Does the Black Panther Have Diplomatic Immunity?

By

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May 21, 2016

T’Challa is a very busy new King of Wakanda in Captain America Civil War. While on a diplomatic mission to sign the Sokovia Accords in Vienna, a terrorist attack killed Prince T’Challa’s father, King T’Chaka. The young King T’Challa set out as the Black Panther to avenge his father’s death with the goal of killing James Buchanan Barnes, the suspect of the attack.

The Black Panther hunted and attacked Barnes in Germany, fought with the warring Avengers at the Berlin airport, and followed Iron Man from international airspace to Siberia. Could Germany and the Russian Federation prosecute King T’Challa for trying to avenge his father’s death within their countries?

There is no question that within Wakanda the doctrine of sovereign immunity, or in T’Challa’s case, crown immunity, would protect the King from any liability for his super-hero activities. However, when a King is conducting raids in another country, the doctrine that “the king can do no wrong” is turned sideways.

Wakandan attorneys could argue that King T’Challa’s actions as the Black Panther are protected by diplomatic immunity. The Vienna Convention on Diplomatic Relations, based the concept of diplomatic immunity from the UN Charter, further the principles of “sovereign equality of States, the maintenance of international peace and security, and the promotion of friendly relations among nations.” USCS Vienna Diplomatic. The treaty specifically states that:

Believing that an international convention on diplomatic intercourse, privileges and immunities would contribute to the development of friendly relations among nations, irrespective of their differing constitutional and social systems,

Realizing that the purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions as representing States,

USCS Vienna Diplomatic.

In the event Wakanda signed the Vienna Convention on Diplomatic Relations, there is an argument for the actions in Germany, but it is problematic.

The Vienna Convention on Diplomatic Relations is an agreement between countries to do exactly what its name says: Establish “diplomatic relations between States, and of permanent diplomatic missions, takes place by mutual consent.” USCS Vienna Diplomatic, Article 2.

Diplomatic missions consist of the following:

(a) Representing the sending State in the receiving State;

(b) Protecting in the receiving State the interests of the sending State and of its nationals, within the limits permitted by international law;

(c) Negotiating with the Government of the receiving State;

(d) Ascertaining by all lawful means conditions and developments in the receiving State, and reporting thereon to the Government of the sending State;

(e) Promoting friendly relations between the sending State and the receiving State, and developing their economic, cultural and scientific relations.

USCS Vienna Diplomatic, Article 3.

King T’Chaka would have been the “head of the mission” representing Wakanda at the signing of the Sokovia Accords in Vienna. USCS Vienna Diplomatic, Article 1. Prince T’Challa would have been a “member of the mission.” Id. However, after King T’Chaka’s death, T’Challa would have been elevated to both head of state and the head of the mission. Going out to find James Buchanan Barnes arguably could fall under Article 3 of the Vienna Convention of diplomatic missions of, “protecting in the receiving State the interests of the sending State and of its nationals, within the limits permitted by international law.”

This is not a strong argument, as a world leader suiting up to physically capture a criminal suspect, is NOT a diplomatic mission envisioned by the treaty. It also smacks of individual motive of avenging a father and less of the state interest to seek justice for the fallen King. Moreover, it would run completely counter to the Sokovia Accords intent to approve all super-human activities.

The Black Panther engaging in activities that fall somewhere between law enforcement and espionage is one to give foreign governments pause. For example, in the United States diplomatic immunity is conditioned on the State Department being notified of foreign officials appointed by their government to diplomatic missions in the United States, pursuant to Article 10 of the Vienna Convention. Vulcan Iron Works, Inc. v Polish American Machinery Corp. (1979, SD NY) 479 F Supp 1060.

Wakanda did not notify the Federal Republic of Germany or the Russian Federation that T’Challa would enter their countries on a “diplomatic mission” to capture the suspect in the murder of King T’Chaka. As such, neither country likely would endorse the actions of the Black Panther, but neither would likely push the international incident. After all, who would think it is a good idea to prosecute a world leader trying to stop international terrorism? The leaders of Germany would look weak by comparison for their failure to capture Barnes; the Russians obvious to a secret HYDRA base with Winter Soldiers waiting to be activated. Neither are good PR days for press secretaries.

This raises an interesting question: would Putin not want to be outdone? Would he commission a bear costume, complete with red cape and Ushanka, and start calling himself Vlad-bear, to make himself look intimidating at summits?

Iron Man’s Child Endangerment of Spider-Man

By

Josh Gilliland

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May 14, 2016

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Tony Stark entered a new world of liability in Captain America Civil War. No, not a products liability case for building another murdering robot. No, not a 1983 action for holding super-heroes in a submarine prison in violation of their civil rights. This time, Tony took a minor out of the United States, without a passport, to fight other super-heroes, in Germany. Does this mean Tony Stark committed child endangerment of Peter Parker?

Sure, Peter Parker is Spider-Man, but Pete is also a high school student and a minor. Did Tony have Aunt May sign a permission slip? Or consent for medical treatment if Peter was hurt? Did Tony explain all of the possible risks to Aunt May of fighting Captain America, Bucky, Falcon, Ant-Man, or the Scarlet Witch?

Tony Stark met with Peter Parker at the Queens home of Peter’s aunt. As such, New York law will be applied. The Empire State states that a person is guilty of endangering the welfare of a child when:

He or she knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old or directs or authorizes such child to engage in an occupation involving a substantial risk of danger to his or her life or health; or
Being a parent, guardian or other person legally charged with the care or custody of a child less than eighteen years old, he or she fails or refuses to exercise reasonable diligence in the control of such child to prevent him or her from becoming an “abused child,” a “neglected child,” a “juvenile delinquent” or a “person in need of supervision,” as those terms are defined in articles ten, three and seven of the family court act.

Penal Law § 260.10 (Consol., Lexis Advance through 2016 released chapters 1-31, 50-53, 56).

Tony Stark purposefully asked Peter Parker to go to Germany with him to subdue Captain America’s Avengers. This would require confronting, and possibly fighting, the greatest soldier ever, one of the greatest assassins ever, one who can warp reality, one who can defy the laws of physics, and a flying hero who is well armed. This unquestionably showed Stark “knowingly [acting] in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old.”

Stark arguably was employing Parker, which qualifies as authorizing a child to “engage in an occupation involving a substantial risk of danger to his or her life or health.” As Spider-Man did take his share of hits from other heroes, the black eye given to him by Steve from Brooklyn is Exhibit A to the health danger.

The issue of whether Tony Stark contributed to Peter Parker being a juvenile delinquent might turn in Stark’s favor. Under New York law, a “Juvenile Delinquent” is someone who is over seven and less than sixteen years old who commits a crime if an adult did the criminal action, however, the youth is not criminally responsible because of age. NY CLS Family Ct Act § 301.2.

Asking a teenager to be a vigilante would be a crime, as it is asking a youth to join a conspiracy to commit assault, the intentional causing of injury to another person. NY CLS Penal § 120.05(1).

Courts do not take kindly to vigilantism. As New York Judge Vito Titone stated in a case with an prosecutor who abused his power:

A person charged with or suspected of the most heinous of crimes is still entitled to the fundamental fairness encompassed by the notion of due process. “Vigilante Justice” is abhorrent to our concept of jurisprudence whether the end product be a body dangling from a rope, or a person charged with a crime as a result of lawless conduct on the part of an overzealous prosecutor. The latter indeed is reprehensible since both society and the accused are victimized by one sworn to uphold the law.

People v. Rao (App.Div. 1980) 73 A.D.2d 88, 100 citing People v Isaacson, 44 NY2d 511, p 524 (originally cited in Can Matt Murdock be Disbarred for Vigilantism?).

The wrinkle here is Iron Man is a state actor, even if his actions are highly Constitutionally suspect. As such, Peter Parker likely registered himself with the Sokovia Accords (raising the issue of whether a minor can legally register themselves with the Sokovia Accords). There are definitely murky legal issues, however, Tony Stark arguably was not outright contributing to the delinquency of a minor by asking Spider-Man to join the fight against Captain America.

Child endangerment on the other hand, totally.

Why the Sokovia Accords are Unconstitutional

By

Josh Gilliland

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May 10, 2016

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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.