San Francisco Comic Con Schedule for The Legal Geeks

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August 13, 2016

We hope you can join us at San Francisco Comic Con, September 2 to 4, 2016! We have five panels that cover Star Trek, Daredevil/Jessica Jones (both Saturday and Sunday), Star Wars, and Agents of SHIELD/Agent Carter/Captain America. We are extremely honored to participate in the first SFCC. Check out our schedule below.

Friday

STAR TREK: NOT EVERY CASE IS THE KOBAYASHI MARU

7:30pm – 8:30pm | Pacific H

The world of Star Trek has presented legal issues in infinite diversity in infinite combinations. Join the away team to discovery the new world of assumption of risk for Red Shirts, whether Tribbles are an invasive species, or if Scotty argue the insanity defense for being possessed by Jack the Ripper, and more from every Generation of Star Trek.

Panelists: Angela Story and Joshua Gilliland

Saturday

BLIND JUSTICE ON THE ROCKS: THE LAW OF DAREDEVIL AND JESSICA JONES

11:30am – 12:30pm | Pacific J

Marvel’s Daredevil and Jessica Jones both focus on lawyers and the practice of law, from Matt Murdock’s creative pro bono community service to Jessica Jones serving a summons. Join us to determine if Karen Page properly acted in self-defense, whether Matt Murdock or Jeri Hogath is most likely to be disbarred, and how the insanity defense applies to those under mind control. Join us when court is in session.

Panelists: Neel Chatterjee and Joshua Gilliland

THE LAW AWAKENS: STAR WARS LAW
4:00pm – 5:00pm | Pacific H

Star Wars is more than a space opera, it is an adventure in the law! Was Han Legally Justified to Shoot First? Did Kylo Ren commit desecration of Anakin Skywalker’s corpse? What are the employee safety issues in Jabba’s Palace? Did Poe lose his ownership rights to BB-8? Could someone be prosecuted for torturing a Droid? Join us to know the ways of the law.

Panelists: Megan Hitchcock and Joshua Gilliland

Sunday

LEGAL DAREDEVILS: MATT MURDOCK, JESSICA JONES, AND FRANK CASTLE

11:30am – 12:30pm | Pacific A

Marvel’s Daredevil and Jessica Jones both focus on lawyers and the practice of law, from Matt Murdock’s creative pro bono community service to Jessica Jones serving a summons. Join us to determine if Karen Page properly acted in self-defense, whether Matt Murdock or Jeri Hogath is most likely to be disbarred, and how the insanity defense applies to those under mind control. Join us when court is in session.

Panelists: Christine Peek and Joshua Gilliland

CIVIL WAR TO CIVIL RIGHTS: THE LAW OF THE MCU

1:00pm – 2:00pm | Pacific A

The Marvel Cinematic Universe is a world where SHIELD conducts global surveillance with every cell phone camera on Earth without a search warrant, Inhumans are held in suspended animation without a trial, and Captain America stopped the mass assassination of millions of Americans. Our panel will explore the Constitutional issues that include wiretaps, search warrants, and Civil Rights from Captain America Civil War, Captain America The Winter Soldier, Agents of SHIELD, Avengers Age of Ultron, Agent Carter, and more.

Panelists: Sylvia La Rosa and Joshua Gilliland

It’s a Kind of Magic: Doctor Strange’s Oath

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Josh Gilliland

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August 12, 2016

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Doctor Strange “The Oath” is a mystical adventure focused on one mission: Save Wong’s life from cancer. Did Doctor Stephen Strange meet his legal duties as a licensed physician? Did Strange violate his duty of confidentiality to Wong by telling the Night Nurse of his condition? What about imprisoning Brigand in his own mind? It is time to join the Doctor for legal rounds.

You Can Do Magic: Duty of Physicians in New York State

Doctor Stephen Strange is a licensed physician in New York. State laws defines that the practice of medicine is the “diagnosing, treating, operating or prescribing for any human disease, pain, injury, deformity or physical condition.” N.Y. Educ. Law § 6521 (Consol.). In order to be a physician, state law requires that physicians have earned a degree of doctor of medicine (M.D.); have gained experience; passed an examination board; and be at least 21-years old. See, N.Y. Educ. Law § 6524 (Consol.). Only someone licensed in New York can use the title “physician.” N.Y. Educ. Law § 6522 (Consol.).

Doctor Strange clearly engaged in the “diagnosing, treating, operating or prescribing for any human disease, pain, injury, deformity or physical condition” of Wong. Granted, most doctors do not have trans-dimensional battles to find a cure for cancer. In the story, Strange defeats a psychedelic beast for Otkid’s Elixar, which has the power to “erase what troubles the mind of man.”

The “Oath” is not about any mystical oath Doctor Strange took, but the “Hippocratic Oath.” The modern version of the Oath is available on John Hopkins Sheridan Libraries & University Museums:

I swear to fulfill, to the best of my ability and judgment, this covenant:

I will respect the hard-won scientific gains of those physicians in whose steps I walk, and gladly share such knowledge as is mine with those who are to follow.

I will apply, for the benefit of the sick, all measures which are required, avoiding those twin traps of overtreatment and therapeutic nihilism.

I will remember that there is art to medicine as well as science, and that warmth, sympathy, and understanding may outweigh the surgeon’s knife or the chemist’s drug.

I will not be ashamed to say “I know not,” nor will I fail to call in my colleagues when the skills of another are needed for a patient’s recovery.

I will respect the privacy of my patients, for their problems are not disclosed to me that the world may know. Most especially must I tread with care in matters of life and death. If it is given me to save a life, all thanks. But it may also be within my power to take a life; this awesome responsibility must be faced with great humbleness and awareness of my own frailty. Above all, I must not play at God.

I will remember that I do not treat a fever chart, a cancerous growth, but a sick human being, whose illness may affect the person’s family and economic stability. My responsibility includes these related problems, if I am to care adequately for the sick.

I will prevent disease whenever I can, for prevention is preferable to cure.

I will remember that I remain a member of society, with special obligations to all my fellow human beings, those sound of mind and body as well as the infirm.

If I do not violate this oath, may I enjoy life and art, respected while I live and remembered with affection thereafter. May I always act so as to preserve the finest traditions of my calling and may I long experience the joy of healing those who seek my help.

Doctor Strange met the requirements within in the Oath to take “all measures which are required,” in order to find a cure for Wong. Furthermore, Doctor Strange sought to uphold his “with special obligations to all my fellow human beings,” by recognizing the importance of the Otkid’s Elixar.

Stephen Strange was right to have the Elixar tested before administering it to Wong. It is professional misconduct to practice medicine with “gross negligence on a particular occasion or negligence or incompetence on more than one occasion.” N.Y. Educ. Law § 6509 (Consol.). Case law has found that administering drugs inappropriately and without adequate testing, coupled with other wrongdoing on multiple occasions, was grounds to find a doctor had acted negligently, grossly negligent, grossly incompetent, and engaged in unprofessional conduct. Prokopiw v Commissioner of Education, 1989 N.Y. App. Div. LEXIS 5016 (N.Y. App. Div. 3d Dep’t 1989), app. dismissed, 1990 N.Y. LEXIS 118 (N.Y. 1990).

Secret World: The Duty of Confidentiality

Doctor Strange told the Night Nurse that Wong had cancer in explaining how he (Strange) had been shot. Wong had stated he could not donate blood due to his “situation” and also that their troubles began because of his disease. This is problematic, because while both Doctor Strange and the Night Nurse were doctors, Strange was the Night Nurse’s patient and Wong was Doctor Strange’s patient.

Medical professionals are not to “disclose any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity.” N.Y. C.P.L.R. Law § 4504. The patient can waive this right. Id.

Wong arguably waived the doctor-patient privilege when he mentioned both his “condition” and “disease” in front of the Night Nurse. Wong also had to lay down in the operating room. The Night Nurse could rationally believe that she had two patients to care for based on Wong’s conduct. However, an express waiver would make this issue easier to resolve.

Strange Magic: Don’t Tick Off the Sorcerer Supreme

Brigand robbed Doctor Strange of Otkid’s Elixar and shot him with the handgun Hitler used to commit suicide. Doctor Strange, the Night Nurse, and Wong eventually captured Brigand. Strange interrogated Brigand by physically entering Brigand’s mind through the collective consciousness of humanity. Brigand eventually gave Strange the information Strange needed to find who hired Brigand. Due to evidence against Brigand being mystically covered, Doctor Strange physically imprisoned Brigand within his own mind.

Doctor Strange imprisoning Brigand would be a case of first impression for unlawful imprisonment. It could also be grounds for Doctor Strange to lose his medical license. New York states that it is professional misconduct if a physician is convicted of a crime under New York, Federal law, or the laws of another jurisdiction that would also be a crime in New York. N.Y. Educ. Law § 6509.

New York defines unlawful imprisonment in the first degree if he “restrains another person under circumstances which expose the latter to a risk of serious physical injury.” N.Y. Penal Law § 135.10 (Consol.).

Physically imprisoning Brigand within his own mind arguably would expose him to “serious physical injury.” Brigand’s mind could be described as “freaky” and not in a fun way. Moreover, Brigand’s own subconscious could pose a danger to himself, ranging from madness to physical injury.

The fact the evidence against Brigand would be problematic should not give Doctor Strange license to act as a judge. The good Doctor should show more respect for “the laws of man,” as it is those laws that gave Doctor Strange his medical license.

This Magic Moment

Attorneys and doctors are professions dedicated to helping others. Both doctors and lawyers have “practices” where they are entrusted with helping others.

For attorneys, that help comes in the form of “life, liberty, and the pursuit of happiness.” For doctors, it is the health of their patient.

“The Oath” is an excellent Doctor Strange adventure that connects the dedication of doctors to help their patients and the surreal world of the Sorcerer Supreme.

Daredevil Cannot Change Venue from New York to Texas

By

Josh Gilliland

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August 2, 2016

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Charles Soule is hitting the bullseye with the Daredevil/Punisher “Seventh Circle” limited series. The premise is simple: get a defendant to the airport alive so he can stand trial. The story is a classic tale of due process of law verse vigilantism.

The story is awesome; however, the legal justification to fly a New York defendant to Texas is flawed. “Seventh Circle” begins with a New York State defendant named Sergey Antonov being taken to the airport to be tried in Texas. New York State Prosecutor Matt Murdock told Antonov the change of venue was needed because “too many people here hate you.” Daredevil/Punisher, issue 1.

New York State would NOT transfer an accused person to be tried in Texas. New York law allows for a change of venue in order for a Defendant to have a fair trial to another county in New York State, not another state. N.Y. Crim. Proc. Law § 230.20.

Daredevil/Punisher got it right that Matt Murdock could bring the motion to change the venue of the trial, because the State or the Defendant can bring a motion if there is good cause. Id. Proving good cause because “everyone hates” the Defendant is another matter.

The usual way to ensure a fair trial is with jury voir dire. People v. Boudin (App.Div. 1982) 457 N.Y.S.2d 302, 305. The purpose of asking the potential jurors questions is to root out prejudice. If there was a prospective juror who was a victim of organized crime, or someone who had immediate family in law enforcement, for the trial of a mob boss, those could be valid reasons to thank a juror for their service and excuse them.

One case that had a change of venue had 76 news articles appear about the case in a 50-day period. People v. Boudin (App.Div. 1982) 457 N.Y.S.2d 302, 305-306. There were thirty-two front-page stories with more than 50 photos. Id. The local paper that featured the stories was ready by 2/3 of the households in that county. Id.

One Court explained how a tidal wave of press could justify a change of venue:

A criminal defendant has the right to a fair trial, and a trial that is not dominated by a “wave of public passion” that is not overwhelmed by press coverage and that is not conducted in a “carnival atmosphere.” Removal of an action pursuant to CPL 230.20 (2), or “change of venue” is a means of preventing this type of unfairness.

People v. Boss (App.Div. 1999) 701 N.Y.S.2d 342, 343-345, citing Irvin v Dowd, 366 US 717, 728, Murphy v Florida, 421 US 794, 798, and Sheppard v Maxwell, 384 US 333, 358.

“Seventh Circle” is silent on why “people hate” the Defendant, besides being evil and poisoning an opposing mob family’s Christmas dinner. Other cases that have found exceptional circumstances for a change of venue have included:

1) Repeated television broadcasts of lengthy interview of defendant in which he admitted the commission of the charged murder;

2) Widespread publication of court’s ruling on suppression motion with detailed rendition of testimony adduced at pretrial hearing;

3) Television broadcast of defendant’s re-enactment of the crime; and

4) Television broadcast of damaging interviews with defendant permitted by police.

Boudin, at * 305, citing Rideau v Louisiana, 373 U.S. 723, People v Marturano, 24 AD2d 733, People v Luedecke, 22 AD2d 636, and People v Martin, 19 NY2d 864.

It is extremely possible that a high profile organized crime case with extensive press coverage could warrant a transfer of venue. Moreover, we do not know if the fictional Court tried empanelling a jury, only to have it fail. Regardless, even if there was good cause, the State of New York would not have a case tried in Texas.

The change of venue aside, “Seventh Circle” is a fantastic adventure with Daredevil and Punisher. Matt Murdock is the prosecutor dedicated to a defendant having a fair trial. Frank Castle is the killing machine Hell bent on murdering a defendant. The artwork is great and the story solid. My compliments to the creative team for a great Daredevil/Punisher story.

Did the Jury in Civil War 2 Nullify the Murder Charges Against Hawkeye?

By

Josh Gilliland

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July 28, 2016

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Hawkeye murdered the Hulk in Civil War 2 issue 3. Issue 4 opens with a jury verdict in Federal Court of “Not Guilty.” Was justice really served on Hawkeye? Did the jury acquit Clint Barton because the Hulk has destroyed more property than perhaps any “hero” in the Marvel Universe? Tune in for my thoughts on the Trial of Hawkeye.

Comic Con The Final Frontier

By

Josh Gilliland

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July 26, 2016

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“Awe inspiring” is the best way to describe our second appearance at San Diego Comic Con. Our Star Trek panel brought together the most talented speakers I have ever moderated. I thank all of them for joining the adventure to discuss Star Trek and Supergirl at Comic Con.

Star Trek is one of the greatest loves of my life. From the tearful car ride home after Wrath of Khan, to watching Deep Space Nine in college, or Voyager in law school, I have always stood a little taller whenever I hear, “Space, the final frontier.” It was an honor to have a small part in celebrating the 50^th Anniversary of Star Trek with our panel, “Star Trek: Where Lawyers Boldly Go.”

SDCC_StarTrek_Where_Lawyers_Boldly_Go

Comic Con is a lot like V’Ger: Huge. There are around a dozen panels an hour from 10am to 8pm (a few even later). There are contests, photo opts, and of course, the Exhibit Hall. There is no shortage of things to do. Here are some of our moments:

Star Trek: Where Lawyers Boldly Go

California Supreme Court Justice Mariano-Florentino Cuellar, Neel Chatterjee, Christine Peek, Paul Grewal, Megan Hitchcock, and Jessica Mederson, all had amazing legal analysis of the different trial episodes in Star Trek.

Christine Peek prepared a mind map connecting the different trial episodes. A huge thank you to special effects wizard Jesse Toves, who prepared a Star Trek themed mind map for our agenda.

Christine Peek’s material on Judgment could be used to teach a trial advocacy class. Christine covered everything from the duty of competency to how she would cross-examine Duras. We’ll post her material in a future blog post.

Neel Chatterjee prepared amazing case summaries and legal analysis. Neel also wore his love of Star Trek on his sleeve, presenting in full Starfleet Wrath of Khan era uniform.

Justice Cuellar is an extremely inspiring individual. He spoke on watching Star Trek as a young boy in Mexico on his grandmother’s black and white TV set. The Justice then shared his thoughts on how the Prime Directive has been applied throughout the series and movies. Justice Cuellar and Paul Grewal’s analysis of Measure of a Man was masterful on equal protection and artificial intelligence. The Justice also identified his favorite starship as the USS Voyager, because it is “svelte, sleek design, smart, fast, incredibly resilient, and wasted little space.”

Nearly 400 people attended our Star Trek panel. There were approximately 100 to 150 people who identified themselves as attorneys. One attendee in a Darth Vader dress introduced herself as a California Judge in Compton. There is no question that long before many attorneys and judges practiced law, they grew up watching Star Trek.

Paul Grewal explaining the similarities between the Klingon legal system and the United States.

Jimmy Olsen Asks the Tough Questions on Kryptonian Justice

Our second SDCC panel explored the legal issues in Supergirl. My brother Gabe Diani moderated the session as the Golden Age Jimmy Olsen.

We had a blast discussing whether imprisoning people in the Phantom Zone violates the 8^th Amendment, liability for property damage in battling super-villains, and whether Supergirl’s super hearing could subject her to an invasion of privacy claim.

Thank you to all of our panelists and attendees. Our slides are available below.

Kryptonian_Law_Supergirl

Celebrating the Forrest J. Ackerman Centennial

Famous Monsters is pulling out all the stops to honor the first cosplayer and the man who coined the phrase “sci fi”: Forrest J. Ackerman.

FM had an all-star panel honoring “Uncle Forry” for his 100^th birthday. Legends shared their memories of Ackerman, including Bjo and John Trimble, the couple who ran the “Save Star Trek” campaign. Without their campaign, there would not have been a third season of Star Trek, which would have resulted in the show never being syndicated. The Trimbles also met under Ackerman’s grand piano, which is its own unique story.

Memorable Panels

There were many great panels, including a tribute to Jack Kirby, one with the Women of Marvel, Super-Hero Therapy, and out-of-this-world Star Trek panels with NASA and the Smithsonian. I was extremely surprised to find out the official Jack Kirby biographer was the jury foreman at our Mock Trial of the Winter Soldier.

Dr. Janina Scarlet at the Super-Hero Therapy panel.

It’s “Legal Research”

San Diego Comic Con was an excellent opportunity to pick up props for future blog posts. I am ready for Luke Cage, Iron Fist, Doctor Strange, and other upcoming releases. I was especially impressed with the t-shirts from Red Chapter and will feature them in the fall.

Braving long lines for a purchase is always a reason to celebrate.

Always a Monster Party

No Comic Con is complete without Monster Party. It was great visiting with my friends Matt Weinhold, Larry Strothe, James Gonis, and Shawn Sheridan. I had a blast joining them for their SDCC recording to talk about our Comic Con adventures.

Yes, James did cosplay as Jor-El from the 1978 Superman movie.

Make It So

San Diego Comic Con 2016 was a career milestone. These were the most high profile panels I have ever prepared. I thank all of the attorneys who joined us for the adventure. I look forward to 2017.

SDCC Star Trek and Supergirl CA MCLE

By

Josh Gilliland

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July 22, 2016

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Thank you all who attended our San Diego Comic Con panels: Star Trek: Where Lawyers Boldly Go and Jimmy Olsen Asks the Tough Questions on Kryptonian Justice. MCLE credit is available for California attorneys. A huge thank you to McManis Faulkner for providing credit for our two panels.

Please complete the respective sign-in forms below. Attorneys must use the correct code words shared at the end of each panel for attendance.

Star Trek: Where Lawyers Boldly Go

SDCC_StarTrek_Where_Lawyers_Boldly_Go

Attendance Verification

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Downloads:

MCLE Certificate of Attendance

MCLE Evaluation

Jimmy Olsen Asks the Tough Questions on Kryptonian Justice

Kryptonian_Law_Supergirl

Attendance Verification

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MCLE Certificate of Attendance

MCLE Verification

Civil War 2 Murders Federal Jurisdiction

By

Josh Gilliland

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July 14, 2016

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If you have not read Civil War 2 issue 3, stop reading now. There are major spoilers based on the trial depicted in the story. The comic is excellent with real loss. More importantly, Brian Michael Bendis is telling a story that highlights the danger of playing God with the future. No question about it, this time I am Team Iron Man.

The story opens with Matt Murdock prosecuting the murder trial of Clint Barton (Hawkeye) in Federal Court in Manhattan for the murder of Bruce Banner in Alpine, Utah. The number of problems with this trial will make any lawyer Hulk out.

The Wrong Lawyer Prosecuting the Case

Matt Murdock is an Assistant District Attorney for New York City, NOT a US Attorney. It makes zero sense for Murdock to be prosecuting a Federal murder trial. Assistant District Attorneys do not bring cases in Federal Court. That is the job of US Attorneys, who prosecute Federal crimes on behalf of the United States.

First question, was there a Federal crime violated?

The Federal crime of murder is defined under 18 USCS § 1111(a):

Murder is the unlawful killing of a human being with malice aforethought. Every murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing; or committed in the perpetration of, or attempt to perpetrate, any arson, escape, murder, kidnaping, treason, espionage, sabotage, aggravated sexual abuse or sexual abuse, child abuse, burglary, or robbery; or perpetrated as part of a pattern or practice of assault or torture against a child or children; or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed, is murder in the first degree.

Any other murder is murder in the second degree.

Assuming Federal Jurisdiction is proper because of a Federal investigation, Hawkeye clearly could be charged under the Federal statute for first-degree murder, because 1) he killed Banner with malice aforethought; and 2) was lying in wait in order to take the kill shot.

Problem: the murder happened in Utah, NOT New York state.

Barton could be prosecuted under the laws of Utah for the intentional killing of another human being (See, Title 76, Chapter 5, Section 203 (76-5-203) of the Utah State Legislature).

The rare times New York Assistant District Attorneys are on a Federal trial is when they are on a team with Federal Prosecutors. This happens in situations when an investigation begins in New York state court and then is turned over to Federal Prosecutors (perhaps in order to seek the death penalty). As Bruce Banner was killed in Utah, New York state would not have an investigation into an out-of-state crime.

Is New York the Right Trial Venue?

The murder of Bruce Banner took place in Alpine, Utah. Clint Barton was immediately arrested after the murder in Utah. Based on those facts, the trial of Barton should have been held at the United States District Court, District of Utah, in Salt Lake City. This is also presuming that Federal Jurisdiction is proper, which arguably is correct. SHIELD Director Maria Hill did declare the murder investigation a Federal crime scene.

The State of Utah could also prosecute Clint Barton, as the murder was committed in Alpine, Utah. This would be proper, as the State of Utah and the United States are separate sovereigns, thus it is not an issue of double jeopardy. As Manhattan is approximately 2,203.8 miles from Alpine according to Google Maps, it is a stretch for the case to be brought in New York City.

Crimes are usually prosecuted in the county or state where the crime occurred. There are times when Federal Courts might have exclusive jurisdiction over specific subject matter. Perhaps all cases with SHIELD are tried in Federal District Court in New York. However, that seems like a very obtuse practice, as Federal law enforcement agencies conduct activities all over the United States. There is not one Court for the FBI in Washington, DC, so it would be odd for one Federal Court in New York to hear all SHIELD cases.

Civil War 2 is a very thought provoking comic. The story of why Hawkeye killed Bruce Banner is well done. However, as for what was the right court for the trial of Clint Barton, the story missed the target.