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WandaVision asked an ugly question: Was Director Tyler Hayward of SWORD justified in ordering a drone strike on Wanda Maximoff for holding nearly 4,000 people against their will in the Hex?
There is a strong argument for YES.
Wanda’s Crimes Against Westview
The first part of the analysis is understanding the crimes Wanda Maximoff was actively committing at the time Director Hayward ordered the drone strike.
The first is the False Imprisonment of 3,892 people. New Jersey defines False imprisonment as “…a disorderly persons offense if he knowingly restrains another unlawfully so as to interfere substantially with his liberty.” N.J.S. § 2C:13-3.
Wanda falsely imprisoned 3,892 people. If she had been charged and convicted of the crime, she could be facing approximately 1,946 years in jail and a fine of $3,892,000.
The second is Kidnapping of 3,892 people. New Jersey defines kidnapping as follows:
A. Holding for ransom, reward or as a hostage. A person is guilty of kidnapping if he unlawfully removes another from the place where he is found or if he unlawfully confines another with the purpose of holding that person for ransom or reward or as a shield or hostage.
B. Holding for other purposes. A person is guilty of kidnapping if he unlawfully removes another from his place of residence or business, or a substantial distance from the vicinity where he is found, or if he unlawfully confines another for a substantial period, with any of the following purposes:
(1) To facilitate commission of any crime or flight thereafter;
(2) To inflict bodily injury on or to terrorize the victim or another;
(3) To interfere with the performance of any governmental or political function; or
(4) To permanently deprive a parent, guardian or other lawful custodian of custody of the victim.
N.J.S. § 2C:13-1.
Wanda held 3,892 people to facilitate the commission of a crime, specifically false imprisonment to play out her fantasy world. There is an argument she was also terrorizing her victims, but she might not have been knowingly causing that harm.
Use of Force on the Scarlet Witch
Lethal Force is justified when an officer “has probable cause to believe that the suspect poses a serious threat of physical harm, either to the officer or to others.” Wells v. City of Chattanooga, Tennessee, Civil No. 1:09-CV-219, at *9-10 (E.D. Tenn. July 14, 2011). Moreover, when a suspect has taken hostages, the suspect have demonstrated a propensity for violence and unpredictability. Clay v. Williams, No. 17 C 6461, at *24 (N.D. Ill. May 31, 2020).
Wanda placed an entire town under an energy field that altered reality to suit her fantasy of a domestic life based on classic sitcoms. While there is debate over at what point Wanda went from having a nervous breakdown from her personal loss to knowingly holding nearly 4,000 people against their wills, Director Hayward could argue there was probable cause he believed Wanda to be a serious threat of physical harm to others.
Would firing on Wanda been a good idea? There is a strong argument for “No,” because it was unknown what would happen to the Hex if Wanda was killed and if that would have harmed the Wanda’s victims. While there is justification to fire on Wanda, the wildcard of endangering the lives of everyone in the Hex would argue against taking the shot.
“Crimes Against the Sacred Timeline.” What exactly does that mean? Would a 7 year old understand what was happening to them if charged with such a crime?
In the Loki episode “Nexus Event,” we learned that the TVA entered Asgard and arrested the young Loki, future Sylvie, while she was playing with a Viking ship, presumably Asgardian soldiers, and a wolf (possibly Fenrir) and stated in game play that they had saved Asgard. Loki’s playtime was interrupted by the TVA placing her under arrest for “Crimes Against the Sacred Timeline.” She was forcibly taken from her home (and unknown to her parents) to be put on trial.
There is a lot wrong with that.
Arresting Children
Texas [naturally] has specific code sections on arresting children. A police officer can arrest a child if there is probable cause the child has engaged in 1) penal code violations; 2) delinquent conduct indicating a need for supervision; or 3) probation violations imposed by a juvenile court. 54.01. Tex. Fam. Code § 52.01(a)(3)(A), (B), and (C).
Federal law requires that when a juvenile is arrested, the arresting officer “shall immediately” tell the child of their legal rights in language they can understand AND immediately tell the juvenile’s parents, guardian, or custodian, that the child was taken into custody. 18 U.S.C. § 5033. This is code for “Give the kid Miranda rights in terms they can understand.” This is because it is radically unjust to deny a child their human rights.
None of that happened with Loki. Safe bet Odin and Frigga would not have been ok with fascist time cops arresting their child to be sentenced to nonexistence.
Loki on Trial
A child must be competent to stand trial, which requires them to be able to consult with their lawyer and assist in preparing their defense. If a court has doubt the child is competent, the proceeding is to be suspended. Cal. Welf. and Inst. Code § 709.
Would young Loki be competent to stand trial? She would understand she was taken from her home, but would be totally clueless on the TVA, the charge against her, and if she even had a defense attorney, would have a hard time assisting in her defense. Not because she was not bright, but because there is a significant “What the Hell is Happening” factor with being “arrested” by the TVA.
Legality for Executing Children
Civil society is horrified at executing children. The United States Supreme Court has held that children are constitutionally different from adults for the purposes of sentencing, because children have diminished culpability and greater prospects for reform. Miller v. Alabama, 567 U.S. 460, 471, 132 S. Ct. 2455, 2464 (2012) [citations omitted]. Children are still developing their character and are more vulnerable to negative influences (code for bad home life or mass incarceration). Id.
If a state is going to execute a minor, “great care must be taken to ensure that the minor truly deserves to be treated as an adult.” Burger v. Kemp, 483 U.S. 776, 824 (1987). There must be a specific inquiry on the “age, actual maturity, family environment, education, emotional and mental stability, and . . . prior record” in determining a minor’s criminal culpability. Id.
What did Loki do to get arrested? Play with toys and want to be the hero? Save the day? That does not scream death sentence. It does offer a spin on the Pygmalion Effect, that if you treat someone as a villain, she will become one.
Friday, November 26 @ 730pm- Ghostbusters: Law for the Afterlife
Saturday, November 27 @ 100pm – A Lawyer’s Holiday Special
2:30 pm in ROOM 709 Journey to the Lower Decks for strange new worlds of legal analysis with The Legal Geeks! Defending First Officers who turn into zombies and vengeful gods with the insanity defense! Just what is the liability for creating the murderous hologram Badgey? Can senior officers send ensigns out to run personal errands? And let’s not forget the penalties for disobeying lawful orders. Join our panel of lawyers for their analysis of Star Trek Lower Decks.
2:30 pm in ROOM 709 In Wandavision, Wanda subjected an entire town into her sitcom-oriented alternate reality. In this panel, we put Wanda on trial. Is she guilty of kidnapping? Torture? Copyright infringement? Is mind control a crime even if you don’t know you are doing it? Or was she simply protecting herself in the only way she could? Is Vision liable as an accessory to the crimes? Our panel of legal experts (including Phil Weiser, the Attorney General of Colorado) discuss and debate the issues. Panelists: Bethany Bengfort, Durie Tangri LLP Nari Ely, Durie Tangri LLP Josh Gilliland, The Legal Geeks, Mollybeth Kocialski, US Patent & Trademark Office Mark Lemley, Stanford Law School Phil Weiser, Attorney General.
1:30 pm in ROOM 709 The Classic Universal Monsters set the gold standard for horror films. These movies also raise great legal issues. Could Frankenstein’s Monster be legal competent to stand trial for the death of Little Maria? Is the Wolf Man a Peeping Tom? Would the Creature from the Black Lagoon be an Endangered Species? Is it desecration of a corpse to bring a mummy to life? Join our panel of lawyers to find out the answers to these monstrous legal issues. Presented by The Legal Geeks.
My career has entailed a substantial amount of document review, blog posts, articles, and presentations over the years. I also have done hundreds of webinars and podcasts. Finding a comfortable chair has been hit and miss, so when E-WIN contacted me about reviewing one of their E-WIN gaming chairs, I was more than interested.
What I Like about the Knight Series Chair
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While not as fun as playing video games, I have conducted a substantial amount of document review to identify deposition exhibits in the E-WIN. I found the back support really effective at helping me maintain good posture while constructing searches and issue coding hits.
I have used the chair for both video livestreams and podcasts. I absolutely prefer the comfort and design of the Knight Series over my old chair, using a bar stool, or kitchen chair to record.
The E-WIN has improved my home office and I would like to get one for my firm.
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Wolf in the Fold is a Star Trek TOS episode that highlights 1) Dr. McCoy is not a psychologist; and 2) lessons in the insanity defense for possession by a disembodied non-humanoid entity.
Scotty Kept Killing Ladies
The relevant facts from the episode include Captain Kirk and Dr. McCoy taking Lt. Commander Montgomery Scott on “therapeutic shore leave” on the hedonistic planet Argelius II, because Scotty developed a total resentment of women after being injured in an explosion caused by a female crew member on the USS Enterprise. Dr. McCoy’s prescription for Scotty was to go to a planet that was a giant red light district. Tabling if this means Dr. McCoy barely passed psychology in med school, our heroes went to a gentlemen’s club where they set Scotty up with a belly dancer named Kara.
Scotty and Kara went for a walk in the fog, while Kirk and McCoy venture to another part of town. After a sudden scream, Scotty was found holding a knife over the body of Kara who had been stabbed multiple times. In the course of the investigation, two other women are killed: Lt. Karen Tracey, while administering an exam with a “psycho-tricorder” on Scotty; and Sybo, the wife of the planet’s leader Prefect Jaris. Sybo was killed during a seance called an Argelian empathic contact, where she identified an entity with an undying hatred of women named Redjac.
Redjac turned out to be Jack the Ripper, a disembodied non-humanoid entity that possessed people in order to kill orders to fed off their fear.
The Insanity Defense
Proving Lt. Commander Montgomery Scott was not guilty by reason of insanity would require showing that he 1) had a severe mental disease or defect; and 2) as a result of that defect, was unable to appreciate the nature and quality or the wrongfulness of his acts. 18 U.S.C. § 17.
There are no reported insanity defense cases of disembodied non-humanoid entities taking control of an individual and causing them to murder others. Sadly, there are insanity defense cases where the victim was stabbed to death. In one case, the trial court refused to allow a jury instruction for the insanity defense. The trial court was reversed, because the defendant had submitted substantial evidence from which a reasonable jury could conclude that “at the time the crime [was] committed [Defendant] suffered from such a diseased or deranged condition of the mind as to render [Defendant] incapable of knowing the nature and quality of the act . . . [or] distinguishing between right and wrong in relation to that act.” State v. Luerkens, No. 15-2188, at *10 (Iowa Ct. App. May 3, 2017). This evidence included expert testimony that the defendant was suffering from clinical depression and evidence that the defendant did not have memory of killing the victim. Luerkens, at *3-5.
In the case of Scotty, there is clear and convincing evidence of insanity. In the hearing held aboard the Enterprise, the medical devices confirmed Scotty was being truthful when he claimed not to remember what happened to Kara and Lt. Tracey. Moreover, the crew was able to establish the existence of Redjac, which transferred itself to the ship’s computer and briefly possessed Prefect Jaris. This is ample evidence to show that Scotty had a mental defect due to possession and did not understand the wrongfulness of his action while possessed by the entity Redjac.
As for the death of Sybo, it was established that Redjac killed her while in possession of another person, not Scotty.
The larger issue of needing counseling for his PTSD from an explosion and then killing two women under the control of Jack the Ripper is never addressed, but does highlight the need for having licensed mental health professionals onboard starships.