Scandal teaches me about American history

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March 8, 2014

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.

A Tribute to Harold Ramis

By

Josh Gilliland

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March 4, 2014

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3D Printing on Almost Human

By

Josh Gilliland

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March 4, 2014

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The Almost Human season finale included 3D printing as a key element of the story. The episode “Perception” also included a 3D printer as a central issue.

3D Printers were the table decorations at The Geekie Awards.

We actually are seeing 3D printer cases today. 3D printing is the “additive manufacturing process of making a three-dimensional object of virtually any shape from a digital model.”
Ronald Barranco & Print3d Corp. v. 3d Sys. Corp., 2014 U.S. Dist. LEXIS 25935 (D. Haw. 2014). See also Ritani, LLC v. Aghjayan, 2013 U.S. Dist. LEXIS 130600 (S.D.N.Y. Aug. 31, 2013) and DSM Desotech, Inc. v. 3D Sys. Corp., 2013 U.S. Dist. LEXIS 13017, 6-7 (N.D. Ill. Jan. 31, 2013).

The villain in the season finale was kidnapping people and leaving a replica of their body that was created by a 3D printer. As the 3D printer could not print internal organs, the bodies were left full of straw. The motive for leaving this “scarecrow” was no one looks for a missing person if there is a dead body. The victims were then subjected to medical experiments involving robotic implants as human test subjects.

The bad guy committed a whole boatload of crimes. The majority of these crimes would have a significant amount of electronically stored information as evidence, from the parts created to the medical experiments. All of these data would need to be forensically collected for trial. Moreover, the evidence would be in key in freeing the wrongly convicted “patsy.” (Note, this probably would take longer than a few hours, but it is nice to imagine an innocence project working that quickly).

An interesting issue would be the dumping of straw filed dead bodies that were not actually dead bodies, because they were 3D printings of human bodies. A Court likely would find these 3D printed bodies legally would be a “dead body” because of the printing was a replica of a human body, despite having flat feet. As such, the villain could be charged with the improper disposal of human remains, even though the human remains were not actually human. A Court would likely look to the effect of the printing on someone who finds it, which meets the genetic requirements for fooling a DNA test.

I truly hope Almost Human is renewed for another season. Karl Urban and Michael Ealy had amazing chemistry together as the odd couple who become friends. The way the characters interacted was simply gold. Moreover, the world of Almost Human was a beautiful tribute to multiple science fiction stories. Additionally, this was perhaps the only science fiction show that tried to follow criminal procedure and acknowledged Constitutional rights. Job well done to the team and hope to see them in the fall.

Scandal is back…finally!

By

Jessica_alegalgeek

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March 2, 2014

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After the fall finale, I didn’t think I’d be able to make it to the end of February to see another Scandal. The holidays and Olympics helped, but I was very happy that February was finally over and we could see what was happening to Olivia and her motley crew. I’d been a bit concerned that Scandal was going to be too extreme after the finale (the bad spy mommy storyline had me thinking that the show was taking an Alias-like turn that it didn’t need) but this week it showed me that it’s focusing again on what it does best: completely dysfunctional romantic relationships.

[SPOILER ALERT – I DISCUSS THIS WEEK’S EPISODE BELOW]

Ironically, Olivia’s relationship with the president is the healthiest relationship on the show right now (even if he is a petulant rich boy used to getting his own way). Quinn is apparently unwilling to leave the dark side (I still have concerns about that plot idea), the new vice president is pining after Mellie (love that storyline!), Harrison’s nemesis showed up with a fantastic but twisted reveal, and the current vice president apparently has a co-dependent relationship with a demon. Plus Jake is going to let his heart be broken again because of his loyalty to his country and his president (and speaking of Alias connections…)

But none of these compare to the most messed up relationship at the moment: that of Cyrus and his long-suffering husband, James. And apparently James is fed up of with how Cyrus treats him. So now he’s secretly tape recording Cyrus, trying to bring him down for his role in the murder of the vice president’s husband (legal question: can you conspire with a demon?). Unfortunately, his tape recording violated D.C. law, which requires that at least one party to the conversation consents to the recording. I’m old enough that James’ conversation about the law with David Rosen immediately brought back memories of Linda Tripp and her bff, Monica Lewinsky (ahh, the good old days of the ’90s). And I’m assuming that, much like Linda, James is now going to secretly record his conversations with Cyrus, in the hopes of bringing down a presidency. Of course, as Linda Tripp discovered, tape recording laws vary from state to state, with some states, such as Maryland, requiring the consent of all parties to the recording. So James had better be careful.

James has bigger problems, however, than just breaking the law. As he himself knows, Cyrus is a monster and isn’t afraid to do some pretty awful stuff (with Olivia’s father being his only true equal in the realm of evil). But Cyrus is the first big bad that I’ve rooted for since Darth Vader. They’re both bad guys but you love to watch them, so I doubt Shondra will let too much happen to Cyrus!

Why A District Attorney Volunteers for Mock Trial

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Josh Gilliland

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February 28, 2014

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Attorneys are not know for having “free time.” Yet, nearly 100 volunteer to school the high school mock trial tournament in Santa Clara County. I sat down with a Deputy District Attorney to discuss why he volunteers to score the tournament and his awe-inspiring recruiting efforts in securing other scoring attorneys for the competition.

Anyone Else Offended by Rake?

By

Josh Gilliland

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February 27, 2014

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I initially liked Rake. Not anymore.

The Rake episode about the bigamist really offended me for its depiction of attorneys, judges and women. I have not been this offended since Girls Club. Here is why:

The Prosecuting Attorney

The only “strong” female character who was not in any form of distress was an extremely mean DA. She cut down her former husband, now a judge, in chambers in front of defense counsel. Apparently a strong woman with a successful career only knows how to spit venom and hate.

Problems with this part of the show would be 1) an attorney handling a case before an former spouse; and 2) it sent the message successful female attorneys are horrible human beings. Simply not true.

The Defendant’s Wives

The Defendant was a “good dad” who happened to have married three women. The second and third marriages would be void and illegal under Cal Fam Code § 2201. While the Defense effectively argued jury nullification to not throw the criminal-husband in jail, there is no way the subsequent marriages would be legal.

The really disturbing element was the level of forgiveness the wives showed the “husband” for his bigamy. No one gets a free pass for this strict liability crime.

Scarlet

Scarlet continued to be unhappy in her marriage and career, which included getting arrested for a DUI. Basic message: lawyers are unhappy in marriage and love.

The Secretary

We learned that Deane’s British secretary is in the United States illegally and was upset her boyfriend has gone to Scotland for two years.

The Mayor’s Wife

Deane called upon the Mayor’s wife for help getting Scarlet out of her DUI, with the blunt message the Mayor’s wife wanted an affair with Deane.

Mikki the Harassed Law Student

Mikki stopped being a $500 an hour prostitute and went to law school. While there will be a problem with her bar application at some point, she was terrorized by one of her former clients who was also a lawyer.

Mikki had to call Deane for helping getting the former client to leave her alone. Refreshingly, she stood Deane up on Valentine’s Day.

The Stalker’s Wife

Deane “defeats” the stalker by visiting his wife with a story of how the stalker helped a dying man. The wife is depicted as happy, but very clueless because she places a sex toy out as a decoration, thinking it is art.

Deane’s Conduct

Deane had redeeming actions such as trying to help Mikki and Scarlet, but also obsessive behavior towards his ex-wife, dealing with his own stalker and womanizing.

What Bothered Me

I found this episode to be highly degrading to women, lawyers and lawyers who are women. The message that successful women attorneys are horrible human beings (the DA); that a happy wife is clueless; that the Defendant’s wives would have ANY ounce of forgiveness after their marriage vows and children were betrayed for years; that the Mayor’s wife was eager to betray her marriage; and that a woman attorney is unhappy in her marriage of 15 years. The only woman who tried rising above being a victim was Mikki by the fact she stood up Deane. This simply was a horrible episode in its depiction of men, women and those of us who practice law.

Lawyers have difficult jobs and a large number of recent graduates struggling to find jobs. We have high rates of divorce, substance abuse and suicide. There are those of us who make poor life choices, as with any member of the human race.

We are also the ones who work extremely hard defending the rights of others. It would be nice to see a TV show that does not so brutally misrepresent our profession.