The Constitutional Law Issues of Iron Man 3

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May 10, 2013

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.

The Legal Geeks and the First Annual Geekie Awards

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Josh Gilliland

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May 6, 2013

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The Geekie Awards are starting up an annual award to honor indie creations in several categories, including podcasts. And we’re up for a Geekie Award for our podcast where we discussed Star Wars and superheroes with our special guest (and Star Wars expert), the Honorable Matthew Sciarrino, Jr. Check it out!

May the 4th: A Discussion on the Biggest Legal Issues in Star Wars

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Josh Gilliland

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May 4, 2013

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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.

Happy Law Day!

By

Josh Gilliland

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May 1, 2013

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May 1 is Law Day.

President Eisenhower first proclaimed Law Day in 1958 to honor the rule of law in the United States.

President Eisenhower had seen with his own eyes the horrors of a society that suppressed the freedoms of speech, religion, and basic civil liberties.

It is fitting that Eisenhower, despite being a general and not a lawyer, proclaimed the first Law Day.

The 2013 ABA Law Day theme focuses on civil rights and equality. The history from the Civil War to the Civil Rights Movement is long and has many heroes. May 1 is a day to remember those who endured tube feedings for the right to vote, suffered under convict leasing and faced fire hoses for civil rights.

What Law is Being Kept on Defiance?

By

Josh Gilliland

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April 28, 2013

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What law is Joshua Nolan keeping in Defiance?

The story of Defiance takes place in the not-too-distant future.

The Earth was terraformed in a war with aliens called Votans, literally wiping out cities and governments.

An armistice is entered between the races, not necessarily meaning peace, but an end to war.

So, what is the law in the former city of St. Louis if the city, state of Missouri and the government of the United States no longer exist?

Defiance appears to be a city-state, such as Sparta, comprised of humans and different races of Votans.

Moreover, the city was protected by a force shield, again pointing towards the status as a city-state.

There are references to a town charter which is the controlling government document. This could be evidence of a “constitution.”

The city charter appears to mirror the US Constitution allowing for religious and cultural freedoms.

This was demonstrated by a Castithan ceremony punishing/torturing a Castithan who acted cowardly in a battle (which likely also violated the law, but was tolerated for political stability). However, given the nature of the torture, the Castithan is arrested for his own protection on the charge of loitering.

Loitering is the criminal offense of remaining in a certain place for no apparent reason. (See, Black’s Law Dictionary App). Loitering statutes are generally held to be unconstitutionally vague. Id.

For example, the City of St. Louis once had § 765.010, Ordinance 50549 of the Revised Ordinances of the City of St. Louis, 1960, which stated:

“No person shall loiter at the corner of streets, or in the vicinity of any place of amusement, or hotel, or public building, or thoroughfare, and refuse to disperse or vacate such places when requested so to do by a police officer.”

St. Louis v. Burton, 478 S.W.2d 320, 321 (Mo. 1972).

This law prohibiting “wandering the streets” was constitutionally prohibited on grounds of both vagueness and overbreadth. Burton, 478 S.W.2d 320, 323 (Mo. 1972).

Charging the victim with loitering again points to Defiance being a city-state. There are no state crimes being violated, other than the laws of the city itself. Moreover, with the undefined city charter of Defiance, and the lack of the US Constitution, it is unknown whether a court would find a law prohibiting loitering in Defiance to be valid.

However, there is a significant argument against Defiance being a city-state: There is an agreed upon currency which is used by others outside of Defiance. Currency is issued by a government, and usually backed so it has value, opposed to gold or silver. And where there is a government issuing currency, there are also laws.

Which brings us back to the original question: what is the law of Defiance? It appears to be that outlined by the city-charter and government. It could be a stand alone city-state in a “territory” of the former United States, perhaps explaining the use of currency. However, given the destruction of the Pale Wars, it is unknown what former US Jurisprudence survived or why currency has value.

We do know this: the Mayor’s sister is a prostitute who runs the local brothel/bar, which is a class C felony in Missouri today. § 567.060 R.S.Mo.

And that is strong evidence that Defiance is a city-state, because only a state could issue such a law.

The Public Safety Exception to Miranda Rights

By

Josh Gilliland

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April 21, 2013

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Boston cityscape at night — Panoramic view of Boston cityscape at Fan Pier Park at night, USA

The capture of the one of the Boston bombing suspects has given the country a crash course in exceptions to Miranda rights. Many people are not familiar with the “public safety” exception to the well known Miranda rule.

Miranda was the result of a long line of cases that bars the government from using the statements of a defendant made during a custodial interrogation, to prove the case against the defendant, provided the statements were made before the defendant was told of their rights to remain silent and to an attorney. See, Miranda v. Arizona, 384 U.S. 436, at 444 (1966). The goal of this “exclusionary rule” is to prevent unlawful police conduct.

The Miranda Court specifically held:

Accordingly we hold that an individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation under the system for protecting the privilege we delineate today. As with the warnings of the right to remain silent and that anything stated can be used in evidence against him, this warning is an absolute prerequisite to interrogation. No amount of circumstantial evidence that the person may have been aware of this right will suffice to stand in its stead. Only through such a warning is there ascertainable assurance that the accused was aware of this right.

Miranda v. Ariz., 384 U.S. 436, 471-472 (U.S. 1966).

The 1984 case of New York v. Quarles, 467 U.S. 649 (1984) created the “public safety” exception to Miranda. The Supreme Court in Quarles held that “overriding considerations of public safety” could justify a failure to provide Miranda warnings before initiating custodial interrogation. 467 U.S. at 651.

The April 13, 2013 case US v. Hodge, addressed whether the public safety exception applied to a defendant who made statements about a pipe bomb. The Hodge court provided the following summary of the “public safety” exception to Miranda:

[Q]uestioning is permissible when “officers have a reasonable belief based on articulable facts that they are in danger.” United States v. Talley, 275 F.3d 560, 563 (6th Cir. 2001). Determining whether an officer’s belief was “reasonable” requires “consideration [of] a number of factors, which may include the known history and characteristics of the suspect, the known facts and circumstances of the alleged crime, and the facts and circumstances confronted by the officer when he undertakes the arrest.” United States v. Williams, 483 F.3d 425, 428 (6th Cir. 2007). As this is an objective standard, the court reviews the reasonableness of an officer’s belief de novo. Talley, 275 F.3d at 563.

United States v. Hodge, 2013 U.S. App. LEXIS 7848, at *14 (6th Cir. Mich. 2013).

The Williams court stated the following test for applying the Quarles exception to guns:

The police officer has to have a reason to believe:

(1) That the defendant might have (or recently have had) a weapon, and

(2) That someone other than police might gain access to that weapon and inflict harm with it.”

Hodge, at *14, citing Williams, 483 F.3d at 428.

The Williams test is phrased in mandatory terms, because “The public safety exception applies if and only if both of those two conditions are satisfied and no other context-specific evidence rebuts the inference that the officer reasonably could have perceived a threat to public safety.” Hodge, at *14.

The Hodge court rejected the Williams test as applying to a pipe bomb for the following reasons:

[I]n a case involving a bomb, the presence of third parties who can access the bomb is usually not a compelling consideration. Bombs are potentially unstable and may cause damage if ignored or improperly handled by the police. We therefore agree with the government that Williams should be limited to situations where the “weapon” in question is one that a person must physically handle in order for it to present a threat to officers.

Hodge, at *15.

The holding in Hodge was based on the types of questions asked by the police to the defendant: Was there “anything in the house that could get anyone there hurt” and questions after the defendant said a bomb was in the house. Hodge, at *17. The Court stated the following on the application of Quarles to the Hodges facts:

As to the first set of questions, Gandy and Pierce had a “reasonable belief” that there was a pipe bomb in Hodge’s house when they arrived to execute the search warrant. Banks, the named informant, claimed that Hodge possessed a pipe bomb that could “blow up the entire house” if detonated and that he intended to hurt police if confronted. The relatively limited inquiry Gandy and Pierce made was appropriately tailored to the information they possessed. Once Hodge admitted the bomb was in the home, the questions Gandy and Robinson asked him were all directed to obtaining information about the bomb’s construction and stability. Both Khalil and Spoerke deemed such questions acceptable even though there was no evidence that a third party could access the bombs. Accordingly, we conclude that the district court did not err in finding that Hodge’s statements about the bomb, as well as the bomb itself, were admissible under Quarles.

Hodge, at *17-18.

The tragedy in Boston is a live case. How a court rules will turn heavily on the facts and the types of questions asked of the defendant. With that stated, the result in Hodge should provide a court significant guidance in determining whether the public safety exception applies to a defendant who has not been advised of his rights to counsel and against self-incrimination.

I personally believe that there must be clear reasons for invoking the public safety exception to Miranda. Finding bombs left in public or in a home where a search warrant is being executed are two such reasons. To put it simply, bombs put lives at risk. There is nothing hypothetical about the danger.

However, trying to compel a defendant to name others, or questions of motive, might be a violation of the exception to Miranda in the eyes of some judges, because the interrogation is going beyond “overriding considerations of public safety” such as the location of a gun or bomb.

The 5^th Amendment right against self-incrimination and the 6th Amendment right to counsel are hallmarks of the United States legal system. We passed them as Constitutional Amendments as a testament to values we believe in as a nation. There is a substantial body of case law because our Constitution and Bill of Rights is what separates us from the police states of Nazi Germany or the Soviet Union we fought against during our finest hours of the 20^th Century. Moreover, the prose of Supreme Court Justice Black in Gideon is something no one should forget: The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. Gideon v. Wainwright, 372 U.S. 335, 344 (U.S. 1963). Informing someone charged with a crime of their Constitutional rights is not selectively applied depending on the crime committed; informing those charged with a crime of their rights is what makes us the United States. Deviating from Miranda should only be done with careful thought of the risks to public safety.

There will be much commentary in the days and months ahead on this case. Expect to hear precedents such as Miranda, Quarles and Hodge discussed by attorneys as this issue is resolved before a judge.