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

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April 14, 2015

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

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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.

Daredevil Into the Ring (and Confession)

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Josh Gilliland

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April 10, 2015

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Daredevil is here on Netflix, and man, do we have great legal issues just in the first episode.

As a preliminary matter, that toxic waste company should have given the Murdock family one heck of a check for blinding Matt Murdock. Granted, there would be significant issues for a trial on who was at fault in an accident, which would determine which driver’s insurance company would pay the different victims, but it is hard to escape liability for toxic chemicals, especially if the truck driver was at fault.

Forgive Me Father I am GOING to Sin

Matt Murdock asked a Priest for forgiveness for a sin he was going to commit. This clearly demonstrated Charlie Cox’s emotional acting skills and raised an issue: could the Priest go to the police if he believed Murdock was going to commit a crime?

New York defines the Clergy Privilege as follows:

Unless the person confessing or confiding waives the privilege, a clergyman, or other minister of any religion or duly accredited Christian Science practitioner, shall not be allowed disclose a confession or confidence made to him in his professional character as spiritual advisor.

NY CLS CPLR § 4505.

In order for a communication to be protected by the clergy privilege, the communication must: 1) it must be confidential; 2) it must be made to a minister or clergy member acting in a professional character as a spiritual advisor; 3) it must be made for the purpose of seeking spiritual advice or religious counsel; and 4) it must not be waived by the person making the confidential statement. People v. Harris (Sup.Ct.) 934 N.Y.S.2d 639, 645.

Murdock’s “confession” seems to meet all four elements.

First things first: Confession usually is about seeking forgiveness for PAST sins. Alternatively, many seek spiritual guidance on difficult choices they have to make. Matt Murdock’s visit to confession falls into both categories, because he effectively was seeking advice for actions he was going to take as a vigilante. As such, the Priest could not disclose communications made to him from someone seeking spiritual advice.

If Matt Murdock went and sought forgiveness for beating up four men who were kidnapping women to be sold into slavery overseas, the Priest should give the lawyer a high five in the confessional booth. While Romans 12:19 in he Bible states, “Vengeance is mine, I will repay,” there is the brutal reality that the law allows for the defense of others. Saving people from slavery should not involve any feelings of guilt.

Saving Others from Slavery

Daredevil saved four women from being sold overseas into slavery for $1,000 a head. This rescue involved seeking out those in danger and engaging four men in brutal hand-to-hand combat. Was this legal in New York?

New York allows for the defense of others:

A person may, subject to the provisions of subdivision two, 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, unless:

(a) The latter’s conduct was provoked by the actor 1 with intent to cause physical injury to another person; or

(b) The actor was the initial aggressor; except that in such case 1 the use of physical force is nevertheless justifiable if 2 the actor has withdrawn from the encounter and effectively communicated such withdrawal to such other person but the latter persists in continuing the incident by the use or threatened imminent use of unlawful physical force; or

(c) The physical force involved is the product of a combat by agreement not specifically authorized by law.

NY CLS Penal § 35.15.

A District Attorney might argue that Daredevil was the initial aggressor in the fight. This argument would fail. The female victims were clearly kidnapped, physically harmed, and about to be locked in a shipping dark shipping container with a bucket for a bathroom. Daredevil entered the scene well after the first “aggression” had taken place. As such, a person could reasonably believe that the mobsters were using unlawful physical force on the women by kidnapping them. Daredevil’s actions were thus legally justified.

Just the Beginning

Those were the legal issues in just the opening minutes of the show. There are many other significant legal issues, from bribing police officers with cigars, being retained as counsel by a criminal defendant, the state holding someone without pressing charges, Whistle Blower Protections, the duty of loyalty to a client, extortion, fraud, money laundering, drugs, conspiracy, and likely a growing list of high crimes.

There are also many issues with setting up a law practice, from what kind of entity to form, advantages of a Partnership vs Limited Liability Partnership, rental agreements, insurance requirements for employees, HR compliance for employees, malpractice insurance, legal research accounts, a matter management tool, and a discovery management application. However, law office management is not really that exciting on a super-hero TV show.

The first episode of Daredevil opened with a bang. Great job and looking forward to binge watch the rest.

Which SHIELD is the Real SHIELD?

By

Josh Gilliland

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April 8, 2015

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Answer: Neither.

The reason neither SHIELD is legal is simple: Neither Director Coulson nor Commander Gonzales are operating under authority of the United States Government. No one is working with the Attorney General for law enforcement operations in the United States or the Secretary of Defense for the USS Iliad, possibly the last helicarrier at sea. Certainly no one is following the President’s orders. In short, Commander Robert Gonzales’ SHIELD operates like a military junta outside of the US chain of command.

The Day SHIELD Fell

The US military, under the command of Air Force General Talbot led an assault on the SHIELD Hub after the events of Captain America The Winter Soldier. As seen in the last episodes of season one of Agents of SHIELD, SHIELD was ordered to surrender. Multiple non-fatal confrontations have taken place between Coulson’s SHIELD Agents and the Talbot’s troops. A détente has been reached between Coulson’s SHIELD and Talbot, giving Coulson the air of legitimacy as quasi-government contractors conducting military activities.

The same cannot be said of Robert Gonzales. It is tempting to compare the Iliad to the Battlestar Galactica, but that comparison would be in error. Admiral Adama had President Laura Roslin and ultimately a new Quorum of Twelve. The stands in total contrast to the surviving SHIELD Agents onboard the Iliad, who apparently are not in communication with the United States Government. The Iliad seems to have more in common with the CSS Shenandoah, the last Confederate warship that unknowingly continued raiding Union shipping for months, unaware the Civil War was over. All of those Confederate sailors should have been hung for piracy. [Last Flag Down by John Baldwin and Ron Powers is a great telling of the CSS Shenandoah’s story].

Commander Gonzales and his SHIELD Agents recaptured the Iliad after HYDRA came out of the shadows and into the light. However, the fact Gonzales told Agent May that he had been “out voted” is evidence that Gonzales is not taking orders from the President, Secretary of Defense, Attorney General, or anyone in the military chain of command. This means a nuclear powered flying aircraft carrier with WMD is cruising the Seven Seas on their own orders.

This would not be acceptable after the events of Captain America The Winter Soldier. If a helicarrier were “lost” and not responding to orders, the Navy would have orders to sink the Iliad. There is too much risk in having a rogue flying ship that can level cities at sea that is outside of the military chain of command.

The “Real” SHIELD Would Follow the Constitution

The fact Gonzales’ SHIELD Agents captured Coulson’s SHIELD base without any other Federal law enforcement agencies, that no one was arrested was given Miranda Rights, and the total subversion of the Writ of Habeas Corpus, is further evidence that Gonzales’ SHIELD is not the “real SHIELD.”

There is another issue with the SHIELD Junta onboard the Iliad: they are violating the Posse Commitatus Act, 18 USCS § 1385. The Army and Air Force is expressly prohibited from conducting law enforcement. The Navy and Marine Corps are bound by the Posse Comitatus Act, pursuant to Department of Defense regulations promulgated under 10 USCS § 375, DOD Directive 5525.5(c), SECNAVINST 5820.7B. However, the Navy can provide passive participation to the Coast Guard in conducting drug boardings, arrests, interrogations and ensuing investigations. United States v Mendoza-Cecelia (1992, CA11 Fla) 963 F2d 1467, cert den (1992) 506 US 964.

SHIELD is a strange comic book agency where law enforcement is merged with espionage and military operations. These functions are separate in the real world. Commander Gonzales could argue his assault on Coulson’s SHIELD was a military operation on US soil, however this argument would fail. Claiming law enforcement activities are military operations to get around the Posse Commitatus Act would not fly, because that violates the entire purpose of prohibiting the military from conducting law enforcement.

There is no doubt that the attack and capture of Coulson’s SHIELD was done without warrants, reading Miranda Rights to those arrested, and ignored the Writ of Habeas Corpus. All of these events demonstrate the “real SHIELD” is not operating legally. Gonzales’ SHIELD agents are mutineers at best for not following orders after SHIELD fell and pirates at worse for illegally abducting Hunter and May to the Iliad.

[Noted: Corrected on April 15]

Big Wow ComicFest Panel on Agents of SHIELD AND Agent Carter!

By

Josh Gilliland

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April 7, 2015

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I am extremely excited to be speaking at Big Wow Comic Fest on April 18, 2015, at 3pm, room 231B.

I have attended Big Wow the last two years and am thrilled to have a panel this year. I am also looking forward to seeing Jim Steranko, other guests, exhibitors, and cosplayers at the show.

I will be speaking on the legal issues from Agents of SHIELD, Agent Carter, and Captain America The Winter Soldier. Here is the complete description:

Lawyers of SHIELD: The Level 7 Hornbook to Criminal & Constitutional Law

Agents of SHIELD and Captain America The Winter Soldier were Constitutional joyrides. Joshua Gilliland, one of the two attorney bloggers from The Legal Geeks, will break down the legal issues from both seasons of Agents of SHIELD, Agent Carter and Captain America The Winter Soldier.

The presentation will address what is known about the legal structure of SHIELD, the lawfulness of resurrecting Agent Coulson, whether SHIELD violated the 4^th Amendment with their computer searches, the legality of the SSR operating in the United States after World War 2, and whether the Winter Soldier could be convicted of treason. The material will also discuss how drones can be used in law enforcement and due process issues from Agents of SHIELD.

The session will cover the numerous legal issues from Agent Carter and season two of Agents of SHIELD. If you are going to Big Wow, I hope you can join me on April 18th at 3pm. Tickets can be purchased online at Big Wow Comic Fest.

Can Matt Murdock be Disbarred for Vigilantism?

By

Josh Gilliland

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April 3, 2015

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Daredevil the Series is nearly here. Finally: a lawyer who is a super-hero. Many geeks, and geeky lawyers, will be binge-watching Netflix starting on April 10, 2015.

Heck, Jessica and I would love to be extras if the producers need opposing counsel at a depo or a hearing in season 2.

The big question: Can Matt Murdock be disbarred for being a vigilante? Yes, one can argue it is very creative pro bono work. Moreover, who are others to judge how Matt Murdock does his community service?

Well, for one, the state of New York. Matt Murdock is a [fictional] licensed attorney in New York, so the state bar has specific rules of professional conduct.

An attorney can be suspended from the practice of law, censured, or removed from office, if the attorney is “guilty of professional misconduct, malpractice, fraud, deceit, crime or misdemeanor, or any conduct prejudicial to the administration of justice.” NY CLS Jud § 90(2).

A lawyer who is convicted of a felony will cease to be an attorney or competent to practice law in New York. NY CLS Jud § 90(4)(a) and (4)(e).

If Daredevil were arrested, unmasked, and ultimately convicted for assaulting criminals, would that be a felony that would disbar Matt Murdock?

That answer is YES. Assault in the second degree is a class D felony in New York. Matt Murdock would be guilty if he 1) intentionally causes serious physical injury to another person or third person; or 2) intentionally causes injury to a person or third person by means of a deadly weapon or dangerous instrument. NY CLS Penal § 120.05(1) and (2).

Seeking out Kingpin’s thugs to engage in combat would definitely be assault.

Why would a Court disbar Matt Murdock for conducting what he thinks is his civic duty? Because lawyers are supposed to uphold the law, not break it. As New York Judge Vito Titone stated in a case with an prosecutor who abused his power:

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

People v. Rao (App.Div. 1980) 73 A.D.2d 88, 100 citing People v Isaacson, 44 NY2d 511, p 524.

Lawyers are not supposed to take the law in their own hands. Granted, this would make a TV show (or comic) about a blind ninja lawyer with super radar senses extremely boring. Moreover, Matt Murdock has no fear of the rules of professional conduct, because he is after all Daredevil.

So Daredevil, we look forward to you doing justice on Netflix.