Join us for our analysis of The Mandalorian, season three.
Did Thor Commit Child Endangerment by Empowering Kidnapped Children with the Power of Thor [for a limited time] to fight Gorr’s Shadow Monsters?
There are many dilemmas superheroes face, but Thor Love and Thunder posed a new one: Do you empower kidnapped children to go full Ark of the Covenant on monsters hellbent on killing them? Does the act of empowering them to fight constitute child endangerment? If so, are there any defenses?
Child Endangerment to Fight Shadow Monsters
While Norse gods might have a different view of child endangerment, California defines the crime as follows:
“Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health is endangered, shall be punished by imprisonment in a county jail not exceeding one year, or in the state prison for two, four, or six years.”
Cal. Pen. Code § 273a
The events in Love and Thunder saw Gorr kidnap the children of New Asgard in his quest to kill all gods in the universe by going to the Gates of Eternity. Thor journeyed to where the children were falsely imprisoned and had a choice: take the children home, which would have let Gorr complete his genocidal plan or empower the children to also fight Shadow Monsters.
The legal issue is whether Thor willfully permitted the children to be placed in a situation where their health was endangered. The children were already kidnapped. If Thor took them from Gorr’s prison, the children would have been killed [along with every other Asgardian and other deity] by Gorr. However, powering up the children to effectively be child soldiers against Shadow Monsters meets the requirement for a child’s health to be endangered. While not a great choice, the empowered children were placed in danger. However, as soon as Thor liberated Stormbreaker, he gave it to Heimdall’s son Axl to return the children back to the safety of New Asgard.
The Necessity to Defense for Giving the Children the Power of Thor [Limited Time]
The purpose of the Necessity Defense is public policy not to punish individuals despite proof on all elements of a crime. People v. Beach, 194 Cal.App.3d 955, 973 (Cal. Ct. App. 1987)
In order to prove the Necessity Defense, the California Jury Instruction require the following:
1. Thor acted in an emergency to prevent a significant bodily harm or evil to the children;
2. Thor had no adequate legal alternative;
3. Thor’s acts did not create a greater danger than the one avoided;
4. When Thor acted, he actually believed that the act was necessary to prevent the threatened harm or evil;
5. A reasonable person would also have believed that the act was necessary under the circumstances; AND
6. Thor did not substantially contribute to the emergency.
CALCRIM No. 3403.
The arguments for each element are as follows:
-
- Thor had to empower the children because there was insufficient time to return them to New Asgard before Gorr committed mass genocide;
- Thor was no other option, because leaving with the children would have result in Gorr completing his mission to kill all gods, including the Asgardian children;
- Thor’s actions kept Gorr for a mass killing and allowed the children to defend themselves;
- Thor believed his actions were necessary to protect the children and lives of gods;
- A reasonable person would agree there were no other actions; and
- Thor did not contribute to the emergency, because the children had the power to defend themselves.
Thor really needs a jury to accept there was no other option other than empowering the children to fight the Shadow Monsters. Given the scope of the failure to do so, and the fact the children were saved (and had one heck of a therapy session destroying their kidnappers), the Necessity Defense should be successful.
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.