Is Tandy in Marvel’s Cloak and Dagger Guilty of Manslaughter?

By

-

June 12, 2018

Marvel’s Cloak and Dagger is the newest entry to the Marvel television universe. The story takes place in New Orleans and revolves around two teenagers who appear to be connected via some supernatural force after the two of them were exposed to both tragedy and some mysterious energy as children. The two protagonists are Tandy Bowen, the Dagger, and Tyrone Johnson, the Cloak. This article will focus on Tandy Bowen who lost her father at a young age. As a result, Tandy’s mother became addicted to drugs and Tandy was forced to resort to a life of crime to provide for herself.

When we first meet Tandy Bowen in Marvel’s Cloak and Dagger, she’s already in the midst of her first crime. Tandy is seducing Rick, a random rich boy, into taking her back to his uncle’s place where she will proceed to rob him blind. Unfortunately for Tandy, Rick eventually finds Tandy and attempts to sexually assault her while she is pinned up against an alley wall. Unbeknownst to Rick, Tandy is gifted with supernatural powers and the ability to create “light daggers.” Placed in a dangerous situation, Tandy’s powers instinctively activate and she stabs Rick in the stomach with one of her “light daggers.”

Is Tandy guilty of involuntary manslaughter?

Could Tandy be convicted with involuntary manslaughter or assault with a deadly weapon? Although Rick’s health status is not yet confirmed, let’s explore the situation where he passes away from being stabbed by Tandy’s “light dagger.”

The first question that must be answered is whether Tandy is being tried in a Federal or State court. Considering the prevalence of super-powered individuals in the Marvel universe, it is likely that there is some structured Federal body like S.H.I.E.L.D. that may deal with the investigation and potential court proceedings. However, considering Tandy is just developing her powers and is a teenager, those Federal agencies may be busy dealing with the likes of Ghost Rider or more established and notorious super-powered individuals. In that case, perhaps Tandy would be tried in a state court.

But proceeding with the assumption that Tandy would be tried under Federal law, under 18 U.S.C. § 1112, Manslaughter, the Federal statutory definition of involuntary manslaughter is: “. . . the unlawful killing of a human being without malice. . . . In the commission of an unlawful act not amounting to a felony, or in the commission in an unlawful manner, or without due caution and circumspection, of a lawful act which might produce death.”

Unlike murder, involuntary manslaughter does not require the attacker to have an intent to kill, but rather, the killing can be unintentional. U.S. v. Paul, 37 F.3d 496, 499 (9th Cir. 1994). However, a killing under involuntary manslaughter must show “wanton or reckless disregard for human life.” Id. Involuntary manslaughter also requires a knowledge requirement. The attacker must have actual knowledge that her actions could be a threat to the lives of others. U.S. v. Pardee, 368 F.2d 368, 374 (4th Cir. 1966).

Based off the statute and statutory interpretation from Courts of Appeals, Tandy will probably be off the hook for involuntary manslaughter in a Federal court. First, the scene clearly shows that Tandy did not display any indication of “wanton or reckless disregard for human life.” The scene shows that she is scared and although she fights back, nothing she did appeared to show disregard for human life. Furthermore, Tandy has no awareness of the extent of her power so she is not actively displaying any negligent or reckless behavior. Second, Tandy has no intention of inflicting any sort of fatal injury, as her power seemed to have activated without her knowledge.

Self-defense via “light daggers”

Furthermore, Tandy’s attorney—perhaps a certain Matthew Murdock?—could offer the affirmative defense of self-defense. Although there is no Federal self-defense statute, Model Penal Code (hereafter MPC) § 3.04 offers some guidance. The MPC states that “the use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting [herself] against the use of unlawful force by such other person on the present occasion.” § 3.04. Use of Force in Self-Protection., Model Penal Code § 3.04. While the MPC guidelines appear to provide Tandy with viable defense strategy, a crafty prosecutor might argue that Tandy had no idea the level of force she was going to inflict upon Rick because she had no idea of her powers. Id. As a result, her actions would not qualify for the MPC language which states “the actor believes that such force is immediately necessary,” since she had no belief or knowledge of her powers.

Are “light daggers” a dangerous weapon?

On the other hand, if Rick survives his injuries, Tandy could be tried for assault. The Federal statute, 18 U.S.C. § 113(a)(3) Assault with a dangerous weapon, appears to be the most applicable charge against Tandy. Although the Federal assault statute does not define what a “dangerous weapon” is, existing Federal case law has awarded the term a broad definition. For example, in U.S. v. Sturgis, an HIV infected defendant’s bite was considered a “dangerous weapon.” 48 F.3d 784, 787-88. Considering the broad interpretation courts have given to the term “dangerous weapon,” I imagine a Federal prosecutor would be able to establish that Tandy’s “light daggers” constitute a “dangerous weapon.”

Ultimately, Tandy would probably be able to fend off a charge of involuntary manslaughter or assault with a deadly weapon with a self-defense argument, but if a crafty Federal prosecutor can prove that Tandy did not actually have the knowledge of the force she was about to inflict, her defense may be challenged.

On an interesting note, Tandy’s situation differs greatly from Tyrone’s interactions with his newfound power. Although Tyrone’s powers do not yet appear offensive in nature, Tyrone is actively seen trying to trigger his powers. However, that is left to a separate discussion.

Belter Sovereignty and the Outer Planet Alliance’s Space Law Claim in The Expanse

By

Caesar Kalinowski IV

-

June 11, 2018

0

“We. Are. Belters. Nothing in the void is foreign to us! The place we go is the place we belong . . . WE ARE THE BELT! THIS MOMENT BELONGS TO US!”

In my last article on The Expanse, I examined how the Belters could establish their independence from Earth and the Martian Congressional Republic. In short, I argued that the Belters could meet the international requirements for independence because (1) the Belt meets certain practical requirements involving territory, population, and government, (2) the group could unilaterally declare its independence, and (3) although the Terran and Martian governments need not recognize the group’s sovereignty, they likely would because of the difficulty in fighting the Belt, the need for its resources, and the Belters’ possession of the protomolecule.

A few days after the article published, SyFy aired “Delta-V,” which debuted the newly independent government of the Outer Planets Alliance (“OPA”). I, for one, assume they read my article and decided to take my advice because they know that The Legal Geeks are at the cutting edge of sci-fi law. “Sure,” you might say, “but what about the fact that episodes and storylines take months or years to write and shoot?” Like I told my wife when she asked the same thing: “Never let the truth get in the way of a good story.” Sadly, The Expanse jumped to a few months after the Belter independence movement and so we will never know for sure whether they took my advice.

Nothing like stealing a religious exploratory vehicle to turn it into your main battleship. Nice one OPA.

Outer Planets Alliance as a Nation

What we do know, however, is that the OPA is now a fully-functioning government. Jointly led by Anderson Dawes and Fred Johnson, the OPA established its Belter-staffed Free Navy and recovered the previously-commandeered Mormon ship, the Nauvoo. After retrofitting the Nauvoo as the solar system’s largest weapons platform battleship, the newly-christened OPAS Behemoth joins the inner planets’ naval forces to investigate “The Ring.”

The Ring, formed by the protomolecule, is an unknown object sitting just off of Uranus’s orbit. After the Belter “rock hopper” Néo slingshots through the Ring and into eternity (as well as Belter history books), the unknown alien object comes alive as a sort of wormhole. Eventually, the show’s main protagonists enter the Ring in the Rocinante, followed closely by an OPA torpedo and the Martian warship Xuesen. The Martians quickly send a probe back out of the Ring, telling Earth and the OPA to wait outside the wormhole in no uncertain terms. But the OPAS Behemoth’s captain Camina Drummer is having none of that. The Ring is in the Belt, she exclaims, and so the OPA owns the rights to explore and control it.

So is she right? Does the OPA have a claim on the Ring, for good or for bad? Assuming there have not been some massive changes to space law (which is a huge assumption considering space has now been colonized), my guess is that they do not have a legal claim on the Ring and they also cannot stop Earth and Mars from exploring it, but they can simply ignore space law and try anyway.

Outer Space Treaty

In 1967, the major space-faring nations signed the Outer Space Treaty (“OST”), which provides the basic legal framework for space travel and exploration. Currently signed by 130 nations, the OST specifically states that “[o]uter space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.” See OST, Art. II. The OST also mandates that “[o]uter space . . . shall be free for exploration and use by all States . . ., and there shall be free access to all areas of celestial bodies,” see id. Art. I. Furthermore, “Parties to the Treaty shall carry on activities in the exploration and use of outer space, including the moon and other celestial bodies . . . in the interest of maintaining international peace and security and promoting international co- operation and understanding.” Id. Art. III. Effectively, space law currently is hinged on the concept of “the common heritage of mankind,” whereby any person can explore or exploit outer space resources.

Based on the OST, it seems, the OPA is out of luck. The Ring, although not a “celestial body” per se, is certainly an enormous object in outer space. Not unlike an asteroid, the protomolecule basis for the Ring suggests that it could move through space. So whether the Ring remains in Belter territory is yet to be established, potentially foreclosing a claim of right as the territorial sovereign of the “land.” But considering that the OPA encompasses more than just one planet or celestial body, the Belters could argue that anything less than total control over all celestial bodies and objects in the outer rings undermines its own sovereign rights as a state. See Brian Taylor Sumner, Territorial Disputes at the International Court of Justice, 53 Duke L.J. 1779 (2004) (“In international law and relations, ownership of territory is significant because sovereignty over land defines what constitutes a state.”).

Another possible route for the OPA to take control of the Ring is to assert and militarily defend its right. Although the OST specifically forbids assertions of sovereignty, that treaty only has force based on the consent of the States in existence. If the OPA declares itself owner of the Ring, backs that declaration with the OPAS Behemoth and its other ships, it could force Earth and Mars to respond or back down. See Leslie I. Tennen, Esq., Towards A New Regime for Exploitation of Outer Space Mineral Resources, 88 Neb. L. Rev. 794, 805 (2010) (“The mere recognition of claims by a state would constitute a de facto exclusion of other states and their nationals, and thereby constitute a form of national appropriation.”). Considering how well the OPA fared in establishing its independence, my guess is that they will be quick to pull the same card again.

“Rock hoppers” are Belters that sling shot around celestial bodies. Neo isn’t super smart, but he sure keeps the story moving…

Conclusion

Although current space law expressly forbids claims on celestial bodies by governments, the OPA could simply disregard “the common heritage of mankind” and claim the Ring for itself. Whether the new nation state could defend such a claim or whether the Ring stays in place, has yet to be seen. Given the Captain Drummer and the OPAS Behemoth’s crew’s fervor for Belter rights, my guess is that they will at least try.

Random Thoughts:

It doesn’t look like the Ring has any resources or purpose to speak of, save slowing down matter. Laying claim to the Ring itself then, seemingly only ensures the territorial bounds of the OPA’s area.
Josephus “Joe” Aloisius Miller’s transformation from a hardened, world-weary detective to a hardened, fourth realm Investigator is a real show stopper. But for real, Miller’s return is a great addition.
I can’t wait for the inevitable battleship chase in the Ring, which will be the slowest chase in The Expanse ever.
A big thanks to r/TheExpanse and Amazon for saving the show. Television needs more great sci-fi like The Expanse.

Does Feeding Prisoners to a Hungry Wookiee violate the Eighth Amendment?

By

Steve Chu

-

June 7, 2018

0

Early in the movie Solo we learn that a young Han has joined the Imperial military. Although he did not succeed as an Imperial pilot, we find him as a foot soldier on the planet Mimban. After complaining that he does not know what they are fighting for, Han tries to leave his post and escape from both the Imperial military, and the planet.

Not exactly an Imperial Recruitment Poster

SPOILER WARNING.

In that process, the Imperial military captures Han and tosses him into a pit to be fed to a familiar and very hungry Wookiee. My esteemed friend Thomas Harper has already covered the issue of Han Solo’s desertion in an excellent blog post. This writing will cover the punishment for Han’s desertion, and whether the act of feeding prisoners to a hungry creature would violate the prisoner’s Eighth Amendment right to be free from cruel and unusual punishment.

First, a few assumptions: this discussion will take the U.S. Constitution and the decisional holdings of the U.S. Supreme Court and various federal courts and apply those precedents to what happened in Solo: A Star Wars Story. We will put aside the Geneva Convention for this write-up, and simply focus on the U.S. Constitution. As of the time of Solo, we know that the Galactic Empire has taken over the galaxy, with Palpatine as the Supreme Emperor. While the existence of judges and courts has been referenced in other movies during the time of the Old Republic, it would be unlikely that a similar court system would continue to exist during the tyrannical time of the Empire. Or, if such a system did continue to exist, it would be unlikely that the courts would actually defy the Emperor’s wishes and force him to bend his conduct to conform to established laws.

We see examples during the original trilogy where authoritarian rule prevails and individual constitutional rights do not appear to be of great concern. Notably, the Imperial Senate is disbanded, whole planets are destroyed as a warning to the rest of the galaxy, and Stormtroopers freely enforce the Empire’s will upon numerous worlds.

That brings us back to Solo, where, practically speaking, the Imperial military can do as it wishes. However, IF there were a functioning court system that upheld laws similar to those of the US Supreme Court and US Constitution, what would happen? Let’s take a look.

First, let’s examine why Han was being punished in Solo. He left his post and was trying to escape from the Imperial military and the planet Mimban. As noted in Thomas Harper’s write-up, this is desertion, which is a serious military crime and can be punishable by death. Therefore, the question of whether Han could be put to death is a bit of a different discussion. If the Imperial military operates similar to the militaries of our world, Han would typically be given some due process before being fed to the monsters. That would normally involve a judicial proceeding such as a court martial, with counsel to represent him. We will assume then, for purposes of this write-up, that after what, if any, judicial process is afforded to deserters of the Emperor’s army, Han has been found guilty and sentenced to death.

That then leads to our discussion of punishment which we can break into two parts: (1) does the mere fact of Han being sent for execution violate his Eighth Amendment rights; and (2) does the manner of feeding Han to a hungry Wookiee violate his Eighth Amendment rights?

The Death Penalty and the Eighth Amendment

The U.S. Supreme Court has held that the death penalty is not per se unconstitutional, as it can serve the social purposes of retribution and deterrence. Gregg v. Georgia, 428 U.S. 153, 183–87 (1976). However, the U.S. Supreme Court has also held that while punishment by death in and of itself is not cruel in violation of the constitution, the manner of execution can be said to be inhuman and barbarous. Furman v. Georgia, 408 U.S. 238, 241-42 (1972).

The Eighth Amendment to the U.S. constitution reads as follows:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

The provision that references cruel and unusual punishments finds its roots in the English Act of Parliament of 1688, entitled “An act for declaring the rights and liberties of the subject, and settling the succession of the crown.” That act provided that “excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” This declaration of rights referred to the acts of the executive and judicial departments of the government of England. In re Kemmler, 136 U.S. 436, 444 (1890).

The U.S. Supreme Court has observed that certain punishments have been considered cruel and unusual such as burning at the stake, crucifixion, and breaking on the wheel. In those cases, it is the duty of the courts to prohibit such punishments pursuant to the authority provided by the Eighth Amendment. The Supreme Court also noted over 100 years ago that it would be difficult to define with exactness the extent of the prohibition against cruel and unusual punishments. However, the High Court has noted that punishments are cruel when they involve torture or a lingering death. Kemmler, 136 U.S. at 444-45.

Over time, the Supreme Court has also observed that the definition of cruel and unusual punishments may change over time, and that the Eighth Amendment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Trop v. Dulles, 356 U.S. 86, 101 (1958).

That brings us back to Solo and the Star Wars universe. The authorities discussed above make it clear that the fact of Han being sent to death would not, in and of itself, violate his constitutional rights. We are then left with the manner of his attempted execution: being fed to a hungry Wookiee. It is very likely that being fed to a hungry carnivorous creature as a means of execution would involve considerable fear, pain, and a lingering death. The numerous victims of the Rancor from ROTJ would likely attest to that, if they were somehow able to testify. Being chased around by a starving carnivorous creature with the expectation of being consumed would prolong death when compared to other methods. Death by blaster fire or even by Force choke could be seen as more humane given the quickness and efficiency of those methods. Han could certainly make a strong case that being fed to a hungry Wookiee violates his constitutional rights, and he should have a good feeling that a court would prevent such a method of execution as a result. Han would not be able to escape his execution altogether on these legal grounds, but he could at least change the method of his planned demise.

Incidentally, one can imagine the Star Wars tale in which a prisoner who is tossed into a monster pit makes such a complaint about their rights, only to be met with a retort of “okay,” followed by a blaster bolt leveling the prisoner a moment later. So maybe this constitutional knowledge would not save your life, but at least it could change the way in which one dies. In Han’s prescient later words: “Over my dead body!” Maybe there would be a way to stave off execution (i.e. freezing him in carbonite), but at the uncivilized time of the Mimban operation, such a method would more likely involve blasters than legal briefs.

It’s Time to Put an End to Underground Droid Fighting

By

Josh Gilliland

-

June 5, 2018

0

The horrors of underground Droid Fighting are an abandonment of morality. Imagine a world where two human beings beat each other until one had brain damage for “entertainment.” Nothing so barbaric would be considered a sport that left participants with lingering health problems for decades. Yet at the Lodge at Fort Ypso, Droids are exploited for the amusement of cheering “biological” life forms.

Could sadists like Ralakili be put on trial for his battle bot exhibition to delight drunken bar patrons? Could those who attend droid-on-droid carnage be prosecuted? Are there any laws to protect Droids from such cruelty?

The Law Will Help Those in Desperate Need

There is a maxim in the law: For every wrong, there is a remedy. Civ. Code, § 3523. Across the United States there are laws to protect dogs from being exploited in “dog fights.” These laws are illustrative of how Droids, expressing sentience and all other signs of life, could be protected from those who would willfully profit from Droid mutilation, torture, and death.

Anyone who 1) Owns, possesses, keeps, or trains any dog, with the intent that the dog shall be engaged in an exhibition of fighting with another dog; or 2) For amusement or gain, causes any dog to fight with another dog, or causes any dogs to injure each other; or 3) Permits any act in violation of paragraph (1) or (2) to be done on any premises under his or her charge or control, or aids or abets that act, is guilty of a felony. Cal. Penal Code § 597.5. The punishment is imprisonment for at least 16 months up three years, or a fine to not exceed $50,000. Id. Those who engage in dog or cockfighting can also have their property (the animals) forfeited. Cal. Penal Code § 598.1

Those who knowingly attend dogfights can be imprisoned for up to one year and fined up to $5,000.

Protecting Droid Lives

Ralakili caused Droids to fight other Droids for the amusement of the Lodge patrons. He might have also kept Droids, possibly training, programing, or physically altering them, to fight other Droids. If the Droids were dogs, Ralakili could be charged and convicted of a felony with a prison sentence up to three years. Moreover, those who knowingly attended the droid fight could be imprisoned or fined as well.

Promoters of Droid Fights should have the ownership of their Droids forfeited. Just as prosecuting agencies would not leave dogs with those torturing the animals in barbaric fights, the same humane treatment should be extended to Droids. Dogs who are survivors of cruelty need kindness and love to heal. Moreover, Electroconvulsive therapy (ECT) is not performed on dogs to “wipe their memories” of what they endured. Droids who were victims of such abuse would need to be adopted by those who would care and nurture them to have a complete recovery from their trauma.

There is no moral difference between ensuring dogs are not exploited in gladiatorial combat and Droids. Both are loyal, with emotions, self-aware, and capable of feeling pain. While existing laws [in Star Wars and the US] are not written to protect Droids from bloodthirsty individuals who enjoy seeing others maimed, the courts and legislatures would protect those in need of help.

Han Solo: Deserter Extraordinaire

By

Thomas Harper

-

June 3, 2018

0

SOLO SPOILER ALERT:

Don’t say we didn’t warn you, kid. Solo spoilers follow below.

Before Han Solo ever shattered the Kessel Run record, shot poor Greedo, or teamed up with cuddly Ewoks to fight the Empire, he was a lowly Corporal in the Imperial Navy. Han stamped his ticket off his home planet of Corellia by enlisting in the Imperial Navy. After getting kicked out of the Imperial Academy on Carida, Han was reassigned to glamorous duty as an infantryman and got sent to slug it out in the mud on Mimban. Despite getting such a choice assignment, Han decides to walk away from Imperial military service to join Beckett’s band of miscreants.

“Deserter” is a military criminal term that has worked its way into our everyday language—it has even officially made its way into Star Wars films, starting in The Force Awakens with Finn. In reality desertion is a complex and serious crime that is unique to the military, which makes it worth asking whether Han’s actions in Solo really amount up to a violation of military law.

It’s a well-known fact that Imperial JAG prosecutors and their impeccably crisp accents are far more feared than THE BEAST.

In its simplest form, desertion is the act of leaving one’s post without authority. Desertion is the bigger, badder brother of absence without leave (more commonly known as AWOL), which is a separate crime. The key difference between the two crimes is that desertion requires proof of intent to remain away permanently.

Militaries around the world have been dealing with soldiers running away from duty for centuries. The United States military certainly hasn’t been immune to the problem, having dealt with deserters as far back as the Revolutionary War. Over 200,000 men deserted from the Union Army in the Civil War. In World War II, the military tried and sentenced roughly 20,000 deserters. Real world desertions have continued despite the transition to an all volunteer fighting force, with roughly 5,500 service members deserting in 2003-2004, just after the invasion of Iraq.

Several famous faces have had brushes with these crimes, including General George Custer and The Great Escape actor Steve McQueen, who were both punished for AWOL stints involving running off to see a special woman in their lives (sound familiar, Han?). Given the Imperial military’s sheer size, its penchant for forcing citizens into service, and the inherent danger of service, it’s a no brainer that the Empire probably has its fair share of desertion and AWOL problems.

“TK-421 thought his unauthorized vacation to Felucia was more important than his squad mates. Now the Death Star is blown up and it’s all his fault.”

Desertion is a crime unique to the military that stems from the nature of military service. For the average worker, if you don’t show up to work you might get fired, but you won’t get hauled into court or tossed into a filthy pit with THE BEAST. Instead, someone else gets hired to fill your place and the world keeps spinning. However, unlike most civilian jobs, service members can’t simply walk off the job, quit, or refuse to do something.

The basic nature of military service means forfeiting a measure of free will. In today’s volunteer force, service members sign contracts that obligate them to serve for a particular period of time. During that time, you are legally bound to obey the orders of your superiors until you are lawfully discharged from service. My own active duty service provides a perfect example of this give and take: Back in 2012 I had plans to attend the big Star Wars Celebration convention in Orlando. My tickets, airfare, and hotel were all locked in and I was all set to go…until I received orders to deploy to Afghanistan. Even though I desperately wanted to go to the convention, my military obligations sadly trumped Star Wars. Having voluntarily enlisted in the Imperial Navy, Han was similarly obligated to serve out his time until discharged.

The look of an Imperial service member who is ECSTATIC to serve the benevolent Emperor.

Desertion is one of the most serious crimes under the Uniform Code of Military Justice (UCMJ), which is the body of law that governs each military branch. Desertion in a time of war can be charged as a capital offense, meaning that the death penalty can be imposed. That tough approach is tied directly to the huge negative impact desertions can have on military units and their ability to effectively fight.

To prove desertion under Article 85 of the UCMJ, the following elements must be satisfied:

The accused absented himself from his unit, organization, or place of duty;
That the absence was without authority;
That the accused intended to remain away permanently; and
That the accused remained absent until a particular date alleged.

I’ve got a bad feeling about Han’s chances at beating a desertion charge. When Han decides to join up with Beckett and Val, he is still assigned to the Imperial 224^th Armored Division “Mud Jumpers,” who have been deployed to pacify Mimban (a planet that probably totally deserved to be invaded by Imperial forces). Han absents himself from his unit and his assigned place of duty on Mimban by hopping aboard the stolen AT-Hauler and flying off planet, thereby satisfying the first element.

Han clearly had no authority to leave Mimban. When most civilians leave work, their time is their own. However, service members are generally considered “on duty” at all times, even after hours. Absences such as vacations (commonly called “leave”) or R&R from a combat zone must be specifically approved by commanding officers. In Han’s case, he doesn’t have any authority to leave his unit. In fact, just before joining up with Beckett, Han’s commanding officer had issued orders for his unit to move out for the southern marshlands. Han wasn’t given any authorization to leave the campaign or the planet, which means that the second element is met.

Unfortunately for Corporal Solo, he is lawfully bound to take orders from many, many other people.

The third element of desertion involves proof of the accused’s specific intent. This element is often a tricky one, because it involves proving a person’s internal thought process. However, you don’t necessarily need a confession to prove one’s intent to desert. Under the UCMJ, evidence of one’s intent to remain away permanently can be drawn from a wide variety of circumstances, including the length of the absence and statements and actions of the accused. Han arguably provided ample evidence that he never intended to return to Imperial military service. Han not only walked away from his unit, but he completely jumped planet, running light-years away to the Mid-Rim planet of Vandor. This would be akin to a real service member leaving his post in Georgia and turning up in South America, and it constitutes strong evidence of his intent.

Moreover, Han’s actions in committing crimes against the Imperial military, from aiding in the theft of the AT-Hauler to the brazen robbery of the Imperial Conveyex train, strongly suggest that he intended to remain permanently away from service. After all, Han had every opportunity to surrender to Imperial authorities in both instances, but instead chose to remain on the run. Han also manages to blatantly admit to his intent when he tells Beckett that he’s already a deserter. Thus, Han’s actions and his own big mouth amount to substantial proof of the third element.

The final element, which requires that a closed period of desertion be alleged, would ultimately be satisfied after Han was captured and charged.

Sadly, the UCMJ does not currently recognize the “It’s not my fault” defense.

Unfortunately for Han, the odds of him being acquitted of desertion are approximately 3,720 to 1. Even though Beckett was right that the Empire doesn’t send out enforcers to track down deserters, the crime would permanently hang over Han’s head, as the statute of limitations is “tolled” (pauses) while someone is absent without authority. For Han, that means having to live life with Jabba’s fat bounty on his head and the ever present prospect of an Imperial court-martial. That’s what I call being in deep bantha poodoo.

Does Altered Carbon’s Resolution 653 Pass Constitutional Muster?

By

Caesar Kalinowski IV

-

June 1, 2018

0

“Technology advances, but humans don’t. We’re smart monkeys, and what we want is always the same. Food, shelter, sex, and in all its forms, escape.” Takeshi Kovacs.

In February, Netflix unveiled a new dystopian, Blade Runner-esque, sci-fi show—Altered Carbon. Set in 2384, the show follows hardboil tough-guy Takeshi Kovacs fighting his way through a murder mystery in a world where human minds can be digitally downloaded and stored in cortical “stacks.” A stack, which can be inserted into the spinal column of any human body (called “sleeves”), allows people with resources to effectively live forever by transferring from one sleeve to another. Stacks can also be “spun up” in virtual realms, where the person’s consciousness can interact with others.

So we can download our consciousness in 250 years from now, but advertising still consists of projecting enormous naked people.

Seeing the obvious appeal of this type of technology, it has been featured in a number of sci-fi movies (The Thirteenth Floor; Chappie) and TV shows (Black Mirror; Stargate Univerise; Star Trek: The Next Generation). What has not been a part of those depictions, however, are the legal consequences to a person’s consciousness existing outside of the traditional temporal and physical confines of the human body. See Obscure Legal Hobbies by Legal Amateurs. Normally, questions challenging the legal assumptions of personhood, copying one’s own mind, and destroying the body but not the mind, remain unanswered in lieu of more pressing matters like, you know, a plot.

Altered Carbon, however, partially delivers where other sci-fi shows have failed. A law being proposed in the series, “Resolution 653,” would allow the government to “spin up” a murder victim’s stack to testify against their killer. The problem? Some people believe that spinning up a person’s stack is heresy. In the show, Neo-Catholics (colloquially, “Neo-Cs”) specifically have religious coding put into their stacks because they believe that God gave humans one life only. So if Neo-Cs receive a second life, it results in an automatic trip to hell (or at least purgatory). Understandably, Neo-Cs are opposed to Resolution 653,on religious ground, with its provision forcing spin ups on murder victims.

Apparently the kind of people protesting still include guys with mountain men beards and crazy hats.

So how would the Constitution’s First Amendment protections support these Neo-Cs attack on Resolution 653? Although the Supreme Court has not directly ruled on the issue [of whether an impingement of fictional tech and religious rights are constitutional], it has provided some idea of how the constitutionality of the Resolution would be interpreted. Some state courts and legislatures, however, have addressed the issue in the context of autopsies, which seems to be a decent analogue. In short, my guess is that Resolution 653 would stand up to constitutional muster or could otherwise be protected by affirmative state legislative action.

SCOTUS and Religious Freedom

In Wisconsin v. Yoder, the Supreme Court held that a person’s right to freely exercise his or her religion can be intruded upon by the government only when “there is a state interest of sufficient magnitude to override the interest claiming protection under the Free Exercise Clause.” 406 U.S. 205, 214 (1972). Although the government must also show “that no alternative forms of regulation would combat such abuses without infringing First Amendment rights,” Sherbert v. Verner, 374 U.S. 398, 407 (1963), the Supreme Court has also “consistently held that the right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes),’” Emp’t Div., Dep’t of Human Res. of Or. v. Smith, 494 U.S. 872, 879 (1990) (quoting United States v. Lee, 455 U.S. 252, 263 n. 3 (1982)).

“A way of life, however virtuous and admirable, may not be interposed as a barrier to reasonable state regulation . . . if it is based on purely secular considerations; to have the protection of the Religion Clauses, the claims must be rooted in religious belief.” Yoder, 406 U.S. at 215. Thus, “subjective evaluation and rejection of the contemporary secular values accepted by the majority,” or “philosophical and personal [choices] rather than religious,” do “not rise to the demands of the Religion Clauses.” Id. at 216.

I too hope to get resleeved in Joel Kinnaman’s jacked body

Based on our current Supreme Court jurisprudence, the question of Resolution 653’s constitutionality would likely turn on whether (1) the Resolution is a law of general applicability untethered to religious conviction, see Smith, 494 U.S. at 882 (drug restrictions); (2) the religious coding is part of a sincere religious belief or an individual choice, see Yoder, 406 U.S. at 215 (Amish religious conviction); (3) “there is a state interest of sufficient magnitude to override the interest,” see id. at 214; and (4) there exist alternative forms of regulation to accomplish the same goal, see Sherbert, 374 U.S. at 407.

In our post-stack universe, I think that Resolution 653 would win out over religious liberty based on these factors. First, Resolution 653 arguably applies to all persons with stacks; however, it’s presented in Altered Carbon to override the religious coding used by religious groups. It is doubtful that the Resolution would be considered “neutral” or “generally applicable.” Second, Neo-Cs appear wholly uniform and sincere in their religious belief that spinning up a person’s stack condemns them to eternal unrest. These first two factors, therefore, seem to weigh heavily in the Neo-Cs’ favor.

The third and fourth requirements, however, seemingly weigh strongly in favor of the Resolution. The government’s interest in solving a person’s (or multiple people’s) murder is extremely high, especially considering the shenanigans afoot in Altered Carbon. See Rage in Heaven, 1 Altered Carbon (2018) (“spoiler alert“). And although governments have used alternative forms of solving murders for millennia, it’s hard to imagine that the police in 2384 are used to—or even capable of—solving murders without questioning the victim. Because the show did not illuminate alternatives that don’t require actually spinning up a stack to view its contents, my guess is that the Resolution’s proponents would argue none exists.

No funny comment, I just really like Poe and his Raven Hotel

Moreover, the potential for abuse of religious coding to hide crimes seems like it would tip the scales. Like the victim at issue in Altered Carbon, how would the government determine that the coding is even valid as to the person unless they spun them up? In short, because solving a person’s murder is within the government’s duties and society’s best interest, I think the Neo-Cs would be out of luck in their fight.

States to the rescue!

States, however, may be able to expand their citizens’ rights to encompass this type of religious protection. Currently, at least seven states (New York, New Jersey, California, Ohio, Maryland, and Rhode Island) have passed legislation that gives people the right to prevent autopsy of their remains in most circumstances by signing a certificate declaring that autopsy is contrary to their “religious belief.” See Cal. Gov. Code § 27491.43; MD Health-Gen Code § 5-310; NY Public Health Law §4209-a. Challenges to state constitutions or statutes that are interpreted to protect such a right have also failed. See Walsh v. Caidin, 232 Cal. App. 3d 159, 164 (Ct. App. 1991). See also Ross v. Bd. of Regents of the Univ. of N.M., No. CIV 07-01037 RB/ACT, 2008 WL 11359115, at *5 (D.N.M. Sept. 22, 2008); Kickapoo Traditional Tribe of Tex. v. Chacon, 46 F. Supp. 2d 644, 654 (W.D. Tex. 1999). So although the Constitution may not afford such a right, states could codify a religious exception to having one’s stack spun up.

Conclusion

Assuming the Supreme Court’s constitutional interpretation of the First Amendment remains the same (which is an enormous assumption considering when Altered Carbon takes place), I think Resolution 653 would pass muster. Although Neo-Cs have a deep and real religious conviction, they would likely not be able to challenge being spun up in the afterlife without petitioning their state to do so. Now whether Congress could pass an anti-Resolution 653 statute that protects a right to be undisturbed presents a host of issues related to Congress’s enumerated and unenumerated powers that I won’t get into here. Let’s just be thankful that transferring and storing memories is not a problem we will ever have to deal with ever.

No, but for real though, where do I preorder one of these for when my knees give out?

Random thoughts:

After seeing the government-issued sleeves given to murder victims, I feel like I would be really ticked off if I had to be in some random, much older person’s body … er, sleeve.
Because a “true death” can only happen when a stack is destroyed, I assume SCOTUS would have to recognize a sleeve as “property” for constitutional purposes. Henrietta Lacks’ contribution to society could finally be recognized and compensated.
If stacks can be spun up in a virtual world untethered to their sleeve counterparts, why would we even bother getting out of bed? I would definitely not waste time at the DMV.
Like The Expanse (which I write about here), I’m a big fan of Altered Carbon if only for its use of Blade Runner visuals and tech.
All hail Joel Kinnaman’s updated version of Detective Rick Deckard.

A Solo Train Robbing Adventure

By

Josh Gilliland

-

May 31, 2018

0

Solo A Star Wars Story has a train robbery on the planet Vandor to steal Coaxium from the Empire as a major plot of the film. The crime of train robbing had its heyday in a time long ago in U.S. states and territories. Unexpectedly, the punishments for train robbing in the United States and the Empire would be extremely similar, expect Beckett’s Bandits would at least get a trial in the US.

The Crime of Train Robbing

Laws are not enacted proactively. The “train robbing” statutes of the late 19th Century were born out of specific events in the “Old West,” such as the Union Pacific Big Springs Robbery of 1877 or the crimes of Jesse James. The state of Missouri declared train robbing as a felony punishable by death or imprisonment in 1895. The law stated:

Any person who shall place upon any railroad track any obstruction or explosive substance, or shall remove, displace or injure any rail, tie, switch, frog, bridge or trestle, with the design of robbing any person, passenger, employee, agent or company on any railway train, engine, tender, car, or coach, on any railway in this state, or who shall in any way stop, detain, or arrest the progress of any such train, car, engine, tender or coach with the intent to commit robbery thereon, or having in any way entered any car, coach, tender, engine, express car, mail car, or other apartment of any such train, shall there rob any person or persons, employee, passenger or agent, or any express company or mail pouch or car, of any money or valuable thing, whatsoever, either the property of such person, agent, passenger or employee, or the property of another in his care or custody, shall be guilty of a felony, and on conviction shall be punished by death, or confinement in the penitentiary for a term of not less than ten years.

State v. Kennedy, 154 Mo. 268, 281-82, (1900), citing Laws 1895, p. 160

The Defendant, ironically named John F. Kennedy, and his co-conspirators forcibly entered a train car, threatened a train employee to leave the mail car, and cut the train cars free of the engine. The robbers moved the train a quarter of a mile and blew up a safe in front of the employee to steal $1,000 (approximately $29888.58 in 2017 adjusted for inflation). Kennedy, at *283.

The Defendant challenged the train robbing charges, claiming the element that the robbery was committed “in the presence, and against the will and by violence, or putting the agent in fear of immediate injury to his person” was not met, because the train employees were not threatened with fear. Id. The Court rejected this argument, because it is unnecessary to prove actual fear when the crime is done violently and against someone’s will, the law will presume fear. Kennedy, at *284. As the crime was a series of events that ended with explosives used on the safe, all the elements of the crime were met.

Train Robbery Was Punishable By Death

The Territory of New Mexico had a similar train robbing law to Missouri that stated:

If any person or persons shall willfully and maliciously make any assault upon any railroad train, railroad cars, or railroad locomotive within this Territory, for the purpose and with the intent to commit murder, robbery, or any other felony upon or against any passenger on said train or cars, or upon or against any engineer, conductor, fireman, brakeman, or any officer or employee connected with said locomotive, train or cars, or upon or against any express messenger, or mail agent on said train, or in any of the cars thereof, on conviction thereof shall be deemed guilty of a felony and shall suffer the punishment of death.

Terr. of N.M. v. Ketchum, 1901-NMSC-006, ¶ 1, 10 N.M. 718, 718, citing 1151 of the Compiled Laws of 1897.

The Defendant in New Mexico challenged the death penalty for train robbing as a violation against the prohibition of cruel and unusual punishment. The Court rejected the challenge and upheld the death sentence with the following logic:

Trains are robbed by armed bands of desperate men, determined upon the accomplishment of their purpose, and nothing will prevent the consummation of their design, not even the necessity to take human life. They commence their operations by over-powering the engineer and fireman. They run the train to some suitable locality. They prevent the interference of any person on the train by intimidation or by the use of deadly weapons and go so far as to take human life in so preventing that interference. They prevent any person from leaving the train for the purpose of placing danger signals upon the track to prevent collisions with other trains, thus willfully and deliberately endangering the life of every passenger on board. If the express messenger or train crew resist their attack upon the cars, they promptly kill them. In this and many other ways they display their utter disregard of human life and property, and show that they are outlaws of the most desperate and dangerous character.

Terr. of N.M. v. Ketchum, ¶ 14.

Judge Frank A. Parker clearly saw the evils of train robbing.

Got to Be Better Ways to Make Money

Tobias Beckett, Val, Rio Durant, Han Solo, and Chewbacca, all participated in the conspiracy to steal Coaxium from the Imperial train on Vandor. Applying the law of Missouri or the Territory of New Mexico, virtually every scenario contemplated in both codea was violated. Val set explosives on the tracks on a bridge for the train, which would violate the elements of causing an injury to “any rail, tie, switch, frog, bridge or trestle.” The purpose of destroying the railway bridge was to steal one of the train cars by airlifting it off the tracks after cutting it away from the other train cars. These acts were in furtherance of stealing the Coaxium for the Crimson Dawn crime lord Dryden Vos. Furthermore, Imperial Range Troopers were engaged during the train robbery with multiple fatalities. While no one should root for the Empire, the train robbery was not part of a military operation by the Rebellion, but a criminal conspiracy for profit.

All of the actions by Beckett’s crew were the reasons anti-train robbing legislation was passed in the 19th Century. While the train appeared operated automatically with just Ranger Troopers to protect the cargo, there was a shootout with deaths and destruction of the bridge and train. While there is a strong argument that a modern court would not impose the death sentence on a crime without fatalities, that argument is lost once someone dies.

A defense attorney would have a difficult time defending Beckett’s gang, because arguing it was necessary to rob a train in order to avoid crime lords sending bounty hunters to kill you, begs the question that the underlying action was already a crime. While there could be a interesting question on whether Han had a defense to join Beckett to escape the Empire’s war crimes on Mimban, the issue is legally muddy at best.