Daredevil Into the Ring (and Confession)

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April 10, 2015

Daredevil is here on Netflix, and man, do we have great legal issues just in the first episode.

As a preliminary matter, that toxic waste company should have given the Murdock family one heck of a check for blinding Matt Murdock. Granted, there would be significant issues for a trial on who was at fault in an accident, which would determine which driver’s insurance company would pay the different victims, but it is hard to escape liability for toxic chemicals, especially if the truck driver was at fault.

Forgive Me Father I am GOING to Sin

Matt Murdock asked a Priest for forgiveness for a sin he was going to commit. This clearly demonstrated Charlie Cox’s emotional acting skills and raised an issue: could the Priest go to the police if he believed Murdock was going to commit a crime?

New York defines the Clergy Privilege as follows:

Unless the person confessing or confiding waives the privilege, a clergyman, or other minister of any religion or duly accredited Christian Science practitioner, shall not be allowed disclose a confession or confidence made to him in his professional character as spiritual advisor.

NY CLS CPLR § 4505.

In order for a communication to be protected by the clergy privilege, the communication must: 1) it must be confidential; 2) it must be made to a minister or clergy member acting in a professional character as a spiritual advisor; 3) it must be made for the purpose of seeking spiritual advice or religious counsel; and 4) it must not be waived by the person making the confidential statement. People v. Harris (Sup.Ct.) 934 N.Y.S.2d 639, 645.

Murdock’s “confession” seems to meet all four elements.

First things first: Confession usually is about seeking forgiveness for PAST sins. Alternatively, many seek spiritual guidance on difficult choices they have to make. Matt Murdock’s visit to confession falls into both categories, because he effectively was seeking advice for actions he was going to take as a vigilante. As such, the Priest could not disclose communications made to him from someone seeking spiritual advice.

If Matt Murdock went and sought forgiveness for beating up four men who were kidnapping women to be sold into slavery overseas, the Priest should give the lawyer a high five in the confessional booth. While Romans 12:19 in he Bible states, “Vengeance is mine, I will repay,” there is the brutal reality that the law allows for the defense of others. Saving people from slavery should not involve any feelings of guilt.

Saving Others from Slavery

Daredevil saved four women from being sold overseas into slavery for $1,000 a head. This rescue involved seeking out those in danger and engaging four men in brutal hand-to-hand combat. Was this legal in New York?

New York allows for the defense of others:

A person may, subject to the provisions of subdivision two, use physical force upon another person when and to the extent he or she reasonably believes such to be necessary to defend himself, herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful physical force by such other person, unless:

(a) The latter’s conduct was provoked by the actor 1 with intent to cause physical injury to another person; or

(b) The actor was the initial aggressor; except that in such case 1 the use of physical force is nevertheless justifiable if 2 the actor has withdrawn from the encounter and effectively communicated such withdrawal to such other person but the latter persists in continuing the incident by the use or threatened imminent use of unlawful physical force; or

(c) The physical force involved is the product of a combat by agreement not specifically authorized by law.

NY CLS Penal § 35.15.

A District Attorney might argue that Daredevil was the initial aggressor in the fight. This argument would fail. The female victims were clearly kidnapped, physically harmed, and about to be locked in a shipping dark shipping container with a bucket for a bathroom. Daredevil entered the scene well after the first “aggression” had taken place. As such, a person could reasonably believe that the mobsters were using unlawful physical force on the women by kidnapping them. Daredevil’s actions were thus legally justified.

Just the Beginning

Those were the legal issues in just the opening minutes of the show. There are many other significant legal issues, from bribing police officers with cigars, being retained as counsel by a criminal defendant, the state holding someone without pressing charges, Whistle Blower Protections, the duty of loyalty to a client, extortion, fraud, money laundering, drugs, conspiracy, and likely a growing list of high crimes.

There are also many issues with setting up a law practice, from what kind of entity to form, advantages of a Partnership vs Limited Liability Partnership, rental agreements, insurance requirements for employees, HR compliance for employees, malpractice insurance, legal research accounts, a matter management tool, and a discovery management application. However, law office management is not really that exciting on a super-hero TV show.

The first episode of Daredevil opened with a bang. Great job and looking forward to binge watch the rest.

What Did We Learn About Fear on Gotham?

By

Josh Gilliland

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February 3, 2015

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The Gotham episode “The Fearsome Dr. Crane,” had several important life lessons on fear.

Don’t Play “Tell Me a Secret” With a Mob Boss in the Woods

Sal Maroni, a large, strong man, with very fast hands, took Penguin into the woods to share secrets in a remote cabin. The fact pattern alone embodied every nightmare 1980s PSA with victims who ended up on milk cartons. Penguin, don’t go on car rides to someone’s cabin in the woods.

Men Who Wear Bow Ties Are Not Afraid of Baby Pigs

Wearing a bow tie takes confidence. Those of us who wear bow ties are used to those with knot envy mocking us. But we all know the truth: Bow Ties Are Cool.

Any man confident enough to wear a bow tie would not be afraid of a baby pig.

Now, being tied up in a slaughterhouse with pigs, complete with a creepy butcher wearing a pig mask who is preparing to slaughter you like an animal, screaming out in terror is totally normal in those circumstances.

Anyone who was “this little piggy went to the slaughterhouse” would have serious civil and criminal claims against Dr. Crane and his Pig-Butcher henchman. The butcher’s bill of crimes would include kidnapping, attempted murder, torture, assault, battery, intentional inflection of emotional distress, possibly cruelty to animals, and a host of other issues a district attorney would list in a criminal complaint.

Dr. Crane Has Seriously Violated the Hippocratic Oath

Doctors today do not swear to Apollo they will not cause hurt or damage to the sick, but they nearly take an oath to do no harm.

Dr. Crane went out of his way to cause harm, by inflicting the worst fears a victim had before killing them. In New York, this would be first-degree murder by torture, which is defined when a defendant acts in “an especially cruel and wanton manner pursuant to a course of conduct intended to inflict and inflicting torture upon the victim prior to the victim’s death.” NY CLS Penal § 125.27(x). Torture is “the intentional and depraved infliction of extreme physical pain” and “depraved” means the Defendant relished inflicting the pain upon the victim. Id.

Pretty sure a DA could prove Dr. Crane’s actions of hanging a man off a roof, who was afraid of heights, was murder by torture. Removing the victim’s adrenal glands would add desecration of a corpse to the list of crimes. Moreover, the attempts to kill the man afraid of pigs and drown a woman afraid of drowning were both attempted murder by torture (and conspiracies involving third parties).

Now, it was good to see Jim Gordon overcome his fear of an emotional connection with Dr. Leslie Thompkins, empowering him to grow beyond the toxic behavior of Barbara’s drug use and wildly inconsistent personality. Marry Dr. Thompkins and have a daughter named Barbara for a variation of comic canon. We are not afraid of that.

Missy’s Misadventures in Kidnapping and Defiling Graves

By

Josh Gilliland

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November 11, 2014

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The Master has always set a high bar for being evil. I personally preferred the look of Roger Delgado or Anthony Ainley, but Michelle Gomez as an evil Mary Poppins really took cruelty to a new level as the Mistress. Plus she killed Osgood. No spoonful of sugar will make that go away, short of Santa Claus being a Time Lord.

Operation Mindcrime

Missy engaged in kidnapping human minds at the point of death to be stored in a Gallifreyan hard drive, later to be downloaded to corpses that had been upgraded to Cybermen. This unholy mix of Tron and the Matrix creates some strange legal issues.

Can you kidnap someone’s mind at death? “Kidnapping” at common law was “the crime of forcibly abducting a person from his or her own country and sending the person to another.” Westlaw Black’s 9th Law Dictionary App. Effectively, the crime was false imprisonment and taking the victim to another country. Id.

Is uploading someone’s mind at the point of death kidnapping under common law? On one level “sort of.” Taking someone’s mind and uploading them to a hard drive sounds like a form of false imprisonment, just one we have never encountered. Perhaps is the Singularity Movement is successful, we could see courts or legislatures address “mind-napping.”

Missy potentially kidnapped the minds of dying human beings for as long as humans have believed in an afterlife. The number of victims could be in the billions, depending how long she was imprisoning the dead. They would mean anyone who died in the last 5,000 years could be downloaded into a Cyberman and weaponized against the living. Many would agree this is a crime, but not one fully addressed by the law.

Bring Out Your Dead

Missy’s conversion of dead bodies to Cybermen also meant she experimented on dead bodies and defiled graves. There are many laws that prohibit removing a corpse from a grave for medical or surgical study. See, State v. Glass, 27 Ohio App. 2d 214, 222-223 (Ohio Ct. App., Brown County 1971), discussing the Revised Statutes of 1880 as Section 7034. There had to be experiments done to convert corpses to Cyberman that would have violated such laws.

There are other laws specifically designed to protect human remains from being “disturbed,” which means “the excavating, removing, exposing, defacing, mutilating, destroying, molesting, or desecrating in any way of human skeletal remains, unmarked graves, grave artifacts or grave markers.” W. Va. Code § 29-1-8a(6). Converting dead bodies to Cybermen would qualify as “mutilating, destroying, molesting, or desecrating” the dead. This would be an easier case to prove, because there is actual physical evidence, with human remains across the globe.

Now, was Cyber-Brigadier justified in shooting Missy? Yes. Clear and present danger to the entire human race. Good shot, thank you for your service to mankind.

The Collector’s Collection of Crimes

By

Josh Gilliland

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August 2, 2014

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The Collector in Guardians of the Galaxy held living beings on display in his “collection.” These beings appeared to be in a conscious stasis, because they could move around in their chambers, but were not aging. Moreover, there was no food or bathroom facilities, which implied they would not need to eat while in the chambers.

The prime evidence that those in the chambers were not aging was a Soviet space dog on display. The Soviet space dog program was conducted in the 1950s and 1960s, meaning Cosmo the space dog had been on display for 50 to 60 years.

That is a long time to wait for someone to throw a tennis ball.

The Collector did not just have a 60 year old dog who could have played fetch with Khrushchev on in his collection, but living beings. These individuals effectively would become ageless, but held in a small cell like a museum exhibit.

The Collector could be subject to the cosmic equivalent of false imprisonment, kidnapping, and torture. Given the fact the Nova Corps had similar legal definitions for theft and murder, universal laws are not limited to gravity.

False imprisonment is when a person confines a person to stay; the confided person did not consent to being retained; and the confinement was accomplished through violence or menace. CALJIC 9.60.

The Collector could be charged and convicted of false imprisonment, because those locked in the display cases were by their very nature confined. It is highly unlikely anyone consented to being on display, as evidenced by the former assistant imprisoned as an example. This is also evidence of the Collector committed acts of violence, given the condition of the former assistant. Moreover, the second assistant stated she was a “slave.”

Kidnapping under common law is the act of forcibly abducting a person from their own country and sending them to another. Black’s Law Dictionary iPad App, 9th Edition.

Living life forms who are abducted from their planet and held within the decapitated head of a Celestial would meet the common law definition of kidnapping, because they had to be removed from their planet and taken in space to the Collector’s base.

There is a strong argument that the life forms held by the Collector were “tortured” in the exhibit chambers. One legal definition of torture is causing suffering for any sadistic purpose. Cal Pen Code § 206. The Collector held “people” in glass chambers without food or any external stimuli for potentially decades or centuries. There was no way for any of them to leave their chambers. This imprisonment could be considered torture, because they were held for the Collector’s extreme obsessive compulsion to collect “people” and imprisonment them beyond their natural lifespan with no chance of escape.

The only way that kidnapping, false imprisonment, and torture could be worse would be forcing all of the prisoners to watch Howard the Duck.