What makes comic book stores great? Josh visited with Anna Warren Cebrian, the owner of Illusive Comics & Games in Santa Clara, California, to discuss why comic book stores are special, her favorite super-hero movies, and how she took members of her staff to an advanced screening of Avengers Age of Ultron. Anna also shared her new Kickstarter project, American Bibliodeck, The Wonderful Wizard of Oz Edition.
Did Barry Allen save his mother and forever alter the timeline that turned him into The Flash? No, which is a good thing. However, his dad is still left in prison for being wrongfully convicted of killing Norma Allen in The Flash season finale.
How could a good lawyer help The Flash get his father out prison? It’s time to put on a Blue Power Ring, because there is hope of proving Henry Allen’s innocence in court.
States vary on the exact procedure for setting aside a conviction, but one option is to introduce new evidence showing the conviction was wrong. Some states require a new trial after the conviction is set aside.
Ohio law allows a defendant to seek a new trial and set aside a conviction when “When new evidence is discovered material to the defendant, which he could not with reasonable diligence have discovered and produced at the trial.” ORC Ann. 2945.79(F). The defendant must produce “affidavits of the witnesses by whom such evidence is expected to be given,” and the state may produce affidavits to impeach any defense witnesses. Id.
New York permits a Court to vacate a judgment and set aside a sentence if “[n]ew evidence has been discovered since the entry of a judgment based upon a verdict of guilty after trial, which could not have been produced by the defendant at the trial even with due diligence on his part and which is of such character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to the defendant;” NY CLS CPL § 440.10(g). There must be supporting affidavits if the motion to vacate the judgment is based upon the existence of facts. NY CLS CPL § 440.30(a).
How could The Flash get his father out of prison with a similar statute to vacate a conviction based upon new evidence, without causing a paradox to destroy all of reality?
The answer: A Go Pro camera. Or Polaroid Cube. Basically any personal action camera could do the trick.
The issue is having evidence that the Reverse Flash killed Norma Allen. One option for The Flash is to travel back in time before the murder, place an action camera in either the fish tank, or a book shelf, or some other part of the living room that is not visible or easily overlooked. The recording of the high speed blurs slowed down would demonstrate reasonable doubt that Henry Allen killed Norma Allen.
The big challenge is offering the video evidence in court. A Court would be rightfully confused if there was video footage from 2000 on a camera that did not exist in 2000. A District Attorney would rightfully challenge the authenticity of the video. Moreover, it is unlikely The Flash would appear to testify in Court.
One solution to this issue is the fact the police and District Attorney have openly cooperated together with The Flash. Detective Joe West could prepare an affidavit stating the recorded video was given to him by The Flash and that the footage accurately depicts the crime scene from the night Norma Allen was killed. A Judge in Central City, especially if the District Attorney was not contesting the footage, could find the new evidence either would justify a new trial if not outright setting aside Henry Allen’s conviction.
A lawyer from the Blue Lantern Corps could also give Henry Allen hope of proving actual innocence. In New York, new evidence could prove actual innocence if:
(1) The new evidence will probably change the result if a new trial is granted;
(2) It must have been discovered since the trial;
(3) It must be such as could not have been discovered before trial by the exercise of due diligence;
(4) It must be material to the issue;
(5) It must not be cumulative; and
(6) It must not be merely impeaching or contradictory to the former evidence.
See People v Marino, 99 AD3d 726, 730; People v Tankleff, 49 AD3d at 179.
Video evidence of a yellow blur killing Norma Allen would 1) change the result of Henry Allen’s conviction if there is a new trial; 2) the video evidence would be discovered after the trial, since the technology to record it was invented over a decade later and required time travel to use; 3) there was no way the Defense Attorney’s due diligence could have found evidence only available from time travel; 4) the video would be material to the issue of who killed Norma Allen; 5) the evidence is not cumulative; and 6) it is not offered impeach or contradictory to the former evidence, but verifying what Henry and Barry Allen claimed they saw the night Norma Allen was killed by the Reverse Flash.
The Agents of SHIELD Season 2 finale contained a happy ending for Calvin “Mr. Hyde” Zabo. After killing his wife who had planned to commit genocide on humanity with Terrigen Crystals as a eugenic weapon, Mr. Hyde had a unique sentence: Memory erased and his own veterinarian clinic to help pets that need love and healing. After all, the world needs professionals who help animals.
Was that legal?
Calvin Zabo had committed multiple counts of murder, illegal human experimentation, and criminal conspiracy in several states. Moreover, the People’s Republic of China would have an interest in prosecuting him for murdering a village in order to “feed” Jiaying their life energies.
Director Coulson unilaterally decided that Zabo would be pardoned for his crimes, but Zabo’s mind would be erased. This decision is problematic, because Zabo had a 7th Amendment right to a trial for his crimes and a 6th Amendment right to counsel. Both seemed to have been ignored. Furthermore, conducting a medical experiment without a prisoner’s consent to erase his memory would definitely violate the 8th Amendment prohibition again cruel and unusual punishment. To be blunt, Court’s just don’t let people get lobotomized.
People who are involuntarily committed have the right to refuse psychosurgery. (See, Cal Wel & Inst Code § 4503, as one state example). This right can only overwritten on a showing of good cause, which includes treating physicians documenting the treatment needed, a review of the patient’s treatment record by two treating physicians who both agree with the recommended treatment, and written consent by the patient or the person’s guardian. Cal Wel & Inst Code § 5326.7.
This process does not appear to have been followed. In theory, Dr. Andrew Garner’s (Agent May’s ex-husband) could have been the treating physician to make the treatment recommendation. No other psychologists are known, but would others have agreed with erasing Calvin’s memories? Skye/Daisy could have provided written consent, but this still would be a grossly invasive procedure to erase someone’s life.
Director Coulson apparently acted as the prosecutor, judge, and jury in determining Zabo’s sentence to a happy life with no memory of crimes. Director Coulson effectively pardoned Zabo for his crimes and then expunged his criminal record. There is just no way Coulson’s actions were legal, but Zabo did help save humanity. That would be worth a limited pardon from a President and multiple governors. Plus the world needs good veterinarians. Just think of all the puppies Cal can help, opposed to being in prison or a mental hospital for the rest of his life.
Could the International Criminal Court prosecute Ultron for Crimes Against Humanity? Could Ultron be tried in any Court?
Tony Stark and Bruce Banner created Ultron in Avengers Age of Ultron. Ultron attempted to “kill” the computer program Jarvis and then the Avengers shortly after being activated.
Ultron’s following actions range from ripping Ulysses Klaw’s arm off to trying to crack every nuclear code on the planet to attempted genocide all human life.
Could a robot be prosecuted for this long list of crimes?
Ultron is “Artificial Intelligence” gone on a killing spree. Case law examples of AI include “expert system,” which are “are a class of computer programs that were first developed in the 1960’s. They seek to emulate the decision-making of human experts in a field of expertise (e.g. chemistry, medicine, geology). An expert system stores knowledge obtained from human experts in a ‘knowledge base.’” Vehicle Intelligence & Safety, LLC v. Mercedes-Benz USA, LLC, 2014 U.S. Dist. LEXIS 130809, 5-7 (N.D. Ill. Sept. 18, 2014). A “decision module” inference engine is “programmed to selectively apply expert rules stored in the knowledge base in order to resolve problems.” Id.
Ultron is significantly a higher level of “Artificial Intelligence” than we have in the real world. Ultron invaded the Internet and downloaded himself into multiple bodies, which he could transfer his programming between at will.
Ultron’s plan included launching Sokovia into orbit and dropping the city back on Earth, effectively creating an asteroid strike similar to the one that wiped out the dinosaurs. This plan targeted the citizens of Sokovia to use their city as a weapon, which obviously would displace the citizens of the ill-fated city state.
The Geneva Convention prohibits signing parties to treat non-combatants to hostilities humanely. 1949 U.S.T. LEXIS 484, 3-4. Moreover, acts such as violence against people, murder of any kind, mutilation, cruel treatment, and torture are also prohibited. Id.
There is a significant problem with attempting to prosecute Ultron under the war crimes statute: Ultron is a computer program and does not belong to a country that signed the treaty.
Ultron did purposefully kill or attempt to kill numerous human beings. Bringing traditional murder charges against Ultron are problematic, because a PERSON is guilty of murder when someone intentionally causes the death of another. NY CLS Penal § 125.27. Or as defined at common law, murder is defined as the “killing of a human being with malice aforethought.” See, Black’s Law Dictionary App, 9th Edition.
Whether or not Ultron is a “person” defines whether or not he can be charged with murder (or attempted murder, or attempted genocide, or mutilation, or torture, or kidnapping).
An area of law that gives guidance on “personhood” is whether or not computer-generated information is “hearsay.” Here is what one Court said about Artificial Intelligence and hearsay:
The initial question is whether information observed on a computer screen, generated not by a human source but setting out the results of a computer program in analyzing data, is hearsay. Rule 801 defines a “statement” as an oral or written verbal expression, or as the nonverbal conduct of a person if intended by the person as a substitute for verbal expression. TEX. R. EVID. 801(a). Arguably, this should constitute such a statement. When the rules were written, computers were not capable of performing such analysis and at most would have provided raw data which would have to be analyzed by a human. Now, the computer program performs the analysis and a human only looks to see what result the program has reached. If the result shown is not the one desired, the human does not perform an independent analysis, but looks for different ways to apply the program to the problem. Under this scenario, there is arguably a statement being made-just not by a human-but by an artificial intelligence.
Without going into the details of this type of analysis, however, as pointed out by the State, several courts of appeals have held that computer-generated information, whether on a display or paper, is simply not hearsay because it falls outside the strict language of the rule. This position is defensible and is apparently the sole position taken in Texas to date for materials not input into a computer and simply printed out, but that result from analysis done by the computer. The statement by Marshall was not hearsay.
Taylor v. State (Tex.Ct.App. 2002) 93 S.W.3d 487, 507-508.
Ultron is way beyond a computer screen displaying information. There is an argument that Ultron had a body, had emotional reactions, and as such he statements were more in line with being human opposed to merely Artificial Intelligence. However, there is the basic fact that Ultron is a robot and not a human being.
Could a Court find that Ultron’s “statements” were by a “person”? Maybe. Could a Court also find that Ultron was a “person” under the law? Not by a strict reading of the law.
If Ultron was not a “person,” then there was no issue with destroying each Ultron drone. As Ultron was not a “person,” there was no duty to attempt arrest of a killer robot.
Now, whether or not the Vision and Scarlet Witch getting married is an advanced retelling of the Pygmalion myth is a tale for another time.
Agents of SHIELD has ventured into a new legal realm: Foreign Policy. As one could expect, this results in a war.
There are MANY things wrong with the actions taken in “Scars,” both legally and politically. The outcome highlights that foreign policy is best left to the Secretary of State, opposed to spies with aircraft carriers.
SHIELD Acted as a Nation-State
Phil Coulson’s SHIELD and Robert Gonzales’ SHIELD merged into one organization. Coulson would act as the Director and Gonzales’ team as an Executive Board.
Problem: they are accountable to no one. There is a rogue spy agency with a nuclear powered Nimitz aircraft carrier and an underground base that is 1) Not taking orders from the President; 2) Totally ignores the military chain of command; and 3) Has zero Congressional oversight.
This is not acceptable legally. There cannot be a faction of an American military/espionage agency with nuclear weapons roaming the seas. The United States would be on a heighten anti-HYDRA policy after Captain America The Winter Soldier and would have no tolerance of rogue spies who could start a war.
SHIELD acted as if they were a separate nation-state in setting up negotiations with the Inhumans, thus establishing their own foreign policy. There is a substantial problem with this, because the Logan Act prohibits US citizens from directly or indirectly commencing correspondence with a foreign government with the “intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States…” 18 USCS § 953.
Worse yet, if Afterlife is in the People’s Republic of China, the PRC will be less than thrilled with 1) super-powered individuals acting like they are a separate country; and 2) Americans entering China to negotiate with the separatists (and in some cases, foreigners illegally living in China without visas). This would be like the United States deciding to enact a trade agreement with Tibet.
The US State Department’s “mission is to shape and sustain a peaceful, prosperous, just, and democratic world and foster conditions for stability and progress for the benefit of the American people and people everywhere.”
SHIELD sending four Quintjets to Afterlife was a strange mix of Commodore Matthew Perry’s gunboat diplomacy in “opening” trade with Japan, seasoned with the San Pebbles meets The Bedford Incident. This gunboat diplomacy without Presidential orders or Congressional approval runs totally against the basic tenants of foreign policy to promote peace, prosperity, and stability in a democratic world.
What could possibly go wrong?
How Not to Start a War
It does not take a William Seward, John Quincy Adams, or Henry Kissinger (or Hank McCoy for that matter) to identify the mistakes SHIELD made in their negotiations with the Inhumans. Here is an outline for how SHIELD could have avoided a war:
There would be many other issues, but here is the thrust of the Inhuman’s fears: Jiaying was the victim of HYDRA (Nazi) experiments during World War 2. She is fully aware of the dangers of “indexing” people based on race. Gonzales tossing out “we want to Index all of you” had to sound like a nightmare.
How to Start a War
Jiaying murdered Robert Gonzales with Terrigen Crystal Mist. This singular act of murder would promise an ICBM to be launched at Afterlife with Jiaying’s name on it.
Why respond to murder with nuclear weapons? Because Jiaying proved Terrigen Crystals could be used to commit genocide of the human race by killing Robert Gonzales. The Inhumans demonstrated how to weaponize Terrigen Crystals that would both kill all humans within their range and transform anyone with Inhuman DNA into “monsters.”
Jiaying proved all the Inhumans are exactly that: inhuman. The rest of humanity would not respond well to the possibility of either being 1) killed, or 2) transformed into something Inhuman.
The threat of genocide does not bring out the best in people. The only response to a hegemonic threat is to destroy those threatening to wipe out your existence. In effect, Jiaying created the worst possible situation that would lead to her people being blown off the face of the Earth.
Now, would a President bother seeking a Declaration of War from Congress? Maybe if the Inhumans were actually their own country. Any Congressional authorization of force would likely be a “Force Bill,” similar to those issued to fight the Barbary Pirates or the Klan. China would either need to agree to the attack or the US would need to beg that China not demand immediate repayment of US debt. However, given the threat of extinction, a diplomatic solution likely could be reached if the United States acted unilaterally to prevent seven billion people from being exterminated.
An “Inhuman War” would make life at the United Nations complex in explaining why a small village in China was vaporized. The US Ambassador to the UN would likely employ a mix of Adlai Stevenson and James Baker in handling the response. The Ambassador would channel Stevenson with a Cuban Missile Crisis style presentation on how Terrigen Crystal Mist is a genocidal weapon AND Baker in rallying an international response similar to the Persian Gulf War.
None of this would end well. Inhumans would be hunted down because Jiaying decided to declare war on the human race after Robert Gonzales insulted her by comparing their HYDRA scars.
Fear is the Real Enemy
Wars start out of fear. Both SHIELD and the Inhumans had significant fear about each other. SHIELD absolutely should NOT have been attempting to craft their own foreign policy without the US Government. However, Jiaying’s murder of Gonzales would ignite a fuse that would end with Afterlife being a crater.
None of this is what SHIELD is supposed to be. SHIELD is supposed to be the good guys who save the day, not start a war through gunboat diplomacy.
Let’s get back to basics: Have a story arc about stopping The Leader, or Kree spies on Earth, or even AIM. Let’s have the heroes follow the Constitution and in the words of Captain America, “be what SHIELD is supposed to be.”
Ultron has no strings on him, but Tony Stark and Bruce Banner certainly are tangled up in liability for building genocidal Artificial Intelligence.
Stark and Banner had the goal of putting a suit of armor around the world. However, the end result did not go according to plan. What would be their liability?
Ultron arguably is a product based on unknown alien technology (an Infinity Stone). The purpose of Ultron was to protect humanity. One theory for victims of Ultron to sue Stark Industries, the Avengers, plus Tony Stark and Bruce Banner individually, would be on products liability.
In New York state, a manufacturer is strictly liable for injuries for a design defect where:
(1) That at the time of the occurrence the product is being used…for the purpose and in the manner normally intended;
(2) That if the person injured or damaged is himself the user of the product he would not by the exercise of reasonable care have both discovered the defect and perceived its danger; and
(3) That by the exercise of reasonable care the person injured or damaged would not otherwise have averted his injury or damages.”
Voss v. Black & Decker Mfg. Co. (1983) 59 N.Y.2d 102, 106-107.
Plaintiffs can also argue that a product is defective because of a mistake in the manufacturing process, improper design, or because of inadequate warning. Id.
Traditional products liability analysis goes out the window because Ultron is not like a saw that cut off someone’s arm, but an intelligent robot that decided to destroy humanity. Without engaging in a discussion of whether Ultron qualifies as a human being, his actions are self-directed based on independent thought. As such, no one is “using” Ultron like a product. Would that independent thought cut the strings of product liability?
One argument would be to sue Stark and Banner for improper design. They used an Infinity Stone they did not fully understand, thus could not design a safe global security product. However, a stronger argument can be made that the use of the Infinity Stone was not of just improper design, but strict liability for engaging in an ulta-hazardous activity.
Tony Stark admitted that he was a “mad scientist” and Banner should embrace it. This statement shows a strong desire to engage in inherently dangerous activity. In New York (and many other states), one who engages in inherently dangerous activities is held liable without fault for injury caused to a neighboring property with or without trespass. Continental Ins. Co. v. Great Lakes Dredge & Dock Co. (App.Div. 1994) 624 N.Y.S.2d 335, 336. The traditional example is using TNT to blow up a tree stump, which then lands on a neighboring house. Furthermore, being a government contractor engaged in public work does not provide it immunity to liability. Id.
A court could easily find that conducting experiments with alien technology that can control human minds to build weaponized Artificial Intelligence would be an ultra-hazardous activity. The fact Ultron goes on a global murder-spree to create an extinction level event only shows how inherently dangerous it was to experiment and create Ultron. As such, the issue is not one of foreseeable harm from negligent conduct, but one of strict liability for Ultron’s destruction in South Korea, Africa, and Sokovia.
Could the Wanda Maximoff, the Scarlet Witch, from Avengers Age of Ultron become a naturalized citizen of the United States?
The Hexing Case History
The Scarlet Witch is from the fictional Eastern European country of Sokovia. Wanda and her brother were orphaned after a missile made by Stark Enterprises killed their family. These events would have taken place long before the first Iron Man film and Stark’s putting a stop to Obadiah Stane’s supplying advanced weapons to terrorists.
Wanda and her brother Pietro Maximoff VOLUNTEERED for Baron Wolfgang von Strucker to experiment on them. Volunteering to become a super-powered weapon of HYDRA does not look good on an application for citizenship. Further lowering her success of becoming a US citizen would be admitting she volunteered for human medical experiments to get revenge on Tony Stark.
Scarlet Witch sided with Ultron out of a desire to harm Tony Stark. However, after finding out Ultron’s plan was to commit genocide on the human race, she turned on Ultron.
Assembling the Avenger’s Application
The Scarlet Witch could apply for a US Green Card based on her employment as an Avenger. Wanda would certainly qualify as an “alien of extraordinary ability” under question 1a of Form I-140.
The Application for Naturalization is Form N-400. Good Moral Character is a requirement to apply for citizenship, as stated in “Who Is Eligible for Naturalization?”. The US Code defines “good moral character” when the Attorney General finds there is not deportable conduct as “conclusive evidence of good moral character.” 8 USCS § 1427(d).
The document specifically states “terrorist acts” or “Any crime against a person with intent to harm” are examples of possible bad moral character. The Application specifically asks applicants if they have at “you at any time, anywhere, ever ordered, incited, assisted, or otherwise participated in the persecution of any person because of race, religion, national origin, or political opinion?” INS Form N-400.
The Scarlet Witch’s involvement with HYDRA could seriously compromise her ability to become a US citizen. Gaining super powers from terrorists who attempted “purification” of people based on data analytics would be a red flag for an INS Agent. Being a member of a terrorist organization has been enough to prosecute someone for fraudulently applying for citizenship. United States v. Damrah (6th Cir. 2005) 412 F.3d 618, 621.
Ultron is a similar problem. Scarlet Witch might not have known Ultron’s goal was genocide of life on Earth, but she still wanted revenge on Tony Stark. It took the realization that Ultron was trying to destroy humanity for the Twins to switch sides to help the Avengers.
Helping save the world would be a huge mitigating factor for the Scarlet Witch’s application for citizenship. However, an immigration lawyer would have their work cut out for them in representing Wanda Maximoff.