Join Jessica Mederson and Joshua Gilliland on a fantastic voyage as they discuss the science fiction contributions of Isaac Asimov.
Isaac Asimov Solves Mysteries Like a Lawyer
Isaac Asimov was amazing. Brilliant, inventive, and prolific, he coined the terms “robotics” and “positronic” (later used by Star Trek with full credit to Asimov). He also invented the Three Laws of Robotics (subsequently turned into four laws by the great robot Giskard). He wrote or edited over 500 books, notable among them the I, Robot stories, the Foundation Trilogy, and the Robot series (featuring robot detectives). He was also a professor of biochemistry who wrote non-fiction books as well.
I first read his Robot series as a kid, after I finished the John Carter books. I knew Asimov loved science and science fiction, but I didn’t realize how much he loved mysteries until just recently.
Last time I was at the library I found a book he wrote much later in life, Tales of the Black Widowers (followed by The Return of the Black Widowers). These books were a compilation of short stories, all featuring a group of six men who would gather in a private dining room for dinner. To each dinner they would invite a guest with a mystery to pose to the assembled audience.
As a lawyer, this format is familiar to me: a guest is on the hot seat, questioning is usually led by one of the dinner’s members, with objections and arguments raised by other attendees. Each dinner would even be hosted by one of the members, who could rule on the other attendees’ objections. These dinners could be depositions or courtroom testimony.
The Tales of the Black Widowers and my profession have more than just a similar format in common. In one story regarding a supernatural event, the guest quotes the famous Sherlock Holmes line: How often have I said to you that when you have eliminated the impossible, whatever remains, however improbable, must be the truth. Judges (at least thirteen of them), have also quoted this line in addressing cases before them, sometimes skeptically. For example, in one case, the ALJ whose decision was being reviewed, had said, “There remains however, grossly improbable, uncontradicted testimony, which on the admonition of Sherlock Holmes, must be the truth.” See Walgreen Co. v. N.L.R.B., 509 F.2d 1014 (7th Cir. 1975).
Of course, Asimov actually took this opportunity to show that Holmes’ admonition falls apart if the witness is lying. After the guest had convinced all of the Black Widowers that his supernatural story was true (because the supernatural was only improbable, not impossible), the waiter had to call the guest out as a liar. In an Afterword to that story, Asimov explained that he wrote this story because, in his words, “As far as I am concerned, if, when everything impossible has been eliminated and what remains is supernatural, then someone is lying.”
The same is true in the law, particularly in e-discovery. Parties will often claim that discovery obligations or requests are impossible. See, e.g., Ingersoll v. Farmland Foods, Inc., 2011 WL 1131129, at *19 (W.D.Mo.,2011) (“Defendant indicates that it would be impossible for it to search, review, and then produce documents by February 18.”). But when parties lie, the system (just like Sherlock’s quote) doesn’t always work. In the e-discovery world, in particular, there have been some notable cases where parties have lied about their discovery efforts. See, e.g., Victor Stanley, Inc. v. Creative Pipe, Inc., 269 F.R.D. 497, 531 (D.Md. 2010); Rimkus Consulting Group, Inc. v. Cammarata, 688 F.Supp.2d 598 (S.D. Tex. 2010).
In Rimkus and Victor Stanley, of course, the lies were caught out. But Asimov’s supernatural short story has a reminder for all lawyers (and finders of fact). While Sherlock’s quote is still good to keep in mind, we can never forget Asimov’s point: Eliminate the impossible, consider the improbable, but always remember to question the source itself.
Brewster's Millions: Can Great Uncle Horn Really Control Him From Beyond the Grave?
I love Richard Pryor. And most everyone agrees that he’s one of the best stand-up comedians of all time. But his movies don’t get enough respect. This may be an embarrassing confession, but I love his movies – Superman III, the buddy movies with Gene Wilder, and, most importantly…Brewster’s Millions.
For those of you who haven’t seen this awesome movie, it’s about a down-on-his-luck minor league pitcher, Monty Brewster (Pryor himself) who learns that Great-uncle Horn was a multi-millionaire who just passed away (making him somewhat of a laughing heir). Uncle Horn didn’t want Monty to waste his inheritance, however, so he put a condition on his will: Monty would inherit $300 Million if he could spend $30 Million in 30 days with nothing to show for it (and he couldn’t tell anyone what he was doing).
The movie has a great supporting cast. John Candy is his best friend, Spike (is Kevin James the new John Candy?), and Jerry Orbach plays his team manager (although he’ll always be Baby’s father to me). Finally, Larry Tate of Bewitched (aka David White) plays the big bad lawyer who was trying to sabotage Monty’s chances (why is it always a lawyer?).
Legally, could Uncle Rupert do that to Monty? Courts are concerned with what they call “dead hand” control of property. The original concern, which arose in the 17th century, was focused on preventing the dead hand of landowners from controlling what future generations could do with real property. From that concern evolved the always-confusing Rule against Perpetuities, which says that no interest in an estate’s assets is good unless it vests, if at all, no later than 21 years after some life in being at the creation of the interest. What that means has been the subject of many court decisions and legal articles, so I’m not going to get into a discussion of it here.
With or without the Rule Against Perpetuities, people have been trying for years to impose control on future generations by putting all kinds of different conditions in their wills.
A truly gross one involved a hatmaker who died in 1871 and left his body to science. But he also stipulated that two drums had to be made out of his skin and given to a friend on the condition that every June 17 at dawn he would pound out the tune “Yankee Doodle” at Bunker Hill to commemorate the anniversary of the famous Revolutionary War battle. The rest of his body was “to be composted for a fertilizer to contribute to the growth of an American elm, to be planted in some rural thoroughfare.” Disgusting as that was, he probably couldn’t force anyone to follow through with this (and I couldn’t find out if they actually did follow through with it).
In another case, a misogynistic man wanted all of his money to go to a male-only library (male authors, male members) and left only $5 to his daughter. His daughter fought this directive in case and eventually had the will overturned.
Wills that try to restrict future generations’ ability to marry certain groups – or practice certain religions – are generally held invalid by courts. Just a few years ago, however, the Illinois Supreme Court evaluated once again whether someone could restrict bequeaths to those grandchildren who married within the faith (or who had spouses that converted within a year). In re Estate of Feinberg, 919 N.E.2d 888 (Ill. 2009). The court eventually decided that the will’s provisions were acceptable, but that was largely because of technical issues related to the way the estate was set up.
In Brewster’s Millions, because the condition was immediate (as opposed to years in the future) and it didn’t impact Monty’s ability to marry or practice the religion of his choice, it would probably be found a legitimate condition to impose on somebody who wanted to inherit under a will. And before you say that spending $30 million in a month would be great, watch Brewster’s Millions. Monty has something to teach all of us about the burdens of pointless consumption!
Quantum Leap & A History of The Right to Counsel
Jessica Mederson & Josh Gilliland discuss the classic show Quantum Leap & the episode “So Help Me God.” The Legal Geeks review case law from the 1930s to 1960s on the 6th Amendment Right to Counsel and 5th Amendment Right Against Self-Incrimination.
No part of this recording should be considered legal advice.
Quantum Leap & Constitutional Law
Quantum Leap was time travel classic based on the premise the hero, Dr. Sam Beckett, could travel within his own lifetime by “leaping” into a specific individual in the past. This “string theory” of time travel allowed for five seasons setting right what once went wrong across the 1950s to 1980s.
In the episode So Help Me God, Sam was a southern lawyer defending an African American woman accused of murdering the son of the most powerful man in town. And yes, Sam exclusively wore bow ties.
The story took place beginning on July 29, 1957 and the “murder” on June 15, 1957 in a fictional parish of Louisiana.
The Defendant who did not want to testify on her own behalf, which included not challenging the false confession she signed. As the story progressed, it was revealed that the Defendant was a victim of rape and physical abuse at the hands of the “victim.” The story’s bombshell was the victim’s mother was the one who actually killed the victim while he was beating the Defendant. The mother had also given the Defendant money before the son attacked her, so the girl could escape to a better life. Out of loyalty, the Defendant was not willing to testify to avoid saying that the victim’s mother had killed her own son.
The episode touched on multiple legal issues for the Defendant:
Arrested without being informed of right to counsel
Confession without assistance of counsel (and under duress)
State refusal to produce confession, police file, and medical examination report
Witnesses refusing to testify
Jury selection of all white jurors for an African American defendant
The problem with several of these issues was the story took place in 1957, while Constitutional rights were in “flux.” The right to counsel under the 5th and 6th Amendments was still developing case law (and continue to have cases that have reached the US Supreme Court even in the last decade).
A Review of United State Supreme Court Case Law
The string theory of time travel was awesome for Quantum Leap, but only tangles up Supreme Court jurisprudence. Below is a timeline of pivotal cases on the right to counsel.
Right to Counsel in Capital Cases
The 1932 Supreme Court case Powell v Alabama is one of the early cases law students learn about in Criminal Procedure. The United States has never not believed in the right to counsel (we wrote it into the 6th Amendment for a reason), but there were issues in states publicly providing attorneys to the poor charged with a crime.
Powell v Alabama held that a state violated a defendant’s 14th Amendment due process rights by denying a defendant access to effective assistance of counsel in capital cases. Powell v. Ala., 287 U.S. 45 (U.S. 1932).
Powell involved defendants who were initially represented at their arraignment, but did not have an attorney until the trial. The defendants were convicted and sentenced to death.
The Supreme Court held the defendants did not have the aid of counsel between the time of their arraignment until the trial. The Court further looked at the defendants education, youthful age and public hostility to them. As Justice Sutherland stated for the Court:
It never has been doubted by this court, or any other so far as we know, that notice and hearing are preliminary steps essential to the passing of an enforceable judgment, and that they, together with a legally competent tribunal having jurisdiction of the case, constitute basic elements of the constitutional requirement of due process of law. The words of Webster, so often quoted, that by “the law of the land” is intended “a law which hears before it condemns,” have been repeated in varying forms of expression in a multitude of decisions. In Holden v. Hardy, 169 U.S. 366, 389, the necessity of due notice and an opportunity of being heard is described as among the “immutable principles of justice which inhere in the very idea of free government which no member of the Union may disregard.”
What, then, does a hearing include? Historically and in practice, in our own country at least, it has always included the right to the aid of counsel when desired and provided by the party asserting the right. The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he had a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble intellect. If in any case, civil or criminal, a state or federal court were arbitrarily to refuse to hear a party by counsel, employed by and appearing for him, it reasonably may not be doubted that such a refusal would be a denial of a hearing, and, therefore, of due process in the constitutional sense.
Powell v. Ala., 287 U.S. 45, 68-69 (U.S. 1932).
Let’s leap forward to Betts v. Brady, 316 U.S. 455 (U.S. 1942).
No Right to Appointed-State Counsel in Non-Capital Cases
Betts held there was no right to state-appointed counsel in every case a defendant was charged with a crime and unable to retain an attorney. Betts v. Brady, 316 U.S. 455 (U.S. 1942).
The Betts decision has long been in the Supreme Court graveyard. It literally offends conservative and liberal attorneys alike today, because it highlights anyone can be prosecuted without any hope of a defense against the state who cannot afford a lawyer themselves (or a willingness to bankrupt themselves or spend their entire life savings in mounting a defense).
However, Betts is remembered for Justice Black’s powerful dissent:
A practice cannot be reconciled with “common and fundamental ideas of fairness and right,” which subjects innocent men to increased dangers of conviction merely because of their poverty. Whether a man is innocent cannot be determined from a trial in which, as here, denial of counsel has made it impossible to conclude, with any satisfactory degree of certainty, that the defendant’s case was adequately presented. No one questions that due process requires a hearing before conviction and sentence for the serious crime of robbery. As the Supreme Court of Wisconsin said, in 1859, “. . . would it not be a little like mockery to secure to a pauper these solemn constitutional guaranties for a fair and full trial of the matters with which he was charged, and yet say to him when on trial, that he must employ his own counsel, who could alone render these guaranties of any real permanent value to him. . . . Why this great solicitude to secure him a fair trial if he cannot have the benefit of counsel?” Carpenter v. Dane County, 9 Wis. 274, 276-277.
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Denial to the poor of the request for counsel in proceedings based on charges of serious crime has long been regarded as shocking to the “universal sense of justice” throughout this country. In 1854, for example, the Supreme Court of Indiana said: “It is not to be thought of, in a civilized community, for a moment, that any citizen put in jeopardy of life or liberty, should be debarred of counsel because he was too poor to employ such aid. No Court could be respected, or respect itself, to sit and hear such a trial. The defence of the poor, in such cases, is a duty resting somewhere, which will be at once conceded as essential to the accused, to the Court, and to the public.” Webb v. Baird, 6 Ind. 13, 18. And most of the other States have shown their agreement by constitutional provisions, statutes, or established practice judicially approved, which assure that no man shall be deprived of counsel merely because of his poverty. Any other practice seems to me to defeat the promise of our democratic society to provide equal justice under the law.
Betts v. Brady, 316 U.S. 455, 476 (U.S. 1942)
Why is Justice Black’s dissent relevant? Because Justice Black wrote the majority opinion in Gideon v Wainwright.
Overturning Betts & The Right to Counsel
Gideon v Wainwright is a wonderful example of how a lifetime appointment on the Supreme Court can enable a Justice to put right what once went wrong.
Gideon was found guilty by a judge (there was no jury) and sentenced to eight years in prison. Gideon had demanded a lawyer “because the Supreme Court said he was entitled to one” and was denied one by the state, because he was not charged with a capital offense. Gideon v. Wainwright, 372 U.S. 335 (U.S. 1963).
Justice Black (probably with a great sense of justice and a smile after 21 years) explained the Betts decision was a departure from established precedents on the right to counsel and was overturned. Moreover, by overturning Betts, the Court “restore[d] constitutional principles established to achieve a fair system of justice.” Justice Black drove home the point with the following:
Not only these precedents but also reason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth. Governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime. Lawyers to prosecute are everywhere deemed essential to protect the public’s interest in an orderly society. Similarly, there are few defendants charged with crime, few indeed, who fail to hire the best lawyers they can get to prepare and present their defenses. That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal courts are necessities, not luxuries. 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. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.
Gideon v. Wainwright, 372 U.S. 335, 344 (U.S. 1963) (emphasis added).
Right to Counsel Under the 5th & 6th Amendments
The rights defined and explained in Miranda v Arizona are the most relevant to the Quantum Leap story, because there was no question under the law in 1957 that the fictional Defendant was entitled to counsel under Powell, because the case against her was murder (a capital offense). However, the case law review is helpful in understanding how the Supreme Court would issue the Miranda opinion in 1966.
Miranda is an extremely large opinion detailing the 5th Amendment right against self-incrimination and right to counsel under the 6th Amendment.
In one relevant passage the Court 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).
Our fictional Defendant was not informed of those rights and was coerced into signing a confession she herself could not even read (violating both her 5th and 6th Amendment rights). As such, the confession would have been suppressed under the Miranda decision….if it was 1966 and not 1957.
However, there was case law from the 1950s that would have thrown out the confession based on coercion. However, without the Defendant testifying about the confession, Sam would have had to deliver impressive cross-examinations on the police in a town fueled on racism and bent on convicting the fictional Defendant. Not an easy task for a seasoned litigator, let alone a time traveler without a law degree.
The Leap Home
Quantum Leap was a highly endearing series, because it often showed the best parts of America’s past standing up to the ugliest. Moreover, it showed one person could make a positive difference in helping others (who in turn could help others, as seen in the final episode). While So Help Me God was not the perfect episode on trial advocacy, it highlighted excellent issues in Constitutional Law.
Violating the First Law of Time
On an anomaly in an impossibility in 1973, Doctor Who fans learned the First Law of Time: You cannot cross your own timeline.
Unless of course it is a 10th anniversary special. Then reverse the polarity of the neutron flow and go big.
The Three Doctors was the anniversary story arc of Doctor Who that united the first three Doctors on an adventure to save the universe from a rogue Time Lord named Omega.
The Time Lords, self-appointed guardians of time, were under an attack that was draining their power used for time travel (there was an OPEC Embargo in 1973, which probably inspired the writers for the Time Lord “energy crisis”). Given the severity of the threat, they made the decision to enable the three Doctors from different timelines to work together.
The Time Lords had one very big rule: The First Rule of Time prohibited a Time Lord from crossing his own timeline.
This probably was designed to avoid the risk of creating a paradox that could destroy all of reality.
However, when pressed on the First Rule of Time, one Time Lord on Gallifrey stated, “The First Law of Time will be observed… later.”
No phrase better describes what a society is willing to do in a hegemonic war with everything on the line. The Time Lord easily could have been “The Constitution will be observed…later.”
One only needs to look at the US Civil War to see President Lincoln suspended the right of habeas corpus as the fires of secession spread across the Maryland as one example of breaking the law out of the necessity to save the United States. President Lincoln could not afford for Maryland also to join the Confederacy, leaving Washington, DC an island in hostile waters.
If there is a serious threat, countries are willing to violate their own laws (or well established principles) to save themselves from extinction.
The same could be said for Gallifrey and the Time Lords. When their existence was threaten with a de facto state of war, stepping outside of the law was a better alternative than being destroyed.
In the event of a trial of a Time Lord who ordered the First Law of Time violated, the best defense would be a necessity/self-defense arguement, focusing on the fact the violation that they ordered was necessary to avoid greater harm caused by the attack.
Dueling Dual Doctors
Violating the First Law of Time enabled fans to see the Second and Third Doctors argue with each other.
Additionally, fans all enjoyed a good chuckle when the First Doctor addressed the Second and Third Doctors as, “So you are my replacements: A dandy and a clown.”
Time & War
The villain Omega had qualities similar to Khan Noonien Singh, because Omega was Hell-bent on revenge on the Time Lords for spending several thousand years trapped in a black hole (just as Khan wanted revenge for his exile and death of his wife on City Alpha Five against James T. Kirk).
Omega liked to scream and seemed a second away from a total nervous breakdown. Omega also had charming statements like, “Absolute power is absolute freedom” and that he [Omega] “should have been a god.”
Omega’s attack on Gallifrey created a de facto state of war with the Time Lords. Given the fact Gallifrey was a sovereign planet with a unified government, they were entitled to defend themselves. Countries on Earth have the right to self-defense recognized under the Charter of the United Nations, Chapter VII, Article 51. Additionally, while there are recognized rules on war, time travel is something not addressed in the Geneva Convention. Moreover, there is no known prohibition of using a recorder as a WMD.
Given the corner Omega boxed the Time Lords into, there really was not other option besides violating the First Law of Time. The alternative was extermination.
In the end, the Doctors defeated Omega and the violation of the First Law of Time was justified for the greater good. And…the First Law of Time would be broken again in The Five Doctors for the 20th Doctor Who Anniversary, The Two Doctors and Time Crash (and arguably The Trial of a Time Lord).
We should expect the law violated again for the 50th Anniversary of Doctor Who in 2013. Who knows…we might learn how the 8th Doctor used The Moment to end the Time War.
The Goonies: A Discussion of Treasure Hunting in the 80s
Jessica Mederson & Josh Gilliland discuss whether the Goonies keep One-Eyed Willy’s treasure.
No part of this recording should be considered legal advice for any would-be treasure hunters.