July 12, 2016 is the four-year anniversary of Jessica and I starting The Legal Geeks. My first post analyzing geek issues in the law was the Star Trek episode Court Martial. I felt it was only fitting to celebrate our anniversary with a discussion two of my favorite Star Trek episodes: Darmok (TNG) and Balance of Terror (TOS).
A big thank you to everyone who has enjoyed our blog since its maiden voyage.
The ABA Journal is accepting nominations for the 2016 Blawg 100. We would greatly appreciate any of our readers submitting “friend-of-the-blawg” briefs by August 7, 2016.
We are having an amazing 2016, thanks to all of you who enjoy our blog. One of the biggest highlights so far for this year was the Mock Trial of the Winter Soldier, which brought law students together from McGeorge, Whitter, and Michigan, for an awesome trial. The trial was complete with psychologists who prepared detailed expert reports on the insanity defense, plus cosplayers as witnesses. Approximately 130 people attended the mock trial, having one impressive civics lesson through pop culture.
Our next adventure is two panels at San Diego Comic Con. We have an impressive number of lawyers joining us, including an Associate Justice from the California Supreme Court. If you are attending SDCC, please be sure to Tweet or message us on Facebook, so we can say hello.
Again, thank you for joining us for our adventures. We would greatly appreciate your nomination for the ABA Journal Blawg 100 (available on the hyperlink). Thank you, and stay geeky America.
The Borg assimilate species to add their distinctive to the Borg’s collective. Cultures uniformly resist, resulting in their military being assimilated by the Borg. Would the crew of the USS Enterprise NCC 1701-E in Star Trek First Contact who were assimilated by the Borg be considered Prisoners of War? Did they have an obligation to try to escape? Did Captain Picard owe the assimilated crew a duty to rescue them?
Provided the Federation has similar laws to the United states, a “prisoner of war” is “any regularly appointed, enrolled, enlisted, or inducted member of the military or naval forces of the United States who was held as a prisoner of war for any period of time subsequent to December 7, 1941, by any government of any nation with which the United States has been at war subsequent to such date.” 50 U.S.C. § 4105.
A Prisoner of War is defined under the Geneva Convention as “Members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces…[fallen into the power of the enemy].” USCS Geneva III, Article 4. However the language might differ in the fictional 24th Century, Starfleet officers and crew would meet the definition of members of the armed forces who had fallen into the power of the enemy, after they were assimilated.
The Uniform Code of Military Justice and Code of Conduct for Members of the Armed Forces of the United States defines how the US Military prohibits service personnel from collaborating with the enemy. See, Uniform Code of Military Justice, 904 Article 104. Judge George Latimer highlighted the reason for President Eisenhower’s Executive Order No. 10631 as follows:
We cannot and should not close our eyes to the fact that the alleged offenses occurred at a time when the accused was a prisoner of the enemy, and that he is not the first American whose activities during that time led to prosecution. United States v Dickenson, 6 USCMA 438, 20 CMR 154; United States v Batchelor, 7 USCMA 354, 22 CMR 144. These and similar incidents led to the promulgation of a formalized Code of Conduct by the President — one which reaffirmed the duty of every serviceman to resist this Nation’s enemies, in mind and spirit, in combat and captivity, to the bitterest of bitter ends. Executive Order 10631, August 17, 1955, 20 FR 6057. What, then, are we to say to those who did thwart the enemy and his designs while in captivity? Must they serve side by side with others such as this accused, who informed, and collaborated, and murdered — and benefited thereby? Will not discipline, morale and good order suffer measurably if one who murders his compatriot can remain in the service and escape punishment because he re-enlists before his crime is detected? Should the authority of military justice to punish the wrong done depend upon the illogical and fortuitous contingency of an intervening honorable discharge when it is delivered only after the accused has re-enlisted in the service? The answer should be obvious — and is to us.
UNITED STATES v. GALLAGHER (U.S.C.M.A. 1957) 22 CMR 296, 302.)
Starfleet likely has similar rules prohibiting officers and crew from providing the enemy with arms, supplies, or money. The Federation would likely have a similar Code of Conduct for Members of Starfleet to that of the United States:
“All members of the Armed Forces of the United States are expected to measure up to the standards embodied in this Code of Conduct while in combat or in captivity. To ensure achievement of these standards, members of the armed forces liable to capture shall be provided with specific training and instruction designed to better equip them to counter and withstand all enemy efforts against them, and shall be fully instructed as to the behavior and obligations expected of them during combat or captivity.”
“I
“I am an American, fighting in the forces which guard my country and our way of life. I am prepared to give my life in their defense.
“II
“I will never surrender of my own free will. If in command, I will never surrender the members of my command while they still have the means to resist.
“VI
“I will never forget that I am an American, fighting for freedom, responsible for my actions, and dedicated to the principles which made my country free. I will trust in my God and in the United States of America.”
53 FR 10355
In the aftermath of Wolf 359 with a death toll near eleven thousand and 39 starships destroyed, angry family members of victims might argue those who were assimilated by the Borg were collaborators. See, Star Trek the Next Generation, Best of Both Worlds, Parts 2; Star Trek the Next Generation, The Drumhead. However, those assimilated by the Borg could not be prosecuted for Collaboration or Aiding the Enemy (assuming they could escape after the events of Star Trek Voyager Unimatrix Zero Part 2 or Endgame). First, those assimilated did not “surrender of their own free will”; they were forcibly altered with technology. 53 FR 10355. Second, while the bodies of those assimilated did aid the Borg “with arms, ammunition, supplies,” it was not a voluntarily act. Uniform Code of Military Justice, 904 Article 104.
Starfleet officers assimilated by the Borg would have a strong insanity defense for their actions against the Federation. A defense attorney could prove those assimilated by the Borg were “unable to appreciate the nature and quality or the wrongfulness of [their] acts.” 18 USCS § 17(a). Liberated Starfleet officers would need to testify how the Borg used them as weapons, completely destroying their free will. Expert testimony could prove how Borg technology infects their victims at the cellular level, physically altering them, and suppressing their individual decision making ability.
Assimilated officers on the Enterprise did not have the free will necessary to mount an escape from the Borg, such as Commander Worf and Doctor Bashir did from the Dominion (see Deep Space Nice, By Inferno’s Light). While it would be prudent to vaccinate all Starfleet officers with the inhibitor created by the Doctor in Star Trek Voyager Unimatrix Zero Part 2, that was after the events of Star Trek First Contact.
The morally troubling issue is Captain Picard “euthanizing” an officer assimilated by the Borg in the failed attempt to re-capture the Engine Room. While the necessity defense does not permit murder, the Borg are relentless killing machines. The issue of trying to rescue assimilated officers was a no-win scenario in First Contact, given the risk of assimilation and ensuring Zefram Cochrane’s first warp flight. Picard was justified in killing Ensign Lynch and any other Borg, since the risk of failure in stopping the Borg would destroy the future. While this on its face is the abandonment of Federation values in war, a board of inquiry would support Picard’s command decision, as destroying the Enterprise-E should have been only done as a last resort to stop the Borg.
The Imaginary Worlds podcast celebrated the 200th Anniversary of Mary Shelley beginning to write “Frankenstein, or the Modern Prometheus,” on June 16, 1816.
Arizona State University is honoring the anniversary with The Frankenstein Bicentennial Project, which was ultimately published in 1818.
This got me thinking…who was the first Judge to reference Frankenstein in an opinion?
The answer is Chief Justice William Pryor, of the Court of Appeals of Kentucky, on June 13, 1896. The case involved mayoral appointed officials who were members of executive boards who were removed from office. Todd v. Dunlap (1896) 99 Ky. 449, 452.
Chief Justice Pryor made his Frankenstein reference in the following paragraph:
If these powers were all that were attached to the office of mayor, he would be helpless to perform the duties required of him. In what way could he be vigilant and active in causing the ordinances of the city to be enforced if the boards of his appointment, creatures of his creation, were turned upon confirmation into a set of Frankenstein monsters, who could set him at defence? How could he exercise a general supervision over all the executive and ministerial officers of the city, and see that their official duties are honestly performed, if those officers are responsible alone to a tribunal over which he has no control, though appointed by him and sharing his executive powers? What sort of statements in writing concerning the discharge of their duties might he expect from members of the boards who share his powers, and, because it was supposed that they were responsible to him, have been given greater powers than those granted to him? What benefit would he derive from statements of subordinate officials, heads of inferior departments, etc., who are responsible alone to independent and perhaps hostile tribunals? With what obstructions, tangible and intangible, would the examiners appointed by him meet in investigating the affairs of a city department over which he could exercise no control, or of an officer who owed allegiance to a different chief?
Todd, at *466-467.
This makes Chief Justice Pryor one of the earliest Legal Geeks in US History. There are likely more, but let’s salute Chief Justice Pryor paving the way for Judges today who make geek references to Star Wars, Harry Potter, Batman, Spiderman, Star Trek, and many other stories from popular culture.
Superman had amazing parents with Jonathan and Martha Kent. In original Action Comics and the Fleischer Superman cartoons, Clark Kent grew up in an orphanage. The Kents were introduced early in the Superman mythos with different names. In John Byrne’s Man of Steel mini series retelling the origin of Superman, the Kents explained that “Clark’s” birth took place during a long winter (see the Superman Wiki for a detailed history).
Space babies crashing on Earth create an out-of-this-world legal problem: How do people who find the child legally adopt the infant? Alternatively, how does a couple explain a new baby in light of today’s medical care?
Children can be adopted in Kansas by any adult, or husband and wife jointly, but not without the consent of the other spouse. Kan. Stat. Ann. § 59-2113. Those seeking to adopt a child must file an adoption petition. Kan. Stat. Ann. § 59-2128.
Jonathan and Martha Kent would need one heck of a good attorney to help legally adopt Kal-El. The Kents would need to explain the following in their petition:
(1) The name, residence and address of the petitioner;
(2) The suitability of the petitioner to assume the relationship;
(3) The name of the child, the date, time and place of the child’s birth, and the present address or whereabouts of the child;
(4) The places where the child has lived during the last five years;
(5) The names and present addresses of the persons with whom the child has lived during that period;
(6) Whether the party has participated, as a party or witness or in any other capacity, in any other proceeding concerning the custody of or visitation with the child and, if so, identify the court, the case number, and the date of the child-custody determination, if any;
(7) Whether the party knows of any proceeding that could affect the current proceeding, including proceedings for enforcement and proceedings relating to domestic violence, protective orders, termination of parental rights, and adoptions and, if so, identify the court, the case number, and the nature of the proceeding;
(8) Whether the party knows the names and addresses of any person not a party to the proceeding who has physical custody of the child or claims rights of legal custody or physical custody of, or visitation with, the child and, if so, the names and addresses of those persons;
(9) Whether one or both parents are living and the name, date of birth, residence and address of those living, so far as known to the petitioner;
(10) The facts relied upon as eliminating the necessity for the consent, if the consent of either or both parents is not obtained;
(11) Whether the interstate compact on placement of children, K.S.A. 38-1201 et seq. and amendments thereto, and the Indian child welfare act, 25 U.S.C. have been or will be complied with prior to the hearing.
Kan. Stat. Ann. § 59-2128(a)
Ma and Pa Kent would have a very difficult time explaining their suitability to assume the parental relationship for a child they witnessed crash to Earth in an alien spacecraft. Kan. Stat. Ann. § 59-2128(a)(2). What experiences do they have that would justify them raising an alien with super powers? What’s their plan for when the child with enhanced strength hits puberty? What about medical care? Or liability insurance?
Let’s not ignore the elephant in the room: Can they help select inspirational theme music along the lines of John Williams?
It is unlikely that Jor-El included Kal-El’s Kryptonian birth certificate on the escape rocket, making it impossible for the Kents to explain Kal-El’s given name, let alone the time and place of his birth. Kan. Stat. Ann. § 59-2128(a)(3). Providing Kal-El’s prior address would also be highly difficult, as a Kansan Judge could not take judicial notice of Krypton, or know the topography of Kryptonopolis. Kan. Stat. Ann. § 59-2128(a)(4) and (5).
The Kents could try the argument that they found the child and leave out the details of a crashing spaceship. Kansas’ Newborn Infant Protection Act sets out procedures for a parent to surrender an infant less than 45 days old to law enforcement, a fire station, or city/county health department. Kan. Stat. Ann. § 38-2282(b). From there, law enforcement is to be informed and take custody of the infant as an “abandoned infant.” Kan. Stat. Ann. § 38-2282(d).
Jonathan and Martha Kent could surrender the infant Kal-El to law enforcement, and seek the child’s adoption. This could also be highly problematic, as a doctor would notice Kal-El’s enhanced strength, and have difficulty giving the infant any immunizations or drawing blood. This strategy could end badly with the infant Kal-El being kept under state care.
Ironically, John Byrne’s Man of Steel series might have the least legally risky plan to explain Kal-El’s birth: Lie. While almost never the best policy, telling the lie “it was a long winter” as a cover story, would eliminate the infinite legal crisis of explaining how Clark Kent arrived on Earth. This cover story does require Martha Kent not having been seen for a number of months, which could make pulling off the story a challenge.
Here is the thing: Human parents don’t fully know what they are getting into when they have a child. Sure, they have a good idea, but theory and reality are two very different things. Despite the challenges, parents do the best they can. In the fictional case of Jonathan and Martha Kent, they are true heroes. It would have been easy to drive away or turn the infant refugee over to the authorities. Instead they made the choice of doing the hard work of raising a child. Thanks to their morality and sense of doing what is right, they raised the standard bearer of super-heroes who would stand for Truth, Justice, and the American Way.
Khan Noonlen Singh attempted to murder Captain James T. Kirk and take over the USS Enterprise in the Star Trek episode “The Space Seed.” Khan was sentence by Captain Kirk to Ceti Alpha V, to follow the Paradise Lost maxim that it is “better to reign in Hell, than serve in Heaven.” Ironically, that came true after Ceti Alpha VI exploded.
Did Captain Kirk have the authority to sentence Khan, his followers, and Lieutenant Marla McGivers, to Ceti Alpha V?
If Starfleet followed similar regulations to the United States Navy, commanding officers have the power for non-judicial punishment to those onboard their vessel for minor offenses, which is known as “Captain’s Mast.” 10 U.S.C. § 815; Cappella v. United States (1980) 224 Ct.Cl. 162, 164. However, mutiny is not minor.
The Uniform Code of Military Justice has the precedent to govern “the conduct of those persons in the military or those directly connected with it, in all places, foreign and domestic.” United States v. Burney (U.S.C.M.A. 1956) 21 CMR 98, 112-113, citing Article 5, Uniform Code of Military Justice, 50 USC § 555. Furthermore, someone subject to court martial who “willfully and wrongfully hazards or suffers to be hazarded any vessel of the armed forces shall suffer death or such other punishment as a court martial may direct.” 2012 Manual for Courts-Martial Article 110.
The USS Enterprise found the SS Botany Bay adrift in space. The crew of the Enterprise saved Khan’s life while he was he being revived from suspended animation. Khan recovered on the USS Enterprise, taking the opportunity to study the technical manuals of the Enterprise. As such, Khan would have been “embarked” onboard the USS Enterprise, which is defined as “to go on on board (as a boat or airplane),” thus subjecting him to the regulations onboard the vessel. See, Royal Caribbean Cruises v. United States (S.D.Fla. May 31, 1995, Case No. 95-204-CIV-ATKINS) 1995 U.S. Dist. LEXIS 8243, at *4., citing Webster’s Ninth New Collegiate Dictionary.
Khan willfully endangered the USS Enterprise by first taking control of the vessel by cutting off life support from the Engine Room, torturing Captain Kirk in a decompression chamber, and ultimately attempting to destroy the Enterprise with warp core overload. Kirk arguably could have had Khan prosecuted and executed for his crimes. Instead, Kirk dropped all the charges against Khan and his followers. Giving Khan the choice to colonize Ceti Alpha V was a far less severe punishment than death, however, far more severe than placing them in a rehabilitation facility. This sentence could logically be seen as proportional to their crimes.
Lieutenant McGivers willfully participated in a mutiny onboard the Enterprise by helping Khan beam over to the Botany Bay, revive his crew, and then beam them back to the Enterprise. If Starfleet had similar laws to the United States, she could have been fined and/or imprisoned for not more than ten years. 18 U.S.C. § 2193. McGivers took the plea deal to avoid a court martial. This was effectively a life sentence to spend the rest of her life with Khan on a barely habitable planet. McGivers should have talked with a lawyer before accepting the plea deal.
Captain Kirk was arguably within his legal rights to give Khan the option to colonize Ceti Alpha V. It appeared Kirk held what would have been “special court martial at sea,” or in this case, space, in order to adjudicate the charges against Khan. After dropping the charges, Kirk gave Khan an offer for a new life. While the Federation might have wanted to have a war crimes trial for Khan over the Eugenic Wars, this issue was moot with Kirk settling the Augments on a new world to tame.
Star Trek The Motion Picture opened with the excitement of three Klingon K’t’inga battle cruisers attacking an alien cloud. All three Klingon vessels were quickly destroyed by massive energy weapons that enveloped each ship one by one.
Many audiences probably thought, “This will be one EXCITING movie! I hope there are motorcycles too!” A few lawyers by the end of the film in 1979 could have thought, “Could the Klingons seek damages from the Federation for the loss of their vessels?”
V’Ger was originally launched as Voyager 6 from the United States. While the area known as the United States still exists in Star Trek, it is not stated if there is still a government of the United States. For the sake of argument, we will consider the Federation of Planets the successor in interest to the United States government.
V’Ger crossed Klingon space on its journey to learn all that is learnable and return that knowledge to its Creator on Earth. The Klingon’s attacked V’Ger for its intrusion into their space. While it is debatable that V’Ger simply flying through Klingon space was an act of aggression, the Klingon Empire does have a honorable self-defense argument for V’Ger’s intrusion into their territory.
Klingon attorneys could argue that the United States launching Voyager 6 to explore unknown space was the negligent conduct that resulted in the probe falling through a black hole. As a result of falling through the black hole, Voyager 6 encountered a machine planet that reprogramed the probe as V’Ger to complete its mission. The Klingons could further argue V’Ger’s original programing was defective, resulting in the probe destroying vessels it encountered on its return voyage to Earth.
Prior case law involving the loss of vessels at seas states that, “Negligent conduct on the navigable waters that causes loss to another constitutes a maritime tort.” Tidewater Marine v. Sanco Int’l, Inc. (E.D.La. 2000) 113 F.Supp.2d 987, citing United States v. M/V BIG SAM, 681 F.2d 432, 443 (5th Cir. 1982), cert. denied, 462 U.S. 1132, 103 S. Ct. 3112, 77 L. Ed. 2d 1367 (1983).
There must be legal causation under general maritime law for a party’s negligence to be actionable by a plaintiff. Tidewater, at *987, citing Donaghey v. Ocean Drilling & Exploration Co., 974 F.2d 646, 648 (5th Cir. 1992). This requires that the defendant’s negligence was a substantial factor in causing the plaintiff’s harm. Id, citations omitted. Case law defines “substantial” as “more than but for the negligence, the harm would not have resulted.” Id, citations omitted.
Comparative negligence applies if there are more than two parties at fault. Tidewater, at *988. As the Klingons did attack V’Ger, comparative negligence will be applied in the analysis of whether the Federation is financially liable to the Klingon Empire.
No one at NASA in the late 1970s could have foreseen Voyager 6 encountering a planet of living machines after falling through a black hole. As such, the “superseding cause” doctrine will also be applied, which states that when a defendant’s negligence substantially contributes to the plaintiff’s injury, “but the injury was actually brought about by a later cause of independent origin that was not foreseeable.” Id. The doctrine can be summarized as, “the subsequent negligence of the third party must be so extraordinary that a reasonably prudent person could not have foreseen its occurrence.” Tidewater, at *999, citing Miss Janel, Inc. v. Elevating Boats, Inc., 725 F. Supp. 1553, 1569 (S.D. Ala. 1989).
The Klingon Empire would have a difficult time establishing liability for the Federation of Planets for the destruction caused by V’Ger. First, the act of launching Voyager 6 to lean all that is learnable and return that knowledge to Earth is not by itself negligent. The probe contained no weapons and was designed to explore space. Second, it was not foreseeable that Voyager 6 would encounter an alien machine planet that would reprogram the NASA probe to the point it gained consciousness on its mission. The encounter with the alien planet would be “so extraordinary that a reasonably prudent person could not have foreseen its occurrence.” Finally, the Klingons fired first on V’Ger. While the Klingons could argue V’Ger was in their sector of space, it was them who threatened V’Ger first, thus resulting in V’Ger defending itself against the attacking K’t’inga battle cruisers.