Did Daredevil Adequately Prepare for the Punisher’s Trial?

Spoiler Warning: Do not read unless you have watched Daredevil season 2 episodes “Semper Fidelis” and “Guilty as Sin.”

Matt Murdock and Foggy Nelson represented Frank Castle in his trial that included 37 murder and 98 other charges. Both attorneys owed Castle the duty of competency and loyalty in their representation.

Problem: Murdock was late to trial, so he missed giving his opening statement, forcing Foggy to take the lead instead. Did Murdock violate his duty of competency to his client?

New York defines the duty of competence for attorneys under New York’s Rules of Professional Conduct, Rule 1.1: 

(a)     A lawyer should provide competent representation to a client. Competent representation   requires   the   legal   knowledge,   skill,   thoroughness   and   preparation reasonably necessary for the representation. 

(b)       A lawyer shall not handle a legal matter that the lawyer knows or should know that the lawyer is not competent to handle, without associating with a lawyer who is competent to handle it.

(c)        A lawyer shall not intentionally:

(1)       fail to seek the objectives of the client through reasonably available means permitted by law and these Rules; or

(2)       prejudice or damage the client during the course of the representation except as permitted or required by these Rules. 

The committee notes also explain how lawyers must adequately prepare their case as follows:

Thoroughness and Preparation

[5] Competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners. It also includes adequate preparation. The required attention and preparation are determined in part by what is at stake; major litigation and complex transactions ordinarily require more extensive treatment than matters of lesser complexity and consequence. An agreement between the lawyer and the client may limit the scope of the representation if the agreement complies with Rule 1.2(c). 

Matt Murdock did not prepare for trial, instead spending the night with Electra roughing up a perverted language professor to crack a code used by The Hand. Murdock’s vigilante life as Daredevil kept him out late, so he overslept, and thus was late to court.

Daredevil_Comic_Foggy_Opening_0527

Foggy Nelson had the option to delay giving the Defense’s opening statement until after the Prosecution’s case-in-chief. Defense attorneys often make this strategic decision so the Defense effectively responds to the Prosecution’s case before calling their witnesses (think of a delayed opening statement as a sorbet to cleanse the jurors’ intellectual palates). Foggy decided to give the Defense own opening statement extemporaneously, which carried higher risk then Murdock being late.

Matt Murdock’s lack of preparation extended to missing strategy sessions, witness preparation, and working with his trial team. Attorneys have been suspended for failing to appear for schedule compliance conferences and even disbarred for systemic violations of their professional responsibilities. See, In the Matter of Jorge Sorote, 973 N.Y.S.2d 101 (Sept. 17, 2013) and In the Matter of C. Vernon Mason, 621 N.Y.S.2d 582 (Jan. 26, 1995).

Murdock being late to the courthouse and missing the beginning of the trial is very bad on its face. However, since Murdock had Nelson as has co-counsel, this makes the situation murky on whether Castle suffered any prejudice. Moreover, Nelson had the option to defer the opening statement until Murdock arrived. Nelson did not have to give the opening statement at that exact moment and could have avoided the risk to the client.

This does not free Murdock of any violation of the duty of loyalty to Frank Castle. Moreover, Murdock likely breached his fiduciary duty to Foggy Nelson, as his legal partner, with his inattention to Castle’s case. Castle could have had a valid complaint against Murdock to the New York Bar, minus Castle’s own sabotaging his own case.

A few notes on Trial Advocacy and Evidence: 

The District Attorney improperly objected to Murdock’s cross-examination questions as “leading.” The entire point of cross-examination is to ask leading questions to control the witness, which is allowed. It is equally wrong to object to cross-examination as argumentative, because cross-examination by its very nature is supposed to be argumentative to discredit the witness.

There was also the issue whether Dr. Gregory Tepper altering medical records were relevant to Frank Castle’s case. In Federal Courts and many states a witness’ veracity for truthfulness is relevant. Dr. Tepper altering medical records would discredit his testimony, which could be introduced on cross-examination. See, Federal Rules of Evidence Rule 608(b)(1) and California Rules of Evidence Rules 785 and 786. New York has similar rules based on common law, as New York States does not have an evidence code.

Confronting Dr. Tepper with evidence of falsifying medical records would be potentially devastating and extremely relevant to Castle’s case. However, as the medical records would have been collateral, the Judge would have limited questioning to avoid confusing the jury with facts not material to Castle’s case.

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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, 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.