Defending Luke Cage for Iron Fist’s Death

Marvel’s Luke Cage on Netflix looks amazing. The current Power Man and Iron Fist comic is a lot of fun. Let’s get ready for the premier of Luke Cage, by looking at the final issue of the original Power Man and Iron Fist comic, where Iron Fist was killed and Luke Cage was going to be prosecuted for murder.

Luke and Danny Rand were partners with their business “Heroes for Hire.” Danny tried saving the life of a child who could turn himself into “Captain Hero,” a super-hero adult with extreme strength. Danny was beaten to death by Captain Hero in one of the most tragic scenes in comics. Luke found his dead friend and we are left with the man with unbreakable skin slumped on the floor in grief. (See, Power Man and Iron Fist, Vol 1, issue 125, with excellent summaries on Comic Book Legacy and SuperMegaMonkey’s Marvel Comics Chronology).

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The police detain Luke and the District Attorney lays into Power Man with the following allegations that would be an opening statement in court:

Iron Fist was killed by someone with super strength;

Luke and Danny had a very loud and public argument;

Danny named Luke as his sole beneficiary of his fortune;

“Heroes for Hire” was doing poorly;

Luke was an Ex-Con with a reputation for being a “hot head”; and

Bobby, the child, had disappeared;

The DA openly threatening Luke Cage with prosecution should make any lawyer Hulk-out. Luke clearly should have been apprised of his right to counsel under Miranda, because any defense attorney would tell the DA to charge Luke or let him go. An attorney would use language stronger than “Sweet Christmas.”

The first fact against Luke is that someone with super-human strength killed Danny Rand. There are many characters in Marvel Comics with enhanced strength, so that in and by itself is not enough to convict Luke Cage. There would still be substantial reasonable doubt on who killed Iron Fist.

Luke and Danny’s public argument would be an out-of-court statement offered for the truth of the matter asserted, thus hearsay. The District Attorney would likely focus on Luke yelling at Danny, “That’s it, man! I’ve had it! I’m sick of this junk, Fist! I’m out! It’s over, man – Heroes for Hire is finished!” Id.

As Luke would be the defendant, there is a hearsay exception for statements by a party. Staron v. State of N.Y., 993 N.Y.S.2d 646, 646 (Ct. Cl. 2014). However, there would be other challenges to exclude any testimony about the argument, namely that the prejudicial effect of the evidence outweighs its probative value. The state could argue that the probable value outweighs any prejudicial effect, because Luke’s statement would show intent to harm Danny. However, the statement itself merely shows a heated business argument, not any threats. Moreover, if the statement was admitted, multiple Avengers and the Fantastic Four could be called in as witnesses to testify as to Luke and Danny hugging after they believed the child to be saved.

Pro-Tip to Fictional Comic Book Attorneys: If the Defense calls Captain America to testify about loyalty, saving a child, and two heroes hugging, do not cross-examine Captain America. Your case is over.

The District Attorney was wrong to claim evidence of Luke’s past [false] conviction would come into court in the murder trial of Danny Rand. New York law states that, “Evidence of prior crimes or bad acts is not admissible to show a defendant’s predisposition to criminal conduct.” People v. McPhillips, 21 N.Y.S.3d 134, 136 (App. Div.), citing People v Molineux, 168 NY 264, 291-293, [1901]; People v Norman, 837 NYS2d 694 [2007]).

There is no way Luke’s past [false] conviction would be relevant to Danny’s death. Moreover, the probative value of the past convictions would not outweigh the potential prejudice. The DA was effectively trying to convict Luke because he was convicted before. That is both “bad character evidence” and “prior bad acts,” thus would not be admissible.

The District Attorney likely would have enough evidence to charge Luke Cage. However, convicting Luke would be an uphill battle. A good defense attorney could knock down each of the State’s “facts” forming the charges around Luke Cage.

Theft of Surplus Y Wing Bombers

The Star Wars Rebels season three premier episode, “Steps Into Shadow,” told a thrilling adventure about government surplus disposal. Yes, Kanan also met the Bendu, voiced by the legendary Tom Baker. The 4th Doctor now joins David Tennant as the second Doctor Who alumnus to appear on a Star Wars animated series (Tennant played the droid Huyang on the Clone Wars).

The story focused on Ezra leading a team to investigate Y Wing bombers from the Clone Wars being scrapped by the Empire. The mission quickly turned from one of reconnaissance to recovery, as the Y Wings were being destroyed in a massive shipyard.

By way of comparison, but in no way comparing the United States to the Galactic Empire, government surplus disposition is handled by the General Services Administration (GSA). 40 U.S.C. § 542. The Empire had a form of either allowing allies to purchase new or surplus Tie Fighters, as evidenced from the Mining Guild using yellow modified Tie Fighters. If the Empire had a GSA, the system for purchasing surplus Tie Fighters could have included simply making a contract for the ships. The US GSA can only authorize a contract for disposal of property after public advertising for bids on the surplus property. 40 U.S.C. § 545(a)(1). It is unlikely the Empire required public bidding for the Mining Guild and probably sold the Tie Fighters directly.

The Y Wings would have been government surplus of the Republic. The Empire as the successor-in-interest of the Republic would have been within their rights to control how the disposition of the surplus military bombers. Given the nature of the Empire, destroying old bombers so they would not fall into the hands of the Rebels made sense.

In the United States, it is a crime to steal government property. 18 U.S.C. § 641. The punishment for theft of government property is not more than ten years in prison. Id. Stealing a dozen Y Wings by an armed insurrection would warrant criminal prosecution, if the Empire were a legitimate government. As the Empire appears to prosecute all crimes as treason, punishable by death or being sent to the Spice Mines of Kessel, the Empire is clearly as fascist regime.

The Rebels have valid reasons to fight the Empire. Emperor Palpatine came to power through fraud with a faux war designed to erode civil rights in order to create a military state. Case in point was the revelation that Grand Admiral Thrawn was promoted after the Battle of Batonn, where insurrection was crushed at the expense of more civilian causalities then Rebel. A government that rewards war crimes is one that invites rebellion. While the theft of government surplus is a crime, the civil war to restore liberty is justified on Star Wars Rebels. Ezra just needs to avoid turning into Snoke.

The Validity of Bruce Banner’s Last Will and Testament

The Marvel one-shot story of The Fallen is a Civil War II tie-in that featured the execution of Bruce Banner’s “living will.” The question presented is simple: was Banner’s will valid?

Matt Murdock was the executor of Banner’s estate and handled administering the distribution of property to Bruce’s friends and family. Bruce Banner appeared by recorded hologram to state his property distribution. Highlights of the will included:

Equal shares of Banner’s liquidated cash estate split 7 ways ($1,324 per person)

Each recipient was given a 1/7 share of the Benefit Corporation to administer Banner’s patents – ($234,484 per person, which would have tax liabilities).

Rick Jones was given Jimi Hendrix’s guitar

Everyone got an egg timer for anger management

It is also worth noting that Banner’s Benefit Corporation had anonymously paid out $230 million to the Hulk’s victims.

There is confusion over the use of the term “living will” to describe Banner’s will. State law generally defines a “living will” as regarding “life-sustaining treatment,” which is focused on patient treatment, “Do Not Resuscitate” orders, and other medical care to prolong the process of dying. See, Ohio Rev. Code Ann. 2133.01.

It is very likely Bruce Banner did have a living will. However, it is also likely he had a fully executed written will as well to manage his estate. As Bruce was buried in Ohio and his will read in that state, we will apply Ohio law on will construction:

Except oral wills, every will shall be in writing, but may be handwritten or typewritten. The will shall be signed at the end by the testator or by some other person in the testator’s conscious presence and at the testator’s express direction. The will shall be attested and subscribed in the conscious presence of the testator, by two or more competent witnesses, who saw the testator subscribe, or heard the testator acknowledge the testator’s signature.

For purposes of this section, “conscious presence” means within the range of any of the testator’s senses, excluding the sense of sight or sound that is sensed by telephonic, electronic, or other distant communication.

Ohio Rev. Code Ann. 2107.03.

It is possible that Banner’s will was prepared in a different state, such as New Mexico or Utah. Ohio would recognize an out-of-state will as valid, if the will was valid in the sister state. See generally, Bailey v. Bailey (1837) 8 Ohio 239, 241.

The reader does not actually see Bruce’s written will, so it is unknown if it is properly signed and had two witnesses. However, that would not be exciting for many comic fans. The holographic Bruce Banner is way cooler to explain a legal document.

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For the record, Bruce’s holographic will would not be a valid holographic will just because Banner appeared as a recorded hologram. “Holographic wills” are a form of wills going back hundreds of years that are entirely handwritten and signed by the testator. Inheritance and Inconsistency, 57 Ohio St. L.J. 1057, 1071. These wills do not follow statutory will construction. Courts review the plain language of these instruments, because “the words employed should be given the meaning which would be imputed to them in common parlance.” Anderson v. Gibson (1927) 116 Ohio St. 684, 688.

Bruce Banner’s hologram listed the transfer of personal property and corporate shares with a value over $1.6 million and patents worth possibly millions of dollars. A written will would be necessary to properly execute Banner’s Estate. Given the fact Matt Murdock was the executor, that would not have happened without a will naming Murdock the executor or court appointment. As such, given the detailed intent by Banner to distribute his property, there had to be a written will. We can hope it was properly witnessed to be effective.

Join us at Long Beach Comic Con for Daredevil and Jessica Jones

Join fellow McGeorge alumni Megan Hitchcock and I for our first appearance at Long Beach Comic Con. We are excited to be presenting on the legal issues in Marvel’s Daredevil and Jessica Jones, Sunday, September 18, at 330pm, for “The Lawyers of Hell’s Kitchen.”

We look forward to seeing you at Long Beach Comic Con!

Program Information:

Marvel’s Daredevil and Jessica Jones both focus on lawyers and the practice of law, from Matt Murdock’s creative pro bono community service fighting crime to Jessica Jones serving a summons. Join us to determine if Karen Page properly acted in self-defense when she shot Wesley; whether Matt Murdock or Jeri Hogath is most likely to be disbarred; what would be the best way to defend the Punisher; and how the insanity defense applies to those under mind control. Join us when court is in session.

Date: Sunday, September 18, 2016

Time: 3:30-4:30 PM

Location: Danger Room, S1

Star Trek IV – The Voyage Home…To My Childhood

Star Trek IV is the often maligned Trek movie (I prefer to malign The Wrath of Khan) in which the crew of the Enterprise has to travel back to 1986 to capture a pair of humpback whales to prevent the destruction of Earth in the future. Directed by Spock himself, it gives the crew a chance to experience the archaic world of the 1980s in which it was filmed.

My dad was a long-time Star Trek fan and I’d grown up watching reruns of the original series but it had never grabbed my attention…until Star Trek IV. That image of Spock swimming with the whales became indelibly stuck in my head and I was amused by the crew’s struggles with the world I knew. And those same themes still work with kids – I showed my kids Star Trek IV in the run up to this year’s Comic Con (so they knew what I was going to talk about there) and they loved it too. Of course, the part that amused them the most was just how archaic 1986 looked to them (and to me). We all agreed that 1986 really is a long time ago and none of us know how I survived those times!

The humpback whales that are the focus of the movie, on the other hand, have thrived. Unlike the movie, in which the whales have become extinct in the future, humpback whale populations have improved greatly over the past several decades (three of which have passed since this movie came out, which makes me feel very old!). But no matter how good the crew’s intentions were in capturing two recently released whales and transporting them to the future, they still broke US law to do so.

The Marine Mammal Protection Act of 1972 very clearly prohibits the capture of any whale (or dolphin, manatee, polar bear, etc.) from U.S. waters. The Endangered Species Act also offers protection to some humpback whales, although nine of the fourteen species of humpback whales were just removed from the endangered species list within the last week. If the whales in the movie had made it to international water before they were beamed up to the Bird of Prey, the laws get a bit murkier. While there are attempts to enforce international protections for whales, not all countries comply with those protection.

Presumably, with the reintroduction of humpback whales in the future, the Federation will ensure that they are protected so that their relatives, ancestors, friends (it was never quite clear who sent the Object) don’t come looking for them again. In the meantime, I have to figure out what Trek movie I should introduce my kids to next!

Orders are Orders… Unless you’re Captain Kirk

Anyone who’s ever watched any of the various incarnations of Star Trek knows that sometimes things get a little dicey out in space and you can’t always rely on Starfleet Command to give you the best orders. No one in the history of ships named Enterprise has been quicker to disregard Starfleet’s orders than Captain James T. Kirk. He’s even been demoted from a position as Admiral for disobeying Starfleet (Star Trek IV: The Voyage Home). There are many examples of Kirk being a bit of a loose cannon when it comes to the orders of his superiors, and despite the fact that it usually works out for the best (like saving Earth from an alien probe that will only talk to whales) is Kirk always doing the right thing?

Let’s take a look at another example that’s a little less charged than the fate of the world. In The Original Series episode “The Amok Time” (season 2 episode 1). Kirk is ordered to attend an inauguration ceremony on Altair VI while at the same time Spock begins to undergo the Pon Farr (Vulcan time of mating) and must get to Vulcan or he will die. Kirk requests permission to divert to Vulcan so that he can save Spock but Starfleet denies his request and orders him with all speed to Altair VI. Surprising no one, Kirk diverts to Vulcan to save Spock (then has to fight him to the death; you just have to watch the episode).

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So what happens when Kirk needs to report back to Starfleet? Well, let’s assume that Starfleet has something akin to our Code of Military Justice Article 92: Failure to Obey Order or Regulation which subjects US Military members who disobey a lawful order to dishonorable discharge, fines, and up to 2 years in jail. Kirk was clearly given an order from Starfleet and we have absolutely no indication that the order was unlawful. We can easily assume that Kirk is bound to follow the orders of his superiors, so why then does he get to stay as Captain for another two seasons?

Kirk could rely on what US law refers to as the choice of evils doctrine. This is exactly what it sounds like, in a situation where you are forced to choose between two bad outcomes you aren’t criminally responsible for choosing the lesser of those two evils. Starfleet Regulation 3 Paragraph 12 seems to mirror our choice of evils in some respects, authorizing a captain to take any justifiable action to preserve the lives of their crew when threatened with imminent destruction (Voyager season 5 episode 26 “Equinox”). In Amok Time, Kirk tells Bones that he is familiar with the Altair VI situation where the Enterprise would be one of three ships showing Starfleet’s support and is not crucial to the event so Kirk must balance that with saving the life of Spock who Kirk says is considered by some to be the best first officer in the fleet. Kirk is forced to balance those harms and chooses to save Spock. A Starfleet court-marshal would have a difficult time saying that Kirk without a doubt made the wrong choice.

What is the Duty to Warn about the Salt Monster on Planet M113?

The world began exploring the Final Frontier of Star Trek on September 8, 1966. To honor this anniversary, let’s explore the legal issues in The Man Trap.

Star Trek began with the age-old problem many of us have faced: an old flame turns out to be an alien sucking the salt out of people to survive.

Captain Kirk, Doctor McCoy, and Crewman Darnell beam down to M113 to on the only people on the desolate planet: Dr. Robert Crater and his wife Nancy.

Except Nancy was not actually Nancy. A shape-shifting creature that fed on salt had killed the real Nancy. Disclosing that information could have saved multiple lives. Did Dr. Crater have a duty to warn Captain Kirk about the “Salt Monster” on M113?

Dr. Crater told Kirk to leave them salt and get off his planet. However, no warning was given about the shape-shifting creature. The creature killed Crewman Darnell (after appearing to him as a blonde woman who arguably made a gesture follow him). The creature ultimately killed three more crew members of the USS Enterprise. Kirk and Spock had an armed standoff with Dr. Crater, where he stated “I will kill to be alone.” Dr. Crater did not disclose the existence of the Salt Creature until Kirk and Spock stunned and captured him.

Dr. Crater referred to M113 as “his” planet. The doctor could be liable for the deaths of the Enterprise crew on a theory of premises liability. One Court explained the rule as follows:

“The true ground of liability of the owner or occupant of property to an invitee who is injured thereon is the superior knowledge of the proprietor of the existence of a condition that may subject the invitee to an unreasonable risk of harm.”

Sutton v. Sutton (1978) 145 Ga.App. 22, 25-26, citing Gibson v. Consolidated Credit Corp., 110 Ga. App. 170 (2a); Holtzclaw v. Lindsay, 122 Ga. App. 703.

In the Sutton case, a property owner had superior knowledge of a dangerous bull that had charged his younger son. The property owner failed in his duty to warn his other son of the danger of the bull when he asked the son to assist in the capture of the animal. Id.

The same can be said for Dr. Crater. While the crew of the Enterprise was there to perform medical exams on Dr. and Mrs. Crater, Dr. Crater knew the Salt Monster had killed his wife Nancy. Crater was aware of the danger to human life and instead covered up the threat.

The Duty to Warn applies to “known dangers” that are “not apparent or obvious.” Isbell v. Carnival Corp. (S.D.Fla. 2006) 462 F.Supp.2d 1232, 1238. The Salt Monster’s danger is not obvious because it is a shape-shifter. Whether it actually transforms into a person or merely causes others to see an image within their minds, no person could realize they were being stalked as prey until it was too late.

Dr. Crater would have had a duty to warn the crew of the Enterprise of the Salt Monster, because of the creature’s predatory nature for salt and shape-shifting powers. If Dr. Crater had told Captain Kirk what the creature was, salt could have been provided, with the creature treated as an endangered species. Unfortunately, the create was on a killing spree and attacking Captain Kirk, forcing Dr. McCoy to kill the creature.

Now, Spock recommending truth serum be used on Dr. Crater to force him to disclose information on the creature would be a huge civil rights violation.

Supply Pod Time Travel