Sedition on Krypton

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March 28, 2018

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

By

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

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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.

Did Killmonger Commit Treason Against the US?

By

Josh Gilliland

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March 1, 2018

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Black Panther is an amazing comic book movie that presents a complex issue of treason: Eric Killmonger is a US Born citizen, whose father was a prince of Wakanda. Eric served as a Navy SEAL and in the CIA, thus took an oath to uphold and defend the United States Constitution.

Killmonger was employed by the armors dealer Ulysses Klaw to engage in murder, theft, and obstruction of justice in England and South Korea. Killmonger then raised the legal stakes by challenging King T’Challa for the rule of Wakanda.

There are significant legal issues for a US Citizen to overthrow a foreign kingdom, even if the citizen has a claim of dual citizenship. There is an even larger issue with directing an attack on the United States.

Killmonger Violated the Logan Act with Overthrowing King T’Challa

The Logan Act prohibits US citizens from directly or indirectly commencing correspondence with a foreign government with the “intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States…” 18 USCS § 953.

Eric Killmonger’s actions to overthrow the lawful government of Wakanda, followed by destabilizing the country with the destruction of the Wakandan Heart Shaped Herb, and declaring war on the United States and other US allies, took influencing foreign governments to defeat the measures of the United States to levels never seen before, in fact or fiction. This also raised the issue that Killmonger committed treason against the United States.

Acts of Treason

The United States Constitution defines the crime of treason as “levying War against them [The United States], or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.” United States Constitution, Article III, Section 3.

Congress has stated that:

Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $ 10,000; and shall be incapable of holding any office under the United States.

18 USCS § 2381.

Eric Killmonger had been a Navy SEAL, and if not on active duty, was at least subject to recall. Moreover, as a CIA operative, Killmonger had taken an oath to upload and defend the United States Constitution from enemies foreign and domestic. This is where treason becomes odd, because the United States and Wakanda were not enemies or engaged in acts of war. That changed when Killmonger overthrew King T’Challa and directed the country of Wakanda to arm its spies in the United States and other countries to effectively conquer the world for a new Wakandan Empire. These actions are also enlistment to serve in armed hostility against the United States, with the twist that the enlistment was overthrowing a foreign government to become the head of state. 18 USCS § 2390.

These actions would be treason, plus supporting an Insurrection or Rebellion in the United States by sending advanced Wakandan weapons to arm US Citizens to overthrow the Government of the United States. Federal law prohibits anyone from inciting or engaging “in any rebellion or insurrection against the authority of the United States…” The punishment is fine or imprisonment, plus barring that individual from holding any office in the United States. 18 USCS § 2383.

There are no cases where US service members overthrow a government and declare war on the United States. However, there are many cases of treason. One such instance was a first generation Japanese-American citizen who was found guilty of committing treason during World War II. The Defendant had traveled to Japan on a US Passport in 1939 to attend college. The Defendant started college in Japan in the March of 1941. The Defendant had renewed his US Passport twice and was registered with the Japanese police as an alien while in college. The Defendant did not finish school until 1943. Kawakita v. United States, 343 U.S. 717, 720-721 (U.S. 1952).

Oeyama Nickel Industry Co., Ltd. employed the Defendant during the war as an interpreter who berated and physically harmed US prisoners of war who were used as slave labor. The POWs were forced to mine and process 200 carloads of ore a day in the Japanese war effort against the United States. The Defendant did not simply act as a translator towards the POW’s. His actions included, “swearing at the prisoners, beating them, threatening them, and punishing them for not working faster and harder, for failing to fill their quotas, for resting, and for slowing down.” Kawakita, at *737.

The United States Supreme Court held that the Defendant committed treason against the United States, because his actions were aimed at getting more work out of prisoners of war in order to give the Empire of Japan aid in making weapons to be used against the United States. While the Defendant’s actions were small, it is the nature of the act that is important for treason. As Justice Douglas explained:

These were not acts innocent and commonplace in appearance and gaining treasonable significance only by reference to other evidence, as in Cramer v. United States, supra. They were acts which showed more than sympathy with the enemy, more than a lack of zeal in the American cause, more than a breaking of allegiance to the United States. They showed conduct which actually promoted the cause of the enemy. They were acts which tended to strengthen the enemy and advance its interests. These acts in their setting would help make all the prisoners fearful, docile, and subservient. Because of these punishments the prisoners would be less likely to be troublesome; they would need fewer guards; they would require less watching. These acts would tend to give the enemy the “heart and courage to go on with the war.”

Kawakita, at *741-742, quoting Lord Chief Justice Treby in Trial of Captain Vaughan, 13 How. St. Tr. 485, 533.

While Killmonger’s plan failed and no Americans were killed, that does not change the fact Killmonger ORDERED an attack on the United States after overthrowing King T’Challa. These actions are treason and the US Government would have been in the right to ask for Killmonger’s extradition.