Hope for a Purple Man Insanity Defense

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November 23, 2015

Kilgrave, AKA The Purple Man, has the ability to make people do his bidding, whether it is preparing him dinner or killing someone. In AKA Jessica Jones, Kilgrave used his power from everything for financial gain to playing hyper-creepy sugar daddy with any woman who caught his eye.

Hope Shlottman was Kilgrave’s collegiate victim who was kidnapped for a month as his personal plaything, enduring everything from emotional torture to rape. Hope was programmed by Kilgrave to execute her parents after Jessica Jones rescued Hope in the first episode. After shooting her parents in an elevator, Hope only said, “Smile.”

A defense attorney could argue that Hope was not guilty by reason of insanity. However, this is highly problematic, because there are not recognized cases for “mind control” or “brainwashing.”

The Insanity Defense in New York is an affirmative defense where a defendant had a mental disease or defect that prohibited them from either 1) understand the nature and consequences of their criminal conduct; or 2) understanding that such conduct was wrong. NY CLS Penal § 40.15.

Hope clearly was not in control of herself when she committed the double murder of her parents. Unfortunately, cases with “mind control” or “brainwashing” are not helpful in forming an insanity defense.

In one case, a Hare Krishna religious group could not be prosecuted for unlawfully imprisoning two members through “brainwashing,” “mind control,” or “manipulation of mental processes,” because there was no evidence of “fraud, deception, intimidation or restraint, physical or otherwise.” People v Murphy, 98 Misc. 2d 235, 413 N.Y.S.2d 540 (N.Y. Sup. Ct. 1977). Furthermore, just because a religion is unconventional, does not mean that “a strict regimen, meditation, chanting, self-denial and the communication of other religious teachings cannot be construed as criminal in nature and serve as the basis for a criminal indictment nor is the concept of “mind control” or “brainwashing” a crime in and of itself.” Id.

The Murphy court went on to state:

The concept of mind control or brainwashing is not a crime in and of itself. The fact that indoctrination and constant chanting may be used as a defense mechanism to ward off what another person is saying or doing is devastating and it is equally devastating when used as a technique for brainwashing or mind control. It may even destroy healthy brain cells. It may also cause an inability to think, to be reasonable or logical. However, this does not constitute a crime. Neither brainwashing nor mind control per se is a crime. It cannot be used as the basis for making out the elements of the crimes charged herein.

Murphy, at *243.

Given what has happened since 1977 with cults and international terrorism, not everyone will agree with the Murphy court. As seen in People v. Vieira, a Court prohibited expert testimony during the guilt phase from a cult expert that the defendant was unable to form the required mental state for murder due to the “influence of mind control techniques.” People v. Vieira (2005) 35 Cal.4th 264, 265.

“Brainwashing” also appears as serious allegations between parents in child custody cases. Often in these cases, one parent accuses the other of “brainwashing” a child against the aggrieved parent. See generally, R.L. v J.L. (Sup.Ct.) 2012 NY Slip Op 50447(U); Thomas S. v. Robin Y. (App.Div. 1994) 209 A.D.2d 298, 314; Lazar v. Lazar (App.Div. 1967) 28 A.D.2d 991.

The most on point case for Hope is from a petition for a writ of habeas corpus by the murderer of Senator Robert F. Kennedy. The petitioner argued that there was evidence of “hypnotic programming.” The Court summarized the argument and analysis as follows:

Furthermore, petitioner’s own recitation of the events leading up to the murder are vague and fail to demonstrate that he actually was the victim of hypno-programming by some unnamed person or entity. Petitioner’s recently recalled memories about the bartender, the woman in the polka dot dress pinching him, and entering “range mode,” are far from compelling evidence of his innocence. Petitioner’s recitation of the events of the night he shot Senator Kennedy amount to self-serving recollections that, even if believed, do no more than suggest a sinister plot and a possibly exculpatory theory — namely, that petitioner was under a hypnotic trance and did not intentionally shoot Senator Kennedy. Whether or not the theory that a person can be hypnotized to commit murder and then to lose his memory of committing that murder is scientifically credible, and the Court assumes that it is solely for purposes of this analysis, petitioner has not provided any reliable evidence that this actually occurred. Evidence of a mysterious woman in a polka dot dress, petitioner’s “feeling” that he might have had a relationship with the bartender who used non-verbal signals such as nodding his head and making eye contact, petitioner’s feeling “tired” after drinking alcohol, his following a woman whom he found attractive into the pantry, the “pinch,” and his subsequent drawing out the gun and shooting during his “flashback” to the shooting range are “facts” that could fit the mind control theory. Then again, they are fuzzy recollections of portions of a night more than forty years ago that contradict petitioner’s prior, more contemporaneous statements.

Sirhan v. Brazelton (C.D.Cal. 2013) 76 F. Supp. 3d 1073, 1123-1124.

Hope’s attorneys would need to offer evidence that she was under a form of “hypnotic programming” by Kilgrave to effectively prove she did not understand the nature and consequences of her criminal conduct. There actually is hope that the Defense could be successful with this argument, because Hope spent a month with Kilgrave doing out-of-character actions. These actions include the sudden alienation with her parents, dropping out of school, moving out of her apartment, and spending all of her time with a man at least 20 years older than her. Moreover, a jury would take find it odd that a student athlete with good grades turned into a homicidal “sugar baby” overnight.

The night Jessica Jones liberated Hope from a high-class hotel, Hope had been left to lie in her own waste for hours in bed. Furthermore, upon being moved from the bed, Hope fought to return to the bed, where she had been told to wait for a specific amount of time. Jones’ testimony, coupled with a psychologist, could show Hope was not suffering from Stockholm Syndrome or acting under her own will.

These facts demonstrate a change in Hope that was not consistent with her character. While it might not be direct evidence of hypnotic programing to commit murder, it could be enough to create reasonable doubt with a jury that Hope was not in control of her actions. Moreover, in a world with alien invasions, killer robots, and flying aircraft carriers, convincing a jury of someone with a super power to control others would not be an impossible challenge. Difficult and risky, but not impossible.

Super Service of Process on Jessica Jones

By

Josh Gilliland

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November 20, 2015

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Jessica Jones works as an independent contractor for the fictional law firm Hogarth, Chao & Benowitz LLP. Jeri Hogarth retained Jones to serve a summons on the owner of a gentleman’s club in a negligence case where a dancer suffered a traumatic brain injury falling off a stage.

Jones serves the summons on the Defendant after waiting for him to leave a nightclub. Service was made after picking up the back of the Defendant’s car, serving him the summons, and taking a cell phone photo of the Defendant.

Was this proper service of process?

Every civil lawsuit requires effective service of process for a court to have jurisdiction over someone. Service of process can be made by personal delivery; certified mail; and alternative service of process by court order, such as publication or email. NY CLS SCPA § 308. Proof of service must state the papers served, who served the papers, including the date, time, address, or manner of service, and description of who was served. NY CLS SCPA § 306.

Defendants can challenge service of process in New York in a “Traverse Hearing.” The Plaintiff has the burden to prove by a preponderance of the evidence that the Defendant had proper service of process. LePatner & Assoc., LLP v. Horowitz (Sup.Ct.) 2009 NY Slip Op 29092, ¶ 3. This can be shown with an affidavit by the process server, which is prima facie evidence of proper service. Id. A Defendant cannot issue a conclusory denial of receipt of service to rebut the presumption of proper service created by a properly executed affidavit of service. A Defendant must make a factual showing to controvert the presumption that service of process was proper. Id.

Jessica Jones could prepare an affidavit stating when and where she served the gentlemen’s club owner. Moreover, the smartphone photo with location metadata would verify the time and place of the service of process. This would be a very powerful affidavit demonstrating proper service of process.

The issue is Jessica picking up the Defendant’s car. The Defendant could claim Jessica assault him by picking up his car and then threatening him with her “laser eyes.”

This argument would fail. First, most assault cases would find the person with a car to be more dangerous than a pedestrian. Secondly, Jessica is super strong, but she does not have laser eyes. The Defendant’s claims would look wildly insane, and not factually specific to trigger a Traverse Hearing.

Minority Report Repealed the 14th Amendment?

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Josh Gilliland

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November 17, 2015

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Here is a true legal dystopian future: the 14^th Amendment was repealed to revoke US citizenship by birthright as a compromise in giving 10 million people not legally in the United States amnesty in the Minority Report episode “The American Dream.”

The text of the 14^th Amendment, Section 1, states:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The idea of repealing the 14^th Amendment is terrifying. It is the Constitutional lynchpin enacted after the Civil War that underscores Equal Protection and Due Process rights applying to everyone in the United States. It is means to the majority of the Bill of Rights applying to the states. The legal world of Minority Reports sounds like a bloody nightmare, beyond arresting people for crimes that they have not yet committed.

Perhaps the repealed 14^th Amendment was replaced was an Amendment that retained the Equal Protection and Due Process Clauses, only replacing the naturalized citizen clause. That might lesson the damage, but it would still leave people born in the United States who did not have any rights from citizenship.

Minority Report does not feature lawyers discussing Constitutional law, but it is a good bet that State Constitutions would fill in any gaps created by repealing the 14^th Amendment, which would then give more reliance on the Full Faith and Credit and Privileges and Immunities Clauses of Article IV of the US Constitution in protecting the rights of citizens.

Does Supergirl Need a Lawyer?

By

Josh Gilliland

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November 16, 2015

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We both love the new Supergirl series. Check out our podcast on the legal issues of being a super-hero, plus the huge eDiscovery issues with heroes sending instant messages.

Seeking Law Students for the Mock Trial of the Winter Soldier

By

Josh Gilliland

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November 11, 2015

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We are looking for six law students to join us for the Mock Trial of the Winter Soldier at San Diego Comic Fest, February 12-15, 2016. The Prosecution (The Avengers) and the Defense (The Defenders) will each be made up of three law students. Students may also serve as the bailiff, clerk (and time keeper), and court reporter.

The mock trial will focus on the insanity defense on whether James “Bucky” Barnes was unable to appreciate the wrongfulness of his acts in Captain America The Winter Soldier, due to a severe mental disease or defect.

United States Magistrate Judge Paul Grewal will preside over the mock trial. The expert witnesses are Dr. Andrea Letamendi, from The Arkham Sessions and Dr. Janina Scarlet, from Super-Hero Therapy.

If you are a current law student interested in participating, please review our program outline and contact us on the form below:

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We are also seeking attorney coaches to help mentor the law students and witnesses. If interested, please contact us on the following form:

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Mock Trial Overview

The Trial of the Winter Soldier is based on the film Captain America The Winter Soldier, with additional facts taken from The Winter Soldier storyline in Captain America to define other victims.

The trial will focus only on the Prosecution and Defense Opening Statements (3 minutes each), direct examination of the Defense and Prosecution Expert Witnesses (10 minutes, each, minus time for objections), cross-examination of the expert witnesses (5 minutes), and re-direct of the expert witnesses (2 minutes).

Objections, offers of proof, and the judge’s decision are excluded from the time. All Objections are based on the Federal Rules of Evidence and any relevant privileges under Federal or California law.

Each side will make a 5-minute closing argument as to the Defendant’s guilt, limited to facts established in the film, specifically referenced events from the comics, and the expert testimony as to whether James Buchanan Barnes understood the wrongfulness of his actions at the time he committed the charges.

Case Overview

James Buchanan Barnes is charged with collaboration as a prisoner of war, multiple counts of murder, terrorism, insurrection, and treason. Barnes’ crimes span over 70 years of levying war against the United States with the terrorist organization HYDRA.

The Government will argue that James Barnes was a willful participant in Secretary Alexander Pierce’s plan to overthrow the United States government, which included the planned assassination President Mathew Ellis, all of Congress (minus Senator Stern), the United States Supreme Court, and several million United States citizens from Washington, DC, to New York City.

The Defense will argue that Defendant Barnes was legally insane at the time of the alleged criminal actions. Barnes is now competent to stand trial.

Both witnesses are qualified as experts pursuant to Federal Rule of Evidence Rule 702. All testimony and expert reports must comply with Federal Rules of Evidence Rules 703, 704, and 705.

Goal of Defense Expert Witness

The Defense Expert witness must prove by clear and convincing evidence that at the commission of all charged crimes that James Buchanan Barnes was unable to appreciate the nature and quality or the wrongfulness of his acts due to a severe mental disease or defect. 18 USCS § 17.

The Defense Expert must explain the nature of Defendant Barnes’ injuries dating back to World War 2 and effects of HYDRA experimentation. The expert’s opinion should include whether being cryogenically frozen could cause Defendant Barnes from being unable to understand the wrongfulness of his actions. The testimony should also explain how electric shock therapy impacted Barnes’ ability to appreciate the nature of his actions.

The expert witness should prepare a report of no more than three page explaining the witness’s opinions, the bases and reasons for those opinions, and the witness’s qualifications that will be the basis of the direct and cross examinations. The witness qualifications can be a CV that does not count as one of the three pages.

Goal of Government Expert Witness

The Government’s Expert Witness will rebut the Defense Witness that James Buchanan Barnes was insane in the events leading up to the launch of the Project Insight Helicarriers. The Government will focus on the fact Secretary Pierce’s orders were illegal on their face and should not have been followed.

The Government’s witness should explore that someone with amnesia can still know right from wrong, despite not remembering his/her identity. Moreover, the Expert can compare Barnes’ mental state to Charles J. Guiteau (US v Guiteau, 1 Mackey 498, at *546) and Sirhan Bishara Sirhan (People v. Sirhan (1972) 7 Cal.3d 710, 727, overruled on other grounds).

The expert witness should prepare a report of no more than three page explaining the witness’s opinions, the bases and reasons for those opinions, and the witness’s qualifications that will be the basis of the direct and cross examinations. The witness qualifications can be a CV that does not count as one of the three pages.

Practice Tips for Law Students

Opening Statements are to outline the case theory and theme; Closing Argument is for argument. Students should follow the best practice that on direct examination the witness does 90% of the talking and the lawyer only 10% for asking questions. Cross-examination should have the lawyer exercising witness control by asking specific questions of the opposing expert witness.

Use of Trial Presentation Technology

Trial exhibits, opening statements, closing arguments, and jury instructions may be presented with trial presentation software, such as TrialPad or ExhibitView5 apps for tablets, or Trial Director for a laptop computer. Trial exhibits will include the expert witness reports and other provided images or video. Exhibits must first be shown without any mark-ups prior to identification or presentation to the jury and then can be marked.

Key Facts

James Buchanan Barnes was ordered by Alexander Pierce to 1) Kill Nicholas Fury, Director of SHIELD; 2) Kill Captain Steve Rogers and Natasha Romanoff; 3) Kill Captain Rogers in order to launch the Project Insight Helicarriers.

Alexander Pierce was the leader of HYDRA. James Buchanan Barnes followed Pierce’s orders, which resulted in the death of Nick Fury, and 19 SHIELD air and ground crew members.[1] Defendant Barnes attempted to stop Captain Rogers, severely Rogers with multiple gunshot wounds. If Barnes has stopped Rogers, millions of US citizens would have been killed within minutes.

In addition to the above, Defendant Barnes committed the following known crimes:

November 5, 1954: Killed three US soldiers in Berlin as a field test;

January 11, 1955: Killed entire UN Diplomatic Negotiation Team in Cairo;

May 14, 1955: Assassinated NATO General James Keller;

January 1, 1956: Assassinated British Ambassador Dalton Graines in Madripoor;

April 1, 1956: Assassinated French Defense Minister Jacques Dupuy;

May 12, 1956: Assassinated Algerian Peace Conference Envoy in Paris;

February 17, 1957: Assassinated US Colonel Jefferson Hart in Mexico City; and

March 12, 1973: Assassinated US Senator Harry Baxtor.

Charges

Count 1: Collaboration with the Enemy

James Buchanan Barnes willfully collaborated with HYDRA since his capture in 1945.

Statutory Authority:

Collaboration with the enemy in violation of Article of War 96 and the Uniform Code of Military Justice Article 134. UNITED STATES v. GALLAGHER (U.S.A.B.R. 1957) 23 CMR 591, 596.

Count 2: Terrorism

James Buchanan Barnes willfully committed domestic acts of terrorism by 1) assassinating Nicholas Fury; 2) attempting to publicly kill Captain Steven Rogers, Natasha Romanoff, and Samuel Wilson in downtown Washington, DC, with reckless regard for human life on buses and city streets; 3) Assisting in the launch of the Project Insight Helicarriers.

Statutory Authority:

The term “domestic terrorism” means activities that–

(A) involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State;

(B) appear to be intended–

(i) to intimidate or coerce a civilian population;

(ii) to influence the policy of a government by intimidation or coercion; or

(iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and

(C) occur primarily within the territorial jurisdiction of the United States.

18 USCS § 2331(5)

Count 3: Acts of Terrorism Transcending National Boundaries

James Buchanan Barnes willfully committed acts of terrorism transcending national boundaries by 1) murdering Nicholas Fury 2) assaulting Nicholas Fury, Captain Steven Rogers, Natasha Romanoff, and Samuel Wilson with dangerous weapons; and 3) conspiring to launch the Project Insight Helicarriers.

Statutory Authority:

(a) Prohibited acts.

(1) Offenses. Whoever, involving conduct transcending national boundaries and in a circumstance described in subsection (b)–

(A) kills, kidnaps, maims, commits an assault resulting in serious bodily injury, or assaults with a dangerous weapon any person within the United States; or

(B) creates a substantial risk of serious bodily injury to any other person by destroying or damaging any structure, conveyance, or other real or personal property within the United States or by attempting or conspiring to destroy or damage any structure, conveyance, or other real or personal property within the United States; in violation of the laws of any State, or the United States, shall be punished as prescribed in subsection (c).

(2) Treatment of threats, attempts and conspiracies. Whoever threatens to commit an offense under paragraph (1), or attempts or conspires to do so, shall be punished under subsection (c).

(b) Jurisdictional bases.

(1) Circumstances. The circumstances referred to in subsection (a) are–

(A) the mail or any facility of interstate or foreign commerce is used in furtherance of the offense;

(B) the offense obstructs, delays, or affects interstate or foreign commerce, or would have so obstructed, delayed, or affected interstate or foreign commerce if the offense had been consummated;

(C) 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;

(D) the structure, conveyance, or other real or personal property is, in whole or in part, owned, possessed, or leased to the United States, or any department or agency of the United States;

(E) the offense is committed in the territorial sea (including the airspace above and the seabed and subsoil below, and artificial islands and fixed structures erected thereon) of the United States; or

(F) the offense is committed within the special maritime and territorial jurisdiction of the United States.

(2) Co-conspirators and accessories after the fact. Jurisdiction shall exist over all principals and co-conspirators of an offense under this section, and accessories after the fact to any offense under this section, if at least one of the circumstances described in subparagraphs (A) through (F) of paragraph (1) is applicable to at least one offender.

(c) Penalties.

(1) Penalties. Whoever violates this section shall be punished–

(A) for a killing, or if death results to any person from any other conduct prohibited by this section, by death, or by imprisonment for any term of years or for life;

(B) for kidnapping, by imprisonment for any term of years or for life;

(C) for maiming, by imprisonment for not more than 35 years;

(D) for assault with a dangerous weapon or assault resulting in serious bodily injury, by imprisonment for not more than 30 years;

(E) for destroying or damaging any structure, conveyance, or other real or personal property, by imprisonment for not more than 25 years;

(F) for attempting or conspiring to commit an offense, for any term of years up to the maximum punishment that would have applied had the offense been completed; and

(G) for threatening to commit an offense under this section, by imprisonment for not more than 10 years.

(2) Consecutive sentence. Notwithstanding any other provision of law, the court shall not place on probation any person convicted of a violation of this section; nor shall the term of imprisonment imposed under this section run concurrently with any other term of imprisonment.

(d) Proof requirements. The following shall apply to prosecutions under this section:

(1) Knowledge. The prosecution is not required to prove knowledge by any defendant of a jurisdictional base alleged in the indictment.

(2) State law. In a prosecution under this section that is based upon the adoption of State law, only the elements of the offense under State law, and not any provisions pertaining to criminal procedure or evidence, are adopted.

18 USCS § 2332b

Count 4: Bombings of Places of Public use, Government facilities, Public Transportation Systems and Infrastructure Facilities

James Buchanan Barnes willfully used 1) firearms and explosives on US Route 29, expanding onto the city streets of Washington, DC; 2) used explosives on the airfield of the Triskelion ; and 3) the attempted terrorist actions resulted in the destruction of the Triskelion.

Statutory Authority:

(a) Offenses.

(1) In general. Whoever unlawfully delivers, places, discharges, or detonates an explosive or other lethal device in, into, or against a place of public use, a state or government facility, a public transportation system, or an infrastructure facility–

(A) with the intent to cause death or serious bodily injury, or

(B) with the intent to cause extensive destruction of such a place, facility, or system, where such destruction results in or is likely to result in major economic loss,
shall be punished as prescribed in subsection (c).

(2) Attempts and conspiracies. Whoever attempts or conspires to commit an offense under paragraph (1) shall be punished as prescribed in subsection (c).

(b) Jurisdiction. There is jurisdiction over the offenses in subsection (a) if–

(1) the offense takes place in the United States and–

(A) the offense is committed against another state or a government facility of such state, including its embassy or other diplomatic or consular premises of that state;

(B) the offense is committed in an attempt to compel another state or the United States to do or abstain from doing any act;

(C) at the time the offense is committed, it is committed–

(i) on board a vessel flying the flag of another state;

(ii) on board an aircraft which is registered under the laws of another state; or

(iii) on board an aircraft which is operated by the government of another state;

(D) a perpetrator is found outside the United States;

(E) a perpetrator is a national of another state or a stateless person; or

(F) a victim is a national of another state or a stateless person;

18 USCS § 2332f

Count 5: Murder

James Buchanan Barnes willfully killed: 1) Nicholas Fury; 2) 19 SHIELD airman; 3) three US soldiers in Berlin as a field test on November 5, 1954: 4) an entire UN Diplomatic Negotiation Team in Cairo on January 11, 1955; 5) NATO General James Keller on May 14, 1955; 6) British Ambassador Dalton Graines in Madripoor on January 1, 1956; 7) French Defense Minister Jacques Dupuy on April 1, 1956; 8) Algerian Peace Conference Envoy in Paris on May 12, 1956; US Colonel Jefferson Hart in Mexico City on February 17, 1957; and US Senator Harry Baxtor on March 12, 1973.

Statutory Authority:

(a) Murder is the unlawful killing of a human being with malice aforethought. Every murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing; or committed in the perpetration of, or attempt to perpetrate, any arson, escape, murder, kidnaping, treason, espionage, sabotage, aggravated sexual abuse or sexual abuse, child abuse, burglary, or robbery; or perpetrated as part of a pattern or practice of assault or torture against a child or children; or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed, is murder in the first degree.

Any other murder is murder in the second degree.

(b) Within the special maritime and territorial jurisdiction of the United States,

Whoever is guilty of murder in the first degree shall be punished by death or by imprisonment for life;

Whoever is guilty of murder in the second degree, shall be imprisoned for any term of years or for life.

18 USCS § 1111

Count 6: Treason

James Buchanan Barnes willfully levied war against the United States by participating in air piracy of the Project Insight Helicarriers to be used against the United States.

Statutory Authority:

Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $ 10,000; and shall be incapable of holding any office under the United States.

18 USCS § 2381

Count 7: Rebellion or Insurrection

James Buchanan Barnes willfully engaged in rebellion against the United States in the mutiny and air piracy of the Project Insight conspiracy.

Statutory Authority:

Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.

18 USCS § 2383

Count 8: Enlistment to Serve Against the United States

James Buchanan Barnes willfully served in armed hostility against the United States in the mutiny and air piracy of the Project Insight conspiracy.

Statutory Authority:

Whoever enlists or is engaged within the United States or in any place subject to the jurisdiction thereof, with intent to serve in armed hostility against the United States, shall be fined under this title or imprisoned not more than three years, or both.

18 USCS § 2390

Defenses:

Insanity Defense

(a) Affirmative defense. It is an affirmative defense to a prosecution under any Federal statute that, at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts. Mental disease or defect does not otherwise constitute a defense.

(b) Burden of proof. The defendant has the burden of proving the defense of insanity by clear and convincing evidence.

18 USCS § 17

[1] The world believes Nick Fury is dead in the MCU.

Can Supergirl Get Busted for Vandalism?

By

Josh Gilliland

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November 10, 2015

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Supergirl faced a non-Hobson’s Choice in fighting Reactron (and thankfully not Nuclear Man): melt off lead from a historic bust in order to safely encase Reactron’s nuclear core, so it would not meltdown. Kara had to quickly balance the interests in defacing art against preventing a nuclear incident in National City.

Let’s say she picked the right choice. Art has no value if a city cannot be inhabited for 10,000 years.

Willfully destroying property is vandalism. As one Court explained:

The historical definition of vandalism was derived from the destruction of many monuments of art and literature by the Vandals, who, in the fourth and fifth centuries, overran Gaul, Spain, and northern Africa, and, in 455 A. D., entered Italy and sacked Rome. Webster’s New International Dictionary, 1951 edition. It originally meant the barbaric and reckless destroying or spoiling of something venerable, artistic, or beautiful. However, in ordinary usage the word is not limited to destruction of works of art, but has been broadened in its meaning to include the destruction of property generally.

General Acci. Fire & Life Assurance Corp. v. Azar (Ga.Ct.App. 1961) 119 S.E.2d 82, 84-85, citing Webster’s New International Dictionary, 1951 edition, and 91 C. J. S., Vandalism, p. 802.

Supergirl’s bust melting would fall under the historic definition of vandalism, because a work of art had been destroyed by her actions (not necessarily barbaric or recklessly). Moreover, in the unlikely event National City is in Arkansas, she would have committed a Class D felony for defacing a “work of art on display in any public place” if the bust was worth more than $2,500. A.C.A. § 5-71-215.

No Court in the United States would find Supergirl criminally liable for vandalism. Kara’s actions were justified under the defense of necessity, which requires Supergirl prove:

1) She acted in an emergency to prevent a significant bodily harm or evil to National City, specifically a nuclear incident that could have made the city uninhabitable, massive radiation poisoning, and loss of life;

2) She had no adequate legal alternative, because Reactron was in hot pursuit to kill James Olsen and endangering National City with a nuclear device;

3) Supergirl’s acts did not create a greater danger than the one avoided (melt off some lead from a bust vs nuclear incident);

4) Supergirl actually believed that at the time she acted her actions were necessary to prevent the threatened harm or evil (Reactron was on the warpath, causing property damage and threatening others with a nuclear powered device);

5) A reasonable person would also have believed that the act was necessary under the circumstances; AND

6) The defendant did not substantially contribute to the emergency (Supergirl did not, but there is a good argument Maxwell Lord did by repairing Reactron’s battle armor).

2-3400 CALCRIM 3403

No DA in their right mind would charge Supergirl for melting a bust. Yes, it is vandalism, but these actions were justified given the gravity of the harm posed by Reactron.

Moira Queen on Trial: What Can They Actually Try Her For?

By

Brad Blanchard

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November 7, 2015

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I hate watching the law played out on TV, because the law is often exacting and detail oriented. But good stories often require painting with a broad brush. Which means I spend a lot of time saying “You can’t do that” while being shushed by others. But, aside from a few head scratching moments, The Arrow did one of the better jobs I’ve seen. Still, for fun, here’s my favorite pieces of what they got right, and what they got wrong.

Are you required to let your opponent know when you invoke Rule 15?
Absolutely! And a good attorney invokes it as often as needed.

What does Rule 15 do?
In a Federal criminal trial it means someone wants to depose a witness before trial. That helps you figure out how strong your case will be at trial. Both sides get to be there so, yeah, they know when you invoke it.

Under Federal civil rules you invoke Rule 15 to amend a pleading. Which you then serve on your adversary so, yeah, they also know that you invoked it.

Under Starling City rules, apparently, it means you want the death penalty… which you tell opposing counsel about in court… as a professional courtesy? They must invoke the death penalty a lot to give it its own rule. Example: “Your honor, I object! Also, I’d like to invoke Rule 15.”

Can Lead Attorney for the State Laurel be disbarred for talking to Defendant Moria Queen without Moira’s attorney present?
Yes. Will she be? Hard to say, but some kind of reprimand from the legal bar is likely.

The whole point of having a lawyer is to keep you from saying and doing things you’ll regret. Avoiding Moira’s lawyer, so you can talk to Moira alone, and convince her to take a plea deal, instead of going to trial, because you know about her affair with Malcom Merlyn, is bad form. It could screw up your case. It could also get you disbarred. Just a bad idea all around.

Did Moira engage in a Conspiracy to Murder?
Yes.

Conspiracy is an agreement between two or more people to commit a criminal act with an overt act to that end. She agreed to help out Malcom Merlyn with the machines that would destroy the Glades; she gave him access to the materials necessary to build machines; and she intended that the Glades be destroyed by the machines, along with all of its occupants. So, yeah, guilty of conspiracy to murder.

Does she have a defense for withdrawing?
Yes. Assuming her lawyer wasn’t so busy making unnecessary bail motions that she forgot to put on a withdrawal of conspiracy defense for the jury.

Going on TV to tell people you were part of a conspiracy is a pretty clear way to withdraw, especially if your co-conspirator is watching. And seeing as how Malcom waited some time to set off the machines, he had plenty of time to decide if he wanted to withdraw and not destroy the Glades as well. Even in a jurisdiction that requires the individual to stop the crime in order to withdraw, she would be ok because she pled for people to get out of the Glades, and then was prevented from further action by being immediately arrested by the police who would then, presumably, be responsible for stopping the crime. Unless, of course, they would prefer people who join conspiracies to withdraw by putting on a mask and going all vigilante on their former co-conspirators.

Is she responsible for aiding and abetting 503 mass murders?
That depends on how many people Malcom killed before she withdrew from the conspiracy.

She’s accountable for all the crimes that occurred before the she withdrew (including the “dozens” of murders he committed while she was part of the conspiracy) but not the stuff that happened afterwards. So, if we’re talking about the 503 people who died in the Glades after she went on TV, the answer is no.

If she were responsible for those deaths could she use duress as a defense?
No, not even if she met all the elements, which she doesn’t. Let’s run the numbers:

Well-grounded fear? Check!
Imminent threat of death or serious bodily harm? Umm… Probably not. Imminent means now, as in “right now!” Not months or years. A defense using months or years might work for someone chained in a house with no means of escape, but Moira is pretty much free to go wherever she wants and do whatever she wants whenever she wants.
No reasonable opportunity to escape? Well… she does live in her own house, run her own company and have enough money to go anywhere she wants in the world at any time, which would include, I’m assuming, the police station. Or, she could just tell the police when they come to her house. Which they do semi-regularly. So, I’m going to say no.

Even if she could meet all the elements, you’re not allowed to kill one person, or dozens, to save someone else, even if they are your children. Sorry Moira.

Can she be held responsible for jury tampering?
No. Unless Starling City has a special rule for that too.

Jury tampering occurs when an individual, such as Malcom Merlyn, by use of corruption or threats tries to influence the outcome of a trial. Jury tampering is serious business, and the penalties can be pretty severe. Let’s be honest though, if you’re Malcom Merlyn, and you’ve killed hundreds of people, a little jury tampering isn’t going to keep you up at night. But Moira had nothing to do with it so she can’t be held responsible. That’s all on Malcom.

Because the jury was tampered with, can they try her again?
No.

The Fifth amendment of the U.S. Constitution forbids double jeopardy, which means you can’t be tried twice for the same crime. Even if your former co-conspirator comes back from the dead and threatens the jury, once a jury reaches a not-guilty verdict and the judge ratifies it in court, they can’t try her again for that same crime. So, Moira is a free woman, but keeping all those secrets is going to get her killed if she’s not careful. Oh, wait….