We are looking for six law students to join us for the Mock Trial of the Winter Soldier at San Diego Comic Fest, February 12-15, 2016. The Prosecution (The Avengers) and the Defense (The Defenders) will each be made up of three law students. Students may also serve as the bailiff, clerk (and time keeper), and court reporter.

The mock trial will focus on the insanity defense on whether James “Bucky” Barnes was unable to appreciate the wrongfulness of his acts in Captain America The Winter Soldier, due to a severe mental disease or defect.

United States Magistrate Judge Paul Grewal will preside over the mock trial. The expert witnesses are Dr. Andrea Letamendi, from The Arkham Sessions and Dr. Janina Scarlet, from Super-Hero Therapy.

If you are a current law student interested in participating, please review our program outline and contact us on the form below:


We are also seeking attorney coaches to help mentor the law students and witnesses. If interested, please contact us on the following form:

Mock Trial Overview

The Trial of the Winter Soldier is based on the film Captain America The Winter Soldier, with additional facts taken from The Winter Soldier storyline in Captain America to define other victims.

The trial will focus only on the Prosecution and Defense Opening Statements (3 minutes each), direct examination of the Defense and Prosecution Expert Witnesses (10 minutes, each, minus time for objections), cross-examination of the expert witnesses (5 minutes), and re-direct of the expert witnesses (2 minutes).

Objections, offers of proof, and the judge’s decision are excluded from the time. All Objections are based on the Federal Rules of Evidence and any relevant privileges under Federal or California law.

Each side will make a 5-minute closing argument as to the Defendant’s guilt, limited to facts established in the film, specifically referenced events from the comics, and the expert testimony as to whether James Buchanan Barnes understood the wrongfulness of his actions at the time he committed the charges. 

Case Overview

James Buchanan Barnes is charged with collaboration as a prisoner of war, multiple counts of murder, terrorism, insurrection, and treason. Barnes’ crimes span over 70 years of levying war against the United States with the terrorist organization HYDRA.

The Government will argue that James Barnes was a willful participant in Secretary Alexander Pierce’s plan to overthrow the United States government, which included the planned assassination President Mathew Ellis, all of Congress (minus Senator Stern), the United States Supreme Court, and several million United States citizens from Washington, DC, to New York City.

The Defense will argue that Defendant Barnes was legally insane at the time of the alleged criminal actions. Barnes is now competent to stand trial.

Both witnesses are qualified as experts pursuant to Federal Rule of Evidence Rule 702. All testimony and expert reports must comply with Federal Rules of Evidence Rules 703, 704, and 705.

Goal of Defense Expert Witness

The Defense Expert witness must prove by clear and convincing evidence that at the commission of all charged crimes that James Buchanan Barnes was unable to appreciate the nature and quality or the wrongfulness of his acts due to a severe mental disease or defect. 18 USCS § 17.

The Defense Expert must explain the nature of Defendant Barnes’ injuries dating back to World War 2 and effects of HYDRA experimentation. The expert’s opinion should include whether being cryogenically frozen could cause Defendant Barnes from being unable to understand the wrongfulness of his actions. The testimony should also explain how electric shock therapy impacted Barnes’ ability to appreciate the nature of his actions.

The expert witness should prepare a report of no more than three page explaining the witness’s opinions, the bases and reasons for those opinions, and the witness’s qualifications that will be the basis of the direct and cross examinations. The witness qualifications can be a CV that does not count as one of the three pages.

Goal of Government Expert Witness

The Government’s Expert Witness will rebut the Defense Witness that James Buchanan Barnes was insane in the events leading up to the launch of the Project Insight Helicarriers. The Government will focus on the fact Secretary Pierce’s orders were illegal on their face and should not have been followed.

The Government’s witness should explore that someone with amnesia can still know right from wrong, despite not remembering his/her identity. Moreover, the Expert can compare Barnes’ mental state to Charles J. Guiteau (US v Guiteau, 1 Mackey 498at *546) and Sirhan Bishara Sirhan (People v. Sirhan (1972) 7 Cal.3d 710, 727, overruled on other grounds).

The expert witness should prepare a report of no more than three page explaining the witness’s opinions, the bases and reasons for those opinions, and the witness’s qualifications that will be the basis of the direct and cross examinations. The witness qualifications can be a CV that does not count as one of the three pages.

Practice Tips for Law Students

Opening Statements are to outline the case theory and theme; Closing Argument is for argument. Students should follow the best practice that on direct examination the witness does 90% of the talking and the lawyer only 10% for asking questions. Cross-examination should have the lawyer exercising witness control by asking specific questions of the opposing expert witness.

Use of Trial Presentation Technology

Trial exhibits, opening statements, closing arguments, and jury instructions may be presented with trial presentation software, such as TrialPad or ExhibitView5 apps for tablets, or Trial Director for a laptop computer. Trial exhibits will include the expert witness reports and other provided images or video. Exhibits must first be shown without any mark-ups prior to identification or presentation to the jury and then can be marked.

Key Facts

James Buchanan Barnes was ordered by Alexander Pierce to 1) Kill Nicholas Fury, Director of SHIELD; 2) Kill Captain Steve Rogers and Natasha Romanoff; 3) Kill Captain Rogers in order to launch the Project Insight Helicarriers.

Alexander Pierce was the leader of HYDRA. James Buchanan Barnes followed Pierce’s orders, which resulted in the death of Nick Fury, and 19 SHIELD air and ground crew members.[1] Defendant Barnes attempted to stop Captain Rogers, severely Rogers with multiple gunshot wounds. If Barnes has stopped Rogers, millions of US citizens would have been killed within minutes.

In addition to the above, Defendant Barnes committed the following known crimes:

November 5, 1954: Killed three US soldiers in Berlin as a field test;

January 11, 1955: Killed entire UN Diplomatic Negotiation Team in Cairo;

May 14, 1955: Assassinated NATO General James Keller;

January 1, 1956: Assassinated British Ambassador Dalton Graines in Madripoor;

April 1, 1956: Assassinated French Defense Minister Jacques Dupuy;

May 12, 1956: Assassinated Algerian Peace Conference Envoy in Paris;

February 17, 1957: Assassinated US Colonel Jefferson Hart in Mexico City; and

March 12, 1973: Assassinated US Senator Harry Baxtor.

Charges 

Count 1: Collaboration with the Enemy

James Buchanan Barnes willfully collaborated with HYDRA since his capture in 1945.

Statutory Authority:

Collaboration with the enemy in violation of Article of War 96 and the Uniform Code of Military Justice Article 134. UNITED STATES v. GALLAGHER (U.S.A.B.R. 1957) 23 CMR 591, 596.

Count 2: Terrorism  

James Buchanan Barnes willfully committed domestic acts of terrorism by 1) assassinating Nicholas Fury; 2) attempting to publicly kill Captain Steven Rogers, Natasha Romanoff, and Samuel Wilson in downtown Washington, DC, with reckless regard for human life on buses and city streets; 3) Assisting in the launch of the Project Insight Helicarriers.

Statutory Authority:

The term “domestic terrorism” means activities that–

(A)  involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State;

(B)  appear to be intended–

(i)  to intimidate or coerce a civilian population;

(ii)  to influence the policy of a government by intimidation or coercion; or

(iii)  to affect the conduct of a government by mass destruction, assassination, or kidnapping; and

(C)  occur primarily within the territorial jurisdiction of the United States.

18 USCS § 2331(5)

Count 3: Acts of Terrorism Transcending National Boundaries

James Buchanan Barnes willfully committed acts of terrorism transcending national boundaries by 1) murdering Nicholas Fury 2) assaulting Nicholas Fury, Captain Steven Rogers, Natasha Romanoff, and Samuel Wilson with dangerous weapons; and 3) conspiring to launch the Project Insight Helicarriers.

Statutory Authority:

(a)  Prohibited acts.

(1)  Offenses. Whoever, involving conduct transcending national boundaries and in a circumstance described in subsection (b)–

(A)  kills, kidnaps, maims, commits an assault resulting in serious bodily injury, or assaults with a dangerous weapon any person within the United States; or

(B)  creates a substantial risk of serious bodily injury to any other person by destroying or damaging any structure, conveyance, or other real or personal property within the United States or by attempting or conspiring to destroy or damage any structure, conveyance, or other real or personal property within the United States; in violation of the laws of any State, or the United States, shall be punished as prescribed in subsection (c).

(2)  Treatment of threats, attempts and conspiracies. Whoever threatens to commit an offense under paragraph (1), or attempts or conspires to do so, shall be punished under subsection (c).

(b)  Jurisdictional bases.

(1)  Circumstances. The circumstances referred to in subsection (a) are–

(A)  the mail or any facility of interstate or foreign commerce is used in furtherance of the offense;

(B)  the offense obstructs, delays, or affects interstate or foreign commerce, or would have so obstructed, delayed, or affected interstate or foreign commerce if the offense had been consummated;

(C)  the victim, or intended victim, is the United States Government, a member of the uniformed services, or any official, officer, employee, or agent of the legislative, executive, or judicial branches, or of any department or agency, of the United States;

(D)  the structure, conveyance, or other real or personal property is, in whole or in part, owned, possessed, or leased to the United States, or any department or agency of the United States;

(E)  the offense is committed in the territorial sea (including the airspace above and the seabed and subsoil below, and artificial islands and fixed structures erected thereon) of the United States; or

(F)  the offense is committed within the special maritime and territorial jurisdiction of the United States.

(2)  Co-conspirators and accessories after the fact. Jurisdiction shall exist over all principals and co-conspirators of an offense under this section, and accessories after the fact to any offense under this section, if at least one of the circumstances described in subparagraphs (A) through (F) of paragraph (1) is applicable to at least one offender.

(c)  Penalties.

(1)  Penalties. Whoever violates this section shall be punished–

(A)  for a killing, or if death results to any person from any other conduct prohibited by this section, by death, or by imprisonment for any term of years or for life;

(B)  for kidnapping, by imprisonment for any term of years or for life;

(C)  for maiming, by imprisonment for not more than 35 years;

(D)  for assault with a dangerous weapon or assault resulting in serious bodily injury, by imprisonment for not more than 30 years;

(E)  for destroying or damaging any structure, conveyance, or other real or personal property, by imprisonment for not more than 25 years;

(F)  for attempting or conspiring to commit an offense, for any term of years up to the maximum punishment that would have applied had the offense been completed; and

(G)  for threatening to commit an offense under this section, by imprisonment for not more than 10 years.

(2)  Consecutive sentence. Notwithstanding any other provision of law, the court shall not place on probation any person convicted of a violation of this section; nor shall the term of imprisonment imposed under this section run concurrently with any other term of imprisonment.

(d)  Proof requirements. The following shall apply to prosecutions under this section:

(1)  Knowledge. The prosecution is not required to prove knowledge by any defendant of a jurisdictional base alleged in the indictment.

(2)  State law. In a prosecution under this section that is based upon the adoption of State law, only the elements of the offense under State law, and not any provisions pertaining to criminal procedure or evidence, are adopted.

18 USCS § 2332b

Count 4: Bombings of Places of Public use, Government facilities, Public Transportation Systems and Infrastructure Facilities

James Buchanan Barnes willfully used 1) firearms and explosives on US Route 29, expanding onto the city streets of Washington, DC; 2) used explosives on the airfield of the Triskelion ; and 3) the attempted terrorist actions resulted in the destruction of the Triskelion.

Statutory Authority:

(a)  Offenses.

(1)  In general. Whoever unlawfully delivers, places, discharges, or detonates an explosive or other lethal device in, into, or against a place of public use, a state or government facility, a public transportation system, or an infrastructure facility–

(A)  with the intent to cause death or serious bodily injury, or

(B)  with the intent to cause extensive destruction of such a place, facility, or system, where such destruction results in or is likely to result in major economic loss,
shall be punished as prescribed in subsection (c).

(2)  Attempts and conspiracies. Whoever attempts or conspires to commit an offense under paragraph (1) shall be punished as prescribed in subsection (c).

(b)  Jurisdiction. There is jurisdiction over the offenses in subsection (a) if–

(1)  the offense takes place in the United States and–

(A)  the offense is committed against another state or a government facility of such state, including its embassy or other diplomatic or consular premises of that state;

(B)  the offense is committed in an attempt to compel another state or the United States to do or abstain from doing any act;

(C)  at the time the offense is committed, it is committed–

(i)  on board a vessel flying the flag of another state;

(ii)  on board an aircraft which is registered under the laws of another state; or

(iii)  on board an aircraft which is operated by the government of another state;

(D)  a perpetrator is found outside the United States;

(E)  a perpetrator is a national of another state or a stateless person; or

(F)  a victim is a national of another state or a stateless person;

18 USCS § 2332f

Count 5: Murder 

James Buchanan Barnes willfully killed: 1) Nicholas Fury; 2) 19 SHIELD airman; 3) three US soldiers in Berlin as a field test on November 5, 1954: 4) an entire UN Diplomatic Negotiation Team in Cairo on January 11, 1955; 5) NATO General James Keller on May 14, 1955; 6) British Ambassador Dalton Graines in Madripoor on January 1, 1956; 7) French Defense Minister Jacques Dupuy on April 1, 1956; 8) Algerian Peace Conference Envoy in Paris on May 12, 1956; US Colonel Jefferson Hart in Mexico City on February 17, 1957; and US Senator Harry Baxtor on March 12, 1973.

Statutory Authority:

(a)  Murder is the unlawful killing of a human being with malice aforethought. Every murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing; or committed in the perpetration of, or attempt to perpetrate, any arson, escape, murder, kidnaping, treason, espionage, sabotage, aggravated sexual abuse or sexual abuse, child abuse, burglary, or robbery; or perpetrated as part of a pattern or practice of assault or torture against a child or children; or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed, is murder in the first degree.

Any other murder is murder in the second degree.

(b)  Within the special maritime and territorial jurisdiction of the United States,

Whoever is guilty of murder in the first degree shall be punished by death or by imprisonment for life;

Whoever is guilty of murder in the second degree, shall be imprisoned for any term of years or for life.

18 USCS § 1111

Count 6: Treason

James Buchanan Barnes willfully levied war against the United States by participating in air piracy of the Project Insight Helicarriers to be used against the United States. 

Statutory Authority:

Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $ 10,000; and shall be incapable of holding any office under the United States.

18 USCS § 2381 

Count 7: Rebellion or Insurrection

James Buchanan Barnes willfully engaged in rebellion against the United States in the mutiny and air piracy of the Project Insight conspiracy. 

Statutory Authority:

Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.

18 USCS § 2383 

Count 8: Enlistment to Serve Against the United States 

James Buchanan Barnes willfully served in armed hostility against the United States in the mutiny and air piracy of the Project Insight conspiracy. 

Statutory Authority:

Whoever enlists or is engaged within the United States or in any place subject to the jurisdiction thereof, with intent to serve in armed hostility against the United States, shall be fined under this title or imprisoned not more than three years, or both.

18 USCS § 2390

Defenses:

Insanity Defense

(a)  Affirmative defense. It is an affirmative defense to a prosecution under any Federal statute that, at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts. Mental disease or defect does not otherwise constitute a defense.

(b)  Burden of proof. The defendant has the burden of proving the defense of insanity by clear and convincing evidence.

18 USCS § 17

[1] The world believes Nick Fury is dead in the MCU.

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Josh Gilliland

Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg for 2013 to 2016, the ABA Web 100 for Best Legal Blog and Podcast categories, and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.