Join us for our legal analysis of Bad Batch season two!
How to Prosecute Wanda 616 for using Dream Walking to commit crimes on Earth 838
Dr. Strange and the Multiverse of Madness poised the question of whether any state on Earth 838 could prosecute the Scarlet Witch from Earth 616? In the movie, Wanda 616 used the body of Wanda 838 to murder all but one member of the Illuminati. Murder is a crime in New York state (NY Penal Law § 125.27). Additionally, Wanda 616 imprisoned Wanda 838 in a mental purgatory and used Wanda 838’s body to travel from New Jersey to New York. New Jersey has an interested in prosecuting Wanda 616 for both False Imprisonment (N.J.S. § 2C:13-3) and Kidnapping (N.J.S. § 2C:13-1), even though it would be a very new application of the law for possession by a person from another universe.
Putting aside the big question of traveling between parallel universes, what is the legal theory for “universal jurisdiction” for prosecuting Wanda 616?
Universal Jurisdiction
The challenge with “Universal Jurisdiction” is that it applies to piracy. Case law states:
“[P]iracy has for centuries been considered a universal jurisdiction crime based on international agreement, and, unlike the case with respect to modern universal jurisdiction crimes, there is little debate that all nations have authority to capture and punish any pirate.”
`The pirate is a sea brigand. He has no right to any flag and is justiciable by all.’ (quoting 2 John Bassett Moore, Digest of International Law 953 (1906)).
U.S. v. Hasan, 747 F. Supp. 2d 599, 611 (E.D. Va. 2010), citing Yousef, 327 F.3d at 104; In re Piracy Jure Gentium, [1934] A.C. 586, 595 (1934).
While aptly named, Universal Jurisdiction can’t cast a spell on Wanda 616.
Territorial Jurisdiction
The legal theory for prosecuting Wanda 616 is “Territorial Jurisdiction.” This jurisdiction is a court’s power over individuals for actions in a state.
New Jersey’s Territorial Jurisdiction states:
a. Except as otherwise provided in this section, a person may be convicted under the law of this State of an offense committed by his own conduct or the conduct of another for which he is legally accountable if:
(1) Either the conduct which is an element of the offense or the result which is such an element occurs within this State;
(2) Conduct occurring outside the State is sufficient under the law of this State to constitute an attempt to commit a crime within the State;
N.J. Stat. § 2C:1-3
New York’s Territorial Jurisdiction states:
[A] person may be convicted in the criminal courts of this state of an offense defined by the laws of this state, committed either by his own conduct or by the conduct of another for which he is legally accountable pursuant to section 20.00 of the penal law, when:
1. Conduct occurred within this state sufficient to establish:
(a) An element of such offense; or
(b) An attempt to commit such offense;
N.Y. Crim. Proc. Law § 20.20
Territorial Jurisdiction is the way New Jersey 838 and New York 838 could prosecute the Scarlet Witch, because she committed crimes within each state. Granted, serving the arrest warrant is rather problematic, but the science would eventually catch up to the law since Valeria and Franklin Richards would be pretty upset about their father’s murder.
Was Drax the Destroyer attacking the GoBot Cosplayer a Hate Crime?
We learned in the Guardians of the Galaxy Holiday Special that Drax the Destroyer had a cousin…who was killed by a GoBot. Upon seeing a person cosplaying as a GoBot, Drax immediately threatened violence. Drax later made good on his threats and repeatedly punched the GoBot cosplayer.
Was Drax’s attack a hate crime?
California law applies because the attack took place in Los Angeles, California. California’s hate crime law is stated in Penal Code 422.6(a):
No person, whether or not acting under color of law, shall by force or threat of force, willfully injure, intimidate, interfere with, oppress, or threaten any other person in the free exercise or enjoyment of any right or privilege secured to him or her by the Constitution or laws of this state or by the Constitution or laws of the United States in whole or in part because of one or more of the actual or perceived characteristics of the victim listed in subdivision (a) of Section 422.55.
“Hate crime” is defined in Penal Code section 422.55, which states that when a criminal action is committed, in whole or in part, because the victim had one or more of the “following actual or perceived characteristics”:
(1) Disability.
(2) Gender.
(3) Nationality.
(4) Race or ethnicity.
(5) Religion.
(6) Sexual orientation.
(7) Association with a person or group with one or more of these actual or perceived characteristics.
The punishment for a hate crimes conviction includes imprisonment in a county jail not to exceed one year, or by a fine not to exceed five thousand dollars ($5,000), and can include up to 400 hours of community service. Penal Code 422.6(c).
Was Drax battering a person cosplaying as a GoBot enough for a hate crime conviction? Arguably yes, because the reason for the attack was based on the fact Drax perceived the cosplayer to have the characteristics of a GoBot. This requires GoBots being a Nationality, Race, or Ethnicity in the Marvel Cinematic Universe. Since Drax recognized the cosplayer as a GoBot and Mantis stated a GoBot killed Drax’s cousin, apparently Gobotron is a planet in the MCU. Drax’s intent for committing the battery was solely based on the fact the cosplayer was dressed as a GoBot. As such, Drax’s intent for the battery was on the basis of the cosplayer having the perceived characteristics of a GoBot. This meets the requirements for a hate crime.
Drax’s defense is that he made a mistake of fact and merely violently battered the cosplayer repeatedly, but that defense likely would fly like a lead balloon.
Admissibility of Video Party Admissions from Hawkeye
In Hawkeye final episode “So This is Christmas,” attorneys had the great evidence gift of a video with individuals making very incriminating statements. Would those admissions be admission in either New York or Federal Court? The answer…is yes.
The former Black Widow Yelena Belova recorded Wilson Fisk (The Kingpin) and Eleanor Bishop discussing past criminal activity. While MCU villains know not to outright say, “I killed Armon for you,” Eleanor stated she “handled Armon like you asked.” This was after Armon had been killed at his home with a sword. Add in Eleanor’s statements that she had “never asked questions” and did what she was told, there are valid concerns she is admitting to crimes. Toss in her statement “[M]y fiancé is taking the fall for Sloan,” and there is a narrative of criminal activity. However, the icing on the cake is her stating, “I have been keeping an insurance policy. Copies of everything.”
All of those statements are hearsay, which is an out of court statement offered for the truth of the matter asserted. See, Federal Rule of Evidence 801(c)(3) and Nucci v. Proper, 95 N.Y.2d 597, 602 [2001]. The issue is, can those statements be party admissions for trial?
New York caselaw states the following on party admissions:
Plainly, defendant’s own statements could be received in evidence as party admissions ( see People v. Chico, 90 NY2d 585, 589 [1997]; Reed v. McCord, 160 NY 330, 341 [1899] [“admissions by a party of any fact material to the issue are always competent evidence against him, wherever, whenever or to whomsoever made”]; Prince, Richardson on Evidence § 8-201, at 510 [Farrell 11th ed] [defining an admission as “an act or declaration of a party . . . which constitutes evidence against the party at trial”]).
People v. Caban, 5 N.Y.3d 143, 151 n._ (N.Y. 2005).
New York’s law holds that Eleanor’s statements could be admitted in evidence, because they go to the following material facts: 1) the death of Armon; 2) her fiancé taking the fall for Sloan; and 3) she kept copies of “everything” as an insurance policy. All of these statements have supporting facts. The ugliest is the corpse of Armon. The easiest is the arrest of Eleanor’s fiancé. The trickiest is the “insurance policy” with “copies of everything.” Provided Wilson Fisk is no longer operating out of a penthouse and now the backroom of a restaurant or dry cleaners, it looks like he is hiding from law enforcement after his conviction in Daredevil season 1 and arrest in Daredevil season 3. Fisk is a wanted man for a long list of RICO charges ranging from murder, bombing Hell’s Kitchen, human trafficking, and aggressive urban redevelopment. The “insurance policy” and established list of crimes, all point to the statements being admissible.
Federal law would have the same result as New York. Statements against interested are admissible under Federal Rule of Evidence Rule 804(b)(3)(A) and (B):
(A) a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability; and
(B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.
Federal law also requires that the statements be truth worthy and that “declaration against interest exception is unreliable unless the declarant is aware at the time of making the statement that it is against his interest.” See Donovan v. Crisostomo, 689 F.2d 869 (9th Cir. 1982); Workman v. Cleveland-Cliffs Iron Co., 68 F.R.D. 562 (N.D.Ohio 1975).” Roberts v. City of Troy, 773 F.2d 720, 725 (6th Cir. 1985).
Neither knew Eleanor or Fisk knew they were being recorded. This gives their statements an air of trustworthiness, because they were being very direct in their statements, without crossing into the fanciful “here is my detailed admission for how I killed Armon.” However, no sane person admits to murdering someone (also known as “handling”) or that they had their fiancé get arrested. Those statements are textbook “expose to criminal liability.” A Court could find these statements were trustworthy and that the speakers knew they were subjecting themselves to criminal liability.
Elsa Bloodstone’s Necessity Defense for Committing Desecration of a Corpse
In Werewolf by Night, our heroes Elsa Bloodstone and Jack Russell were trapped in the Bloodstone family mausoleum during the hunt of the Man-Thing. In order to escape, Elsa broke open the crypt of her Aunt Francis in order to escape. Were her actions desecration of a corpse and were they legally justified?
Members of the Bloodstone family were buried in a Westminster family crypt, which is a crypt that can house multiple bodies. “Crazy” Aunt Francis was interned in her crypt since her death in 1922. Elsa smashed the front of the crypt in order to remove 1) an arm; 2) a skull; 3) a weapon; and 4) keys, as Aunt Francis believed she would return from the dead.
The law has long recognized that disturbing a dead body as a crime. Multiple California laws protect corpses from the exact actions Elsa took on the corpse of Aunt Francis. Cal. Pen. Code § 594.35 states:
Every person is guilty of a crime and punishable by imprisonment pursuant to subdivision (h) of Section 1170 or by imprisonment in a county jail for not exceeding one year, who maliciously does any of the following:
(a) Destroys, cuts, mutilates, effaces, or otherwise injures, tears down, or removes any tomb, monument, memorial, or marker in a cemetery, or any gate, door, fence, wall, post or railing, or any enclosure for the protection of a cemetery or mortuary or any property in a cemetery or mortuary.
(b) Obliterates any grave, vault, niche, or crypt.
(c) Destroys, cuts, breaks or injures any mortuary building or any building, statuary, or ornamentation within the limits of a cemetery.
(d) Disturbs, obstructs, detains or interferes with any person carrying or accompanying human remains to a cemetery or funeral establishment, or engaged in a funeral service, or an interment.
Elsa’s actions to open her aunt’s crypt in order to gain access to its contents are the type forbidden by § 594.35. However, was her desecration of a corpse legally justified by the necessity defense in order to save the Man-Thing from the hunters trying to kill him?
The necessity defense is a six-part test based on public policy for a greater harm to be stopped by a lesser violation of a law. The factors include:
1. The act charged as criminal must have been done to prevent a significant evil;
2. There must have been no adequate alternative to the commission of the act;
3. The harm caused by the act must not be disproportionate to the harm avoided;
4. The accused must entertain a good-faith belief that his act was necessary to prevent the greater harm;
5. Such belief must be objectively reasonable under all the circumstances; and
6. The accused must not have substantially contributed to the creation of the emergency.
People v. Heath, 207 Cal.App.3d 892, 898 (Cal. Ct. App. 1989), citing People v. Pena, 149 Cal.App.3d at pp. Supp. 25-26, fns. omitted.
Elsa’s action were justified by the necessity of assisting Jack Russell in saving the Man-Thing. First, the act of disturbing Aunt Francis’ grave was done to prevent the significant evil of killing Ted Sallis (Man-Thing); Second, there was no other way out of the mausoleum; Third, the harm of removing items from a crypt was not disproportionate to the harm of Ted Sallis being killed; Fourth, Elsa had a good-faith believe her actions were necessary to prevent the death of Sallis; Fifth, her belief was objectively reasonable under the circumstances of trained monster hunters seeking to kill Sallis; and Sixth, Elsa did not contribute to the emergency of getting locked in the crypt or organizing the hunt.
The one problem for Elsa is she was willingly participating in the hunt, but she abandoned her participation after learning facts from Jack Russell.
Elsa Bloodstone could successfully argue her actions desecrating the century old corpse of her aunt were legally justified under the necessity defense to save the Man-Thing from being hunted to death.
Regarding Ted
The Disney+ Halloween special Werewolf by Night has the first MCU appearance of the Man-Thing, who was referenced in the Agents of SHIELD episode “Nothing Personal.” In Marvel Comics, the Man-Thing is Dr. Theodore “Ted” Sallis, who was a scientist who tried recreating the Super Soldier serum with the help of a demon. Yes, an actual demon, as opposed to a vulture capital firm. Events turn sideways and Ted ends up as the Man-Thing guarding the Nexus of All-Realities, somewhere in the Everglades of Florida.
In Werewolf by Night, Ted was captured by a cult of monster hunters as part of a ritualistic hunt to select a new leader after the death of Ulysses Bloodstone. The late Ulysses Bloodstone owned the Bloodstone relic, a mystic artifact that was used to hunt “monsters.” The Bloodstone relic was attached to Ted’s back and the hunt was “won” by whoever killed Ted in order to recover the relic and become the new leader of the hunter cult.
As a one swamp based poet once said, it is not easy being green. Dr. Sallis lived this maxim in being captured and hunted by the Bloodstone cult.
Hunting People is Murder
Somethings should not be need to be said, but hunting a human being for sport is murder if you succeed in the hunt, attempted murder if you try to kill the person, and a conspiracy to commit murder if you participate in the hunt with the objective of killing the person.
Murder is defined as the “unlawful killing of a human being, or a fetus, with malice aforethought.” Cal. Pen. Code § 187. First Degree Murder is all murder that is perpetrated with explosive devices, weapons of mass destruction, armor piercing ammunition, lying in wait, or any willful, deliberate, and premeditated killing that includes kidnapping. Cal. Pen. Code § 189. Furthermore, anyone who attempts to commit First Degree Murder, but fails to do so, shall be punished with life imprisonment with the possibility of parole. Cal. Pen. Code § 664(a).
But wait, some will say the Man-Thing is not a human being. Exhibit A to counter this claim is the name given to Ted by a cruel society: MAN-Thing. Not The Thing, because he is not orange; Not Swamp-Thing, because that is a different company. No, Ted is called Man-Thing in a recognition of his humanity.
Hunting Dr. Ted Sallis was done because of his physical condition of being a giant swamp creature whose touch burns those who know fear. These are physical disabilities. While normally in the employment context, the Americans with Disabilities Act (ADA) was enacted because Congress identified a history of irrational employment discrimination where society isolated and segregated individuals with disabilities. Board of Trustees of Univ. of Alabama v Garrett, 531 U.S. 356 (2001), citing 42 U.S.C. 12101(a)(2).
The ADA states that no “entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112. A “Qualified individual” is someone who, with or without reasonable accommodation, “can perform the essential functions of the employment position that such individual holds or desires. ” 42 U.S.C. § 12111(8).
A “disability” is defined as a physical or mental impairment that substantially limits one or more major life activities. 42 U.S.C. § 12102(1)(A). “Major life activities” can include any of the following, but are not an exhaustive list: caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. 42 U.S.C. § 12102(2)(A). Major life activities also include bodily functions, such as normal cell growth, neurological, and other bodily functions. 42 U.S.C. § 12102(2)(B).
Ted appears unemployed and homeless. He cannot speak and has difficulty communicating. Moreover, he does not have normal cell growth, as evidenced by the swamp growing from his body and physical contact causes others to burst into flames if they experience fear. “Man-Thing” would be considered disabled under the Americans with Disabilities Act.
Dr. Sallis was targeted by a cult because of his status as a “monster.” He was kidnapped from a swamp and brought to the Bloodstone compound, possibly across state lines, in order to be hunted. The real monsters in this story were those wearing cloaks and masks, not ones covered in moss or fur.
Lower Decks Season Three Podcasts
We are back reviewing each episode of Star Trek Lower Decks season three!