Could Vanessa Marianna be Convicted for RICO with Kingpin?

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September 15, 2015

In Marvel’s Daredevil on Netflix, Vanessa Marianna goes from art dealer to dinner date to girlfriend to fiancé of Wilson Fisk. Vanessa learned of Fisk’s criminal activities from domestic terrorism to killing his father. Could Vanessa also be convicted for Wilson Fisk’s many crimes?

As a preliminary matter, Wilson Fisk could be tried in Federal Court for Racketeering. The Racketeer Influenced and Corrupt Organizations Act (RICO) states, in relevant part:

(a) It shall be unlawful for any person who has received any income derived, directly or indirectly, from a pattern of racketeering activity or through collection of an unlawful debt in which such person has participated as a principal within the meaning of section 2, title 18, United States Code [18 USCS § 2], to use or invest, directly or indirectly, any part of such income, or the proceeds of such income, in acquisition of any interest in, or the establishment or operation of, any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce.

18 USCS § 1962.

Racketeering Activity is a long list of criminal activities, including any act or threat involving murder, kidnapping, gambling, arson, robbery, bribery, extortion, dealing in obscene matter, or dealing in a controlled substance or listed chemical or any act relating to bribery, mail fraud, and many other crimes. 18 USCS § 1961.

Vanessa was never directly involved in planning drug deals, murders, and illegally evicting tenants from their homes. The closest Vanessa ever comes to outright engaging in an agreeing to a crime was when she was hospitalized. Fisk told her, “I will make them suffer for what they have done,” to which she replied, “I expect nothing less.” This is not exactly a conspiracy and there are no further actions by her.

Did Vanessa Aid and Abet the Kingpin?

Vanessa provides a large amount of emotional support to Wilson Fisk. Could this be considered aiding and abetting Fisk in his crimes?

New York law on aiding and abetting states:

When one person engages in conduct which constitutes an offense, another person is criminally liable for such conduct when, acting with the mental culpability required for the commission thereof, he solicits, requests, commands, importunes, or intentionally aids such person to engage in such conduct.

NY CLS Penal § 20.00

Would Vanessa providing “emotional support” be considered “intentionally aids such person to engage in such conduct”? Vanessa did stand by Fisk for his big press conference, attended public parties, and knew Fisk engaged in criminal activities. However, she was never actually present at any criminal action. Moreover, she likely had plausible deniability of planning any event, but did have knowledge, such as the bombing of the Russian mobsters.

Case law states that “Silent approbation or pleasure in an assault and battery inflicted by another does not make a person, who has not encouraged or aided the perpetrator, liable in damages therefor.” Duke v. Feldman (1967) 245 Md. 454, 457-458.

In the Duke case, a husband assaulted a victim while the wife was unaware in the family car. The wife drove the husband away after the assault. There was no evidence that the wife in any way aided or abetted in the crime. As the Court explained, there was no evidence that she “assisted, supported, or supplemented her husband’s action or that she instigated, advised, or encouraged the commission of the tort. There was nothing in the evidence which would enable the jury to do more than speculate that her driving her husband away was part of a design to perpetrate the assault.” Duke, at *458.

Vanessa admitted being with Fisk would be “complicated.” The same could be said for prosecuting her. There is a very strong argument that she knew her support of Fisk was intentionally aiding him. However, there is a very strong argument she lacked the required intent for the crimes being committed. Moreover, she appeared to be outside of the planning for criminal activities. This would make prosecuting her a challenge, but probably would not stop charges from being filed. Federal prosecutors would likely charge Vanessa in order to get her cooperation in prosecuting Wilson Fisk.

Closing Arguments for Season 1 of Daredevil

By

Josh Gilliland

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June 30, 2015

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Daredevil is a very unique comic book adaptation for the Marvel Cinematic Universe. First, Wilson Fisk was not a villain out for genocide, but urban renewal through government redevelopment projects after the events of Avengers. Second, the hero is a lawyer with enhanced senses after being blinded with ninja skills. Sets a high bar for all lawyers besides following all our ethical obligations.

Judge Matthew Sciarrino, Novelist and Political Consultant Gerry O’Brien, and I dive into the many issues of Daredevil, from trial advocacy, New York City campaigns, to RICO.

Did Karen Page on Daredevil Act in Self-Defense?

By

Josh Gilliland

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April 17, 2015

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Karen Page on Daredevil is a case study in self-defense. If you have not watched the entire series, stop reading now.

James Wesley, the Kingpin’s chief enforcer, kidnapped Karen Page as she was entering her building. Wesley drugged Page and took her to a warehouse. This definitely was at least kidnapping in the second degree, which defines kidnapping as the act of abducting another person. NY CLS Penal § 135.20.

Page awoke sitting in a chair at a table. Wesley placed a loaded gun on the center of the table as a threat. Wesley offered Page a job to renounce her criticisms on the Kingpin. Wesley threatened to kill Ben Urich, Matt Murdock, Franklin Nelson, and basically everyone else Page knew if she did not accept.

Page’s solution: grab gun when Wesley’s phone rang and shoot Wesley multiple times until dead. There was a pause between the first shot before firing repeatedly.

Did Karen Page act in self-defense or did she murder James Wesley?

Self-defense under New York law permits the “use physical force upon another person when and to the extent he or she reasonably believes such to be necessary to defend himself, herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful physical force by such other person.” NY CLS Penal § 35.15(1).

There are substantial factors that limit the use of force, such as the defendant being the one to provoke the victim or was the initial aggressor. NY CLS Penal § 35.15(1)(a) and (b).

Lawyers arguing self-defense need to prove the use of force was both what a reasonable person would do and justifiable from the defendant’s subjective state of mind. (See, Justification —What Is Reasonable Belief?, by Alan D. Marrus, Acting Supreme Court Justice, Kings County, New York. General Editor, John M. Castellano, Esq., Member of New York Bar, NY CLS Penal § 35.15, Practice Insights). As such, Judge Alan D. Marrus explained:

To pass the subjective test, counsel will probably need to call the defendant as a witness to testify as to his state of mind when he committed the criminal act. The defendant’s testimony would be able to establish how the defendant perceived the situation, e.g. what he saw the victim doing, what he heard the victim saying, what he knew about the victim’s propensity for violence, and the fear the defendant experienced about an imminent danger to himself or another.

Id.

Karen Page has a very strong argument she acted in self-defense both objectively and subjectively. First, she had been drugged and kidnapped. Second, Wesley placed a gun on the table where he could use the weapon on her. Third, Wesley made a verbal threat that she and all of her friends would be butchered if she did not submit to Wesley’s demands to effectively live in captivity indefinitely.

Karen Page subjectively could believe she was in mortal danger given the fact one man had already been murdered in her apartment, that she had been framed for that murder, and that an assassin had already been sent to hill her once before. Moreover, multiple other people had been killed already in the Kingpin’s conspiracy.

The facts against Page are that she paused after firing the first shot. Wesley had been seriously injured after Page shot him at close range. It appeared she verified the gun was actually loaded and thought before firing multiple times. Wesley was physically unable to threaten Page after the first shot. Opening fire on Wesley looks like premeditated murder.

The arguments against Page murdering Wesley is that she had been kidnapped and Wesley had the power to order her death if he was still alive. Page was very aware of the prior murder attempt on her life by the Kingpin’s assassin who had committed “suicide” in jail. Objectively from the facts, and subjectively from the threat made directly against Page, she has an extremely strong self-defense argument.

Was John Healy’s Speedy Trial Accurate on Daredevil?

By

Josh Gilliland

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April 15, 2015

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The Daredevil episode a “Rabbit in a Snowstorm” centered on a Nelson & Murdock being hired by a mysterious company to represent a hit man named John Healy. The trial was highly expedited and the Defendant argued he gave a victim a compound fracture, and beat the victim to death with a bowling ball, in self-defense.

The defendant agreed to waive discovery, hearings, and demanded a 180.80. I asked New York Judge Matthew Sciarrino if he could discuss the accuracy of the proceedings. Here is what the good judge said:

If a defendant is arrested for a felony CPL 180.80 applies.

“Upon application of a defendant against whom a felony complaint has been filed with a local criminal court, and who, since the time of his arrest or subsequent thereto, has been held in custody pending disposition of such felony complaint, and who has been confined in such custody for a period of more than one hundred twenty hours or, in the event that a Saturday, Sunday or legal holiday occurs during such custody, one hundred forty-four hours, without either a disposition of the felony complaint or commencement of a hearing thereon, the local criminal court must release him on his own recognizance unless….”

So, upon expiration of exactly 120144 hours from time of arrest (144 hours is calculated from time of arrest – 180.80 is measured in terms of hours (down to the minute), not days) unless:

The failure to dispose of the felony complaint or to commence a hearing thereon was due to the defendant’s request, action, condition or consent; or

Prior to the application, the District Attorney files a written certification that an indictment has been voted, or an indictment or direction to file a prosecutor’s information was filed by the Grand Jury; or

Good cause for not releasing the defendant from custody is shown

As was seen by the advice of the lawyer Matt Murdock, a defense attorney may often waive 180.80 to allow the DA additional time to investigate, or to negotiate a plea deal.

Now, for misdemeanors, CPL 170,70 applies and unlike 180.80 calculations, when computing the 170.70 date you must count five days from the arraignment date, not from the arrest date. You must include the day of arraignment in your calculation and you must skip Sundays when making this calculation.

You also heard Matt Murdock refer to speedy trial. Speedy trial is not the same as 180.80/170.70. Speedy trial which is governed by section 30.30 (Statutory Speedy Trial Rights) and 30.20 (Constitutional Speedy Trial Rights).

Under 30.30, the time within which the People must effectively announce their readiness for trial (with certain statutory time period exclusion, i.e., for discovery or motions). The time limitations within which the People must answer ready for trial are as follows:

Six months for a felony (no statutory speedy trial for Murder);

90 days for a class A misdemeanor or any unclassified misdemeanor punishable by a term of imprisonment of more than three months;

60 days for a class B misdemeanor;

30 days for a violation.

A huge “thank you” to Judge Sciarrino for explaining the procedures depicted in Daredevil.

Bowling for Acquittal

The argument of self-defense was novel to say the least. Self-defense under New York law permits the “use physical force upon another person when and to the extent he or she reasonably believes such to be necessary to defend himself, herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful physical force by such other person.” NY CLS Penal § 35.15(1).

There are substantial factors that limit the use of force, such as the defendant being the one to provoke the victim or was the initial aggressor. NY CLS Penal § 35.15(1)(a) and (b).

Lawyers arguing self-defense need to prove the use of force was both what a reasonable person would do and justifiable from the defendant’s subjective state of mind. (See, Justification —What Is Reasonable Belief? By Alan D. Marrus, Acting Supreme Court Justice, Kings County, New York., General Editor, John M. Castellano, Esq., Member of New York Bar, NY CLS Penal § 35.15, Practice Insights). As such, Judge Alan D. Marrus explained:

To pass the subjective test, counsel will probably need to call the defendant as a witness to testify as to his state of mind when he committed the criminal act. The defendant’s testimony would be able to establish how the defendant perceived the situation, e.g. what he saw the victim doing, what he heard the victim saying, what he knew about the victim’s propensity for violence, and the fear the defendant experienced about an imminent danger to himself or another.

Id.

The Defense took the very risky position of NOT having the Defendant John Healy testify as to his state of mind. While it is normally dangerous for a Defendant to testify anyway, it is difficult to prove someone’s subjective belief without the Defendant’s testimony.

The Courtroom scene with Matt Murdock was cool, with dramatic lighting, and a very legal sounding argument. However, procedurally how they even got into court on the shortest murder trial ever would only happen in a comic book.

As to whether or not it violates a lawyer’s continuing duty of loyalty to dress as a vigilante and attack a former client for information on a criminal conspiracy, one can argue representation had ended, but that is another issue entirely.

A Daredevil of Attorney Ethics Over the Crime-Fraud Exception

By

Josh Gilliland

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April 13, 2015

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Marci Stahl, Esq., a [fictional] attorney at the [fictional] “Big Law Firm” Landman & Zack, is a case study of attorney ethics on Marvel’s Daredevil series on Netflix.

Landman & Zack is the mythical law firm we heard about in law school. First year associates probably are paid $190,000 a year, have to bill 720 hours a month, and represent morally ambiguous clients, like a Japanese whaling company. Some poor lawyer has to say with a straight face, “My client is simply conducting research, tasty research,” in a defamation and harassment suit against environmental activists. These lawyers learn to live without having a reflection thanks to suits made from endangered species. For the lucky few who do not have a nervous breakdown, they have the option to go to the Carousel at age 35, with the hopes of becoming a junior partner.

Enter Marci Stahl, Esq., the former girlfriend of Foggy Nelson. Ms. Stahl admits to “Foggy Bear” Nelson that Landman & Zack represents Wilson Fisk, the crime lord who is not yet called The Kingpin. Fisk is the law firm’s highest billing client.

Nelson confronted Stahl that her firm was aiding Fisk in a criminal enterprise. Furthermore, Nelson went so far as to say Stahl had lost her soul at Landman & Zack. Stahl responds by sneaking Fisk’s client files out of Landman & Zack and giving them to the law firm Nelson & Murdock.

Marci Stahl’s actions are a piñata of ethical issues. Attorneys have a duty to counsel a client to NOT engage in illegal conduct. New York Rules of Professional Conduct 1.2(d). Furthermore, a lawyer may refuse to participate in conduct the lawyer believes to be unlawful. New York Rules of Professional Conduct 1.2(f). As stated in comment 10 to Rule 1.2(d), lawyers are to avoid assisting a client by preparing a fraudulent document or concealing wrongdoing. As such, a lawyer should advise a client if the requested conduct would violate the law. Id. If a client will not change their conduct and the lawyer’s participation would violate the law, the lawyer should withdraw from the case. Id. Moreover, there are cases where a lawyer would have to disaffirm any documents prepared for the client. Id; Rule 1.6(b)(3); Rule 4.1, Comment [3].

Ms. Stahl turned over client material to an adverse law firm. This is highly problematic for her, because a lawyer should not knowingly reveal confidential information. New York Rules of Professional Conduct 1.6(a) and NY CLS CPLR § 4503. A lawyer can reveal confidential information under the following conditions:

1) To prevent reasonably certain death or substantial bodily harm;

2) To prevent the client from committing a crime;

3) To withdraw a written or oral opinion or representation previously given by the lawyer and reasonably believed by the lawyer still to be relied upon by a third person, where the lawyer has discovered that the opinion or representation was based on materially inaccurate information or is being used to further a crime or fraud;

4) To secure legal advice about compliance with these Rules or other law by the lawyer, another lawyer associated with the lawyer’s firm or the law firm;

5)(i) To defend the lawyer or the lawyer’s employees and associates against an accusation of wrongful conduct;

New York Rules of Professional Conduct 1.6(b).

Ms. Stahl turned over information to Nelson & Murdock without the knowledge of her firm or consent of her client. The information was clearly “confidential.” However, it was also evidence of racketeering. As recognized by New York Courts, the “intent to commit a crime is not a protected confidence or secret.” People v. DePallo (2001) 96 N.Y.2d 437, 442.

The “Crime-Fraud” exception to attorney work product doctrine is not “intended to shield an attorney’s or his agent’s fraud or otherwise impede investigation of criminal activity.” In re Grand Jury Subpoenas Served upon John Doe (Sup.Ct. 1988) 142 Misc.2d 229, 232. The purpose of keeping attorney work product confidential is “to protect from disclosure to party adversaries the attorney’s mental thought process in determining the significance of evidence and the strategies and arguments he has developed in preparing a case for trial.” Id; 3A Weinstein-Korn-Miller, NY Civ Prac para. 3104.43, at 31-157.)

Landman & Zack’s work product is likely key evidence in the racketeering charges against Wilson Fisk. The fact lawyers assisted a criminal enterprise would make them part of a conspiracy, and subject to immediate disbarment if convicted. Attorneys have been charged in the past with racketeering in violation of 18 USCS § 1962(c), so this is not the stuff of comic book stories. See, Wade v Gaither (2009, DC Utah) 623 F Supp 2d 1277.

Stahl’s best argument for turning over client confidential material to Nelson & Murdock is that she engaged the firm to secure advice on compliance with her ethical duties and whether her client had broken the law. While this argument is problematic since the firm Nelson & Murdock had been adversarial to Wilson Fisk, thus on its face should violate Stahl’s duty to loyalty to Fisk, it is the least bad position for her. The better plan would have been turning the material over to the FBI in order to prevent her client from committing more crimes. However, with the way anyone who opposed Wilson Fisk kept ending up dead, it was objectively reasonable for Stahl to work with another law firm.

Daredevil Into the Ring (and Confession)

By

Josh Gilliland

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April 10, 2015

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

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

Forgive Me Father I am GOING to Sin

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

New York defines the Clergy Privilege as follows:

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

NY CLS CPLR § 4505.

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

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

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

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

Saving Others from Slavery

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

New York allows for the defense of others:

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

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

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

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

NY CLS Penal § 35.15.

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

Just the Beginning

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

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

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

Can Matt Murdock be Disbarred for Vigilantism?

By

Josh Gilliland

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April 3, 2015

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Daredevil the Series is nearly here. Finally: a lawyer who is a super-hero. Many geeks, and geeky lawyers, will be binge-watching Netflix starting on April 10, 2015.

Heck, Jessica and I would love to be extras if the producers need opposing counsel at a depo or a hearing in season 2.

The big question: Can Matt Murdock be disbarred for being a vigilante? Yes, one can argue it is very creative pro bono work. Moreover, who are others to judge how Matt Murdock does his community service?

Well, for one, the state of New York. Matt Murdock is a [fictional] licensed attorney in New York, so the state bar has specific rules of professional conduct.

An attorney can be suspended from the practice of law, censured, or removed from office, if the attorney is “guilty of professional misconduct, malpractice, fraud, deceit, crime or misdemeanor, or any conduct prejudicial to the administration of justice.” NY CLS Jud § 90(2).

A lawyer who is convicted of a felony will cease to be an attorney or competent to practice law in New York. NY CLS Jud § 90(4)(a) and (4)(e).

If Daredevil were arrested, unmasked, and ultimately convicted for assaulting criminals, would that be a felony that would disbar Matt Murdock?

That answer is YES. Assault in the second degree is a class D felony in New York. Matt Murdock would be guilty if he 1) intentionally causes serious physical injury to another person or third person; or 2) intentionally causes injury to a person or third person by means of a deadly weapon or dangerous instrument. NY CLS Penal § 120.05(1) and (2).

Seeking out Kingpin’s thugs to engage in combat would definitely be assault.

Why would a Court disbar Matt Murdock for conducting what he thinks is his civic duty? Because lawyers are supposed to uphold the law, not break it. As New York Judge Vito Titone stated in a case with an prosecutor who abused his power:

A person charged with or suspected of the most heinous of crimes is still entitled to the fundamental fairness encompassed by the notion of due process. “Vigilante Justice” is abhorrent to our concept of jurisprudence whether the end product be a body dangling from a rope, or a person charged with a crime as a result of lawless conduct on the part of an overzealous prosecutor. The latter indeed is reprehensible since both society and the accused are victimized by one sworn to uphold the law.

People v. Rao (App.Div. 1980) 73 A.D.2d 88, 100 citing People v Isaacson, 44 NY2d 511, p 524.

Lawyers are not supposed to take the law in their own hands. Granted, this would make a TV show (or comic) about a blind ninja lawyer with super radar senses extremely boring. Moreover, Matt Murdock has no fear of the rules of professional conduct, because he is after all Daredevil.

So Daredevil, we look forward to you doing justice on Netflix.