Does the Insanity Defense Apply to Attempted Human Genocide?

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April 1, 2018

Treason is too light a word to describe Dr. Newton Geiszler’s plan to destroy humanity in Pacific Rim Uprising. The issue for Dr. Geiszler is whether the his attorneys could successfully argue the insanity defense. The Kaiju in the room is whether the good Doctor was under the control of “Alice” or if his recreational Kaiju brain drifting was done by his own free will. The answer would determine if Geiszler did not understand the wrongfulness of his actions, thus not guilty by reason of insanity or guilty.

Dr. Newton Geiszler planned the destruction of humanity by using Jäger drones fused with cloned Kaiju brains to open multiple breaches to allow for a Kaiju invasion of Earth. Phase two of the plan was to ignite the Ring of Fire to cause an extinction level event.

Dr. Geiszler collaborated with hostile aliens that resulted in the massive property damage in Tokyo. Geiszler could be charged with collaboration, treason, and attempted genocide.

The insanity defense requires the defense to prove by clear and convincing evidence that Dr. Geiszler was unable to appreciate the nature and quality or the wrongfulness of his actions because of a severe mental disease or defect. 18 U.S.C.S. § 17. It should go without saying that hijacking building-sized robots to open an inter-dimensional portal for giant monsters to destroy all of humanity is a “wrongful act” that Dr. Geiszler should have understood.

The issue for Dr. Geiszler is whether he suffered from a mental defect due to his Kaiju drifting; if he was addicted to drifting with Alice; or if he purposely acted to destroy humanity.

Mental Defect from Drifting

The Defense could argue that Dr. Geiszler suffered brain damage from drifting with Alice, thus he could not understand the wrongfulness of destroying humanity. This would require expert testimony to explain how drifting works, how there is access to memories of both individuals, and how one can get lost in the drift. In the Defense’s favor is the fact Alice is the brain of an alien monster. An MRI could show the impact of drifting with Alice on Dr. Geiszler and possible brain damage. Moreover, Dr. Geiszler’s spooky Kaiju voice could be medical evidence of a mental disease from Alice. However, if there is no brain damage from the Kaiju drifting, there are still other options for the Defense.

The more challenging argument is that Alice was exerting some form of mind control over Dr. Geiszler. Cases where defendants attempt to offer expert testimony that a defendant was under the control of a cult, thus could not form the required mental intent for a crime, usually end with the expert’s testimony being excluded. See, People v. Vieira, 35 Cal. 4th 264, 266, (2005). The reason this sort of testimony is barred, is because the alleged mental disease would go the issue of the defendant’s mental intent, which is prohibited under California law. See, Vieira v. Chappell, 2015 U.S. Dist. LEXIS 14130, at *340-41 (E.D. Cal. Feb. 5, 2015), citing Cal. Penal Code § 28. This is different than a defendant not understanding the wrongfulness of his actions due to a mental disease, because intent goes to an element of a crime, not capacity to understand the act is wrong.

The issue of whether someone can be a victim of “mind control” is not one with case law helpful to Dr. Geiszler. In the writ of habeas corpus by the murderer of Senator Robert F. Kennedy, the Court analyzed the murderer’s claim of “hypnotic programming.” The Court noted that the theory someone could be hypnotized to commit murder and then to lose his or her memory of committing that murder was scientifically credible, but the petitioner did not provide any reliable evidence that actually happened. Sirhan v. Brazelton (C.D.Cal. 2013) 76 F. Supp. 3d 1073, 1123-1124. In the case of Dr. Geiszler, evidence would need to be offered that the “hypnotic programming” caused him to design and build one rogue Jäger; design drone Jägers programmed to launch an alien invasion; hundreds of DNA splicing micro-Kaiju; and wage war on humanity.

Not the easiest defense.

Addicted to Drifting

The Defense could argue that Dr. Geiszler had become addicted to drifting with Alice as a form of the insanity defense. Drug addiction can be argued as a form of the insanity defense if the drug addiction had 1) destroyed the defendant’s ability to distinguish between right and wrong; or 2) has made him act under a delusional compulsion. Mincey v. Head, 206 F.3d 1106, 1120 n.19 (11th Cir. 2000), citing Shirley v. State, 149 Ga. App. 194, 253 S.E.2d 787, 788 (1979). Drug addiction can also be a “psychiatric disorder” that can justify the involuntary commitment of “mentally ill” persons. Jackson v. Indiana, 406 U.S. 715, 722-23, (1972).

Medical expert testimony would be need to be offered to demonstrate Dr. Geiszler either had his ability to know right from wrong destroyed from recreational Kaiju drifting or was acting under a delusional compulsion. Considering Dr. Geiszler went home, talked to a giant brain in a jar in his bedroom he named Alice before drifting, “delusional compulsion” sounds like a good argument. Moreover, the fact the Defendant secretly built a drone army with cloned Kaiju brains would take obsessive-compulsive behavior to a new level.

World on Fire

There is the possibility that Dr. Geiszler knew right from wrong and simply turned evil. This is most disturbing possibility, because it would mean that a hero turned into a villain. Eradicating all live on Earth is not something one does lightly. Dr. Geiszler spent ten years on his plan, which included acquiring a Kaiju brain, having a custom tank for it installed in his apartment, and building drift technology so he could commune with Alice. Those look like intentional actions, some of which were either done to develop a connection with Alice or feed an addiction to drifting with Alice.

Defending the an Indefensible Act

There is no defense for the attempted genocide of humanity. However, that does not mean Dr. Geiszler should be denied a right to an attorney and a fair trial for his actions. The hallmark of a civil society is that the legal system treats anyone accused of a crime with due process of law. Granted, there is a Category 5 amount of evidence against Geiszler, but he deserves his day in court.

Sedition on Krypton

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Josh Gilliland

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March 28, 2018

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Superman’s Great-Great-Grandfather Val-El was sentenced to death for sedition in the pilot of Krypton. Val-El’s “crime” was stating that there was other life in the universe. Val-El walked a plank to free-fall into a snowstorm of oblivion. His family was also stripped on status, showing a legal system that issued punishments based on family associations and not actions.

The legal system on Krypton is the opposite of “truth, justice, and the American Way.” The show depicts a harsh police state where the population lives under the heel of repression. By way of comparison, Sedition laws in the United States can easily run in opposition to the First Amendment. The original Sedition Act in 1798 allowed for the punishment of those who made “false, scandalous and malicious writings against the government, either house of Congress or the President, if published with intent to defame any of them or to excite against them the contempt or hatred of the people.” Chicago v. Tribune Co., 307 Ill. 595, 603, 139 N.E. 86, 88 (1923). This did not last long and ensured John Adams would be a one term President.

There have been other Sedition laws over the centuries, such as the Smith Act, which was intended to protect the government from violence, revolution, and terrorism. Dennis v. United States, 341 U.S. 494, 501, 71 S. Ct. 857, 863 (1951). Moreover, for those in the military, it is punishable by death to create a revolt to overthrow the government. 10 U.S.C.S. § 894.

Val-El’s “speech” that there was other life in the universe would not even violate the Unconstitutional language of the Sedition Act of 1798, because the position does not even rise to the level of “false, scandalous and malicious writings.” Moreover, Val-El was not advocating the violent overthrow of the government on Krypton. Val-El was murdered by the state for having a belief that was in conflict with religious leaders, which is not a capital offense.

Val-El’s execution would have violated the prohibition on cruel and unusual punishment. The law prohibits executions that:

1) Presents a substantial risk that a prisoner will suffer unnecessary and wanton pain in an execution;

2) Violates the evolving standards of decency that mark a mature society, and

3) Minimizes physical violence and mutilation of the prisoner’s body.

State v. Mata, 275 Neb. 1, 48, 745 N.W.2d 229, 266 (2008).

Walking a plank that ended with Val-El falling hundreds, if not thousands of feet, would violate all three tenants on the prohibition of cruel executions. Nothing about that execution method is remotely decent of a mature society, would result in Val suffering unnecessary plain, and maximized physical violence and mutilation with death by impact. That form of execution was solely designed as a deterrent for anyone who dared to challenge the state.

Krypton depicts a police state with a repressive legal system that runs counter to our own. How Kal-El’s grandfather leads the planet out of this Dark Age will have this lawyer watching this season.

A World of WonderCon

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Josh Gilliland

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March 27, 2018

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WonderCon 2018 was one of the best cons I have attended since we started The Legal Geeks. The show was very well run, from applying for panels, to registering speakers, and attending the show. The show had excellent panels, a large and well-stocked exhibit hall, and a great sense of fan community.

We had two panels on Friday night: A Star Wars Mock Trial and Lawyers vs Kaiju. Between our panelists and guests, a total of 31 people attended under our flag. I was glad we could provide many geeks the opportunity to go.

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Star Wars Mock Trial: Can R2-D2 and C-3PO Sue the Cantina for Discrimination?

Our mock trial was based on the scene in the original Star Wars where the Droids were denied entry into the Mos Eisley Cantina. The Plaintiffs sought a mandatory injunction under California law that would require the Cantina to stay open and serve Droids during the pendency of the case. This is a challenging argument, because mandatory injunctions require a change to the status quo, thus are extremely difficult to obtain. The procedural setting for the case was a hearing on a motion for disputed facts for the injunction, which allowed both sides to call witnesses.

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The core issue for the Droids was whether they are “persons” under the law and a protected class. Public accommodation laws do not allow for restaurants or bars to deny service to anyone based on their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status. However, artificial life is not listed in the Unruh Act. This was the crux of the case for the Plaintiffs, to prove Droids are “persons” under the law.

Keri Bean from NASA JPL was a court appointed neutral expert who testified as a fictionalized character who was a Mission Operations Engineer at the Mon Cala Propulsion Laboratory. Keri built her own R2-D2 with her husband and is a member of the R2 Builders Club. The Droid was on hand for the hearing.

A few minutes before we began our mock trial.

Ian Gregory Cook is the Commander of the Rebel Legion Sunrider Base, one of the very active Star Wars costume clubs in Southern California. Ian played the role of the Bartender Wuher. Ian’s witness statement was developed from Chuck Wendig’s “We Don’t Serve Their Kind Here,” chapter in From a Certain Point of View. Ian nailed the role and succeeded in portraying Wuher as being sympathetic from the death of his parents by Droids during the Clone Wars.

The mock trial was a reminder how much people love Star Wars. We filled the room for the hearing. It was also validation that people care about the “law” and how lawyers will fight for the rights of others. Below you can listen to the audio from the mock trial.

Lawyers vs Kaiju

I grew up watching Kaiju movies. I fondly remember watching Gamera vs Gyaos as a kid. Still a little haunted by the final scenes in Son of Kong. It was a joy to have a panel where attorneys could take a deep dive into who pays for Acts of Godzilla.

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Matt Weinhold from Monster Party moderated our panel. Matt is an old friend from when my family owned Rooster T. Feathers in Sunnyvale. The panelists included Monte Cooper, who is the grandnephew of Merian C. Cooper, the creator of King Kong; Megan Hitchcock, Esq., trial counsel for Esurance; and Jeraline Singh Edwards, Esq. We had a rocking good time weighing on whether Kong was an Endangered Species, if Gamera had a duty to save children, and if the President would need Congressional approval under the War Powers Act to aid Japan in fighting Godzilla. Below you can view the slides and listen to the audio from the Kaiju panel.

Lawyers_v_Kaiju_Final

The Stand Out Panels

There were many talented and entertaining panels at WonderCon. One lesson from law school on jury memory retention is that jurors forget 2/3 of what they hear. What they do remember is usually wrong. However, memory retention goes up to 80% if the spoken word is coupled with a demonstrative exhibit. This holds true for panels at cons, because the best way to show a visual medium is to leverage the lessons of visual learning to make an impact on attendees.

Julia Lewald of the X-Men Animated series.

The X-Men Animated Series 25^th Anniversary panel did an astonishing job with visual graphics. The panel began with the opening of the original cartoon. The slides and images were used to highlight the message of each speaker. For example, the director had worked in over 200 cameos of other Marvel characters over the life of the show. A single slide was used with six images of those cameos as the director explained how he worked them in for approval. They also included images of each character with the headshot of the voice actor. The end result was…uncanny.

The other panel that used images very successfully was Jack Kirby’s Centennial Artwork Extravaganza. Pages of original artwork silently played while the panel discussed the legacy of Jack Kirby. The Iron Giant Anniversary panel also made great use of imagery, including a sizzle real of the artist’s graphic novel Silver.

Lost in Space Preview

Netflix’s first episode of Lost in Space was out of this world. Great effects, twists, and complex family dynamics. The first episode has multiple legal issues to explore, which we will cover when the show officially goes live on April 13, 2018. Highly recommend everyone watch the first episode, as they have made something very new while capturing the charm of the original series.

A World of Wonder

WonderCon is now one of my favorite shows. We greatly appreciated the opportunity to present and were humbled by the number of people who attended our panels. I was even stopped by a young man dressed as a Death Eater, who asked if he could take his photo with me. He had seen us before at San Diego Comic Fest. I am glad we are making the law accessible and fun for others.

Did the Hogarth, Chao & Benowitz LLP Employment Contract Violate the Law?

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Josh Gilliland

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March 17, 2018

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The fictional law firm of Hogarth, Chao & Benowitz LLP required their attorneys to sign a “medical disclosure” clause to inform the firm of medical conditions that had the potential to affect job performance. Once Jeri Hogarth’s partners learned she had ALS, they tried to force her out of the law firm with a severance under the pretense it was their fiduciary duty to protect the law firm. See, Jessica Jones, season two, episode, AKA Sole Survivor.

There is a problem with this “medical disclosure” clause designed to terminate lawyers: it is illegal as hell.

New York law states that it is an unlawful discriminatory practice for any employer to discharge anyone from their employment because of disability or predisposing genetic characteristics. N.Y. Exec. Law § 296. Forcing employees as a condition of employment to disclose health information that can then be a pretext to fire anyone goes to the heart of protecting anyone with a “disability” from being discriminated against. There was no effort to make any reasonable accommodations for Hogarth, just remove her from the firm.

Case law has held that an employer’s failure to make reasonable accommodations for an employee is “the very societal ill which the relevant anti-discrimination statutes were designed to combat.” Jacobsen v. N.Y.C. Health & Hosps. Corp., 988 N.Y.S.2d 86, 100 (2014). In a case where a police officer with Crohn’s disease that was in remission was dismissed from work, the Court found that the discrimination violated New York’s Human Rights Law. There was no evidence that the police officer could not perform his job, even if treatable symptoms occurred. Antonsen v. Ward, 569 N.Y.S.2d 328, 328, (1991).

There was no evidence that Jeri Hogarth was no longer competent to practice law. She did not have any symptoms at the time her partners confronted her. Their plan was to dismiss her from the firm, which is discriminatory conduct based on someone’s disability. As such, the contractual requirement to disclose medical conditions required the disclosure of health information that would otherwise be protected, and used as a license to discriminate against those with medical conditions.

The irony is there were valid reasons to terminate Jeri Hogarth. She had committed jury tampering, which is grounds for disbarment; asking Jessica Jones to rough up Wendy as inducement to sign a divorce agreement was a crime; having an affair with her secretary Pam was an HR nightmare waiting to happen; attempting to use Killgrave to secure Wendy’s signature on divorce papers resulted in Wendy’s death; the illegal purchase of a hand gun later used in a homicide; and the use of cocaine and three hookers are all multiple crimes. Throw in Jeri’s practice included criminal defense, patent litigation, and estates, which are all highly specialized practice areas. It would be like a doctor who is an orthodontist, vascular surgeon, and pediatrist. Sure, it is possible, just highly unlikely. Moreover, Jeri’s malpractice insurance had to be expensive.

Instead of going after Jeri for any of her serious ethical breaches as grounds for termination, Chao and Benowitz picked discrimination against someone with a disability as their beach to die on. Not the best legal strategy.

Star Wars and Kaiju Panels at WonderCon 2018!

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Josh Gilliland

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March 12, 2018

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Join us for our first appearance at WonderCon with two panels on March 23! Our first panel is a Star Wars Mock Trial that asks the question, “Can R2-D2 and C-3PO sue the Cantina for discrimination?” The second panel is Lawyers vs. Kaiju, where our panel of attorneys will determine who pays for Acts of Godzilla and other monstrous legal issues. Our full show schedule is below.

Star Wars Mock Trial – Can R2-D2 and C-3PO Sue the Mos Eisley Cantina for Discrimination? Friday March 23, 2018 5:00pm – 6:00pm, Room 207

Would a court rule that a droid is a “person” and protected by public accommodation laws?

United States Magistrate Judge Stacie Beckerman will hear arguments from Megan Hitchcock, Esq. and Christine Peek, Esq. (McManis Faulkner) representing R2-D2 and C-3PO, and Steve B. Chu, Esq. and Thomas Harper, Esq. (Army JAG officer) representing the Mos Eisley Cantina, to decide whether the droids can sue for Bartender Wuher’s refusal to serve them. Keri Bean (NASA JPL and R2-D2 Builders) will testify as a droid expert on whether droids are “alive.” Gordon Tarpley portrays C-3PO. Organized by Joshua Gilliland, Esq. (The Legal Geeks).

Lawyers vs. Kaiju: What is the Liability for Monster Attacks? Friday March 23, 2018 7:00pm – 8:00pm, Room 207

Is King Kong protected by the Endangered Species Act? Does Gamera have a duty to save children?

Attorneys Monte Cooper, Esq. (Orrick and grandnephew of Merian C. Cooper, the creator of King Kong), Megan Hitchcock,Esq. (Esurance), Jeraline Singh Edwards, Esq. (Law Offices of Jeraline Singh Edwards), and Joshua Gilliland, Esq. (The Legal Geeks) do battle over John Driscoll’s liability for Kong’s rampage across New York, whether the United States has a treaty obligation to defend Japan from Godzilla, and much more. Moderated by Matt Weinhold (Monster Party).

Clients Should Not Ask a PI to Murder Anyone

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Josh Gilliland

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March 9, 2018

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Jessica Jones season two kicks off with a murder for hire issue in AKA Start at the Beginning. Jessica’s client is a pizzeria owner who hired Jessica to investigate whether the owner’s boyfriend/employee was having an affair. After confirming that the boyfriend was cheating on his pizza-momma, the pizzeria owner asked Jessica to kill him for playing “You’re not the regular pizza boy.”

Jessica correctly identified this request as solicitation for murder and told the client “no.” Another term is “murder for hire” and the pizzeria owner could be charged for Criminal Solicitation in the Second Degree, which is when a person, with the intent that another person engage in conduct constituting a class A felony, then asks that person to engage in such criminal conduct. N.Y. Penal Law § 100.10. As such, a district attorney would need to prove beyond a reasonable doubt that the pizzeria owner actually intended the pizza boy be killed. People v. Kass, 874 N.Y.S.2d 475, 479 (App. Div.). As Jessica rejected the murder for hire offer, there could not be any conspiracy charges, as no conspiracy to commit murder was formed. N.Y. Penal Law § 105.15.

The pizzeria owner’s statements to Jessica were party admissions under the rules of evidence. As such, Jessica could testify to those statements in court over any hearsay objections that the pizzeria owner’s statements were out of court statements offered for the truth of the matter asserted. The pizzeria owner’s statements showed intent for the pizza boy be killed under her belief that Jessica as a vigilante killed people. While Luke Cage and Danny Rand were the Heroes for Hire, Jessica does not commit Murder for Hire.

On a very odd note, the pizza boy was indignant that he had been caught cheating, blaming the owner for having him investigated. The pizzeria owner rightly could have fired him for misuse of company resources for using pizza delivery as a cover for an affair. As a cheating deadbeat, she was well within her rights to throw him out.

Star Wars Law at Nerd Nite

By

Josh Gilliland

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March 7, 2018

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I had the privilege of speaking at Nerd Nite East Bay on February 26, Nerd Nite San Diego on March 6, and Nerd Nite San Francisco on May 19, on Star Wars. All three presentations were recorded live. While the presentations have some of the same topics, each Nerd Nite is 70% different. Check out the links below for each recording.