Justice for the Abomination

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March 19, 2014

The fate of the Abomination was revealed in the Agents of SHIELD episode TRACKS: held in a cryo-cell in Alaska.

Putting Emil Blonsky, aka the Abomination, in suspended animation is likely the only way they could imprison someone as strong as the Hulk with a really ticked off attitude. While the Abomination could have gotten a life or death sentence for the deaths caused in the Incredible Hulk, being imprisoned in suspended animation poses interesting 8th Amendment issues. Neither alive nor dead, just stuck, frozen in a moment of time.

Is such a punishment Constitutional?

An Abomination in New York

As a preliminary matter, there would be Federal jurisdiction for the US soldiers killed during the battle of the Bronx. See, United States v. Gamez, 301 F.3d 1138, 1148 (9th Cir. Ariz. 2002), citing 18 U.S.C. § 1114, “Whoever kills or attempts to kill any officer or employee of the United States or of any agency in any branch of the United States Government . . . while such officer or employee is engaged in or on account of the performance of official duties . . . shall [in the case of murder] be punished . . . under section 1111.”

Blonsky could have been tried and convicted of all others killed and injured in New York under a separate state action. However, Rikers Island would be a big play pen for the Abomination, raising the challenge of how to incarcerate the prisoner. The Governor of New York and Mayor of New York City wisely made the economically smart decision and let the Feds handle imprisoning the Abomination.

Federal law states that murder is “the unlawful killing of a human being with malice aforethought.” 18 USCS § 1111(a). First degree murder includes the “willful, deliberate, malicious, and premeditated killing” of a person. Acts committed resulting in death that include arson, escape, murder, kidnapping, treason, and espionage are also first degree murder. Id.

The Abomination killed multiple US soldiers in battle, which involved the destruction of military vehicles, setting fires and downing a US helicopter. These acts are treasonous in nature, given the fact Blonsky was a US soldier who had taken up arms against the US government. There is no question that he could be either executed or put in prison for life. 18 USCS § 1111(b).

The statute does not say “cryo-cell.” Suspended animation could be between execution and life in imprisonment. Would this violate the 8th Amendment?

Purpose of the 8th Amendment

The Eighth Amendment to the US Constitution prohibits the cruel and unusual punishment of prisoners, which embodies “broad and idealistic concepts of dignity, civilized standards, humanity, and decency,” prohibits punishments which are incompatible with “the evolving standards of decency that mark the progress of a maturing society.” Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 828-829 (7th Cir. Wis. 2009).

Courts have stated conditions such as denuding prisoners and exposing them to bitter cold in solitary confinement cell for eleven days, depriving them of basic elements of hygiene such as soap and toilet paper, in barren filthy cells without adequate heat would constitute cruel and unusual punishment in violation of the Eighth Amendment. Wright v. McMann, 387 F.2d 519 (2d Cir. 1967).

The Eighth Amendment also protects prisoners against “deliberate indifference” to a serious medical need, but that indifference generally involves the failure to provide medical care. See Kramer v. Wilkinson, 302 Fed. Appx. 396, 400-401 (6th Cir. Ohio 2008), citing Estelle v. Gamble, 429 U.S. 97, 104, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976).

Off to Alaska

The Abomination was a US soldier whose body, and likely his mental state, was altered by medical experimentation. The first half of these procedures were in the line of duty; the second experiment was not. As such, Blonsky might have had an “insanity defense” that precluded him from being executed. Moreover, there likely is an 8th Amendment duty for SHIELD to medically treat the Abomination to turn Blonsky back into a human being.

Mental defenses aside, there is still the practical issue of where to imprison someone who is 10 feet tall, bullet proof and can knock down buildings.

Federal law gives the following punishments for first degree murder: execution or life in prison. There is no question that the attorneys for the victims and the insurance industry would have demanded a death sentence, but the prosecution had a problem: Can we actually kill the Abomination in a way that complies with the 8th Amendment?

Executing the Abomination could prove difficult. It would be very hard to give him an lethal injection. Moreover, traditional execution methods (such as electrocution) that have been found unconstitutional would likely fail to actually kill Blonsky. While states such as Utah allow prisoners to select their method of execution, such as a firing squad, shooting the Abomination with anything below a low yield tactical nuclear weapon probably would just tickle him. Andrews v. Shulsen, 802 F.2d 1256, 1275 (10th Cir. Utah 1986).

The 8th Amendment prohibits “mutilation and violence” to execute someone, so options such as launching the Abomination into the Sun would quickly violate the Constitution.

Constructing a prison to physically hold the Abomination would be both expensive and likely not possible with existing technology, especially since Reed Richards is with another movie studio. Moreover, it would effectively be solitary confinement for the protection of other prisoners, guards and tri-state area. This raises the issue that there is “a line where solitary confinement conditions become so severe that its use is converted from a viable prisoner disciplinary tool to cruel and unusual punishment.” Thomas v. Bryant, 614 F.3d 1288, at *1311 (11th Cir. Fla. 2010), citing Gates v. Collier, 501 F.2d 1291, 1304 (5th Cir. 1974).

Incarcerating Emil Blonsky in an Alaskan cryo-cell is likely the only option for imprisonment. As such, it would be Constitutional, given the lack of available options to remove his super-powers or build a traditional prison capable of holding him.

What Happens Legally When the Dead Come Back to Life?

By

Josh Gilliland

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March 16, 2014

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The ABC show Resurrection focuses on the emotional roller coaster of the dead returning to life. Highlighting the complexity of these issues, a child who was dead for over 30 years returns to life. A DNA test showed he was the biological child of his surviving parents. Do the parents have a legal obligation to provide for their once dead child?

The law is not designed for resurrection. Marriages end at death. Property is distributed. Funerals are held. Families discuss their thoughts on the afterlife. Sometimes there is litigation with family members who will never speak to each other again.

So…what happens if a dead person comes back to life?

We have a Common Law rule that a person “who has not been heard from for 7 years is presumed dead.” See In re Estate of Dawson, 346 So. 2d 386, 391 (Ala. 1977), Kyser v. McGlinn, 207 Ala. 82, 92 So. 13 (1921); Walker v. Walker, 218 Ala. 16, 117 So. 472 (1928); Eisenberg v. Stein, 222 Ala. 576, 133 So. 281 (1931);

In a New York case from 1900, a wife brought a lawsuit against an insurance carrier for payment of her husband’s $2,000 policy, nine years after he disappeared. The insurance company settled with the wife for $666.00, with the remainder to be held in trust in the event the husband was alive. Twelve days after entering the agreement, the long lost husband was found alive. Sears v. Grand Lodge A. O. U. W., 163 N.Y. 374 (N.Y. 1900).

The Court held the $666.00 had to be paid to the wife, as it was the basis of a settlement agreement that had been lawfully entered into to end the litigation. Additionally, the company planned to hold the remainder in trust in the event the husband was found alive. You cannot contract to end litigation and plan to pay out zero for a settlement. Id.

What legal lessons could we apply to Resurrection? First, marriages end at the death of one spouse (See, Cal Fam Code § 2201). As such, a dead person coming back to life would not reinstate a marriage (or invalidate a subsequent one), because the resurrected spouse had died, thus ending the marriage.

The same argument could be made for insurance policy payments. The insured met the contractual requirement of death, which obligates insurance companies to pay. The fact a person returns to the living after years of being actually dead would not invalidate performance under the policy. The condition for performance was met (death) and policies do not include provisions for the dead returning to life after decades.

Insurance company attorneys would demand a change to all future policies, requiring that in the event of an insured returning back to life, the policy distribution be repaid. Whether or not that would make insurance contracts illusory and not enforceable would have to be tested in Court. Statutes of limitations would also have to be examined.

The dead returning to life would require a fundamental change to our laws over marriages, insurance policies, property rights and inheritance. Society has not planned for resurrections happening, because the dead stay dead. We will continue to explore these issues as the series progresses.

Lorelei’s Song of the SHIELD Paramour

By

Josh Gilliland

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March 12, 2014

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For the record, it would be great for Jaimie Alexander/Lady Sif to have her own adventures on Netflix. Give her a series or mini-series.

The “Yes Men” on Agents of SHIELD effectively was the story of a bossy sorceress paramour who was defeated by a magic muzzle. Probably not the intended message.

It also sent the message if you a man facing an alien woman who can make you her slave with her voice, shoot her before she can talk. That is not the time to be the Constitutionally following gentleman for arresting someone. Shoot first. You are in immediate danger.

That aside, Lorelei went across Nevada, casting a spell on one new husband to abandon his wife at a gas station and then capturing the affections of the married leader of a biker gang in order to build an army. Many other men were forced to do Lorelei’s bidding by her bewitching voice and touch.

What causes of action could the two wives have against Lorelei? Let’s explore the 9 Realms for the legal answers in Nevada.

What’s NOT Legal in Nevada

Both wives could try to sue for alienation of affections (assuming Rosie was not killed by Rooster and merely knocked out). And they would fail.

Alienation of affection is when a third person successfully plays for or with the affections of the spouse of another. A plaintiff must prove that the “affections of the spouse were actually alienated from plaintiff by the wrongful acts or conduct of the defendant, and that defendant had knowledge of the marital relationship.’ Koenig v. Corcoran, 199 F.2d 37, 38-39 (9th Cir. Mont. 1952).

Lorelei is the poster girl for alienating the affections of husbands towards their wives with her magical powers. Moreover, she knew the men were married and purposely exerted her control over them with the intent to alienate their wives.

Unfortunately for Lorelei’s victim wives, while Nevada has many things that are legal that would be illegal in another state, the cause of action of alienation of affection is against Nevadan public policy because it had been abused. Nev. Rev. Stat. Ann. § 41.370.

Nevada would recognize a judgment from another state that allowed a claim of alienation of affection under the Full Faith and Credit Clause of the Constitution, but the story took place only in Nevada. Burdick v. Nicholson, 100 Nev. 284, 285-286 (Nev. 1984).

On the Wings of the Valkyrie

Lorelei could be defeated by the well-recognized cause of action for loss of consortium. Both Plaintiff-Wives would need to prove that Lorelei:

Injured the Victim Husbands;

The loss of the enjoyment of sexual relations with the husbands [or the ability to have children].

5-39 California Forms of Jury Instruction 3920.

The first wife will have a higher chance of recovery, because Lorelei physically hit the husband, launching him a large distance and colliding with a car. If he died, this would eliminate the ability to have children and total loss of sexual relations under the law. Alternatively, if the husband was just horribly injured (such as paralyzed), damages would include the husband’s loss of earnings, the cost for medical care and even the cost of domestic household services the injured husband would have performed.

The Biker “Rooster” was in slightly different situation, in that he was only knocked unconscious by Ward in the biker fight. However, Rooster could have a claim against Lorelei if he could establish that Rosie was killed by under duress caused by Lorelei, thus Rooster loss of consortium with Rosie (assuming Rooster killed Rosie).

A Fable of Old, Through it Streaming, Allows My Mind No Rest*

Civilly suing Lorelei would be highly problematic, because 1) her testimony could sway any male judge, attorneys, or jurors, so the entire trial would need to be heard by women; Men would have to testify remotely; 2) Lorelei likely does not have any gold she acquired in the past, making her insolvent; 3) Asgard would be the “deep pocket” to sue for Lorelei’s escape, which might not work, as the attack by the Dark Elves would be a circumstance beyond the control of Asgard. Moreover, Asgard would likely not waive diplomatic or sovereign immunity, plus service of process on Asgard would be very challenging.

*English translation of Die Lorelei

Pi Fights in Court

By

Josh Gilliland

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March 11, 2014

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March 3, 2014 and March 14. 3.14. Both are Pi Day.

How often has Pi come up in case law? The answer is equal to, but not less than, 3 times (and not 3.14). Here are the cases with math:

Pi used to determine the 200 foot zones of protection based on the radii from wellheads or wellfields:

where Q =permitted average dailyflow from the well (measured in cubic feet per T = five years (1825 days);

3.14 = mathematical constant pi;

r =radius (feet);h =distance from the top of the producing aquifer to the bottom of the hole;

n =effective porosity.

Adam Smith Enters. v. State Dep’t of Envtl. Regulation, 553 So. 2d 1260, 1263 (Fla. Dist. Ct. App. 1st Dist. 1989).

Pi was used in a zoning fight over the removal of a fence around a children’s day care:

In order to calculate the area of a circle which has a perimeter or circumference of 117 feet, one must first calculate the diameter. The diameter is calculated by dividing the circumference (117) by pi (which is approximately 3.14) which reveals a diameter of 37.26 feet. Next, the radius is calculated by taking 1/2 of the diameter (37.26) which yields a radius of 18.63 feet. The area of a circle is calculated by taking the radius squared or 347.07 multiplied by pi. The area of the circle is, therefore, 1,090 square feet.

Gronceski v. Town of Long Beach Bd. of Zoning Appeals, 721 N.E.2d 359, 365 (Ind. Ct. App. 1999).

Pi was used in finding whether a police officer was an expert witness for determining the speed of a car in an accident:

We have to find, before we can determine the speed of the vehicle, we have to determine the radius, which is an unknown fact. I will go over the entire formula. It equals speed or velocity of the vehicle, 3.9 is the mathematical constant. The most vivid example of the mathematical constant might be the factor pi, which received a designated value of 3.14, which you may remember from high school math in determining measurement with relation to circles.

Again, the square root sign, R is the radius, times of which represents the coefficent of friction, and the coefficient of friction, in very simple terms, is the slipperiness of the pavement.

State -vs- Greer, 1983 Ohio App. LEXIS 13849 (Ohio Ct. App., Cuyahoga County Aug. 4, 1983).

The number of cases using 3.14 in expert testimony likely goes on for infinity, especially in construction defect cases and zoning. These cases also highlight the danger of a juror saying, “It was my understanding there would be no math involved,” so please remember to include one math problem in your jury selection questionnaire.

The Clone Wars on Human Rights

By

Josh Gilliland

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March 10, 2014

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The Clone Wars The Lost Missions posed very interesting legal questions over Clone rights. Is a Clone a person? Is a Clone property? Can a Clone be euthanized to protect the rest of the Clone population?

What is more impressive is these issues were presented in a children’s cartoon.

Attack of the Doctors

The Clone Wars episodes “The Unknown,” “Conspiracy,” “Fugitive” and “Orders” centered on a Clone Trooper named Tup who suffered a breakdown from a defective bio-chip in his brain that caused him to kill a Jedi. The story focused on his friend Fives trying to get Tup proper medical treatment.

The issues of treatment turn on whether the Republic or Kamino owned the Clones. Moreover, doctors proposed a medical exam to kill the Clone to find out the illness caused Tup to kill a Jedi.

A doctor killing a human being “for the greater good” is the unholy marriage of eugenics and euthanasia. Normally, deciding whether the state kills someone requires a criminal trial and not a doctor’s note.

Eugenics laws in the United States were common through the first third of the 20th Century, often forcing sterilization on those with physical illnesses. Justice Holmes described the intent of the laws as follows:

It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. . . . Three generations of imbeciles are enough.

United States v. Kriesel, 720 F.3d 1137, 1160 (9th Cir. Wash. 2013), Dissent, citing Buck v. Bell, 274 U.S. 200, 207, 47 S. Ct. 584, 71 L. Ed. 1000 (1927).

Euthanasia raises many other issues, but many states have prohibited the practice (while others legalized death with dignity) on the governmental interests of “prohibiting intentional killing and preserving human life; preventing the serious public-health problem of suicide, especially among the young, the elderly, and those suffering from untreated pain or from depression or other mental disorders; protecting the medical profession’s integrity and ethics and maintaining physicians’ role as their patients’ healers; protecting the poor, the elderly, disabled persons, the terminally ill, and persons in other vulnerable groups from indifference, prejudice, and psychological and financial pressure to end their lives; and avoiding a possible slide towards voluntary and perhaps even involuntary euthanasia.” Wash. v. Glucksberg, 521 U.S. 702 (U.S. 1997).

The mixing of eugenics and euthanasia truly would create a “Doctrine of Fear,” because the state could execute anyone a doctor found to be of a public heath danger.

Revenge of the Lawyers

The issue of “Clone ownership” in determining the medical treatment of Tub had the haunting unease of Chief Justice Roger Taney’s rejection of human rights in the Dred Scott opinion. Once again, science fiction turned to a cartoon about a Clone and a Droid to define what it means to have “human rights.”

The law and science explains there are two types of cloning:

Therapeutic cloning is the use of cloning techniques to reproduce cells, tissue, and in some instances, organs for medical uses. Therapeutic cloning has possible future uses for deficiencies in bone marrow, heart muscle tissue, and neurons (for patients with Parkinson’s disease). Therapeutic cloning is to be distinguished from reproductive cloning which seeks to reproduce entire organisms. “Dolly” the famous, or infamous, sheep created by the Roslin Institute in Scotland is an example of reproductive cloning.

Advanced Cell Tech. v. Infigen, Inc., 2002 Mass. Super. LEXIS 377, 2-3 (Mass. Super. Ct. June 18, 2002).

The Star Wars Clones without question are products of reproductive cloning.

My friend Judge Matthew Sciarrino posed the following questions about the issues of ownership:

I would have loved to see the purchase agreement – did the Kominoans reserve a right to take back a damaged clone? Did they become Republic property upon delivery? Was the agreement modified by Lord Tyranus after Syfo Dyas?

The answers to all of those questions require a “Clone” to be property and lacking any human rights.

That is not the Jedi way.

I’m A Man, Not a Number

The Clone Fives highlighted his humanity by stating he was “not a number” and that “Clones do not use numbers.” Fives bluntly told one of his creators “I am a living being.”

The United States has actively tried to keep these “science fiction” issues from becoming reality. Missouri banned human cloning in its state Constitution (Cures Without Cloning v. Pund, 259 S.W.3d 76, 79 (Mo. Ct. App. 2008)) and New York banned grants being made available to fund human reproductive cloning from any source directly or indirectly (NY CLS Pub Health § 265-a) as two examples.

The Clones were created to be the soldiers of Grand Army of the Republic. On many levels, this is taking a leap beyond using drones in combat. Instead of risking the lives of citizens or having an unpopular draft to build an army, simply ordering thousands of Clones avoids having citizens fight for their country. A civilian population is less likely to oppose a war if they are not feeling its effects by actually having to fight it.

What rights would a Clone have as a living being? We often view being human as requiring being born and having parents. Clones have a donor and were grown in a laboratory. Do these facts make them less or human? Or is humanity based on 1) Intelligence; 2) self-awareness; and 3) consciousness (to borrow from Star Trek The Next Generation)?

The fact the Clones did not refer to themselves as numbers, but names they gave themselves, demonstrated all three elements. Moreover, the fact Clones had different haircuts, facial hair and interests showed further self-awareness. Additionally, demonstrating compassion for their fellow soldiers showed character traits of what makes humans, human.

If the Republic recognized that Clones had intelligence, self-awareness, consciousness, but viewed the Clones as state property, then the Republic sanctioned slavery based on whether a life was born or grown in a test tube. Alternatively, if the Republic did not recognize Clones having intelligence, self-awareness, consciousness, then the Clones were legally treated like a machine or a domestic animal.

Neither option is attractive for a Republic. It was redeeming of the Jedi Shaak Ti to stand up for Fives with the statement, “it is simply the right thing to do” over his life and reporting to the Chancellor, even if her argument was based on the Republic owning the Clones.

Scandal teaches me about American history

By

Jessica_alegalgeek

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March 8, 2014

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Who says you can’t learn anything from watching television (besides me, when I’m telling my kids to turn off the TV)? Thanks to these week’s episode of Scandal, I just learned a little bit more about American legal history.

As a lawyer, I’m sworn to uphold the Constitution of the United States of America. Today all Americans take the Constitution for granted, of course, even as we fiercely debate what it means to us. But more than 225 years ago (if my math is right), the Constitution had not yet been ratified and its eventual adoption was not a sure thing. So some of our founding fathers, including Alexander Hamilton, wrote a series of papers now known as The Federalist Papers. Almost all of these essays were published in newspapers in New York (where opponents to the Constitution had already written attacks on the proposed document) and their influence on the eventual ratification of the Constitution is apparently debated. Courts still refer to them today, however, when discussing the framers’ intent when drafting the Constitution.

So what does any of this this have to do with Scandal? Most of us remember The Federalist Papers from high school but they certainly weren’t mentioned in this week’s episode of Scandal. [SPOILER ALERT!] They weren’t, but their author was. While Hamilton, along with James Madison and John Jay, wrote The Federalist Papers, they wrote them using a pseudonym. And that pseudonym was – dum, dum, dum – Publius! James mentioned this week that the name had historical significance so I had to look him up and discovered that James is comparing his efforts to take Cyrus down to our founding fathers’ efforts to get the Constitution ratified. Hamilton, meanwhile, was comparing his efforts to that of one of the founders of the Roman Republic, Publius, who helped overthrow the last Roman king.

Hamilton and Publius were ultimately successful in their efforts. I have less faith in James’ ability to outsmart (much less overthrow) his husband.

(I’d like to thank Wikipedia for providing me with today’s educational lesson.)

What We Learned from T.A.H.I.T.I. on Agents of S.H.I.E.L.D.

By

Josh Gilliland

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March 5, 2014

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We have two very big take aways from the Agents of SHIELD episode T.A.H.I.T.I.:

1) Skye did not have an Advanced Health Directive;

2) Agents Coulson, Ward, Fitz & Garrett murdered two men without any legal justification in order to save Skye.

Skye’s Treatment

Medical experiments cannot be performed on someone without informed consent (See, Playing Doctor on Agents of SHIELD, which addressed the experiments on Coulson).

Skye was incapacitated from her soon-to-be-fatal gunshot wounds from Quin. Agent Coulson took it upon himself to ignore orders to transfer Quin and chase down the drug GH325 used to bring himself back from the dead.

These actions could make Coulson the Boss of the Year for his willingness to save a teammate, but whether he had any legal right to order such extra-ordinary medical treatment is questionable, unless Skye had given Coulson the power of attorney to make such medical decisions.

The Good Guys Committed Murder

The two men guarding T.A.H.I.T.I., GH325 and the other wonder drugs in the mad scientist treatment lab were killed without any legal justification. First off, SHIELD forced their way onto the property with force, which is a trespass with the intent to use lethal force. This would have justified the guards to protect themselves with lethal force from SHIELD.

The SHIELD Agents could argue the “necessary defense,” in that they had to break into the lab, and kill those who were defending themselves and the base, in order to save Skye, who had vital knowledge about Deathlok. This argument would fail.

The necessity defense may be asserted “only by a defendant who was confronted with . . . a crisis which did not permit a selection from among several solutions, some of which did not involve criminal acts.” United States v. Holmes, 311 Fed. Appx. 156, 164 (10th Cir. Kan. 2009). The necessity defense has a three part test:

(1) There is no legal alternative to violating the law;

(2) The harm to be prevented is imminent; and

(3) A direct, causal relationship is reasonably anticipated to exist between defendant’s action and the avoidance of harm.

Holmes, at *164 citing United States v. Benally, 233 F. App’x 864, 868 (10th Cir. 2007).

The Agents were trying to keep Skye from dying, which could be classified as either imminent or near-imminent. This would meet the second element of the rule.

The Agents might be able to argue breaking into the secret lab was done out of necessity, but that cannot be an excuse for killing the guards. Moreover, the Agents have no right to argue self-defense, because they caused the actual danger by attacking in the first place. You cannot break into property with weapons drawn and claim those on the property were the aggressors for defending themselves. Moreover, why is Skye’s life worth killing two unknown guards who were simply doing their duty?

The situation might have been different if the Agents were armed with “night-night guns,” but they were not. There is no nice way to say it: Coulson, Ward, Garrett & Fitz killed the two guards without justification.