I Was Just Following Orders on the USS Vengeance

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June 5, 2013

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?

Bow Ties Are Forever

By

Josh Gilliland

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June 3, 2013

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Bow ties wearing guys like me owe Matt Smith of Doctor Who a debt of honor for “Bow Ties Are Cool.”

Smith’s run on Doctor Who has been an amazing adventure not just across time and space, but causing an explosion in bow tie popularity.

Case in point: One store reported a 94% increase in bow tie sales after Matt Smith’s first episode on Doctor Who.

This might be the biggest influence a science fiction TV show has had on men’s fashion.

The bow tie is the traditional “uniform” for judges, lawyers and doctors. I started wearing bow ties in January 2007 and my blog Bow Tie Law in 2008. I had entered the world of the eDiscovery speaker circuit several months before. Not being shy, nor afraid to show off my geek side, I started wearing bow ties to stand out on panels. I did not want to be just another lawyer discussing electronically stored information, the form of production and document review best practices. I even wrote an advanced eDiscovery seminar that highlighted the history of bow ties in pop culture and the law entitled “Bow Ties Are Cool” as a tribute to Doctor Who and bow tie wearing lawyers.

My mock trial students wear matching bow ties and scarves as a display of team unity. It does not hurt many of the students are also Doctor Who fans.

Matt Smith, thank you for “Bow Ties Are Cool.” Those four words have done wonders for those of us who wear bow ties. I look forward to the Doctor Who 50th Anniversary and Christmas Specials. Best of luck in your future endeavors.

Geeky girls and Star Trek

By

Jessica_alegalgeek

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June 1, 2013

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I finally saw Star Trek Into Darkness! Yes, I know it took me a shamefully long time to see it (it’s debatable whether I should still be allowed to call myself a Trekkie), but work and family got in the way. So I just saw it and I loved it, even though I will admit I’m a pretty easy audience – seeing the ship and watching Spock act logically is enough to make me happy. I also have to announce that I am now a huge fan of Benedict Cumberbatch (once again, I’m behind the times but I am going to watch Sherlock immediately).

On the other hand, it’s hard to watch Star Trek without cringing a little at the lack of female characters. A friend sent me a link to an article last week about a controversy over a woman in the movie, although I refused to click on that link until today (I didn’t want any spoilers). I was actually surprised to see that the article dealt with Alice Eve’s (completely gratuitous) underwear scene in the movie because that scene didn’t bother me. Sex (and sexy stuff) has always been part of science fiction and I don’t mind that tradition continuing – so long as it goes both ways. I would have liked a gratuitous scene involving Kirk or Cumberbatch without a shirt on (more than just a glimpse) – and they had that scene but then cut it. Why?!

No, what bothered me about the movie – and it’s an issue that comes up a lot for me as a sci fi geek – is the lack of strong female characters in the movie. Zoe Saldana is tough and smart and she gets some action, which is great, but she’s the only strong woman in this movie. Alice Eve is supposed to be a brilliant physicist/weapons expert but most of her time on screen involves her being the sexy blonde damsel in distress. And besides the two of them there’s not a woman of note in the entire movie. There are some women you see briefly but the rest of the first and second tier characters are all men.

Yes, I know they’re trying to stay true to the original cast, where Uhuru was the only woman among the primary characters. But why not have more of the Starfleet command be women? Or even more of the Enterprise crew? As a geeky girl, it’s frustrating to see so few women in prominent roles in sci fi movies (and many of my sci fi books). And is it too much to ask for more women in leading roles?

Women can be the lead – look at some of the fantasy-based movies like Resident Evil and Underworld. And there’s always the incredibly awesome Buffy the Vampire Slayer. But on the science fiction side, I can’t think of many good examples. I love Princess Leia and Uhura, and I appreciate them upgrading Dejah Thoris for the John Carter movie, but I would really like a future where there’s not just one strong female per science fiction movie. As a geeky girl, I ask you to help me, future sci fi screenwriters of the world…you’re my only hope!

Psych Season Finale & An Attorney's Duty of Loyalty

By

Josh Gilliland

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May 30, 2013

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I love Psych. It speaks to my 1980s inner geek.

The season finale of Psych highlighted an attorney’s duty of loyalty to his client. If you have not seen the episode, there are spoilers ahead.

Here is the basic overview of the attorney’s actions: 1) Conspiracy to Steal from Client; 2) Murder; 3) Faked own Death for Alibi; 4) Tried Escaping to Rio (not to mention taking the name of Duran Duran in vain).

A California’s attorney duties are defined, in relevant part, as follows:

(a) To support the Constitution and laws of the United States and of this state.

(b) To maintain the respect due to the courts of justice and judicial officers.

(c) To counsel or maintain those actions, proceedings, or defenses only as appear to him or her legal or just, except the defense of a person charged with a public offense.

(d) To employ, for the purpose of maintaining the causes confided to him or her those means only as are consistent with truth, and never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law.

(e)

(1) To maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.

Cal Bus & Prof Code § 6068.

Besides the obvious crimes of murder, the attorney committed the following ethical violations:

1) Breached his duty of loyalty to his client by entering a conspiracy to steal from her;

2) Breached his duty to protect his client’s confidences, namely, what was in her safety deposit box; and

3) Allowed third-parties in the conspiracy to have access to her client files.

The California State Bar would outright disbar the fictional attorney for his actions (in addition to the criminal charges). In one disbarment case involving the misappropriation and theft of funds, the Court found the following:

Petitioner’s misappropriation of client funds alone constitutes a serious ethical and moral violation, breaches the high duty of loyalty that attorneys owe their clients, and puts in peril the public confidence in the practice of law. This court has long held that, absent compelling mitigating circumstances, misappropriation of client trust funds by an attorney warrants disbarment.

The Standards for Attorney Sanctions for Professional Misconduct (Rules Proc. of State Bar, div. V, hereafter Standards; all further references to standards are to this source) similarly suggest that the willful misappropriation of entrusted client funds should result in disbarment unless the funds are insignificantly small or the most compelling mitigating circumstances clearly predominate.

B. Criminal Convictions.

Not only did petitioner steal from clients, his dishonesty in his personal life resulted in several convictions for crimes of moral turpitude.

Under sections 6101 and 6102 of the Business and Professions Code, disbarments, and not suspensions, have been the rule rather than the exception in cases of serious crimes involving moral turpitude, the purpose of the statutes being to protect the public, as well as the courts and the legal profession. The crimes of which petitioner was convicted (three counts of grand theft and three counts of forgery) are serious crimes and warrant disbarment. As stated by this court in In re Smith (1967) 67 Cal.2d 460, 462 [62 Cal. Rptr. 615, 432 P.2d 231], the crime of “grand theft . . . [has] been recognized to involve heinous misconduct for an attorney, and in In re Urias [1966] 65 Cal.2d 258, 262, fn. 5 [53 Cal. Rptr. 881, 418 P.2d 849] . . . we noted that the vast majority of grand theft convictions of attorneys since that date [1955] have resulted in disbarment or resignation with prejudice.'” (67 Cal.2d 460, 462-463.)

Stanley v. State Bar, 50 Cal. 3d 555, 565-566 (Cal. 1990).

It does not take a psychic to foresee why attorneys who commit crimes are subject to disbarment: attorneys are entrusted with upholding the law and protecting the rights of their clients. One who willfully engages in capital crimes such as murder and high crimes such as grand theft, need to have their Bar cards publicly shredded.

With all of that said, watching Shawn and Gus meeting a State Bar Attorney would not be as entertaining as eating a snow cone in a high speed chase.

In case any of the writers or producers read this post, Jessica and I are available for creative consulting on any shows involving lawyers. I’ll also teach bow tie lessons.

The Wrath of a Court Scorned

By

Jessica_alegalgeek

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May 25, 2013

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I love Star Trek. If you’re reading this blog, you already know that. And you also know that I really love judges who quote Star Trek. Star Trek has inspired many judges, but never to the extent that was recently on display by Judge Wright, a federal district court judge in California in his opinion, Ingenuity 13 LLC v. John Doe.

Judge Wright began his opinion with Spock’s famous quote from Star Trek II: The Wrath of Khan: “The needs of the many outweigh the needs of the few.” And while I’ve come across several other court opinions that reference that line, I’ve never seen an opinion that actually starts off with that quote…above the introduction. He also works in references to redshirts, the prime directive, and boldly going places. (His great use of Trek references has even resulted in another e-discovery attorney/blogger outing himself as a fellow Trekkie.)

The opinion addresses plaintiffs’ lawyers abusing copyright laws to essentially extort money from defendants accused of illegally downloading a single pornographic video. When ordered by the court to support their cases, the lawyers lied to and/or refused to answer the court. The court also found clear examples of fraud by the plaintiffs’ attorneys and their clients.

As a result of these bad acts, the court ordered payment to the defendants of $81,319.72 in attorneys’ fees (doubled from the actual cost as a punitive cost). The court also referred them to the appropriate bar ethics committees, the IRS, and the US Attorney.

Plaintiffs had 14 days from May 6, the day of the original order, to pay the fees ordered. That deadline was up four days ago and they still haven’t paid up – filing instead a variety of papers without success in the district court and in the Ninth Circuit. As a result, the court has now added on an additional $1,000 a day for every day they fail to pay. The Wrath of Judge Wright continues…

A Lawyer Goes to Big Wow! ComicFest

By

Josh Gilliland

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May 20, 2013

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Josh&VegasPG_9746 — Josh with Vegas PG. She might have been a Star Fleet Jag Officer.

Big Wow! ComicFest was May 18 & 19, 2013.

It was the first purely comic convention I had attended in years (My first “geek” convention was Time Con 1985).

I can say no legal conference I have attended has had any attendees in cosplay.

Granted, the “document review attorney” or “certified computer forensic expert” costumes might not be as entertaining as Power Girl or Conan the Barbarian.

Boston Metaphysical Society

I picked up the first two issues of Boston Metaphysical Society and talked with the author Madelene Holly-Rosing. It is a 19th Century steampunk detective story involving paranormal activity in 1895. The story is a six-part mini-series with fictionalized historic figures of Alexander Graham Bell, Thomas Edison, Nikola Telsa and Harry Houdini (founders of B.E.T.H.). Think Steampunk Ghostbusters & The League of Extraordinary Gentlemen rolled into a well-written detective story. Truly a good read.

The legal issues that came to me while reading the story, would be how to limit the personal liability for the founders of B.E.T.H. Granted, the 1890s was a relatively safe era to engage in clandestine operations of intellectual titans with a low threat of lawsuits. However, any competent attorney would want to form a corporation to limit personal liability of the founders. Moreover, they would want adequate insurance, if metaphysical insurance can be purchased.

It also goes without saying having Alexander Graham Bell, Thomas Edison and Nikola Telsa all have intellectual property they would want to protect. All should consider Non-Disclosure and Non-Competitive Agreements. An attorney would also want to look at the Sherman Antitrust Act of 1890 to ensure Edison and Telsa do not create a monopoly on electrical power.

Around the Exhibit Hall

The Exhibit Hall had many talented artists, writers and dedicated cosplayers. The Exhibitors also were markedly different from the legal technology shows I have attended, because it is easier to sell collectables on an exhibit hall floor over six-figure software.

I was very impressed with the Exhibitors. They had the art of commerce down, with credit card transactions on iPads and Blackberrys.

They were also a lot of fun to talk to.

Panel Discussions

The panel discussions included everything from the History of TV Horror Hosting to Drawing Without Paper, to making cosplay costumes and a tribute to Bob Wilkins.

I had proposed my Legal Geeks seminar on Han’s Legal Justification for shooting first, Firefly & Contract Law, Red Shirts & Assumption of Risk, plus other topics, but never heard back from the organizers. Next time.

There’s Only One Way to Rock

I was very impressed that the attendees really knew how to rock out. There were some amazing singers who took the mic in Rock Band, gathering a crowd while they played. Two of them were truly awesome as they sung Don’t Stop Believing and Under Pressure.

Until Next Time

I enjoyed attending Big Wow! ComicFest to see what makes a show outside of the legal/eDiscovery world successful. Both have a lot in common with having an exhibit hall and panel discussions. However, the “geek” conferences have far more creative ability to “think outside the jury box” when it comes to innovation.

Legal conferences will always have a serious tone, because that is the nature of the practice of law. Clients come to lawyers because they need real help. With that said, those in the legal world should look at ways to capture the creative energy of a comic book convention in planning a conference.

The Constitutional Law Issues of Iron Man 3

By

Josh Gilliland

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May 10, 2013

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This post has spoilers on Iron Man 3, so cease and desist all reading if you want to be “surprised” in the the movie.

Iron Patriot & The War Powers Act

The Iron Patriot presents a “small” Constitutional Law issue, if you consider ordering military action on foreign countries small. Arguably, the President would have to inform Congress every time the Iron Patriot was sent into “hostilities or imminent danger” within 48 hours, because he is 1) an Air Force Officer and 2) Carrying out Presidential orders in the defense of the United States.

The War Powers Act of 1973 reporting requirements in Section 4 state:

(a) In the absence of a declaration of war, in any case in which United States Armed Forces are introduced–
(1) into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances;
(2) into the territory, airspace or waters of a foreign nation, while equipped for combat, except for deployments which relate solely to supply, replacement, repair, or training of such forces; or
(3) in numbers which substantially enlarge United States Armed Forces equipped for combat already located in a foreign nation; the president shall submit within 48 hours to the Speaker of the House of Representatives and to the President pro tempore of the Senate a report, in writing, setting forth–
(A) the circumstances necessitating the introduction of United States Armed Forces;
(B) the constitutional and legislative authority under which such introduction took place; and
(C) the estimated scope and duration of the hostilities or involvement.

Based on the Iron Patriot’s status in the military and reporting to the President, Congress would need to be alerted each time the Iron Patriot was sent into a military engagement.

The bright side of deploying the Iron Patriot is it is unlikely any military action would last long enough to require Congress to authorize the use of additional funds. The downside is use of the Iron Patriot runs the risk of starting a war if a foreign country is not keen on a US super soldier flying in and blowing things up on Presidential orders.

Congress would also have to consider whether a “force bill” that authorized the use of the Iron Patriot against foreign threats would be required. Such force authorization could mirror the ones issued against the Barbary Pirates or War on Terror. However, domestic use of the Iron Patriot runs the risk of violating Posse Comitatus Act, since James Rhodes is in the Air Force.

The Vice President & Impeachment

Iron Man 3 presents a large Constitutional issue: the Vice President has the loveable qualities of loyalty demonstrated by Aaron Burr and John Calhoun.

This loyalty was not to country, by to his own self interest that rose to the level of high crimes and misdemeanors.

And we are not talking about lying in a civil deposition.

One of the “big reveals” in Iron Man 3 is the fictional Vice President is part of the criminal conspiracy to kill the fictional President of the United States. This includes multiple acts of terrorism and the destruction of Air Force One.

The only motive alluded to is the VP’s young daughter or granddaughter is missing part of her leg. Apparently, the entire motive for a coup d’état and large scale murder is to grow a child a new leg below her knee. Huge body count to give a child a leg.

The fictional Vice President’s crimes raise several procedures for his prosecution. The film ends with his arrest, but simply arresting the Vice President is not enough: The Vice President would have to be impeached to be removed from office.

Impeachment of the President or Vice President is defined under Article II, Section 4 of the Constitution, which states the President or Vice President “shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

The articles of impeachment against the Vice President would have to be drafted by the Judiciary Committee in the House of Representatives, voted on by the full House, and then the case tried in the Senate with the Chief Justice of the Supreme Court presiding over the trial. House members would act as the prosecutors.

Treason is defined under Article III, Section 3 of the Constitution, which states, “Treason against the United States, shall consist only in levying War against them, 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.”

The Vice President would have a strong case of treason against him for supporting a terrorist organization, which would be giving aid to the enemies of the United States.

Moreover, there are additional high crimes against the Vice President, such as the criminal conspiracy to assassinate the President and destruction of government property (Air Force One).

Other crimes carried out by AIM would also be attributable to the Vice President, because they were carried out in furtherance of the conspiracy. This would include kidnapping, torture, illegal medical experimentation on human beings, along with the many deaths in the terrorist attacks.

Once the Vice President was removed from office, the President would then have to nominate a candidate for Vice President, who would need to be confirmed by a majority vote in both Houses of Congress. (See Section 2 of the 25 Amendment to the US Constitution).

However, none of this would be as exciting as Iron Man flying around and blowing things up. Simply put, the Chief Justice’s gavel is not like the Hammer of Thor.

And that would be pretty awesome.