Just what are the civil rights of aliens being held by the DEO? Do extraterrestrials have a right to council? Can humans and aliens be held indefinitely without a trial?
SDCF Winter Soldier Mock Trial Report
The Mock Trial of the Winter Soldier was an amazing success. The room was filled to capacity with over 120 people attending. The audience actually cheered for a mock trial. It is extremely reaffirming to see the public care so deeply about how our courts work. It was also cool to see so many Captain America shirts and the #FreeBucky hash tag.
I want to thank the law students from McGeorge, Whittier, and Michigan, who poured their hearts into their opening statements, witness examinations, and closing arguments. The two teams actually held an informal meet and confer over the admissibility of trial exhibits, which resulted in a motion in limine before the trial. The students might not have realized it, but they actually were following the goal of “cooperation” as stated in the Amendments to the Federal Rule of Civil Procedure in our fictional criminal trial. There is plenty of hope for the future of the practice of law.
The volunteers who were the witnesses truly brought the story to life. A huge thank you to all of them, especially Cat Kim, who is a graduate of Columbia and Judge Grewal’s law clerk. Cat volunteered to be the Black Widow, which included making her own costume.
Cat was given the task of not stating Nick Fury is alive in the MCU, while also not committing perjury. She was outstanding and recruited her friend Andrew to be James Buchanan Barnes. Andrew flew out from Denver to help. He truly understood the character of Bucky, both in comics and the movies. Andrew worked very diligently with the Defense Team and expert to help capture Bucky’s mental state. Job well done to both Cat and Andrew.
Dr. Janina Scarlet and Dr. Andrea Letamendi are both huge credits to the profession of psychology. Both wrote detailed expert reports that took a deep dive into PTSD and the mental capacity of whether Bucky knew right from wrong at the time of the charges against him. This trial was a battle of the experts and both doctors delivered big. Both doctors spend their days helping those who need help and I greatly appreciated their efforts to make this trial successful.
This trial would not have happened without the amazing legal star power who volunteered to help our law students. Neel Chatterjee from Orrick is one of the best intellectual property lawyers in the country. Neel dutifully volunteered his time with the Prosecution team, working with law students and Dr. Letamendi in helping them prepare their case.
Attorneys Jordon Huppert and Kean Zimmerman both worked with the Defense team helping them prepare. Jordon is based in Oregon and Kean in Connecticut, who both leveraged Google Docs and Skype to mentor law students in Sacramento, Michigan, and Whittier to prepare their case.
Magistrate Judge Paul Grewal is an excellent community outreach ambassador for the Courts. Judge Grewal masterfully presided over the trial. This might have been the only time an audience cheer “here comes the judge.” I cannot thank the Judge enough for participating. It was also extremely endearing to see his daughter attend, who cosplayed as Supergirl. She deserves a medal for quietly sitting through our two-hour trial.
The mock trial was also a serious validation of the right to a jury trial. The jurors deliberated as a panel, giving the audience a window into how juries work. Even with a fictional case, the comments made about the mental capacity of the Defendant were inspiring. The jurors paid attention, took notes, and were very thoughtful in their analysis.
Only one juror thought Bucky was guilty and that he did understand the wrongfulness of his actions at the time of the charges, resulting in some interesting debate. The jury foreman asked the one holdout, “Not to get too personal, but when was the last time you were put in suspended animation?”
Real juries do not have fact patterns like the Winter Soldier, but those who serve in real juries do their absolute best to ensure justice is served.
I want to thank Mike Towry for asking us to do a mock trial at San Diego Comic Fest. This has been an amazing experience and I appreciate all he did for our law students to have this fantastic opportunity. Mike is a true statesman of geeks and a gentleman. Thank you for making this a reality.
In closing, I want to thank my friends at Zapproved for sponsoring the airfare for one of the mock trial students. One of the students is a night student, second in her class, and a mother of three. She also is fighting stage four-breast cancer. Law school is hard enough under normal circumstances, but to be excelling while having to endure cancer treatments is beyond inspiring. I appreciate Zapproved sponsoring her airline ticket and SDCF for covering her hotel in order for her to participate.
Ever Wonder How to Properly Cite the Prime Directive?
New York Judge Richard A. Dollinger wrote a very straightforward opinion on the standards for attorney disqualification in New York.
The Court stated in its summary, “Finally, this evolving “clear showing” standard seems to be in direct contrast to the “prime directive” from appellate courts on matters relating to disqualification: i.e., that the decision rests solely in the discretion of the trial court.” Lyons v Lyons (Sup.Ct.) 2015 NY Slip Op 25414, ¶ 7, fn. 3.
Footnote 3 is Exhibit A that Judge Dollinger is a Trekie: “See Star Trek, First Contact, Paramount Pictures, 1996 (Articles of the Federation, Chapter I, Article II, ¶VII).”
Raise a glass of tranya, because a New York Judge went beyond making a reference, but boldly cited the Articles of the Federation and Star Trek First Contact.
Bizarro Civil Rights Violations on Supergirl
Agent Alex Danvers on Supergirl decided to go big in violating the United States Constitution in the episode “Bizarro.” In the episode, Maxwell Lord has taken comatose women and performed medical experiments upon them to create a “Bizarro” Supergirl clone. Lord knows Kara is Supergirl and that she is Alex’s sister.
Danvers in rightly upset that Maxwell Lord should be arrested for possibly kidnapping of comatose women; unlawful medical experiments in violation of the Nuremberg Code of Ethics in Medical Research and Declaration of Helsinki to prohibit unethical experiments on living human beings, which is codified as law in California pursuant to Cal Health & Saf Code § 24171; and terrorism in using Bizarro Supergirl as his agent in carrying out domestic terrorism. There is no shortage of probable cause for the FBI or local law enforcement to arrest Maxwell Lord.
Problem: the DEO does not have jurisdiction to conduct law enforcement, only protect the United States from alien threats. Moreover, the Federal agency is secret, so the FBI is not even aware of the DEO’s existence.
Alex Danvers took armed DEO Agents to Maxwell Lord’s office and arrested him without stating the charges against him or reading him his Miranda rights. Lord was then taken to the DEO and placed in a holding cell.
Maxwell Lord was deprived of his Fourth Amendment rights by arresting him without stating the charges against him; violated his Fifth and Sixth Amendment Rights to counsel; denied him the writ of habeas corpus; and a host of other issues from false imprisonment, malicious prosecution, false arrest, unlawful arrest, and possibly cruel and unusual punishment (like where is the bathroom in his cell).
There is no exception to the United States Constitution for someone’s sister being threatened. Max’s well-paid lawyers could sue the United States government for his civil rights violations AND Alex Danvers under a 1983 action.
Here is how Alex is in a boatload of trouble:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.
42 USCS § 1983 (Emphasis added).
Alex Danvers knew the DEO lacked any jurisdiction to arrest Maxwell Lord, yet arrested him anyway under the color of her authority as a DEO Agent. This cannot stand. Lord could sue her personally, as there is nothing to give her any immunity as acting for conducting her unlawful arrest.
Let’s hope Alex knows a good lawyer for playing Star Chamber with Maxwell Lord.
I Get Confused Around Books on the 4th Amendment
Agent Carter is perhaps the best Marvel show when it comes to the Fourth Amendment. In the episode “Better Angels,” Peggy covertly enters the private all-male Arena Club, thanks to Howard Stark and his all-female “production assistants” causing a diversion. Our hero snuck around, found a room hidden behind a secret entrance, and attempted to place a wiretap in the room. When caught in the hallway, she quickly offered a ditzy “I get confused around books,” to explain why she was “lost.”
There was giant problem with Peggy Carter’s failed attempt at wiretapping the Arena Club: it grossly violated the Fourth Amendment. However, here is the golden takeaway: the writers KNEW it! New York SSR Chief Jack Thompson verbally complained to Peggy that her actions lacked probable cause and a search warrant.
Gold Star Agent Carter writers for giving a shout out to the US Constitution.
Why does the SSR need a search warrant based on probable cause to search the Arena Club? Because not securing a warrant can end in the evidence being suppressed. For example, in 1922 a police officer entered a residence search for opium under a void search warrant. The officer found a loaded revolver without a permit and arrested the gun owner. The Court held that a “motion for an order directing the return of the revolver and the dismissal of the indictment should be granted, as there was no authority for such seizure, no crime having been committed in the presence of the officer and he having no probable cause for believing that the revolver was in the defendant’s possession; that the officer had no lawful right to search the defendant’s residence and seize the revolver without a search warrant.” People v. Jakira (Ct.Gen.Sess. 1922) 118 Misc. 303, 305.
Cases with warrantless searches of private property usually end with motions to suppress. However, there are exceptions. For example, state Alcoholic Beverage Control agencies can perform warrantless administrative searches of liquor permit-holders’ premises are legal if they are establishing an administrative violation if they are limited in time, place, and manner. AL Post 0557 v. Liquor Control Comm’n (Ct.App. Sep. 24, 1998, CASE NO. 97 JE 2) 1998 Ohio App. LEXIS 4597, at *8, citing New York v. Burger (1987), 482 U.S. 691, 702-03, 96 L. Ed. 2d 601, 107 S. Ct. 2636.
The SSR could not with a straight face perform a liquor license check on the Arena Club, as it would be purely pretextual and grossly exceed the SSR’s authority, not to mention infringing on the state and local jurisdiction.
There are cases with law enforcement legally entering a club and seeing drugs in plain view that do not violate the Constitution. However, those cases are free from law enforcement entering a club by force or fraud. Commonwealth v. Black (1989) 520 Pa. 115, 117-118. In Peggy’s case, using Howard Stark as a diversion bordered on force with the production assistants barging into the Arena Club, and definitely was fraud. Moreover, we know no book has ever confused Peggy Carter.
There is no question Agent Carter did violate the Fourth Amendment in “Better Angels.” Worse yet, Jack Thompson recognizing the headline about the Senator’s resignation could be “fruit of the poisonous tree” and suppressed in trial. However, there is a strong possibility evidence of the conspiracy could be fall under the “inevitable discovery” as the season progresses.
The Dark Side Made Me Do It
Could Anakin Skywalker argue the insanity defense for the decades he spent as an agent of evil? Could Anakin claim he was legally insane while following the Dark Side, thus not guilty for crimes ranging from murdering Younglings to blowing up Alderaan?
Anakin Skywalker could not Chewbacca Defense himself out of the billions of people he helped kill. A trial of Darth Vader would have a body count near impossible to determine, given it would include every act of evil from cutting off Mace Windu’s arm (and the Emperor killing the Jedi Master); to butchering Tusken Raiders between Episodes IV and V on Tatooine (See Marvel’s Star Wars Darth Vader comic); murdering Captain Raymus Antilles with his bare hands; ordering the deaths of the crew of the Tentive IV, Force killing Captain Lorth Needa and Admiral Kendal Ozzel when court martials were in order; and many other acts done in the name of “The Doctrine of Fear.”
Darth Vader would not be absolved of criminal responsibility just because Govenor Tarkin gave the order to destroy Alderaan. The “I was just there” or “I was just following orders” did not work at Nuremberg war crimes trials and would not be a defense for blowing up a planet. Vader was an active participant in the Empire’s plans for galactic domination, thus would be viewed as being part of the “inner circle” for the crimes of the Empire.
The Insanity Defense is an affirmative defense where Anakin would need to prove by clear and convincing evidence that “as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts.” 18 USCS § 17.
Emperor Palpatine spent decades manipulating Anakin Skywalker’s ultimate fall to the Dark Side. These acts included preying on Anakin’s fears of his wife dying and a promise that Palpatine could save Padme from death. All of Anakin’s actions do not appear to be because of a mental disease, but being gullible. Anakin was promised that he could save Padme, which was the reason Anakin Skywalker marched on the Jedi Temple to murder children.
Every death Anakin committed as Darth Vader was a choice. It was not done because the “Dark Side” made him do it, but because he decided to kill others in the name of “Peace, Freedom, and Justice.” While there is no question Anakin was manipulated into becoming Darth Vader, it was a choice Anakin made for himself. Just as it was a choice Darth Vader made to save Luke Skywalker and throw Emperor Palpatine down the Death Star’s reactor shaft in Return of the Jedi.
As much as Anakin could whine that it was Emperor Palpatine’s undue influence that made him turn to the Dark Side, Anakin Skywalker could not prove by clear and convincing evidence he was legally insane during the decades he murdered those in his path after a failed attempt to save his wife Padme.
Expert Witness Reports for the Trial of James Buchanan Barnes
The Mock Trial of the Winter Soldier at San Diego Comic Fest is a battle of expert opinions: did James Buchanan Barnes understand the wrongfulness of his actions?
James Buchanan Barnes’ defense team will argue that he is not guilty by reason of insanity. The law requires that the defense prove Bucky was insane by clear and convincing evidence, which is a lower standard then the Prosecution proving guilt beyond a reasonable doubt. The jury must weigh the facts and expert opinions presented by both sides and decide if Sargent Barnes was insane under the following Model Jury Instruction for the Insanity Defense for the 9th Circuit:
The defendant James Buchanan Barnes contends he was insane at the time of the crime. Insanity is a defense to the charge. The sanity of the defendant at the time of the crime charged is therefore a question you must decide.
A defendant is insane only if at the time of the crime charged:
1. The defendant had a severe mental disease or defect; and
2. As a result, the defendant was unable to appreciate the nature and quality or the wrongfulness of his acts.
The defendant has the burden of proving the defense of insanity by clear and convincing evidence. Clear and convincing evidence of insanity means that it is highly probable that the defendant was insane at the time of the crime. Proof by clear and convincing evidence is a lower standard of proof than proof beyond a reasonable doubt.
You may consider evidence of defendant’s mental condition before or after the crime to decide whether defendant was insane at the time of the crime. Insanity may be temporary or extended.
Your finding on the question of whether the defendant was insane at the time of the crime must be unanimous.
The Defense and the Prosecution each have an expert witness who will testify on whether James Buchanan Barnes was legally insane during the events of Captain America The Winter Soldier. You can view their expert reports below and see the issues of the trial on February 13, 2016 at San Diego Comic Fest. Page controls are at the bottom of the PDF viewer.
Dr. Janina Scarlet’s Expert Report for the Defense
Defense_Scarlet_Expert_ReportDr. Andrea Letamendi Expert Report for the Prosecution
Prosecution_Expert_Report