My Favorite Martian is a Felon

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December 8, 2015

J’onn J’onzz, the Martian Manhunter, was the heart of the 1980s Justice League International. The Oreo-loving, fire fearing, Last Son of Mars gave soul to the retro series The New Frontier. J’onzz’s surprise appearance on Supergirl puts a new spin on the character, plus a couple of felonies.

Here is the big surprise: the Martian Manhunter has been impersonating Hank Henshaw for YEARS. This means the DEO has been run by an alien that the DEO was sent out to capture. Oops.

Applying California law to our favorite Martian, J’onzz easily has committed false impersonation by the following actions:

J’onzz assumed the identity of Hank Henshaw in both his personal and official capacity of the head of the DEO;

J’onzz has signed and issued orders on behalf of the DEO, thus publishing written instruments with the intent his orders be used as true;

J’onzz has acted as a Federal agent in apprehending both aliens and humans, who are held without trial, thus violating at least the human’s civil rights, therefore subjecting Henshaw to a 1983 action; and

J’onzz has to live someplace, meaning either a lease or deed has been signed in Henshaw’s name, using Henshaw’s credit history for J’onzz personal benefit.

Cal Pen Code § 529.

It is highly likely J’onzz is also illegally collecting other benefits, such as having a Driver’s License in Henshaw’s name, and ultimately could commit Social Security fraud.

There is another awkward matter: Henshaw was married in the comics to Terri Henshaw. Yes, she and the other two astronauts from the Space Shuttle Excalibur committed suicide after they crashed back to Earth after being mutated by cosmic rays in a Fantastic Four homage. However, if she is still alive in Supergirl, things get weird fast if J’onzz either remained married to her or divorced her under false pretenses. In theory, Terri should have recovered government death benefits after the death of Hank Henshaw.

Felonies aside, it is awesome to have another iconic hero in Supergirl. I am just glad he is not wearing the tactical speedo.

Not the Younglings (Again)!

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Josh Gilliland

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December 5, 2015

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Growing up is hard, but for a Force Sensitive child in the Star Wars universe, it means being hunted by the Empire. In the Star Wars Rebels episode “The Future of the Force,” our heroes protect human and Ithorian infants from the Seventh Sister and Fifth Brother.

The treatment of Younglings has been problematic since The Phantom Menace. It appeared the Jedi would take children from their parents who were strong in the Force. It is not clear that the parents always consented to their children to be raised by the Jedi or if it was mandated by law. From a certain point of view, it appeared the Jedi adopted Younglings, severing parental rights to their children. The Jedi effectively put Plato’s Republic in practice with the Community of Women and Children, with the state raising the children to serve the collective good.

Severing parental rights without parental consent is a complicated process. Courts must find parental custody would be detrimental to the child by clear and convincing evidence. Cal Fam Code § 3041. Raising a Force sensitive child might have its challenges, but the Jedi would need more than “The child could turn to the Dark Side,” in order to take away parental rights without consent.

Star Wars Rebels sent a very different message. The Inquisitors Seventh Sister and Fifth Brother were abducting Younglings strong in the Force. Just as there are always two, the Inquisitors committed at least two crimes: kidnapping and child abduction.

Kidnapping is the forcible taking of a person. Cal Pen Code § 207. Child abduction is the taking of a child by someone who does not have a right to custody of that child. Cal Pen Code § 278. One Court explained the difference between the crimes as follows:

There is a fundamental difference between kidnapping, Cal. Penal Code § 207, and child abduction, Cal. Penal Code § 278, in terms of the person targeted by the offense; the first is a crime against the person being kidnapped, the second against the parents of the child abducted. If there is evidence that a defendant’s conduct is aimed at both, there is no reason why he or she should not be prosecuted under both statutes.

In re Michele D. (2002) 29 Cal 4th 600.

The Inquisitors committed both crimes in “The Future of the Force.” The human Youngling was forcefully taken from her grandmother. The grandmother had legal custody of the child and the Inquisitors had no legal right to custody. Taking the Youngling was child abduction from the grandmother and kidnapping of the Youngling herself (plus assault, battery, and possibly murder).

The Inquisitors attempted to take the Ithorian infant from his mother, making their actions attempted kidnapping and child abduction (and actual assault and battery on the mother).

Our Rebels were well within their right to rescue the Younglings under the “defense of others.” Granted, they did sort of carjack that speeder flown by the Ithorian, but we’ll let that one slide with a necessity defense.

War of the Purple Roses

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Josh Gilliland

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December 4, 2015

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Jeri Hogarth on AKA Jessica Jones was the poster child for everything horrible with attorneys. She bribed a juror at the beginning of her career, was having an affair with her secretary Pam, and was ethically challenged in arguably acting against the best interests of her client Hope with the press. Then there is the entire issue of secretly taking the aborted fetus of her client for experimentation. Some lawyers own restaurants on the side; Jeri apparently did bio-medical research.

Jeri’s wife Wendy sought a divorce from Jeri, likely based on Jeri’s adultery with Pam. Adultery is one of the specifically enumerated reasons for a divorce under New York law. NY CLS Dom Rel § 170(4).

Wendy demanded as a divorce settlement to have first 75% of Jeri’s income, and then ultimately 90%, in exchange for not disclosing old emails that contained evidence of Jeri’s jury tempering to the New York State Bar, which would result in immediate disbarment for Jeri upon conviction.

Problem: Wendy was demanding 90% of Jeri’s income to cover up a crime. This would make that provision of the divorce agreement void, as one cannot contract to cover-up a crime. This also poses serious ethical issues for Wendy’s lawyer, who effectively was helping threaten criminal liability as consideration for a divorce agreement to take an unconscionable amount of money.

A divorce agreement where one party has to provide 90% of their income to the other would fall under the class meaning of “unconscionable,” because “no man in his senses and not under any delusion would make on the one hand, and as no honest and fair man would accept on the other.” Murray on Contracts, section 96, citing Hume v United States, 132 U.S. 406 (1889), quoting from Earl of Chesterfield v. Janssen, 2 Ves. Sen. 125, 155 (Ch. 1750).

Wendy demanding 90% of Jeri’s income would be extortion under New York law, which is defined as when one person compels another to deliver them property in order to avoid 1) accusing the victim of a crime or cause criminal charges to be instituted against them, or 2) expose a secret or publicize an asserted fact, whether true or false, tending to subject some person to hatred, contempt or ridicule. NY CLS Penal § 155.05(2)(E)(iv) and (v). Courts as a matter of public policy do not enforce illegal bargains and as such, would not enforce a divorce agreement founded upon extortion.

Is Wendy entitled to a divorce from Jeri? Yes. Should Jeri be disbarred if she is convicted of jury tampering? Yes. Can Wendy extort Jeri for 90% of her assets in exchange for not reporting Jeri to the bar in a divorce agreement? No way. The Courts are not an instrument to enforce illegal deals for revenge.

Can the President Draft Supergirl?

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Josh Gilliland

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December 1, 2015

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It is not everyday that the President of the United States sends a lawyer to conscript Supergirl into military service, but when it happens, a father and daughter team does it. Let’s just say Lucy Lane needs an ethics lesson after preparing a memo for Kryptonian mandatory conscription that sounds like slavery.

How was Supergirl enslaved? General Lane proclaimed Supergirl was needed for a “mission” to test a weapons system. Moreover, the President had signed an Executive Order mandating Supergirl’s compliance, which required her to fight the android Red Tornado as a weapons test.

There are so many things wrong with this fact pattern that an attorney would be gleeful at the opportunity to sue the US Government in a 1983 action for violating Supergirl’s Civil Rights. As a preliminary matter, someone might argue, “Supergirl is not human and in the United States illegally, therefore, the government can do what it wants to her.”

This argument would be false. Anyone who is an “illegal alien” is still protected by the Constitution, and cannot be deprived of their liberty without due process of law. Just because someone might be illegally in the United States, does not give the Government license to violate their Civil Rights.

Supergirl being conscripted by Executive Order would mean there was a law upon which the President issued the Executive Order. See generally, Utah Ass’n of Counties v. Bush (D.Utah 2004) 316 F.Supp.2d 1172, 1184.

What bill of attainder was enacted specifically targeting super powered individuals or Supergirl specifically that was the basis of the Executive Order? The United States Constitution specifically prohibits bills of attainders, so any legislation authorizing the President to “order” Supergirl into service would be Unconstitutional on its face. USCS Const. Art. I, § 9, Cl 3.

The President could not invoke any Military Selective Service Act provision to draft Supergirl, because only men have to register for the Draft, which is not subject to an equal protection challenge. 50 USCS Appx § 453; Witt v. Dep’t of the Air Force (9th Cir. 2008) 548 F.3d 1264, 1278-1279. Supergirl not being a male, was not required to register for “The Draft” when she turned 18. As such, there would be no legal authority to “draft” Supergirl under the Military Selective Service Act.

The 13^th Amendment specifically prohibits slavery in the United States. The military ordering Supergirl to fight an android for a weapons test on its face would violate the 13^th Amendment’s prohibition on involuntary servitude. There was no offer of employment, no request, but an order for the Girl of Steel to enter mutual combat with an android to “test” it. This is simply no legal basis for such an Executive Order to command someone to be used in a military weapons test.

Jessica Jones Podcast 1: Tales of Insanity Defenses and Law Firms

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Josh Gilliland

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November 25, 2015

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Check out our first Jessica Jones podcast, where we jump into issues of how lawyers work with private investigators, why super-heroes would be great process servers, and the challenges of attorneys who are both civil litigators and criminal defense attorneys. We also discuss whether Hogarth, Chao & Benowitz LLP is a mid-sized law firm or “Big Law.”

Let’s not forget while discussing work life/balance, you can briefly hear Jessica sing!

We Made the ABA Journal Blawg 100 for the Third Time!

By

Josh Gilliland

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November 23, 2015

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2015 just might be my favorite year. We presented at San Diego Comic Con, were nominated for a Geekie Award, AND NOW have made the ABA Journal Blawg 100 for the third year in a row.

I want to thank all of our readers and the Editors at the ABA Journal for selecting us for the Blawg 100. There are many excellent legal blogs. It is a very high honor to make the Blawg 100. I thank you all from the bottom of my heart and are very glad you enjoy The Legal Geeks.

Jessica Mederson and I started The Legal Geeks with the goal of discussing all of our geek loves and the law.

On this journey, we have meet judges, lawyers, and law students who also love all things geek. With us often are our good friends Judge Matthew Sciarrino and Gerry O’Brien, who have shared their insight on everything from Kree politics to Batman being a state actor. This year has also been special, because we have been joined by attorneys Roger Quiles, Megan Hitchcock, and Brad Blanchard, who have contributed guest posts on geeky legal issues from video games to Back to the Future, to The Arrow.

2015 has had many high points for us. Jessica and I have presented on Star Wars with Judge Paul Grewal at SDCC; I had the chance to podcast with my friends at Monster Party; Steven DeKnight, the executive producer of Daredevil, Retweeted two of my Daredevil posts on attorney ethics and self-defense; and I have been privileged to speak at comic conventions on the Constitutional issues in Agents of SHIELD and Agent Carter.

It is very reaffirming to me to see people pack a room to discuss Con Law, because it means “normal” people care about the law. On top of that, it has been a surreal experience when people have recognized me on the exhibit hall floor and stop to say hello. This has been a really fun year and thank you to everyone who joined us for the adventure.

So, thank you ABA Journal for helping make 2015 a fantastic year to remember.

To the future, because the best is yet to come.

About the ABA Journal:

The ABA Journal is the flagship magazine of the American Bar Association, and it is read by half of the nation’s 1.1 million lawyers every month. It covers the trends, people and finances of the legal profession from Wall Street to Main Street to Pennsylvania Avenue. ABAJournal.com features breaking legal news updated as it happens by staff reporters throughout every business day, a directory of more than 4,000 lawyer blogs, and the full contents of the magazine.

About the ABA:

With nearly 400,000 members, the American Bar Association is the largest voluntary professional membership organization in the world. As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law.

Hope for a Purple Man Insanity Defense

By

Josh Gilliland

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November 23, 2015

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Kilgrave, AKA The Purple Man, has the ability to make people do his bidding, whether it is preparing him dinner or killing someone. In AKA Jessica Jones, Kilgrave used his power from everything for financial gain to playing hyper-creepy sugar daddy with any woman who caught his eye.

Hope Shlottman was Kilgrave’s collegiate victim who was kidnapped for a month as his personal plaything, enduring everything from emotional torture to rape. Hope was programmed by Kilgrave to execute her parents after Jessica Jones rescued Hope in the first episode. After shooting her parents in an elevator, Hope only said, “Smile.”

A defense attorney could argue that Hope was not guilty by reason of insanity. However, this is highly problematic, because there are not recognized cases for “mind control” or “brainwashing.”

The Insanity Defense in New York is an affirmative defense where a defendant had a mental disease or defect that prohibited them from either 1) understand the nature and consequences of their criminal conduct; or 2) understanding that such conduct was wrong. NY CLS Penal § 40.15.

Hope clearly was not in control of herself when she committed the double murder of her parents. Unfortunately, cases with “mind control” or “brainwashing” are not helpful in forming an insanity defense.

In one case, a Hare Krishna religious group could not be prosecuted for unlawfully imprisoning two members through “brainwashing,” “mind control,” or “manipulation of mental processes,” because there was no evidence of “fraud, deception, intimidation or restraint, physical or otherwise.” People v Murphy, 98 Misc. 2d 235, 413 N.Y.S.2d 540 (N.Y. Sup. Ct. 1977). Furthermore, just because a religion is unconventional, does not mean that “a strict regimen, meditation, chanting, self-denial and the communication of other religious teachings cannot be construed as criminal in nature and serve as the basis for a criminal indictment nor is the concept of “mind control” or “brainwashing” a crime in and of itself.” Id.

The Murphy court went on to state:

The concept of mind control or brainwashing is not a crime in and of itself. The fact that indoctrination and constant chanting may be used as a defense mechanism to ward off what another person is saying or doing is devastating and it is equally devastating when used as a technique for brainwashing or mind control. It may even destroy healthy brain cells. It may also cause an inability to think, to be reasonable or logical. However, this does not constitute a crime. Neither brainwashing nor mind control per se is a crime. It cannot be used as the basis for making out the elements of the crimes charged herein.

Murphy, at *243.

Given what has happened since 1977 with cults and international terrorism, not everyone will agree with the Murphy court. As seen in People v. Vieira, a Court prohibited expert testimony during the guilt phase from a cult expert that the defendant was unable to form the required mental state for murder due to the “influence of mind control techniques.” People v. Vieira (2005) 35 Cal.4th 264, 265.

“Brainwashing” also appears as serious allegations between parents in child custody cases. Often in these cases, one parent accuses the other of “brainwashing” a child against the aggrieved parent. See generally, R.L. v J.L. (Sup.Ct.) 2012 NY Slip Op 50447(U); Thomas S. v. Robin Y. (App.Div. 1994) 209 A.D.2d 298, 314; Lazar v. Lazar (App.Div. 1967) 28 A.D.2d 991.

The most on point case for Hope is from a petition for a writ of habeas corpus by the murderer of Senator Robert F. Kennedy. The petitioner argued that there was evidence of “hypnotic programming.” The Court summarized the argument and analysis as follows:

Furthermore, petitioner’s own recitation of the events leading up to the murder are vague and fail to demonstrate that he actually was the victim of hypno-programming by some unnamed person or entity. Petitioner’s recently recalled memories about the bartender, the woman in the polka dot dress pinching him, and entering “range mode,” are far from compelling evidence of his innocence. Petitioner’s recitation of the events of the night he shot Senator Kennedy amount to self-serving recollections that, even if believed, do no more than suggest a sinister plot and a possibly exculpatory theory — namely, that petitioner was under a hypnotic trance and did not intentionally shoot Senator Kennedy. Whether or not the theory that a person can be hypnotized to commit murder and then to lose his memory of committing that murder is scientifically credible, and the Court assumes that it is solely for purposes of this analysis, petitioner has not provided any reliable evidence that this actually occurred. Evidence of a mysterious woman in a polka dot dress, petitioner’s “feeling” that he might have had a relationship with the bartender who used non-verbal signals such as nodding his head and making eye contact, petitioner’s feeling “tired” after drinking alcohol, his following a woman whom he found attractive into the pantry, the “pinch,” and his subsequent drawing out the gun and shooting during his “flashback” to the shooting range are “facts” that could fit the mind control theory. Then again, they are fuzzy recollections of portions of a night more than forty years ago that contradict petitioner’s prior, more contemporaneous statements.

Sirhan v. Brazelton (C.D.Cal. 2013) 76 F. Supp. 3d 1073, 1123-1124.

Hope’s attorneys would need to offer evidence that she was under a form of “hypnotic programming” by Kilgrave to effectively prove she did not understand the nature and consequences of her criminal conduct. There actually is hope that the Defense could be successful with this argument, because Hope spent a month with Kilgrave doing out-of-character actions. These actions include the sudden alienation with her parents, dropping out of school, moving out of her apartment, and spending all of her time with a man at least 20 years older than her. Moreover, a jury would take find it odd that a student athlete with good grades turned into a homicidal “sugar baby” overnight.

The night Jessica Jones liberated Hope from a high-class hotel, Hope had been left to lie in her own waste for hours in bed. Furthermore, upon being moved from the bed, Hope fought to return to the bed, where she had been told to wait for a specific amount of time. Jones’ testimony, coupled with a psychologist, could show Hope was not suffering from Stockholm Syndrome or acting under her own will.

These facts demonstrate a change in Hope that was not consistent with her character. While it might not be direct evidence of hypnotic programing to commit murder, it could be enough to create reasonable doubt with a jury that Hope was not in control of her actions. Moreover, in a world with alien invasions, killer robots, and flying aircraft carriers, convincing a jury of someone with a super power to control others would not be an impossible challenge. Difficult and risky, but not impossible.