The Legal Geeks Jessica Mederson and Joshua Gilliland interview Gabe Diani (Josh’s brother) about The Selling, a movie about selling a haunted house.
The discussion includes stories from The Selling, a review of legal cases with ghosts (note, no part of this video should be considered legal advice on selling a haunted house), Gabe’s Kickerstarter project (along with Huck Finn, Robot Edition) and a pop quiz on lawyer movies.
My younger brother Gabriel Diani wrote and starred in a film named The Selling. The premise of the film is that an honest real estate agent has to sell a haunted house to pay for his mother’s cancer treatment.
The film has won multiple awards at film festivals, including the Friars Club Comedy Film Festival, L.A. Comedy Film Festival, Idyllwild International Festival of Cinema, and the Tall Grass Film Festival. My brother recently launched a Kickstarter project for a limited release of the film.
As a big brother, I am very proud of the way Gabe racked up Best Actor awards like they were billable hours on document review.
The legal issues in The Selling included the disclosure of the multiple ghosts in the house (plus murders and demonic possession). The story involved an open house with bleeding walls and other issues that would significantly decease property value.
Let’s review the limited “body” of case law pertaining to haunted home sales in the United States.
They’re Here
When I first saw The Selling, I was instantly haunted by memories of Property in my first year of law school. The specific apparition was the strange case of Stambovsky v. Ackley. The case might be the only time is United States legal history where a Court actually stated, “…as a matter of law, the house is haunted.” Stambovsky v. Ackley, 169 A.D.2d 254, 256 (N.Y. App. Div. 1st Dep’t 1991).
Stambovsky centered on a home buyer who brought an action for contract rescission because the seller did not disclose the house was haunted by poltergeists. Stambovsky, at *255-256. The seller’s family had “encountered” the spirits for nine years. Adding to the failed disclosure was that the fact that the haunted house had been featured in local and national publications, including a walking tour of haunted houses in the area. Id.
The Plaintiffs lost at the trial level, based on the doctrine of caveat emptor. The appellate Court rejected caveat emptor under the facts of the case, because it conjured “up visions of a psychic or medium routinely accompanying the structural engineer and Terminix man on an inspection of every home subject to a contract of sale.” Stambovsky, at *257.
The Court held the following:
In the case at bar, defendant seller deliberately fostered the public belief that her home was possessed. Having undertaken to inform the public-at-large, to whom she has no legal relationship, about the supernatural occurrences on her property, she may be said to owe no less a duty to her contract vendee. It has been remarked that the occasional modern cases which permit a seller to take unfair advantage of a buyer’s ignorance so long as he is not actively misled are “singularly unappetizing” (Prosser, Torts § 106, at 696 [4th ed 1971]). Where, as here, the seller not only takes unfair advantage of the buyer’s ignorance but has created and perpetuated a condition about which he is unlikely to even inquire, enforcement of the contract (in whole or in part) is offensive to the court’s sense of equity. Application of the remedy of rescission, within the bounds of the narrow exception to the doctrine of caveat emptor set forth herein, is entirely appropriate to relieve the unwitting purchaser from the consequences of a most unnatural bargain.
Stambovsky, at *260.
I See Dead People
The 1914 case of De Souza v. Soares from Hawaii is part of the small body of US case law involving haunted houses and property sales.
In De Souza, the Plaintiff claimed that when she sold her house to her brother-in-law, she executed the sale of her property based on the Defendant’s “misrepresentation that plaintiff’s house was haunted by ghosts and that she could not recover her health while living there.” De Souza v. Soares, 22 Haw. 17, 18-19 (Haw. 1914).
The Court sided with the Defendant in De Souza, finding that the Plaintiff was not credible, because she “was evasive and lacked in frankness.” De Souza, at *19.
De Souza is a 98-year-old case from before Hawaii was even a state. However, there was no equitable relief as in Stambovsky, because it was not a seller who failed to disclose the “existence” of ghosts haunting the property, but a seller claiming she was tricked into selling because the buyer allegedly said house was haunted. In De Souza, the Defendant was more credible on the facts and the Plaintiff failed to show any fraud.
Grab Her?! That Was Your Plan?!
There is very little “ghost law” in the United States, to the point where we cannot even say it is a body of law, but a spectre of cases. This is because of the unavailability of living witnesses, judicial resistance to seances in court and the entire question of proving beyond a preponderance of the evidence the existence an afterlife. It would also give new meaning to ghosting a hard drive.
With that said, we do have clear case law on disclosing a known defect in a house. If you have had TV coverage of ghosts reorganizing your closet or additional lifeless faces in mirrors besides your own, you may need both an old priest and a young priest at your open house.
Attorneys Jessica Mederson and Joshua Gilliland discussing the John Carter of Mars series, the film and science fiction history.
One of the most interesting comic book mini-series for a lawyer is DC’s Cry for Justice. The story was a 7-part series that touched on many legal and ethical issues for lawyers.
Let’s review the series from a lawyer’s point of view.
Cry For Justice
DC’s “Cry for Justice” was written by James Robinson and art by Mauro Cascioli. The story begins after the highly confusing “Final Crisis.” What was not difficult to understand about “Final Crisis,” was it ends with Batman and the Martin Manhunter dead [apparently in Batman’s case, who had been thrown back in time, and Martin Manhunter was brought back to life in Blackest Night] after planet Earth went through a reality-bending-cosmic-meat-grinder.
Green Lantern (Hal Jordan) does not take this well. The series opens with Green Lantern debating Superman, Wonder Woman and other members of the Justice League. Green Lantern no longer wants to wait for villains to do harm, but to track down evil before they can do harm.
Hal Jordan reasons that modern villains were no longer simply scared into the shadows because the good guys were good. Waiting for the bad guys to simply show up to cause problems had cost too many lives. It also had enslaved almost the entire human race and nearly destroyed all of reality in Final Crisis. It was time to take preventative action.
It does not take someone with a Political Science degree to see the first few pages of Cry For Justice are a debate on the Bush Doctrine.
Super Heroes & Preventive War
Most of the members of the Justice League do not agree with Green Lantern. The debate ends with Hal Jordan and Green Arrow leaving the Justice League’s space station saying, “You want a league. I want justice.”
There are other heroes who felt the same as Hal Jordan across the planet. Virtually all were inspired to find “justice” based off the deaths of others.
There are even some “enhanced interrogations” of villains by heroes to get answers.
And all roads eventually led to a villain named Prometheus stealing advanced technology.
Unfortunately for our heroes, seeking justice did not go according to plan.
A Smart & Well-Armed Bad Guy
The villain Prometheus had a suit of armor programed with how to defeat virtually all known super heroes. His cruelty knew few limits, including making a throw rug out of a dead super hero’s body. After a long con, we learn Prometheus impersonated Captain Marvel (Shazam!) and gained access to the Justice League space station with the rest of the heroes [the real Captain Marvel was found as his mortal self, tied up with his lips sewn shut with wire so he could not say Shazam. Yes, wire.].
Prometheus managed to defeat almost everyone in the Justice League, including ripping off Red Arrow’s arm (Green Arrow’s son).
During the traditional bad guy monologue outlining his plans, we learn there are devices across the planet that would encase cities in force fields and launch them across time and space. The goal was for a fate worse than death knowing that loved ones were forever missing.
Prometheus demanded to be set free in exchange for the codes to stop the devices. And just to prove he was really evil, the attack had already begun in Green Arrow’s home Star City during the fight with the heroes and his capture. However, Star City was not launched across time and space; it was destroyed with 90,000 dead, including Green Arrow’s granddaughter.
Realizing they could not stop the devices from killing more, Green Arrow convinces the rest of the Justice League to let Prometheus go free in exchange for the codes to stop the doomsday weapons. The heroes stop a massive death toll in the millions. The cost of “victory” was letting the bad guy get away.
Is It Justice?
It looks like evil won, with the bad guy safely gloating and plotting in his fortress between worlds and dimensions.
Much to Prometheus’s surprise, Green Arrow appears and puts one arrow through Prometheus’s skull.
Only one word is said by Green Arrow after killing Prometheus: Justice.
What Lawyers Think About When Reading A Cry for Justice
Cry For Justice has wonderful legal issues. It was extremely well written with excellent artwork. James Robinson was masterful at incorporating thoughtful ethical issues in a very timely story.
The first obvious ethical issue is that heroes do not normally kill bad guys. Those upholding the law do not normally execute the villains. It looks more like “revenge” less like “justice.” The entire concept of “due process” is a chalk outline on the floor when the good guys go around killing criminals.
However, there are the threats to a country that exceed any formal court proceeding. Someone who can destroy cities, leave 90,000 dead, and hide outside of reality as we know it, falls into that group without question.
Let’s take a look at history for anything close to a precedent.
Japanese Admiral Isoroku Yamamoto planned the attack on Pearl Harbor.
He was the commander-in-chief of the combined fleet of the Japanese Navy.
And after Pearl Harbor, we wanted him dead.
When the US learned of a flight Yamamoto was going to be on, the Air Force shot down Yamamoto’s plane.
The mission was code named “Operation Vengeance.”
The military planners were not shy in how they felt about Admiral Yamamoto.
It was not even a remote idea to somehow capture the Admiral to convict him in a US Court for the attack on Pearl Harbor. Such an idea was totally unrealistic. A marshal would have a difficult time serving an arrest warrant on the Admiral’s battleship, also surrounded by a well-armed navy.
Moreover, Yamamoto was a brilliant officer who was in charge of the Japanese Navy. His targeted killing historically made sense as a decapitation strike given his skill and popularity within the fleet.
We were also at war. Something that cannot be over looked or understated. Targeting leaders is what armies and navies do to each other.
The same can be said for Bin Ladin.
As for the War on Terror (or Overseas Contingency Operation) the killing of Bin Ladin and other “targeted killing” is based off the Congressional Authorization for Use of Military Force passed shortly after the September 11, 2001 attacks.
There are many pronounced differences differences between the War on Terror and World War II. When battles are fought in shadows by SEALs, special forces and Drones, the successful operations do not make the news. It will likely be years before it is publicly known the secret battles that have taken place since 2001 and two US Presidents.
However, there is a very different view to outright ordering the deaths of “war criminals” or threats against the country. These were best articulated in Justice Jackson’s opening statement at the Nuremberg Trials:
The privilege of opening the first trial in history for crimes against the peace of the world imposes a grave responsibility. The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating, that civilization cannot tolerate their being ignored, because it cannot survive their being repeated. That four great nations, flushed with victory and stung with injury stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to Reason.
////
In the prisoners’ dock sit twenty-odd broken men. Reproached by the humiliation of those they have led almost as bitterly as by the desolation of those they have attacked, their personal capacity for evil is forever past. It is hard now to perceive in these men as captives the power by which as Nazi leaders they once dominated much of the world and terrified most of it. Merely as individuals their fate is of little consequence to the world.
What makes this inquest significant is that these prisoners represent sinister influences that will lurk in the world long after their bodies have returned to dust. We will show them to be living symbols of racial hatreds, of terrorism and violence, and of the arrogance and cruelty of power. They are symbols of fierce nationalisms and of militarism, of intrigue and war- making which have embroiled Europe generation after generation, crushing its manhood, destroying its homes, and impoverishing its life. They have so identified themselves with the philosophies they conceived and with the forces they directed that any tenderness to them is a victory and an encouragement to all the evils which are attached to their names. Civilization can afford no compromise with the social forces which would gain renewed strength if we deal ambiguously or indecisively With the men in whom those forces now precariously survive.
For the complete text, please see transcript available on the University of Missouri-Kansas City, School of Law “Famous Trials” website.
While a war crimes trial lacks the impressive physical display of power of a SEAL team, the solemnness of the proceedings deters dancing in the streets like victory at a sporting event.
So, did Green Arrow make the right decision in killing Prometheus?
Was killing the villain who caused the deaths of 90,000 justified?
Would capturing Prometheus for trial have been a better example?
Is Justice Jackson’s “The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating, that civilization cannot tolerate their being ignored, because it cannot survive their being repeated,“ a goal that can be lived up to (even if only in comics) or simply lofty rhetoric in the face of Realpolitik?
Prometheus was a highly intelligent villain who defeated the Justice League in minutes. Supergirl down in one shot. Other heroes maimed. The villain’s powers favor it would be safer to kill instead of capture.
However, Green Arrow was acting solely on his own, not under orders from a President or at least the color of authority from a Congressional Resolution authorizing force (Congress would likely pass a force bill similar to combating the Barbary Pirates or War on Terror, given 90,000 people were killed. Special Forces would likely have orders to shoot to kill if they could find Prometheus).
It appears the threat of Prometheus justified killing over capture, because there are some forms of justice beyond the jurisdiction of any court, especially where the capture is simply not an option because of the level of the villain’s power. However, this was done without any legal authority on Green Arrow’s part.
Worse yet, Green Arrow did not collect or destroy Prometheus’ technology to ensure no one else would get it.
With that said, Green Arrow killed Prometheus “between worlds and dimensions.” There would be an impressive jurisdictional defense on how either Federal or State law applied outside of reality as we know it (jury nullification carried the day in comic).
And that is how a lawyer reads comic books.
Attorneys Josh Gilliland and Jessica Mederson discuss Abraham Lincoln: Vampire Hunter and the US Civil War History.
The Era of Sparkling Vampires is Over. And we owe this glorious day of jubilee to Abraham Lincoln: Vampire Hunter. Sure, the movie plays liberally with the historical record, but at the end of the day, it is worth it: There have been too many movies with teenage girls (and some women in their 40s) squealing over sparkling vampires who feed on the living.
Finally having a film depicting undead-day-walkers as evil beings, who use people for food, fought by an ax-wielding Abraham Lincoln, is the first step in the long healing process caused by years of damage from Twilight. Once again, President Lincoln has saved the United States of America.
The film Abraham Lincoln: Vampire Hunter is the [fictional] story of President Lincoln’s vampire hunting past and the secret war within the Civil War. The story begins with Abraham Lincoln as a boy, whose mother is killed by a vampire. Being a good son, he swears revenge on vampires.
A Short History of The Slave Power
Historians and antebellum statesmen called the political forces that dominated the Presidency and Congress before the Civil War, “The Slave Power.” Until the election of Abraham Lincoln, the only non-slave owning Presidents were John Adams, John Quincy Adams and Martin Van Buren. All were from the North; all lost re-election.
This “Slave Power” fought for slavery and the expansion into Western Territories as they became states. From the Compromise of 1820, to the Gag Rule, to the Fugitive Slave Act, to the election of James K. Polk and the Mexican-American War, to the Compromise of 1850, to the Dred Scott case, are all evidence of political forces driving the expansion of slavery leading up to the Civil War.
The Slave Power took the election of Abraham Lincoln as a direct threat to their existence, because the North was able to elect Lincoln entirely on their own, despite three other candidates running for President (including the sitting Vice President of the United States). Seeing they could no longer rule the Federal Government, they decided to ruin it with secession in an attempt to nullify the Presidential Election. The eleven Southern states seceded in exact inverse proportion to the number of slaves versus free whites, with South Carolina first in December 1860.
The Civil War followed more than a month after Abraham Lincoln’s Inauguration.
The Vampire Threat
In our fictional story, there was the hidden “Vampire Power” [my term] which operated in the South, using slaves as a steady supply of “food” that was free of any legal ramifications of people going missing.
While not directly stated, the unholy supply system included vampires in Border States leveraging the Fugitive Slave Act as a means to capture “runaway slaves” and send the victims to the hellish fate of being a meal for a vampire in New Orleans [at least, historically, that is the context I saw in the meeting along the river between Adam and Jack Barts]. This had the effect of “containing” the majority of vampires in The South.
Historical Comparisons
The film touched on various historical figures. Here are a few observations:
Steven Douglass, played by Alan Tudyk of Firefly fame, missed the fire of the Senator captured by historians such as Stephen Oates. Douglass was nicknamed the Little Giant. He drank. He swore. And he was supremely confident of himself. One would have to be confident to be the champion of “Popular Sovereignty” in letting territories vote if they would be free or permit slavery, something completely incompatible with the Declaration of Independence. After he lost the election of 1860, Senator Douglass was determined to win the Civil War with President Lincoln (until his death early in the Civil War).
Mary Todd Lincoln was delightfully played by Mary Elizabeth Winstead. History remembers Mary Todd being high maintenance, but God knows the stress she endured. Three of her sons died. Her husband was murdered next to her. Her eldest son tried putting her in an insane asylum. The trial ended Robert Lincoln’s political chances of becoming President, relegating him to serve as Secretary of War under President Garfield and then Arthur.
Winstead portrayed Mary Todd as confident, cute, loving to her husband and not afraid to take the kill shot.
Joshua Speed lived until 1882. Really do not need to go into more detail.
Jefferson Davis had an eye disease. One history book I read in college described it as looking dead.
The Civil War Battles & History
The Civil War parts of the film focused on September 17, 1862 with the Battle of Antietam. The film lightly addressed the importance of this battle.
Antietam was the bloodiest day in American History with over 23,000 casualties.
For Lincoln, it was enough of a victory to sign the Preliminary Emancipation Proclamation, which would free the slaves in the states in rebellion on January 1, 1863.
This was a brilliant geopolitical move, because it turned the Civil War into a war of liberation to end slavery, forcing England to NOT officially recognize the South as a separate country. If England had officially sided with the South and provided military support, Lincoln would have had a two front war, with British soldiers invading from Canada and the British Navy blockading the East Coast. Further illustrating the danger, England (specifically English companies) had provided different forms of assistance to the South, including the construction of warships CSS Alabama and CSS Shenandoah (the last Confederate warship), which were built in England and then armed at sea.
However, Great Britain did not recognize the South and officially stayed neutral throughout the Civil War.
Back to the film: By the time of Gettysburg on July 1, 1863, Confederate President Davis recruited the vampires to fight for the Confederacy. This causes significant losses on the first day of the battle.
Without giving too much away, the battle is saved by arming the Union soldiers with silver bullets, cannon balls and bayonets (it is implied that the final battle is Pickett’s charge) .
However, what the battle did not show was how weapons inflicted damage at the time. Round bullets would rip off limbs, unlike projectiles of today.
As my old Civil War History professor at UC Davis stated, “The defining feature of the later half of the 19th Century were men with empty sleeves and lifeless eyes.”
War is always Hell, but Gettysburg had to be a new level of nightmares for anyone at Little Round Top, Pickett’s Charge, or any other part of that battle.
That Government of the People, by the People, for the People, Shall not Perish from the Earth…
In closing, I enjoyed Benjamin Walker’s performance as Abraham Lincoln. He masterfully delivered the Gettysburg Address with confidence and strength. It is easy to imagine it being stated very solemnly. His tone as the resolute leader was well done.
Is Abraham Lincoln: Vampire Hunter going to win any Oscars? Extremely unlikely, other than perhaps sound or special effects. But, the production team was profoundly classy in having the premier of the movie on the USS Abraham Lincoln for our sailors serving overseas.
Speaking of sailors, I look forward to James Madison: Werewolf Hunter, the untold story of how the War of 1812 was more than just the impressment of sailors.