Jemma Simmons is the New Punisher

April 29, 2015

Jemma Simmons planned to murder Grant Ward with a “splinter bomb” that would cause Ward to disintegrate as if exposed to the destructive force of a Diviner in the Agents of SHIELD episode “The Dirty Half Dozen.” This was murder at the most basic level of common law that was premeditated with malice aforethought. Agent Simmons truly transformed herself from Agent of SHIELD to the Punisher.

Make no mistake, Grant Ward has a body count that includes AT LEAST 5 SHIELD Agents 4 soldiers, 2 guards, 2 Airmen, 1 Senator (his brother), and parents (plus possible other family members). Ward has committed treason and international terrorism. There is no question that Ward has earned himself a death sentence by his long list of crimes.

The problem is Jemma Simmons is not supposed to be the judge, jury, and executioner. Agent Simmons has given herself the same moral standing as Frank Castle with her plan to kill Grant Ward that resulted in the death of Sunil Bakshi. Worse yet, it is bad when the terrorist who killed his own brother (a US Senator) gives you a lesson on morality after you kill someone.

Let’s be clear: Simmons murdered Bakshi under the doctrine of transferred intent. Simmons intended to murder Ward, but instead killed Bakshi, who attempted to save Ward. The intent to kill Ward would be “transferred” to Bakshi. This makes Simmons not just guilty of the attempted murder of Ward, but the murder of Bakshi.

Jemma Simmons turning into a murderer is directly connected to SHIELD no longer being the “Strategic Homeland Intervention Enforcement Logistics Division,” but a bunch of mercenaries since Captain America The Winter Soldier. It is true that they tried maintaining their mission to fight HYDRA (and other international terrorism), but SHIELD itself is no longer taking orders from the US Government. Law enforcement is a thing of the past. Upholding the Constitution is ignored in the name of security. Personal foreign policies are forged in violation of the Logan Act and totally ignore the War Powers Act, let alone the chain of command. These are all bad traits that result in heroic characters becoming shadows of their former selves.

How should this change? SHIELD should go back to its roots as quickly as possible after Avengers Age of Ultron. SHIELD should be about upholding the law, opposed to taking the law into one’s own hands. Save that for when the Punisher appears in a future season of Daredevil.

Batty Crimes on Gotham

Josh Gilliland

April 28, 2015

The Gotham episode “The Anvil or the Hammer,” taught us the following legal lessons in bad decision making:

The Gotham PD have not read the 4th Amendment. No one gets a search warrant for anything, like searching a suspect’s apartment;

Barbara Kean is either a) an accessory to three murders; b) insane c) both;

The Fox Club has the crimes Professor Whitebread said would NEVER be on a Bar Exam; and

Edward Nigma is a murder.

Riddle Me This: Who Needs a Search Warrant to Enter an Apartment?

Answer: The Police!

Detectives Gordon and Bullock entered the Ogre’s apartment after getting a tip from a prostitute the Ogre maimed nine years earlier. The goal was to save Barbara Kean from the suspected serial killer.

Did the police need to get a warrant? Calling the duty judge would take time in the 24-hour window since Kean’s abduction. The 4^th Amendment requires a search warrant for the police to enter someone’s home, unless there are “exigent circumstances.” The threat to Kean’s life arguably was an imminent and ongoing danger to life, so Gordon and Bullock have a strong argument for violating the 4^th Amendment.

Is Barbara Batty?

Barbara Kean telling the Ogre to kill her parents does not fall under the necessity defense. You cannot get other people killed to save yourself. That is exactly what Barbara did with her parricide (and butler-cide). There is no question she was the proximate cause of these three murders.

The Ogre was the one who did the actual killing, however, “but for” Barbara telling the Ogre to kill her parents, no murders would have taken place. Barbara’s actions take her from tortured hostage to accessory by the willful targeting of others for death.

Could Barbara argue insanity defense? That she lost her mind from fear? Maybe, but that likely will show she is not competent to stand trial and would spend her time in a state mental hospital.

What Does the Fox Say?

Way back while studying for the California Bar Exam, the great Criminal Law Professor Charles Whitebread said you would never see a bar exam question involving bestiality, buggery, or any other funky sex crime.

Gotham went there.

That will be one surreal arraignment.

The Riddler’s Odyssey

Murder does not win the heart of a girl. Edward Nigma laid in wait, confronted an off duty police officer, and stabbed him. Nigma then cut up the body with an ax, took it to the police station, melted it down, and then crushed the bones.

It does not take much of a riddle to see that is murder.

Wayne Enterprises

There is no question Wayne Enterprises is breaking a large number of Federal, state, and international laws. There is a good bet they are also violating the Foreign Corrupt Practices Act, but we do not yet know enough about their business practices to know for sure.

The Fonz Would Not Be Cool with Jiaying Sending Mr. Hyde to Milwaukee

Josh Gilliland

April 23, 2015

Jiaying ordering Calvin “Mr. Hyde” Zabo to be dropped off in Milwaukee would not have a “Happy Days” ending on Agents of SHIELD. Jiaying’s willful indifference to the damage that Cal could wreck upon anyone doing a pilgrimage to the Shotz Brewery could subject her to criminal liability. In short, a jury would find Jiaying’s statement, “those people are not my concern,” to be not “cool.”

As Jiaying will learn, liability for the reckless endangerment of others cannot be avoided as easily as Chuck Cunningham.

Taking Cal to Arnold’s

“Mr. Hyde” is a highly unstable individual with super strength as a result from experimenting on himself. Cal’s actions on Agents of SHIELD have included unlawful human experimentation; murder; committing treason by providing HYDRA a Diviner (a WMD); forming a criminal conspiracy with super-powered humans to attack a high school; and an attempted mass casualty event by broadcasting Angar the Screamer over an AM radio channel (OK, maybe not mass casualty, but a few).

Cal is also mentally unhinged. Skye/Daisy recognized the danger in simply dropping Cal off in Milwaukee like an abandoned puppy. When confronted with the fact that Cal is dangerous and would go on a rampage, Jiaying’s reply simply was “those people are not my concern.”

I Found My Liability on Blueberry Hill

Wisconsin defines Recklessly Endangering Safety as follows:

(1) FIRST-DEGREE RECKLESSLY ENDANGERING SAFETY.Whoever recklessly endangers another’s safety under circumstances which show utter disregard for human life is guilty of a Class F felony.

(2) SECOND-DEGREE RECKLESSLY ENDANGERING SAFETY.Whoever recklessly endangers another’s safety is guilty of a Class G felony.Sub. (2) is new. It creates the offense of endangering safety by criminal recklessness. See s. 939.24 and the NOTE thereto. [Bill 191-S].

Wis. Stat. § 941.30.

Criminal recklessness is defined when someone creates “an unreasonable and substantial risk of death or great bodily harm to another human being and the actor is aware of that risk.” Wis. Stat. § 939.24.

Jiaying having Gordon teleport to Milwaukee and leave Mr. Hyde to rampage demonstrates an utter disregard for human life. Jiaying’s actions are purposeful and with the knowledge that Cal will start injuring others out of anger. A jury would find such conduct inhuman if innocent people were injured after abandoning Cal, showing there was a substantial risk for Mr. Hyde to injure others and that Jiaying knew of the risk, but decided to engage in the conduct anyway.

Now, here is a question: Was the Fonz an Inhuman? He could control the jukebox with the snap of his fingers and win the hearts of the ladies at will. If Fonzie was an Inhuman, his powers did not save him from jumping the shark.

Did Bruce Wayne Break His One Rule by Being an Accessory After the Fact to Murder?

Josh Gilliland

April 21, 2015

Bruce Wayne on Gotham is neither the Caped Crusader nor the Boy Wonder. However, he might be an accessory after the fact to Selina Kyle’s murder of Reggie Payne. Did Batman break his one rule for the first girl who kissed him?

Maybe…

First things first: Selina Kyle pushed Reggie Payne out of a five-story window that resulted in his death. This meets the statutory definition of murder, because Selina Kyle both knowingly and purposely caused Payne’s death. N.J. Stat. § 2C:11-3(a)(1) and (2).

Bruce was with Selina Kyle at the time of Payne’s fall in order to get information on the Wayne Enterprise’s conspiracy. Bruce himself considered pushing Payne out of the window, but stopped. This shows Bruce did not have the intent to kill Reggie Payne.

Selina told Bruce not to tell anyone about her murdering Payne. Does Bruce Wayne’s covering up of Selina’s murder of Payne make him an accessory after the fact?

Under New Jersey law, assuming Gotham City is in New Jersey, a person is legally accountable for the conduct of another person when:

(1) Acting with the kind of culpability that is sufficient for the commission of the offense, he causes an innocent or irresponsible person to engage in such conduct;

(2) He is made accountable for the conduct of such other person by the code or by the law defining the offense;

(3) He is an accomplice of such other person in the commission of an offense; or

(4) He is engaged in a conspiracy with such other person.

N.J. Stat. § 2C:2-6(b).

New Jersey case law explains that an accessory needs only to have notice that the other person committed a “high misdemeanor” and knowing that assisting that person would justify a conviction. See, State v. Lynch, 79 N.J. 327, 399 A.2d 629, 1979 N.J. LEXIS 1199 (1979).

As another case explained, New Jersey requires that an accomplice act with the same purposeful state of mind in furtherance of a crime for liability. State v. Whitaker (2009) 200 N.J. 444, 457-458; N.J.S.A. 2C:2-6(c)(1). Moreover, “mere knowledge, without more,” does not make one an accomplice. Id. As such, an “accomplice is only guilty of the same crime committed by the principal if he shares the same criminal state of mind as the principal.” Whitaker, at *458-459. However, the accessory can be guilty of lessor crime. Id.

What does this mean for Bruce Wayne? Bruce did not have the intent to kill Reggie Payne, thus Bruce did not have the same murderous intent as Selina. Moreover, Bruce actually decided not to push Reggie out of the window. As such, Bruce did not have any criminal intent, where Selina certainly had criminal intent to commit murder. As such, it is unlikely Bruce could be convicted for murder, but certainly for obstruction of justice and related crimes for helping cover-up a murder.

2015 Big Wow Comicfest Recap

Josh Gilliland

April 20, 2015

Big Wow Comicfest was once again a great show. It was awesome to catch up with friends I have made over the past two shows. I was also thrilled to have my first panel at Big Wow on Agents of SHIELD, Agent Carter, and Captain America The Winter Soldier (with a footnote from Iron Man 3).

The Legendary Jim Steranko

Jim Steranko gives a new definition to “Renaissance Man.” Jim Steranko is known for his amazing work on Nick Fury, Agent of SHIELD, Captain America, and numerous other comics.

Mr. Steranko also is an escape artist, magician, male model, and I would not be surprised if the “Most Interesting Man in the World” is based on him.

The “Steranko” panel was an interview where Jim shared many of his life adventures. After the panel, I waited in line for his autograph.

Jim Steranko really appreciates his fans. He spent a fair amount of time visiting people, which increased wait times to speak with him to an hour. However, I greatly enjoyed hearing the band Anadel play an acoustic set around their table.

And yes, I picked up artwork by Steranko and had it autographed.

Catching Up with the Boston Metaphysical Society

My friend Madeleine Holly-Rosing was at Big Wow with issue five of BMS, the latest in the six-part steampunk series. It was great to catch-up with Madeleine. If you have not read Boston Metaphysical Society, I strongly recommend checking it out.

Lawyers of SHIELD

I was thrilled to have a packed room for my panel at Big Wow. I estimate we had around 50 people, with around 6 standing in the back of the room.

The attendees were a lot of fun with great energy. There was a teenage cosplayer dressed as a very impressive Batgirl with her mother in the front row. The level of detail was amazing and a skill I totally lack. Well done.

I was impressed with the questions the attendees asked, such as whether Reed Richards was criminally negligent for Goliath’s death by the clone Thor in Civil War, details on treason, and criminal procedure.

One of the attendees came up afterward and said he was a police officer with the SFPD. The officer said they have many speakers come in to teach Constitutional Criminal Procedure. I was really flattered that he thought it would be fun for me to teach a class. And I would in a heartbeat.

I was really honored that two of the attendees were friends dating back to the seventh grade, back when we had a comic book club at Sunnyvale Junior High. One I had not seen since the eighth grade, the other since high school. It was a great to catch up and see where their careers had taken them.

Stay Tuned…

Big Wow was an awesome show. The Legal Geeks will return at another show, perhaps to discuss Daredevil, Age of Ultron, or other geek issues in the law.

Big Wow, thanks for the memories.

Did Karen Page on Daredevil Act in Self-Defense?

Josh Gilliland

April 17, 2015

Karen Page on Daredevil is a case study in self-defense. If you have not watched the entire series, stop reading now.

James Wesley, the Kingpin’s chief enforcer, kidnapped Karen Page as she was entering her building. Wesley drugged Page and took her to a warehouse. This definitely was at least kidnapping in the second degree, which defines kidnapping as the act of abducting another person. NY CLS Penal § 135.20.

Page awoke sitting in a chair at a table. Wesley placed a loaded gun on the center of the table as a threat. Wesley offered Page a job to renounce her criticisms on the Kingpin. Wesley threatened to kill Ben Urich, Matt Murdock, Franklin Nelson, and basically everyone else Page knew if she did not accept.

Page’s solution: grab gun when Wesley’s phone rang and shoot Wesley multiple times until dead. There was a pause between the first shot before firing repeatedly.

Did Karen Page act in self-defense or did she murder James Wesley?

Self-defense under New York law permits the “use physical force upon another person when and to the extent he or she reasonably believes such to be necessary to defend himself, herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful physical force by such other person.” NY CLS Penal § 35.15(1).

There are substantial factors that limit the use of force, such as the defendant being the one to provoke the victim or was the initial aggressor. NY CLS Penal § 35.15(1)(a) and (b).

Lawyers arguing self-defense need to prove the use of force was both what a reasonable person would do and justifiable from the defendant’s subjective state of mind. (See, Justification —What Is Reasonable Belief?, by Alan D. Marrus, Acting Supreme Court Justice, Kings County, New York. General Editor, John M. Castellano, Esq., Member of New York Bar, NY CLS Penal § 35.15, Practice Insights). As such, Judge Alan D. Marrus explained:

To pass the subjective test, counsel will probably need to call the defendant as a witness to testify as to his state of mind when he committed the criminal act. The defendant’s testimony would be able to establish how the defendant perceived the situation, e.g. what he saw the victim doing, what he heard the victim saying, what he knew about the victim’s propensity for violence, and the fear the defendant experienced about an imminent danger to himself or another.

Id.

Karen Page has a very strong argument she acted in self-defense both objectively and subjectively. First, she had been drugged and kidnapped. Second, Wesley placed a gun on the table where he could use the weapon on her. Third, Wesley made a verbal threat that she and all of her friends would be butchered if she did not submit to Wesley’s demands to effectively live in captivity indefinitely.

Karen Page subjectively could believe she was in mortal danger given the fact one man had already been murdered in her apartment, that she had been framed for that murder, and that an assassin had already been sent to hill her once before. Moreover, multiple other people had been killed already in the Kingpin’s conspiracy.

The facts against Page are that she paused after firing the first shot. Wesley had been seriously injured after Page shot him at close range. It appeared she verified the gun was actually loaded and thought before firing multiple times. Wesley was physically unable to threaten Page after the first shot. Opening fire on Wesley looks like premeditated murder.

The arguments against Page murdering Wesley is that she had been kidnapped and Wesley had the power to order her death if he was still alive. Page was very aware of the prior murder attempt on her life by the Kingpin’s assassin who had committed “suicide” in jail. Objectively from the facts, and subjectively from the threat made directly against Page, she has an extremely strong self-defense argument.

Was John Healy’s Speedy Trial Accurate on Daredevil?

Josh Gilliland

April 15, 2015

The Daredevil episode a “Rabbit in a Snowstorm” centered on a Nelson & Murdock being hired by a mysterious company to represent a hit man named John Healy. The trial was highly expedited and the Defendant argued he gave a victim a compound fracture, and beat the victim to death with a bowling ball, in self-defense.

The defendant agreed to waive discovery, hearings, and demanded a 180.80. I asked New York Judge Matthew Sciarrino if he could discuss the accuracy of the proceedings. Here is what the good judge said:

If a defendant is arrested for a felony CPL 180.80 applies.

“Upon application of a defendant against whom a felony complaint has been filed with a local criminal court, and who, since the time of his arrest or subsequent thereto, has been held in custody pending disposition of such felony complaint, and who has been confined in such custody for a period of more than one hundred twenty hours or, in the event that a Saturday, Sunday or legal holiday occurs during such custody, one hundred forty-four hours, without either a disposition of the felony complaint or commencement of a hearing thereon, the local criminal court must release him on his own recognizance unless….”

So, upon expiration of exactly 120144 hours from time of arrest (144 hours is calculated from time of arrest – 180.80 is measured in terms of hours (down to the minute), not days) unless:

The failure to dispose of the felony complaint or to commence a hearing thereon was due to the defendant’s request, action, condition or consent; or

Prior to the application, the District Attorney files a written certification that an indictment has been voted, or an indictment or direction to file a prosecutor’s information was filed by the Grand Jury; or

Good cause for not releasing the defendant from custody is shown

As was seen by the advice of the lawyer Matt Murdock, a defense attorney may often waive 180.80 to allow the DA additional time to investigate, or to negotiate a plea deal.

Now, for misdemeanors, CPL 170,70 applies and unlike 180.80 calculations, when computing the 170.70 date you must count five days from the arraignment date, not from the arrest date. You must include the day of arraignment in your calculation and you must skip Sundays when making this calculation.

You also heard Matt Murdock refer to speedy trial. Speedy trial is not the same as 180.80/170.70. Speedy trial which is governed by section 30.30 (Statutory Speedy Trial Rights) and 30.20 (Constitutional Speedy Trial Rights).

Under 30.30, the time within which the People must effectively announce their readiness for trial (with certain statutory time period exclusion, i.e., for discovery or motions). The time limitations within which the People must answer ready for trial are as follows:

Six months for a felony (no statutory speedy trial for Murder);

90 days for a class A misdemeanor or any unclassified misdemeanor punishable by a term of imprisonment of more than three months;

60 days for a class B misdemeanor;

30 days for a violation.

A huge “thank you” to Judge Sciarrino for explaining the procedures depicted in Daredevil.

Bowling for Acquittal

The argument of self-defense was novel to say the least. Self-defense under New York law permits the “use physical force upon another person when and to the extent he or she reasonably believes such to be necessary to defend himself, herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful physical force by such other person.” NY CLS Penal § 35.15(1).

There are substantial factors that limit the use of force, such as the defendant being the one to provoke the victim or was the initial aggressor. NY CLS Penal § 35.15(1)(a) and (b).

Lawyers arguing self-defense need to prove the use of force was both what a reasonable person would do and justifiable from the defendant’s subjective state of mind. (See, Justification —What Is Reasonable Belief? By Alan D. Marrus, Acting Supreme Court Justice, Kings County, New York., General Editor, John M. Castellano, Esq., Member of New York Bar, NY CLS Penal § 35.15, Practice Insights). As such, Judge Alan D. Marrus explained:

Id.

The Defense took the very risky position of NOT having the Defendant John Healy testify as to his state of mind. While it is normally dangerous for a Defendant to testify anyway, it is difficult to prove someone’s subjective belief without the Defendant’s testimony.

The Courtroom scene with Matt Murdock was cool, with dramatic lighting, and a very legal sounding argument. However, procedurally how they even got into court on the shortest murder trial ever would only happen in a comic book.

As to whether or not it violates a lawyer’s continuing duty of loyalty to dress as a vigilante and attack a former client for information on a criminal conspiracy, one can argue representation had ended, but that is another issue entirely.

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