Can Pam Argue Defense of Jeri Against Kilgraved Wendy?

AKA Jessica Jones presented a unique criminal law fact pattern: Wendy attempted to murder her wife Jeri while under the mental control of Kilgrave; Pam, Jeri’s legal secretary and paramour, saved Jeri by killing Wendy. This situation created a strange collision of the insanity defense against the defense of others in whether it was right for Pam to use lethal force to kill Wendy while under the mind control of Kilgrave.

Wendy was in the process of attacking Jeri with a large knife when Pam struck her with a blunt object to the head. Wendy had cut Jeri numerous times, as she was attempting to kill Jeri “by 1,000 cuts.” Wendy’s attack on Jeri was carried out after ordered by the Purple Man to kill Jeri.

Jeri and Wendy were in the middle of an ugly divorce. Wendy had demanded a highly suspect divorce settlement in exchange for not disclosing to the New York Bar that Jeri had bribed a juror at the beginning of her carrier. Jedi sought Kilgrave’s assistance in ordering Wendy to take a divorce settlement, likely with a very different settlement amount.

A lawyer for Wendy could have argued the insanity defense for Wendy. While Wendy was highly determined to kill Jeri for wrongs during the marriage, this arguably was because of Kilgrave’s orders, not Wendy’s own intent. A defense attorney could have argued that Wendy did not understand the nature and consequences of their criminal conduct, thus could not be convicted for assault or attempted murder of Jeri under NY CLS Penal § 40.15(1).

Pam entered Wendy and Jeri’s townhouse to find Wendy attacking Jeri. Pam objectively could see multiple cuts to Jeri and a significant amount of blood. Pam was justified in striking Wendy, because under New York law, a person “may use physical force upon another person when and to the extent he or she reasonably believes such to be necessary to defend himself, herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful physical force by such other person…” NY CLS Penal § 35.15(1).

Pam could reasonably have believed Jeri was the victim of the “unlawful physical force” by Wendy from the number of cuts Jeri had sustained. Moreover, Pam caught Wendy in the act of attacking Jeri. As such, Pam hitting Wendy on the head would have been justified to stop the attack on Jeri.

Pam did not intent to kill Wendy, whose head struck the side of a table. While it is highly suspect for three people in a love triangle to have a fight where one ends up dead, Pam would have a very strong defense.

The only thing that could undermine Pam’s “reasonable belief” about Wendy’s threat to Jeri, would be if Pam were aware that Kilgrave had ordered Wendy to kill Jeri. If Pam knew Wendy was not in control of her actions, this complicates the analysis. Pam could be seen as taking advantage of the situation to kill the estranged wife who was making unreasonable divorce settlement demands. Pam’s “defense of others” could suddenly look like murder.

Consider this alternative: If Pam had backhanded Wendy with the blunt instrument, hitting the left side of Wendy’s head was struck instead of the right, Wendy would not have hit the table with the left side of her head. Would that have been remotely reasonable? It is not often people find themselves in life or death situations. Pam taking a normal swing with the first object she grabbed likely was the reasonable action in order to save Jeri.

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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.

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