Burying George Washington Twice on Sleepy Hollow

January 21, 2014

Finding the secret tomb of George Washington was a key story element in the Sleepy Hollow episode “The Indispensable Man.”

In the story, the First President rose from the dead four days after his death and drew a map to Purgatory. Washington’s temporally reanimated remains were then buried in New York.

Legal problem with this re-burial: it conflicts with President Washington’s Will from July 9, 1799. Washington’s Will states in relevant part:

The family Vault at Mount Vernon requiring repairs, and being improperly situated besides, I desire that a new one of Brick, and upon a larger Scale, may be built at the foot of what is commonly called the Vineyard Inclosure, on the ground which is marked out. In which my remains, with those of my deceased relatives (now in the old Vault) and such others of my family as may choose to be entombed there, may be deposited. And it is my express desire that my Corpse may be Interred in a private manner, without parade, or funeral Oration.

National Archive, Founders Online, George Washington’s Last Will and Testament, 9 July 1799 [Emphasis added].

Washington’s will was executed in Virgina, thus Virgina, law should control on his intent. However, if Washington was buried in New York, a New York court would look to its own laws on the matter of disposing of a corpse because of the public safety concerns.

New York law states that a “testator may dispose of his own body or direct the method or place of its burial, but he may not require that he be buried in an unauthorized place.” In re Estate of Walker, 64 N.Y.2d 354, 359 (N.Y. 1985), citing Public Health Law § 4200 et seq.

New York law states the following on the duty of burial:

1. Except in the cases in which a right to dissect it is expressly conferred by law, every body of a deceased person, within this state, shall be decently buried or incinerated within a reasonable time after death.

2. The provisions of this section shall not impair the right to carry the body of a deceased person through this state, or to remove from this state the body of a person who has died within it, for the purpose of burying the same elsewhere.

NY CLS Pub Health § 4200.

The secret Free Mason Tomb in the middle of the woods where George Washington was buried was likely “an authorized place” at time of burial, depending on who owned the land and zoning laws in 1799 regulating disposing of a corpse.

Washington’s decision to have his body reburied in New York state would conflict with his expressly written will from July 9, 1799. This legal conflict could have been resolved with a simple codicil to his will stating his reanimated desire to be buried in New York. Given the story’s account of coming back from the dead, leaving a coded message, drawing a map of Purgatory, and Free Mason’s building a secret tomb, writing out one sentence with new burial instructions is not out of the realm of possibility.

Whether or not Washington was of sound mind and body when he wrote a post-death codicil is currently legally untested.

Jess & Josh are in the DANGER ZONE!

Josh Gilliland

January 21, 2014

Jess and Josh both love Archer. Now, let’s talk about the employment issues at ISIS and see how many quotes two lawyers are wiling to say out loud.

Beam Me Up, Your Honor

Josh Gilliland

January 20, 2014

New York State Judge Joseph L. Latwin showed his geek cred in footnote 2 of People v Wilkins, 40 Misc. 3d 1207(A), 1207A (N.Y. City Ct. 2013). The case involved a Defendant charged with Aggravated Driving while Intoxicated and Driving while Intoxicated. Here is what the Court found:

Here, there was sufficient circumstantial evidence from which the jury may have found operation. Defendant’s vehicle was not present at about 11 a.m. but was there, when defendant was found in it around 1:00 p.m. The engine running. Defendant was slumped over the wheel of the vehicle. In keeping with the above cited cases from the Appellate Term, 9th Judicial district cited above, this is sufficient circumstantial evidence from which the jury could have inferred that the defendant operated the vehicle on August 1, 2012 between 11:00 a.m. and 12:55 p.m. Defendant offered no evidence that another drove the vehicle in Rye, that the vehicle was pushed or propelled through Rye by animal or human muscular power, was placed there by Divine intervention, was airlifted or towed there, appeared as the result of a magic trick or illusion, or was teleported down from space n2 to Cedar Street. Other than the defendant driving there, there was no explanation (rational or otherwise) or any evidence from which any other inference could be drawn of how the defendant’s vehicle got to Cedar Street in Rye – a block away and around the corner from Kelly’s Sea Level Bar.

FOOTNOTES

n2 There was no evidence that the Starship Enterprise was in the vicinity of Rye at the time – the original Star Trek having aired from 1966 to 1969. Scotty passed away in 2005.

People v Wilkins, 40 Misc. 3d 1207(A), 1207A (N.Y. City Ct. 2013).

Judge Latwin has a way of making his point. He not only flew his geek flag, but ran up a whole semaphore message referencing magic tricks or that animals pulled the car to the final location in the case. Quite the judicial Picard Maneuver.

The good judge highlighted the fact judges have hobbies, are well-read, have a sharp wit and can add pop culture to an opinion to send a message.

Live Long and Prosper, Your Honor.

Weird Science at the SHIELD Academy

Josh Gilliland

January 15, 2014

Back in my day in the 1980s, socially awkward geniuses just used science to make a woman out of a doll. Advanced weapon systems on a B1 bomber with a laser were used to pop the largest Jiffy Pop Popcorn even.

But at the SHIELD Academy, awkward cadets freeze people with a higher success rate than Dr. Horrible and create lethal super storms in Sharknado-sized acts of treason.

What obligations would the SHIELD Academy have to its students to protect them from the actions of other students who were “bad seeds”?

The answer at a high school school would be fairly easy.

In a case whether a student made a knife in metal shop (back in 1956) and another student was injured by a third student throwing the knife, the Court of Appeal reversed the judgment for the Defendant. The Court held the teacher could have seen the knife throwing and the issue should have gone to the jury. Lilienthal v. San Leandro Unified School Dist., 139 Cal. App. 2d 453, 455
(Cal. App. 1st Dist. 1956).

In a case where a student was injured by a student in the science lab after school, a Court again found the teacher and school district would be responsible, despite it being after school. Nash v Port Wash. Union Free School Dist., 83 A.D.3d 136, 139 (N.Y. App.
Div. 2d Dep’t 2011).

The SHIELD Academy does not have high school age students, but adults. What are the rules with colleges keeping students safe from other students?

Many Courts take the view that there is no “special relationship” between college students and a college to protect them from a third party harming the students. Crow v. State of California, 222 Cal. App. 3d 192, 200 (Cal. App. 3d Dist. 1990). Or as one Court explained, “colleges today in general have no legal duty to shield their students from the dangerous activity of other students.” Eiseman v. State, 70 N.Y.2d 175, 189 (N.Y. 1987). Simply put, Courts did not want to turn colleges into parents with the responsibility of making sure students were in bed with a curfew.

Other Courts have taken a very different view and have allowed some liability for a college. As one Court explained:

“The university is not an insurer of the safety of its students nor a policeman of student morality, nonetheless, it has a duty to regulate and supervise foreseeable dangerous activities occurring on its property. That duty extends to the negligent or intentional activities of third persons. Because of the extensive freedom enjoyed by the modern university student, the duty of the university to regulate and supervise should be limited to those instances where it exercises control. Situations arising out of the ownership of land, within the contemplation of § 344, involving student invitees present on the property for the purposes permitted them are within such limitations.”

Furek v. University of Delaware, 594 A.2d 506, 521-522 (Del. 1991).

Further drawing a distinction between a college and the SHIELD Academy is the fact SHIELD is closer to a military academy with cadets. In theory, this creates an employer-employee relationship, not to mention an oath to uphold and defend the Constitution.

Dorm room inspections probably were the norm at the Ops SHIELD Academy. However, given the fact Fitz said his dorm room had laundry on the floor, this likely was not the case at SHIELD’s Science Academy.

Two cadets at the SHIELD Academy built a “freeze bomb” that turned into a WMD in a student dorm room for sale to an international terrorist. Such a device certainly violated SHIELD Academy rules, plus a few Federal and state laws.

SHIELD has a high likelihood of liability for the actions of their students. First, the “freeze bomb” was built in a dorm room and likely in violation of many Academy rules. Students playing mad scientist on school property scream liability. Moreover, the Academy would have an obligation to protect its students as a landlord and as an employer to provide a safe environment for the cadets. WMD’s being built in dorms are absolutely not a safe environment.

Second, the cadets are learning how to develop advanced weapons and other dangerous technology at the Academy. Cameras and other security measures were mentioned by Simmons, thus explaining the existence of the “boiler room” turned bar without the administration’s oversight (and probably violating all laws on liquor licenses). Given the fact the Academy was on notice of possible threats, as evidence by the security measures, this also might be a factor in finding some liability for the school.

That being said, the material used to design the “freeze bombs” were funded by a third party and not with material from the Academy. The cadets were also able to maintain the device’s secret until they launched their plan. All of these actions could be superseding factors to limit liability for SHIELD for the property damage from the storm and any injured cadets.

How Do You Prosecute the Possessed?

Josh Gilliland

January 14, 2014

Sleepy Hollow hands down is my favorite show of the season. However, the episode The Vessel posed an unnatural legal question: How do you prosecute anyone for the murders by the possessed? The episode’s body count included two police officers and one priest at a safe house. Captain Frank Irving needed to tell the District Attorney something about a head being rotated 180 degrees and extremely broken bodies.

All three victims died in the line of duty, especially the Priest who challenged a demon face-to-face. All deserve better than being wrapped in rugs or elaborate cover stories of a biker gang that left no evidence.

So, who would a DA charge? The last living possessed person was Irving’s daughter Macey. While possessed, Macey as “the vessel” killed one of the police officers and the priest. If the DA decided to prosecute a child in a wheelchair, New York state allows a person between the ages of 13 to 15 to be criminally responsible for second degree murder. NY CLS Penal § 30.00. New York defines murder in the second degree as follows:

1. With intent to cause the death of another person, he causes the death of such person or of a third person; except that in any prosecution under this subdivision, it is an affirmative defense that:
(a) The defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be. Nothing contained in this paragraph shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime; or
(b) The defendant’s conduct consisted of causing or aiding, without the use of duress or deception, another person to commit suicide. Nothing contained in this paragraph shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the second degree or any other crime;

NY CLS Penal § 125.25.

Macey has a very strong affirmative defense: she was possessed. A defense attorney could argue the possession was an “extreme emotional disturbance.” This effectively would be an insanity defense that Macey was not responsible for snapping the priest’s neck and killing the police officer. Additionally, the possession would be the affirmative defense of a “mental disease or defect,” because Macey lacked the capacity to know the nature and consequences of her conduct or that he conduct was wrong, thus providing a total legal defense to any possible charges against her. NY CLS Penal § 40.15.

There are cases where defendants unsuccessfully argued the insanity defense because of demons or spirits, but in the fictional world of Sleepy Hollow, Macey would have a good defense if charged. (See, People v. Kashney, 129 Ill. App. 3d 218 (Ill. App. Ct. 1st Dist. 1984) or Carroll v. State, 815 So. 2d 601, 611 (Fla. 2002)).

Now, whether or not Abby and Crane could argue the necessity defense for stealing the lamp is another story….

The Golden Globes Were #$%@ Awesome!

Jessica_alegalgeek

January 14, 2014

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

Josh Gilliland

January 13, 2014

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.

Is 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.

Problem: 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.

As 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.

If 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.

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