Did the Jury in Civil War 2 Nullify the Murder Charges Against Hawkeye?

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Hawkeye murdered the Hulk in Civil War 2 issue 3. Issue 4 opens with a jury verdict in Federal Court of “Not Guilty.” Was justice really served on Hawkeye? Did the jury acquit Clint Barton because the Hulk has destroyed more property than perhaps any “hero” in the Marvel Universe? Tune in for my thoughts on the Trial of Hawkeye.

Comic Con The Final Frontier

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“Awe inspiring” is the best way to describe our second appearance at San Diego Comic Con. Our Star Trek panel brought together the most talented speakers I have ever moderated. I thank all of them for joining the adventure to discuss Star Trek and Supergirl at Comic Con. Jess_Josh_StarTrek_SDCC_PodcastStar Trek is one of the greatest loves of my life.  From the tearful car ride home after Wrath of Khan, to watching Deep Space Nine in college, or Voyager in law school, I have always stood a little taller whenever I hear, “Space, the final frontier.” It was an honor to have a small part in celebrating the 50th Anniversary of Star Trek with our panel, “Star Trek: Where Lawyers Boldly Go.”

Comic Con is a lot like V’Ger: Huge. There are around a dozen panels an hour from 10am to 8pm (a few even later). There are contests, photo opts, and of course, the Exhibit Hall. There is no shortage of things to do. Here are some of our moments:

Star Trek: Where Lawyers Boldly Go

California Supreme Court Justice Mariano-Florentino Cuellar, Neel Chatterjee, Christine Peek, Paul Grewal, Megan Hitchcock, and Jessica Mederson, all had amazing legal analysis of the different trial episodes in Star Trek.

Christine Peek prepared a mind map connecting the different trial episodes. A huge thank you to special effects wizard Jesse Toves, who prepared a Star Trek themed mind map for our agenda.

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Christine Peek’s material on Judgment could be used to teach a trial advocacy class. Christine covered everything from the duty of competency to how she would cross-examine Duras. We’ll post her material in a future blog post.

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Neel Chatterjee prepared amazing case summaries and legal analysis. Neel also wore his love of Star Trek on his sleeve, presenting in full Starfleet Wrath of Khan era uniform.

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Justice Cuellar is an extremely inspiring individual. He spoke on watching Star Trek as a young boy in Mexico on his grandmother’s black and white TV set. The Justice then shared his thoughts on how the Prime Directive has been applied throughout the series and movies. Justice Cuellar and Paul Grewal’s analysis of Measure of a Man was masterful on equal protection and artificial intelligence. The Justice also identified his favorite starship as the USS Voyager, because it is “svelte, sleek design, smart, fast, incredibly resilient, and wasted little space.”

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Nearly 400 people attended our Star Trek panel. There were approximately 100 to 150 people who identified themselves as attorneys. One attendee in a Darth Vader dress introduced herself as a California Judge in Compton. There is no question that long before many attorneys and judges practiced law, they grew up watching Star Trek.

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Paul Grewal explaining the similarities between the Klingon legal system and the United States. 

Jimmy Olsen Asks the Tough Questions on Kryptonian Justice

Our second SDCC panel explored the legal issues in Supergirl. My brother Gabe Diani moderated the session as the Golden Age Jimmy Olsen.

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We had a blast discussing whether imprisoning people in the Phantom Zone violates the 8th Amendment, liability for property damage in battling super-villains, and whether Supergirl’s super hearing could subject her to an invasion of privacy claim.

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Thank you to all of our panelists and attendees. Our slides are available below.

Celebrating the Forrest J. Ackerman Centennial

Famous Monsters is pulling out all the stops to honor the first cosplayer and the man who coined the phrase “sci fi”: Forrest J. Ackerman.

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FM had an all-star panel honoring “Uncle Forry” for his 100th birthday. Legends shared their memories of Ackerman, including Bjo and John Trimble, the couple who ran the “Save Star Trek” campaign. Without their campaign, there would not have been a third season of Star Trek, which would have resulted in the show never being syndicated. The Trimbles also met under Ackerman’s grand piano, which is its own unique story.

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The Trimbles. 

Memorable Panels

There were many great panels, including a tribute to Jack Kirby, one with the Women of Marvel, Super-Hero Therapy, and out-of-this-world Star Trek panels with NASA and the Smithsonian. I was extremely surprised to find out the official Jack Kirby biographer was the jury foreman at our Mock Trial of the Winter Soldier.

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Dr. Janina Scarlet at the Super-Hero Therapy panel. 

It’s “Legal Research” 

San Diego Comic Con was an excellent opportunity to pick up props for future blog posts. I am ready for Luke Cage, Iron Fist, Doctor Strange, and other upcoming releases. I was especially impressed with the t-shirts from Red Chapter and will feature them in the fall.

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Braving long lines for a purchase is always a reason to celebrate. 

Always a Monster Party

No Comic Con is complete without Monster Party. It was great visiting with my friends Matt Weinhold, Larry Strothe, James Gonis, and Shawn Sheridan. I had a blast joining them for their SDCC recording to talk about our Comic Con adventures.

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Yes, James did cosplay as Jor-El from the 1978 Superman movie.

Make It So 

San Diego Comic Con 2016 was a career milestone. These were the most high profile panels I have ever prepared. I thank all of the attorneys who joined us for the adventure. I look forward to 2017.

SDCC Star Trek and Supergirl CA MCLE

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Thank you all who attended our San Diego Comic Con panels: Star Trek: Where Lawyers Boldly Go and Jimmy Olsen Asks the Tough Questions on Kryptonian Justice. MCLE credit is available for California attorneys. A huge thank you to McManis Faulkner for providing credit for our two panels.

Please complete the respective sign-in forms below. Attorneys must use the correct code words shared at the end of each panel for attendance.

Star Trek: Where Lawyers Boldly Go

Attendance Verification 

Downloads:

MCLE Certificate of Attendance 

MCLE Evaluation 

Jimmy Olsen Asks the Tough Questions on Kryptonian Justice

Attendance Verification 

Downloads 

MCLE Certificate of Attendance 

MCLE Verification 

I Ain’t Afraid of No Reboot!

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I took my kids and my friend’s son to the new Ghostbusters yesterday. They all knew and loved the original Ghostbusters and were really looking forward to the new one. And not one of them (not my 12-year-old son, nor my-9 year-old daughter, nor the 11-year-old friend) expressed any concern or questions about why this Ghostbusters team was all women. The just wanted to see some more ghostbustin’.

Like them, I also wanted to see some more ghostbusters, and I’m big fans of any McCarthy/Feig collaboration. I also like Kristin Wiig and Leslie Jones (especially when she’s flirting with Colin Jost!). And I was beyond excited to see Kate McKinnon on the big screen. I’ve always appreciated her SNL work but I fell completely in love with her during her Alien Abduction skit (one of the top ten SNL skits of all time).

And I’m happy to report that all of us enjoyed the movie. The jokes were funny, the plot was believable enough to get invested in, and the action scenes were awesome. We all agreed that the best fight scene involved Holtzmann and her sidearms taking on a gaggle of ghosts. There were jokes I found funny that went over the kids’ heads (like most of the opening tour of the mansion) but enough broad comedy to keep them entertained, from shooting a ghost where it hurts to everything Kevin did (Chris Hemsworth should only do Thor and comedy movies). My only beef is that Melissa McCarthy, a comic genius, played the straight guy for most of the film.

++Slight spoiler alert++

As for legal issues, the first question that jumps out in any Ghostbusters movie is whether these people are vigilantes. A vigilante is “a member of a self-appointed group of citizens who undertake law enforcement in their community without legal authority, typically because the legal agencies are thought to be inadequate.” That’s certainly true here, when the Ghostbusters were specifically told to stand down because Homeland Security was handling the ghost problem. This order was ignored, of course, because they knew Homeland Security couldn’t handle the problem. (I just wish they’d given Matt Walsh, who is so brilliant on Veep, a bit more to do with his DHS role.)

Usually, there isn’t a direct statute or regulation that forbids vigilantism. Instead, it’s the actions taken by vigilantes – arresting people, harming people, etc. – that are illegal. Laws against false imprisonment, kidnapping, and assault and battery address the actions taken by vigilantes. But those laws are addressed to people: you cannot falsely imprison people, assault people, etc. See, e.g., NY Penal Code, Art. 135 (unlawful restriction of a person). And ghosts aren’t people (any longer). So the Ghostbusters are probably safe on that front.

They could get in trouble for impersonating a law enforcement official, which is against the law everywhere. See, e.g., NY Penal Code, Art. 190.25 (3)(a). But their uniforms looked more like those of garbage collectors and, as was noted in the movie, their car siren had a distinctly “un-American” sound. Lastly, the Ghostbusters, like all other heroes of late, have to face the question of whether they should be responsible for the damage they cause while fighting ghosts. As Josh already analyzed so aptly for Supergirl, the answer is: it depends. But when they damaged Bennie’s motorbike because they were testing out Holtzmann’s awesome new toys (a very funny scene), that’s on them!

One final, non-legal note: I totally prefer the way Ghostbusters handled the end of the movie, after the official “end,” to the way Marvel makes us sit through very long credits to get one more teaser scene. I could have watched Kevin dance all afternoon!

Trainer Tips: Pokémon Go and the Law

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Do you want to be the very best, like no one ever was?  If you’re one of Pokémon Go’s 21 million daily active users, chances are you do.  For those unaware, Pokémon Go is an augmented reality app which uses a smartphone’s GPS and camera in order to see, catch, train, and battle Pokémon in the world around us.

Effectively, the app is the closest representation to what it would be like to actually have Pokémon inhabit our world without the sporadic fires, hurricanes, and floods caused by the Pokémon themselves.

But while Pokémon trainers are wading in the tall grass in their attempt to catch ‘em all, simple missteps may actually bring those trainers into contact with Officer Jenny rather than the elusive Ditto they were searching for.

In the week since the app’s release, questions have been raised about user conduct as people have utilized unlawful, and dangerous, methods in their search to catch ‘em all.

Here are some helpful legal tips for any Pokémon trainer:

Pokéstops and Gyms are public places for a reason

Though your legs may be sore from the many kilometers you’ve walked to hatch your eggs, avoid entering private property as a means of getting close enough to utilize a Pokéstop or Gym.  Otherwise, you may be arrested for trespassing.

In New York, a person is guilty of trespass when they knowingly enter or remain unlawfully in or upon premises.  There are several aggravating factors which can escalate the severity, and criminality, of the trespass, such as if the premises is fenced or enclosed to exclude intruders, the type of premises it is (i.e. a school, residence), and whether the trespasser was in possession of a firearm or explosive.

Pokéstops and Gyms were made public places so that all trainers could enter their areas legally.  However, the maps used by Niantec and Nintendo in creating Pokémon Go are slightly outdated, and there have been reports of Pokéstops and Gyms being placed on private property.  Unfortunately, entering private property to access said Pokéstop or Gym would be considered trespassing, regardless of how long the player remained on the property.  Additionally, there have been reports of Pokéstops being located at military bases, and even a Gym in the Korean Demilitarized Zone (which has since mysteriously disappeared).  Needless to say entering into any area occupied or operated by any military entity without the proper clearance is likely unlawful, and perhaps dangerous.  In essence, don’t go looking for Lt. Surge.

Stay out of other people’s tall grass

It may be tempting to enter property that does not belong to you in search of a Pokémon you’ve been tracking.  However, your pursuit of that Pokémon does not allow you to enter onto that property lawfully.  Some States allow for the pursuit of wild game onto another’s property in order to hunt said game.  The underlying concept as to what is considered to be “wild game” is known as Ferae Naturae, which are animals that are wild by nature and by which possession is a means of acquiring title to.  In those States, while in pursuit of wild game and entering onto another’s property, trespass would not be warranted.  This concept also allows whoever trapped or killed the animal to obtain rightful possession of the animal, regardless of whose property it was killed or trapped on.  However, as Pokémon are sadly not real, it cannot be said that Pokémon are wild by nature.  The limitation of Pokémon to being trapped inside our phones and ultimately being a byproduct of code immediately removes any consideration that they would be considered wild game.  Therefore, entering onto another’s property in pursuit would still be trespassing.

Trainers don’t travel by car

One of the reasons Ash never drove a car during his adventures (aside from him being a child) is that it is much easier to stop for Pokémon when you are walking or riding a bicycle.  Similarly, you should not utilize the app while driving.  Aside from the incredible danger that such use creates, the use of a cell phone while driving is generally unlawful.

Pursuant to section 1225-d of the New York Vehicle and Traffic Law, “no person shall operate a motor vehicle while using any portable electronic device while such vehicle is in motion.”  The statute further states that a cell phone is considered an “electronic device” and that “using” includes playing games on said device.

Based on a plain reading of the statute, playing Pokémon Go while driving is unlawful.  Though the potential enforcement of these laws would likely result in fines, playing Pokémon Go while driving is a serious safety concern.  In fact, several car accidents have been reported as a result of users playing Pokémon Go while driving.  Trainers should take the safe and legal approach of walking while playing.

Conclusion

Pokémon trainers should always engage in lawful conduct in their pursuit of catching ‘em all.  As tempting as it may be to track Pokémon to another’s property or to drive instead of walk to hatch eggs, such conduct is unlawful and importantly, unsafe.  Stay safe fellow trainers, and as always, be on the lookout for Team Rocket.

 

Civil War 2 Murders Federal Jurisdiction

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If you have not read Civil War 2 issue 3, stop reading now. There are major spoilers based on the trial depicted in the story. The comic is excellent with real loss. More importantly, Brian Michael Bendis is telling a story that highlights the danger of playing God with the future. No question about it, this time I am Team Iron Man.

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The story opens with Matt Murdock prosecuting the murder trial of Clint Barton (Hawkeye) in Federal Court in Manhattan for the murder of Bruce Banner in Alpine, Utah. The number of problems with this trial will make any lawyer Hulk out.

The Wrong Lawyer Prosecuting the Case

Matt Murdock is an Assistant District Attorney for New York City, NOT a US Attorney. It makes zero sense for Murdock to be prosecuting a Federal murder trial. Assistant District Attorneys do not bring cases in Federal Court. That is the job of US Attorneys, who prosecute Federal crimes on behalf of the United States.

First question, was there a Federal crime violated?

The Federal crime of murder is defined under 18 USCS § 1111(a):

Murder is the unlawful killing of a human being with malice aforethought. Every murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing; or committed in the perpetration of, or attempt to perpetrate, any arson, escape, murder, kidnaping, treason, espionage, sabotage, aggravated sexual abuse or sexual abuse, child abuse, burglary, or robbery; or perpetrated as part of a pattern or practice of assault or torture against a child or children; or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed, is murder in the first degree.

Any other murder is murder in the second degree.

Assuming Federal Jurisdiction is proper because of a Federal investigation, Hawkeye clearly could be charged under the Federal statute for first-degree murder, because 1) he killed Banner with malice aforethought; and 2) was lying in wait in order to take the kill shot.

Problem: the murder happened in Utah, NOT New York state.

Barton could be prosecuted under the laws of Utah for the intentional killing of another human being (See, Title 76, Chapter 5, Section 203 (76-5-203) of the Utah State Legislature).

The rare times New York Assistant District Attorneys are on a Federal trial is when they are on a team with Federal Prosecutors. This happens in situations when an investigation begins in New York state court and then is turned over to Federal Prosecutors (perhaps in order to seek the death penalty). As Bruce Banner was killed in Utah, New York state would not have an investigation into an out-of-state crime.

Is New York the Right Trial Venue?

The murder of Bruce Banner took place in Alpine, Utah. Clint Barton was immediately arrested after the murder in Utah. Based on those facts, the trial of Barton should have been held at the United States District Court, District of Utah, in Salt Lake City. This is also presuming that Federal Jurisdiction is proper, which arguably is correct. SHIELD Director Maria Hill did declare the murder investigation a Federal crime scene.

The State of Utah could also prosecute Clint Barton, as the murder was committed in Alpine, Utah. This would be proper, as the State of Utah and the United States are separate sovereigns, thus it is not an issue of double jeopardy. As Manhattan is approximately 2,203.8 miles from Alpine according to Google Maps, it is a stretch for the case to be brought in New York City.

Crimes are usually prosecuted in the county or state where the crime occurred. There are times when Federal Courts might have exclusive jurisdiction over specific subject matter. Perhaps all cases with SHIELD are tried in Federal District Court in New York. However, that seems like a very obtuse practice, as Federal law enforcement agencies conduct activities all over the United States. There is not one Court for the FBI in Washington, DC, so it would be odd for one Federal Court in New York to hear all SHIELD cases.

Civil War 2 is a very thought provoking comic. The story of why Hawkeye killed Bruce Banner is well done. However, as for what was the right court for the trial of Clint Barton, the story missed the target.

Thoughts on Balance of Terror and Darmok

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July 12, 2016 is the four-year anniversary of Jessica and I starting The Legal Geeks. My first post analyzing geek issues in the law was the Star Trek episode Court Martial.  I felt it was only fitting to celebrate our anniversary with a discussion two of my favorite Star Trek episodes: Darmok (TNG) and Balance of Terror (TOS).

A big thank you to everyone who has enjoyed our blog since its maiden voyage.

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