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The Golden Globes Were #$%@ Awesome!

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I love award shows.  Actually, I really only love the big three: the Oscars, the Golden Globes, and the Emmys.  The Oscars I watch for the drama and the dresses.  The Globes I watch for the fun.  And the Emmys I watch because I love television.  The Emmys are generally third on the list, although Ellen’s performance hosting 9/11 was a unique and significant moment on its own (and I still sing this song from Conan when he hosted the Emmys).

The Globes have always been fun, in large part thanks to the fact that they serve alcohol during the show so presenters and recipients can get a bit tipsy.  But Tina Fey and Amy Poehler have brought the show to entirely new levels.  Last year’s lines about James Cameron and Taylor Swift were fantastic, but this year’s quips about Clooney and DiCaprio were even better (plus, Tina got a dig back at Taylor!).

Meanwhile, some award winners were so shocked last night they resorted to cursing during the show.  There was obviously some sort of delay, although it wasn’t handled well and at least one “shit” made it through during the evening.  So what does this  mean for the Golden Globes and NBC?  Could they get in trouble with the FCC?

Probably not.  About a year and a half ago, the United States Supreme Court unanimously ruled in FCC v. Fox Television Stations that the FCC targeting “fleeting” expletives (in this case uttered by performers on Fox’s Billboard Music Award shows in 2002 and 2003) was unconstitutional under the Due Process Clause.  But they left open the possibility that the FCC could still regulate fleeting expletives if they could comply with due process.  In response, this past year the FCC chair proposed a change in policy, where only “egregious” indecency complaints would be pursued by the agency.

(Ironically, the last time Bono won a Golden Globe, back in 2003, he cursed and the FCC found that the expletive was indecent but didn’t fine the Globes or NBC.  Even more ironically, at the same time, Stern did receive a fine from the FCC.  This was before his move to satellite radio, of course.)

So, assuming the FCC’s new policy is enacted, NBC and the Golden Globes will probably not get fined for last night’s slips.  The FCC hasn’t commented yet on whether it will investigate but either way there will be people unhappy.  I will continue to be happy, however, so long as Amy and Tina keep on hosting award shows!

 

Playing Doctor on Agents of SHIELD

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The Agents of SHIELD episode “The Magical Place” revealed Phill Coulson’s recovery was not in Tahiti, but a SHIELD base or helicarrier. Agent Coulson was resurrected through medical procedures amounting to “super science” that “no ethical doctor” would do.

What are the legal issues with performing medical experiments on Coulson’s dead body to bring him back to life? Let’s take Lola for a spin to find out.

Lola&DeadBodyIs it Safe?

Medical experimentation in California requires “informed consent” of the test subject. Moreover, California law is specifically designed to give legal effect to the Nuremberg Code of Ethics in Medical Research and Declaration of Helsinki to prohibit unethical experiments on living human beings. Cal Health & Saf Code § 24171. Removing a person’s skull cap for experimentation would violate the provision against causing unnecessary physical and mental suffering.

InformedConsent_CoulsonProblem: Coulson was dead at the time of the experiments. The dead cannot give informed consent, short of an advanced health directive or a “Do Not Resuscitate” order that was issued while alive.

Dead Can Dance

Many states prohibit removing a corpse from a grave for medical or surgical study. See, State v. Glass, 27 Ohio App. 2d 214, 222-223 (Ohio Ct. App., Brown County 1971), discussing the Revised Statutes of 1880 as Section 7034.

SHIELD_AdvancedHeathDirectiveAs Coulson had not been buried yet, SHIELD likely would have a defense that such a statute was not violated, because there had been no “grave robbing” for science. SHIELD also may have had the legal right to control the disposal of Coulson’s body. States such as California specifically outline who has the right to control the disposition of a human body, starting with an agent with the power of attorney; followed by a competent surviving spouse; followed by surviving adult children; followed by surviving parents, followed by siblings; and finally, followed by another competent adult relative. Cal Health & Saf Code § 7100. If none of these individuals exist, then either a conservator or a public administrator is appointed with the task. Id.

Agent Coulson was unmarried, no children and no surviving parents. However, given the inherently dangerous nature of working for SHIELD, one would hope the employment agreement or an HR document would include a provision for disposing of an agent’s body in the event of their death. Alternatively, it would not be surprising if agents appointed fellow agents to serve as their “agent” with the power of attorney in the event of their death.

desecration_reanimateIf Coulson had a prior agreement with SHIELD about medical treatment and disposal of his remains, Nick Fury might have been within his legal right to order the experiments (Fury also might have technically ordered the desecration of a corpse under 10 USC § 934 if Coulson had not returned to life). Whether the doctors were within their ethical duty to perform such experiments is problematic at best. Further complicating the issue, not performing the medical experiments would have left Coulson dead. The “injury” was bringing Coulson back to life with memories of being on Tahiti. Those facts would make for a very unique wrongful life case.

 

Virtual Mobs on Almost Human

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Almost Human continues to be one of my favorite new shows. The episode Simon Says touched on issues of car jacking, duress, bank robbery of bitcoin, online dating, computer and cyber forensics, plus some interesting legal twists for anyone who thinks about eDiscovery.

AlmostHuman_BitcoinThe plot of Simon Says involved a villain who targeted those who had wronged him by placing a bomb in a collar device on them. The victims had to perform specific tasks or else the bomb would detonate.

The villain broadcast the suffering of those with the bomb collars on the “dark net.” The torture of a ticking bomb was streamed to a chat room where viewers could viciously comment on the victim’s plight.

A District Attorney would not have a shortage of video and computer evidence to convict the villain of first degree murder for first victim, a banker. Cal Pen Code § 189 states:

All murder which is perpetrated by means of a destructive device or explosive, a weapon of mass destruction, knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or which is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under Section 206, 286, 288, 288a, or 289, or any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree. All other kinds of murders are of the second degree.

Cal Pen Code § 189.

The first victim was sprayed with a chemical to be knocked out, followed by a bomb collar being placed around his neck. A bomb collar is without question a destructive device. Moreover, the villain was “lying in wait” for the victim in order to spray him with the knock-out chemical. A DA could unquestioningly prove this was a premeditated killing with a bomb.

The next two victims were not killed, thus giving two additional charges of attempted murder that could be proven beyond a reasonable doubt.

Now for the interesting question: What about the 3000+ viewers on the “dark net”?

The comments ranged from “Is this real?” to encouraging the villain to detonate the bomb.

AlmostHuman_VirtualRiotIf a DA wanted to send a powerful message that online mobs will not be tolerated, the state could charge everyone in the chat room as inciting a riot under California Penal Code § 404. The code states:

Any use of force or violence, disturbing the public peace, or any threat to use force or violence, if accompanied by immediate power of execution, by two or more persons acting together, and without authority of law, is a riot.

Cal Pen Code § 404(a).

The identities of the viewers could be determined from IP addresses. Charges could be filled on the basis that the chat room enabled several thousand people to act together to encourage the villain to unlawfully kill others with the explosive devices. The immediate execution of power to detonate the bomb was solely in the hands of the villain by remote, but so was the encouragement to kill. The chat and immediate actions of the villain should be enough to show “two or more persons acting together.” While it is untested to have a virtual riot, a DA would test the code on the simple truth that 3,000 people encouraging the murder of another human being cannot be tolerated.

Thank You for Voting “Geek” in the ABA Journal Blawg 100

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Jessica and I are deeply honored for everyone who voted for us in the “For Fun” category of the ABA Journal Blawg 100. Thank you. It is great to have won the most votes in our category in our first year on the Blawg 100.

Once again, thank you for your vote and reading our blog.

Tessa-Garfield_edited-2

2013: A Year of Bow Ties and Starships

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As the sun sets on 2013, Jessica and I reflect on the top “geek” moments of the passed year. There are bow ties, super heroes, Time Lords, Starships and of course, lawyers.

As 2014 dawns, we wish everyone very successful New Year.

Confessing at the Church of the Mainframe

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The Time of the Doctor raised a very interesting legal and religious issue: The Silence hear confessions at Mother Superious Tasha Lem’s Church of the Mainframe.

The legal issue: Can the clergy privilege work with a confessor who causes you to forget what you confessed?

Silence_Church_7834Silent Confession 

Clara was told by a Silence to “confess” onboard the Church of the Mainframe.  A confession in the religious sense is acknowledging past wrongs.  It often requires seeking forgiveness. Conversely, a confession in the legal sense is “…an acknowledgment in express words, by the accused in a criminal case, of the truth of the main fact charged or of some essential part of it.” Black’s Law Dictionary, 9th Edition, citing 3 John H. Wigmore,Evidence in Trials at Common Law § 821, at 308 (James H. Chadbourn ed., 4th rev. ed. 1970).

Confessing sins to a minister is protected under the law. For example, under California Evidence Code § 917, such clergy-penitent communications are “presumed to have been made in confidence and the opponent of the claim of privilege has the burden of proof to establish that the communication was not confidential.”

Silence_MemberofClergy_7841The Doctor referred to The Silence on the Church of the Mainframe as Confessional Priests. Despite being the most disturbing looking priests ever, the Silence would qualify as a “member of the clergy” under California Evidence code § 1030. Granted, the faith of the Church of the Mainframe was dedicated to the Doctor’s silence from speaking his name to answer the first question, the one hiding in plain sight.

A “Penitent” is a person who made penitential communication to a member of the clergy. Cal Evid Code § 1031. A “penitential communication” is a communication made in confidence, in the presence of no third person so far as the penitent is aware, to a member of the clergy who, in the course of the discipline or practice of the clergy member’s church, denomination, or organization, is authorized or accustomed to hear those communications and, under the discipline or tenets of his or her church, denomination, or organization, has a duty to keep those communications secret. Cal Evid Code § 1032.

Both the Penitent and the Member of the Clergy have a privilege to refuse to disclose penitential communications. Cal Evid Code §§ 1033 and 1034. A Penitent has the additional right to prevent another from disclosing a penitential communication. Cal Evid Code § 1033.

What Do You Have to Confess?

The Silence had only one thing to say to Clara: Confess. Human ministers generally have a less threatening confession-side manner.

Sontarian_Rutan_Silence_7465A confession to the Silence likely would be protected, if the following conditions are met: 1) The Silence are legally viewed as members of the clergy; 2) the statement is made in confidence without any third parties; 3) the statement is intended to be in confidence; 4) the Church of the Mainframe has authorized the Silence to hear communications and has imposed a duty of secrecy for such communications. Doe 2 v. Superior Court, 132 Cal. App. 4th 1504, 1518 (Cal. App. 2d Dist. 2005).

Provided all of the conditions are met, communications made to the Silence would be protected by a court. The last element of imposing a duty of secrecy is self-evidence, because the very nature of the Silence is to hide their existence from humans. If you can only remember someone while looking at them, that is the most extreme way to maintain confidential communications.

Silence Will Fall

The Silence who are Confessional Priests would be bound by law not to discuss confessions made to them. However, they have a powerful tool, because if they did disclose a penitential communication, the third party would have no memory of it. The only exception to the memory loss would be other members of The Silence.

Silence_WeepingA Penitent in the Church of the Mainframe would have no memory of their confession. This would be problematic from a religious and legal point of view. Generally speaking, asking for forgiveness requires accepting responsibility for one’s sins. If you have no memory of doing so, it is difficult to seek absolution. The only way around this would be the Silence giving a hypnotic suggestion like, “You should kill all of us on sight,” that embeds absolution within the Penitent’s subconscious (Note, the hypnotic suggestion should not be from Day of the Moon).

Religious scholars can offer greater analysis on the subject, which could be very interesting discussion in a Confirmation class.

I Will Remember Every Line

A Penitent would have a difficult time exercising their right to protect any penitential communication if they cannot even remember the communications. Worse yet, they might disclose their own communication to a third party, not knowing they even made the communication to a Confessional Priest, thus waiving their own privilege. As such, the Church of the Mainframe should reconsider the practice of the Silence hearing confessions.

Working at Lambeau Field: Is It Just Too Cold?

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KidsAndMeLambeauFieldWisconsin is a wintery wonderland.  I love that about Wisconsin.  But as much as I love winter, it can still get too cold for me sometimes.  A month ago I took my kids to the Packers-Vikings Game at Lambeau Field (fulfilling my obligations as a Wisconsin parent).  That game turned out to be the coldest November game there in over thirty years.  My kids and I were bundled up with multiple layers, heater packs, and blankets, and we still only made it through three quarters (yes, we left right before the Packers made a big comeback and fought the Vikings to a tie in overtime).

So how to the guys on the field stand it?  Some of them play in short sleeves, although many Packers will admit that they don’t like playing in the cold and they have lots of tricks to deal with Green Bay’s frigid weather.  But at least the football players get time on the sidelines, with bench and foot warmers and those huge overcoats.  What about the other guys on the field – the refs?  Just last weekend, during a snowstorm, one of the refs for the Packers game was only wearing a baseball cap and no gloves.  And the refs are out on the field for the entire playing time!

SnowyStadiumThat’s a pretty tough job in the cold, which led me to wonder…can the refs claim that working games at Lambeau Field or some of the other cold climate stadiums constitutes working under hazardous conditions?  [This same rationale applies to the players as well, of course.  But NFL football players already have other hazardous conditions that are more serious.  So dealing with the cold is probably less pressing for them.]

Under Wisconsin law, employers owe a duty to their employees to furnish and maintain a place of employment as safe as the nature of its business would reasonably permit.  See Wis. Stat. § 101.11.  OSHA states that working in extremely cold conditions can be dangerous.  The CDC lists extreme cold as a physical hazard.  And workers’ compensation insurance funds recognize that working in extremely cold conditions can be dangerous.

The issue then is whether working in the cold at Lambeau Field (or Soldier Field –  but you don’t need to be as tough there!) is reasonably safe, given the nature of the business.  Presumably (given my inability to find any cases addressing this issue), so long as the NFL and the team owners provide enough warm gear and heating equipment, it is safe enough.  Unless or until there’s a requirement that all cold weather teams play in domes (which doesn’t seem likely – and the Vikings are playing their last game at the Metrodome right now), football employees will just need to dress warmly (ref, please put on a winter hat!), stay hydrated, and brace themselves for the cold.

So, as the Packers prepare to take on the Bears for the title of the NFC North Division Champion this afternoon, I have just four words to say.  STAY WARM.  And…GO PACKERS!