Lessons of Cruel and Unusual Punishment with Agony Booths

February 7, 2018

The Mirror Universe in Star Trek is known for awesome uniforms and goatees. It is also known for punishing transporter chiefs with Agonizers and throwing people in Agony Booths for torture. Star Trek Discovery’s adventure in the Mirror Universe is where the show embraced the best values of Star Trek, plus legal lessons in corporal punishment.

Enter the Agony Booth

According to Memory Alpha, Agony Booths could stimulate pain centers of the different species, where the inflicted pain was shifted from one nerve cluster to another, in order to keep the victim in a constant state of agony. Think of this like constant flogging, except the victim does not become overrun with pain.

Captain Gabriel Lorca’s revolutionaries were tortured in Agony Booths for over a year as retribution for their attempted overthrow of the Emperor. On the I.S.S. Shenzhou, crewmembers were placed in Agony Booths as punishment for unstated infractions.

In a Hornbook, Darkly

There is an ugly maritime history where crewmembers were flogged for discipline. The practice was done on both Naval warships and merchant ships. The practice was outlawed in the 19^th Century. The prohibition on the Cruelty to Seaman states:

Whoever, being the master or officer of a vessel of the United States, on the high seas, or on any other waters within the admiralty and maritime jurisdiction of the United States, flogs, beats, wounds, or without justifiable cause, imprisons any of the crew of such vessel, or withholds from them suitable food and nourishment, or inflicts upon them any corporal or other cruel and unusual punishment, shall be fined under this title or imprisoned not more than five years, or both.

18 U.S.C.S. § 2191.

The use of flogging was classified and banned under Federal law as cruel and unusual punishment:

Punishment by flogging, or by branding, marking, or tattooing on the body, or any other cruel or unusual punishment, may not be adjudged by any court-martial or inflicted upon any person subject to this chapter [10 USCS §§ 801 et seq.]. The use of irons, single or double, except for the purpose of safe custody, is prohibited.

10 U.S.C.S. § 855.

In one case from a whaling ship in 1855, a merchant sailor fell asleep while serving as a lookout for whales. The whaler was flogged as punishment. The Court stated that the flogging violated the law, in addition to other “creative” punishments that included forcing the sailor to “stand on his hands and feet, with his head to leeward; kneeling on the top of the house with his head in the funnel of the galley; and standing on deck, with a rope about his neck.” Payne v. Allen, 19 F. Cas. 11, 11-12 (D. Mass. 1855). The shipping company claimed the punishments were justified for the sailor disobeying orders, personal negligence, and general incompetence in performing his duties. While there could have been ways to reduce compensation for the sailor breaching his contract, there was no justification for the corporal punishment the sailor endured. The court awarded the sailor damages of $125, which today would be $49,555.40. Given how modern jurors would react to someone being flogged for job performance, that number would higher and someone would go to jail.

The Agony Booth is a Most Effective Means of Discipline…

Agony Booths are a rejection to the values of the fictional United Federation of Planets, in addition to the 19^th Century prohibition of flogging sailors for discipline. The Terran Empire despised the weak, rejected the concept of mercy, and embraced corporal punishment to ensure efficiency. “Agony Booths” are everything that goes against the values of Star Trek, a show with a bright future where challenges can be overcome.

The USS Discovery in the Mirror Universe is where Star Trek Discovery became great. The initial theme was how being in a system that rejected everything the crew believed could change them for the worse. It was in this toxic environment that the crew demonstrated the value of life by refusing to leave others to die; it was in the Mirror Universe that the crew rejected they were in a no-win scenario; and it was in the Mirror Universe the crew worked as a team to solve multiple complex problems. This was when Star Trek Discovery became Star Trek. And it was damn awesome.

Just keep Saru in the Captain’s Chair, because it is where he belongs.

I just wish the Klingons looked consistent as they did in Enterprise, The Original Series, Next Generation, Deep Space Nine, and original movies. The gold tunics with sashes from Day of the Dove, Errand of Mercy, and The Trouble with Tribbles were a ton of fun.

Frankenstein Mock Trial at San Diego Comic Fest

Josh Gilliland

January 29, 2018

Would Frankenstein’s Monster be legally competent to stand trial for the death of Little Maria in the 1931 Universal Classic Frankenstein? Should the Monster be held to the standard for an adult or a child?

San Diego Comic Fest is celebrating the bicentennial of Mary Shelley’s Frankenstein over the weekend of April 20-22, 2018 at the Town and Country Resort and Convention Center. The Creature has the honor of being one of the first pop culture references in a court opinion, by Chief Justice William Pryor, of the Court of Appeals of Kentucky, in the 1896 case Todd v. Dunlap.

People v. Frankenstein’s Monster and Dr. Henry Frankenstein

We are seeking law students to argue a two-part motion hearing. In the 1931 film, the Creature befriended a young girl named Maria. Both Maria and the Creature tossed flowers in a lake to watch them float. The Creature tossed Maria in the water, thinking the girl would float like one of the flowers. To the Creature’s horror, Maria drowned.

Is the Creature Legally Competent to Stand Trial?

The Creature is charged with the murder of Little Maria. Does the Creature legally have the mental capacity of a child? Or should the Creature be held to the standards of an adult? Attorneys for the Creature will bring a motion that the Creature is not legally competent to stand trial as a minor, because the Creature lacks sufficient present ability to consult with counsel and assist in preparing his defense with a reasonable degree of rational understanding under Cal. Welf. & Inst. Code § 709(a). The Prosecution opposes, challenging the application of the standard for minors, as the Creature is nearly seven feet tall with the body of an adult. The Prosecution will argue the Creature is a competent adult with competency needing to be based upon the requirements and procedures outlined in Cal. Penal Code § 1367.

Is Dr. Frankenstein Criminally Responsible for the Creature’s Actions?

The state will charge Dr. Henry Frankenstein with contributing to the delinquency of the Creature under Cal. Penal Code § 272, due to his failure as the Monster’s legal guardian to exercise reasonable care, supervision, protection, and control over the Creature, resulting in the deaths of Little Maria, Fritz, and Dr. Waldman. Dr. Frankenstein is also charged with Murder in the Second Degree pursuant to Cal. Penal Code § 187.

Attorneys for Dr. Frankenstein will bring a motion to set aside the indictment under Cal. Penal Code § 995, because the charge is not found, endorsed, and presented as prescribed under the California Penal Code, because the law does not speak to contributory delinquency for reanimated human remains. Cal. Penal Code § 272 applies to children and the Monster is not a child. Moreover, there is no probable cause for charging Dr. Frankenstein for the Monster’s actions resulting in Little Maria’s death. The Prosecution will oppose the motion and argue that Dr. Henry Frankenstein’s failure to exercise the reasonable care, supervision, protection, and control over the Monster, resulted in the deaths of three people.

Purpose of the Mock Trial

The purpose of the mock hearings are to explore what it means to be human. Should the Creature be viewed as a “person,” with legal rights, or as something artificial, like a machine? If the Creature is a human being, what is his relationship to his original bodies and brain, or is he a completely new individual? Is Dr. Frankenstein the Creature’s “father” under the law, or a different legal relationship, like a creator of a product?

Law students will be able to prepare arguments, conduct the direct and cross-examination of expert witnesses, have attorney mentors, and argue their case before California Judge Carol Najera over whether Frankenstein’s Monster could stand trial for murder of Little Maria and Dr. Frankenstein’s criminal liability. Interested law students should apply below.

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When Star Wars Loving Lawyers Go to Disneyland

Josh Gilliland

January 26, 2018

What do two lawyers who love Star Wars do when they go to Disneyland? They ride Star Tours and discuss the common carrier issues.

I had the privilege of joining Thomas and Marissa Harper at Disneyland on their grand tour of California. After racing around the park, we sat down by the Matterhorn to discuss the legal issues of C-3PO and R2-D2 taking passengers into combat with a Rebel spy onboard an interplanetary shuttle.

Was Rey Negligent in Causing a Boulder to Crash on the Caretakers’ Cart?

Josh Gilliland

January 9, 2018

Rey did not ingratiate herself to the Lanai Caretakers during her time on Ahch-To. First Rey shot out a wall during a Force vision with Kylo Ren and then caused a large rock to crash on a Caretaker’s cart. Did Rey’s actions constitute negligence in the destruction of the Caretaker’s cart?

Negligence is the failure to use reasonable care to prevent harm to oneself or to others. Rey first engaged in aerobic staff/rock workout, followed by Samurai lightsaber exercises. While this workout could both sharpen one’s skills with a laser sword, a person is negligent if they do something that a reasonably careful person would not do in the same situation or fails to do something that a reasonably careful person would do in the same situation. See, 1-400 CACI 401 (2017). The act of cutting a rock off the edge of a cliff above a trail arguably is not how a reasonably careful Jedi would have acted in Rey’s situation. However, was there a foreseeable risk that a falling rock could crush someone passing by below?

Rey could have had a duty to not engage in lightsaber cutting exercises if there was foreseeable risk that she could cut the rock off the face of the cliff, causing it to crash on others. The law states that foreseeability is not enough to create an independent tort duty. “… [The] existence [of a duty] depends upon the foreseeability of the risk and a weighing of policy considerations for and against imposition of liability.” Vasilenko v. Grace Family Church, 3 Cal. 5th 1077, 1086-87, (2017), citing (Erlich v. Menezes 21 Cal.4th 543, 552 (1999).

These policy considerations include whether “the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.” Vasilenko, at *1086 citing Cabral v. Ralphs Grocery Co., 51 Cal. 4th 764, 781 (2011). “A duty of care will not be held to exist even as to foreseeable injuries … where the social utility of the activity concerned is so great, and avoidance of the injuries so burdensome to society, as to outweigh the compensatory and cost-internalization values of negligence liability.” Vasilenko, at *1086 -1087, citing Merrill v. Navegar, Inc. 26 Cal.4th 465, 502 (2001).

The issue of whether there was foreseeable risk would turn on the likelihood of being able to cut a large rock off of the Ahch-To cliff, causing it to crash below. From a certain point of view, this issue of foreseeability is straight out of Palsgraf v. Long Island Railroad Co., 248 N.Y. 339, 162 N.E. 99 (1928). In Palsgraf, train employees helped a passenger with a package board a moving train with the door closing. The package was dropped. Unknown to the train employees, the package contained fireworks, which exploded. The explosion caused a large scale to fall on the Plaintiff.

The Court held that negligence does not exist in the air and that the Plaintiff’s injuries were not the probable consequence of someone boarding a train with a package. As such, there was no duty to the Plaintiff, an unforeseeable victim.

While Benjamin Cardozo did not believe liability followed through the air, Ben Kenobi knew the Force flowed through all living things. Fortunately for the Lanai Caretakers, most jurisdictions have a broader view of foreseeability. Cutting through a rock with a lightsaber is a foreseeable harm, compared to an unknown package with fireworks exploding.

The law would attach moral blame to Rey’s conduct of cutting a rock off the face of a cliff. There is a societal policy to prevent giant rocks from crashing on people (or Lanais). Moreover, there is a low burden to exercise a duty of care to prevent such accidents, by simply not cutting giant rocks off of cliffs. Furthermore, “[t]he overall policy of preventing future harm is ordinarily served, in tort law, by imposing the costs of negligent conduct upon those responsible.” T.H. v. Novartis Pharm. Corp., 2017 Cal. LEXIS 9636, at *33 (Dec. 21, 2017), [Ciations omitted].

Establishing Rey acted negligently is the first lesson in determining whether the Caretaker’s could recover. The second lesson is whether Rey was the proximate cause of the destruction of the cart. The third is the Caretakers were foreseeable victims of aerobic lightsaber exercises on the rock. As Rey engaged in an activity that a reasonable prudent person would not do, the Caretakers should recover for the destroyed cart. This would deter future rock cutting conduct that could harm others.

Now, whether lightsabers require a warning they can cut rocks off cliffs is a separate issue.

Extrajudicial Murder by Stormtrooper Executioners

Josh Gilliland

January 5, 2018

The First Order used internally conscripted Stormtroopers for at best summary executions and at worse extrajudicial killing for capital punishment. The status as a Stormtrooper Executioner was denoted by a David Bowie Aladdin Sane-style black mark across the helmet, along with carbon-finish on the shoulders. According to The Last Jedi Visual Dictionary, Executioners could be any Trooper assigned to the duty of carrying out capital punishment. The helmets disguised their voices and personal identification number was not broadcast to other Stormtroopers.

There is a galactic problem with summary executions: there is no due process of law. No right to counsel. No trial. Nothing. Just an extrajudicial murder to instill loyalty into Stormtroopers.

In The Last Jedi, Finn and Rose were captured in First Order uniforms in the midst of committing an act of sabotage on Supreme Leader Snoke’s ship the Supremacy. Captain Phasma ordered their immediate execution by laser ax with a monomolecular energy ribbon with cycling power. This form of execution was selected because “it would hurt.”

There are multiple problems with ordering the immediate deaths of the Resistance prisoners. The first is the lack of a trial, even for someone committing an act of espionage and the second is whether the First Order is actually a nation-state.

Execution without a Trial

Military usage has permitted the execution of spies, both as a means of punishment and prevention. United States ex rel. Wessels v. McDonald, 265 F. 754, 762-63 (E.D.N.Y. 1920). The traditional definition of a spy is someone “individual acting clandestinely or on false pretenses, who obtains, or seeks to obtain, information in the zone of operations of a belligerent with the intention of communicating it to the hostile party.” Convention Respecting the Laws and Customs of War on Land, The Hague, July 29, 1899, 32 Stat. vol. 2, pp. 1818, 1819. However, spies dating back to the Revolutionary War were tried by military tribunal or court-martial. Ex parte Quirin, 317 U.S. 1, 42, fn 14 (1942).

The First Order had nothing remotely resembling a military tribunal or court-martial for Finn and Rose. Captain Phasma ordered their deaths on the hanger deck of Snoke’s ship with the intent to cause them pain.

International law recognizes four acts that are subject to unequivocal international condemnation: torture, summary execution, genocide and slavery. Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 791 (1984), citing Blum & Steinhardt, Federal Jurisdiction over International Human Rights Claims: The Alien Tort Claims Act after Filartiga v. Pena-Irala, 22 HARV. INT’L L.J. 53, 90 (1981); see also P. SIEGHART, THE INTERNATIONAL LAW OF HUMAN RIGHTS 48 (1983). Moreover, summary executions are “murder conducted in uniform,” as opposed to lawful, state-imposed violence. Id.

The First Order could have tried Finn was for treason (assuming the First Order is a nation-state), specifically for helping Poe Dameron escape the Finalizer and desertion. Finn should have had the opportunity to argue he had been ordered to commit a war crime on Jakku and offer a defense to the charges against him.

The First Order could have charged Finn, Rose, and DJ, with conspiracy, espionage, and sabotage, for their plan on the Supremacy. Instead, the First Order planned to carry out immediate executions in the most painful manner possible with laser axes with a monomolecular energy ribbons with cycling power.

An execution is cruel and unusual punishment if the method presents a “substantial” or “objectively intolerable” risk of serious harm. Baze v. Rees, 553 U.S. 35, 40 (2008). Other courts have articulated the legal standard for determining whether a form of execution violations the prohibition of cruel and unusual punishment as follows:

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).

The United States has allowed executions, starting with hangings at the founding of the country, later firing squads, to finding the most “humane and practical” methods for executions “known to modern science.” Glossip v. Gross, 135 S. Ct. 2726, 2731 (2015). These methods have included electrocution, because it was thought to be less painful and more humane than hanging, to the gas chamber, to lethal injection. Id.

Traitors at common law were punished for treason by death with a vengeance. The punishment included being publicly dragged to the place of execution and there drawn, quartered and beheaded. See, United States v. Kawakita, 96 F. Supp. 824, 860 (S.D. Cal. 1950).

Beheading Finn and Rose with laser axes would meet the textbook definition of “objectively intolerable” risk of serious harm. This form of execution would be cruel and unusual punishment in gross violation of human rights.

The First Order is Not a Nation-State

The First Order is a political movement of Neo-Imperials who wish to rule the galaxy like the Empire. They do not have a home planet, instead operating on the Supremacy as their capital. Their plan was to take over the galaxy after destroying the Republic. As such, the act of destroying the Hosnian system was itself an act of terrorism. All subsequent acts against the Resistance were nothing short of murder in the name of politics.

Since the First Order is not a nation-state, they do not have the legal right to treat Finn and Rose as spies attempting to commit an act of sabotage. The Resistance was rightfully exercising their right to self-defense by a terrorist organization attempting to take over the galaxy. As such, Stormtrooper Executioners best rethink their life choices before they behead anyone, unless they wish to be prosecuted for extrajudicial murder.

The Big Legal Issue in Rare Exports

Josh Gilliland

December 25, 2017

If you are in the mood for an unconventional Christmas classic, watch Rare Exports. The film is about an archeological excavation for where Santa Claus was imprisoned centuries before in Finland. What is released from the ice is more like Krampus than Santa Claus. There is a significant twist, so do not read anymore until you have watched the film.

The heroes of the village capture 198 of Santa’s helpers, who are all naked old men in the snow. The heroes decide to sell each of the helpers as a “Santa Claus” for $85,000 per person, since they lost their reindeer profits.

There is a big problem with this Christmas miracle: selling people is slavery. On top of that, the former Santa’s helpers kidnaped children in sacks. These are the exact sort of people we would want to keep AWAY from children.

Finland, the United States, and virtually every other country, have all signed treaties prohibiting slavery. The Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery states:

The act of conveying or attempting to convey slaves from one country to another by whatever means of transport, or of being accessory thereto, shall be a criminal offence under the laws of the States Parties to this Convention and persons convicted thereof shall be liable to very severe penalties.
(a) The States Parties shall take all effective measures to prevent ships and aircraft authorized to fly their flags from conveying slaves and to punish persons guilty of such acts or of using national flags for that purpose.

1956 U.S.T. LEXIS 81, *6.

There is no question that Santa’s helpers were committing horrible crimes upon children. It was noble to try to rehabilitate them after centuries of being frozen in ice. However, the good guys are not supposed to sell other human beings. The fact military aircraft was being used to ship the “rare exports” of Santas in shipping containers would mean Finland was violating international law, let alone the prohibition of shipping people in the mail. That is a sure fire way to end up on the naughty list of every law enforcement agency on the planet.

Other than that…fun movie.

Did Luke Skywalker Have a Legal Duty to Save the Galaxy?

Josh Gilliland

December 20, 2017

General Leia Organa sought her brother Luke Skywalker’s help to save the galaxy from the First Order. Did Luke owe his sister, or the galaxy, a legal duty to rescue them from the Kylo Ren and the First Order?

The Duty to Rescue

As a matter of common law, no one has a legal duty to rescue others in peril, unless there is a special relationship. People v. Oliver, 210 Cal. App. 3d 138, 147 (1989). Moreover, even the realization that action is necessary for the protection of another, does not impose on a would-be rescuer to take such action. Rest.2d Torts, § 314.

From a certain point of view, Kylo Ren brought the First Order’s reign of terror across the galaxy because Luke Skywalker failed the “Would You Kill Baby Palpatine” test. Since Luke sensed the darkness within Ben Solo, Luke had a momentary lapse of ethics and considered killing his own nephew to protect the galaxy.

The problem with preemptive murder is that it is murder: Ben Solo had done no wrongdoing other than being tempted by the Dark Side. Luke was right not to kill Ben Solo and should have instead offered counseling to Ben. Unfortunately, Luke’s ethical failure ensured Ben Solo became Kylo Ren. This resulted in the immediate deaths of Jedi students, followed by the rise of the First Order over a several year period.

It is an extreme argument that Luke created Kylo Ren, thus owed the galaxy the duty to rescue them from the First Order. Such an expansion of the duty to rescue would require interpreting the Restatement of Torts maxim that one who does an act, then realizes that the act created an unreasonable risk of causing physical harm to another, thus imposing the duty to exercise reasonable care to prevent the risk from taking effect, to apply to the entire galaxy. Rest.2d Torts, § 321.

Special Relationship from Rebellion?

It is unclear if Luke had ever been in the Republic’s military, or just held a rank within the Rebellion. Retired members of the military can be called back to active duty under the Selective Service Act. Depending on the relationship between the Republic and Resistance, there is a colorable argument that Leia could have called Luke back into service (provided the Republic had a similar statute for Rebel veterans). Moreover, Luke traveled to Ahch-To in a Rebellion X-Wing. While the fighter could have been military surplus acquired by Luke, it is evidence of a connection to the military.

Special Relationship as Jedi?

Luke might have had a duty to rescue the galaxy because he was a Jedi. For example, Alaska law states there are circumstances where police have a duty to protect the lives of the public, such as in instances of domestic violence. See, State v. Gibson, 267 P.3d 645, 661-62 (Alaska 2012), citing Alaska Statute 18.65.515. As Obi-Wan Kenobi stated that Jedi were the guardians of peace in the galaxy, there is an expectation that Jedi would protect others from the First Order. However, it would be unreasonable for a single Jedi to take on the First Order by themselves with just a lightsaber and the Force.

Unreasonable…but totally awesome.

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