Strategies for Direct Examination of the Punisher

The Daredevil season 2 episode, “Guilty as Sin” had Frank Castle testify in his capital murder trial. This high risk trial strategy was to connect the dots to the defense expert’s theory that Castle suffered from “Sympathetic Storming,” due to the traumatic brain injury from being shot in the head.

Matt Murdock’s direct examination of Frank Castle did not go well. Castle exploded on the stand, due to a deal offered to him from a police officer from an unknown individual.

Was Murdock right to treat Castle as a hostile witness? Did Murdock have other options for conducting the direct examination? Let’s explore possible case strategy.

The Defense theory centered on Castle suffering from “Sympathetic Storming.” This condition is “theorized to be an increase in activity of the sympathetic nervous system created by a disassociation or loss of balance between the sympathetic and parasympathetic nervous systems.” See, Denise M. Lemke, MSN, APNP-BC, CNRN,Sympathetic Storming After Severe Traumatic Brain Injury.”

Those suffering from “Sympathetic Storming” can be in a “state of agitation, extreme posturing/dystonia, tachycardia, tachypnea, hypertension, diffuse diaphoresis, and hyperthermia. Id.

Matt Murdock needed to connect Castle’s story to the expert’s theory that Castle suffered a case of “Sympathetic Storming” from seeing his family brutally murdered in a sting gone bad with three different gangs. Murdock knew Castle’s history from Castle telling Daredevil what happened in the park the day of the gunfight. Here is one possible line of questions where the attorney only does 10% of the talking, the witness the other 90%:

What was your wife’s name?

When were you married? 

What was the name of your daughter?

When was her birthday?

What was the name of your son?

When was his birthday?

What branch of the military were you in?

Where were you deployed?

How long were you deployed?

When did you return from deployment overseas?

When did you first get scared as a Marine?

Where did you first go after returning from deployment?

Who did you go see?

What happened when you saw your daughter?

What happened after you went home with your family?

Did your daughter have a favorite book?

What quotes you remember from that book?

When was the last time your daughter asked you to read her the book?

Did you read to her the final time she asked you to? 

Where did you go with your family the day after you returned from deployment?

What happened at the park?

What happened to your wife at the park?

What happened to your daughter?

What happened to your son?

What happened to you?

You are charged with murdering 37 people. How did you select the individuals you attacked?

Who were the Irish gang you confronted?

Why did you confront them?

What were the men doing when you confronted them?

Did they attack you when they saw you?

Who were the Dogs of Hell?

Why did you confront the Dogs of Hell?

What were the Dogs of Hell doing when you confronted them? Did they attack you when they saw you?

What Cartel did you confront? Why?

What were the men in the Cartel doing when you entered the warehouse to confront them? Did they attack you when they saw you?

Going back to your daughter’s book, have you ever quoted that phrase?

What are the specific times you said that quote?

The goal is to make Frank Castle look human. The Defense should focus on Castle’s suffering and that constant grief is the reason he waged a one-man war on organized crime. That Castle saw his family butchered and is obsessive with killing those that destroyed his family. It would be a form of the insanity defense, with a touch of jury nullification that is unstated.

Punisher_I_am_Agitated_0535

Jury nullification is a dangerous argument for any attorney, because lawyers cannot outright ask juries to ignore the law. Matt Murdock and Foggy Nelson would have to offer a justification for the killings before the jury, by showing that the people Frank Castle killed had even killed more people and would have continued to do so.

The smarter plan would have been NOT having Frank Castle testify. Expert testimony on the Dogs of Hell, the Irish mob, and the Cartel, would have established the crimes attributed to each gang, the number of people the gangs had killed, and establish how dangerous each group was to the public. The psychologist’s expert opinion on Castle’s mental state and then tied to the gangs in closing argument would have avoided the explosive situation of having the Defendant testify.

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