Explanation of the Marital Privilege and requirements for an effective
privilege log. Case examples include Gooden v. Ryan’s Rest. Group,
Inc., 2006 U.S. Dist. LEXIS 74944, 7-9 (W.D. Ky. Oct. 12, 2006) and
United States v. Yim, 2012 U.S. Dist. LEXIS 5999 (W.D. Wash. Jan. 19,
2012).
(No part of this recording should be considered legal advice.)
Star Trek’s impact on our culture as an allegory of what it means to be human cannot be understated.
The Star Trek The Next Generation episode The Measure of the Man is perhaps one of the best Trek stories of defining what it is to be alive and free.
Another that is easily overlooked is the Star Trek Voyager episode Author, Author, where the holographic Doctor’s holobook highlights the plight of Mark 1 Emergency Medical Holographs, who are being used for mining work.
The legal twist to the story is the Doctor is not found to be a legal person at the end, but did have control over his creative work.
A Story on Rights
The Measure of a Man focuses on Lt. Commander Data and the attempt by Commander Bruce Maddox to take Data apart to learn how Data worked.
Maddox’s goal was simple: there are many dangerous jobs in space travel. Every star ship having a Data to do the dangerous work would make the universe a safer place for real living lifeforms.
Adding insult to injury, Maddox only referred to Data as “it.” Moreover, Maddox shows no respect for Data, with entering Data’s quarters without permission. Further endearing himself to no one, Maddox proclaimed he was “Sick to death to hear of rights” when Captain Picard stood up for Data’s rights and personal freedom.
It is no surprise Data says “No” to Maddox’s “research,” because Maddox’s research lacked specifics and the probability of Data surviving it.
Since Maddox spent a fair amount of timing plotting to experiment on Data, he was prepared with transfer orders for Data.
Not wanting to be taken apart by someone who did not know what he was doing, Data decides to resign from Starfleet.
Small problem: there is the legal argument Data is a machine, thus Starfleet property, and could not simply resign.
Going Legal Like No Had Before
Captain Picard goes to the local JAG officer, Captain Phillipa Louvois for help in fighting the transfer order (it is interesting to note that a lawyer was named after François Michel Le Tellier Louvois, the minister of war for King Louis XIV).
The two Captains have a less then stellar history, as Louvois prosecuted the court martial against Captain Picard for the loss of the USS Stargazer.
To make this complicated, Louvois and Picard apparently had a romantic relationship (that possibly overlapped with the court martial).
This could be problematic because 1) One would think a lawyer would know better then to prosecute someone the attorney had a relationship with (apparently there are no ethical rules on conflict of interests in the 24th Century) and 2) If you zealously try to destroy someone’s career, they generally don’t want to date you afterwards.
There is no Hallmark Card or Holodeck Program, for “I am sorry I tried destroying your life without mercy. It was purely professional. Please take me back.”
The Taylor Swift song “We are never getting back together” would be very fitting in such situations.
And yet, Picard goes to Louvois for help, because she is the only one who can help him.
The O’Connor Effect
With the complex romantic subplot aside, Star Trek’s treatment of women in the practice of law is very admirable. The 1967 Original Series episode Court Martial depicted Lt. Areel Shaw as a strong prosecutor who argued her case against Captain Kirk with force and courtroom command. That was filmed at a time when only three percent of attorneys in the United States were women.
In The Measure of A Man, Phillipa Louvois is of equal rank as Picard, and following the tradition of Lt. Areel Shaw, Louvois prosecuted her former boyfriend. Moreover, Louvois is the officer-in-charge of the JAG department of her sector.
Furthermore, Louvois does not act as the prosecutor in the case, but the Judge (one could argue the local Admiral technically should have heard the case, but the story is better showcasing the advancement of women in the practice of law with Louvois as the judge).
The Measure of A Man aired in 1989. In the 22 years that followed Court Martial, Sandra Day O’Connor became the first women Supreme Court Justice, plus an increase of women going to law school and entering the practice of law. While there are many significant challenges for women attorneys today, The Measure of a Man continued the tradition of showing strong women in the practice of law as a very important subtext.
Who Has Rights?
Captain Picard was given the duty of defending Lt. Commander Data from being a piece of property. Commander Riker was given one of the worst duties ever with having to prosecute a case that his friend essentially did not have any rights as a living being. If Riker had not taken the case, Louvois would have summarily ruled for Maddox.
Once again, Star Trek made a very pointed reminder of egregious wrongs in the past. The argument Riker had to make was in a United States Supreme Court decision written by Chief Justice Roger Taney in 1857. The 200 page opinion is a nightmarish rejection of the Declaration of Independence:
The question is simply this: Can a negro, whose ancestors were imported into this country, and sold as salves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guarantied by that instrument to the citizen? One of which rights is the privilege of suing in a court of the United States in the cases specified in the Constitution.
Scott v. Sandford, 60 U.S. 393, 403 (U.S. 1857)
The horror of the Dred Scott opinion only becomes more terrifying with each page. Chief Justice Taney stated the following on the founding of the United States:
It then proceeds to say: “We hold these truths to be self-evident: that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among them is life, liberty, and the pursuit of happiness; that to secure these rights, Governments are instituted, deriving their just powers from the consent of the governed.”
The general words above quoted would seem to embrace the whole human family, and if they were used in a similar instrument at this day would be so understood. But it is too clear for dispute, that the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted this declaration; for if the language, as understood in that day, would embrace them, the conduct of the distinguished men who framed the Declaration of Independence would have been utterly and flagrantly inconsistent with the principles they asserted; and instead of the sympathy of mankind, to which they so confidently appeared, they would have deserved and received universal rebuke and reprobation.
Yet the men who framed this declaration were great men — high in literary acquirements — high in their sense of honor, and incapable of asserting principles inconsistent with those on which they were acting. They perfectly understood the meaning of the language they used, and how it would be understood by others; and they knew that it would not in any part of the civilized world be supposed to embrace the negro race, which, by common consent, had been excluded from civilized Governments and the family of nations, and doomed to slavery. They spoke and acted according to the then established doctrines and principles, and in the ordinary language of the day, no one misunderstood them. The unhappy black race were separated from the white by indelible marks, and laws long before established, and were never thought of or spoken of except as property, and when the claims of the owner or the profit of the trader were supposed to need protection.
Scott v. Sandford, 60 U.S. 393, 410 (U.S. 1857)
A Supreme Court opinion holding the United States was a country of slave owners, and no State or the Federal Government could eliminate slavery in the name of “property” should make every American stand up and say “No.”
And many Americans did more then simply say “No” that between 1857 to 1865.
It is no question that this abomination of a Supreme Court opinion helped enable the new Republican Party to elect Abraham Lincoln as President in 1860. Historically speaking, there was no turning back from the Civil War after Dred Scott.
Better Angels of Our Nature
Commander Riker’s arguments that Data lacked rights was extremely damaging (It is worth noting the procedures for swearing in a witness are the same as Court Martial).
It takes a reflective Picard visiting with Guinan to realize what was really at stake: Maddox wanted disposable people, whose welfare you did not have to consider.
Captain Picard’s return to the courtroom was a two step process of a direct examination of Data and examining Maddox as a hostile witness.
The issue of whether Data had rights turned on whether he was sentient. Maddox testified that to be sentient one had to have 1) Intelligence; 2) self-awareness; and 3) consciousness.
Maddox’s examination showed the Data possessed the first and second requirements for sentience.The third was not answered verbally, but only an uncomfortable stare by Commander Maddox.
Picard’s questions turned into a closing argument, focusing in on Maddox’s goal to construct more “Datas.” The final rhetorical question is if thousands of Datas are constructed, isn’t that a race?
In the end, the trial was not about “property,” but of servitude and slavery.
Captain Louvois recognized the long term impact of the issue (or the fear of being in the historical company of Roger Taney), found for Data.
Maddox himself is also redeemed, realizing that Data had the right to determine his own fate. Since Maddox only saw Data as a machine, he originally did not see the bigger moral issue at stake. Maddox changed his position and canceled Data’s transfer orders.
Captain Picard also made a significant showing of forgiveness to Captain Louvois with an invitation to dinner after the trial.
A Note on Freedom
American history is sadly full of examples where freedom has been cruelly suppressed. In 1802, Postmaster General Gideon Granger wrote a confidential letter to Senator James Jackson (Georgia), chairman of the Committee on the Posts. Granger argued against allowing African Americans to become post riders delivering the mail, because it would require the riders knew how to read and interact with people. Granger stated the “danger” as follows:
They will learn that a man’s rights do not depend on his color.
Bruce Levine, Half Slave and Half Free: The Roots of Civil War, pp 12-13, The Noonday Press, 1992.
American history also has the brilliant examples of what makes the United States a shining city on a hill, because “We hold these truths to be self-evident, that all men are created equal” is not empty rhetoric. The silent monuments at Gettysburg and Pointe Du Hoc say more then any speech can on what Americans have done for freedom.
And those ideals of freedom have been very strongly presented in Star Trek.
Star Trek has for 46 years told stories of racial and gender equality. The stories translate the suppression of “artificial life rights” as an allegory for human rights. More importantly, Star Trek is an optimistic vision of how the world could be, and not how the world was in the past.
Jessica Mederson & Josh Gilliland interview Amber Schroader, CEO of Paraben Corporation, on the Paraben Forensic Innovation Conference, to be held in Park City, UT, November 3 to 6, 2012.
Both Josh & Jessica will be presenting at PFIC, including a Legal Geek panel!
Attorneys Jessica Mederson and Josh Gilliland discuss how Tron is an allegory for electronic discovery. Jess and Josh discuss other topics explored in Tron, including Net Neutrality and the Stored Communication Act. Josh outlines major issues in electronic discovery and solutions.
My great-great-grandmother told a 130-year-old lie.
At least, I think she did. If she did not, her son could have been very liberal with telling the story of his father to his son.
The Gilliland family believed a Drew Lowe Gilliland was a Texas Ranger. The oral history my grandfather told of the grandfather he never knew, made the Texas Ranger sound very brave.
Legend has it that “Drew” went off on a secret mission on behalf of the US Government, chasing Shanghaiers in California for three years, leaving his pregnant wife behind. “Drew” came home three years later, only to find his wife had remarried. The new husband apparently had gone into hiding out of fear of “Drew” (as my grandfather told the story). As a sign of peace, “Drew” left his guns at home, so he could go talk to his wife’s new husband in town. Sadly, Drew was shot in the back by someone he once arrested.
The story was always dramatic, with “Drew” dying in the arms of his wife, complete with crawling home on his hands and knees (never mind the other people in town who apparently saw Drew get shot). Four generations have had the name “Lowe” as a middle name in his honor.
Reality (evidenced in court documents and newspaper articles) tells a very different story. A reality discovered after my step-mother conducted extensive research on Ancestry.com. She always found it profoundly odd that “Drew” left a pregnant wife for three years. I always found other facts odd, like “Drew” being one of the original Texas Rangers, because that would have placed him several decades earlier in time.
The real history includes a second-degree murder conviction, a failed appeal, a pardon involving two governors, a habeas corpus writ based on the unconditional pardon and a my great-great-grandmother successfully securing a divorce.
A Saddler, Not a Ranger
There was no Drew Lowe Gilliland in the 1870s. His name actually was Lorenzo Gilliland. In one newspaper article he went by Low and another Lowe (newspapers also go back and forth in spelling the last name as Gilliland and Gilleland).
Lorenzo was born in 1851 and died in 1889. Lorenzo married a woman named Minnesota Dunn.
Lorenzo was a saddler in the Dallas area in the 1870s. The Texas State Historical Association described this time period as one of “general lawlessness.”
A man named Samuel Stevens publicly accused Lorenzo of stealing a watermelon and engaged in other antagonistic behavior towards Lorenzo.
Lorenzo started carrying a small gun in his pocket after being publicly insulted by Samuel Stevens.
Lorenzo encountered Stevens again in 1874. Samuel Stevens was armed and on horseback.
A fatal gunfight followed resulting in Stevens’ death.
Lorenzo was arrested a year later and convicted of second-degree murder.
Lorenzo was sentenced to hard labor for 10 years.
His son was born on May 13, 1875.
Pardon the Bad Timing
Minnesota Dunn petitioned Governor Richard Coke for a pardon of her husband. After Governor Coke was elected to the US Senate, Governor Richard Bennett Hubbard, Jr., issued the pardon signed by Governor Coke, finding the gunfight had been in self-defense. [Dallas Morning News February 26, 1887].
The pardon reached the prison the day after Lorenzo Gilliland escaped. [Dallas Morning News February 26, 1887]. He had been imprisoned for 3 years.
Lorenzo spent 12 years hiding in California, not knowing he had been pardoned. During this time, Minnesota had the marriage nullified, not on the basis of abandonment, but for Lorenzo’s murder conviction.
The Writ of Habeas Corpus
Lorenzo eventually learned that he had been pardoned and returned to Texas.
After returning to Texas, Lorenzo was arrested and tried for escaping from prison before a Texas Judge named Aldridge. The Court held that Lowe’s pardon had been unconditional and could not be revoked by the fact Lowe escaped from prison after it had been issued.
A Man of Poor Character
Lorenzo developed an extreme hatred of Chinese immigrants. This possibly developed while hiding in California and influenced by the vile Nativist politics that supported the Chinese Exclusion Act of 1882. He simply might have been a racist all of his life.
Lowe had a “hobby” of following a Chinese man who, according to Lowe, was charged with the murder of a widow and a “large household of children” in Los Angeles, California. [August 30, 1887 Dallas Morning News].
Approximately a month after returning to Texas, Lowe conducted a “raid” on a group of Chinese men eating dinner to catch the “killer.”
The odd endeavor went poorly. It sounded like 19th Century version of racial profiling by a lunatic, complete with Lowe rambling about details of the “murders” and million dollar reward.
The story ended with Lowe being arrested for insanity.
No Riding Off Into The Sunset
According to one newspaper, “L.J. Gilliland” eventually became a deputy sheriff in Texas.
This was after at least one stay in a California insane asylum and one arrest for lunacy. [Special to the Gazette – Dallas Tex Aug 2,1887 & Dallas Morning News, September 14, 1888]
Lowe went to Whitewright, Grayson, Texas determined on seeing some Chinese men arrested for a [probably imagined] crime.
Lorenzo ended up in a fight with the local Marshall named Chowing who killed him on November 1, 1889. Lowe was 38 years old. [Dallas Morning News, November 3, 1889]
Lorenzo Gilliland ruined his life over a watermelon; he was killed because of his racial prejudice and unstable mind.
Of Great Mistakes & Cries for Mercy
From the tone of the newspaper articles, it truly sounds like Lorenzo Gilliland needed advanced psychotherapy. To be fair, Lorenzo experienced the total destruction of his life, almost entirely self-inflicted beginning with the killing of Samuel Stevens. While Governor Coke believed Stevens’ death was in self-defense, Lorenzo did start carrying the concealed weapon after the watermelon incident. I cannot help but wonder if Lorenzo created the situation where he had to defend himself, because of the “raid” Lorenzo conducted on the Chinese men many years later.
Lorenzo Gilliland might have been completely in the right to kill Samuel Stevens in self-defense. The newspaper accounts make it sound like they had either been business partners of some sort or just did not like each other. Whatever the case was, Lorenzo’s killing of Stevens triggered a very long nightmare, including enduring hard labor as a convict for three years (the same amount of time “Drew” was supposed to be chasing Shanghaiers in California); escaping from prison the day he was pardoned and unnecessarily going into hiding for twelve years; losing his wife (again due to his own abandonment of her while on the run in California); never knowing his son; and experiencing the terror of 19th Century insane asylums.
The combination of all those trials would shatter most minds into tiny jagged pieces.
The real hero in the story was Minnesota Dunn. God only knows how hard her life was trying to provide for her son while Lowe was in prison. She would married a man named Lemon, ultimately moved to California and successfully raised a son.
Minnesota Dunn told her son Drew a noble lie that lasted over 130 years. Drew lived his life believing that his father was a heroic Texas Ranger killed by an outlaw. Drew Gilliland had a very successful career in law enforcement in Ventura, California, raising a son and a daughter, who were told the heroic story of their grandfather.
Unless….Ventura Sheriff Drew Gilliland knew the truth about his father and told a lie to my grandfather.
A lot of lawyers are geeks. A lot of geeks are lawyers. So it should come as no surprise that a lot of judges are Star Trek fans and they aren’t afraid to show it. Below are my favorite Star Trek quotes…from the bench:
First, our judicial system aspires to be Vulcan, not human or Klingon:
Jones v. South Jersey Industries, Inc., 2011 WL 3802243, 13 (N.J.Super.A.D. 2011) (The Court is providing a jury instruction to counter any passion aroused by a witness’s outburst)
“Your role is to determine fact[s]. Nobody can tell you what to do in that area. That’s entirely your decision. If you get to the issue of damages, I will instruct you as follows: number one, you should determine not only that portion of the case but all [of] this portion of the case without using bias or prejudice; in other words, we want you to be—and I’m going to date myself a little bit by saying this. Do you remember Star Trek, the original one with Mr. Spock? Mr. Spock could look at things totally logical. He was not influenced by passion. He certainly wasn’t influenced by prejudice, and that’s … how you need to look at a case. You need to look at a case for the facts as you see them. You need to look at the case for the law. You apply the facts to the law, and that’s how you come up with a decision. You don’t allow sympathy to enter into your decision.”
Jackson v. Harrington, 2011 WL 7143189, 21 (C.D.Cal. 2011)
(The Court is discussing with a prospective juror the juror’s ability to be objective)
The court: Yes. I understand. And I’m emotional. I understand that, too. Were you a fan of Star Trek?… And you said McCoy, the doctor who was so emotional who just ran off the wall at the drop of a hat whenever something emotional would occur. And you had Spock always standing there, placidly not affected at all by the emotion of the situation. And that’s what we want in this case. We understand that it’s not easy. It’s not easy. But to the extent that you possibly could dedicate yourself to doing exactly that, in other words in being fair, you don’t say, well, I’ll be fair to the People.”
Second, everyone loves The Wrath of Khan and Spock’s sacrifice:
South Yuba River Citizens League v. National Marine Fisheries Service, 804 F.Supp.2d 1045, 1063 (E.D.Cal. 2011)
FN5. Although the court declines plaintiffs’ invitation to speculate as to whether it is a worse injury for an individual salmon to be cut by sharp metal edges or die on dry land, Pls.’ Reply Brief 12, the court will note that in this case the court is most concerned with the survival and recovery of the species, and not the comfort of any individual salmon moving its way up the ladder. Put another way, “logic clearly dictates that the needs of the many outweigh the needs of the … one.” Star Trek II; The Wrath of Khan (Paramount Pictures 1982).
Robinson v. Crown Cork & Seal Co., Inc., 335 S.W.3d 126, 162-163 (Tex. 2010)
Appropriately weighty principles guide our course. First, we recognize that police power draws from the credo that “the needs of the many outweigh the needs of the few.” Second, while this maxim rings utilitarian and Dickensian (not to mention Vulcan FN21), it is cabined by something contrarian and Texan: distrust of intrusive government and a belief that police power is justified only by urgency, not expediency.
FN21. See Star Trek II: The Wrath of Khan (Paramount Pictures 1982). The film references several works of classic literature, none more prominently than A Tale of Two Cities. Spock gives Admiral Kirk an antique copy as a birthday present, and the film itself is bookended with the book’s opening and closing passages. Most memorable, of course, is Spock’s famous line from his moment of sacrifice: “Don’t grieve, Admiral. It is logical. The needs of the many outweigh …” to which Kirk replies, “the needs of the few.”
Third, another favorite source of quotes is Captain Kirk’s opening monologue:
In re Marriage of Ross, 2007 WL 1632365, 4 (Cal.App. 4 Dist. 2007)
This is also particularly true for Calvin’s argument, contrary to his contention the California codes are invalid, that the Uniform Commercial Code (UCC) is the “supreme codified law of the planet” which makes his separate claim to all property in this dissolution matter superior to any purported community property claim. With apologies to the former television series Star Trek, we decline “to boldly go where no [rational analysis] has gone before.” ( Star Trek: Episode Introduction monologue.)
In re Party Masters, Inc., 1992 WL 106259, 1 (Bkrtcy.N.D.Ill.,1992)
“Star Trek” has been a part of American culture during the last half of the Twentieth Century. To paraphrase its famous opening lines, this action is the voyage of two Star Trek convention promoters into litigation before this bankruptcy court; they explore and mix strange legal theories and ask the Court to seek out justice and do equity in this lawsuit of their creation; they boldly go where very few wise litigants have gone before—both parties assert contradictory and conflicting theories based on oral contract. Like the Star Trek characters battling in outer space, these parties struggle in the inner void left by their mutual failure to write down and document the terms of their agreement.
Fourth, “Beam me up, Scotty” is often quoted, but what makes this quote special is the detail in the citation:
Aquifer Guardians in Urban Areas v. Federal Highway Admin., 779 F.Supp.2d 542, 559 (W.D.Tex. 2011)
Perhaps Homo sapiens will experience a Darwinian epiphany to take better care of their home before they return to it. The alternative is a Captain Kirk moment: “Beam me up, Scotty!” FN62
FN62. “Beam me up, Scotty!” is a catch phrase which made its way into pop culture from the science fiction television series Star Trek. It comes from the command Captain Kirk (played by William Shatner) gives his chief engineer (played by James Doohan). Montgomery “Scotty” Scott, when he needs to be transported back to the Starship Enterprise. James Doohan, Beam Me Up, Scotty: Star Trek’s Scotty–In His Own Words (Pocket Books 1996).
Fifth, the Klingon Dictionary may replace Black’s Law Dictionary as the go-to dictionary for legal definitions:
Norwood v. Vance 572 F.3d 626, 630, 637 (9th Cir. 2009)
(The majority opinion)
The district court declined to give the proposed instruction because the meaning of deference would not be “clear to a lay person.” But “deference” is not Urdu or Klingon; it is a common English word.
(The dissent)
I must, however, acknowledge that the majority is quite correct in intuiting that, unsurprisingly, there is no Klingon word for “deference.” See generally Marc Okrand, The Klingon Dictionary (Star Trek 1992).
Sixth, even Star Trek technology has made appearances in judicial decisions:
County of Westchester v. Town of Greenwich, Conn. 793 F.Supp. 1195, 1207 -1208 (S.D.N.Y. 1992)
We first examine the first branch of the easement criteria, the open, visible, and adverse requirements for a prescriptive easement. We have no trouble concluding that the County’s use of the glide paths was open and visible. Aircraft regularly passing overhead during their landings and takeoffs are hard to miss. And defendants have offered no evidence that any Stealth fighters operated on runway 11/29 or that any of the aircraft used the infamous Romulan cloaking device.FN11
FN11. For those unacquainted with the television series “Star Trek,” this reference is to a device used by a civilization of beings called Romulans which rendered their spacecraft invisible to the naked eye.
Seventh, don’t ever confuse Star Wars and Star Trek:
Faith v. Clark, 2012 WL 2376327, 14 (E.D.Cal. 2012)
THE WITNESS: Dr. Masters, among the forensic community, is considered—essentially equivalent to a John F. Kennedy in terms of his integrity, competence and ability. For younger folks in the jury, probably that don’t know about John F. Kennedy, don’t have the same feeling, probably better to think of Dr. Masters as Obi Wan Kenobi, which my daughters, the last of the great Jedi warriors portrayed by Alec [Guiness] in Star Trek.
THE COURT: Star Wars.
THE WITNESS: Star Wars—thank you very much.
And, finally, I had to share this, the second-oldest Star Trek reference I could find and the first to take judicial notice of Star Trek’s cultural impact:
Golden Triangle Broadcasting, Inc. v. City of Pittsburgh 483 Pa. 525, 538, 397 A.2d 1147, 1153 (Pa. 1979)
As the “Star Trek” era is ushered into our lives, this Court must be prepared to keep its perspectives progressive and its definitions flexible, or else this Commonwealth will fail to acquire modern, technological manufacturing operations.
Josh @bowtielaw and Jessica @eDiscMatters, each with a JD in geekiness, discuss Dr. Horrible’s Sing-A-Long Blog, focusing on theories of civil and criminal liability for both Dr. Horrible and Captain Hammer for the death of Penny.
(This is the discussion of a fictional web series. Nothing should be considered legal advice.)