Did Bruce Wayne Break His One Rule by Being an Accessory After the Fact to Murder?

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April 21, 2015

Bruce Wayne on Gotham is neither the Caped Crusader nor the Boy Wonder. However, he might be an accessory after the fact to Selina Kyle’s murder of Reggie Payne. Did Batman break his one rule for the first girl who kissed him?

Maybe…

First things first: Selina Kyle pushed Reggie Payne out of a five-story window that resulted in his death. This meets the statutory definition of murder, because Selina Kyle both knowingly and purposely caused Payne’s death. N.J. Stat. § 2C:11-3(a)(1) and (2).

Bruce was with Selina Kyle at the time of Payne’s fall in order to get information on the Wayne Enterprise’s conspiracy. Bruce himself considered pushing Payne out of the window, but stopped. This shows Bruce did not have the intent to kill Reggie Payne.

Selina told Bruce not to tell anyone about her murdering Payne. Does Bruce Wayne’s covering up of Selina’s murder of Payne make him an accessory after the fact?

Under New Jersey law, assuming Gotham City is in New Jersey, a person is legally accountable for the conduct of another person when:

(1) Acting with the kind of culpability that is sufficient for the commission of the offense, he causes an innocent or irresponsible person to engage in such conduct;

(2) He is made accountable for the conduct of such other person by the code or by the law defining the offense;

(3) He is an accomplice of such other person in the commission of an offense; or

(4) He is engaged in a conspiracy with such other person.

N.J. Stat. § 2C:2-6(b).

New Jersey case law explains that an accessory needs only to have notice that the other person committed a “high misdemeanor” and knowing that assisting that person would justify a conviction. See, State v. Lynch, 79 N.J. 327, 399 A.2d 629, 1979 N.J. LEXIS 1199 (1979).

As another case explained, New Jersey requires that an accomplice act with the same purposeful state of mind in furtherance of a crime for liability. State v. Whitaker (2009) 200 N.J. 444, 457-458; N.J.S.A. 2C:2-6(c)(1). Moreover, “mere knowledge, without more,” does not make one an accomplice. Id. As such, an “accomplice is only guilty of the same crime committed by the principal if he shares the same criminal state of mind as the principal.” Whitaker, at *458-459. However, the accessory can be guilty of lessor crime. Id.

What does this mean for Bruce Wayne? Bruce did not have the intent to kill Reggie Payne, thus Bruce did not have the same murderous intent as Selina. Moreover, Bruce actually decided not to push Reggie out of the window. As such, Bruce did not have any criminal intent, where Selina certainly had criminal intent to commit murder. As such, it is unlikely Bruce could be convicted for murder, but certainly for obstruction of justice and related crimes for helping cover-up a murder.

Did Selina Kyle Commit Murder or Act in Self Defense?

By

Josh Gilliland

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April 14, 2015

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Oh, the future Catwoman. What does she do on Gotham when a heroin addict, who was in the British military, threatens to tell a ruthless corporate criminal on she and Bruce? Push the addict out the window while he is trying to retrieve his drugs.

Is pushing an unarmed man out a window, with his back to you, self-defense? Or is that murder?

New Jersey defines murder as when 1) someone “purposely causes death or serious bodily injury resulting in death;” or 2) when someone “knowingly causes death or serious bodily injury resulting in death.” N.J. Stat. § 2C:11-3(a)(1) and (2). Furthermore, a juvenile tried and convicted as an adult can be sentenced to at least 30 years without parole, or sentenced to a time between 30 years and life imprisonment, with parole eligibility in 30 years. N.J. Stat. § 2C:11-3(b)(5); (b)(1).

Pushing an unarmed man out the window of a multistory building is both a purposeful act and Kyle knew it would cause the victim’s death.

A person can use force to protect him or herself if they “reasonably believe that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.” N.J. Stat. § 2C:3-4(a).

A drug addicted verbally threatened Selina Kyle and Bruce Wayne that “I am going to tell on you.” The drug addict was not armed. The victim’s threat was that a third-party would cause them harm once the youth had been identified to the third-party. These facts do not show the victim was using any unlawful force to physically threaten Selina Kyle and Bruce Wayne. As such, Kyle’s actions look like murder and not self-defense.

Selina Kyle’s age would be to her advantage as a defense. In only one decision was a 14-year old tried as an adult and convicted for murder, felony murder, first degree kidnapping, second degree kidnapping, conspiracy to commit first degree robbery, first degree robbery, second degree possession of a weapon for an unlawful purpose, third degree unlawful possession of a handgun, and second degree sexual assault. State v. Jones (Super.Ct.App.Div. 1998) 308 N.J.Super. 174, 178, fn. 1.

The facts of the case from 1998 are extremely dissimilar than Kyle pushing someone out a window. Could she be tried as an adult? Highly unlikely.

What Did We Learn About Fear on Gotham?

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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.

Arkham Asylum: A Rogues’ Gallery of State Liability

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Josh Gilliland

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January 7, 2015

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Arkham Asylum is a massive Federal lawsuit waiting to happen on Gotham. The rogues’ gallery of legal issues in the first episode of Gotham since the mid-season should give all the fictional elected officials pause.

Generally speaking, the inmates could end up in Arkham if 1) they were on the streets as a danger to themselves or 2) arrested for a crime and found to be not competent to stand trial. There are of course other situations, but given the “hospital” is supposed to be for the criminally insane, those are the likely candidates.

As a preliminary matter, the prisoners could be in Arkham from a judicial determination. Alternatively, inmates could be involuntarily committed to Arkham if two treating physicians submit separate applications under penalty of perjury that the inmate containing a statement of the facts upon which the allegation of mental illness and need for care and treatment are based (assuming Gotham is in New York state). NY CLS Men Hyg § 9.27.

After arriving at Arkham Asylum, Doctor Lang should have had a doctor who was on the psychiatric staff examine each inmate to also determine if the individual was in need of involuntary confinement (assuming those inmates were not in Arkham by Court order).

History has many horrific cases of mental hospitals that were torture chambers. In order for a prion to have conditions that amount to “cruel and unusual punishment” that violates the Constitution, the conditions must be “barbarous” or “shocking to the conscience.” Cooper v Morin (1977) 91 Misc 2d 302, 398 NYS2d 36, mod, in part on other grounds, affd, in part (1978, 4th Dept) 64 App Div 2d 130, 409 NYS2d 30, mod on other grounds (1979) 49 NY2d 69, 424 NYS2d 168, 399 NE2d 1188, reconsideration den (1980) 49 NY2d 801 and cert den (1980) 446 US 984, 64 L Ed 2d 840, 100 S Ct 2965.

Arkham Asylum being 200 years old, abandoned for a decade, dirty, having inadequate lighting, not enough doctors, not enough guards, and lacking the means to treat those confined there, should rise to the level of “shocking to the conscience” and amount to “cruel and unusual punishment.” The icing on the liability cake was an former inmate infuriating the staff as a nurse and dispensing medications.

Here is the Civil Rights violation giveaway: if the “hospital” looks like a medieval dungeon, it most likely violates the US Constitution.

There is a very strong case against Doctor Lang and Arkham for his refusal to treat “Frogman” for his injuries from electric shock therapy. If someone is in prison, then the State must provide medical care to that prisoner, “”because the prisoner is unable by reason of the deprivation of his liberty [to] care for himself” Garcia v NY City Police Dept., 2014 NY Slip Op 31351[U], *14 [Sup Ct, Bronx County 2014], citing Estelle v Gamble, 429 U.S. 97, 97, 97 S. Ct. 285, 50 L. Ed. 2d 251 [1976].

Doctor Lang’s caviler statement that “Frogman” was still breathing and to simply “keep him comfortable,” demonstrated a total lack of providing any medical care needed for the injuries the “Frogman” sustained.

Arkham Asylum should strike terror into the heart of the Gotham City attorney. It literally is a massive lawsuit waiting to happen.

Finally, as for Cat taking the sick Poison Ivy to Barbara Kean’s penthouse, there is no doubt that entering the property was trespassing. However, Cat and Ivy could argue the necessity defense. Barbara on the other hand, from her drug use, bipolar behavior, and thinking the voice of a child to be a paramour, probably could be held involuntarily based on the evaluation of two doctors as a danger to herself.

Murder, Incorporated on Gotham

By

Josh Gilliland

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November 25, 2014

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Let’s start with Alfred is awesome. The ultimate butler who can fight off three assassins and put one in the ground. The world needs more marksmen butlers.

The Gotham mid-season finale focused on three assassins hired to kill Selnia Kyle (AKA Cat) at Wayne Manor. This small “league of assassins” killed a groundskeeper at Wayne Manor, shot Alfred (just a flesh wound), murdered Dick Lovecraft, and had a gunfight with the police.

“Murder-for-hire” assassins would violate both Federal and New York. Federal law specifically states:

(a) Whoever travels in or causes another (including the intended victim) to travel in interstate or foreign commerce, or uses or causes another (including the intended victim) to use the mail or any facility of interstate or foreign commerce, with intent that a murder be committed in violation of the laws of any State or the United States as consideration for the receipt of, or as consideration for a promise or agreement to pay, anything of pecuniary value, or who conspires to do so, shall be fined under this title or imprisoned for not more than ten years, or both; and if personal injury results, shall be fined under this title or imprisoned for not more than twenty years, or both; and if death results, shall be punished by death or life imprisonment, or shall be fined not more than $ 250,000, or both.

(b) As used in this section and section 1959 [18 USCS § 1959]–

(1) “anything of pecuniary value” means anything of value in the form of money, a negotiable instrument, a commercial interest, or anything else the primary significance of which is economic advantage;

(2) “facility of interstate or foreign commerce” includes means of transportation and communication; and

(3) “State” includes a State of the United States, the District of Columbia, and any commonwealth, territory, or possession of the United States.

18 USCS § 1958.

The murder of Dick Lovercraft was a completed murder-for-fire and could be prosecuted under Federal and New York law.

New York law specifically prohibits conspiracy to commit murder under NY CLS Penal § 105.15. Murdering a witness to a crime with the intent to prevent the witness from testifying in a trial is first-degree murder. NY CLS Penal § 125.27(1)(a)v).

The three assassins could be prosecuted under both Federal and State law for their conspiracy to kill Selina Kyle (thus attempted murder), because there was 1) a contract to kill the minor; 2) the intent to kill Kyle was to prevent her from testifying in the Wayne murder; and 3) interstate commerce was used in someway to give Federal jurisdiction, whether it was by communication or travel.

The death of the groundskeeper would qualify as a “death” under both statutes, as the groundskeeper was murder in the furtherance of the conspiracy. His death would carry a life sentence for all of the conspirators. Alternatively, if somehow the groundskeeper’s death and body mutilation was only second degree murder viewed separate from the conspiracy, the fact an assassin shot Alfred in the arm would qualify as an injury, thus carry a 20-year sentence.

Can DA’s Flip Coins? The Ethics of Harvey Dent

By

Josh Gilliland

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November 18, 2014

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Harvey Dent. The District Attorney who will one day be the villain Two-Face. This lawyer and future super-villain is a case study of prosecutorial responsibilities and attorney ethics on Gotham.

Here are the relevant facts: Jim Gordon took Selina Kyle into protective custody as a witness in the Wayne murder. Gordon attempted to keep Kyle off the grid and away from dirty cops, who would leak her whereabouts, thus sequestered her in “stately” Wayne Manor.

Jim Gordon met Harvey Dent outside the courthouse where Dent elected not to prosecute a minor based on a coin toss and a promise to stay out of trouble. During the closed-door meeting, Dent shared his theory on a possible suspect in the Wayne murder, an extremely wealthy (and corrupt) businessman named Dick Lovecraft with an army of lawyers.

Dent’s plan was to leak there was a witness linking Lovecraft to the “secret witness” with no evidence. No charges were to be filed and no names were to be made public, but using the threat of a witness to force confessions or shake out the real party involved in the Wayne murder.

Duties of a Prosecutor

In New York state, since Gotham City looks a lot like New York City in a pre-Rudy Giuliani nightmare, a prosecutor “shall not institute, cause to be instituted or maintain a criminal charge” when they know there is no probable cause to support a charge against someone. NY CLS Jud Appx R 3.8.

The ABA Model Rules of Professional Conduct Rule 3.6 also provide limitations on what lawyers can say to the press (provided the state incorporated the model rules). Lawyers shall NOT “make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.” ABA Model Rules of Professional Conduct Rule 3.6(a).

Lawyers can disclose to the press information that is public record, or the matter is in progress, plus information such as whether the accused was arrested, the time of arrest, investigating officers, and length of the investigation. ABA Model Rules of Professional Conduct Rule 3.6(b).

District Attorneys also have “prosecutorial discretion” in “determining when and in what manner to prosecute a suspected offender” People v. Harper, 186 Misc. 2d 750, 755 (N.Y. City Ct.2000), citing People v Di Falco, 44 NY2d 482, 486. Moreover, “almost invariably it is the prosecutor who decides whether a case is to be pressed or dropped and what the nature of the specific offense or offenses to be lodged against a defendant is to be” Harper, at *755, citing People v Zimmer, 51 NY2d 390, 394; see also, Matter of Bytner v Greenberg, 214 AD2d 931).

Did Harvey Dent Violate His Duties as a Prosecutor?

Some lawyers will have to flip a coin on whether Dent violated his duty as a prosecutor. Others see the issues with moral clarity.

It was within Dent’s prosecutorial discretion to not press charges against the youth outside the courthouse. While the Mayor did bring back the 19^th century practice of arresting children for being orphans or vagrants to be interned in “orphan asylum,” there is nothing that said such prosecutions were required to put children in protective custody. (See People ex rel. Horton v Fuller, 41 AD 404, 404 [2nd Dept 1899] and People ex rel. Van Heck v. New York Catholic Protectory, 101 N.Y. 195, 200(N.Y.1886)).

Harvey Dent’s coin toss was merely an act to encourage the youth to go back on the straight and narrow path. Moreover, given the fact the coin had two heads, the odds were in Dent’s favor the youth would act as Dent predicted. Non-conventional, but it does not seem to violate Dent’s duties as a prosecutor.

The same cannot be said for threatening Dick Lovecraft with criminal prosecution. Harvey Dent did not have any probable cause to bring Lovecraft in for questioning, let alone attempting to get him to sign a confession. Furthermore, Dent snapping in rage would have been assault, followed by battery when Dent placed his hands on Lovecraft.

Dent would be pushing his luck with publishing anything beyond there was a witness in the Wayne murder and the investigation was ongoing. Other than that, Dent’s ability to use the press would be limited, without committing defamation on those without any probable cause to suspect them of a crime.

Hit Me With a Bagel and You Can Kiss Me

There are 12-year-old males who would practice throwing bagels (and other Danishes) at targets for a kiss from a girl. While Selina Kyle made an oral contractual offer requiring the condition precedent of Bruce Wayne successfully throwing a bagel at her for a kiss, such a performance contract would be unenforceable and against public policy. Yes, consideration for a contract can be a bagel just as much as it could be a peppercorn, but we just cannot have food fights for kisses that go to court seeking specific performance as a remedy for assault with a bagel.

Sorry guys.

Now, anyone want to place bets whether Sean Pertwee will throw someone over his shoulder like his father used to on Doctor Who?

Do Not Ask "Do You Like Boys or Girls" in a Job Interview

By

Josh Gilliland

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October 14, 2014

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Gotham once again teaches a great legal lesson, this time with how to conduct a job interview. Fish Mooney separately interviewed two different female singers to perform in her nightclub. Fish bluntly asked each woman whether they like “boys or girls,” to which both answer “boys.” At that point, Fish asked each woman to “seduce her.”

There are questions you should not ask on a job interview. Sexual orientation is a big one. For example, California law states it is unlawful “for an employer, because of . . . religious creed . . . or sexual orientation of any person . . . to bar or to discharge the person from employment . . . or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.” Erdmann v. Tranquility Inc.,155 F. Supp. 2d 1152, 1159 (N.D. Cal.2001), citing Cal. Gov. Code § 12940.

New York has similar employment prohibitions:

It shall be an unlawful discriminatory practice:

For an employer or licensing agency, because of an individual’s age, race, creed, color, national origin, sexual orientation, military status, sex, disability, predisposing genetic characteristics, marital status, or domestic violence victim status, to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment.

NY CLS Exec § 296(1)(a)

Fish crossed a second interview “no no” in asking each women to seduce her as part of the interview. This easily could be found to be a “quid pro quo,” in that a sexual favor was asked in exchange for employment. This is a form of sexual harassment and is prohibited by law. Both women could demonstrate a claim of “quid pro quo,” because both suffered an adverse job consequence as a result of refusing the unwelcome sexual advances of a supervisor. Reed v. Hunt Corp., 2003 U.S. Dist. LEXIS 20774 (S.D. Ind.Nov. 11, 2003). The “adverse job consequence” each suffered was not only NOT getting the position because of merit, but being asked to fight each other.

It should go without saying that even in a cutthroat job market, no prospective employer can ask job candidates to have a death match. Moreover, even though this is Gotham, you cannot hire nightclub singers to seduce and kill someone. Questions relating to employment performance are fair game, but you cannot ask job candidates about their sexual orientation and then a seduction demonstration.