Avengers Endgame opened with Hawkeye’s family all falling victim to “The Snap.” Clint Barton being of sound mind decided to avenge his family’s loss by becoming a medieval-style Punisher known as Ronin and killing criminals across the globe. Can Hawkeye be defended for killing people in Mexico City and Tokyo?
As a preliminary matter, the mass death from Thanos’s “Snap” earned the name “The Decimation.” New York was reduced to an empty ghost town. San Francisco had abandoned streets, houses, cars, and piles of garbage. It was unclear how much of civil society still functioned, but the lights were on in Tokyo. Moreover, someone built the monument to the lost just north of the Golden Gate Bridge, so some government functions continued at least in part.
Murder is “the unlawful killing of a human being with malice aforethought.” 18 U.S.C.S. § 1111(a). The fact Clint Barton traveled to Mexico and Japan to kill criminals was willful conduct. There is no doubt these were premeditated killings. While definitions of murder can vary between countries, an American traveling to other countries with the intent to kill is murder in any country.
The United States has extradition treaties with both Mexico and Japan dating back to the Carter Administration. In such proceedings Courts consider whether:
(1) The judicial officer is authorized to conduct the extradition proceeding;
(2) The court has jurisdiction over the fugitive;
(3) The applicable treaty is in full force and effect;
(4) The crime(s) for which surrender is requested is/are covered by the applicable treaty; and (5) There is sufficient evidence to support a finding of probable cause as to each charge for which extradition is sought.
In re Extradition of Nunez, No. 10-24020-MC, 2011 U.S. Dist. LEXIS 37954, at *4 (S.D. Fla. Mar. 28, 2011) in applying 18 U.S.C.S. § 3184.
The Court does NOT decide on guilt or innocence in such hearings, only whether the requirements for extradition have been met. Applying the elements to Hawkeye, a US Magistrate Judge or Federal District Court Judge could conduct an extradition hearing. Secondly, if the Court was in the Western District of New York (upstate where Barton lived) or the District of Columbia if Barton’s location was unknown, jurisdiction would be proper. Third, both treaties are in full force. Finally, there would be probably cause for charging Barton with murder. Just count the dead Yakuza in Tokyo.
It is not clear if Barton murdered people in the United States, but it is safe to assume “yes.” Federal and State Courts would want first rights to prosecuting Barton for his crimes before extradition to other countries. Attorneys for Hawkeye could argue he suffered from a form of the insanity defense, but there are challenges to winning an acquittal.
The Federal Insanity Defense requires the Defendant proving by clear and convincing evidence that Hawkeye was unable to know the wrongfulness of his actions due to a severe mental disease. 18 U.S.C. § 17(b). There is a credible, by difficult argument to make, that after Hawkeye’s family disappearing around him (along with half of all life on Earth), Hawkeye suffered from Post Traumatic Stress Disorder (PTSD) and was unable to know the wrongfulness of his actions.
The Defense would need to offer expert testimony that linked Hawkeye’s PTSD to not understanding murdering criminals was wrong. Expert testimony on PTSD for the insanity defense has been excluded where the expert failed to connect the criminal conduct to the insanity defense. See, United States v Cartagena-Carrasquillo 70 F3d 706 (1995, CA1 Puerto Rico). It is not enough to show Barton had PTSD; the PTSD has to be the reason Barton did not know right from wrong. One might think that someone who is able to travel the world in search of criminals to execute does understand the wrongfulness of his actions. Alternatively, someone going to the lengths to commit international murder of criminals is clearly not sane.
Could a PTSD insanity defense work? In a world where over half the population died and literally everyone on the planet traumatized by it, likely yes. Jurors would absolutely understand Hawkeye’s trauma and what drove him to murder. Furthermore, Mexico and Japan likely would call a mulligan over murdered criminals given Hawkeye’s role in helping bring every Snap victim back to life.
