A Judge Who Said "Succubus" in a Court Opinion

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November 12, 2014

The Sleepy Hollow episode “Heartless” was a fun monster of the week story where our heroes battled a Succubus. The episode could have been called, “When Trying to Score Goes Horribly Wrong.” For those unfamiliar with Succubi, they are demons who appear as a beautiful woman to seduce men, often resulting in death.

In Sleepy Hollow, the Succubus sucked out the soul of a man, followed by a woman, leaving their bodies burned out shells. It is an excellent warning on avoiding nightclubs and dating apps. Or if you do date, bring Holy Water with you, just in case.

Ironically, there is case law referencing Succubi, and you guessed it, both are from Texas.

The first case was in a dissenting opinion from 1988 in a murder case over the statutory construction imposing punishment in a law that was passed to apply to murder-for-hire cases. The Defendant had murdered her husband and buried his body on the property, which was not discovered for two years. The murder apparently was for life insurance money. The dissenting Judge expressed his thoughts on the Defendant as follows:

I don’t mean to be maudlin about this. Ms. Beets is evidently a greedy and insensitive killer, the kind of succubus who has managed to capture the romantic imagination of Americans in such modern cinematic classics as “Body Heat” and “Black Widow.” I have little sympathy for her, nor would it alarm me overly much if the Legislature had decided that all such criminals should be put to death. What I have difficulty believing is that the Legislature has already decided this in fact.

Beets v. State, 767 S.W.2d 711, 755 (Tex. Crim. App.1988)

The second case is from October 2014 and dealt with the admissibility of Internet search terms in a criminal case. The search terms included, “succubus demon,” plus others that would disturb most people. The Court admitted these Internet search terms over the objection of the Defendant on relevance and the prejudice of the evidence outweighed its prohibitive value. Chandler v. State, 2014 Tex. App. LEXIS 10869(Tex. App. Austin Oct. 1, 2014).

There are plenty of dangerous people to date, whether you think an ex-girlfriend was a succubus or ex-boyfriend an incubus, but no Court will take judicial notice of the existence of such creatures. However, some well-read judges in mythology might use the term “succubus” to express their feelings about a case.

Missy’s Misadventures in Kidnapping and Defiling Graves

By

Josh Gilliland

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November 11, 2014

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The Master has always set a high bar for being evil. I personally preferred the look of Roger Delgado or Anthony Ainley, but Michelle Gomez as an evil Mary Poppins really took cruelty to a new level as the Mistress. Plus she killed Osgood. No spoonful of sugar will make that go away, short of Santa Claus being a Time Lord.

Operation Mindcrime

Missy engaged in kidnapping human minds at the point of death to be stored in a Gallifreyan hard drive, later to be downloaded to corpses that had been upgraded to Cybermen. This unholy mix of Tron and the Matrix creates some strange legal issues.

Can you kidnap someone’s mind at death? “Kidnapping” at common law was “the crime of forcibly abducting a person from his or her own country and sending the person to another.” Westlaw Black’s 9th Law Dictionary App. Effectively, the crime was false imprisonment and taking the victim to another country. Id.

Is uploading someone’s mind at the point of death kidnapping under common law? On one level “sort of.” Taking someone’s mind and uploading them to a hard drive sounds like a form of false imprisonment, just one we have never encountered. Perhaps is the Singularity Movement is successful, we could see courts or legislatures address “mind-napping.”

Missy potentially kidnapped the minds of dying human beings for as long as humans have believed in an afterlife. The number of victims could be in the billions, depending how long she was imprisoning the dead. They would mean anyone who died in the last 5,000 years could be downloaded into a Cyberman and weaponized against the living. Many would agree this is a crime, but not one fully addressed by the law.

Bring Out Your Dead

Missy’s conversion of dead bodies to Cybermen also meant she experimented on dead bodies and defiled graves. There are many laws that prohibit removing a corpse from a grave for medical or surgical study. See, State v. Glass, 27 Ohio App. 2d 214, 222-223 (Ohio Ct. App., Brown County 1971), discussing the Revised Statutes of 1880 as Section 7034. There had to be experiments done to convert corpses to Cyberman that would have violated such laws.

There are other laws specifically designed to protect human remains from being “disturbed,” which means “the excavating, removing, exposing, defacing, mutilating, destroying, molesting, or desecrating in any way of human skeletal remains, unmarked graves, grave artifacts or grave markers.” W. Va. Code § 29-1-8a(6). Converting dead bodies to Cybermen would qualify as “mutilating, destroying, molesting, or desecrating” the dead. This would be an easier case to prove, because there is actual physical evidence, with human remains across the globe.

Now, was Cyber-Brigadier justified in shooting Missy? Yes. Clear and present danger to the entire human race. Good shot, thank you for your service to mankind.

On the Wings of Tie Fighters and Eminent Domain

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Josh Gilliland

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November 6, 2014

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The Star Wars Rebels episode “Fighter Flight” touched on two important legal issues: Eminent Domain and Reckless Flying. Let’s explore each.

We Are No Longer Interested in Buying Your Farm

The Empire demanded a farmer sell his property to the Empire. The amount for the property is never disclosed. After refusing the Empire’s offer to buy the farm, the Empire destroyed the farmer’s house with an armed transport. The farmer and his family were then arrested for their failure to sell their property to the Empire.

In the United States, when the government takes private property for public use it is called “Eminent Domain.” The government “may acquire and hold real property in any state, whenever such property is needed for use of government in execution of any of its powers, and when it cannot be acquired by voluntary arrangement with owners, it may be taken in exercise of power of eminent domain.” Van Brocklin v Tennessee (1886) 117 US 151.

The Fifth Amendment to the United States Constitution is intended to limit the power of the United States in taking property from its citizens for public use. United States v Lee (1882) 106 US 196, (superseded by statute as stated in Block v North Dakota (1983) 461 US 273).

The Fifth Amendment to the United States Constitution requires that the government cannot take private property for public use without “just compensation” to the property owners.

In the case of the Empire, if a farmer refuses to sell his farm, he is charged with treason and arrested. These actions are more in line with Stalin’s Soviet Union than a Republic.

Let’s Go Fly a Tie

Zeb and Ezra stole a Tie Fighter while resisting arrest for attempting to steal fruit from the Empire. Zeb’s initial flight in the Tie Fighter included a low speed buzzing of a farmer’s market in a street fair, complete with firing the ship’s cannons at a fruit stand, resulting in its destruction.

On Earth, and in the United States specifically, flying aircraft is a highly regulated activity, requiring licensing, controlled airspace, and minimum altitude requirements.

States such as Wisconsin have specific laws prohibiting reckless flying:

No person may operate an aircraft in the air or on the ground or water in a careless or reckless manner so as to endanger the life or property of another. In determining whether the operation was careless or reckless the court shall consider the standards for safe operation of aircraft prescribed by federal statutes or regulations governing aeronautics.

Wis. Stat. § 114.09.

In-flight activities that can endanger the lives of others include:

Any person who ‘buzzes’, dives on, or flies in close proximity to a farm, home, any structure, vehicle, vessel, or group of persons on the ground.

A pilot who engages in careless or reckless flying and who does not own the aircraft which he is flying unduly endangers the aircraft, the property of another.

The operation of aircraft at an insufficient altitude endangers persons or property on the surface or passengers within the aircraft. Such flight may also constitute a violation of 60.107.

Acrobatic Flight. No person shall engage in acrobatic flight:

Below an altitude of 1,500 feet above the surface.

Minimum Safe Altitudes. Except when necessary for take off or landing, no person shall operate an aircraft below the following altitudes:

Anywhere. An altitude which will permit, in the event of the failure of a power unit, an emergency landing without undue hazard to persons or property on the surface.

Globe Indem. Co. v. Hansen, 231 F.2d 895, 904 (8th Cir. Minn.1956).

Zeb’s flight down the street would technically be “buzzing” near structures (the buildings) and people on the ground (the merchant farmers). Moreover, as the Tie Fighter was the property of the Empire, this would be hijacking and endangering the aircraft in flight. Furthermore, the low altitude flight endangered people on the ground, specifically those near structures hit by the Tie Fighter, or those threatened by weapons fire.

The Empire has a totalitarian judicial system where any crime seems to be treason punishable by death. As such, while Zeb did commit a crime, the Empire is not exactly a model society predicated on freedom with proportional punishment.

TieFighterSpace_1 — *Tie Fighter Photo by Judge Matthew Sciarrino from his collection.*

Disbarring Henry Parish

By

Josh Gilliland

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November 3, 2014

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Henry Parish on Sleepy Hollow is a bad lawyer. Not a bad lawyer in being incompetent to practice law, but bad in that he had a client unknowingly sign over his soul in blood, mailed crushed bone to turn a Marine into a Wendigo that fed on Marines and civilians, and working for a demon to bring about the Apocalypse. All or these actions demonstrate a total failing of having the “moral character” necessary to practice law.

There has been no evidence that Henry Parish actually passed the Bar Exam in New York. However, we have seen that Parish has at least two clients held in a mental hospital. This implies either Parish a lawfully licensed attorney or practicing without a license.

Henry Parish has committed enough acts to warrant disbarment if he is an attorney. Will disbarment be enough to stop the end of the world? One only needs to see that Al Capone went to prison for tax evasion that there is more than one way to bring down a criminal enterprise specializing in domestic terrorism.

As one New York Judge said in 1908: An attorney is disbarred not only to rid the profession of an unworthy practitioner, but to warn other members of the profession. In re Clark (1908) 128 App Div 348, 112 NYS 777 (Emphasis added).

Henry Parish fraudulently having Frank Irving sign his soul over in blood would create a conflict of interest between lawyer and client, violating NY CLS Jud Appx R 1.7(a)(2), thus warranting disbarment for fraud in the representation of Frank Irving. This also would be an unlawful fee agreement to take a client’s soul.

New York law states that any attorney who is convicted of a felony shall cease to be an attorney or competent to practice law. NY CLS Jud § 90(4).

Henry Parish’s actions of mailing Joe Corbin crushed bone to turn Corbin into a murderous Wendigo would violate Federal law on mailing poisons and New York law for murder.

Federal law states that anyone who mails poison, hazardous materials, disease germs, and “and all other natural or artificial articles, compositions, or material which may kill or injure another,” are “nonmailable” items and that sending such items is punishable by up to 20 years imprisonment if done with the intent to kill or harm another. 18 USCS § 1716(a) and (j)(2).

New York has recognized you can murder someone by mail for over a century. People v. Molineux, 26 Misc. 589, 589-590(N.Y. County Ct.1899).

Parish could be convicted for mailing a hazardous substance to a US serviceman overseas with the intent to kill others, by turning Joe Corbin into a flesh-eating demon. These actions would violate the prohibition from mailing dangerous substances with the intent to kill. Furthermore, turning Corbin into a Wendigo, whose transformation was triggered by blood, would make Parish at least responsible for second-degree murder for the indiscriminate killing of people in New York by the Wendigo. Upon conviction, Parish would be immediately disbarred.

She-Hulk and Daredevil Do Not Know California Trial Procedure

By

Josh Gilliland

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November 2, 2014

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She-Hulk #9 is a courtroom drama with Daredevil facing off against She-Hulk in Los Angeles Superior Court over the wrongful death case of Sam Fogler in 1940, as accused by Sam Fogler’s brother Harold Fogler on his death bed in 2014.

Matt “Daredevil” Murdock would have to prove that Steve Rogers’s actions in 1940 were “wrongful acts” or “negligent” in causing the gunman to murder Sam Fogler under Cal Code Civ Proc § 377.60.

Problem: All of the trial advocacy and rules for Dying Declarations are wrong.

The story begins with Matt Murdock giving his opening statement for the Plaintiff. Opening statements are where lawyers provide a road map of what evidence they will present that supports their case.

Murdock called a witness DURING his opening statement to give testimony. This is simply wrong. The California Rules of Civil Procedure define the order of trial proceedings as follows:

When the jury has been sworn, the trial must proceed in the following order, unless the court, for special reasons otherwise directs:

The plaintiff may state the issue and his case;
The defendant may then state his defense, if he so wishes, or wait until after plaintiff has produced his evidence;
The plaintiff must then produce the evidence on his part;
The defendant may then open his defense, if he has not done so previously;
The defendant may then produce the evidence on his part;
The parties may then respectively offer rebutting evidence only, unless the court, for good reason, in furtherance of justice, permit them to offer evidence upon their original case;
When the evidence is concluded, unless the case is submitted to the jury on either side or on both sides without argument, the plaintiff must commence and may conclude the argument;
If several defendants having separate defenses, appear by different counsel, the court must determine their relative order in the evidence and argument;
The court may then charge the jury.

Cal Code Civ Proc § 607

Murdock could not call a witness during his opening statement. That is just not how a trial is conducted.

The witness offering testimony during the Plaintiff’s opening statement was a police officer who heard the dying words of the grandfather of the Plaintiffs. The police officer recounted the dying man’s story, blaming Steve Rodgers for the death of the decedent’s brother in 1940. The “death bed” story did not include any quotes from Steve Rogers, but claimed that the cause for the gunman shooting Sam Fogler was because Rogers would not stop talking after being threatened by the gunman.

None of that testimony would be admissible, because it is hearsay without a valid exception to the Hearsay rule.

Hearsay is “a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.” Cal Evid Code § 1200(a). Hearsay is not admissible, unless there is a valid exception to the Hearsay rule. Cal Evid Code § 1200(b).

The story recognized that the testimony was hearsay, but misapplied the “Dying Declaration” exception to the Hearsay rule. The Dying Declaration rule states:

Evidence of a statement made by a dying person respecting the cause and circumstances of his death is not made inadmissible by the hearsay rule if the statement was made upon his personal knowledge and under a sense of immediately impending death.

Cal Evid Code § 1242.

The Dying Declaration exception is NOT valid here because Harold Fogler was dying of old age, NOT because of events in November 1940. There is no causal relationship between the decedent’s cause of death and the events of 1940. As such, the Dying Declaration exception is not applicable to the police officer’s already procedurally improper testimony, and should be stricken from the record. This would effectively gut the Plaintiff’s case.

The Plaintiffs also called a police officer to read a police report from 1940. This document technically contains layered hearsay, because the writing itself and the quote in it each require an exception to the Hearsay rule to be admissible.

The police report would be admissible as a business record, provided the following conditions are met:

(a) The writing was made in the regular course of a business;

(b) The writing was made at or near the time of the act, condition, or event;

(c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and

(d) The sources of information and method and time of preparation were such as to indicate its trustworthiness.

Cal Evid Code § 1271.

The testifying officer was the archivist for the Los Angeles Police Department and could attest to the trustworthiness of the “ancient” document.

Steve Rogers is quoted in the police report stating, “This is all my fault. I could have stopped it.” That quote would be admissible as a party admission, because it was a statement “offered against the declarant in an action to which he is a party in either his individual or representative capacity, regardless of whether the statement was made in his individual or representative capacity.” Cal Evid Code § 1220.

Could Steve Rogers’ 1940 statement be enough to sustain a case for wrongful death under California law? It is difficult to find Rogers’ unknown statements to the gunman as the proximate cause for Sam Fogler being shot by the gunman. Rogers did not fire the gun, which would make his unknown statements highly suspect for establishing liability for the murderous actions of another. There is simply no evidence that Rogers’ conduct was “wrongful” or negligent other than the accusation of a dead man.

The statute of limitations in this case had long since passed in 1942 pursuant to California Code of Civil Procedure section 335.1. The police in 1940 knew of the Sam Fogle’s death and Steve Rogers’ statement. Despite all of that information in 1940, the Los Angeles District Attorney did not press charges. There was no valid excuse for Harold Fogle to do nothing with this information for 70 years. If there had been a case, November of 1940 would have been the time to press criminal charges or start a civil lawsuit by November 1942, at least two years (possibly three) before Captain America was frozen in ice.

Impostors & Amnesty of SHIELD

By

Josh Gilliland

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October 30, 2014

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Something legally cool happened on Agents of SHIELD: They acknowledged Grant Ward was going to get a trial. Sure, his brother Senator Christian Ward was politically motivated to see Ward tried during an election year, but it was nice to see Ward move out of the basement for trial. Nothing says brotherly love than a well-earned firing squad.

How did we end up discussing a trial? HYDRA broke into a meeting at the United Nations dressed as SHIELD Agents and shot a diplomat with a disintegration weapon.

Great way to start a world war AND commit criminal impersonation.

HYDRA’s Criminal Impersonation

New York defines criminal impersonation in the first degree when someone pretends to be a Federal law enforcement officer, including the full-spectrum of postal inspectors to Coast Guard to ATF. NY CLS Penal § 190.26 and NY CLS CPL § 2.15. The law further states that when someone is wearing a uniform of a Federal law enforcement officer, badge, or other insignia, and acts with intent to induce another to submit to such pretended official authority and commits or attempts to commit a felony while doing so. NY CLS Penal § 190.26.

As SHIELD was deemed a terrorist organization and no longer operating as Federal law enforcement, it is legally impossible for HYDRA to commit criminal impersonation in the first degree.

However, cut off one law, two more will takes its place.

The HYDRA could be convicted of criminal impersonation in the second degree, which requires someone pretending to be a representative of an organization with the intent to injure another. NY CLS Penal § 190.25(2).

As HYDRA was masquerading as SHIELD Agents who unlawfully entered the United Nations and committed murder, the requirements of criminal impersonation in the second degree are fully met.

Does SHIELD Now Have Amnesty?

The story ends with Grant Ward being transferred to US custody for prosecution for treason. General Talbot takes additional HYDRA prisoners into custody in Belgium from Agent May. General Talbot goes so far as to offer his respects for the six SHIELD Agents killed in action.

Senator Ward gave a speech at the United Nations about his brother being a traitor. The “tale of two brothers” drove home the point there were good people in SHIELD who did not know there were also HYDRA Agents poisoning the organization.

Does this mean our heroes are going to escape prosecution themselves?

One option is for President Ellis to pardon any SHIELD Agents who were not members of HYDRA. President Andrew Johnson had multiple pardons granting amnesty to Southerners who had committed treason for the Confederacy. All that was initially required was taking an oath to the United States to restore peace and national authority. United States v. Klein, 80 U.S. 128, 140-141 (U.S.1872). There were of course exceptions and a ticked off Congress who did not care for the pardons, given the scope of the war that had been fought against the traitors.

Congress passing a “SHIELD Amnesty Act” for all loyal members of SHIELD is another way to avoid prosecuting Director Coulson and his team. Senator Christian Ward could champion such a bill while zealously seeking his brother’s prosecution for treason by the Department of Justice.

Whichever path they take, it was cool to see Mockingbird wearing a Star Wars shirt. Well played, SHIELD, well played.

HYDRA Tries To Kill a Mockingbird

By

Josh Gilliland

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October 22, 2014

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As the Cutting Crew once sang, “All for the mockingbird, they broke one by one.” Let’s hope that we see Bobbi Morse continue to break HYDRA operatives in season two of Agents of SHIELD.

Bobbi Morse and Jenna Simmons undercover work in HYDRA appeared to be well within the rules for being undercover.

As discussed before in Hailing HYDRA, undercover law enforcement officers are not supposed to “assume a position as one who leads, directs, manages, or officiates over the direction or goals of an organization” or “cause dissension within an organization or incite unlawful activity by any individual or organization. . . .” Rubin v. City of L.A., 190 Cal. App. 3d 560, 569 (Cal. App. 2d Dist. 1987), citing “Standards and Procedures for the Anti-Terrorist Division.”

Simmons conducted the research on HYDRA’s plans and reported the information to her superiors to stop any unlawful activity. More importantly, Simmons did not appear to ever make a weapon or willfully take the life of an innocent. Correspondingly, Morse positioned herself to take Simmons’ hard drive prior to their escape, depriving HYDRA of any information that Agent Simmons learned during her undercover work.

Now, did anyone else see the humor in Adrianne Palicki’s Mockingbird escaping in an invisible jet?

Uncorking Chilled Terrorism

HYDRA added a new level of terrorism in the opening minutes of A Hen in the Wolf House: the targeting of Naval officers from an Anti-HYDRA unit at a wedding with poisoned champagne based on the 084 Obelisk.

Right out of the gate, we see a conspiracy to murder members of the armed forces and civilians with a new bio-weapon of mass destruction. As we further learned in the episode, HYDRA has goals to make the weapon more effective to kill billions.

The “HYDRA Dress White Wedding” was terrorism because of the use of weapons of mass destruction under 18 USCS § 2332a. HYDRA used the alien technology in a conspiracy to kill US citizens, in the United States, that required the use of interstate commerce (in this case, transit of roads and other means to move the weapons potentially across state lines). The chemical itself would be considered a WMD, because chemicals such as anthrax are considered a WMD. Provided that death was almost instant for many, Court could could easily find the weaponized champagne was in fact a “weapon of mass destruction.” Additional charges could be brought for targeting members of the US military and their families.

The fact a new head of HYDRA is planning an extinction level event, we should expect many of the upcoming actions by Director Coulson and his team to be justified by the necessity defense.