May 14, 1955: NATO General James Keller;
January 1, 1956: British Ambassador Dalton Graines in Madripoor;
April 1, 1956: French Defense Minister Jacques Dupuy;
May 12, 1956: Algerian Peace Conference Envoy in Paris;
February 17, 1957: US Colonel Jefferson Hart in Mexico City; and
March 12, 1973: US Senator Harry Baxtor
Cap’s morality is highlighted in Winter Soldier. Instead of thinking he had to kill the Winter Soldier, the issue was how to rescue Bucky from being the Winter Soldier.
Now That You’re Rescued…
Bucky’s decades of killings as a Soviet agent raises many legal issues.
Could Bucky be convicted for crimes he committed as the Winter Soldier? This would become a big issue when Bucky as Captain America was put on trial.
As discussed in Skye Fall, treason is crime of treason as “levying War against them [The United States], or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.” United States Constitution, Article III, Section 3.
A Prosecutor could argue that Bucky as the Winter Soldier physically did commit acts of treason against the United States. The death toll includes soldiers, allied statesmen, a US Senator and a large number of people in Philadelphia to use death to fuel a Cosmic Cube.
Bucky would have a solid insanity defense against charges of treason and murder. The California Jury Instructions state the following on the determining whether a Defendant is legally insane:
The defendant was legally insane if:
1. When (he/she) committed the crime[s], (he/she) had a mental disease or defect;
AND
2. Because of that disease or defect, (he/she) was incapable of knowing or understanding the nature and quality of (his/her) act or was incapable of knowing or understanding that (his/her) act was morally or legally wrong.
None of the following qualify as a mental disease or defect for purposes of an insanity defense: personality disorder, adjustment disorder, seizure disorder, or an abnormality of personality or character made apparent only by a series of criminal or antisocial acts.
2-3400 CALCRIM 3450.
Bucky’s higher brain functions were destroyed in the closing days of World War II. The Soviets reprogrammed him each time he was awaken from suspended animation. He was literally a blank slate. It was not until Captain America used the Cosmic Cube to restore Bucky’s memory that he remembered who he was. As such, Bucky was incapable of knowing his actions were murderous treason.
Bucky should be able to afford a very good defense team. He would have an excellent argument that he was a POW held by the Soviets since 1945 (or was MIA). As such, he would be entitled to back-pay under the Missing Persons Act, 37 U.S.C. §§ 551-558.
How will the movie Captain America: Winter Soldier play out? I do not know. Let’s wait to April 4, 2014 and enjoy the movie.
