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How Doublegangers Cause Mayhem for Justice

Cloak and Dagger season 1 ended with Detective Brigid O’Reilly surfacing in a swamp after getting shot and doused with otherworldly energy. The only side effects she experienced were glowing eyes and looking very determined.

None of that is a good sign. Spoilers ahead for Detective O’Reilly’s legal problems resulting from her injuries.The season 2 opening episode “Restless Energy” followed a traumatized Detective O’Reilly who was unable to hit her target at the firing range and excessive drinking. After leaving a bar to throw up outside, O’Reilly saw a second reflection of herself in a puddle, who effectively told the drunken O’Reilly the reflection was taking over. What followed was O’Reilly acting more confident, wearing her badge around her neck, and illegally entering suspect property by shooting the lock off the gate. O’Reilly choked a suspect for information before slashing his throat with her bare hand.

The episode shocker was not O’Reilly becoming a murderer…that there was a second Brigid O’Reilly. Tyrone found the “original” O’Reilly bound and gaged on her apartment floor. The episode ended with O’Reilly confronting herself.

The Prime O’Reilly has significant legal problems because of “Mayhem O’Reilly.” If Mayhem is physically identical to the Prime O’Reilly, there is DNA evidence on the murder victim with the slashed throat. Ballistics would show that the bullet shot at the lock on the suspect property came from the Prime O’Reilly’s gun. Literally every act of Mayhem could be traced back to the Prime O’Reilly if the O’Reilly’s are physically identical.

The stakes are very real for Prime O’Reilly, because the death of the suspect paramedic could be First Degree Murder in Louisiana. First Degree Murder is when there is specific intent to kill or inflect great bodily harm while the offender is engaged in aggravated kidnapping. La. Rev. Stat. Ann. § 14:30. Holding the paramedic by the throat arguably was aggravated kidnapping, because Mayhem O’Reilly prohibited the paramedic from leaving after removing his body from the crashed ambulance. La. Rev. Stat. Ann. § 14:44. However, there is an argument that the paramedic was under arrest, but there are questions whether the arrest was valid given the 4th Amendment violation of entering the property by force without a warrant or exigent circumstance.

If all of the requirements for First Degree Murder are not met, Mayhem O’Reilly could be charged with Second Degree Murder, which is when the offender has a specific intent to kill or to inflict great bodily harm. La. Rev. Stat. Ann. § 14:30.1. Slashing a man’s throat after squeezing information out of him clearly is “specific intent” to kill.

A dead body that has O’Reilly’s DNA on it is highly concerning for her, because Second Degree Murder and Kidnapping can be punished in Louisiana by “life imprisonment at hard labor without benefit of parole.” La. Rev. Stat. Ann. § 14:30.1 and La. Rev. Stat. Ann. § 14:44. First Degree Murder can carry the death sentence.

Proving someone with identical DNA and fingerprints committed a crime is the stuff of comic books. While the story takes place in the Marvel Cinematic Universe, that is still a tall order for a jury to believe. Perhaps if there were GPS location data for each O’Reilly with time stamps and video evidence, there might be a way to exonerate Prime O’Reilly. Alternatively, if both O’Reilly’s were captured and charged with the same crimes, there would be a strong “beyond reasonable doubt,” because a jury would not convict both O’Reilly’s knowing one was the innocent one.

Poor Unconscionable Souls

In 1989, The Little Mermaid made a splash in theaters for the very first time. The story centers around rebellious teenaged mermaid, Ariel, who longs to be part of the human world. Her journey from fins-to-feet is an adventure full of catchy tunes, fishy friends, and… unconscionable contracts?

Let’s get this straight. Ariel strongly desires to become human. Intrigued by the mystique of both her favorite shipwrecked treasures and allure of the human Prince Eric (which, let’s be honest who wouldn’t be?), she is willing to trade her fins in for feet and leave her family and friends behind in the water.

Preying on Ariel’s desire and naiveté, an evil sea-witch named Ursula provides Ariel with a contract and a magic potion to turn her into a human for three days. In order to remain human permanently, before sunset on the third day Eric must fall in love with Ariel. This requirement is satisfied by a kiss- the kiss of true love. If Ariel does not complete this task, she is to be turned back into a mermaid and “belong” to Ursula. Essentially, if Ariel does not convince Eric to fall in love with her, she is selling her soul to the sea-witch.

Seems legit, right? Oh, but it only gets worse.

Ursula quickly exclaims: “Oh, and there is one more thing- we haven’t discussed the subject of payment- you can’t get something for nothing, you know.” Ariel, being a sixteen-year-old mermaid does not have much money, but Ursula does not seem to mind her lack of riches. What Ursula asks of Ariel in exchange for human legs is her voice. Initially unsure, Ariel ultimately gets persuaded by Ursula to sign the contract by emphasizing the importance of her looks, her pretty face, and of course, body language!

Okay, let’s discuss the law on this subject. Under California law, if the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionable result. Civ. Code, § 1670.5. To be found unconscionable, “both a “procedural” and a “substantive” element” must be met. A & M Produce Co. v. FMC Corp. (1982) 135 Cal.App.3d 473, 486.

While both procedural and substantive unconscionability must be present for a contract or clause to be held unenforceable, there exists a “sliding scale relationship” between the two concepts meaning “they need not be present in the same degree.”  Carboni v. Arrospide (1991) 2 Cal.App.4th 76, 83; Higgins v. Superior Court (2006) 140 Cal.App.4th 1238, 1249.

Procedural unconscionability concerns the “manner in which the contract was negotiated and the circumstances of the parties at that time,” focusing primarily on factors of oppression and surprise. Morris v. Redwood Empire Bancorp (2005) 128 Cal.App.4th 1305, 1319.  “Substantive unconscionability focuses on the one-sidedness or overly harsh effect of the contract term or clause.” Lhotka v. Geographic Expeditions, Inc. (2010) 181 Cal.App.4th 816, 824–825. The substantive element also concerns whether a contractual provision “reallocates risks in an objectively unreasonable or unexpected manner.” Id., 821.

In the case of Ariel v. Ursula, it is abundantly clear the Ursula is in the position of superior bargaining power (she is the magical sea-witch after all!). Of course, Ariel does not have much power to negotiate the terms of the agreement, making the contract for humanity in exchange for voice and potential soul ownership unduly oppressive. Also, the fact that Ursula waits until the end of her spiel to mention the method of payment, being Ariel’s voice, is most likely evidence that there is at least some surprise involved during contract formation. Thus, procedural unconscionability is most likely substantially met.

It must be noted that Ariel states, “If I become human, that means I’ll never be with my father and sisters again.” To this Ursula responds, “but you’ll have your man.” In defense of Ursula, this demonstrates that Ariel does understand the severity of the situation, and that there is at least some consideration on both sides of the agreement. However, due to the overly one-sided, harsh terms of the contract, a court would likely find that this agreement reallocates risks in an unexpected manner (i.e., if Ariel does not get Prince Eric to fall in love with her, she becomes one of Ursula’s possessions!). Thus, Ursula’s contract with Ariel would most likely be deemed substantively unconscionable as well.

The presence of high degrees of both procedural and substantive unconscionability makes this contract unmistakably unconscionable under California law. Though luckily Ariel gets the kiss from Eric and her voice back from Ursula, this contract would have undoubtedly been unenforceable from the start!

Lawyers Go Batty Over the World’s Greatest Detective from Gotham

We had a Bat-tastic time at WonderCon 2019 with our panel honoring the 80th Anniversary of Batman. A big thank you to Matt Weinhold from MonsterParty for moderating the panel, and our great attorney presenters Steve Chu, Courtney McNulty, and Jordon Huppert. Check out the video, podcast, and photos below.

Special thank you to Autumn Ericson for serving as our photographer.

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Fraud in the Matrix

The Matrix confronted audiences with the question of whether they would choose freedom over slavery, even if choosing freedom meant sacrificing the comforting illusion of material security. Sometime prior to the events in The Matrix, Morpheus (Laurence Fishburne) convinced Cypher (Joe Pantoliano) to take the red pill and escape the Matrix. However, once he realizes the depressing and terrifying reality of existence outside of the Matrix, Cypher strikes a deal with the evil Machines to be reinserted into the computer simulation.

But what if, instead of betraying his crew to the Machines in exchange for reinsertion, Cypher took a slightly less dastardly approach and sued Morpheus for fraud, alleging that Morpheus’s promises of freedom and truth were misleading?

Generally, fraud is any unfair means of deceiving another and is typically associated with misconduct in inducing a contractual agreement. However, fraud may also support liability for personal injury. For example, Cypher might allege that Morpheus’s misleading recruitment practices exposed Cypher to lethal risks of physical harm, such as the relentless pursuit by demonic flying robots bent on the extermination of every free human being on the planet.

Assuming that the free human society of The Matrix has adopted California law, proving intentional fraud may be an uphill battle for Cypher. To establish this kind of intentional deceit, Cypher would have to prove that Morpheus’s enticement to take the red pill involved an intentional misrepresentation of fact that was made with Morpheus’s knowledge of the fact’s falsity. See Kumaraperu v. Feldsted, 237 Cal. App. 4th 60, 70 (2015).

However, The Matrix establishes Morpheus as a man of profound faith who sincerely believes the prophecies of The One as factually true. Morpheus genuinely believed that “the truth,” a life free of the Matrix’s lies, was objectively better than the alternative, and he never said that he was offering anything other than the truth.

In that case, Morpheus’s conduct may be better described by the type of fraud that involves nondisclosure of material fact. See Cal. Civil Code § 1710(3). Specifically, Cypher would allege that Morpheus did not disclose the major downside to choosing freedom from the Matrix: a refugee-like existence in a post-apocalyptic hellscape.

But this kind of legal liability for misrepresentation by omission arises only in the context of fiduciary or confidential relationships. Ordinary salesmanship, even if not entirely forthcoming, is not unlawful misrepresentation by omission unless the defendant is in a unique position to unfairly exploit your trust. There’s no evidence in The Matrix that Cypher and Morpheus had that kind of relationship at the time Cypher swallowed the red pill.

Ultimately, Morpheus’s mysterious but technically accurate salesmanship would likely prevail over Cypher’s allegations of fraud. Perhaps the moral of Cypher’s buyer-beware story is to never trust salespeople in cool dark sunglasses, no matter how much kung fu they know.

We’re Going to WonderCon 2019!

The Legal Geeks are returning to WonderCon for TWO panels! Check out our panel schedule for Friday and Sunday!

Stormtrooper Defective Body Armor Mock Trial 

Friday March 29, 2019 6:30pm – 7:30pm, Room 200B

Imperial Stormtroopers are tired of being beaten up with sticks by blind fanatics and Ewoks. The Imperial Department of Military Research expressly warranted that all armors would protect Stormtroopers from projectile weapons. Legions of Stormtrooper associations have sued the manufacturer of body armor for defective design, breach of warranty, and fraud. Can Stormtroopers find justice or are they doomed to get the short end of the stick? Find out as attorneys Kathy Steinman, Doug Ridley, Christine Peek, and Jack Yang argue before U.S. Federal Magistrate Judge Mitch Dembin. Brought to you by The Legal Geeks.

Lawyers Go Batty Over the World’s Greatest Detective from Gotham

Sunday March 31, 2019 2:30pm – 3:30pm, Room 300D 

Holy Liability! Lawyers answer the Bat-Signal to debate the greatest legal issues from Bat-tastic stories across comics, animation, television, and movies, over the last 80 years! How could the Gotham police in 1966 deputize vigilantes without violating the Constitution? What is the liability for a crime-fighting vigilante for the death of a child sidekick? What are the legal issues for a mental hospital acting as a prison for super-villains? Find out from our panel of attorneys including Steve Chu, Courtney McNulty, Jordon Huppert, and Joshua Gilliland. Moderated by Matt Weinhold of MonsterParty and brought to you by The Legal Geeks.

Two-Face Civil Rights Mock Trial at San Diego Comic Fest 2019

We returned to San Diego Comic Fest for a mock trial inspired by Arkham Asylum: A Serious House on a Serious Earth, where Two-Face had sought a preliminary injunction to keep his doctors from taking his silver dollar away as “treatment.” The case was argued by Ezekiel Bottorff and Mackenzie Parker from Golden Gate University for the Plaintiff and Claudia Salinas, Ching-Yun Li, both from California Western School of Law, and Zachary Sterling, from the University of Kentucky, for the Defendants. Job well done in bringing this mock trial to life.

Special thanks to US Magistrate Judge Mitch Dembin for presiding over the hearing, Dr. Janina Scarlet and Dr. Asher Johnson for serving as expert witnesses, and Kathy Steinman and Stephen Tollsfield for assisting as coaches for the teams.

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Check out the audio from the mock trial, available on our podcast channels.

The Duty to Rescue and Pinky Swears on Star Trek Discovery

Is there a duty to rescue Starfleet Officers kidnapped into the Mycelial Network? Are pinky swears legally enforceable? And is someone still a murderer when the murder victim comes back to life? The Star Trek Discovery episode “Saints of Imperfection” boldly explores these legal issues.

Does Being in Starfleet Create a Duty to Rescue Shipmates?

Captain Christopher Pike ordered the USS Discovery to go on a rescue mission to find Ensign Sylvia Tilly who had been kidnapped to the Mycelial Network. Captain Pike explained that “Starfleet is a promise,” that “no one gets left behind,” and that “we keep out promises.” This is absolutely the best core values of Star Trek, but was there a legal duty to place the USS Discovery in danger to rescue Ensign Tilly?

There is no general common law duty to rescue someone unless there is a special relationship. Rhodes v. Illinois Cent. Gulf R.R., 172 Ill. 2d 213, 232-233 (Ill. 1996). A duty to rescue can be created between individuals by 1) statutes; 2) contractual relationships; or 3) impliedly by virtue of the relationship between the tortfeasor and a third party. Bobo v. State, 346 Md. 706, 715, 697 A.2d 1371 (1997).

Captain Pike’s first duty was to the safety of the USS Discovery. He himself admitted the plan to partially jump into the Mycelial Network was highly dangerous. Moreover, if the ship was destroyed or life lost, there is a good argument Pike could have been charged with willfully hazarding a vessel. 10 U.S.C.S. § 910. There is a sound argument that Pike had no obligation to launch a rescue mission that could have endangered the lives of everyone on the ship.

The fact that the crew of the USS Discovery purposely embarked on a dangerous plan to rescue a fellow shipmate is why people love Star Trek. There was no legal duty for the crew to place themselves in danger to save Ensign Tilly; it was a choice to leave no one behind. The crew knew the risks and went on the mission anyway. Those are the qualities of why fans have loved Star Trek for over 50 years.

Are Pinky Swears Enforceable?

Ensign Tilly made a “Pinky Swear” with Mycelial entity known as May to help her with a “monster” that had invaded the Mycelial. When challenged about helping May, Tilly responded, “I told you I would try to help you. We keep our promises.”

Did Ensign Tilly and Mycelial May have an enforceable contract agreement? Basic contract formation includes offer, acceptance, consideration, and performance. There are many types of contracts that require a written document to avoid any issues from the Statute of Frauds.

There was an offer and acceptance for Tilly to help May. However, while contract law does not specifically address Pinky Swears, the law does recognize oral contracts. In California, all contracts may be oral, except such as are especially required by statute to be in writing. Cal. Civ. Code § 1622. The list of contracts that must be in writing is a long one, but overall includes contracts that cannot be performed within one year to real property and payment of debts, plus similar contractual relationships. Cal. Civ. Code § 1624.

Tilly’s promise to “help” has serious vagueness challenges to performance. What exactly did the term “help” mean for Tilly’s performance? Contracts must be for a lawful objective and cannot be ones for personal service. Cal. Civ. Code § 1550 and Cal. Civ. Code § 3390. Moreover, unenforceable unlawful contracts are ones that are contrary to an express provision of law; contrary to the policy of express law; or contrary to good morals. See, Cal. Civ. Code § 1667. As the term “help” is not defined, there is real danger that Tilly could be required to perform an action that is against public policy, which the law would not allow.

The “monster” causing harm to the Mycelial Network was a resurrected Dr. Hugh Culber, who had avoided being digested the Mycelial spores with tree bark toxic to the spores. If May’s idea of “help” was murdering Dr. Culber, there is no way a court would enforce Tilly’s performance. Murder is against public policy.

On the flip side, Tilly does “help” May by explaining the Dr. Culber was a victim and to him, the spores were monsters literally burning away at him.

In the end, Tilly and crew do keep their promise to help, without violating public policy.

When Your Murder Victim Comes Back to Life

Dr. Hugh Culber is alive….again? Lt. Ash Tyler killed the good doctor while the Klingon Voq was in control of Tyler’s body. While there is a strong insanity defense argument for Tyler, things get weird fast with a murder victim returning from beyond the veil. If Tyler wanted to clear his name, attorneys could try to prove Tyler’s actual innocence by arguing that Culber never died and had been in the Mycelial Network for months. This is a problematic argument, because there is a body of Dr. Hugh Culber with a snapped neck. Even if Tyler wanted to clear his name, there is no good legal strategy for that goal, because there is still a dead body of Dr. Culber; that Voq committed the act of murder; and no matter what, Dr. Culber has a newly reconstructed body. Dr. Culber coming back from the dead does not give Voq a mulligan for murder.

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