Judging Spooky Ghosts

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October 30, 2013

Judges have referenced Star Trek, Star Wars and classic science fiction in court opinions for years. However, Judges are not limited to being science fiction fans. Here are several opinions where Judges looked to the spirit world for spectral jurisprudence.

I just pray none are Team Edward or Team Jacob.

Judging Intertextuality

Some Judges hauntingly command the English language:

Although a residential subdivision proposed for construction in a bucolic Rhode Island town never saw the light of day, its ghost continues to haunt the parties. But apparitions rarely have substance, and this one is no exception. After careful consideration of the plaintiff’s complaint and the district court’s order of dismissal, we lay the ghost to rest.

Marek v. State, 702 F.3d 650, 651 (1st Cir. R.I. 2012).

Discrediting a Witness

One spirit made a courtroom appearance as a admission why a witness opened a door….

Finally, in a move intended to cast doubt on Tackett’s credibility generally, the defense elicited an admission about Tackett’s initial reaction to the knock on her door at 3 a.m. Tackett confirmed a prior statement to police in which she reported that she first thought the ghost of a former occupant had made the knocking sound.

Browning v. Trammell, 717 F.3d 1092, 1098 (10th Cir. Okla. 2013).

The Ghost in the Case

Some judges really know how to make a point.

Haunted houses may be full of ghosts, goblins, and guillotines, but it’s their more prosaic features that pose the real danger. Tyler Hodges found that out when an evening shift working the ticket booth ended with him plummeting down an elevator shaft. But as these things go, this case no longer involves Mr. Hodges. Years ago he recovered from his injuries, received a settlement, and moved on. This lingering specter of a lawsuit concerns only two insurance companies and who must foot the bill. And at the end of it all, we find, there is no escape for either of them.

Western World Ins. Co. v. Markel Am. Ins. Co., 677 F.3d 1266, 1267 (10th Cir. Okla. 2012).

Ghosts of the Confederacy

Another reason why people fear jury duty: Is it wrong to tell a jury that there is the ghost of a Confederate soldier in the courthouse?

Next, Shuff argues that the district court erred in informing the jury pool during the voir dire proceeding about a legend that the ghost of a Confederate soldier haunted the courthouse. Although we ordinarily would review for abuse of discretion the manner in which the district court conducted the jury voir dire, United States v. Hsu, 364 F.3d 192, 203 (4th Cir. 2004), because Shuff did not object to the court’s telling of the legend, we review this claim for plain error only. Robinson, 627 F.3d at 953-54.

After review of the record, we conclude that Shuff fails to establish any plain error that affected his substantial rights. During the voir dire proceeding, when counsel for Shuff and the Government were deciding whether to exercise any strikes against potential jurors, the district court gave a lengthy discourse in which it described the history of the courthouse and the land on which it was situated. As part of the narrative, the court mentioned that a building on the land had been seized by the Confederacy in 1861 and that there existed a legend that a “Confederate ghost” roamed the courthouse hallways. In Shuff’s view, it was error for the court to mention the legend because, in so doing, the court necessarily conveyed to the jury pool that “someone or something [was] watching and interested in the outcome” of the trial and that the “desired outcome [of the trial was] not the freedom of a black man.” Shuff, however, fails to point to anything in the record that would support these imaginative assertions. Further, after a review of the transcript of the jury voir dire, we are satisfied that no reasonable observer would conclude that there was even the appearance that Shuff’s race played a role in the proceeding. See United States v. Kaba, 480 F.3d 152, 156-57 (2nd Cir. 2007). This claim is therefore without merit.

United States v. Shuff, 470 Fed. Appx. 158 (4th Cir. N.C. 2012).

Geeking Out Over Captain America: Winter Soldier

By

Josh Gilliland

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October 29, 2013

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Comic book fans around the world have been geeking out over the preview for Captain America: The Winter Soldier. The movie looks fun.

The Winter Soldier story arc in the Captain America comic was one of the best written. I normally do not care for the resurrection of characters, but this one worked. Ed Brubaker did an amazing job turning Marvel history on its head.

Captain America is one of my favorite characters. Captain America: The First Avenger is the best stand-alone comic book movie in my opinion.

Captain America represents all the positive qualities about the United States. That we are the good guys; that we stand for justice; that we do the right thing.

Cap stands in extreme contrast to Nick Fury’s shades of grey and secret wars. This nobility of purpose gave Steve Rogers the “worthiness” to use Thor’s Hammer in battle in Thor #390 (Besides Beta Ray Bill and a teenager named Dargo in story that took place in 2587 in Thor #384).

I am expecting that to happen in Avengers 3.

Since It Is a Comic…

When Captain America joined the Avengers in the 1960s, his sidekick Bucky had been killed trying to stop a drone with a warhead on it in the final days of World War II. Captain America fell into the icy waters to be frozen for decades until the Sub-Mariner threw the block of ice with Cap into the ocean to be found by the Avengers in the 1960s (which tends to get updated every 20 years, so our heroes are not in their 70s to 90s). Bucky did not let go did not let go of the drone and was killed.

Winter Soldier re-wrote what was established comic book history.

The story centered on former Soviet General Alexander Lukin. Lukin is not happy the Soviet Union lost the Cold War.

Lukin ran a global company named Kronas Corporation as a front for his plans of domination by killing the Red Skull whose spirit was in a clone of Steve Rogers to get an artificial Cosmic Cube.

Lukin was a boy during World War II in the Russian town of Kronas. The town was destroyed in a battle between the Red Skull and the Invaders. Lukin was rescued by Vasily Karpov, who ran Soviet assassinations with advanced weapons during the Cold War.

Karpov was in a stealth Soviet submarine when Cap and Bucky were “killed.” Karpov recovered Bucky’s heavily injured frozen body missing his left arm.

The Soviets kept Bucky in suspended animation and added a bionic left arm. The Soviets would awaken Bucky over 60 years, and due to memory loss from his injuries, reprogram him with orders to kill political targets. Bucky killed the following under the code name Winter Soldier:

November 5, 1954: Three US soldiers in Berlin as a field test;

January 11, 1955: Entire UN Diplomatic Negotiation Team in Cairo;

May 14, 1955: NATO General James Keller;

January 1, 1956: British Ambassador Dalton Graines in Madripoor;

April 1, 1956: French Defense Minister Jacques Dupuy;

May 12, 1956: Algerian Peace Conference Envoy in Paris;

February 17, 1957: US Colonel Jefferson Hart in Mexico City; and

March 12, 1973: US Senator Harry Baxtor

Later comics tell of other operations, but those are the initial ones in the original story. The following comics include the Winter Soldier training the Black Widow and a relationship with her.

The Winter Soldier story arc is heavy on espionage with Nick Fury, Sharon Carter and SHIELD. The story began a several years arc, including Civil War and its aftermath.

Cap’s morality is highlighted in Winter Soldier. Instead of thinking he had to kill the Winter Soldier, the issue was how to rescue Bucky from being the Winter Soldier.

Now That You’re Rescued…

Bucky’s decades of killings as a Soviet agent raises many legal issues.

Could Bucky be convicted for crimes he committed as the Winter Soldier? This would become a big issue when Bucky as Captain America was put on trial.

As discussed in Skye Fall, treason is crime of treason as “levying War against them [The United States], or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.” United States Constitution, Article III, Section 3.

A Prosecutor could argue that Bucky as the Winter Soldier physically did commit acts of treason against the United States. The death toll includes soldiers, allied statesmen, a US Senator and a large number of people in Philadelphia to use death to fuel a Cosmic Cube.

Bucky would have a solid insanity defense against charges of treason and murder. The California Jury Instructions state the following on the determining whether a Defendant is legally insane:

The defendant was legally insane if:

1. When (he/she) committed the crime[s], (he/she) had a mental disease or defect;

AND

2. Because of that disease or defect, (he/she) was incapable of knowing or understanding the nature and quality of (his/her) act or was incapable of knowing or understanding that (his/her) act was morally or legally wrong.

None of the following qualify as a mental disease or defect for purposes of an insanity defense: personality disorder, adjustment disorder, seizure disorder, or an abnormality of personality or character made apparent only by a series of criminal or antisocial acts.

2-3400 CALCRIM 3450.

Bucky’s higher brain functions were destroyed in the closing days of World War II. The Soviets reprogrammed him each time he was awaken from suspended animation. He was literally a blank slate. It was not until Captain America used the Cosmic Cube to restore Bucky’s memory that he remembered who he was. As such, Bucky was incapable of knowing his actions were murderous treason.

Bucky should be able to afford a very good defense team. He would have an excellent argument that he was a POW held by the Soviets since 1945 (or was MIA). As such, he would be entitled to back-pay under the Missing Persons Act, 37 U.S.C. §§ 551-558.

How will the movie Captain America: Winter Soldier play out? I do not know. Let’s wait to April 4, 2014 and enjoy the movie.

Adventure at The Computer History Museum

By

Josh Gilliland

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October 27, 2013

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What do two geeks do on a Sunday? Go to the Computer History Museum.

The Computer History Museum is geek Heaven. You can walk the halls and see the beginning of the computer revolution, from the Babbage Engine to Apple 1.

I would hold a Legal Geeks conference at the Computer History Museum or The Tech Museum of Innovation if we ever put one together. I always hold those with the skill to design, engineer and turn an idea into a reality in very high regard. Many times those ideas have been drawn on cocktail napkins, but every one of them has involved vision and years of hard work.

The 7th Wonder of the Geek World

I had the good fortune to enjoy the Computer History Museum with Leslie Crystal.

For those who have not met Leslie, she is an IP paralegal, cosplayer and classic geek.

She also plays a mean game of Pong.

In the Valley of Pong

My family owned Rooster T. Feathers Comedy Club in Sunnyvale during the late 1990s. Prior to becoming Roosters, the building was the Country Store; prior to that, it was Andy Capps’ Tavern.

The building holds the honor of being where the first Pong machine was played.

We often had geeks stop by on a pilgrimage to see the spot where the Pong machine was set-up. I am sure whoever lives at 1066 Crist Drive in Los Altos, California has similar experiences with those wanting to see Steve Jobs’ childhood home.

Leslie and I enjoyed the video game section of the Museum. Video games were a happy part of my growing up in the 1980s. That being said, it was emotionally disturbing to see a Colecovision from my childhood as a museum exhibit.

I enjoyed many hours in the garage playing on our Coleco Vision. Yes. I said the garage. My mother’s deterrent to my brother and I playing for too long. That ended after she played Frogger.

Just How Much Litigation Involves Video Games?

Answer: A lot. Lawyers have unlimited lives when it comes to video games and lawsuits.

Pong had seen its share of litigation. Here is how one Court accounted for the creation of the video game industry:

39. Pong was designed and built by Nolan K. Bushnell and Allen Alcorn of Atari.

40. Prior to August 21, 1969, Bushnell had had extensive experience in the field of coin-operated amusement games, had been employed as a television technician, and had had experience in the programming of general purpose, stored program, digital computers and had had experience in the programming of general purpose, stored program, digital computers operated in conjunction with cathode ray tube displays. Prior to this date, he had not invented, designed, built, or constructed any apparatus for playing games using a television type, raster scan display; and he had no knowledge of the existence of any apparatus for playing games using a television type, raster scan display:

41. Prior to August 21, 1969, Bushnell had no knowledge of the existence of any apparatus using a cathode ray tube display for simulating the playing of the game table tennis or ping pong.

42. On May 24, 1972, and while employed by Nutting Associates, Inc., Mountain View, California, Bushnell attended the demonstration of the Magnavox Odyssey television game in Burlingame, California and saw the game played; he had gone to that show for the specific purpose of seeing the Magnavox Odyssey television game. He saw the Odyssey television game in use to play a game simulating ping pong and actually played that game.

43. Some time after June 26, 1972, Allen Alcorn became an employee of Atari and Bushnell assigned Alcorn the task of developing a video game which would simulate a tennis game. [*15] His work resulted in an arcade video game named “Pong”, first manufactured and sold by Atari in 1973.

44. The display of this game, shown on a picture tube screen, included a white rectangular symbol on the right side of the screen representing a first player, a white rectangular symbol on the left side of the screen representing a second player, and a symbol which moved across the screen representing a ball. Player controls were provided so that each human player could move his corresponding player symbol on the face of the screen. Each human player manipulated his corresponding symbol to intercept the path of the ball as it moved across the screen. When the player symbol intercepted the ball symbol, i.e., two symbols appeared to be coincident on the screen, the motion of the ball was changed and, in particular, the horizontal motion of the ball was reversed so that it traveled back toward the other player.

45. Following the commercial introduction of the Atari arcade Pong game, many other manufacturers commercially introduced similar arcade games having a display substantially the same as Pong. Those games included the games TV Ping Pong, TV Tennis, Olympic TV Hockey, and TV Goalee by Chicago Dynamic Industries, Inc., the games Paddle Ball, Pro Hockey, Pro Tennis, and Olympic Tennis by Seeburg Industries, Inc., Paddle Battle and Tennis Tourney by Allied Leisure Industries, Inc., and Winner and Playtime by Midway Mfg. Co.

46. The Atari arcade Pong game was the first arcade television game to be sold in large quantities. It, and games substantially identical to it, were responsible for the creation of the arcade television game industry.

The Magnavox Company & Sanders Associates, Inc., v Mattel, Inc., et al, 1982 U.S. Dist. LEXIS 13773 at *13-16; 216 U.S.P.Q. (BNA) 28.

Even the Courts Had Pacman Constitutional Fever

There is a certain joy in playing Pacman. Leslie demonstrate her skills playing the 1980s classic. However, she was not the only one who has played Pacman. Many judges and members of Congress have as well.

You know a video game is popular when Congress and the Courts are using it to describe legal theories. Pacman is one such game.

The drafters of the Kastenmeier Amendment somehow convinced the Congress that core judicial power, which in our federal system historically may be exercised only by Article III judges in the adjudication of private rights, may be subordinated constitutionally to core bankruptcy power and disregarded when private rights are adjudicated in an action known as a core bankruptcy proceeding. Perhaps this core-may-eat-core theory of constitutional law was so readily accepted by Congress because we are all enamored of computer games in which it is permissible for a charismatic, electronically-created creature to gobble up every other creature that crosses its path and moreover score points by doing so. Why not introduce such an enigmatic, animated creature into the field of bankruptcy law in the form of a core bankruptcy proceeding and let it feed on private rights. We might denominate this Pacman constitutional law.

///

Simply put, the Supreme Court has rejected the Pacman theory of constitutional law on which the Kastenmeier Amendment is based.

In re L.T. Ruth Coal Co., 66 B.R. 753, 772-774 (Bankr. E.D. Ky. 1986).

LeslieCrystal_3157 — Leslie fighting a case of Pacman fever.

When Geeks Go to Trial Over Computers

Honeywell, Inc. v. Sperry Rand Corp., is arguably the grandfather of eDiscovery cases. The case involved the man who invented the first computer, John V. Atanasoff, who was a professor at Iowa State University from 1937 to 1942. His story even involves a long drive, stopping for a beer and making notes on a napkin.You would think it took place in Silicon Valley, except it was Iowa and a bar at the Illinois border.

Atanasoff and Clifford Berry began building the first computing machine in December 1939. The device was “capable of solving with a high degree of accuracy a system of as many as 29 simultaneous equations having 29 unknowns.” Honeywell, Inc. v. Sperry Rand Corp., 1973 U.S. Dist. LEXIS 15600, at *74-79 (D. Minn. 1973).

Plaintiff Honeywell had 25,686 trial exhibits; the Defendant 6,968. The Court described the trial exhibits as follows:

Many of the exhibits were extremely voluminous, including both documents of great length and also collections of multiple documents designated as single exhibits. For example, PX-1 is a 496 page book describing the 19th century work of Charles Babbage relating to early digital computing, and DX-2 is a collection of documents relating to the ENIAC patent application, occupying a four-drawer legal filing cabinet; DX-1, the ENIAC patent itself, comprises 91 sheets of drawings and 232 columns of closely printed text.

Honeywell, Inc. v. Sperry Rand Corp., 1973 U.S. Dist. LEXIS 15600, 7-8 (D. Minn. 1973).

The Computer History Museum has replicas of the Babbage Difference Engines 1 and 2. The engine fills a room.

Babbage_8971 — The Babbage Engine is an automatic, mechanical calculator designed to tabulate polynomial functions. It was designed in 1843, has 8,000 parts, 5 tons and 11 feet long. It is hand crank.

The complexity of patent litigation has not decreased with time. One only needs to look at the Apple v Samsung litigation to see that complex lawsuits still have many exhibits. We can just organize them better.

The Game’s Not Over

The Computer History Museum always gives me a sense of Zen about eDiscovery. The exhibits represent lifetimes of extremely hard work and dedication from the 19th and 20th Centuries. I do not see technology as being a source of litigation, but one of wonder. I truly respect those who can dream and create the future.

Skye Fall: Treason on Agents of SHIELD

By

Josh Gilliland

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October 23, 2013

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One may think disloyal thoughts and have his heart on the side of the enemy. Yet if he commits no act giving aid and comfort to the enemy, he is not guilty of treason. He may on the other hand commit acts which do give aid and comfort to the enemy and yet not be guilty of treason, as for example where he acts impulsively with no intent to betray. Two witnesses are required not to the disloyal and treacherous intention but to the same overt act.

Justice William Douglas

Kawakita v. United States, 343 U.S. 717 (U.S. 1952)

We knew it would happen: Is Skye a traitor? Does Skye’s communications with Miles of the Rising Tide in episode five of Agents of SHIELD “Girl in the Flower Dress” amount to treason?

Let’s first review the crime of treason to understand whether or not Skye is a traitor. Acts of Treason

The United States Constitution defines the crime of treason as “levying War against them [The United States], or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.” United States Constitution, Article III, Section 3.

Two World War II era cases are very helpful in understanding what is “treason.”

Meeting for a Beer is Not Treason

In Cramer v. United States, the Defendant was a naturalized US citizen who had immigrated from Germany after the first World War. He was convicted of treason because of his actions with two other Germans who had enter the country via submarine to cause acts of sabotage. Cramer v. United States, 325 U.S. 1 (U.S. 1945).

Justice Jackson wrote the Supreme Court opinion overturning Cramer’s conviction.

Justice Jackson had a masterful prose in his opinions. He would also prosecute Nazi war criminals at Nuremberg. His opening statement in the prosecution of those Nazi monsters should be required reading in every world history class.

Cramer’s innocence turned on the fact his actions did not amount to treason under the law. He did not know the purpose of the Germans who had entered the country, but suspected his friend had returned by submarine. Cramer’s actions included the following:

1) Responding to an unsigned note on his door to meet;

2) Meeting his former friend for drinks;

3) Getting in touch with the German’s girlfriend; and

4) Putting money in a safe deposit box for the German.

The trial judge at the time of sentencing said:

“I shall not impose the maximum penalty of death. It does not appear that this defendant Cramer was aware that Thiel and Kerling were in possession of explosives or other means for destroying factories and property in the United States or planned to do that.

“From the evidence it appears that Cramer had no more guilty knowledge of any subversive purposes on the part of Thiel or Kerling than a vague idea that they came here for the purpose of organizing pro-German propaganda and agitation. If there were any proof that they had confided in him what their real purposes were, or that he knew or believed what they really were, I should not hesitate to impose the death penalty.”

Cramer, at *5-6.

The Supreme Court reversed the conviction, on the grounds the overt acts were not sufficiently proven. Justice Jackson stated for the Court:

It is not difficult to find grounds upon which to quarrel with this constitutional provision. Perhaps the framers placed rather more reliance on direct testimony than modern researches in psychology warrant. Or it may be considered that such a quantitative measure of proof, such a mechanical calibration of evidence is a crude device at best or that its protection of innocence is too fortuitous to warrant so unselective an obstacle to conviction. Certainly the treason rule, whether wisely or not, is severely restrictive. It must be remembered, however, that the Constitutional Convention was warned by James Wilson that “Treason may sometimes be practiced in such a manner, as to render proof extremely difficult — as in a traitorous correspondence with an Enemy.” The provision was adopted not merely in spite of the difficulties it put in the way of prosecution but because of them. And it was not by whim or by accident, but because one of the most venerated of that venerated group considered that “prosecutions for treason were generally virulent.” Time has not made the accusation of treachery less poisonous, nor the task of judging one charged with betraying the country, including his triers, less susceptible to the influence of suspicion and rancor. The innovations made by the forefathers in the law of treason were conceived in a faith such as Paine put in the maxim that “He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach himself.” We still put trust in it.

Cramer v. United States, 325 U.S. 1, at *12-48 (U.S. 1945).

The American Student in Japan Who Tortured POWs Was a Traitor

A first generation Japanese-American was found guilty of committing treason during World War II. The Defendant had traveled to Japan on a US Passport in 1939. The Defendant started college in Japan in the March of 1941. The Defendant had renewed his US Passport twice and was registered with the Japanese police as an alien while in college. The Defendant did not finish school until 1943. Kawakita v. United States, 343 U.S. 717, 720-721 (U.S. 1952).

The Defendant was employed by the Oeyama Nickel Industry Co., Ltd. during the war as an interpreter. He never joined the Japanese Army. Id.

American POW’s who survived the Bataan Death March were used by Oeyama Nickel Industry Co., Ltd. for slave labor in a mine to process 200 carloads of ore a day. They were beyond sick and unhealthy. The Defendant did not simply act as a translator towards the POW’s. His actions included, “swearing at the prisoners, beating them, threatening them, and punishing them for not working faster and harder, for failing to fill their quotas, for resting, and for slowing down.” Kawakita, at *737.

The Defendant would have only been on trial as a war criminal if he had lost his US citizenship. However, the Supreme Court held the Defendant never lost his US citizenship during the war.

Justice Douglas stated:

There were two overt acts in this category. Overt act (a) as alleged in the indictment and developed at the trial was that in May, 1945, petitioner kicked a prisoner named Toland who was ill, because he slowed down in lifting pieces of ore rocks from the tracks at the factory to keep the tracks clear. Toland had suffered a dizzy spell and slowed down. Petitioner told him to get to work and thereupon kicked him, causing him to fall flat and to cut his face and hand. Another prisoner wanted to pick Toland up; but petitioner would not let him. Overt act (j) as alleged in the indictment and developed at the trial was that in May, 1945, petitioner struck a prisoner named Armellino, who was weak and emaciated, in order to make him carry more lead. Armellino had been carrying only one bucket of lead. Petitioner thereupon struck him, causing him to fall. When he got up, petitioner forced him to carry two buckets, pushing him along.

Each of these acts was aimed at getting more work out of the prisoners — work that produced munitions of war for the enemy, or so the jury might have concluded. The increased efforts charged in overt acts (a) and (j) were small; the contribution to the war effort of the enemy certainly was minor, not crucial. Harboring the spy in Haupt v. United States, supra, was also insignificant in the total war effort of Germany during the recent war. Yet it was a treasonable act. It is the nature of the act that is important. The act may be unnecessary to a successful completion of the enemy’s project; it may be an abortive attempt; it may in the sum total of the enemy’s effort be a casual and unimportant step. But if it gives aid and comfort to the enemy at the immediate moment of its performance, it qualifies as an overt act within the constitutional standard of treason. Chief Justice Marshall said in Ex parte Bollman, 4 Cranch 75, 126, “If war be actually levied, . . . all those who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors.” These two overt acts, if designed to speed up Japan’s war production, plainly gave aid and comfort to the enemy in the constitutional sense.

Kawakita, at *738-739.

There were other overt acts of cruelty to American prisoners of war.

Justice Douglas drove home the ruling with the following:

These were not acts innocent and commonplace in appearance and gaining treasonable significance only by reference to other evidence, as in Cramer v. United States, supra. They were acts which showed more than sympathy with the enemy, more than a lack of zeal in the American cause, more than a breaking of allegiance to the United States. They showed conduct which actually promoted the cause of the enemy. They were acts which tended to strengthen the enemy and advance its interests. These acts in their setting would help make all the prisoners fearful, docile, and subservient. Because of these punishments the prisoners would be less likely to be troublesome; they would need fewer guards; they would require less watching. These acts would tend to give the enemy the “heart and courage to go on with the war.”

Kawakita, at *741-742, quoting Lord Chief Justice Treby in Trial of Captain Vaughan, 13 How. St. Tr. 485, 533.

Skye Fall

Did Skye commit overt acts against the United States? Are there two witnesses to the same overt acts? Did Skye give aid and comfort to the enemy at the immediate moment of its performance?

The question is whether Skye provided aid to the enemy.

Skye’s actions of texting Miles with the Rising Tide are more than meeting someone for a drink or putting money in a safety deposit box like in Cramer v. United States, but not near the actions of the Defendant in Kawakita.

Skye might have had disloyal thoughts towards SHIELD in her belief that information should be free, but that would not make her a traitor.

The question is did she ever communicate anything to The Rising Tide at the moment of its performance (assuming the group is a threat to the United States such as Nazi Germany or a terrorist group)?

That answer might be yes. If Skye actually provided Miles with the information he sold to Centipede, she actively, though unknowingly, aided an international hostile group experimenting on human beings with the intention of giving them powers. Skye would have a weak defense if she claimed she did not know about the sale, only the goal that the information be freely available to all. This is a weak defense because freely available classified information in the hands of a terrorist group that is top secret is just as bad as the terrorists paying for the information. The bad guys still have the information. That means people will die.

However, it does not appear Skye actually gave Miles the information.

Skye claimed she only communicated with Miles, once after she joined SHIELD and before SHIELD’s attempt to arrest him. The direct support to Miles to help him escape arguably was providing aid and comfort to an international state enemy at the moment of his performance to avoid capture. This would definitely be more than an innocent message like Cramer, because Skye knew that Miles had hacked the information that had caused Chan to be captured. Moreover, these actions show Skye’s intent to betray not just SHIELD, but the United States.

Epilog: Thanks for Mentioning the Constitution

It was good to hear Miles say his rights were being violated after being arrested by SHIELD. Skye’s comment that SHIELD did not have time to observe Due Process was an oblique reference to the Public Safety Exception to Miranda Rights. While not a clean explanation, Skye basically justified SHIELD’s actions on the exigency to fly the 8,200 miles from Austin, Texas to Hong Kong to save Chan from Centipede. Time was of the essence to stop greater wrongs from happening.

That being said, SHIELD could still use a lawyer on call to answer these questions (like the ramifications of leaving a prisoner in a foreign country and giving his ill-gotten gains away). Jessica and I are available if the need arises.

The Mindy Project – a Model Show

By

Jessica_alegalgeek

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October 22, 2013

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I’m a big fan of sitcoms – popular ones, hip ones, old-lady ones – and my current favorite (now that 30 Rock is off the air) is The Mindy Project. Amy, Tina, and Mindy – my trifecta of amazing, incredible, funny role models. I adore them all.

Mindy is smart, funny, and very appealing. And the show keeps getting better and better (although they’re clearly strugglingto find the right girlfriend for Mindy). Danny and Mindy are the new Sam and Diane. We know they’re meant for each other but, in the meantime, they bicker while pining over exes. Danny’s ex-wife has been played on the show by the great Chloe Sevigny. As Christina, Chloe plays a photographer. And last week we found out that she took sexy photos of Danny during their brief effort to rekindle their romance.

Danny admitted that he signed a release but then went to a lawyer to see if he could stop Cristina from displaying the photos anyway. But the lawyer wasn’t any help. And that’s because Danny was in a tough spot. A model release is a type of contract, which usually signs over unlimited use of the photographs for lawful uses (display, advertising, etc.) and waives the subject’s right to inspect or approve the finished product. So if the agreement is valid (e.g., Danny understood what he was signing) and the release language is broad enough to cover displaying his image in an art gallery, then he can’t claim that Christina breached the terms of their agreement. And if he wanted to revoke the release (i.e., essentially tear up the release like it never existed), then he would have to claim that Christina fraudulently induced him into signing the agreement. And that’s a tough argument to make.

So Danny couldn’t stop Christina – no matter what he tried. And the office came out to support his Weiner Night. And everybody should take a lesson from this: no matter how much you think you love and trust someone, those dirty pictures are going to turn up somewhere eventually!

Remembering Tom Clancy

By

Josh Gilliland

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October 17, 2013

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I will miss having Tom Clancy in the world. Few people can study up on subject matter to become an amazing writer. Clancy represented what someone could do in their life through hard work and creativity. We should not forget he was an insurance broker before publishing The Hunt for Red October.

I was not the only lawyer to read Tom Clancy novels; many Judges did too.

Here are highlights of Court opinions referencing Tom Clancy:

As anyone familiar with the novels of Tom Clancy will know, a towed sonar array is a listening device dragged behind submarines and surface ships. Silence is essential; a noisy towed array reduces optimal sound detection and increases the possibility that enemy submarines and ships will go undetected.

Martin Marietta Corp. v. Gould, Inc., 70 F.3d 768, 770 (4th Cir. Md. 1995).

We suspect that if the arbitrator had truly wanted to hide bias, he would simply have kept his mouth shut. Tom Clancy novels do not have plots as thick as the one Smothers suggests.

Smothers v. Cigna Health Plans of Cal., 2001 Cal. App. Unpub. LEXIS 1330 (Cal. App. 4th Dist. Nov. 27, 2001).

Certain pro se cases consume more resources than others. Plaintiff’s Complaints, for example, have generated hundreds of pages of motion papers and affidavits from defendants. Were I to address each of plaintiff’s claims individually and each defendant’s corresponding arguments this Opinion would be the length of a Tom Clancy novel. However, the legal issues raised by plaintiff’s claims and defendants’ motions are not terribly complex. Furthermore, many [*6] of the defendants’ motions share common ground. Thus, for efficiency’s sake, I will address plaintiff’s claims and defendants’ motions in appropriate groups.

Jones v. Trump, 1997 U.S. Dist. LEXIS 7324, 5-6 (S.D.N.Y. May 22, 1997).

I’d say any nominees for Secretary of Defense, Secretary of State, Director of the CIA and Homeland Security should be questioned by the Senate on Tom Clancy books. Clancy’s view of what could be a threat often had a real chance of happening. Like how do defend against a plane crashing into the Capital Building during a joint session of Congress.

An interviewer asked Tom Clancy after the collapse of the Soviet Union what he was going to do for “bad guys” in his books.

Clancy’s answer was hauntingly true with, “There will always be bad guys.”

The man understood national defense, had great respect for the military and helped children with cancer. We certainly could use more people like him.

Eyes on Agents of SHIELD

By

Josh Gilliland

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October 16, 2013

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The fourth episode of Agents of SHIELD “Eye Spy” presented several legal issues for criminal activity in foreign countries. How exactly would former Agent Akela Amador get a fair trial for the crimes she committed?

I Had a Bomb in My Eye Defense

Agent Amador had been very busy stealing diamonds and Lord knows what other crimes. A defense attorney would be able to look a judge right in the eye and say, “She had a bomb in her head.”

In a blink of an eye, we have the necessity defense.

Everything Amador did was done while she was under the control of whoever was controlling The Englishman, because 1) her controller could see through her right eye; 2) Amador felt pain when she did not comply with orders and 3) the bionic eye contained an explosive device for a fail safe.

Judge Robert Boochever summarized the necessity defense as follows:

Necessity is, essentially, a utilitarian defense. See Note, The State Made Me Do It: The Applicability of the Necessity Defense to Civil Disobedience, 39 Stan. L. Rev. 1173, 1174 (1987). It therefore justifies criminal acts taken to avert a greater harm, maximizing social welfare by allowing a crime to be committed where the social benefits of the crime outweigh the social costs of failing to commit the crime. See, e.g., Dorrell, 758 F.2d at 432 (recognizing that “the policy underlying the necessity defense is the promotion of greater values at the expense of lesser values”) (citation omitted). Pursuant to the defense, prisoners could escape a burning prison, see, e.g., Baender v. Barnett, 255 U.S. 224, 226, 65 L. Ed. 597, 41 S. Ct. 271 (1921); a person lost in the woods could steal food from a cabin to survive, see Posner, An Economic Theory of the Criminal Law, 85 Colum. L. Rev. 1193, 1205 (1985); an embargo could be violated because adverse weather conditions necessitated sale of the cargo at a foreign port, see The William Gray, 29 F. Cas. 1300, 1302 (C.C.D.N.Y. 1810)(No. 17,694); a crew could mutiny where their ship was thought to be unseaworthy, see United States v. Ashton, 2 Sumn. 13, 24 F. Cas. 873, 874 (C.C.D. Mass. 1834)(No. 14,470); and property could be destroyed to prevent the spread of fire, see, e.g., Surocco v. Geary, 3 Cal. 69, 74 (1853).

United States v. Schoon, 971 F.2d 193, 196 (9th Cir. Cal. 1992).

Defendant Amador could point to her eye patch and eye-bomb debris as Exhibits A and B to show she was under duress to commit international crimes. Exhibit C could be the body of The Englishmen to prove what would have happened to her for non-compliance. It would be extremely difficult to rule against Amador for the crimes she committed while being controlled through pain and threat of death.

However, as Amador’s body count goes up (she did after all kill a bunch of guys), her defense would be significantly weakened. Killing innocents out of necessity is something Courts would not give a free pass to a Defendant, no matter how creepy the red masks.

Skye is a Peeping Tom

The final moments of the episode show Skye is not just a hacker, but a Peeping Tom.

Skye “life hacks” Agent Ward’s own vision, which enabled her to see through his eyes. Just to make life interesting, this privacy invasion also includes x-ray vision: Skye could see Ward naked (and anyone else Ward was looking at).

Skye is a very bad girl.

Ward and anyone within his field of vision would have multiple invasion of privacy claims against Skye. HR would also have a field day with the sexual harassment allegations.

Agent Ward could demonstrate that Skye violated his right to privacy by showing the following:

1) Ward had a reasonable expectation of privacy in his own eyes and everything he sees in private, such as himself naked;

2) Skye intentionally intruded into Ward’s vision;

3) Skye’s intrusion would be highly offensive to a reasonable person; and

4) Ward would be harmed if he learned of such invasion, let alone the damage to manager-direct report employment relationship.

See generally, 3-18 California Forms of Jury Instruction 1800.

It is unlikely Ward could prevail on a cyber-stalking claim, because most cyber-stalking statutes require electronic communications. See, Fla. Stat. § 784.048(c), “Cyberstalk” means to engage in a course of conduct to communicate, or to cause to be communicated, words, images, or language by or through the use of electronic mail or electronic communication, directed at a specific person, causing substantial emotional distress to that person and serving no legitimate purpose, or Miss. Code Ann. § 97-45-15(a) Use in electronic mail or electronic communication any words or language threatening to inflict bodily harm to any person or to that person’s child, sibling, spouse or dependent, or physical injury to the property of any person, or for the purpose of extorting money or other things of value from any person.

Skye was stalking Ward with his own eyes by electronic means, however she was not sending him messages, thus missing an element of the violation.

Finally, while Skye did have a valid HR claim against Agent Ward after being told to use a water bottle for bathroom facilities, “life jacking” Ward’s vision was not the proper response. Go to HR with such claims.