Psychic Court on Almost Human

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December 17, 2013

The Almost Human episode “Blood Brothers” involved a fact witness who was also a psychic. The episode also had the first look inside a courtroom for a trial in 2048.

A note on the trial: Extremely well done. My only concern would be the Captain fighting the Defense attorney on being able to complete her answer. A Captain would have enough experience to know to wait for re-direct to answer the question the way she wanted to (Assuming key testimony was not covered in direct for whatever odd reason). Conversely, the Defense attorney was offering a lot of her own opinion in questions on the type of person who committed the crime, which would call for speculation. Other than that, courtroom scenes seemed pretty on point, with only a few exceptions. My compliments to the writers and procedures.

The character of Maya Vaughn was a fact witness in a murder trial. She also had psychic and medium abilities from the “cerebellics procedure.”

Vaughn was only being offered to testifiy to what she saw in a murder, not because of her enhanced psychic abilities. As such, the DA would avoid awkward questions to establish the witness as a psychic.

How could a DA offer a psychic? There are enough real news stories of the police using psychics to raise the issue on how an attorney would get a psychic before a jury. Oddly enough, I did not find any case law examples.

The most likely approach would be to offer the psychic as an expert witness. This could get strange quickly, as the lawyer would ask questions to demonstrate the witness’ skills to tell the future or speak to the dead. It also would either really impress the jury or make the lawyer look like a clown.

God knows how brutal the opposing attorney would be in their questions.

As to the issue of Maya Vaughn and the “cerebellics procedure,” that might be enough to withstand being established as an expert. How was the procedure done? Could the abilities be actually tested? Let’s review California Evidence Code section 801, which covers experts:

If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is:

(a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact; and

(b) Based on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion.

On the face of the code section, an expert opinion cannot be twisted into a dead person testifying from a “psychic medium,” because such testimony is not actually an opinion, but “hearsay” from a dead person. Given the issues with cross-examination or whether the dead can make a statement, a Court would likely bar such testimony.

Let’s review additional case law where psychics are involved or mentioned:

Getting a Judge to Say Quackery

That the state court may have decided the witness qualified as an expert does not end the matter, as there is room for habeas relief when the expert testimony is mere quackery. If a phrenologist is allowed to give expert testimony as to a defendant’s mental state during the commission of a crime, or if a psychic medium is deemed qualified to give expert testimony about a seance in which the deceased described what the defendant had done to him, fundamental fairness might require a new trial. Petitioner would have this court believe that Safarik’s testimony falls somewhere between the opinions of psychic mediums and phrenologists on the continuum of quackery. The court disagrees, although it does recognize the controversial nature of crime analysis as courtroom evidence.

Duvardo v. Giurbino, 649 F. Supp. 2d 980, 996 (N.D. Cal. 2009).

Dodging a Mistrial with a Psychic Juror

A Court of Appeal held a trial Court properly denied a motion for a mistrial. This was one of the few times where a judge was driven to call a juror “ridiculous” and swear. The court opinion is classic:

During voir dire of prospective alternate jurors, a prospective alternate juror stated that she had a problem serving as a juror on this case because she was “intuitive,” “being able to key into people’s psyche to know what’s going on,” and she felt that she already knew the “situation.” The trial court stated, “With all due respect to you, that’s ridiculous. . . . [Y]ou are telling me now that you know what happened in this case?” The prospective juror said, “No.” The trial court continued, “You haven’t heard one word, one witness. And just because you — here’s a man sitting here and you know what some charges are against him, you know all about it now?” The prospective juror said, “No, I didn’t say I know about the case. I just said –” When the trial court asked what she knew about it, the prospective juror asked the trial court if it wanted to hear her “instinct about it all,” because she did not want to prejudice the jury.

The trial court stated, “I don’t want to prejudice the jury either. [P] You say you have got some preconceived notions about the case already?” The prospective juror stated, “Yes, I do. I feel like he is guilty.” She explained that she had been sitting there “tuning into the whole situation” and “thinking about this for quite a while,” and she felt that appellant was guilty. She stated that she got paid for doing “this type of work” professionally and that she was being honest with the trial court. When the trial court excused her, she stated, “I know it’s — it sounds strange. It’s just a gift.”

The trial court stated, “We all know it’s ridiculous. [P] Anybody influenced by the fact that this lady just got up here and said in her opinion that this –” The jurors collectively responded in the negative. When one prospective juror raised his hand, the trial court stated, “Mr. [Juror No. 5708], you know you are sort of acting out of line here, you know. You took an oath . . . earlier today to tell the truth, answer all the questions truthfully, all that. And you are doing your damndest to get out of this jury, aren’t you?” The prospective juror stated, “Yes.” The trial court admonished him that he had just been sworn as a juror and he would not be excused, further stating, “[A]nd I expect that you will fulfill your oath. Because you took an oath and that oath has consequences. And I expect that you will do that. [P] You understand what I am telling you?” The juror responded, “Hum.”

The trial court again asked, “Anybody influenced by the fact that the lady now comes in with her powers and just walked into the courtroom, has got some kind of powers, and she said he’s guilty, that, and in her mind that he is guilty? Anybody influenced by that?” The jurors collectively responded in the negative.

People v. Smith, 2008 Cal. App. Unpub. LEXIS 681, 16-22 (Cal. App. 2d Dist. Jan. 28, 2008).

The Court of Appeal held the denial of the motion for a mistrial was proper. Even though the trial judge did not admonish the jury on the excused juror’s comments, the judge had said the comments were “ridiculous.” Moreover, the other jurors all were “open-mouthed and most were laughing at the prospective juror’s statements.” No juror said they would have been influenced by the excused juror’s comments. Id.

I Demand You Call a Psychic

A defendant challenged the State’s evidence it was “substantially probable” he would commit a sex offense, because the state did not offer a psychic. You do not need to be a psychic to guess how that argument turned out.

Defendant attacks the sufficiency of the State’s evidence in that the State did not prove that it was substantially probable that he would engage in the commission of sex offenses in the future. Defendant appears to argue that the State could not have proved “substantial probability” because the trial court did not appoint a “psychic” as an expert witness to predict defendant’s future behavior. The absurdity of this argument is clear on its face. Nevertheless, we conclude the State proved “substantial probability.”

People v. Henderson, 2013 IL App (4th) 120624-U, P18 (Ill. App. Ct. 4th Dist. 2013).

Suing for Loss of Psychic Powers

A Plaintiff sued a doctor and hospital for medical malpractice over the claimed loss of the Plaintiff’s psychic powers for a CT scan. The jury awarded the Plaintiff $600,000 in 1986 for these purported injuries (roughly $1,278,536.50 adjusted for inflation). Haimes v. Temple University Hospital, 1986 Pa. Dist. & Cnty. Dec. LEXIS 375 (Pa. C.P. 1986). The Court of Appeals ordered a new trial, on the theories the jury gave an excessive verdict, the jury had a misconception of the law and that the jury considered the loss of psychic powers as evidence, which had been dismissed as a non-suit before the trial. Id.

I’m Dreaming of a White Christmas with Crimes from Florida to Vermont

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Josh Gilliland

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December 14, 2013

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Bing Crosby’s White Christmas is a holiday classic of singing, dancing, romance and the fidelity between soldiers who serve in combat. However, this holiday classic has a dark message on the long train ride from Florida to Vermont that includes mail fraud, arrest warrants, conspiracy and obstruction of justice.

Bing Crosby and Danny Kaye’s characters Bob Wallace and Phil Davis visited a Miami night club after receiving a letter from an Army buddy. The purpose of going to the club was to see the friend’s sisters perform, arguably to help further their careers. Problem: the letter was actually sent by one of the sisters. This possibly is mail fraud, because the sister engaged in a scheme to defraud (inducing the men to see the performance for professional gain) and the mailing of said letter for the purpose of executing the scheme. Russell v. State, 675 So. 2d 961, 962 (Fla. Dist. Ct. App. 1st Dist. 1996). There might not have been any financial discussions in the letter, but the object of getting Wallace and Davis to the show was ultimately for financial reasons by furthering their careers.

The sisters Betty and Judy Haynes had an outstanding arrest warrant for $200 of unpaid rent (which would be approximately $1,913.14 according to the US Department of Labor Inflation Calculator if the story took place in 1950 ). Phil Davis, and to a lesser extent, Bob Wallace, thwarted the arrest of the sisters by assisting the women out of the building, hailing a cab, providing them train tickets and causing a distraction for the women to escape.

Florida law states that if a person resists arrest without violence against a police officer is guilty of a misdemeanor of the first degree, punishable by a $1,000 fine under Fla. Stat. § 775.083 or imprisonment not exceeding 1 year pursuant to Fla. Stat. § 775.082(4)(a). Fla. Stat. § 843.02.

Phil Davis and Bob Wallace did exactly that as they helped the sisters escape. Florida law would treat them as an accessory after the fact for the obstruction of justice in helping the women escape out-of-state, which would make them guilty of a third-degree felony. Staten v. State, 519 So. 2d 622, 626 (Fla. 1988). Bob Wallace’s suggestion to pay their bill was the wiser idea.

Irving Berlin did not write any trial themed songs for those who obstruct justice. However, Berlin did a pretty wonderful job of writing Christmas songs people have loved for decades. It is just shocking the number of crimes committed in the state of Florida before heading to Vermont in the film White Christmas.

Bob Cratchit’s OSHA Complaint Against Scrooge & Marley

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Josh Gilliland

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December 10, 2013

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The United States Congress in 1970 enacted the OSHA, because “personal injuries and illnesses arising out of work situations impose a substantial burden upon, and are a hindrance to, interstate commerce in terms of lost production, wage loss, medical expenses, and disability compensation payments.” The legislation was signed into law by Richard Nixon, the Ghost of Presidents Past.

But what if such laws had been enacted in 1843 in London? Would Bob Cratchit have been brave enough to file an OSHA complaint? Or perhaps Scrooge’s nephew looking out for Cratchit’s health? What would such a complaint have looked like?

29 USC 654 requires an employer “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”

Bob Cratchit’s chief OSHA complaint would be the excessively cold temperature in the office creating an unsafe work environment that risked Cratchit’s health. Moreover, it is a safe bet that Scrooge did not have a portable fire extinguisher, which is required by 29 CRF 1910.157(a) and just a good idea after the Great Fire of London in 1666.

There has been litigation where it was “too cold” for employees to work, thus creating unsafe work conditions. See, NLRB v. Washington Aluminum Co., 370 U.S. 9, 10-11 (U.S. 1962) and Stephenson v. Larry’s French Mkt., 2006 U.S. Dist. LEXIS 43096 (E.D. Tex. May 22, 2006).

Case law holds that an employee injured by exposure to cold temperatures in a refrigerated room could recover damages. Southern Express v. Green, 26 Va. App. 439, 445-446 (Va. Ct. App. 1998). However, the evidence should be supported by expert testimony to show injuries were caused by the cold temperature (such as a doctor explaining frost bite). The employee saying, “it was cold” is not enough in a lawsuit. F. W. Woolworth Co. v. Volking, 135 Miss. 410 (Miss. 1924).

Bob Cratchit would cause an OSHA inspector to haunt Scrooge in such a way that the Ghost of Christmas Future would look like the Ghost of Christmas Present. A civil suit would require expert testimony to explain his injuries, but Scrooge would likely be cooked like the biggest goose in all of London.

“It’s a Free Country” For Protesting on Agents of SHIELD

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Josh Gilliland

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December 8, 2013

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The Agents of SHIELD episode “Repairs” briefly touched on the First Amendment right to protest. The situation was a woman named Hannah Hutchens, apparently with telekinetic powers, had protestors outside of her home on the street. After being asked by Coulson to do something about the protestors/lynch mob, a police officer responded, “It is a free country.”

Would the protestors’ speech be protected under the First Amendment?

The First Amendment prohibits the Federal Government, and states through the Fourteenth Amendment, from abridging the freedom of speech and “interfering with the right to peaceably assemble.”

This does not mean it is open season to yell at your neighbors.

The First Amendment right to free speech is not absolute. “True threats” are not protected by the First Amendment. This means “objective threats of violence” are not protected, because they “contribute nothing to public discourse.” United States v. Martinez, 2013 U.S. App. LEXIS 23843, 5-6 (11th Cir. Fla. Nov. 27, 2013), citing R.A.V. v. City of St. Paul, 505 U.S. 377, 382-83, (1992). However, this can be challenging analysis to determine what is a true threat from political hyperbole. Martinez, at *6, citing Watts v. United States, 394 U.S. 705, 707-708 (1969)

The Supreme Court has defined a “true threat” as “those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” Martinez, at *11, citing Virginia v. Black, 538 U.S. 343, 359 (U.S. 2003).

The audible comments directed at Hannah Hutchens included the following:

Arrest her;

We don’t want you here;

Get out; and

Murderer.

These statements were followed by egg throwing.

While certainly not nice, these statements do not appear to be true threats on the surface, because there was not a serious expression of an intent to commit an act of unlawful violence. However, the egg throwing was not in anyway Constitutionally protected. Moreover, the act of throwing the egg was actually a trespass, which would justify police action to remove the crowd. In common law, the “chief characteristic of trespass” was harming a person or property which was immediately and directly caused by a forceable act of another. Haas v. Lavin, 625 F.2d 1384, 1386 (10th Cir. Colo. 1980), citing Lord Kenyon, C. J., in Day v. Edwards. The classic example is if a person throws a log at the highway that hits someone, that person may sue on trespass, because it is an immediate wrong. Haas, at *1386, fn 2, citing 1 Strange 636.

The tone of the protestors appeared less of a peaceable assembly and more of a violent one. These actions move the group of protestors away from a peaceable assembly to that of a mob. States generally define mob action as the “assembly of 2 or more persons to do an unlawful act.” People v. Montgomery, 179 Ill. App. 3d 330, 334 (Ill. App. Ct. 1st Dist. 1989), citing Ill. Rev. Stat. 1985, ch. 38, par. 25 — 1(a)(2).

The egg throwing and comments move the type of assembly away from a protest to the harassment of a private individual, through intimidation, accusations of being a murderer and acts of violence that could escalate to a lynch mob. The police should have dispersed the crowd after the egg was thrown, because that broken shell ended any peaceable assembly. The “eggshell heard around Utah” transitioned the protest to that of a mob with more then two persons to do unlawful acts. Specifically vandalism and trespass from the egg bombardment.

As for protesting in front of the house of a private individual, things get a more complicated in First Amendment law. Case law holds that “[s]treets, sidewalks, parks, and other similar public places are so historically associated with the exercise of First Amendment rights that access to them for the purpose of exercising such rights cannot constitutionally be denied broadly and absolutely.” Carey v. Brown, 447 U.S. 455, 460 (U.S. 1980).

This does not mean the streets can be filled with protestors. Restrictions can be placed that are based on the time, place and manner of taking to public forums. Moreover, there is not a general right to protest in front of a private residence. For example, in a case involving a former US Ambassador whose home included a golf course, security guards and fence, employees were allowed to protest outside the home. However, protesting outside of residences need to be analyzed on a case-by-case basis. Annenberg v. S. Cal. Dist. Council of Laborers, 38 Cal. App. 3d 637, 648 (Cal. App. 4th Dist. 1974).

Hannah Hutchens had a normal house in a cul de sac. The mob outside of her home was intimidating, harassing, and becoming violent. There is no way such conduct would be protected by the First Amendment. The front of someone’s house in middle America is not a public forum and absolutely not a “free country”; it is harassment and an invasion of privacy.

Christmas Shopping for Lawyers

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Josh Gilliland

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December 6, 2013

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Attorneys Jessica Mederson & Joshua Gilliland discuss Christmas gifts for lawyers, Presidential busts as gifts, the new Wonder Woman and The Flash on Arrow.

Rock ‘Em Sock ‘Em Justice on Almost Human

By

Josh Gilliland

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December 3, 2013

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Almost Human is a joy ride in future computer forensics and law enforcement. The Bends offered multiple legal and technical issues:

Talk to the Hand

The show opens with an undercover police officer having a video call on his hand. Just from a computer forensic point of view, how would you forensically get data off the “device”? The current method would involve a smartphone being put in a faraday bag to cut the phone off from sending or receiving data, followed by a physical data collection.

Perhaps the “Palm Cam” is cloud based technology and data could be retrieved from a hosted service. Regardless, it is an interesting thought exercise on how to preserve evidence.

Don’t Eat That

Nothing says friendship like ordering a slug that screams when eaten alive for your partner. While it is not clear if a human could sue an android, this instantly created issues of a hostile work environment and intentional infliction of emotion distress.

Bad Cop & Badder Cop

The heroes each torture a suspect in custody to find out where another police officer was taken. While there might have been a public safety exception to not give the suspect his Miranda rights (and that is a big if), Kennex beating the bad guy, followed by Dorian sticking his thumb in a bullet wound fully violate the suspect’s rights. Moreover, any statements would have been coerced and inadmissible in court.

Were They Purposefully Playing Rock Em Sock Em Robots?

Dorian and an evil android have a serious slug fest that ended with the suspect robot’s head being ripped off. This just screamed Rock Em Sock Em Robots. If that was the goal, job well done.

How to Seriously Violate the Constitution

John Kennex summarily executed the corrupt police captain running a major drug ring. So much for a trial by jury.

There are numerous issues with the hero murdering the bad guy, from denial of due process to the simple fact it’s murder. There was simply no self-defense issue. Worse yet, they actually had evidence that placed the corrupt captain at the scene of the crime and a witness to the captain being the drug kingpin. Granted, the cell phone call evidence might be suppressed if it is connected back to the tortured suspect, but it likely is admissible.

Killing the bad guy was an act that seemed totally out of revenge and had nothing to do with the administration of justice.

That being said, I do love the show. Graphic Constitutional violations aside, keep up the good work of humans having technology integrated with their bodies and android police.

When Your Expert is a Star Wars Fan

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Josh Gilliland

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November 29, 2013

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Experts can get creative when stating their opinions.

In a products liability case over injuries sustained while wearing a snow sports helmet, the Defense expert demonstrated his Star Wars knowledge. The Defense expert explained their were no feasible alternatives in designing a helmet that would have prevented the Plaintiffs injuries:

[Such a helmet would be] made out of depleted uranium and weighs more than [the wearer] can move. Therefore, he can’t do anything while wearing the helmet. Therefore he won’t be injured. . . .

. . . [Y]ou could write a helmet standard that requires the helmet to cover from your shoulders to the top of your head and you look like Darth Vader and it weighs 6 pounds and no one would ever wear it. So you haven’t accomplished anything when it comes to protecting the public because it’s beyond the scope of what people are willing to wear.

Trust Dep’t of First Nat’l Bank of Santa Fe v. Burton Corp., 2013 U.S. Dist. LEXIS 130534, at *11 (D. Colo. Sept. 11, 2013) (Tr. Vol. V at 49.).

The expert’s opinion sounded more like Dark Helmet than Darth Vader, but the point was made: it would be big and heavy.

The Court, best read in a Governor Tarkin voice, stated the following in footnote 5:

In a less florid vein, Dr. Halstead opined that a helmet with four inches of padding — as opposed to the 1 to 1.5 inches typical of snowsport helmets — might have prevented Mr. Melendy’s injuries, but that the mass and bulk of such a design likely would negatively impact other important aspects of the helmet’s utility and performance, making it unlikely that anyone would purchase or wear a helmet thus designed.

Trust Dep’t of First Nat’l Bank of Santa Fe, at *11-12.