Moira Queen on Trial: What Can They Actually Try Her For?

I hate watching the law played out on TV, because the law is often exacting and detail oriented. But good stories often require painting with a broad brush. Which means I spend a lot of time saying “You can’t do that” while being shushed by others. But, aside from a few head scratching moments, The Arrow did one of the better jobs I’ve seen. Still, for fun, here’s my favorite pieces of what they got right, and what they got wrong.

Are you required to let your opponent know when you invoke Rule 15?
Absolutely! And a good attorney invokes it as often as needed.

What does Rule 15 do?
In a Federal criminal trial it means someone wants to depose a witness before trial.  That helps you figure out how strong your case will be at trial. Both sides get to be there so, yeah, they know when you invoke it.

Under Federal civil rules you invoke Rule 15 to amend a pleading. Which you then serve on your adversary so, yeah, they also know that you invoked it.

Under Starling City rules, apparently, it means you want the death penalty… which you tell opposing counsel about in court… as a professional courtesy? They must invoke the death penalty a lot to give it its own rule. Example: “Your honor, I object! Also, I’d like to invoke Rule 15.”

Rule-15

 

Can Lead Attorney for the State Laurel be disbarred for talking to Defendant Moria Queen without Moira’s attorney present?
Yes. Will she be? Hard to say, but some kind of reprimand from the legal bar is likely.

The whole point of having a lawyer is to keep you from saying and doing things you’ll regret. Avoiding Moira’s lawyer, so you can talk to Moira alone, and convince her to take a plea deal, instead of going to trial, because you know about her affair with Malcom Merlyn, is bad form. It could screw up your case. It could also get you disbarred. Just a bad idea all around.

Did Moira engage in a Conspiracy to Murder?
Yes.

Conspiracy is an agreement between two or more people to commit a criminal act with an overt act to that end. She agreed to help out Malcom Merlyn with the machines that would destroy the Glades; she gave him access to the materials necessary to build machines; and she intended that the Glades be destroyed by the machines, along with all of its occupants. So, yeah, guilty of conspiracy to murder.

Stick-figure-conspiracy

 

Does she have a defense for withdrawing?
Yes. Assuming her lawyer wasn’t so busy making unnecessary bail motions that she forgot to put on a withdrawal of conspiracy defense for the jury.

Going on TV to tell people you were part of a conspiracy is a pretty clear way to withdraw, especially if your co-conspirator is watching. And seeing as how Malcom waited some time to set off the machines, he had plenty of time to decide if he wanted to withdraw and not destroy the Glades as well. Even in a jurisdiction that requires the individual to stop the crime in order to withdraw, she would be ok because she pled for people to get out of the Glades, and then was prevented from further action by being immediately arrested by the police who would then, presumably, be responsible for stopping the crime. Unless, of course, they would prefer people who join conspiracies to withdraw by putting on a mask and going all vigilante on their former co-conspirators.

Is she responsible for aiding and abetting 503 mass murders?
That depends on how many people Malcom killed before she withdrew from the conspiracy.

She’s accountable for all the crimes that occurred before the she withdrew (including the “dozens” of murders he committed while she was part of the conspiracy) but not the stuff that happened afterwards. So, if we’re talking about the 503 people who died in the Glades after she went on TV, the answer is no.

If she were responsible for those deaths could she use duress as a defense?
No, not even if she met all the elements, which she doesn’t. Let’s run the numbers:

  • Well-grounded fear? Check!
  • Imminent threat of death or serious bodily harm? Umm… Probably not. Imminent means now, as in “right now!” Not months or years. A defense using months or years might work for someone chained in a house with no means of escape, but Moira is pretty much free to go wherever she wants and do whatever she wants whenever she wants.
  • No reasonable opportunity to escape? Well… she does live in her own house, run her own company and have enough money to go anywhere she wants in the world at any time, which would include, I’m assuming, the police station. Or, she could just tell the police when they come to her house. Which they do semi-regularly. So, I’m going to say no.

Even if she could meet all the elements, you’re not allowed to kill one person, or dozens, to save someone else, even if they are your children. Sorry Moira.

You-have-failed-this-defense

 Can she be held responsible for jury tampering?
No. Unless Starling City has a special rule for that too.

Jury tampering occurs when an individual, such as Malcom Merlyn, by use of corruption or threats tries to influence the outcome of a trial. Jury tampering is serious business, and the penalties can be pretty severe. Let’s be honest though, if you’re Malcom Merlyn, and you’ve killed hundreds of people, a little jury tampering isn’t going to keep you up at night. But Moira had nothing to do with it so she can’t be held responsible. That’s all on Malcom.

Because the jury was tampered with, can they try her again?
No.

The Fifth amendment of the U.S. Constitution forbids double jeopardy, which means you can’t be tried twice for the same crime. Even if your former co-conspirator comes back from the dead and threatens the jury, once a jury reaches a not-guilty verdict and the judge ratifies it in court, they can’t try her again for that same crime. So, Moira is a free woman, but keeping all those secrets is going to get her killed if she’s not careful. Oh, wait….

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Brad Blanchard
Brad Blanchard is a Utah based attorney whose practice focuses primarily on legal compliance, although his employer occasionally sets him lose to do litigation and trial work to help him keep his sanity. Outside of work he has several independent researchers (ie. children) who keep him updated on geek culture (ie. they argue over obscure facts and speculate on new content with one another at the dinner table).