Join us at Long Beach Comic Con for Daredevil and Jessica Jones

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September 14, 2016

Join fellow McGeorge alumni Megan Hitchcock and I for our first appearance at Long Beach Comic Con. We are excited to be presenting on the legal issues in Marvel’s Daredevil and Jessica Jones, Sunday, September 18, at 330pm, for “The Lawyers of Hell’s Kitchen.”

We look forward to seeing you at Long Beach Comic Con!

Program Information:

Marvel’s Daredevil and Jessica Jones both focus on lawyers and the practice of law, from Matt Murdock’s creative pro bono community service fighting crime to Jessica Jones serving a summons. Join us to determine if Karen Page properly acted in self-defense when she shot Wesley; whether Matt Murdock or Jeri Hogath is most likely to be disbarred; what would be the best way to defend the Punisher; and how the insanity defense applies to those under mind control. Join us when court is in session.

Date: Sunday, September 18, 2016

Time: 3:30-4:30 PM

Location: Danger Room, S1

San Francisco Comic Con Schedule for The Legal Geeks

By

Josh Gilliland

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August 13, 2016

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We hope you can join us at San Francisco Comic Con, September 2 to 4, 2016! We have five panels that cover Star Trek, Daredevil/Jessica Jones (both Saturday and Sunday), Star Wars, and Agents of SHIELD/Agent Carter/Captain America. We are extremely honored to participate in the first SFCC. Check out our schedule below.

Friday

STAR TREK: NOT EVERY CASE IS THE KOBAYASHI MARU

7:30pm – 8:30pm | Pacific H

The world of Star Trek has presented legal issues in infinite diversity in infinite combinations. Join the away team to discovery the new world of assumption of risk for Red Shirts, whether Tribbles are an invasive species, or if Scotty argue the insanity defense for being possessed by Jack the Ripper, and more from every Generation of Star Trek.

Panelists: Angela Story and Joshua Gilliland

Saturday

BLIND JUSTICE ON THE ROCKS: THE LAW OF DAREDEVIL AND JESSICA JONES

11:30am – 12:30pm | Pacific J

Marvel’s Daredevil and Jessica Jones both focus on lawyers and the practice of law, from Matt Murdock’s creative pro bono community service to Jessica Jones serving a summons. Join us to determine if Karen Page properly acted in self-defense, whether Matt Murdock or Jeri Hogath is most likely to be disbarred, and how the insanity defense applies to those under mind control. Join us when court is in session.

Panelists: Neel Chatterjee and Joshua Gilliland

THE LAW AWAKENS: STAR WARS LAW
4:00pm – 5:00pm | Pacific H

Star Wars is more than a space opera, it is an adventure in the law! Was Han Legally Justified to Shoot First? Did Kylo Ren commit desecration of Anakin Skywalker’s corpse? What are the employee safety issues in Jabba’s Palace? Did Poe lose his ownership rights to BB-8? Could someone be prosecuted for torturing a Droid? Join us to know the ways of the law.

Panelists: Megan Hitchcock and Joshua Gilliland

Sunday

LEGAL DAREDEVILS: MATT MURDOCK, JESSICA JONES, AND FRANK CASTLE

11:30am – 12:30pm | Pacific A

Marvel’s Daredevil and Jessica Jones both focus on lawyers and the practice of law, from Matt Murdock’s creative pro bono community service to Jessica Jones serving a summons. Join us to determine if Karen Page properly acted in self-defense, whether Matt Murdock or Jeri Hogath is most likely to be disbarred, and how the insanity defense applies to those under mind control. Join us when court is in session.

Panelists: Christine Peek and Joshua Gilliland

CIVIL WAR TO CIVIL RIGHTS: THE LAW OF THE MCU

1:00pm – 2:00pm | Pacific A

The Marvel Cinematic Universe is a world where SHIELD conducts global surveillance with every cell phone camera on Earth without a search warrant, Inhumans are held in suspended animation without a trial, and Captain America stopped the mass assassination of millions of Americans. Our panel will explore the Constitutional issues that include wiretaps, search warrants, and Civil Rights from Captain America Civil War, Captain America The Winter Soldier, Agents of SHIELD, Avengers Age of Ultron, Agent Carter, and more.

Panelists: Sylvia La Rosa and Joshua Gilliland

Daredevil Cannot Change Venue from New York to Texas

By

Josh Gilliland

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August 2, 2016

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Charles Soule is hitting the bullseye with the Daredevil/Punisher “Seventh Circle” limited series. The premise is simple: get a defendant to the airport alive so he can stand trial. The story is a classic tale of due process of law verse vigilantism.

The story is awesome; however, the legal justification to fly a New York defendant to Texas is flawed. “Seventh Circle” begins with a New York State defendant named Sergey Antonov being taken to the airport to be tried in Texas. New York State Prosecutor Matt Murdock told Antonov the change of venue was needed because “too many people here hate you.” Daredevil/Punisher, issue 1.

New York State would NOT transfer an accused person to be tried in Texas. New York law allows for a change of venue in order for a Defendant to have a fair trial to another county in New York State, not another state. N.Y. Crim. Proc. Law § 230.20.

Daredevil/Punisher got it right that Matt Murdock could bring the motion to change the venue of the trial, because the State or the Defendant can bring a motion if there is good cause. Id. Proving good cause because “everyone hates” the Defendant is another matter.

The usual way to ensure a fair trial is with jury voir dire. People v. Boudin (App.Div. 1982) 457 N.Y.S.2d 302, 305. The purpose of asking the potential jurors questions is to root out prejudice. If there was a prospective juror who was a victim of organized crime, or someone who had immediate family in law enforcement, for the trial of a mob boss, those could be valid reasons to thank a juror for their service and excuse them.

One case that had a change of venue had 76 news articles appear about the case in a 50-day period. People v. Boudin (App.Div. 1982) 457 N.Y.S.2d 302, 305-306. There were thirty-two front-page stories with more than 50 photos. Id. The local paper that featured the stories was ready by 2/3 of the households in that county. Id.

One Court explained how a tidal wave of press could justify a change of venue:

A criminal defendant has the right to a fair trial, and a trial that is not dominated by a “wave of public passion” that is not overwhelmed by press coverage and that is not conducted in a “carnival atmosphere.” Removal of an action pursuant to CPL 230.20 (2), or “change of venue” is a means of preventing this type of unfairness.

People v. Boss (App.Div. 1999) 701 N.Y.S.2d 342, 343-345, citing Irvin v Dowd, 366 US 717, 728, Murphy v Florida, 421 US 794, 798, and Sheppard v Maxwell, 384 US 333, 358.

“Seventh Circle” is silent on why “people hate” the Defendant, besides being evil and poisoning an opposing mob family’s Christmas dinner. Other cases that have found exceptional circumstances for a change of venue have included:

1) Repeated television broadcasts of lengthy interview of defendant in which he admitted the commission of the charged murder;

2) Widespread publication of court’s ruling on suppression motion with detailed rendition of testimony adduced at pretrial hearing;

3) Television broadcast of defendant’s re-enactment of the crime; and

4) Television broadcast of damaging interviews with defendant permitted by police.

Boudin, at * 305, citing Rideau v Louisiana, 373 U.S. 723, People v Marturano, 24 AD2d 733, People v Luedecke, 22 AD2d 636, and People v Martin, 19 NY2d 864.

It is extremely possible that a high profile organized crime case with extensive press coverage could warrant a transfer of venue. Moreover, we do not know if the fictional Court tried empanelling a jury, only to have it fail. Regardless, even if there was good cause, the State of New York would not have a case tried in Texas.

The change of venue aside, “Seventh Circle” is a fantastic adventure with Daredevil and Punisher. Matt Murdock is the prosecutor dedicated to a defendant having a fair trial. Frank Castle is the killing machine Hell bent on murdering a defendant. The artwork is great and the story solid. My compliments to the creative team for a great Daredevil/Punisher story.

Strategies for Direct Examination of the Punisher

By

Josh Gilliland

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March 24, 2016

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The Daredevil season 2 episode, “Guilty as Sin” had Frank Castle testify in his capital murder trial. This high risk trial strategy was to connect the dots to the defense expert’s theory that Castle suffered from “Sympathetic Storming,” due to the traumatic brain injury from being shot in the head.

Matt Murdock’s direct examination of Frank Castle did not go well. Castle exploded on the stand, due to a deal offered to him from a police officer from an unknown individual.

Was Murdock right to treat Castle as a hostile witness? Did Murdock have other options for conducting the direct examination? Let’s explore possible case strategy.

The Defense theory centered on Castle suffering from “Sympathetic Storming.” This condition is “theorized to be an increase in activity of the sympathetic nervous system created by a disassociation or loss of balance between the sympathetic and parasympathetic nervous systems.” See, Denise M. Lemke, MSN, APNP-BC, CNRN, “Sympathetic Storming After Severe Traumatic Brain Injury.”

Those suffering from “Sympathetic Storming” can be in a “state of agitation, extreme posturing/dystonia, tachycardia, tachypnea, hypertension, diffuse diaphoresis, and hyperthermia. Id.

Matt Murdock needed to connect Castle’s story to the expert’s theory that Castle suffered a case of “Sympathetic Storming” from seeing his family brutally murdered in a sting gone bad with three different gangs. Murdock knew Castle’s history from Castle telling Daredevil what happened in the park the day of the gunfight. Here is one possible line of questions where the attorney only does 10% of the talking, the witness the other 90%:

What was your wife’s name?

When were you married?

What was the name of your daughter?

When was her birthday?

What was the name of your son?

When was his birthday?

What branch of the military were you in?

Where were you deployed?

How long were you deployed?

When did you return from deployment overseas?

When did you first get scared as a Marine?

Where did you first go after returning from deployment?

Who did you go see?

What happened when you saw your daughter?

What happened after you went home with your family?

Did your daughter have a favorite book?

What quotes you remember from that book?

When was the last time your daughter asked you to read her the book?

Did you read to her the final time she asked you to?

Where did you go with your family the day after you returned from deployment?

What happened at the park?

What happened to your wife at the park?

What happened to your daughter?

What happened to your son?

What happened to you?

You are charged with murdering 37 people. How did you select the individuals you attacked?

Who were the Irish gang you confronted?

Why did you confront them?

What were the men doing when you confronted them?

Did they attack you when they saw you?

Who were the Dogs of Hell?

Why did you confront the Dogs of Hell?

What were the Dogs of Hell doing when you confronted them? Did they attack you when they saw you?

What Cartel did you confront? Why?

What were the men in the Cartel doing when you entered the warehouse to confront them? Did they attack you when they saw you?

Going back to your daughter’s book, have you ever quoted that phrase?

What are the specific times you said that quote?

The goal is to make Frank Castle look human. The Defense should focus on Castle’s suffering and that constant grief is the reason he waged a one-man war on organized crime. That Castle saw his family butchered and is obsessive with killing those that destroyed his family. It would be a form of the insanity defense, with a touch of jury nullification that is unstated.

Jury nullification is a dangerous argument for any attorney, because lawyers cannot outright ask juries to ignore the law. Matt Murdock and Foggy Nelson would have to offer a justification for the killings before the jury, by showing that the people Frank Castle killed had even killed more people and would have continued to do so.

The smarter plan would have been NOT having Frank Castle testify. Expert testimony on the Dogs of Hell, the Irish mob, and the Cartel, would have established the crimes attributed to each gang, the number of people the gangs had killed, and establish how dangerous each group was to the public. The psychologist’s expert opinion on Castle’s mental state and then tied to the gangs in closing argument would have avoided the explosive situation of having the Defendant testify.

Did Daredevil Adequately Prepare for the Punisher’s Trial?

By

Josh Gilliland

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March 22, 2016

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Spoiler Warning: Do not read unless you have watched Daredevil season 2 episodes “Semper Fidelis” and “Guilty as Sin.”

Matt Murdock and Foggy Nelson represented Frank Castle in his trial that included 37 murder and 98 other charges. Both attorneys owed Castle the duty of competency and loyalty in their representation.

Problem: Murdock was late to trial, so he missed giving his opening statement, forcing Foggy to take the lead instead. Did Murdock violate his duty of competency to his client?

New York defines the duty of competence for attorneys under New York’s Rules of Professional Conduct, Rule 1.1:

(a) A lawyer should provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

(b) A lawyer shall not handle a legal matter that the lawyer knows or should know that the lawyer is not competent to handle, without associating with a lawyer who is competent to handle it.

(c) A lawyer shall not intentionally:

(1) fail to seek the objectives of the client through reasonably available means permitted by law and these Rules; or

(2) prejudice or damage the client during the course of the representation except as permitted or required by these Rules.

The committee notes also explain how lawyers must adequately prepare their case as follows:

Thoroughness and Preparation

[5] Competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners. It also includes adequate preparation. The required attention and preparation are determined in part by what is at stake; major litigation and complex transactions ordinarily require more extensive treatment than matters of lesser complexity and consequence. An agreement between the lawyer and the client may limit the scope of the representation if the agreement complies with Rule 1.2(c).

Matt Murdock did not prepare for trial, instead spending the night with Electra roughing up a perverted language professor to crack a code used by The Hand. Murdock’s vigilante life as Daredevil kept him out late, so he overslept, and thus was late to court.

Foggy Nelson had the option to delay giving the Defense’s opening statement until after the Prosecution’s case-in-chief. Defense attorneys often make this strategic decision so the Defense effectively responds to the Prosecution’s case before calling their witnesses (think of a delayed opening statement as a sorbet to cleanse the jurors’ intellectual palates). Foggy decided to give the Defense own opening statement extemporaneously, which carried higher risk then Murdock being late.

Matt Murdock’s lack of preparation extended to missing strategy sessions, witness preparation, and working with his trial team. Attorneys have been suspended for failing to appear for schedule compliance conferences and even disbarred for systemic violations of their professional responsibilities. See, In the Matter of Jorge Sorote, 973 N.Y.S.2d 101 (Sept. 17, 2013) and In the Matter of C. Vernon Mason, 621 N.Y.S.2d 582 (Jan. 26, 1995).

Murdock being late to the courthouse and missing the beginning of the trial is very bad on its face. However, since Murdock had Nelson as has co-counsel, this makes the situation murky on whether Castle suffered any prejudice. Moreover, Nelson had the option to defer the opening statement until Murdock arrived. Nelson did not have to give the opening statement at that exact moment and could have avoided the risk to the client.

This does not free Murdock of any violation of the duty of loyalty to Frank Castle. Moreover, Murdock likely breached his fiduciary duty to Foggy Nelson, as his legal partner, with his inattention to Castle’s case. Castle could have had a valid complaint against Murdock to the New York Bar, minus Castle’s own sabotaging his own case.

A few notes on Trial Advocacy and Evidence:

The District Attorney improperly objected to Murdock’s cross-examination questions as “leading.” The entire point of cross-examination is to ask leading questions to control the witness, which is allowed. It is equally wrong to object to cross-examination as argumentative, because cross-examination by its very nature is supposed to be argumentative to discredit the witness.

There was also the issue whether Dr. Gregory Tepper altering medical records were relevant to Frank Castle’s case. In Federal Courts and many states a witness’ veracity for truthfulness is relevant. Dr. Tepper altering medical records would discredit his testimony, which could be introduced on cross-examination. See, Federal Rules of Evidence Rule 608(b)(1) and California Rules of Evidence Rules 785 and 786. New York has similar rules based on common law, as New York States does not have an evidence code.

Confronting Dr. Tepper with evidence of falsifying medical records would be potentially devastating and extremely relevant to Castle’s case. However, as the medical records would have been collateral, the Judge would have limited questioning to avoid confusing the jury with facts not material to Castle’s case.

Nelson & Murdock: Worse Client Consultations Ever

By

Josh Gilliland

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March 20, 2016

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The fictional attorneys Franklin “Foggy” Nelson and Matt Murdock have the very real world problems with running a small law firm. Real attorneys every day have clients who cannot afford paying their legal bills. This has negative consequences on the operational costs of running a firm, from practice management software, to online legal research, to making payroll. While alternative fees are good, it is extremely difficult to keep the lights on when clients pay in bananas.

Nelson & Murdock have a serious ethical issue with how they conduct client consultations. Karen Page identifying each prospective client in the waiting room, publically disclosing each individual’s legal problem, potentially is a violation of a New York attorney’s duty of confidentiality to a prospective client.

New York’s Rules of Professional Conduct, Section 1.18(a) state that “A person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a “prospective client.” Every person in the waiting room of Nelson & Murdock had disclosed information to the Karen Page for the possibility of representation by Nelson & Murdock. Those communications arguably would have been protected under Section 1.18(b) from disclosure. Moreover, both Foggy Nelson and Matt Murdock had a duty to supervise Karen Page as a non-lawyer under New York’s Rules of Professional Conduct, Section 5.3, in how she maintained that information.

The New York State Bar Association Ethics Opinion 1067 addresses the duty of confidentiality to prospective clients under New York’s Rules of Professional Conduct, Section 1.18(b). The Opinion defines the test for confidentiality as follows:

Whether the prospective client’s identity, the fact of the consultation, and the subject matter of the consultation constitute confidential information turns on whether the information is protected by the attorney-client privilege, on whether disclosure likely would be embarrassing or detrimental to the prospective client, and on whether the prospective client has asked the lawyer not to disclose the information.

Foggy Nelson and Matt Murdock should both discuss the importance of confidentiality with Karen Page for prospective clients. Whether or not there was an ethical violation would turn on each individual client. It is a smart practice to not create legal risk where there would otherwise be none.

As to the matter of attorney’s fees, there is nothing in Rule 1.5 that would prohibit Nelson & Murdock being paid in pies as “excessive” legal fees (except as to calories). However, while pies are extremely tasty at accounts receivable meetings, they do not pay any bills.