Remember when Batman and Superman were Super-Friends?

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April 8, 2016

Jim Dedman from the Abnormal Use blog joined me to discuss Batman v Superman. We are both Gen Xers and shared our understanding of Superman and Batman from the John Byrne’s Man of Steel comic in 1986, Crisis on Infinitive Earths, Frank Miller’s Dark Knight Returns, plus other classic stories.

We also explore the important issue from BvS, what would happen after the attack on Congress? Were all 535 members of Congress killed? What would happen to the House of Representatives, which does not have the options for replacing Senators.

Tune in to hear two geek lawyers discuss all things Batman and Superman.

Comic Talk: Freyja on Trial? SHIELD Experimenting on Prisoners?

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Josh Gilliland

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April 5, 2016

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Jess and I love the Thor and Captain America comics. We review the latest issues, focusing on whether Queen Aelsa had the mental capacity to marry Malekitch, and Odin’s trial of Freyja for defying “the will of its rightful ruler and insurrection.”

I share my thoughts on the 75th Anniversary of Captain America and whether SHIELD violated prisoners’ rights by using a Cosmic Cube to perform reality altering psychosurgery on the inmates.

We also are thrilled for the upcoming Black Panther comic, so tune in for more on our comic talk.

Who Owns the Millennium Falcon?

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Brad Blanchard

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April 4, 2016

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In The Force Awakens, the Millennium Falcon starts out in the hands of Unkar Plutt, who stole it from the Irving Boys, who stole it from Gannis Ducain, who stole it from Han Solo, who originally got it from Lando Calrissian.

Rey and Finn steal it from Unkar, and lose it to Han Solo who *Spoiler* then dies. At the end of the movie Rey and Chewie are flying it. So, who does the Millennium Falcon actually belong too?

Because our understanding of the laws of property under the Empire, New Republic, and First Order are so lacking, for the sake of this analysis we’ll assume that U.S. law applies.

The Millennium Falcon makes a brief appearance in Revenge of the Sith, but we don’t know who owns it at that point. In the absence of any evidence to the contrary we’ll assume Lando Calrissian is the first lawful owner of the Millennium Falcon. At one point he engaged in a “game of chance”, defined as “poker, craps, roulette, or other game in which a player gives anything of value in the hope of gain, the outcome of which is determined largely by chance….” (Ohio Revised Code.2915.01) (Hereafter O.R.C). He lost that game of chance, in this case Sabaac, and ownership passed to Han Solo. Or did it?

If the game was not lawfully sanctioned, it would be an illegal debt that is unenforceable under U.S. common law so the Millennium Falcon would still belong to Lando Calrissian. Hence, the comment, “What have you done to my ship?”

If the game was legally sanctioned and the Millennium Falcon was used as payment, or partial payment, for a debt lawfully owed, then ownership would pass to Han Solo. (O.R.C. 2915.02 does not prohibit conduct in connection with gambling expressly permitted by law.) Thus the rejoinder by Han Solo to the above comment, “Your ship? Hey, remember you lost her to me, fair and square” asserting that ownership had passed to him.

The Millennium Falcon is considered personal property. For most personal property ownership is often determined by possession, even if the ownership, possession or interest is unlawful. (O.R.C. 2913.01) Because of this Han Solo either has an ultimate claim to the Falcon, having received it as a payment for a lawful debt, or can claim a superior interest second only to that of Lando Calrissian, since his possession is only one step removed from the lawful owner.

The Millennium Falcon is later stolen from Han Solo by Ducain. This allows Ducain to exert a possessory interest over the Millennium Falcon, even though his claim was unlawful.

And it was stolen from Ducain by the Irving Boys, who could then claim a possessory interest over the Millennium Falcon, even though their claim was unlawful.

And it was stolen from them by Unkar Plutt, who could also exert a possessory interest over the Millennium Falcon even though his claim was unlawful.

And it was stolen from Unkar by Rey and Finn, who could also claim a possessory interest over the Millennium Falcon even though their claim was unlawful as well.

According to the common law to determine the superior claim you simply work your way back up the chain. So Rey & Finn had a superior interest to everyone but Unkar’s, the Irving boys, Ducain, and Han Solo. Unkar’s interest trumps Rey & Finns. The Irving Boys have an interest that trumps Unkar’s. Ducains’ interest trumps the Irving Boys. And Han Solo has a superior claim to them all. And he then messes things up by dying. So now who owns the Millennium Falcon?

Well, assuming Han Solo died without a will, which seems pretty likely, who owns it will be determined by the laws of intestacy. Han Solo was married to Leia Organa. They were separated, but don’t seem to have made it a formal separation as recognized by the law. They had at least one child (Ben/Kylo Ren) but, as far as we know, neither of them had any children outside of the marriage. As a result, where there is a marriage and all the children are born of that marriage then the whole goes to the surviving spouse. (O.R.C. 2105.06.) So even though Rey may be flying the ship, Leia inherited all rights to the Millennium Falcon and it ultimately belongs to her… assuming Han won it in a lawful game of Sabaac…but he was a great swindler and never one for the rules, so it’s entirely possible it still belongs to Lando.

Daisy Needs a Constitutional Watchdog

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Josh Gilliland

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March 30, 2016

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What is the proper response to domestic terrorism? Daisy Johnson’s answer on the Agents of SHIELD episode “Watchdogs” is, “they gave up their right to civil liberties.” Daisy then proceeds to conduct two unlawful arrests and force confessions with threats of violence to get information from the Watchdog “prisoners.”

Agents of SHIELD highlights the danger of the military and espionage agencies conducting law enforcement. First, no one gives up their civil liberties. Both the 5th and 14th Amendments prevent the government from depriving people of their liberties without due process of law. Second, civil liberties do not apply only when convenient, but to ensure the government does not abuse its power.

Make no mistake about it, the [fictional] Watchdogs are domestic terrorists who killed Federal government employees in order to inflict fear on Inhumans. This squarely puts the Watchdogs in the same category as a white supremacist/anti-government hate groups.

Captain America would not be thrilled with Daisy’s neo-fascist law enforcement response. There is a long list of civil rights cases that specifically prohibit what she did in “Watchdogs.” From Powell v. Ala., 287 U.S. 45 (U.S. 1932) to Gideon v. Wainwright, 372 U.S. 335 (1963), to Miranda v. Arizona, 384 U.S. 436 (1966), the Supreme Court spent decades establishing people arrested by the government have a right to counsel. Forcing confessions with physical abuse is also antithetical to civil liberties.

Supreme Court Justice Black stated in Gideon, “The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours.” Gideon, at *344.

Daisy trampled on those rights of the Watchdogs, in addition to conducting unlawfully arresting the suspects without first stating they were under arrest for specific crimes, as required by the 4^th Amendment.

There is an argument that Daisy had a valid “public safety exception” to Miranda for the second Watchdog she captured, as Fitz had an implosion device embedded on his neck. As a reminder, the Miranda Court specifically held:

Accordingly we hold that an individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation under the system for protecting the privilege we delineate today. As with the warnings of the right to remain silent and that anything stated can be used in evidence against him, this warning is an absolute prerequisite to interrogation. No amount of circumstantial evidence that the person may have been aware of this right will suffice to stand in its stead. Only through such a warning is there ascertainable assurance that the accused was aware of this right.

Miranda v. Ariz., 384 U.S. 436, 471-472 (U.S. 1966).

The Public Safety Exception states that “overriding considerations of public safety” could justify a failure to provide Miranda warnings before initiating custodial interrogation. New York v. Quarles, 467 U.S. 649, at *651 (1984). Given the fact Fitz would have imploded, taking with him enough area to collapse a building into a large ball, a Court would find a valid exception to giving Miranda warnings. However, that would not give Daisy the license to rough up a suspect for information.

That does not at all excuse Daisy’s earlier conduct of ignoring the Constitution. If SHIELD is conducting law enforcement instead of the FBI, then SHIELD should follow the law, instead of waging war on it.

Flash Single-Handedly Stopped Civil Rights Violations on Supergirl

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Josh Gilliland

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March 29, 2016

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The Supergirl/Flash crossover was everything a geek would want in seeing two super-heroes meet for the first time. There were confused introductions, gleeful banter in one hero being around another super-hero, and teamwork. Neither the Flash nor Supergirl saw the other as a threat. It’s like when geeks meet at a comic convention and discuss the comics they love.

This episode was a much-needed antidote after Batman v Superman. Supergirl and Flash could have broke-out in song and it would have been heartwarming. If the writers ever need a reason for Supergirl to sing, just pull from Final Crisis with Superman singing Darkseid out of existence. Perhaps a musical vibration that only Kara can hit could open a portal to Earth-1 for an annual cross-over.

The Flash did more than just help Supergirl stop Livewire and Silver Banshee; Barry Allen gave National City the technology to safely arrest super-villains by suppressing their superpowers. This most likely was The Boot rifle seen in The Flash.

This very short dialog means that the DEO will no longer be holding metahumans in a secret prison without a trial. Supergirl’s villains have been held in major violations of their Civil Rights, including:

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

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

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

The 6th Amendment right to counsel;

The 7th Amendment right to a trial; and

The 8th Amendment prohibition against cruel and unusual punishment.

Holding human beings held prisoner in solitary confinement, in glass cells, without a bed or bathroom, without access to a lawyer, or even a trial, screams so many Civil Rights violations that not even Silver Banshee could hit all the notes. Yes, Earth-Supergirl did not have any facilities set-up to handle such individuals, but thanks to Barry Allen, our heroes will not be aiding in massive Constitutional violations after saving the day.

BvS Review: Why Blame Superman for General Zod’s Attack?

By

Josh Gilliland

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March 27, 2016

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Batman v Superman is 2 hours and 33 minutes of film where a substantial portion of the U.S. population blames Superman for the destruction caused by General Zod’s attempt to wipe out all life on Earth. A United States Senator goes so far in a committee hearing to proclaim that Superman was responsible for a Wayne Enterprises employee who lost his legs during the Battle for Earth against Zod.

There are multiple problems with the finger pointing at Superman. First, Congress is not a Court. Congress has every right to conduct an investigation, hold hearings, and even hold someone in contempt for refusing to answer questions, and pass a law. However, a Congressional committee is not a court of law. The issue of whether there is any liability is to be determined in a court.

Superman had zero duty to rescue the Earth from General Zod. None. As a matter of law, there is no general common law duty to rescue someone unless there is a “special relationship.” Rhodes v. Illinois Cent. Gulf R.R., 172 Ill. 2d 213, 232-233 (Ill. 1996). A person who could rescue a small child, but does not, could be savagely attacked on social media with hash tags as a “ruthless monster,” but that person would have no liability for the child’s death. Wicker v. Harmony Corp., 784 So.2d 660, at *665 (La. App., 2001). Society does encourage people to help others with “Good Samaritan” laws, which have the “broad goal” to “prompt aid by people under no duty to act, who otherwise might be dissuaded by the prospect of ordinary tort liability.” Miglino v Bally Total Fitness of Greater N.Y., Inc., 20 N.Y.3d 342, 348 (N.Y.2013).

A duty to rescue can be created between individuals by 1) statutes; 2) contractual relationships; or 3) impliedly by virtue of the relationship between the tortfeasor and a third party. Bobo v. State, 346 Md. 706, 715, 697 A.2d 1371 (1997).

Superman did not have a duty to rescue the Earth from General Zod under any statute, contractual relationship, or through his relationship of being on Earth. Moreover, the US Military did not draft Clark Kent, so Superman had no obligation to place himself in danger in confronting Zod.

Superman volunteered his services to the US Government, first to surrender himself to Zod, and then to aid the military in the defense of Earth. When a “volunteer who, having no initial duty to do so, undertakes to come to the aid of another . . . is under a duty to exercise due care in performance and is liable if (a) his failure to exercise such care increases the risk of such harm, or (b) the harm is suffered because of the other’s reliance upon the undertaking.” Foremost Dairies v. Cal. (1986) 190 Cal.App.3d 361, 365, citing Williams v. State of California (1983) 34 Cal.3d 18, 23.

General Zod planned to terraform Earth into a new Krypton. The massive environmental change would have been an extinction level event for all human life on Earth. Zod’s plan was stopped by the US military on a suicide mission in Metropolis and Superman in the Indian Ocean.

Blaming Superman is the complete allegory of blaming immigrants for crimes committed by their native countries. Holding Superman responsible for Zod is like holding Albert Einstein responsible for Adolph Hitler. It is simply wrong.

Superman engaged Zod in mortal combat after the destruction of the Kryptonian warship. Zod’s personal promise to butcher humanity resulted in a slugfest that toppled buildings. Current law does not have situations were thousands are killed by the acts of two individuals engaged in a fight to the death for all life on the planet. Looking at every step of the fight, it would be difficult to state that Superman failed to exercise reasonable care that increased the risk of such harm.

Some might argue that Superman should have forced General Zod away from a populated area for their battle. While that is a fair argument, it is easier said then done if there is a super-powered alien hell-bent to kill people. The fight between the two Kryptonians was a fusion of the Battle of Britain with the street-to-street fighting of Mogadishu. Avoiding non-combatant casualties only works when both parties want to avoid collateral damage. Zod was not of that mindset.

Batman arguing Superman was too dangerous to live would be like saying Einstein was too smart to live, thus a danger to all human life because he might invent a weapon, thus needed to die. This is faulty logic and someone as intelligent as Bruce Wayne should not engage in one-dimensional thinking. It would have made more sense for Batman to act like he did in The New Frontier in confronting Martian Manhunter for the first time.

Batman v Superman had serious flaws in its treatment of class DC characters. The execution of Jimmy Olsen as a CIA operative in the opening act was offensive. A character who has been the loyal friend, comic relief, and someone for children to identify with for 75 years, should not, in the director’s words, be shot in the head “for fun.”

It does make sense that Superman would have guilt over the deaths of thousands of people from Man of Steel. By way of comparison, Superman II did not have Christopher Reeve’s Superman go into therapy after killing Zod in the Fortress of Solitude (nor did Lois Lane show any remorse after decking Ursa and watching the Kryptonian plummet to her off-camera demise). There was also no sulking for the extensive property damage to Washington, DC, the death of the astronauts on the Moon, or anyone else harmed by Zod. Instead Superman helped repair the White House, apologized for being away, and made a vow to the President, “I will not let you down again.”

Superman has been the symbol of hope since the character was first created. Superman is the classic immigrant story of someone who comes to the United States to escape certain death, who in turn saves America from dangerous threats. We have war memorials by the thousands dedicated to such people who lacked any super powers.

Warner Brothers needs to take a lesson from the successful TV shows with DC heroes. Both Supergirl and The Flash are popular adaptations of the characters that have avoided neck-snapping decisions, peppered with executions and terrorism.

All that being said, Ben Affleck did a great job as Batman. He is a geek who loves the character. The creative missteps of the film belong to the director Zack Synder, not Affleck.

Wonder Woman was awesome. Gal Gadot was fantastic portraying Diana Prince as the warrior who made the right decision to fight for others, who also enjoyed a good fight. Looking forward to seeing Gal Gadot in her own film.

Strategies for Direct Examination of the Punisher

By

Josh Gilliland

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March 24, 2016

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The Daredevil season 2 episode, “Guilty as Sin” had Frank Castle testify in his capital murder trial. This high risk trial strategy was to connect the dots to the defense expert’s theory that Castle suffered from “Sympathetic Storming,” due to the traumatic brain injury from being shot in the head.

Matt Murdock’s direct examination of Frank Castle did not go well. Castle exploded on the stand, due to a deal offered to him from a police officer from an unknown individual.

Was Murdock right to treat Castle as a hostile witness? Did Murdock have other options for conducting the direct examination? Let’s explore possible case strategy.

The Defense theory centered on Castle suffering from “Sympathetic Storming.” This condition is “theorized to be an increase in activity of the sympathetic nervous system created by a disassociation or loss of balance between the sympathetic and parasympathetic nervous systems.” See, Denise M. Lemke, MSN, APNP-BC, CNRN, “Sympathetic Storming After Severe Traumatic Brain Injury.”

Those suffering from “Sympathetic Storming” can be in a “state of agitation, extreme posturing/dystonia, tachycardia, tachypnea, hypertension, diffuse diaphoresis, and hyperthermia. Id.

Matt Murdock needed to connect Castle’s story to the expert’s theory that Castle suffered a case of “Sympathetic Storming” from seeing his family brutally murdered in a sting gone bad with three different gangs. Murdock knew Castle’s history from Castle telling Daredevil what happened in the park the day of the gunfight. Here is one possible line of questions where the attorney only does 10% of the talking, the witness the other 90%:

What was your wife’s name?

When were you married?

What was the name of your daughter?

When was her birthday?

What was the name of your son?

When was his birthday?

What branch of the military were you in?

Where were you deployed?

How long were you deployed?

When did you return from deployment overseas?

When did you first get scared as a Marine?

Where did you first go after returning from deployment?

Who did you go see?

What happened when you saw your daughter?

What happened after you went home with your family?

Did your daughter have a favorite book?

What quotes you remember from that book?

When was the last time your daughter asked you to read her the book?

Did you read to her the final time she asked you to?

Where did you go with your family the day after you returned from deployment?

What happened at the park?

What happened to your wife at the park?

What happened to your daughter?

What happened to your son?

What happened to you?

You are charged with murdering 37 people. How did you select the individuals you attacked?

Who were the Irish gang you confronted?

Why did you confront them?

What were the men doing when you confronted them?

Did they attack you when they saw you?

Who were the Dogs of Hell?

Why did you confront the Dogs of Hell?

What were the Dogs of Hell doing when you confronted them? Did they attack you when they saw you?

What Cartel did you confront? Why?

What were the men in the Cartel doing when you entered the warehouse to confront them? Did they attack you when they saw you?

Going back to your daughter’s book, have you ever quoted that phrase?

What are the specific times you said that quote?

The goal is to make Frank Castle look human. The Defense should focus on Castle’s suffering and that constant grief is the reason he waged a one-man war on organized crime. That Castle saw his family butchered and is obsessive with killing those that destroyed his family. It would be a form of the insanity defense, with a touch of jury nullification that is unstated.

Jury nullification is a dangerous argument for any attorney, because lawyers cannot outright ask juries to ignore the law. Matt Murdock and Foggy Nelson would have to offer a justification for the killings before the jury, by showing that the people Frank Castle killed had even killed more people and would have continued to do so.

The smarter plan would have been NOT having Frank Castle testify. Expert testimony on the Dogs of Hell, the Irish mob, and the Cartel, would have established the crimes attributed to each gang, the number of people the gangs had killed, and establish how dangerous each group was to the public. The psychologist’s expert opinion on Castle’s mental state and then tied to the gangs in closing argument would have avoided the explosive situation of having the Defendant testify.