Why the Sokovia Accords are Unconstitutional

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May 10, 2016

Captain America Civil War is an amazing super-hero movie. It is the model of how to have a large cast of characters in a film with action, humor, plot, and heart. The only thing it lacks is a Constitutional law. The gross civil rights violations are reason enough for Captain America to go rogue.

Spoilers Ahead!

The Sokovia Accords were an agreement between 177 countries to have an un-elected panel at the United Nations approve what missions the Avengers could go on. Super-heroes who refused to sign the accords that continued to take the law in their own hands would be prosecuted without a trial and imprisoned on the submersible Raft. While there are significant legal issues with super-heroes entering foreign countries without any legal authority, violating civil rights is not the sane answer to the problem.

There are massive legal issues with the Sokovia Accords. First, an accord is not a law, treaty, or Constitutional Amendment. Second, the United States cannot enact a law to willfully violate the rights of United States citizens. Sure, it can pass a law, but it will be Unconstitutional.

Just because 177 countries sign an agreement, that does not make it a law. To borrow from School House Rock, a bill has to go through both houses of Congress with a majority vote and be signed by the President to become effective. In case of a treaty, the Senate has to approve the treaty by a 2/3 vote (Article II, section 2). The treaty is not ratified until the instruments of ratification are formally exchanged between the US and signing foreign powers. There are incidents in history where the United States signed, but did not ratify a treaty, such as the Kyoto Protocol or Treaty of Versailles.

The United States cannot purposefully enact an Unconstitutional law. The Sokovia Accords appear to have elements of conscription if not outright impressment, with punishments ranging from internment to imprisonment without the Writ of Habeas Corpus. None of these “legal” safeguards on super-hero activity included any form of Due Process. The only way this international agreement could be worse is to throw in elements from the Indian Removal Act.

Treaties Cannot Violate the Constitution

The Sokovia Accords have all the charm of forcing US citizens into self-imposed exile to avoid internment or imprisonment. This should alert Senators to do their Constitutional duty to offer advice and consent on approving the Sokovia Accords, as they are very different from any other treaty entered by the United States.

Consider NATO for example. The North Atlantic Treaty Organization helped keep the peace during the Cold War. NATO is a mutual defense pack, but there was a concern that it would violate the Constitution. Congress has the power to declare war and a treaty mandating a military response if another nation is attacked infringes on Congress’ Constitutional duty to declare war.

Article 5 is the heart of the NATO agreement:

The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defense recognized by Article 51 of the Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area.

Any such armed attack and all measures taken as a result thereof shall immediately be reported to the Security Council. Such measures shall be terminated when the Security Council has taken the measures necessary to restore and maintain international peace and security.

All that is currently publicly available on the Sokovia Accords is the following:

In accordance with the document at hand, I hereby certify that the below mentioned participants, peoples and individuals, shall no longer operate freely or unregulated, but instead operate under the rules, ordinances and governances of the afore mentioned United Nations panel, acting only when and if the panel deems it appropriate and/or necessary.

The Sokovia Accords are the size of a phone book that mandate personal conduct. That is always a warning to anyone concerned about civil rights. Immediately the Sokovia Accords raise two huge issues: mandatory conscription and arresting citizens without Due Process.

Drafting of United States Citizens

The United States first enacted a draft in July of 1863 during the Civil War. Ironically, the states-in-rebellion held a Confederate draft before the United States. For the following 100 years, the United States held drafts in times of war, with President Nixon ultimately ending the draft. President Carter brought back mandatory registration for the draft in 1980. Under current US law, males must register for Selective Service as follows:

(a) Except as otherwise provided in this title, it shall be the duty of every male citizen of the United States, and every other male person residing in the United States, who, on the day or days fixed for the first or any subsequent registration, is between the ages of eighteen and twenty-six, to present himself for and submit to registration at such time or times and place or places, and in such manner, as shall be determined by proclamation of the President and by rules and regulations prescribed hereunder. The provisions of this section shall not be applicable to any alien lawfully admitted to the United States as a nonimmigrant under section 101(a)(15) of the Immigration and Nationality Act, as amended (66 Stat. 163; 8 U.S.C. 1101), for so long as he continues to maintain a lawful nonimmigrant status in the United States.

(b) Regulations prescribed pursuant to subsection (a) may require that persons presenting themselves for and submitting to registration under this section provide, as part of such registration, such identifying information (including date of birth, address, and social security account number) as such regulations may prescribe.

50 U.S.C. § 3802 (LexisNexis, Lexis Advance through Pl 114-146, approved 4/19/16).

The fact only men have to register for the Draft 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.

It is arguably within the President’s power to draft all of the male Avengers for military service. However, the purposeful selection of the Avengers would not be in an impartial manner under 50 U.S.C. § 3805. Moreover, as Steve Rogers served honorably between December 7, 1941 to September 2, 1945, he would not be eligible to be drafted. 50 U.S.C. § 3806(b)(1). Moreover, as all of the human male Avengers are over 26 years of age, they could not be drafted. 50 USCS § 3803(a).

As the Military Selective Service Act would likely fail drafting anyone with super powers, mandating super-heroes be registered and deployed according to the orders of an un-elected United Nations panel sounds a lot like involuntary servitude, which would violate the 13^th Amendment.

That was the cause of another Civil War.

Imprisonment in Violation of the US Constitution

As evidenced in Captain America Civil War, Sam Wilson, Clint Barton, Scott Lang, and Wanda Maximoff are all imprisoned on the Raft after the fight at the German airport. This is extremely troubling, as none of them were afforded their right to counsel, taken before a magistrate after being arrested, or even given a trial.

The estimated time to build the new class of aircraft carriers beginning with the USS Gerald Ford is 11 years at a cost of $10.44 billion ($36.30 billion for the entire program). Ship building construction times will likely decease with the following carriers, however the point is building a large ship takes years. The fact the Raft is fully operational submarine prison operated by the US Navy means the United States government had planned to build the Raft years before the events in Sokovia. This is highly suspect that such a large project was undertaken with the apparent purpose to violate the civil rights of US citizens.

The US government imprisoning US citizens on a submarine prison would deprive anyone accused of a crime of the following civil rights:

The writ of habeas corpus, which requires a person in custody to be brought before a Court;

The 4^th Amendment, which protects people from arbitrary arrests;

The 5^th Amendment, which protects people from being deprived of life, liberty, or property, without due process of law;

The 6^th Amendment right to counsel; and

The 8^th Amendment prohibition against cruel and unusual punishment.

The US Navy apparently is not underway with a Federal Judge, along with a US Attorney, and Federal Public Defender. This means those arrested are not brought before a judge pursuant to the writ of habeas corpus. In the case of the imprisoned Avengers, the fight at the airport arguably was done out of self-defense, because of the Unconstitutional enforcement of the Sokovia Accords, and the UN’s rush to judgment to have James Buchanan Barnes shot on sight instead of arrested. As Tony Stark was more into enforcing his will upon others, Constitutional rights were being ignored, justifying the fight between the Avengers. The accused should have had their day in court to argue their case, opposed to being locked away without a trial.

The lack of any form of trial would violate the 5^th,6^th, and 7^th Amendments to the Constitution. Moreover, was any form of Miranda issued? While some might say, “Hey, the Avengers were in Germany,” thus anything goes with civil rights, they would be wrong. Soldiers arresting terrorists still give Miranda warnings, because our system is the only one we know. We do not ignore it if it suits our needs for expediency.

Holding prisoners in a submarine is one of first impression. The United States has avoided prison ships, most likely because of the Revolutionary War Prison Ship Martyrs. For those not familiar with the history, 11,500 Revolutionary War Prisoners of War died on sixteen British ships used a floating prisons. These prison ships probably were Exhibit A to many of the Founding Fathers when the 8^th Amendment was drafted prohibiting cruel and unusual punishment.

The fact the [fictional] United States built a prison ship throws American history out the window, which would be the subject of lawyers willing to do battle for Wilson, Lang, Barton, and Maximoff in a court of law.

The Wrong Political Solution

Captain America Civil War has 177 governments take aim at super-heroes for the wrongs of others. While it is wrong for super-heroes to act without any regulation, the solution here does not make any sense. Let’s review the wrongs committed in the Marvel Cinematic Universe:

Iron Man: Obadiah Stane sold weapons to terrorists. This is all an inside job at Stark Industries, based on corporate greed. Where was Stark’s oversight?

The Incredible Hulk: The Abomination was created from Army experiment ordered by General Ross, which drove Emil Blonsky mad. If Blonsky had not been experimented on, Blonsky would not have forced Samuel Sterns to conduct the experiment upon Blonsky, which turned Blonsky into the Abomination (and Sterns into The Leader).

The Incredible Hulk: General Ross had SHIELD commit gross violations of 4^th Amendment by searching the CONTENT of all digital communications for Bruce Banner without a search warrant.

Avengers: SHIELD experiments allowed Loki to go to Earth

Iron Man 3: The Vice President of the United States participated in a criminal conspiracy to overthrow US government, which resulted in President Matthew Ellis being kidnapped for execution.

Winter Soldier: HYDRA grew within SHIELD and attempted overthrow of the Government by killing over 11 million Americans within minutes.

Age of Ultron: Tony Stark and Bruce Banner created the murder-bot Ultron.

The major themes from Marvel movies is threats come from secret government projects or Tony Stark. Civil War has these two problem creating forces come together to make a bad situation worse. If anything, there would be loud public outcry against the Elis Administration for an attempted coup d’etat by his own Vice President, followed by crashing helicarriers in the Potomac, and a failing city from the sky, because a US weapons manufacturer made a giant killing robot. President Ellis is destined to be a one term President given how much has gone wrong on his watch.

Captain America was right to take a stand against the Sokovia Accords. Literally no good could come from there. As for what is reasonable regulation of super-heroes, that has yet to be answered.

How Would You Defend Captain America After Marvel’s Civil War?

By

Sylvia La Rosa

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May 6, 2016

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Let me start by saying that if the United States were to try and prosecute the most patriotic super hero of all time I would, after passing the state bar exam, jump at the opportunity to be Captain America’s defense attorney. Think about it, Captain America is exactly what this country stands for, patriotism in every sense of the word. And I am not biased in my decision because of his actor counterpart. Although that would be nice too, it has nothing to do with my decision. Nonetheless, after acting as the prosecuting attorney in the Mock Trial of the Winter Soldier at San Diego’s Comic Fest 2016, I now get the chance to switch sides. I get to consider how I, as a soon to be (in 1 year hopefully) criminal attorney, would defend Captain America for the crimes he committed during the Civil War in the Marvel Universe.

I’m going to step into my prosecutorial shoes for a minute to lay out the charges I think he would be charged with; well, the charges I would try and get away with charging him with if I was the prosecuting attorney. Although there is no direct casualties openly admitted in the comic book other than Goliath’s death caused by Thor’s clone, it is a reasonable inference that there were civilians that died during the Civil War at the hands of either Captain America or a member of his team. I’m sure Iron Man plays a huge part in some of those deaths too but he’s not on trial in my hypothetical world. With that being said, Captain America would most likely be charged with multiple counts of murder even though his hands never touched a victim or caused a single murder.

captain-america-in-prison-or-even-dead-4-potential-endings-to-marvel-s-civil-war-570507 — From Marvel’s Civil War, issue 7.

18 U.S.C. §1111 defines murder as “the unlawful killing of a human being with malice aforethought.” In addition, it states “every murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing…is murder in the first degree.” The state would definitely try and charge Cap with multiple counts of murder but they won’t stop there.

They would charge him with, at minimum, eight more charges. They would try to charge him with:18 U.S.C. §1361 Destruction of Government Property, 18 U.S.C. §2385 Advocating Overthrow of Government, 18 U.S.C. §2332(b) Acts of Terrorism Transcending National Boundaries, Domestic Terrorism as defined in 18 U.S.C. §2331(5)(A), Assaulting, Resisting, or Impeding Certain Officers or Employees 18 U.S.C. §111, and Conspiracy to Commit Offense or Defraud the United States 18 U.S.C. §371. In addition, I would, as a prosecutor in the Marvel Universe, try and get a 10 year sentence enhancement by citing to 18 U.S.C. 521 and proving to the court that Captain’s acts under this section provide that he was involved in a criminal street gang as defined by the law and that they engaged in Federal felony crimes of violence within the past five years meeting multiple elements of this sentence enhancement. So as Captain America’s defense attorney, I would have my work cut out for me.

So where would I start? Well, I would fight the murder charges using an affirmative defense. Murder is essentially composed of three parts, (1) the killing of another human being; (2) by another human being; (3) who intended to kill the victim. However, in Civil War, Captain fails to intend to kill anyone. In fact, he gets angry with the Punisher for killing Goldbug and Plunderer despite the fact that these are “bad guys.” He even goes as far as directing his team to get rid of Punisher’s guns and “throw them in the incinerator.” Additionally, the law states it must be the killing of a human being by another human being. Technically, these guys aren’t even considered “human beings” by SHIELD agents or the government. They are consistently referred to as “super humans.” So does this even put them in the same legal category as human beings? The sentences they would face are not similar to that of a civilian. Their “jails” are even significantly different because if we placed them in a regular prison, they would escape easily. Therefore, I would start by fighting the murder charges by asking the court to consider the fact that a federal government agency does not address Cap as a “human being” but rather as “Super human”. Therefore, how could we hold him accountable for human crimes if the penalty we intend to give him is also not a “human being” consequence?

Let’s pretend I fail at this and am forced to use negating defenses. Then I’d use statutory interpretation to at least get the charges dropped to negligent homicide or 2^nd degree murder because the law defines 1^st degree murder as a “willful, deliberate, malicious, and premeditated killing.” According to the statutes use of the word “and” in reference to these elements, all of them should be present in the commission of the offense in order for the defendant to be charged with 1^st degree murder. In this case, none of the alleged murders committed were willful, deliberate, malicious or premeditated. At best, any murders that occurred during the Civil War were war casualties, negligent, and an accident justifying a charge reduction to 2^nd degree murder or negligent homicide because of the failure to meet the elements of 1^st degree murder. The necessary mens rea to commit murder is lacking in the commission of the alleged offense.

Another affirmative defense that can be used is self-defense. This might be the easiest one to prove because Cap was only defending himself from the relentless attacks of Iron Man, but unless Iron Man is the dead victim (YAY!) I doubt this defense would be efficient. Another fact that would work in Captain America’s favor would be that he never once fought back with greater force than what he was being attacked with. Cap met the battle against Iron Man with equal force and never more further proving that he had no intention of committing murder. This could be a mitigating factor that I would use in favor of Captain America if not to lower the charges or to convince a jury otherwise, then to get him the least possible sentence.

As for the charges of advocating to overthrow the government and domestic terrorism I would remind the court of history. In the Marvel Civil War events, SHIELD and the government wanted to have every “super human” registered for identification purposes and put into a boot camp where they are trained and their way of thinking or living is changed and molded into what the government wants from them. They would then be distributed across the nation in “super teams” of up to five super heroes and moved to a state of the federal government’s choosing, without having any say. Doesn’t this sound familiar? Let me refresh your memory to World War II Germany where every Jewish person had to register with the Nazi government for identification purposes, were put into internment camps, and Hitler’s government did with them as he pleased. How can the U.S. government and the court (in the Marvel Universe) punish Captain America, for fighting the very same thing that they themselves fought during WWII? How can they prosecute him for doing the exact same thing our leaders opposed of and fought against? This is for convincing purposes assuming he had a jury trial he was rightfully entitled to.

18 U.S.C. §2331(5)(A)(B)(i) defines domestic terrorism as “activities that involve acts dangerous to human life…appear to be intended to intimidate or coerce a civilian population…” If this is what Cap would be charged with then the same can be said about the government and their group of misfits and bandits that went out into the cities led by Iron Man supported by Federal agents from SHIELD. The acts they committed were also ones of domestic terrorism because their purpose was to intimidate and coerce not only the super human population but the civilian population as well. The use of violence and the witch hunt for super humans led by Iron Man instilled so much fear in the civilian population that he was approached by a mother whose little boy died because of his influence in the boys life. If anything, Cap is not guilty of domestic terrorism but instead guilty of trying to protect the rights and liberties of civilians and super humans alike.

As for the charges of acts of terrorism transcending national boundaries, 18 U.S.C. §2332(b)(1)(C) states that “the victim, or intended victim, is the United States Government, a member of the uniformed services, or any official, officer, employee, or agent of the legislative, executive, or judicial branches, or of any department or agency, of the United States…” Under this law, unless any of the civilian casualties were government employees this charge cannot stand against Cap.

18 U.S.C. §2332(g)(5)(A) defines a “federal crime of terrorism as an offense that is calculated to influence or affect the conduct of the government by intimidation or coercion, or to retaliate against government conduct…” Fighting this would not be easy because technically Cap’s acts were specifically that, in retaliation against government conduct, but it was conduct that even if the government in our real life nation tried to do, people would ban together to try and stop them. Essentially it’s like saying all left handed people have to register with the government so that they can be identified as such. Granted, voter registration in our society does just that but gives citizens the option to not identify themselves with any political party. The super humans that Cap was standing up for did not have an option or a say in any of the government’s acts.

Fighting the charge of destruction of government property might be the most challenging one. 18 U.S.C. §1361 states that the law prohibits actual physical damage or destruction of both real and personal property and states that whether the defendant knew or not that the property belonged to the United States is not something the prosecution has to prove because government ownership is “merely a jurisdictional fact.” Additionally, it states that title or possession by the United States is not a necessary element of this offense, as long as the property was being made for the United States. Let’s be realistic here. There is not a single person who is going to look at what remains after the Civil War and honestly and ethically say that no property was destroyed and the fact that title and ownership is not a necessary element of the offense makes this even more of a challenging rebuttal.

Lastly, I’m not sure if this plays a role at all in the trial but is Captain America on trial or Steve Rogers? In the comic, Steve Roger’s was arrested, not Captain America. Additionally, no one had to forcefully arrest him or fight him. Steve Roger’s willingly and very cooperatively handed himself over to law enforcement officials at the end of the Civil War. But it was not Captain America whom they arrested; it was Rogers. So technically, wouldn’t I have to defend the civilian Steve Rogers? If that were the case, I would have to change my arguments because he is being prosecuted as a civilian and not a “super human.” I don’t have time for that right now so I’m moving along.

The court in a case like this, even in the Marvel Universe, could go either way. There are many policy issues that would need to be addressed by Marvel legislatures that are out of the court’s control. Issues such as writing laws tailored specifically to the super human community holding them accountable for crimes they commit both in their performance as super heroes and in their time as civilians. The courts do not write law, the legislature does and in this case, the politicians in the Marvel Universe. The gravity of the damage and destruction this Civil War caused on the nation is immeasurable and defending Captain America would not be an easy task. It would take creativity and would have more likelihood of success if driven with strong policy arguments.

Thank you to Shawn Richter, photo credit credit Craig Bap at Cosplay Corral.

Overall, as Captain America’s hypothetical attorney, I would fight for him wholeheartedly armed with the knowledge that I’m not only fighting for Captain America’s freedom, but for the freedom of all super humans to live freely and with the same rights and liberties afforded to civilians. After all, these super humans protect the civilians in the Marvel universe in ways that no Marvel government agent ever could. Needless to say, I am TEAM CAPTAIN AMERICA all the way! If a lawyer puts on a trial armed with the facts and the law on their side but driven with their heart, they can convince anyone of their hero’s innocence. That’s exactly what I would do!

Back Pay for America’s Captain?

By

Christina McAmis

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May 5, 2016

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Steve Rogers reemerged from the grave and seems to have money to spend, can it be that he is receiving back pay for the years of military service after being declared missing in action (MIA)? According to the Army benefits website, “Soldiers designated with Captive, Missing, or Missing in Action (MIA) status are entitled to receive the pay and allowances to which entitled when the status began or to which the Soldiers later become entitled.”

Steve Rogers was declared MIA at the end of World War II where in the final days on or before April 18^th, 1945 he and Bucky were attempting to stop Barron Zemo’s a bomb-loaded drone-plane when the plane exploded. The explosion seemed to kill Bucky and launched Captain Rogers into the icy water of the English Channel. It was at this time that he entered into a state of suspended animation.

Captain America was declared MIA. According to the Department of Defense Rogers would have remained MIA until a board of inquiry or review recommended that he be declared dead. Department of Defense, Instruction Number 2310.05 January 31, 2000. In order for the board to recommend that he be declared dead they would need to find that credible evidence exists that Captain Rogers was dead or conversely that there is no evidence that he is alive. The military in control of the area when he went missing would need to have done a thorough search of the area and have filed a report.

There is an argument here that had they done a thorough investigation of the area surrounding the plane that exploded that they may have found his frozen body. But, depending on the depth that he sunk perhaps not. If all of the military protocols were followed and there was no evidence that he could possibly still be alive, and then the evidence suggest that he probably would not have survived the explosion then he could have been declared dead which would have led to a death benefit pay out to his next in kin. When he turned out to be alive any death benefit payout would be an offset to his back pay. A death benefit payout would not stop the back pay from accruing nor would it bar any possibility of receiving the back pay. There have been instances where someone was thought to have been killed in action and then has been recovered and they have received their back pay.

Determining that Captain Steve Rogers is entitled to some back pay is fairly straight forward. He was declared MIA; I believe that the Government would want to leave him categorized as MIA so as not to kill an American Icon for the war effort. They could conceivably to this as there has been no conclusive evidence of his death. Even had he been determined to be deceased his next in kin would have received a lump sum payment, however upon his return the amount paid out would just be offset in his back pay. The more difficult part is determining how much pay he is entitled to.

Many theories and articles already exist about how exactly to calculate the amount. They are based and founded on the documentation of what soldier’s earned in WWII. Many of the calculations include promotions as well as hazard pay, and even special skills pay. In some instances, the person calculating has gone as far as to have added inflation. I would argue however, that Captain America was not on the regular military pay or promotion track. He was a volunteer who received the “Super-Soldier” serum which allowed him to enlist. The military gave him a special shield and made him an icon. I’m not sure what promotion could be given to Captain America, truly. Go on give it a try, General America just doesn’t have the same ring to it.

One thing that all of the articles have in common is that Steve Rogers is entitled to at least a million dollars. No matter how conservative you are with your numbers, with simple interest it is not difficult over 65+ years of back pay to rack up a million. That being said, some of the higher estimates of 6 to 8 million may be a bit on the Captain America fan club groupie side of the pay scale. The U.S. Government loves Captain America but they aren’t going to be in love with an 8-million-dollar payout to one soldier. Even if he is “Super”.

The issue of suspended animation is also a situation of first impression. The U.S. Government could easily use this situation to lower the amount of back pay owed. An argument could be made that suspended animation is equivalent to death and that his back pay would have been suspended from the moment he was in suspended animation. I would assume however that the outcry from veterans and the general population at large if Captain America was treated poorly would lead the Government away from this avenue, especially as he is still working with S.H.I.E.L.D.

Steve Rogers also says that he “can’t afford an apartment in Brooklyn”, indicating that he certainly isn’t receiving the higher estimates of back pay. It would seem although Captain America doesn’t seem on the brink of needing government assistance that he also is not going to be joining the billionaire club with Tony Stark anytime soon.

May the 4th Be With You!

By

Josh Gilliland

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May 4, 2016

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It’s time to geek out for Star Wars Day. Attorneys Jessica Mederson, Megan Hitchcock, Roger Quiles explore the following legal issues in Star Wars:

Did Kylo Ren commit desecration of a corpse in displaying Darth Vader’s helmet in a shrine? Would it matter if Anankin Skywalkers body became one with the Force?

Can Rey be the legal owner of Luke’s original light saber?

What would be the punishment on Earth for Jyn Erso crimes of Forgery of Imperial documents; Possession of Stolen property; Aggravated assault; Resisting Arrest?

Megan also shares her stores from running in the Star Wars Half Marathon Race to the Dark Side at Disney World. Check out the medals Megan took home from Orlando.

Captain America and The Sin of Hearsay

By

Josh Gilliland

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May 3, 2016

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Captain America has faced many foes. In the Trial of James Buchanan Barnes, that foe included a video of the Red Skull’s daughter Sin making the following statement:

“It was all a trick… A Set-Up… No idiot, Barnes was my father’s operative for years… They claim he was brainwashed, but it was a lie…The Russians just TURNED him. Him saving the President, claiming redemption…it was a fake…Daddy didn’t want his own President…he wanted his own Captain America.”

Captain America No. 613, February 2011.

Could the Prosecution offer this statement on video as evidence of Barnes’ guilt?

Admissibility is the shield for juries to ensure the truth is presented in a trial. Evidence is admissible if the following is satisfied:

Relevant:	FRE 401: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action. FRE 402: Irrelevant evidence is not admissible.
Authentication:	FRE 901: To satisfy the requirement of authenticating or identifying an item of evidence, the *proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.*
Undue Prejudice:	FRE 403: The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: *Unfair prejudice; Confusing the issues; Misleading the jury; Undue delay; Wasting time; Needlessly presenting cumulative evidence*
Hearsay:	FRE 801: Out of Court Statement offered for truth of the matter asserted.
Original Writing:	Fed Rules Evid R 1002: An original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise. Fed Rules Evid R 1003: A duplicate is admissible to the same extent as the original unless a genuine question is raised about the original’s authenticity or the circumstances make it unfair to admit the duplicate.

Relevance

The Prosecution could argue that Sin’s video “confession” is relevant, because it goes to show James Buchanan Barnes was a traitor, not someone who was brainwashed.

The Defense would argue that the video irrelevant, because the video is only of Sin making an uncorroborated statement about two other people (her Nazi father and James Barnes). Her statement is not an admission by Barnes. Making a statement against someone else’s interest does not make it true; it is only defamation.

Authentication

Authenticating the video would require the Prosecution to demonstrate the video is what it purports to be. This means that a Court “need not find that the evidence is necessarily what the proponent claims, but only that there is sufficient evidence that the jury ultimately might do so.” U.S. v. Safavian, 435 F. Supp. 36 (D.D.C. 2006).

The Court would make the Prosecution go through a Danger Room of authentication to ensure the video is accurate. The first stage is demonstrating the video was true, competently recorded, and free of any editing (see U.S. v. McMillan (8^th Cir. 1984) for audio recordings).

The second stage is to prove the speaker is Sin. Federal Rule of Evidence 901(b)(5) states that: “Voice identification is adequate if made by a witness having sufficient familiarity with the speaker’s voice.” Familiarity may be obtained previous to or after listening to the recorded voice.

The big question: who could testify for the Prosecution as to the authenticity of the video?

Unfair Prejudice

Let’s be very clear: A Would-Be Nazi Queen saying your client are a traitor is extremely prejudicial to your client’s reputation while they are on trial for treason.

Federal Rule of Evidence Rule 403 is not the “Bucky Rule” of Admissibility, however, it would be heavily relied on by the Defense. Courts may exclude evidence if “its probative value is substantially outweighed by a danger of one or more of the following: Unfair prejudice; Confusing the issues; Misleading the jury; Undue delay; Wasting time; Needlessly presenting cumulative evidence.

A video with a convicted terrorist accusing Barnes of treason on its face causes unfair prejudice and arguably misleads the jury. What evidence does Sin have of Barnes’ guilt? Did she witness it? Moreover, how can she testify to what the Red Skull wanted? Her entire statement is purely speculation that accuses Barnes of guilt.

Witnesses cannot be impeached based on a hearsay accusation that they committed a crime, because a hearsay accusation of guilt has little logical relevance to the witness’ credibility. State v. Cox (1983) 298 Md. 173, 181. In Captain America’s case, a third-party hearsay statement accusing Barnes of committing treason is far more prejudicial than simply impeachment, because it goes to the ultimate issue of guilt.

Hearsay

Sin’s recorded statement should never see the inside of a courtroom because it is hearsay without any exception or non-hearsay purpose. Hearsay is an out-of-court statement offered for the truth of the matter asserted. Fed Rules Evid R 801(c)(1) and (2). In this case, that is 1) The Russians turned James Buchanan Barnes into a traitor; and 2) Barnes was the Red Skull’s Captain America.

Valid hearsay exceptions include party admissions and co-conspirator statements. In Sin’s statement, Barnes by definition is not the speaker. Sin is also accusing Bucky of being part of a conspiracy, which is NOT the same as being part of a conspiracy. A declarant cannot bootstrap someone into the co-conspirator exception through an accusation of guilt. There has to be evidence that Barnes was part of the same conspiracy as Sin in order to connect the wheels and spokes of the purported conspiracy.

The Prosecution could argue the statements were made to psychiatrist, thus were made for the purpose of medical treatment, and thus would be admissible. That is a stretch of the Rule, because accusing a third-party of treason has nothing to do with her medical treatment. Sin’s accusation would be forcefully attacked on cross-examination if Sin was available to testify at trial, which again highlights the reason we have a hearsay rule in the first place.

Closing Argument

The trial of James Buchanan Barnes had excellent cross-examination of Prosecution witness to impeach each of them. That being said, motion in limine hearings are exciting to attorneys, but not necessarily to all comic book fans. At the Mock Trial of the Winter Soldier at San Diego Comic Fest, the Defense brought a motion in limine pursuant to Federal Rule of Evidence Rule 403 to exclude the “security footage” from the Winter Soldier killing SHIELD airmen at the Battle of the Triskelion. The audience paid extremely close attention to the hearing. The law students did extremely well, with the Judge ultimately ruling for the Prosecution to allow the “security footage.”

Sin’s “confession” was never introduced at trial in the Captain America story arc from 613 to 615. However, it is unlikely the Judge would have allowed the evidence because it is hearsay and its prejudicial effect.

The Unlucky Story of Bucky, the World’s Oldest Prisoner of War

By

Kean Zimmerman

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May 2, 2016

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With Captain America: Civil War coming out, Cap fever is in high gear. The movie will hopefully answer many of the questions we still have on exactly what happened to Bucky during the events between Captain America: The First Avenger, and Captain America: The Winter Soldier. One such question will be whether or not Bucky is viewed as a prisoner of war, or a feared terrorist. While it became fairly clear during the events of CATWS that Bucky was under some form of control by Hydra, this is a presumption conveniently presented to the audience. In the Marvel Universe however, Bucky’s culpability for his actions is a very contested issue. While there are likely few witnesses who can attest to Bucky’s good character, there are dozens that could attest to seeing the Winter Soldier attacking Captain America, Falcon, Black Widow, and multiple S.H.I.E.L.D agents. To even begin to answer this, we must first decide what Bucky’s military status is.

What is a POW?

POW, or “prisoner of war,” is a term that has been around since the 17th century. In many instances, enemy combatants were simply executed. However, although some countries were already holding prisoners, more countries began utilizing the POW model after the promulgation of the Geneva Convention. A POW is defined under the convention as a member of the armed forces who has fallen into the power of the enemy. Under the convention, POWs have certain rights and their captors are obliged to provide a certain level of humanitarian care.

In a deleted avengers clip, Steve Rogers comes across Bucky’s personnel file, which indicates that he was considered MIA, or “missing in action.” Given that the last time Bucky was seen he was falling off a moving train into an icy ravine, it’s almost surprising that he was listed as MIA and not killed in action (KIA). MIA still seems like a fitting description. Normally most soldiers listed as MIA have their designation changed to KIA after a certain amount of time has passed. Bucky would be among the 73,000 Americans reported as unaccounted from World War II.

Photo found at http://marvelcinematicuniverse.wikia.com/wiki/Winter_Soldier.

No one would think he was a POW without having some knowledge as to where he went. He was not reported as being seen by anyone before he was taken in by the former Soviet Union, who at the time of World War II was our ally. At the time of the war, the Soviet Union was not an enemy, but Hydra certainly was. If the Soviet Union government, commingled with Hydra, took possession of Bucky, then there might be an argument that Bucky was a POW being held by an enemy combatant. This becomes less of a sticking point during the Cold War, when the Soviet Union would be our enemy. According to the Defense POW/MIA Accounting Agency, there are still 126 service members who are unaccounted for from the Cold War. There is no legal distinction for allies that become enemy combatants, that then become allies again. This might not matter though if we consider that Bucky is being held by Hydra as part of the Soviet Union.

Unlawful Combatant v. Enemy Combatant

The United States has been fighting Hydra since World War II. Although the United States (including Steve Rogers and the Howling Commandos) were fighting them, Hydra itself does not exist as a nation state, thus the laws of the Geneva Convention are not applicable. This means that soldiers fighting under Hydra would be considered unlawful combatants, or people engaged in armed conflict in violation of the laws of war. In this way, soldiers being held by Hydra would still have POW status, while the same would not be said of Hydra soldiers held by the United States. Bucky would have the protections of humane treatment under the Third Geneva Convention, but Hydra soldiers being held would not be afforded those same protections.

Although Hydra had infiltrated the Soviet government (and many other governments for that matter) the choice to hold him was one made by that government. As such, they would be responsible for the humane treatment of Bucky while holding him. It is probably a safe assumption that forced brainwashing, electrocution, and repeated freezing do not constitute “humane” treatment.

Russia would also be responsible for violating Article 118 of the Geneva Convention for not releasing and repatriating Bucky “without delay after the cessation of active hostilities.” President George H. W. Bush and Mikhail Gorbachev declared the Cold War over on December 3, 1989 at the Malta Summit. The fact that Bucky was not repatriated from 1989 to 2014 would suggest there was definitely some delay.

Was Bucky a Prisoner?

Obviously a significant issue with Bucky is whether or not he actually was a prisoner in the true sense of the phrase. Arguably, he was not since he was only confined for certain periods of time. He left his cryogenic chamber intermittently to carry out missions for Hydra. This does not make him seem like a prisoner, but at this time he was also being brainwashed and subject to electrocution if he disobeyed orders. This is analogous of prisoners whom are instructed to read propaganda messages for terrorist groups. The POWs usually comply to this to prevent personal harm unto themselves. Bucky was arguably complying with Hydra’s demands in order to prevent himself from receiving continued torture.

Certainly then someone will argue that he had the training (he was a highly skilled assassin) in order to leave Hydra and escape, but at this point he was brainwashed such that he didn’t even know who he was. The necessary free thought to escape would have been beyond his capabilities. In this sense, he was a prisoner to Hydra and the Soviet Union both physically and mentally.

Can Bucky Sue?

After all of this, we would wonder whether or not Bucky can recover at the hands of the Russian government, as successors to the Soviet Union. Since the United States government is likely not going to back Bucky in this endeavor, he will do the most American thing he can. Sue them! In a courtroom version of the miracle on ice, he will try to defy the odds and best the successors of the Soviet Union. This may prove to be more difficult than it seems.

Take for example the hostages from the Iran hostage crisis. According to CNN, most of those individuals have yet to see any money from their endeavor, despite this having occurred over 30 years ago. This is in part due to treaties which indemnify Iran from legal suits. Previously a bill in congress is being pushed along which would grant some relief to these captives. The legislation did successfully pass and was signed into law on December 18, 2015. The only reason such a bill exists is because the government foreclosed those victims from the ability to seek relief through suit. Even if the hostages wanted to sue the Iranian government, they would be unable to because of the treaties. Although Bucky may want to sue the more visible Russian government (as successor to his Soviet Union captors) the United States government does not often back these suits since they might interfere with current foreign policy relations. This is already seen in the case of POW forced labor suits against private Japanese corporations. Although the soldiers who provided forced labor to these corporations are not actually suing the Japanese government, United States courts still hold that these suits are impermissible as violative of the peace treaty with Japan.

Even without those treatises, bringing suit can still be difficult. In the case of terrorist suits, there is no direct person to serve. In lieu of that, some parties have resorted to suing banks with funds tied to terrorists, reported Israel National News. It will be interesting to see how this plays out. Technically Bucky could try to sue parties which provided funding to Hydra (such as national banks), but that inquiry would be heavily burdened by discovery given the deep infiltration of Hydra.

Photo found at http://screenrant.com/wp-content/uploads/Captain-America-2-Official-Photo-Winter-Soldier-Sebastian-Stan-close-up.jpg.

Conclusion

In the end Bucky is in the unenviable position that even on the off chance he is considered a POW, and his Soviet/Hydra captors are considered enemy combatants, foreign relations interests may prevent him from recovering after his half-century long torture debacle. Even if he could recover, Bucky has gone from being imprisoned behind the Iron Curtain, to going toe-to-toe with the Iron Man. In no short order, Bucky will leave his imprisonment only to be “reigned in” by another group. Not only is Bucky certainly unlucky, but his circumstances are downright oppressive. At this rate, the Winter Soldier is in for a cold reception both from team Iron Man, and the United States Justice system.

An Inhuman Dopamine Defense

By

Josh Gilliland

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April 27, 2016

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The Inhumans on Agents of SHIELD have a serious problem: the Inhuman Hive can infect any Inhuman, effectively turning them into his personal flying monkeys. Hive effectively makes Inhumans loyal to him through a viral infection that stimulates dopamine in the brains of his victims. Since the former Grant Ward is one creepy ancient alien, his apparent goal for world domination is to turn all of humanity into Inhumans, activating the Inhuman genes within the population with Terrigen Crystals, and turning all of the world into his personal flying monkeys. Since Terrigen is involved, that could be a literal threat.

Could the Inhumans infected by Hive argue the insanity defense if they are eventually cured? For this argument to be successful, the Inhuman Defendants would have to show 1) they had a severe mental disease or defect; and 2) As a result, they unable to appreciate the nature and quality or the wrongfulness of his acts. (See, Model Jury Instruction for the Insanity Defense for the 9th Circuit).

Medical evidence would show the Inhumans had a mental disease from the virus within their brains. This infection caused an undue influence on them, thus impairing their judgment, thus they did not know the wrongfulness of their actions.

There are some problems with this defense, as evidenced with Daisy confronting Fitz. Daisy physically assaulted Fitz and verbally threatened him to not follow her. This shows that she did at least understand her actions could harm Fitz and made the threat against him (and by extension all of SHIELD). This shows some knowledge of right from wrong.

The defense of “involuntary intoxication” might be a stronger defense than the insanity defense. Expert testimony in prior cases has explained the effect of medication on the brain’s neurochemistry as follows:

…[T]he level of dopamine in the brain affects a person’s behavior and “probably has one of the most profound effects on human emotion and behavior.” Increases in dopamine can cause one to “feel more agitated, irritable, anxious, sleepless; keep turning it up and up you can get manic; keep turning it up and up you can get psychotic.”

United States v. MacDonald (C.A.A.F. 2014) 73 MJ 426, 432.)

Involuntary intoxication has a two-part test: 1) Involuntary ingestion of an intoxicant; 2) Due to this ingestion, defendant was unable to appreciate the nature and quality or wrongfulness of his acts. MacDonald, at *437.

Hive’s influence on Inhumans would require a hybrid defense between the insanity defense and involuntary intoxication, because Hive IS the intoxicant. The defenses are substantially different, but so is the effect of Hive on Inhumans. The infected parties undertake actions due to their dopamine levels, which cause a change in personality. This defense likely would be successful, but would expert testimony to explain how Hive impacts the neurochemistry of the Inhuman brain.