Jessica and I started The Legal Geeks to share our love of comics, science fiction, and the law. We are thrilled to be returning to San Diego Comic Con for the third time and our fifth anniversary. I have presented over 450 legal seminars in my career and the most high profile ones have been at San Diego Comic Con. Our two panels this year have amazing judges and lawyers who love pop culture. We hope you can join us in San Diego for our Luke CageMock Trialand Judges on Star Wars.
Marvel’s Luke Cage ended with Luke in FBI custody for breaking out of prison. Join us for a mock evidentiary hearing where attorneys will argue to US Magistrate Judge Mitch Dembin a writ of habeas corpus to prove Cage’s actual innocence.
Attorneys arguing the case include Christine Peek, Esq., McManis Faulkner, and Megan Smith, Esq., for Luke Cage (played by David Gibson); and Steve Chu, Esq., and Jane Boardman, Deputy City Attorney for the City of San Diego Office of The City Attorney, for the Government. Room 23ABC.
Is the Dark Side an Addiction or choice for Kylo Ren? What are the Civil Rights of Droids? Did interrogating Bodhi Rook with the Bor Gullet violate Rook’s rights?
Join California Supreme Court Justice Mariano-Florentino Cuellar, Circuit Judge John B. Owens of the 9th Circuit Court of Appeals, Federal Magistrate Judge Mitch Dembin, Federal Magistrate Judge Stacie Beckerman, CA Judge Carol Najera, and former Federal Magistrate Judge Paul Grewal (now Deputy General Counsel of Litigation at Facebook), to hear their legal analysis, and love, of Star Wars. Moderated by Joshua Gilliland, Esq., and Jessica Mederson, Esq, of The Legal Geeks. Room 7AB.
The 1982 classic Blade Runner posed a complex evidentiary issue: How could Leon’s photo of Zhora be admissible in court? Would the zoomed in image of Zhora be merely a duplicate from the original image? Or would expert testimony be needed to authenticate the image?
Blade Runner Rick Deckard used the ESPER machine in his apartment to pull an image from a reflection in a photo found in the hotel room of the Replicant Leon. The verbal commands to navigate the image were:
Enhance 224 to 176. Enhance, stop. Move in, stop. Pull out, track right, stop. Center in, pull back. Stop. Track 45 right. Stop. Center and stop. Enhance 34 to 36. Pan right and pull back. Stop. Enhance 34 to 46. Pull back. Wait a minute, go right, stop. Enhance 57 to 19. Track 45 left. Stop. Enhance 15 to 23. Give me a hard copy right there.
Deckard scanned in the original photo for analysis in the ESPER machine. As such, there is no metadata from the original photo, because it was a printed image, not an electronic one. However, there should be an audit log within the ESPER machine that documented the analysis of the photo.
Photographic evidence can be admissible in California if the photos properly authenticated. Evid. Code, §§ 250, 1401, subd. (a). Photos can be authenticated by the testimony of someone with personal knowledge of the photo when it was taken (they were in the photo or took the photo) or expert testimony if no one has personal knowledge of the photo. People v. Bowley (1963) 59 Cal.2d 855. More recent cases have explained that authentication for photos “may be supplied by other witness testimony, circumstantial evidence, content and location” and “also may be established ‘by any other means provided by law’ including a statutory presumption.“ People v. Goldsmith, 59 Cal.4th 258, p. 268 (Cal., 2014), citing CA Evid. Code § 1400.
Cases involving photos on social media and cell phones are helpful to authenticate the photo of Zhora recovered from the ESPER machine.
In a case from San Francisco, a police officer searched Instagram to monitor a person on probation. The officer saw photos of the person on probation, plus another who was a wanted felon, posing with guns on Instagram photos. The officers went to the known address of the individual on probation and made arrests of the two individuals. Both individuals were wearing the same clothes as in the photos. People v. K.B. (In re K.B.), 238 Cal.App.4th 989 (Cal. App., 2015).
While not stated if it was a search incident to arrest, the cell phone of one of the Defendants was forensically collected was a tool named Cellebrite. A report was offered to the Court stating images the exact time and date the photons that appeared on Instagram were taken. In re K.B, at *994-995.
The Court held that the investigating officers properly authenticated the photos, despite neither Defendant testifying to the authenticity of the photos. In re K.B, at *997-998. The officers had seen photos of the suspects on Instagram; the officers were familiar with the suspects; the suspects were wearing the same clothes in the photos when arrested; and the officers found the original photos on one of the suspect’s phones with forensic software that appeared on Instagram. All of these factors weighed in favor of properly authenticating the photos for admissibility.
Applying California Evidence Code Evid. Code § 1400 and recent case law, a Court could find the photo of Zhora with the ESPER machine to be admissible. The device scanned in the photo found in Leon’s hotel room and visually navigated the photo to find the image of Zhora. While some expert testimony would be necessary to explain how the ESPER machine operated, this is no different from explaining how forensic software such as Cellebrite operates. Moreover, as Deckard had the ESPER machine in his apartment, such technology might have been as commonplace as a Blu Ray player, which arguably would lower how much detail would need to be offered to explain how “common” technology operates. Furthermore, the audit log of the verbal commands should be offered to the Court, just as the report from Cellebrite, for the Court to understand how the image of Zhora was discovered in the original photo.
A Court would likely find the photos admissible…if Replicants had a right to a trial before being “retired.”
Space is the ultimate frontier, and films such as The Guardians of the Galaxy give us a glimpse of what the future might hold for us. As exciting as it may be to imagine a universe where we can easily travel from Planet A to Planet Z in a matter of hours, it is also quite daunting to imagine all the potential conflicts that may also arise.
In The Guardians of the Galaxy, we are introduced to Gamora’s sister, Nebula. It is hard to feel any morsel of sympathy for her given that she tried to wipeout the entire Guardian team, and it is even harder to muster up those feelings when you consider that she also tried to take out an entire planet. For those of you that may not remember, she played a major part in trying to destroy Planet Xander, which is the home planet of the Xanderians and the capital of the Nova Empire, with a population close to 12 billion galactic beings. If you need another memory boost- it is also the planet that Ronan the Accuser attempted to destroy at the end of The Guardians of the Galaxy and again, was one of the planets that was nearly destroyed by Ego in The Guardians of the Galaxy, Vol. 2.
At this point, we should all have some recollection of Nebula’s unfortunate role in the attempted destruction of Xander. Some may even accuse her of attempted genocide and want her prosecuted. But, is she really guilty of attempted genocide?
Let’s take a look at the legal definition of genocide, which is defined by The Convention on the Prevention and Punishment of the Crime of Genocide. This international treaty was adopted by the United Nations shortly after World War II. Article 2 defines two elements of the crime of genocide: a mental component and a physical one:
1. The mental element, referring to the “intent to destroy, in whole or in part, a national, ethnic, racial, or religious group”, and
2. The physical element, which includes:
a. killing its members;
b. causing serious bodily or mental harm to members of the group;
c. deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
d. imposing measures intended to prevent births within the group;
e. forcibly transferring children of the group to another group.
A crime must have both components to be called “genocide.”
So now that we have taken a look at the legal definition of genocide, can Nebula truly be tried for attempted genocide? The answer is probably no, especially when taking into account everything that we learned about her in The Guardians of the Galaxy, Vol. 2.
There is no doubt that when looking at the definition’s two required elements, Nebula likely meets the physical component quite easily. She did, after all, take part in a great deal of killing; however, the mental component was never truly there. What we have with Nebula is nothing more than a misunderstood individual who was never good enough in her father’s eyes and who, despite knowing that, still desperately sought his approval. What we learned about Nebula is that her father would make her and Gamora battle each other in training and every time Gamora won, their father would torture Nebula by replacing a piece of her with machinery with the reasoning being that he wanted them to be “equals.” Despite knowing this, Gamora never stopped beating Nebula, and Nebula never gained her father’s approval that she so desperately sought. This is further reinforced when Nebula states that after killing Gamora, she planned on buying a warship and intended to hunt her father down and kill him. Nebula’s anger stemmed from those childhood experiences that haunted her as an adult and is the exact reason she sought to kill her family.
However, it is also a crime to aid or abet genocide, per Article III of the convention. Criminal acts include conspiracy, direct and public incitement, attempts to commit genocide, and complicity in genocide. There is no denying that Nebula had some role in Ronan’s attempt at genocide- he never made it a secret to her. On the other hand, it is likely that she did not fully grasp the severity of her actions- after all, part of her brain had been replaced by her father after one of her many losses to Gamora. So, can we really blame Nebula for her actions? Despite knowing of Ronan’s plans, it is difficult to determine whether she truly knew the wrongfulness of her actions. Given her upbringing and the fact that part of her brain was not even hers, it may be completely plausible that Nebula could use a defense based on the absence of her mental health.
After the development of the International Criminal Court (ICC), the mental state of those accused of genocide has become an important issue over the last few years and is explicitly addressed in the court’s statutes. The Rome Statute of the International Criminal Court (referred to as the “Rome Statute” because it was adopted in Rome in 1998) is the treaty that not only established the ICC, but it also establishes the court’s functions, jurisdiction, and structure. It addresses four core international crimes: genocide, crimes against humanity, war crimes, and the crime of aggression.
Taking a look at the rules that govern the court, Article 31 states:
“…a person shall not be criminally responsible if, at the time of that person’s conduct:
a. the person suffers from a mental disease or defect that destroys that person’s capacity to appreciate the unlawfulness or nature of his or her conduct, or capacity to control his or her conduct to conform to the requirements of law;”
So folks, I think it is safe to say that if Nebula were charged with any part of the attempted genocide of Xander, she would have a pretty good mental defect defense. Ultimately, Nebula lacks a true “mental state” to cause a genocide as her actions purely affirm her desire for redemption and closure…plus, part of her brain wasn’t even hers!
It’s Father’s Day, which makes it a perfect time for us to talk about everyone’s favorite absentee father with a penchant for black—Darth Vader.
Apart from the recently inserted “NOOOOO,” Anakin Skywalker’s story comes to a poignant close in Return of the Jedi. After years as Palpatine’s stooge, Anakin finally wakes up and chucks that bag of bones down a very conveniently placed chasm. Anakin then chokes out a few touching last words before going to Jedi heaven. Applause and teary eyes ensue and the ewoks throw a big tree house jamboree…complete with a really creepy set of Imperial helmet drums.
We all know those last scenes by heart. But what if Return of the Jedi had ended differently?
Darth Vader looked on as his former master helplessly tumbled into the gaping maw below. Anakin’s decision had already taken an awful toll, as the Emperor’s uncontrolled Force lightning seared his body and severely damaged the life support systems integrated into his armor.
Inside Anakin’s helmet, a cascade of urgent warnings flashed before his eyes as the suit diagnostics cataloged the damage to its systems. But Anakin knew his armor as if it were a dark extension of his own body. He knew it was salvageable. Despite the pain coursing through him, he knew that his battered body would also endure, as it had for so long. As alarm claxons blared and the mighty second Death Star crumbled around them, Luke was intensely focused on securing their escape.
The two boarded a small shuttle and the boarding ramp hissed closed, muffling the din of the chaos raging outside. Anakin remained in the passenger hold alone as Luke hurriedly prepped the shuttle for takeoff. It was oddly quiet, save for the rhythmic mechanical wheeze of Anakin’s taxed respirator. As the shuttle broke clear of the explosion, Anakin silently wondered what would come next.
What if Darth Vader had survived his showdown with the Emperor and been taken into Rebel Alliance custody? As hilarious as it is to picture Vader waltzing into Bright Tree Village to crash the ewok bonanza, the scenario raises some really intriguing legal issues. Chief among them is the question of how the Rebel Alliance would have handled its newest prisoner of war. Would the former Dark Lord of the Sith be put on trial for war crimes?
Before jumping to the conclusion that Vader would be summarily forced to walk the plank on Mustafar or be sentenced to hard labor at a Tatooine sand factory, it’s worth asking what the Alliance would have done with their newest POW.
War is never a pretty business, but there is a long-standing history of holding individuals accountable for violating its laws and customs. Public trials or tribunals are probably the most well known way that the law of war is enforced. Trials and courts-martial for war crimes have been seen throughout nearly every major conflict of the last century, from the Nuremberg trials of World War II to the International Criminal Court at The Hague. Before we dive in any deeper, we’ll go ahead and assume that the Alliance had the capability to put Darth Vader on trial, even if that’s a stretch considering their fledgling nature.
For all the Vader haters out there, putting the Dark Lord on trial for war crimes probably seems like a no brainer. After all, if it weren’t for Vader, Mace Windu would still have a hand, Yoda wouldn’t be living in a mud hut, and all those dear sweet younglings would be…well, still alive. But in reality, Vader’s capture would have come at a seminal point in the galactic war—one that would have made the question of what to do with him incredibly difficult.
At the time of his capture, Darth Vader would have been one of the most hated and feared members of the Galactic Empire. The Alliance long considered him to be one of the highest value targets in the Imperial hierarchy, second only to the Emperor himself. Palpatine’s death by Death Star shaft would have quickly elevated Vader to be public enemy number one. As a result, Rebels of all ranks would have been clamoring to have his helmet on a platter.
In the real world, the fact that someone may have committed war crimes does not automatically mean that they are put on trial. There are always a host of negotiations and debates before anyone steps foot into a courtroom. The Rebel Alliance would be no different, and its leadership would want to discuss Vader’s fate before jumping to any conclusions or analyzing the evidence and case against him.
As Alliance High Command began its debate over what to do with Vader, Luke and Leia would have quickly found themselves in an impossible position. Both were powerful members of the Alliance with the ability to influence the Alliance’s decision on how to handle Vader.
Luke would have been powerfully compelled to come to his father’s side. Luke’s desire to protect those closest to him was a constant motivator for him, much like his father. Luke had just witnessed his father turn back from the abyss of the Dark Side, only to have his life once again be put on the line as the Alliance considered his fate.
Whether it’s rushing back to the Lars’ Homestead, Cloud City, or Jabba’s Palace, Luke doesn’t exactly have the best track record when it comes to exercising restraint and patience when his friends or family are in danger. When those close to him are in trouble, Luke has a penchant for seeing himself as the savior or protector. The same temptation would have been present with his father’s fate. As the only person who saw Vader kill the Emperor, Luke would have known that he was an essential witness for his father. Anakin could testify to those facts, but there is little chance anyone would believe him given his infamy. In contrast, Luke was a legendary member of the Alliance. When he spoke, others listened and followed. Therefore, in Luke’s mind, he was the key to any scrap of hope for his father.
Leia faced an even more complex choice than her brother. Her loyalty to family would have weighed heavily upon her decision. After learning of Anakin’s survival from Luke, Leia would have been faced her real father for the first time—a man whose armored visage was undoubtedly burned into many of her most terrible memories. Nevertheless, that sudden reunion would have been a great weight upon her shoulders. Luke’s zeal to help would have only increased that weight.
But while Luke had been a member of the Alliance orchestra, fighting in numerous battles, she had been one of its conductors, having dedicated the formative years of her life to helping shape and lead the organization. Her dedication to duty and the Alliance cause would have been an equally heavy weight upon Leia. On one hand, Leia knew that she wielded considerable influence—influence that she could probably leverage in her father’s favor. However, on the other hand, Leia would be keenly aware of the importance of the bigger picture, including the Alliance’s survival and its efforts to end the war. Leia was no stranger to making impossible decisions like this. She faced a similar one on the bridge of the first Death Star when she chose not to betray the Alliance at the cost of her home world.
Any temptation to help Anakin would have carried a grave risk for both Luke and Leia. As ROTJ ends, their relationship to Vader was a closely held secret. If either Luke or Leia came to Anakin’s defense, there is simply no way the relationship would have remained hidden. The revelation that they were Darth Vader’s children would have been explosive news. At best, both Luke and Leia would be stripped of their influence in the Alliance. At worst, they would be regarded as spies and traitors.
Luke and Leia would have fully realized that risk and played a limited role in Anakin’s fate as a result. Luke would have realized that he was in a unique position to help both his father and his sister. Luke could stand beside his father and advocate for clemency while not endangering the Alliance’s greater cause. The shock and backlash would be fierce, not unlike what John Adams faced when he came to the defense of British Soldiers involved in the Boston Massacre. However, he could absorb the blows, knowing that he would soon be stepping away from the Alliance to follow his new path as a Jedi.
Meanwhile, Leia could fill a central role in the negotiations without revealing her secret or jeopardizing the fragile Alliance. Her close relationship with Luke was well known, so it wouldn’t be odd for her to call for others to listen to his testimony and pleas. At the same time, her personal experience with Vader’s terror provided a solid counter balance that would have given her credibility as a negotiator. Leia thus could have wielded her influence in the process without risking the greater good.
The Alliance debate would have been equally swayed by other factors. Chief among those would be using Darth Vader to help quickly end the war. While ROTJ may have ended in a big party with space teddy bears, the war was far from over. Recent stories like the Shattered Empire comic, Aftermath trilogy, and upcoming the Battlefront II single player campaign make it clear that the Empire did not simply collapse just because the Emperor died.
Many in the Alliance would see Darth Vader as the linchpin to quickly ending the war. Vader would have been a goldmine of valuable intelligence of all aspects of the Imperial war machine. He also had a mythic reputation on the battlefield. Leveraging his knowledge and fighting abilities could mean a swift end to the fighting, which would have been incredibly tempting.
At the same time, taking any action short of a trial would risk undermining the Alliance’s legitimacy. Restoring justice to the galaxy was one of the Alliance’s core aims. Even if Darth Vader provided substantial help in ending the war, the Alliance would risk fracturing itself if he was not put on trial. Vader cut a wide and deep path of death and devastation during his time at the Emperor’s side. Alliance worlds bearing those scars would not simply stand by while the man responsible was let off. Likewise, many citizens regarded Vader as a symbol of Imperial leadership and oppression. If a man so widely regarded as evil avoided justice, their trust in the Alliance would be shattered. With one decision, the Alliance could lose the support of its members and the citizens of the galaxy they had fought so long for.
Get those high powered Coruscant criminal defense firms on speed dial, because there is almost no doubt that Anakin Skywalker would have faced trial. Luke and Leia might shape the debate to some degree, but they probably do very little to stem the fervor to hold him accountable. Although Alliance High Command might be open to a bargain in exchange for Vader’s military assistance, they would have no choice but to put him on trial.
Dr. Christine Palmer in Doctor Strange found herself having to treat an injured Dr. Strange in an homage to The Oath. Just what is a doctor’s duty to treat an injured person who enters an emergency room in New York?
Pursuant to Federal law, if someone goes to an emergency room and requests treatment of a medical condition, the hospital must first determine an emergency medical condition exists. 42 U.S.C.S. § 1395dd(a). If an emergency medical condition exists, the hospital must either treat the medical condition to stabilize the emergency or transfer the patient to another medical facility. 42 U.S.C.S. § 1395dd(b)(1)(A) and (B).
Dr. Strange did not enter Metro-General Hospital through mortal means such as an ambulance, but a sling ring. Supernatural portals to an emergency room are irrelevant to the fact Strange entered the emergency room with a medical condition. There was no question a medical condition existed, because Dr. Strange had been stabbed with a mystical weapon. While there is an argument that a magical injury would be beyond the facilities at Metro-General, treating a stab wound should be standard for any emergency room in the United States.
The next issue is whether Dr. Palmer had a physician-patient relationship with Stephen Strange. The test is whether a physician had rendered professional services that had been accepted by another for medical or surgical treatment. See, Hanrahan v. Good Samaritan Hosp. Med. Ctr., 2013 NY Slip Op 33418(U), ¶ 3 (Sup. Ct.). This is a factual issue for a jury. Quirk v. Zuckerman, 765 N.Y.S.2d 440, 442-43 (Sup. Ct. 2003) citing Wienk-Evans v North Shore Univ. Hosp. at Glen Cove, 702 N.Y.S.2d 917 .
The facts favor a finding that there was a physician-patient relationship. First, Dr. Strange entered the hospital via his sling ring. Second, Dr. Strange called for Dr. Palmer. Third, Dr. Palmer found Dr. Strange injured and choose to render medical treatment to Dr. Strange. As such, a jury could find Dr. Palmer had a physician-patient relationship with Strange.
Dr. Palmer owed Dr. Strange a duty to act as a “reasonably prudent doctor.” See, Masik v. Lutheran Med. Ctr., 2011 NY Slip Op 34163(U), ¶¶ 5-6 (Sup. Ct.), citing Nestorowich v Ricotta, 97 NY2d 393, 398. Conducting medical procedures on a patient with a mystical stab wound, who is also providing medical advice while battling his attacker on the astral plane, would definitely not be in the Physician’s Desk Reference. While turning up a defibrillator would not be something a “reasonably prudent doctor” would do, there is no expert testimony for doctors having a patient fight an astral attacker during treatment.
After Hal Jordan and Sinestro (who is temporarily made a Green Lantern again) seemingly die after a fight with Black Hand their combined Green Lantern ring seeks out a new bearer: it finds Simon Baz.
Baz however is busy… being interrogated by the FBI. Turns out he was accidentally involved in a car bombing (long story, see the events of Green Lantern: Rise of the Third Army for the whole thing).
Simon goes on to prove himself a Green Lantern in his own right and takes over as GL of sector 2814 (Earth). Among his other distinctions he is known as the only Green Lantern to carry a gun. Simon has taken flack about his gun from everyone from Hal to Kilowog, but the issue was brought to a head when he met Batman (who’s stance on guns is well known) in the recent Green Lantern/Batman crossover.
Simon and his partner Jessica Cruz (also a Green Lantern) are called to Gotham City to help the caped crusader solve a rash of criminal activity caused by fear. No more spoilers, check out Green Lanterns #16 and 17 for the whole story. Suffice to say that while in Gotham Simon meets Commissioner Jim Gordon.
Gordon is less than pleased to see Simon’s gun and tells him he can only carry it in Gotham with an open carry license. While there is no federal law that restricts open carrying of handguns several states have restricted the ability to open carry handguns without a permit or banned the practice all together. Being a fictional city there’s never been a clear indication of which state Gotham City is in, however there seem to be two front runners: New Jersey according to several sources in the comics, or Illinois according to artist Neil Adams who says the city is based on Chicago. Both states restrict the carrying of firearms with proper licensing, so Gordon’s line “Not unless it [the gun] comes with an open carry license from the Gotham City Registrar”, doesn’t narrow things down. See N.J. Rev. Stat. § 2C:58-4(a) for permitting requirements in NJ and 430 ILCS 66 for requirements in Il. Either way it seems Simon is in violation.
However, we don’t need to guess at what state Gotham is in since we know there are two real world places that Simon spends time in. He lives in Dearborn, Michigan and frequently visits his partner Jessica Cruz at her home outside of Portland, Oregon. Michigan’s open carry law is complicated by the release of Michigan State Police Legal Update No. 86, which seems to contradict Section 28.422 of Michigan’s laws and rectifying these two is well beyond the scope of this blog post. Plus I live in Oregon and until Peter Parker moves back here we only get this one comic book hero to look at with our state laws so… that’s what we’re going to do.
Oregon’s gun laws are found in ORS section 166, specifically 166.250 Unlawful Possession of Firearms. So long as a person is over 18 and the firearm is not concealed it is lawful to carry. Meaning Simon is ok to strap his pistol to his hip and visit Jessica for pancakes, right? Well, not exactly. When we are first introduced to Simon Baz in Green Lantern v.5 #0 we find out he’s got a history of illegal street racing and stealing cars. We never get an answer as to if Simon has ever been convicted before (since he’s being held in the DC universe’s version of Guantanamo there are some other concerns and the GL ring busts him out before we get too far into the case), but it strongly implied throughout the series that he has a criminal record. What we do know is that if he has a record it comes either from the street racing accident that results in his brother-in-law’s coma or for stealing cars. Stealing cars is a felony offense in Michigan and street racing that results in a serious injury would almost certainly be charged as felony reckless driving. If Simon has a felony record then he would be violating ORS 166.270 Possession of Weapons by Certain Felons, a class C felony when involving a firearm. So Simon would be better off leaving his gun at home.
Oddly, although Simon would likely be prohibited from wearing a pistol on his hip in most places he frequents (assuming that his felony record is more than just a suggestion), weapon laws are tied to specific terms like firearm or knife. So he’d be fine to keep his Power Ring which, while it may be the most powerful weapon in the DC Universe, is not a weapon by most legal definitions.
Jessica and I loved Wonder Woman. We sat down to discuss the new film, memories of the 1970s TV series, and the legal issues with compelling someone to incriminate themselves. We touch on the causes of World War I, war crimes, and a host of other topics in our review of Wonder Woman.