Let me start by saying that if the United States were to try and prosecute the most patriotic super hero of all time I would, after passing the state bar exam, jump at the opportunity to be Captain America’s defense attorney. Think about it, Captain America is exactly what this country stands for, patriotism in every sense of the word. And I am not biased in my decision because of his actor counterpart. Although that would be nice too, it has nothing to do with my decision. Nonetheless, after acting as the prosecuting attorney in the Mock Trial of the Winter Soldier at San Diego’s Comic Fest 2016, I now get the chance to switch sides. I get to consider how I, as a soon to be (in 1 year hopefully) criminal attorney, would defend Captain America for the crimes he committed during the Civil War in the Marvel Universe.

I’m going to step into my prosecutorial shoes for a minute to lay out the charges I think he would be charged with; well, the charges I would try and get away with charging him with if I was the prosecuting attorney. Although there is no direct casualties openly admitted in the comic book other than Goliath’s death caused by Thor’s clone, it is a reasonable inference that there were civilians that died during the Civil War at the hands of either Captain America or a member of his team. I’m sure Iron Man plays a huge part in some of those deaths too but he’s not on trial in my hypothetical world. With that being said, Captain America would most likely be charged with multiple counts of murder even though his hands never touched a victim or caused a single murder.

captain-america-in-prison-or-even-dead-4-potential-endings-to-marvel-s-civil-war-570507
From Marvel’s Civil War, issue 7.

18 U.S.C. §1111 defines murder as “the unlawful killing of a human being with malice aforethought.” In addition, it states “every murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing…is murder in the first degree.” The state would definitely try and charge Cap with multiple counts of murder but they won’t stop there.

They would charge him with, at minimum, eight more charges. They would try to charge him with:18 U.S.C. §1361 Destruction of Government Property, 18 U.S.C. §2385 Advocating Overthrow of Government, 18 U.S.C. §2332(b) Acts of Terrorism Transcending National Boundaries, Domestic Terrorism as defined in 18 U.S.C. §2331(5)(A), Assaulting, Resisting, or Impeding Certain Officers or Employees 18 U.S.C. §111, and Conspiracy to Commit Offense or Defraud the United States 18 U.S.C. §371. In addition, I would, as a prosecutor in the Marvel Universe, try and get a 10 year sentence enhancement by citing to 18 U.S.C. 521 and proving to the court that Captain’s acts under this section provide that he was involved in a criminal street gang as defined by the law and that they engaged in Federal felony crimes of violence within the past five years meeting multiple elements of this sentence enhancement. So as Captain America’s defense attorney, I would have my work cut out for me.

So where would I start? Well, I would fight the murder charges using an affirmative defense. Murder is essentially composed of three parts, (1) the killing of another human being; (2) by another human being; (3) who intended to kill the victim. However, in Civil War, Captain fails to intend to kill anyone. In fact, he gets angry with the Punisher for killing Goldbug and Plunderer despite the fact that these are “bad guys.” He even goes as far as directing his team to get rid of Punisher’s guns and “throw them in the incinerator.” Additionally, the law states it must be the killing of a human being by another human being. Technically, these guys aren’t even considered “human beings” by SHIELD agents or the government. They are consistently referred to as “super humans.” So does this even put them in the same legal category as human beings? The sentences they would face are not similar to that of a civilian. Their “jails” are even significantly different because if we placed them in a regular prison, they would escape easily. Therefore, I would start by fighting the murder charges by asking the court to consider the fact that a federal government agency does not address Cap as a “human being” but rather as “Super human”. Therefore, how could we hold him accountable for human crimes if the penalty we intend to give him is also not a “human being” consequence?

Let’s pretend I fail at this and am forced to use negating defenses. Then I’d use statutory interpretation to at least get the charges dropped to negligent homicide or 2nd degree murder because the law defines 1st degree murder as a “willful, deliberate, malicious, and premeditated killing.” According to the statutes use of the word “and” in reference to these elements, all of them should be present in the commission of the offense in order for the defendant to be charged with 1st degree murder. In this case, none of the alleged murders committed were willful, deliberate, malicious or premeditated. At best, any murders that occurred during the Civil War were war casualties, negligent, and an accident justifying a charge reduction to 2nd degree murder or negligent homicide because of the failure to meet the elements of 1st degree murder. The necessary mens rea to commit murder is lacking in the commission of the alleged offense.

Another affirmative defense that can be used is self-defense. This might be the easiest one to prove because Cap was only defending himself from the relentless attacks of Iron Man, but unless Iron Man is the dead victim (YAY!) I doubt this defense would be efficient. Another fact that would work in Captain America’s favor would be that he never once fought back with greater force than what he was being attacked with. Cap met the battle against Iron Man with equal force and never more further proving that he had no intention of committing murder. This could be a mitigating factor that I would use in favor of Captain America if not to lower the charges or to convince a jury otherwise, then to get him the least possible sentence.

Cap_CivilWar_JuryNullification

As for the charges of advocating to overthrow the government and domestic terrorism I would remind the court of history. In the Marvel Civil War events, SHIELD and the government wanted to have every “super human” registered for identification purposes and put into a boot camp where they are trained and their way of thinking or living is changed and molded into what the government wants from them. They would then be distributed across the nation in “super teams” of up to five super heroes and moved to a state of the federal government’s choosing, without having any say. Doesn’t this sound familiar? Let me refresh your memory to World War II Germany where every Jewish person had to register with the Nazi government for identification purposes, were put into internment camps, and Hitler’s government did with them as he pleased. How can the U.S. government and the court (in the Marvel Universe) punish Captain America, for fighting the very same thing that they themselves fought during WWII? How can they prosecute him for doing the exact same thing our leaders opposed of and fought against? This is for convincing purposes assuming he had a jury trial he was rightfully entitled to.

18 U.S.C. §2331(5)(A)(B)(i) defines domestic terrorism as “activities that involve acts dangerous to human life…appear to be intended to intimidate or coerce a civilian population…” If this is what Cap would be charged with then the same can be said about the government and their group of misfits and bandits that went out into the cities led by Iron Man supported by Federal agents from SHIELD. The acts they committed were also ones of domestic terrorism because their purpose was to intimidate and coerce not only the super human population but the civilian population as well. The use of violence and the witch hunt for super humans led by Iron Man instilled so much fear in the civilian population that he was approached by a mother whose little boy died because of his influence in the boys life. If anything, Cap is not guilty of domestic terrorism but instead guilty of trying to protect the rights and liberties of civilians and super humans alike.

As for the charges of acts of terrorism transcending national boundaries, 18 U.S.C. §2332(b)(1)(C) states that “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…” Under this law, unless any of the civilian casualties were government employees this charge cannot stand against Cap.

18 U.S.C. §2332(g)(5)(A) defines a “federal crime of terrorism as an offense that is calculated to influence or affect the conduct of the government by intimidation or coercion, or to retaliate against government conduct…” Fighting this would not be easy because technically Cap’s acts were specifically that, in retaliation against government conduct, but it was conduct that even if the government in our real life nation tried to do, people would ban together to try and stop them. Essentially it’s like saying all left handed people have to register with the government so that they can be identified as such. Granted, voter registration in our society does just that but gives citizens the option to not identify themselves with any political party. The super humans that Cap was standing up for did not have an option or a say in any of the government’s acts.

Fighting the charge of destruction of government property might be the most challenging one. 18 U.S.C. §1361 states that the law prohibits actual physical damage or destruction of both real and personal property and states that whether the defendant knew or not that the property belonged to the United States is not something the prosecution has to prove because government ownership is “merely a jurisdictional fact.” Additionally, it states that title or possession by the United States is not a necessary element of this offense, as long as the property was being made for the United States. Let’s be realistic here. There is not a single person who is going to look at what remains after the Civil War and honestly and ethically say that no property was destroyed and the fact that title and ownership is not a necessary element of the offense makes this even more of a challenging rebuttal.

Lastly, I’m not sure if this plays a role at all in the trial but is Captain America on trial or Steve Rogers? In the comic, Steve Roger’s was arrested, not Captain America. Additionally, no one had to forcefully arrest him or fight him. Steve Roger’s willingly and very cooperatively handed himself over to law enforcement officials at the end of the Civil War. But it was not Captain America whom they arrested; it was Rogers. So technically, wouldn’t I have to defend the civilian Steve Rogers? If that were the case, I would have to change my arguments because he is being prosecuted as a civilian and not a “super human.” I don’t have time for that right now so I’m moving along.

The court in a case like this, even in the Marvel Universe, could go either way. There are many policy issues that would need to be addressed by Marvel legislatures that are out of the court’s control. Issues such as writing laws tailored specifically to the super human community holding them accountable for crimes they commit both in their performance as super heroes and in their time as civilians. The courts do not write law, the legislature does and in this case, the politicians in the Marvel Universe. The gravity of the damage and destruction this Civil War caused on the nation is immeasurable and defending Captain America would not be an easy task. It would take creativity and would have more likelihood of success if driven with strong policy arguments.

Thank you to Shawn Richter, photo credit credit Craig Bap at Cosplay Corral.
Thank you to Shawn Richter, photo credit credit Craig Bap at Cosplay Corral.

Overall, as Captain America’s hypothetical attorney, I would fight for him wholeheartedly armed with the knowledge that I’m not only fighting for Captain America’s freedom, but for the freedom of all super humans to live freely and with the same rights and liberties afforded to civilians. After all, these super humans protect the civilians in the Marvel universe in ways that no Marvel government agent ever could. Needless to say, I am TEAM CAPTAIN AMERICA all the way! If a lawyer puts on a trial armed with the facts and the law on their side but driven with their heart, they can convince anyone of their hero’s innocence. That’s exactly what I would do!

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Sylvia La Rosa
Sylvia is a native of Los Angeles but currently resides in Sacramento to attend law school. She has a bachelor’s and master’s degree in criminal justice from Cal State Long Beach. She gave up her 5-year career as a teacher to attend law school. She is currently a second year law student. Her mock trial experience thus far is prosecuting an entire murder mock trial last year, several moot court and appellate oral arguments, and the McGeorge Mock Trial Honors Team.