Defending the Ghost for her Crimes in Ant-Man and The Wasp

The Ghost phasing through the mold of villains in Ant-Man and the Wasp by being an adversary who was a victim seeking a cure, not someone intent of causing massive carnage or revenge (see Red Skull, Loki, Whiplash, Ultron, HYDRA, Abomination, or The Hand, to name a few). The fact the Ghost is someone seeking a cure for a physical illness caused by an experiment, she actually has legal defenses for a jury.

Ghost Stories

Ava Starr was injured as a child by energy from the Quantum Realm in an experiment conducted by her “egghead” father Elihas Starr.  Ava’s physical condition from the accident was being out of phase with the universe. Ava was taken in by SHIELD to become a field agent used for clandestine missions with her abilities to pass through solid objects. Ava’s abilities were exploited by SHIELD (which had been compromised by HYDRA). She was later cast out on her own after SHIELD fell (as seen in Captain America The Winter Soldier and Agents of SHIELD).

Starr’s physical condition deteriorated to the point she going to cease to exist. Her body kept phasing, resulting in her being in a state of pain and mental distress. She had to sleep in a chamber designed by Bill Foster to slow her decay from existence.

The Ghost committed multiple forms of assault, larceny, and burglary, or larceny to steal a miniaturized building, in order to find a cure for her condition. The most challenging of her crimes is the killing the corrupt FBI Agent Stoltz in order to acquire Hank Pym’s laboratory. While the FBI agent was on the take from the criminal Sonny Burch, the death of a Federal agent causes a significant problem in defending Starr.

Lay the Ghost of Crimes to Rest

The Ghost’s crimes were in the city and county of San Francisco. However, the Ghost did kill a Federal agent, so Ava Starr could be prosecuted in both California and Federal Court for her separate crimes.

There are two plausible defenses for Ava Starr. The first is the medical necessity defense and the other insanity.

The common law medical necessity defense has the same elements as the necessity defense. A defendant can argue the necessity defense when for any criminal act, except taking an innocent human life. People v. Trippet, 56 Cal. App. 4th 1532, 1538, (1997), citing People v. Pena 149 Cal. App. 3d Supp. 14, 22 (1983). The six elements to the defense require the defendant to prove:

  1. The act charged as criminal must have been done to prevent a significant evil;
  2. There must have been no adequate alternative to the commission of the act;
  3. The harm caused by the act must not be disproportionate to the harm avoided;
  4. The accused must entertain a good-faith belief that his act was necessary to prevent the greater harm;
  5. Such belief must be objectively reasonable under all the circumstances; and
  6. The accused must not have substantially contributed to the creation of the emergency.

Trippet, at *1538, citing Pena, at pp. Supp. 25-26.

Focusing only at the available state charges of assault and larceny, the Ghost does have a chance to argue a medical necessity defense:

  1. The attempted theft of technology to access the Quantum Realm was done to prevent her imminent death, which would be a “significant evil.”
  2. The technology was only available from the black market dealer who was selling it to Hope van Dyne;
  3. The act of stealing the technology was not disproportionate to the harm avoided, which was her death. However, this argument is weakened by every assault Starr commits;
  4. Starr had the good-faith belief that stealing the technology to access the Quantum Realm was the only way to prevent her death;
  5. The theft of technology to access the Quantum Realm was objectively reasonable. Each assault does undermine the reasonableness under all the circumstances;
  6. As to the accused must not have substantially contributed to the creation of the emergency, it was the criminal actions of Sonny Burch that caused the escalation of violation that Starr responded to in order to acquire the technology. Moreover, Ant-Man and the Wasp did break into Starr’s hideout, which makes their kidnapping a legal mulligan.

In a prior case, the necessity defense was not available to a cult de-programmer who kidnapped a cult member to “rescue” them, because the family’s knowledge of the cult was four or five years earlier. Moreover, there was no knowledge of imminent physical harm. People v. Patrick 126 Cal. App. 3d 952 (Cal. App. 4th Dist. Dec. 18, 1981). This case is distinguishable from Ava Starr’s case, because she personally had a reasonable belief to justify her actions. Starr’s danger was imminent and she had a rational belief her life was in danger.

Pale as a Ghost

Ava Starr could argue that at the time she killed FBI Agent Stoltz, she was suffering from years of physical pain from phasing in and out of reality, thus did not understand the wrongfulness of her actions. See, 18 U.S.C.S. § 17. The insanity defense is rarely effective, but there is a good argument to be made that Starr had a mental disease from her years of suffering, which caused her to not understand that killing Stoltz was wrong.

Expert testimony would be needed to explain the impact of constant physical pain caused by the exposure to the Quantum Realm upon Ava Starr. First, a psychologist could report on Starr’s mental state from a lifetime of a physical condition causing her to phase through objects. Second, the psychologist could further opine on the effect of a child being trained by SHIELD/HYDRA to conduct assassinations and espionage operations. Third, the physical impact of constant pain for years upon Starr’s mental state would need to be offered as expert opinion for the jury to consider. All of these factors could show Starr did not understand the wrongfulness of killing Agent Stoltz.

Don’t Give Up the Ghost

The Ghost was a victim of her father’s experiments that resulted in her being exploited as a weapon by HYDRA agents within SHIELD and a lifetime of physical pain. Such nightmarish conditions could drive someone mad to the point they only want the pain to stop. Ava Starr’s mind was clearly haunted by suffering and sought relief. That resulted in extreme actions, but not ones that a jury should render a life sentence for surviving.