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

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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

By

Josh Gilliland

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April 20, 2015

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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?

By

Josh Gilliland

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April 17, 2015

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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?

By

Josh Gilliland

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April 15, 2015

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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:

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.

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.

Thoughts on the 150th Anniversary of the Assassination of President Abraham Lincoln

By

Josh Gilliland

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April 14, 2015

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I am haunted by history. 150 years ago, the best chance for reunification after the Civil War died with President Abraham Lincoln in an attempted decapitation strike on the United States. John Wilkes Booth’s conspiracy included other assassins killing Vice President Andrew Johnson and Secretary of State William H. Seward. Both attempts failed.

But the real damage to the United States was done.

Lincoln’s death caused the United States to lose the peace after the Civil War. The South had surrendered five days earlier. Louisiana’s petition to rejoin the Union on very favorable terms set by President Lincoln was rejected by the Congress. Lincoln was set to announce his new plans for Reconstruction on Monday April 17, 1865.

Abraham Lincoln died at the worst possible moment for the country. Vice President Johnson assumed the Presidency while Congress was out of session. Months literally went by with no terms being set on the South, letting those who had committed mass treason to nullify a Presidential Election over their self-proclaimed right to own other human beings to maintain their way of life.

The Civil War cost the United States the lives of enough soldiers to fill eleven Vietnam Memorial Walls. There are single day battles in the Civil War that cost the same number of lives lost in the War on Terror since September 11, 2001. It is difficult to comprehend death in such staggering numbers.

When Congress returned to session, the former states in rebellion sent former Confederate officers to represent them. Some even reported in Confederate Uniforms. The former Confederate Vice President, who was in prison, was elected to the Senate.

Congress refused to seat the traitors. Politics became extremely ugly between President Johnson and Congress leading to Radical Reconstruction after 1866.

If Lincoln had not been murdered, the chain of events that lead to the rise of the Ku Klux Klan, voter suppression, outright terrorism of US citizens, Convict Leasing, and decades of other inhumanities could have been totally avoided. President Lincoln sought malice toward none and generosity for all. John Wilkes Booth derailed the promise of what America could have been after the Civil War with a single bullet.

I am haunted by what might have been. This should never undermine what we can do as one nation. We cannot surrender what has been won, but never forgot what that victory cost our country.

Did Selina Kyle Commit Murder or Act in Self Defense?

By

Josh Gilliland

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April 14, 2015

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Oh, the future Catwoman. What does she do on Gotham when a heroin addict, who was in the British military, threatens to tell a ruthless corporate criminal on she and Bruce? Push the addict out the window while he is trying to retrieve his drugs.

Is pushing an unarmed man out a window, with his back to you, self-defense? Or is that murder?

New Jersey defines murder as when 1) someone “purposely causes death or serious bodily injury resulting in death;” or 2) when someone “knowingly causes death or serious bodily injury resulting in death.” N.J. Stat. § 2C:11-3(a)(1) and (2). Furthermore, a juvenile tried and convicted as an adult can be sentenced to at least 30 years without parole, or sentenced to a time between 30 years and life imprisonment, with parole eligibility in 30 years. N.J. Stat. § 2C:11-3(b)(5); (b)(1).

Pushing an unarmed man out the window of a multistory building is both a purposeful act and Kyle knew it would cause the victim’s death.

A person can use force to protect him or herself if they “reasonably believe that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.” N.J. Stat. § 2C:3-4(a).

A drug addicted verbally threatened Selina Kyle and Bruce Wayne that “I am going to tell on you.” The drug addict was not armed. The victim’s threat was that a third-party would cause them harm once the youth had been identified to the third-party. These facts do not show the victim was using any unlawful force to physically threaten Selina Kyle and Bruce Wayne. As such, Kyle’s actions look like murder and not self-defense.

Selina Kyle’s age would be to her advantage as a defense. In only one decision was a 14-year old tried as an adult and convicted for murder, felony murder, first degree kidnapping, second degree kidnapping, conspiracy to commit first degree robbery, first degree robbery, second degree possession of a weapon for an unlawful purpose, third degree unlawful possession of a handgun, and second degree sexual assault. State v. Jones (Super.Ct.App.Div. 1998) 308 N.J.Super. 174, 178, fn. 1.

The facts of the case from 1998 are extremely dissimilar than Kyle pushing someone out a window. Could she be tried as an adult? Highly unlikely.

A Daredevil of Attorney Ethics Over the Crime-Fraud Exception

By

Josh Gilliland

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April 13, 2015

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Marci Stahl, Esq., a [fictional] attorney at the [fictional] “Big Law Firm” Landman & Zack, is a case study of attorney ethics on Marvel’s Daredevil series on Netflix.

Landman & Zack is the mythical law firm we heard about in law school. First year associates probably are paid $190,000 a year, have to bill 720 hours a month, and represent morally ambiguous clients, like a Japanese whaling company. Some poor lawyer has to say with a straight face, “My client is simply conducting research, tasty research,” in a defamation and harassment suit against environmental activists. These lawyers learn to live without having a reflection thanks to suits made from endangered species. For the lucky few who do not have a nervous breakdown, they have the option to go to the Carousel at age 35, with the hopes of becoming a junior partner.

Enter Marci Stahl, Esq., the former girlfriend of Foggy Nelson. Ms. Stahl admits to “Foggy Bear” Nelson that Landman & Zack represents Wilson Fisk, the crime lord who is not yet called The Kingpin. Fisk is the law firm’s highest billing client.

Nelson confronted Stahl that her firm was aiding Fisk in a criminal enterprise. Furthermore, Nelson went so far as to say Stahl had lost her soul at Landman & Zack. Stahl responds by sneaking Fisk’s client files out of Landman & Zack and giving them to the law firm Nelson & Murdock.

Marci Stahl’s actions are a piñata of ethical issues. Attorneys have a duty to counsel a client to NOT engage in illegal conduct. New York Rules of Professional Conduct 1.2(d). Furthermore, a lawyer may refuse to participate in conduct the lawyer believes to be unlawful. New York Rules of Professional Conduct 1.2(f). As stated in comment 10 to Rule 1.2(d), lawyers are to avoid assisting a client by preparing a fraudulent document or concealing wrongdoing. As such, a lawyer should advise a client if the requested conduct would violate the law. Id. If a client will not change their conduct and the lawyer’s participation would violate the law, the lawyer should withdraw from the case. Id. Moreover, there are cases where a lawyer would have to disaffirm any documents prepared for the client. Id; Rule 1.6(b)(3); Rule 4.1, Comment [3].

Ms. Stahl turned over client material to an adverse law firm. This is highly problematic for her, because a lawyer should not knowingly reveal confidential information. New York Rules of Professional Conduct 1.6(a) and NY CLS CPLR § 4503. A lawyer can reveal confidential information under the following conditions:

1) To prevent reasonably certain death or substantial bodily harm;

2) To prevent the client from committing a crime;

3) To withdraw a written or oral opinion or representation previously given by the lawyer and reasonably believed by the lawyer still to be relied upon by a third person, where the lawyer has discovered that the opinion or representation was based on materially inaccurate information or is being used to further a crime or fraud;

4) To secure legal advice about compliance with these Rules or other law by the lawyer, another lawyer associated with the lawyer’s firm or the law firm;

5)(i) To defend the lawyer or the lawyer’s employees and associates against an accusation of wrongful conduct;

New York Rules of Professional Conduct 1.6(b).

Ms. Stahl turned over information to Nelson & Murdock without the knowledge of her firm or consent of her client. The information was clearly “confidential.” However, it was also evidence of racketeering. As recognized by New York Courts, the “intent to commit a crime is not a protected confidence or secret.” People v. DePallo (2001) 96 N.Y.2d 437, 442.

The “Crime-Fraud” exception to attorney work product doctrine is not “intended to shield an attorney’s or his agent’s fraud or otherwise impede investigation of criminal activity.” In re Grand Jury Subpoenas Served upon John Doe (Sup.Ct. 1988) 142 Misc.2d 229, 232. The purpose of keeping attorney work product confidential is “to protect from disclosure to party adversaries the attorney’s mental thought process in determining the significance of evidence and the strategies and arguments he has developed in preparing a case for trial.” Id; 3A Weinstein-Korn-Miller, NY Civ Prac para. 3104.43, at 31-157.)

Landman & Zack’s work product is likely key evidence in the racketeering charges against Wilson Fisk. The fact lawyers assisted a criminal enterprise would make them part of a conspiracy, and subject to immediate disbarment if convicted. Attorneys have been charged in the past with racketeering in violation of 18 USCS § 1962(c), so this is not the stuff of comic book stories. See, Wade v Gaither (2009, DC Utah) 623 F Supp 2d 1277.

Stahl’s best argument for turning over client confidential material to Nelson & Murdock is that she engaged the firm to secure advice on compliance with her ethical duties and whether her client had broken the law. While this argument is problematic since the firm Nelson & Murdock had been adversarial to Wilson Fisk, thus on its face should violate Stahl’s duty to loyalty to Fisk, it is the least bad position for her. The better plan would have been turning the material over to the FBI in order to prevent her client from committing more crimes. However, with the way anyone who opposed Wilson Fisk kept ending up dead, it was objectively reasonable for Stahl to work with another law firm.