Doc Brown & Train Wrecking in Back to the Future Part 3

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September 23, 2013

There will always be a place in my heart for Back to the Future. Who doesn’t like saying “88 miles per hour,” or “1.21 gigawatts”?

But Great Scott, Doc Brown would be a wanted man in at least two different centuries. Blowing up trains and promising terrorists you will make a nuclear bomb have substantial legal consequences. There is no “science experiment” defense.

Old California Justice is Really Heavy

There is little doubt that California Governor George Stoneman would have sent troops to capture Doc Brown after stealing and blowing up a train in the name of science.

There were just too many witnesses in Hill Valley who watched Marty & Doc flee the scene after the fight with Mad Dog Tannen to not connect the train robbery to them. Exhibit A to the fact people knew Marty McFly was involved was the fact that Shonash Ravine was renamed Eastwood Ravine (Marty McFly’s alias in 1885). Connecting the dots to Doc Brown would not be hard, especially if anyone found Doc’s not-to-scale model in his shop.

The most on point California law to prosecute Doc Brown was not enacted until 1891, six years after the destruction of Locomotive 131 at Eastwood Ravine. California Penal Code § 218 specifically addresses “train wrecking” and “acts intended to wreck.” The law states:

Every person who unlawfully throws out a switch, removes a rail, or places any obstruction on any railroad with the intention of derailing any passenger, freight or other train, car or engine, or who unlawfully places any dynamite or other explosive material or any other obstruction upon or near the track of any railroad with the intention of blowing up or derailing any such train, car or engine, or who unlawfully sets fire to any railroad bridge or trestle, over which any such train, car or engine must pass with the intention of wrecking such train, car or engine, is guilty of a felony, and shall be punished by imprisonment in the state prison for life without possibility of parole.

Cal Pen Code § 218.

There is no question that Doc Brown and his co-conspirator Marty McFly threw the train switch with the intent of destroying Locomotive 131 at Shonash Ravine. If Cal Pen Code § 218 had been in effect in 1885, Doc and Marty both would have been charged under this statute.

In 1885, Doc Brown would have been charged under California Penal Code § 587, which prohibits injuries to railroads and railroad structures. The code states:

Every person who maliciously does either of the following is punishable by imprisonment pursuant to subdivision (h) of Section 1170, or imprisonment in a county jail not exceeding one year:

(a) Removes, displaces, injures, or destroys any part of any railroad, whether for steam or horse cars, or any track of any railroad, or any branch or branchway, switch, turnout, bridge, viaduct, culvert, embankment, station house, or other structure or fixture, or any part thereof, attached to or connected with any railroad.

(b) Places any obstruction upon the rails or track of any railroad, or of any switch, branch, branchway, or turnout connected with any railroad.

The law was enacted in 1872 and is still in effect in 2013. The annotated code further states:

Under Pen C § 587, making it a crime for any person to maliciously place an obstruction on the rails or track of any railroad, the intent required for a violation is the intent to place an obstruction on the rails or tracks of the railroad, and the malice required is that which would negate an accidental and unintended obstruction. Thus, in a prosecution for violation of the statute, the court’s refusal to instruct that violation required specific intent was not error. People v. Bohmer (1975, Cal App 4th Dist) 46 Cal App 3d 185, 120 Cal Rptr 136, 1975 Cal App LEXIS 1765, cert den (1975) 423 US 990, 46 L Ed 2d 308, 96 S Ct 402, 1975 US LEXIS 3463.

Point of No Return to Court

Doc Brown and Marty McFly placed the DeLorean on the train tracks with the intention of pushing the Time Machine to the uncompleted tracks at Shonash Ravine. These facts should be enough to warrant charges under Cal Pen Code § 587. While this 1872 statute is not as on point as Cal Pen Code § 218 for the offense of train wrecking, Doc Brown could be charged and convicted of violating § 587 in 1885.

Double Back to 1985

The DeLorean’s destruction by the freight train creates a legal paradox that spins “proximate cause” in Palsgraf v Long Island Railroad right on its turntable.

Here are the legally relevant, and temporal, facts:

Marty McFly & Doc Brown placed the DeLorean on the train tracks in 1885

Marty & Doc intended to destroy Locomotive 131 in 1885

Marty returned to 1985 on same train tracks after the destruction of Locomotive 131

DeLorean destroyed by freight train in 1985

Would there be criminal liability in 1985 for the DeLorean being run over the freight train? Was there any danger of a train derailment or explosion? Cal Pen Code § 218 and § 587 are still in effect, thus creating interesting legal analysis.

The issue comes down to intent on whether Marty McFly could be charged under Cal Pen Code § 218.

Marty and Doc had the intent to destroy Locomotive 131 in 1885. They did not the malicious intent for the DeLorean to be hit by a train in 1985.

Would the intent of the 1885 conspiracy transfer to 1985 as one continuous event under the law for violating Cal Pen Code § 218?

The Hill Valley District Attorney could legally argue yes, since time was relative to Marty.

McFly was traveling in a fusion powered time machine on train tracks. It is foreseeable that a train could also be traveling on the same train tracks as the DeLorean at the same time.

However, there would be a very strong statute of limitations defense against § 218, because the events of 1885 were 100 years in the past, long past the time to prosecute Doc & Marty for the destruction of Locomotive 131 (Never mind the fact the witnesses were all dead and the DA would have to rely on 100 year old documents). There was no intent to derail a train in 1985, thus making the issue one of reckless driving, negligence by placing a car with a fusion powered device from the future on active railroad tracks, or possibly a violation of § 587(b) by placing the DeLorean on train tracks as an obstruction, if malice could be implied by the act of placing the car on the train tracks.

I Was Just Following Orders on the USS Vengeance

By

Josh Gilliland

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June 5, 2013

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The USS Vengeance could have had survivors after its crash landing into San Francisco in Star Trek Into Darkness.

The charges against the Star Fleet/Section 31 officers on the USS Vengeance would include everything from attempted instigation of war against the Klingon Empire, a possible illegal Skunk Works operation to build the USS Vengeance, sabotage of the USS Enterprise, attempted destruction of the USS Enterprise, kidnapping of Carol Marcus, and the deaths of numerous Enterprise crew members. Additionally, those involved in the construction of the USS Vengeance may also have been part of the conspiracy to start a war.

They would have one horrible defense: I was just following orders.

This defense did not work at Nuremberg or My Lai.

For the “I was just following orders” defense to be effective, presuming Star Fleet follows a futuristic US Military Code of Justice, the order first had to be a lawful order.

It is time to boldly go and review case law of “I was just following orders.”

A defense JAG officer’s personal log would begin with a supplemental entry. As a preliminary matter, we should know the charge against the officers: Murder.

Murder is defined as follows:

Any person subject to this chapter [10 USCS §§ 801 et seq.] who, without justification or excuse, unlawfully kills a human being, when he–
(1) has a premeditated design to kill;
(2) intends to kill or inflict great bodily harm;
(3) is engaged in an act which is inherently dangerous to another and evinces a wanton disregard of human life; or
(4) is engaged in the perpetration or attempted perpetration of burglary, sodomy, rape, rape of a child, sexual assault, sexual assault of a child, aggravated sexual contact, sexual abuse of a child, robbery, or aggravated arson;

is guilty of murder, and shall suffer such punishment as a court-martial may direct, except that if found guilty under clause (1) or (4), he shall suffer death or imprisonment for life as a court-martial may direct.

10 USCS § 918.

The USS Vengeance opened fired on the USS Enterprise at Warp Speed, penetrating the hull, causing the loss of life through the phaser hits and violently launching others into the vacuum of space.

These actions by those manning the ship and firing the weapons all meet elements 1 to 3 of the code.

Would “I was just following orders of Admiral Alexander Marcus when I opened fired” be a valid defense?

Consider the following cited in 1954 from US v Kinder:

In Winthrop’s Military Law and Precedents, Second Edition, Reprint 1920, the defense of justification for a criminal act by a soldier based on obedience to the order of a military superior is treated as follows:

“OBEDIENCE TO ORDERS. That the act charged as an offense was done in obedience to the order — verbal or written — of a military superior, is, in general, a good defense at military law.

“Further the order, to constitute a defense, must be a legal one. It must emanate from a proper officer — a superior authorized to give it — and it must command a thing not in itself unlawful or prohibited by law. In other words, it must be an order which the inferior is bound to obey. While obedience by inferiors is the fundamental principle of the military service, it is yet required to be rendered only to a lawful order. It is ‘the lawful orders of the superiors appointed over them’ that ‘all inferiors’ are, by par. 1 of the Army Regulations, ‘required to obey strictly and to execute promptly;’ and it is the ‘lawful command of his superior officer’ which by the 21st Article of War, ‘any officer or soldier’ may be punished even with death for disobeying. But for the inferior to assume to determine the question of the lawfulness of an order given him by a superior would of itself, as a general rule, amount to insubordination, and such an assumption carried into practice would subvert military discipline. Where the order is apparently regular and lawful on its face, he is not to go behind it to satisfy himself that his superior has proceeded with authority, but is to obey it according to its terms, the only exceptions recognized to the rule of obedience being cases of orders so manifestly beyond he legal power or discretion of the commander as to admit of no rational doubt of their unlawfulness. Such would be a command to violate a specific law of the land or an established custom or written law of the military service, or an arbitrary command imposing an obligation not justified by law or usage, or a command to do a thing wholly irregular and improper given by a superior when incapacitated by intoxication or otherwise to perform his duty. Except in such instances of palpable illegality, which must be of rare occurrence, the inferior should presume that the order was lawful and authorized and obey it accordingly, and in obeying it he can scarcely fail to be held justified by a military court.

“It may be added that an order which might not be regarded as legal in time of peace, may furnish to the inferior obeying it a complete defense in time of war, as being warranted by the laws and usages of war.” (pp 296-297).

US v Kinder, 14 C.M.R. 742, 772-773 (A.F.C.M.R. 1954)

The soldier in the Kinder case was ultimately found guilty and his conviction upheld. The soldier was ordered to take a civilian, lying on the floor of a building, outside and execute him. The soldier was following the orders of his superior officer. The Court found the soldier acted with criminal intent, because the soldier knew about the conspiracy between his superior officers to kill the civilian. This made the soldier a co-conspirator, thus making the superior officer’s order unlawful. Kinder, 14 C.M.R. 742, 772-773 (A.F.C.M.R. 1954).

One court further explained the law as follows:

The general rule is that homicide committed in the proper performance of a legal duty is justifiable. Thus the acts of a soldier done in good faith and without malice in compliance with the orders of a superior are justifiable, unless such acts are manifestly beyond the scope of his authority, and such that a man of ordinary sense and understanding would know them to be illegal. Where, however, the order is so manifestly beyond the power or discretion of the commander as to admit of no rational doubt of its unlawfulness it cannot be used as a cloak of immunity to render justifiable an act which, but for such order, would be unlawful (40 CJS Homicide, sec 107, p 967; Winthrop’s reprint, pp 296, 297; MCM, 1928, par 148a).” (page 365).

Kinder, at *773.

Any surviving officers from the USS Vengeance would be hard pressed to claim Admiral Marcus’ orders were lawful. Their ship had been built in secret; their mission a prelude to war by destroying Star Fleet’s Flagship. There is little evidence to show any lawful orders, but plenty to show a conspiracy to start a war.

As such, any surviving officers could be convicted for the deaths on the Enterprise, because they were part of Admiral Marcus’ conspiracy. It is also likely that the following crash into San Francisco after Khan took control of the Vengeance could also be attributed to them as well.

However, there is an argument when the ship was captured by Khan, Kirk and Scotty, that was a superseding factor effectively limiting all harm from crimes to that point in time, because Khan aimed the crashing ship at Star Fleet Command in San Francisco. The foreseeable actions of the Vengeance would have caused the destruction of the Enterprise or war with the Klingon Empire. Crashing on Alcatraz and into the city would not have been a foreseeable result of the attack on the Enterprise.

Now for the big unanswered questions: What are the laws on performing medical experiments on Tribbles? How often did Dr. McCoy experiment on Tribbles? What award did Bones win for curing death?

A Legal Analysis of The Chewbacca Defense

By

Josh Gilliland

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May 3, 2013

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The Chewbacca Defense made famous on South Park originally aired during my first year of law school. It is a powerful satire of trial advocacy, mocking the closing argument from the OJ Trial.

Ladies and gentlemen of this supposed jury, I have one final thing I want you to consider. Ladies and gentlemen, this is Chewbacca. Chewbacca is a Wookiee from the planet Kashyyyk. But Chewbacca lives on the planet Endor. Now think about it; that does not make sense!

Why would a Wookiee, an 8-foot-tall Wookiee, want to live on Endor, with a bunch of 2-foot-tall Ewoks? That does not make sense! But more important, you have to ask yourself: What does this have to do with this case? Nothing. Ladies and gentlemen, it has nothing to do with this case! It does not make sense! Look at me. I’m a lawyer defending a major record company, and I’m talkin’ about Chewbacca! Does that make sense? Ladies and gentlemen, I am not making any sense! None of this makes sense! And so you have to remember, when you’re in that jury room deliberatin’ and conjugatin’ the Emancipation Proclamation, does it make sense? No! Ladies and gentlemen of this supposed jury, it does not make sense! If Chewbacca lives on Endor, you must acquit! The defense rests

In the story, Capitalist Records sued Chef for harassing a major record company after Chef sought to enforce his copyright on a song and be credited with its authorship. However, once the fictional Johnny Cochran made his Chewbacca Defense in closing argument, the jury returned a verdict of Chef being guilty of harassing a record company. The fine was $2 million and payable within 24 hours or a jail sentence.

I’ve Got a Bad Feeling About This

What is the legal theory at play in the infamous Chewbacca Defense?

It is Jury Nullification, which is a jury’s knowing and deliberate rejection of the evidence or refusal to apply the law either because the jury wants to send a message about some social issue that is larger than the case itself or because the result dictated by law is contrary to the jury’s sense of justice, morality, or fairness. (From Black’s Law Dictionary App).

The jury rejected Chef’s prior copyright evidence, instead siding with the record company because of the nonsensical red herring argument made by the cartoon Cochran. This result demonstrates jury nullification of Chef’s copyright claim. Additionally, while jury nullification is generally in criminal proceedings, given the size of the fine and jail sentence threatened against Chef, what originally was a civil action has significant criminal law overtones.

Here is how one court described jury nullification:

“[A jury] has the power to acquit on bad grounds, because the government is not allowed to appeal from an acquittal by a jury. But jury nullification is just a power, not also a right, [ ], as is shown among other things by the fact . . . that a trial error which favors the prosecution is harmless if no reasonable jury would have acquitted, though an actual jury might have done so.”

Sorich v. United States, 709 F.3d 670, 678 (7th Cir. Ill. 2013), citing United States v. Kerley, 838 F.2d 932, 938 (7th Cir. 1988).

So, why use Chewbacca to get the jury to ignore the copyright evidence? Because neither an attorney or judge should instruct or encourage juries to use their nullification power. United States v. Appolon, 695 F.3d 44, 64-65 (1st Cir. Mass. 2012), citing United States v. Manning, 79 F.3d 212, 219 (1st Cir. 1996) and United States v. Bunchan, 626 F.3d 29, 34 (1st Cir. 2010). Purposefully telling a nonsensical story about Chewbacca would be the most direct way to get the jury to ignore their duty to apply the facts to the law with an extremely dangerous weapon in court: confusion.

This conduct would be both highly unethical and violate the rules of evidence, because the Chewbacca Defense is 1) Not relevant to the litigation and 2) The prejudicial effect outweighs the probative value of presenting Wookiees and Ewoks to a jury in a copyright case. To put it simply, there is too much danger of a jury just letting the Wookiee win. A judge likely would say, “I have a bad feeling about this” and possibly declare a mistrial if such an argument was made in court.

A party successfully using the Chewbacca Defense to confuse the jury into engaging in jury nullification in a civil lawsuit runs the risk of the losing party winning on a Judgment Notwithstanding the Verdict (JNOV). In Chef’s case, the copyright violation should have entitled him to a judgment as a matter of law.

What a Wookiee

Chewbacca is the ultimate wingman.

He likely would be imposing co-counsel in a trial, delivering howling cross-examinations.

Chewbacca would also give closing arguments no one would forget.

Sadly, Court Reporters would fear him.

However, actually using the Chewbacca Defense to get a jury to nullify the law would end with the judge feeding the lawyer to the Rancor.

Jabba the Hutt & Employee Safety

By

Josh Gilliland

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February 19, 2013

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Long, long ago, in a galaxy far far away, the planet of Tatooine apparently did not have any laws on employee safety or premise liability.

Jabba the Hutt’s Palace would make thousands of OSHA inspectors scream out in horror, then nothing.

Jabba’s safety standards raise many issues as they related to employees (such as the guard who fell in the Rancor Pit), independent contractors (Boba Fett) and those held in servitude (Oola, the green dancing girl fed to the Rancor & Princess Leia).

Employers’ Duty to Employees

Provided the Old Republic had similar employee protection laws to the United States, an employer:

(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees;

(2) shall comply with occupational safety and health standards promulgated under this Act.

29 USCS § 654(a).

Additionally, floors with holes that “persons can accidentally walk” into (such as on a construction site) must be guarded by a railing or cover. W. C. Sivers Co. (1972) OSHRC Docket No. 239, 1973-1974 CCH OSHD P 17792, 29 CFR 1926.500(b)(8).

The Trap Door to The Rancor Pit

Jabba the Hutt used a trap door to 1) dispose of Oola, the dancer who displeased Jubba and 2) attempt to eliminate Luke Skywalker, accidentally sending a guard to be a snack for the Rancor.

Oola’s case highlights several issues: She was held in Jabba’s Palace against her will and then fed to the Rancor.

Jabba’s actions would range from holding someone in slavery (which apparently was legal on Tatooine) to outright murdering her.

Jabba’s Palace Guard who fell in the Rancor Pit with Luke Skywalker was owed a duty by Jubba to be free from recognized hazards that are causing or are likely to cause death or serious physical harm.

However, as a palace guard, he also assumed the risk the different dangers that came with the job. With that said, being a palace guard does not mean he assumed the risk of falling through a trap door and being eat alive by the Rancor.

Even if the Guard could have assumed the risk of falling down the trap door, the Rancor was a wild animal (See, Wookieepedia). Case law has found that an owner of property can be liable for injuries under premises liability for a free roaming wild animal on their property provided they have knowledge of the dangerous animal. (See, The Landings Ass’n, Inc. v. Williams, 736 S.E.2d 140 (Ga. Ct. App. 2012), regarding knowledge of an alligator in a lagoon that injured someone). In Jubba’s case, the Rancor was imported to Tatooine to be used as an execution weapon in a pit. It certainly was not free roaming, but purposely contained because it was dangerous. It was highly foreseeable that the creature could accidentally eat the wrong person.

The Independent Contractor & The Sarlacc Pit

Boba Fett was an independent contractor, because he was a bounty hunter not directly employed by Jabba the Hutt. In the universe of premises liability, independent contractors are viewed as business invitees. Taylor v. Nabors Drilling United States, LP, 2013 U.S. Dist. LEXIS 14555, at *5 (S.D. Miss. Feb. 4, 2013).

What duty was Boba Fett owed by Jabba while on the Barge over the Sarlacc Pit?

A case involving an injury on an oil rig is illustrative, if we view Jabba’s barge over the Sarlacc Pit like an oil rig at sea.

Jabba as a premises owner (the barge, not the sand dunes) had a general duty to “provide an independent contractor with a reasonably safe work environment or give warning of danger.” Taylor, at *5, citing Nofsinger v. Irby, 961 So. 2d 778, 781 (Miss. Ct. App. 2007).

However, Jabba as a premises owner was not, “an insurer of the [independent contractor’s] safety.” Taylor, at *5, citing Coho Res., Inc. v. McCarthy, 829 So. 2d 1, 10 (Miss. 2002). However, “there are exceptions to the general rule, which can be reduced to two issues: who controls the work which caused the injury, and whether the contractor had actual or constructive knowledge of the hazard which caused the injury.” Taylor, at *5, citing Coho Res., Inc. v. McCarthy, 829 So. 2d 1, 10 (Miss. 2002).

Case law states that when the premises owner “devolves upon the contractor the right and fact of control of the premises and the nature and details of the work, the owner has no liabilities for injuries experienced by the contractor’s workers where those injuries arose out of or were intimately connected with the work.” Taylor, at *5.

A premises owner is “not liable for the death or injury of an independent contractor or his employees resulting from dangers that the contractor, as an expert, knows or reasonably should know.” Taylor, at *6, citing McCarthy, 829 So. 2d at 14. The Taylor Court went on to state:

Phrased differently, a premises owner will not be held liable where an independent contractor has “assumed the risk” of danger. Stokes, 217 F.3d at 357. Accordingly, an “employer is relieved of the duty of informing an independent contractor of a danger at the work site if the independent contractor knows of that danger.” Nofsinger, 961 So. 2d at 781.The “knowledge of the danger” exception . . . does not require such a close nexus between the dangerous condition and the work the contractor is obligated to perform. That rule rests on the premise that under circumstances where the contractor has knowledge of the condition, his ability to avoid the harm is equal to that of the owner of the premises. The ability of the contractor to avoid injury where he knows that a dangerous condition exists does not depend on his control over the manner in which the work is performed or his reason for being on the premises. Stokes, 217 F.3d at 359.

Boba Fett was the adult clone of Jango Fett, trained as an expert bounty hunter. Given his skill as a warrior-for-hire, he assumed the risk of engaging Luke Skywalker, Han Solo and Chewbacca in battle over the Sarlacc Pit. As such, Jabba owed Boba Fett no duty under premises liability for any injuries sustained in the Sarlacc Pit.

Rancors’ Rights: Possible Episode VII Plot Ideas

The New Republic may mean the end of Slave Leia outfits, but what about the Rankors of the universe? Will the outlawing of slavery in the New Republic mean these creatures could still be held against their will for brutal entertainment? Let’s review one California case for a possible outcome.

Plaintiffs in California brought a Next Friends case on behalf of orca whales held at Sea World, claiming the whales’ 13th Amendment rights were being violated. Tilikum v. Sea World Parks & Entm’t, Inc., 842 F. Supp. 2d 1259, 1262-1264 (S.D. Cal. 2012).

That’s right, the Killer Whales were the Plaintiffs.

After lengthy historical analysis, the Court held the 13th Amendment applied only to persons, not non-humans. Tilikum, at *1263.

In the case of the Rancors, it is unlikely a law prohibiting slavery would apply to them, as they were simply eating machines. As such, the New Republic would need specific legislation to ensure the safe and humane treatment of Rancors.

The Force is Strong in This Court

By

Jessica_alegalgeek

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January 28, 2013

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As you can see from the video below, Josh and I love to discuss Star Wars. And we’re not the only ones. With the big news about JJ Abrams directing Episode Seven, everyone is talking about Star Wars right now. And judges are no exception to the the rule – they like Star Wars too. (In fact, just like JJ Abrams, judges like both Star Wars and Star Trek.)

While there are many cases that involve Star Wars issues (copyright disputes, business disputes involving claims of evil empires, employee harassment cases revolving around name calling), judges also like to work in their Star Wars references just for fun.

A Galaxy Far, Far Away…

One example of just such a reference occurred last summer in People of the State of New York v. Malcolm Harris, Docket No. 2011NY080152 (N.Y. Crim. Ct. June 30, 2012). Judge Matthew A. Sciarrino Jr. (The Legal Geeks and Above the Law are both fans of his) denied a motion by Twitter to quash a subpoena seeking discovery of defendant Malcolm Harris’s tweets and other non-content information collected by Twitter. Noting that there can be no reasonable expection of privacy in a tweet, he emphasized the point in a footnote: “In fact, on August 1, 2012 your tweets will be sent across the universe to a galaxy far, far away.” This reference is notable both because it’s so true – we are now sending information to galaxies far away (140 characters at a time) – and because it was placed in an order that got a lot more attention than the usual court opinion.

Judge Sciarrino is an admitted Star Wars fan and takes that love with him to work. The proof is in the above picture of the judge’s former court chambers. While I don’t know of any studies that have been done to see if other judges decorate their chambers with Star Wars paraphernalia, other court orders and opinions show a similar love for the Force.

The “far, far away” references compare to the use of Star Trek’s “boldy go” language often referenced by courts. For example, in an opinion addressing a business dispute, the plaintiff tried to argue that two transactions were not related. The court noted, however, that “the transaction was not in another galaxy, far, far away…” Agrippa, LLC v. Bank of America, N.A., 2011 WL 102677, at *1 (S.D.N.Y. 2011).

Spock and Yoda – Judicial Muses

While some courts have turned to Spock for guidance, it should be no surprise that courts looking for an appropriate Star Wars movie character to provide guidance turn to Yoda, the Jedi Master.

In addressing an accounting issue and net proceeds, the Seventh Circuit explained, “Size matters not, Yoda tells us. Nor does time.” U.S. v. Hodge, 558 F.3d 630, 632 (7th Cir. 2009).

In Kentucky, the dissenting opinion put it this way: “Even Yoda, the diminutive Star Wars guru, recognized that sometimes in life we have to fish or cut bait. ‘Do or do not. There is no try.'” Com. v. Marshall, 345 S.W.3d 822, 835 (Ky. 2011) (Cunningham, J., dissenting).

Footnotes for Fun

Oddly enough, while Star Wars is arguably more pervasive in popular culture than Star Trek (inspiring debates over Lucas’s changes to official canon and even an official White House petition), it doesn’t appear to inspire the same amount of creativity among the judicial branch as Star Trek. As a fan of footnotes, it’s hard to beat the Star Trek references to Klingon dictionaries and Romulan Cloaking Devices. Aside from Judge Sciarrino’s footnote discussed above, I only found two other Star Wars footnotes that were very entertaining.

First, while discussing bias and prejudice during voir dire, the Seventh Circuit noted that sometimes prospective jurors attempt to avoid jury duty by behaving oddly. In a footnote they reference Tina Fey’s jury duty in 30 Rock when her character dresses up as Princess Leia. The court went on to note that while it was funny on TV, such behavior in an actual court could result in a finding of contempt. See U.S. v. Hill, 552 F.3d 541, 548 (7th Cir. 2008). Working in both a Tina Fey and a Star Wars reference into one footnote was awesome – I just wish they could have mentioned Carrie Fisher’s actual appearance on the series.

Second, another court impressed me with the depth and breadth of their footnote references. In addressing parties who conspired to hide assets during divorce and child support proceedings, the court stated that “[t]his case is somewhat akin to deciding a dispute between Darth Vader and the Borg, or if you prefer a classical metaphor, Scylla and Charybdis.” The court then dropped footnotes to Star Wars, Star Trek (both First Contact and The Next Generation), and Homer. See Anthony v. Mazon, 2006 WL 1745769, at * (Cal.App. 4 Dist. 2006). That kind of creativity is why I love footnotes – and judges who love Star Wars and Star Trek!

Troubling Tribbles: The Ultimate Invasive Species

By

Josh Gilliland

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January 4, 2013

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Just because something is cute and snugly does not mean it isn’t dangerous.

Nothing is better evidence of this then perhaps the most dangerous [fictional] invasive species:

A Tribble from Star Trek.

Tribbles are a purring ball of fur that snuggle and make people feel good, including Vulcans. The creatures were introduced in the Star Trek TOS episode Trouble with Tribbles; returned in the Animated Series episode More Tribbles, More Troubles; had cameos in Star Trek III: The Search for Spock and Star Trek Generations; and appeared again in the Star Trek: Deep Space 9 episode Trials and Tribble-ations.

An invasive species is an animal which is introduced into a completely new environment to the detriment of indigenous species. Examples include Zebra Muscles in the Great Lakes, Asian Carp, or Pythons in Florida.

The US Congress described the dangers caused by invasive species as follows:

When environmental conditions are favorable, nonindigenous species become established, may compete with or prey upon native species of plants, fish, and wildlife, may carry diseases or parasites that affect native species, and may disrupt the aquatic environment and economy of affected nearshore areas;

16 USCS section 4701(a)(2).

Tribbles lack the gross factor of Zebra Muscles or the terror of a 17 foot snake surprising a birthday party in Florida. While it is extremely unlikely Tribbles will play any role in Star Trek Into Darkness, Tribbles would pose a greater environmental threat to an entire planet than any of the current invasive species on Earth.

Tribbles are born pregnant and give birth when fed. While not as messy as getting a Gremlin wet, the mere introduction of a Tribble in an ecosystem would cause an immediate threat to the food supply and cause a Tribble population explosion. Even if hawks, alligators, lions, sharks and every predator on Earth developed a taste for Tribble, they would not be able to keep up with Tribble reproduction.

With that said, Tribbles might be the answer to the problem of world hunger; however, selling humanity on eating cute purring animals would be difficult.

There would also be challenges in mobilizing Tribble slaughterhouses and the industrial capacity to keep up with the rate of reproduction.

The United States Government and States have fought invasive species a number of ways. One is prohibiting conduct that introduces the animals into the ecosystem, such as the discharge of untreated water in the ballast tanks of foreign cargo ships in US waters. Other “hands-on” remedies include adding rotenone (a fish kill agent) to waterways in fighting Asain carp.

The Klingons in Star Trek The Animated Series created a Tribble predator called a Glommer to hunt and eat Tribbles.

Klingons creating a creature to hunt an invasive species carried a fair amount of risk, because they were adding another animal to the environment.

While the Glommer could have been engineered to only eat Tribbles and die when the food supply was exhausted, such a plan is not comparable to adding rotenone to a lake to kill Asian carp. Simply put, there is risk in adding another animal to the mix.

However, the Klingons did send a fleet to destroy the Tribble homeworld (Referenced in Trials and Tribble-ations). This plan for Tribble-cide was more in line with a traditional “fish kill” to eliminate an invasive species…if the invasive species were as cute as baby seals.

The Federation would have several options to control the introduction of Tribbles to Earth.

One option is to outright prohibit ships bringing Tribbles to Earth, much like the United States Congress (and the Coast Guard) prohibiting ballast water from being discharged in US waters from international shipping.

This plan would require Star Fleet’s equivalent of the Coast Guard conducting vessel inspections of star ships in orbit prior to any cargo being sent to the service. There also might be a technical solution of programming transporters to not beam Tribbles to Earth.

Another option is to classify Tribbles as exotic pets that are dangerous wild animals (like a ferret with rabies) and order the animals destroyed. (See, Raynor v. Maryland Dep’t of Health & Mental Hygiene, 110 Md. App. 165, 182 (Md. Ct. Spec. App. 1996)).

The Federation most likely enacted laws prohibiting the introduction of Tribbles to Earth, unless they had been “neutered.” The evidence for this “middle-ground” regulation were 1) the Tribble cameo in Star Trek III on Earth in the bar where McCoy was attempting to book a flight to Genesis and 2) a child is seen with a Tribble when the Enterprise-D is crashing in Star Trek Generations. There was no evidence later in Star Trek III of a Tribble population explosion and remediation efforts or the Enterprise-D survivors cooking Tribbles for food while awaiting rescue.

Further evidence for the “altered” Tribbles theory comes from More Tribbles, More Troubles. Cyrano Jones poorly attempted to genetically alter Tribbles to not reproduce, which ultimately Dr. McCoy corrected to create “safe” Tribbles that reproduced at a much slower rate. While this logic is based on the lack of a Tribble population explosion, it is a logical deduction given the fact a Tribble was present on Earth without incident in Star Trek III: The Search for Spock or Star Trek Generations.

Violating the First Law of Time

By

Josh Gilliland

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October 12, 2012

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On an anomaly in an impossibility in 1973, Doctor Who fans learned the First Law of Time: You cannot cross your own timeline.

Unless of course it is a 10th anniversary special. Then reverse the polarity of the neutron flow and go big.

The Three Doctors was the anniversary story arc of Doctor Who that united the first three Doctors on an adventure to save the universe from a rogue Time Lord named Omega.

The Time Lords, self-appointed guardians of time, were under an attack that was draining their power used for time travel (there was an OPEC Embargo in 1973, which probably inspired the writers for the Time Lord “energy crisis”). Given the severity of the threat, they made the decision to enable the three Doctors from different timelines to work together.

The Time Lords had one very big rule: The First Rule of Time prohibited a Time Lord from crossing his own timeline.

This probably was designed to avoid the risk of creating a paradox that could destroy all of reality.

However, when pressed on the First Rule of Time, one Time Lord on Gallifrey stated, “The First Law of Time will be observed… later.”

No phrase better describes what a society is willing to do in a hegemonic war with everything on the line. The Time Lord easily could have been “The Constitution will be observed…later.”

One only needs to look at the US Civil War to see President Lincoln suspended the right of habeas corpus as the fires of secession spread across the Maryland as one example of breaking the law out of the necessity to save the United States. President Lincoln could not afford for Maryland also to join the Confederacy, leaving Washington, DC an island in hostile waters.

If there is a serious threat, countries are willing to violate their own laws (or well established principles) to save themselves from extinction.

The same could be said for Gallifrey and the Time Lords. When their existence was threaten with a de facto state of war, stepping outside of the law was a better alternative than being destroyed.

In the event of a trial of a Time Lord who ordered the First Law of Time violated, the best defense would be a necessity/self-defense arguement, focusing on the fact the violation that they ordered was necessary to avoid greater harm caused by the attack.

Dueling Dual Doctors

Violating the First Law of Time enabled fans to see the Second and Third Doctors argue with each other.

Additionally, fans all enjoyed a good chuckle when the First Doctor addressed the Second and Third Doctors as, “So you are my replacements: A dandy and a clown.”

Time & War

The villain Omega had qualities similar to Khan Noonien Singh, because Omega was Hell-bent on revenge on the Time Lords for spending several thousand years trapped in a black hole (just as Khan wanted revenge for his exile and death of his wife on City Alpha Five against James T. Kirk).

Omega liked to scream and seemed a second away from a total nervous breakdown. Omega also had charming statements like, “Absolute power is absolute freedom” and that he [Omega] “should have been a god.”

Omega’s attack on Gallifrey created a de facto state of war with the Time Lords. Given the fact Gallifrey was a sovereign planet with a unified government, they were entitled to defend themselves. Countries on Earth have the right to self-defense recognized under the Charter of the United Nations, Chapter VII, Article 51. Additionally, while there are recognized rules on war, time travel is something not addressed in the Geneva Convention. Moreover, there is no known prohibition of using a recorder as a WMD.

Given the corner Omega boxed the Time Lords into, there really was not other option besides violating the First Law of Time. The alternative was extermination.

In the end, the Doctors defeated Omega and the violation of the First Law of Time was justified for the greater good. And…the First Law of Time would be broken again in The Five Doctors for the 20th Doctor Who Anniversary, The Two Doctors and Time Crash (and arguably The Trial of a Time Lord).

We should expect the law violated again for the 50th Anniversary of Doctor Who in 2013. Who knows…we might learn how the 8th Doctor used The Moment to end the Time War.