Defending Scotty for Triple Homicide

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September 8, 2021

Wolf in the Fold is a Star Trek TOS episode that highlights 1) Dr. McCoy is not a psychologist; and 2) lessons in the insanity defense for possession by a disembodied non-humanoid entity.

Scotty Kept Killing Ladies

The relevant facts from the episode include Captain Kirk and Dr. McCoy taking Lt. Commander Montgomery Scott on “therapeutic shore leave” on the hedonistic planet Argelius II, because Scotty developed a total resentment of women after being injured in an explosion caused by a female crew member on the USS Enterprise. Dr. McCoy’s prescription for Scotty was to go to a planet that was a giant red light district. Tabling if this means Dr. McCoy barely passed psychology in med school, our heroes went to a gentlemen’s club where they set Scotty up with a belly dancer named Kara.

Scotty and Kara went for a walk in the fog, while Kirk and McCoy venture to another part of town. After a sudden scream, Scotty was found holding a knife over the body of Kara who had been stabbed multiple times. In the course of the investigation, two other women are killed: Lt. Karen Tracey, while administering an exam with a “psycho-tricorder” on Scotty; and Sybo, the wife of the planet’s leader Prefect Jaris. Sybo was killed during a seance called an Argelian empathic contact, where she identified an entity with an undying hatred of women named Redjac.

Redjac turned out to be Jack the Ripper, a disembodied non-humanoid entity that possessed people in order to kill orders to fed off their fear.

The Insanity Defense

Proving Lt. Commander Montgomery Scott was not guilty by reason of insanity would require showing that he 1) had a severe mental disease or defect; and 2) as a result of that defect, was unable to appreciate the nature and quality or the wrongfulness of his acts. 18 U.S.C. § 17.

There are no reported insanity defense cases of disembodied non-humanoid entities taking control of an individual and causing them to murder others. Sadly, there are insanity defense cases where the victim was stabbed to death. In one case, the trial court refused to allow a jury instruction for the insanity defense. The trial court was reversed, because the defendant had submitted substantial evidence from which a reasonable jury could conclude that “at the time the crime [was] committed [Defendant] suffered from such a diseased or deranged condition of the mind as to render [Defendant] incapable of knowing the nature and quality of the act . . . [or] distinguishing between right and wrong in relation to that act.” State v. Luerkens, No. 15-2188, at *10 (Iowa Ct. App. May 3, 2017). This evidence included expert testimony that the defendant was suffering from clinical depression and evidence that the defendant did not have memory of killing the victim. Luerkens, at *3-5.

In the case of Scotty, there is clear and convincing evidence of insanity. In the hearing held aboard the Enterprise, the medical devices confirmed Scotty was being truthful when he claimed not to remember what happened to Kara and Lt. Tracey. Moreover, the crew was able to establish the existence of Redjac, which transferred itself to the ship’s computer and briefly possessed Prefect Jaris. This is ample evidence to show that Scotty had a mental defect due to possession and did not understand the wrongfulness of his action while possessed by the entity Redjac.

As for the death of Sybo, it was established that Redjac killed her while in possession of another person, not Scotty.

The larger issue of needing counseling for his PTSD from an explosion and then killing two women under the control of Jack the Ripper is never addressed, but does highlight the need for having licensed mental health professionals onboard starships.

Justice Trek

By

Josh Gilliland

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September 6, 2021

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I love Star Trek. I grew up watching Trek and have continued to watch every series. I am not the only lawyer who fits that description. To celebrate the 55th Anniversary of Star Trek, we asked California Supreme Court Associate Justice Mariano-Florentino Cuéllar, Circuit Judge John Owens of the Ninth Circuit Court of Appeals, and US Magistrate Judge Mitch Dembin what Star Trek means to them, their first Trek memories, how Trek has inspired them, characters they identify with, and their thoughts on legal issues from Star Trek.

Let’s boldly go.

Lower Decks Season 2 Podcasts

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Josh Gilliland

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August 25, 2021

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Lower Decks is everything great about Star Trek with a deep love for every generation. Here is our complete coverage of season two recorded originally on Get Vokl.

Lower Decks: Strange Energies and Kayshon His Eyes Open

Lower Decks: We Will Always Have Tom Paris

Lower Decks: “Mugato, Gumato.”

Lower Decks – An Embarrassment of Dooplers

Lower Decks Review – The Spy Humongous

Lower Decks Review – Where Pleasant Foundations Lie and I, Execretus

Lower Decks Review – “wei Duj”

Lower Decks Review – “First First Contact”

What went wrong with the quest for the Warhammer Titan?

By

Gage Dabin

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August 14, 2021

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In Attack on Titan: The Final Season’s (AoT) Episode 5 “Declaration of War,” Eren Yeager launches a pre-emptive attack on Marley to secure the Warhammer Titan for the Yeagerists. Eren was successful in both engaging and acquiring the Warhammer Titan, thus, dealing a critical blow to Marley’s overall strategy in ending the Eldian Empire. Although Eren was successful in achieving his group’s goal in the attack, Eren’s actions violated key principles of international humanitarian law.

The Principles

Both in AoT and in war movies, we are shown commanders making difficult decisions quickly in times of war. At first glance, it may seem pretty binary: the commander chooses to attack or they choose not to attack. However, actions taken by commanders within an international armed conflict (IAC) and non-international armed conflict (NIAC) are not committed senselessly or without careful review. Attacks are like onions, they have lots of layers and are more complicated than on first glance. Commanders and the like are required to consider four principles prior to taking military action: 1) Military Necessity; 2) Proportionality; 3) Distinction; and 4) prevention of unnecessary suffering. Each of these principles work together to help answer that binary question and each requires careful consideration.

Military Necessity

The principle of necessity permits measures which are “actually necessary to accomplish a legitimate military purpose and are not otherwise prohibited by international humanitarian law. In the case of an armed conflict the only legitimate military purpose is to weaken the military capacity of the other parties to the conflict.” Similarly, in non-international armed conflict we apply this principle as well. Although we want war and hostilities to end quickly, this principle prevents us from using illegitimate means or methods to reach this result.

Proportionality

The principle of proportionality asks us to make a weighted judgment. It does NOT ask us to determine if our use of force upon an enemy is proportional to what the enemy used against us. Instead, this principle asks to evaluate that if we were to attack would the estimated value from the attack outweigh the harm that might be inflicted upon civilians? What we don’t want is to achieve a small military advantage at the large cost of harm to civilians.

Distinction

The principle of distinction speaks to the idea of being able to readily determine in a conflict who is a combatant and who is a civilian. The former being a legal target and the latter being non-targetable. This principle is outlined in Article 48 of Additional Protocol I (AP I) international armed conflict and similar language can be found in Additional Protocol II Art. 13(2)-(3) with respect to non-international armed conflict.

Distinguishing targets is not an easy task, especially so in the middle of heated conflict. When we look to determine if an individual is a combatant or civilian we have four criteria that must be asked of those we are targeting. These are derived from Article 4(2)(a)-(d) of the Third Geneva Convention and are as follows:

(a) that of being commanded by a person responsible for his subordinates;

(b) that of having a fixed distinctive sign recognizable at a distance;

(c) that of carrying arms openly; and

(d) conducting their operations in accordance with the law and customs of war.

The last distinction that has to be made is that of the target itself. Under Art. 52(2) of AP I, “military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.” Outside of those, codified in Art. 25 of the Hague Regulations of 1907, are civilian objects which are not to be targeted by any means by armed forces.

Prevention of Unnecessary Suffering

War is by its very nature a violent enterprise. Loss is expected. It cannot be prevented. You might think that suffering too can’t be prevented too because it is war’s natural by product, which may be true, but we can limit it. And, we have been successful in limiting where we can in the past century and a half. But, when it comes to conflict both IAC and NIAC we have to ask ourselves two questions: First, will the tactic, weapon, or enhancement cause superfluous injury? Second, will the tactic, weapon, or enhancement cause unnecessary suffering? A “yes” to either disqualifies the tactic, weapon, or enhancements use from deployment to the combat zone. War is brutal enough. We don’t want to harm civilians or military members more than what is necessary to achieve the goal.

In the End, It Really Does Matter

Now, with all four elements laid out we can begin to see where Eren went wrong with his decision to attack.

First, when it comes to military necessity, Eren’s attack may be permitted. The attack was designed to eliminate Marleyan military forces and to acquire the Warhammer Titan. If both were accomplished it would help end the conflict between Marley, Eldian Empire, and the Yeagerists. Although this action would end the war sooner, the measures taken to secure it are violative of international law and thus should have stopped Eren from taking this course of action.

Second, is the issue of proportionality with Eren’s attack. It is true that the area Eren targeted had a large amount of high ranking Marleyan generals and there were many Marleyan military members surrounding the city square. However, the number of civilians present outweighed the number of military members, and the location was in the middle of a civilian sector. Inherently, the estimated loss of civilians and damage to civilian infrastructure far exceeded the value of the generals that were present. Throughout AoT, Eren has shown to have a track record of callous disregard to surrounding areas when he engages in combat, and this would not bode well for the area. With the completion of the attack, the entire square and surrounding sections of the city were demolished, hundreds were harmed and thousands were displaced. Eren should not have attacked this location regardless of its military concentration because the harm to civilians far exceeded any military advantage that could be gained.

Third, Eren did not have a hard time discerning who was targetable and who was not. The distinct uniforms of the opposing armies of Eldia, Marley, and the terrorists, the Yeagerists, allows us and Eren to not mistake civilians for combatants. Further, each organization wears their arms openly, responds to a clear chain of command, and attempts to adhere to the laws of armed conflict. There was no issue of commingling targets.

Additionally, Eren’s target did not qualify as a military objective. Eren understood that the host of the Warhammer Titan was present at the summit of world leaders in Marley. At this summit there also was a large Marleyan military presence with many high commanders present. However, neither Marleyan officials nor Eren had working knowledge on who amongst the Tybur family contained it. Compounding this issue is that none of the Tybur family were active military members and were classified as civilians. Eren should not have gone after the Tybur family at this event.

Fourth, Eren’s attack did not cause unnecessary suffering. This is because Eren has complete control over himself as a titan and that his actions did not have additional effects that would cause greater damage to victims beyond what would be expected from his initial attacks. Nor did his titan or its abilities cause superfluous injuries towards those he targeted.

Eren’s attack should never have been carried out. At face value, even after recognizing it could help end the conflict quicker, we can see that his targets were not military objects, that the result was grossly disproportionate, and that he did a poor job in distinguishing who he targeted. At least We can positively say that his actions didn’t cause unnecessary suffering or superfluous injury.

How to Sue the Time Variance Authority

By

Josh Gilliland

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August 8, 2021

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Don’t be fooled by the charm of the 1970s style décor and School House Rock style Artificial Intelligence guided tour, the Time Variance Authority has serious liability issues with its entire “workforce” being Variants with erased memories. For those Variants who learn of their prior lives and what was taken from them, how can they sue the TVA? This raises complex problems of where, and when, to sue the Time Variance Authority for their civil rights violations.

Possible Causes of Action Against the TVA

The Time Variance Authority could be sued for violating the civil rights of those they kidnapped from their timeline, erased their memories, and then forcibly employed those individuals in perpetuating other crimes upon others. While there is no private right to action for kidnapping, the TVA could be sued for assault, false imprisonment, and a laundry list of other torts. Nelson v. Payne, No. 19-cv-1380-pp, at *8 (E.D. Wis. Sep. 29, 2020).

The lawsuit would be similar to a 1983 action for those who cause under color of law, “… any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution…” 42 U.S.C. § 1983.

The TVA arresting people screams “color of law,” coupled with police riot uniforms and show trials without defense attorneys. However, the TVA is not functioning under laws from any State or US Territory. That said, signage in English with courtrooms that look like they were built at the end of the Ford Administration certainly raises issues on why a victim could be mistaken in thinking there were being prosecuted by a government agency.

Venue and Jurisdiction

The civil procedure requirements in brining a lawsuit include determining the proper venue for suing the TVA. Just what court would have proper jurisdiction?

A plaintiff may file a civil action in a Federal Court where:

1) Any defendant resides, if all defendants are residents of the State in which the district is located;

2) Where a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or

(3) if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court’s personal jurisdiction with respect to such action.

28 U.S.C. § 1391

Filing suit against the TVA where a Variant was taken would be the easiest way to identify the proper venue, because that is where “a substantial part of the events…giving rise to the claim occurred.” 28 U.S.C. § 1391(2).

The clearest example would be for Ravonna Renslayer (formerly known as Rebecca Tourminet in her original life), since it was revealed she was from Fremont, Ohio in 2018, where she was a high school principal. Fremont, Ohio is located approximately 36 miles from Toledo, so filing suit in the Northern District of Ohio, specifically in the James M. Ashley and Thomas W. L. Ashley U.S. Courthouse, would be the proper venue for litigating the claims against the TVA.

Suing the TVA requires showing there is jurisdiction, either general or specific. As the TVA does not have a physical office in Ohio (and in order to avoid the multiverse of madness for stream of commerce analysis of time travelers), we will focus on specific jurisdiction. In such cases, courts look at “the relationship among the defendant, the forum, and the litigation.” Olivia v. Airbus Ams., Inc., No. 1:19 CV 1701, at *5-6 (N.D. Ohio Mar. 25, 2020), citing Walden v. Fiore, 571 U.S. 277, 284 (2014) (quoting Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 775 (1984)).

To establish specific jurisdiction over a defendant, a court must find “(1) purposeful availment of the privilege of acting in the forum state or causing a consequence in the forum state, (2) a cause of action arising from activities in the state, and (3) a substantial enough connection with the forum state to make the exercise of jurisdiction over the defendant reasonable.” Id, citing Schneider v. Hardesty, 669 F.3d 693, 701 (6th Cir. 2012).

We should not even entertain “purposeful availment,” because the TVA entered Ohio with the intent to kidnap one of its citizens. While the TVA might claim it was conducting a form of “law enforcement” in the name of “maintaining the Sacred Timeline,” the United States does not recognize religious fanatics kidnapping and murdering citizens from cults, foreign countries, or self-appointed rulers of time. There will be no “qualified immunity” to protect the TVA from liability.

Specific jurisdiction over the TVA is proper because 1) the TVA caused the consequence of “removing” Tourminet/Renslayer from her timeline; 2) the kidnapping Tourminet/Renslayer occurred in Ohio, plus setting off a “reset charge”; and 3) jurisdiction over the TVA is reasonable because they entered Fremont, Ohio and assaulted a resident of the state.

If there is a challenge to the reasonableness of suing the TVA in Ohio, the following factors will be analyzed by the Court:

1) The burden on the defendant to litigate in the state;

2) The interest of the forum state;

3) the plaintiff’s interest in obtaining relief; and

4) the interest of other states in securing the most efficient resolution of the controversy.

Shaker Construction Group, LLC v. Schilling, Case Number: 1:08cv278, at *13 (S.D. Ohio Sep. 18, 2008)

As the TVA can travel to any point in time and space, there is little burden on them to defend the case in Ohio. Moreover, Ohio has an extremely high interest in protecting its citizens from being kidnapped and “pruned.” This should go without saying, but those who have had their lives erased have a right to being compensated for their loss. Finally, other states will want to have the same relief for any of its citizens who have been taken by the Time Variance Authority.

The Element of Time for Jurisdiction and Venue

An odd wrinkle in time for suing the TVA is the matter of “when” the injury occurred. If a Variant was taken in 2018 and returned in 2021, suing at the point of return is logical. However, if someone was taken in the early 1990s, should they be returned to that point in time and sue? If that is the case, the entire practice of law gets a huge reset charge to deal with. Courts rely on precedent. Human beings also live in linear existence, so Variants returning to earlier points in time (or present day for those individuals), would cause blips in time. For example, if there were lawsuits against the TVA in 1858, 1955, and 2021, the concept of precedent twists into an inverted Mobius strip. Cases arising from the same set of facts do not get scattered across decades to be litigated at the same time. A lawsuit from 1848 that should be litigated from the same set of facts suddenly is precedent for a court in 2021. That…is not how our system is designed. It would be far less complicated if there was Multi-District Litigation against the TVA at the same time, not scattered across all of time and space.

Service of Process for a Defendant Outside of Time and Space

Serving the TVA raises multiple problems. A defendant must be served with a summons that is directed at the defendant, names the court and parties, with the name and address of the plaintiff’s attorney, and be signed by the court of the court with the court’s seal. None of that is a challenge in order to comply with Fed. R. Civ. P. 4(a)(1)(A), (B), (C), F), and (G). The real mess is just how to actually serve the TVA.

Defendants are normally served under Fed. R. Civ. P. 4 by a person over 18 years of age by delivering a copy of the summons and complaint personally to an individual, or at a person’s dwelling, or authorised agents. For corporations that includes a managing or general agent. None of that is doable with the TVA, since they exist outside of our understanding of reality.

The plaintiffs are not without options. Federal Courts can allow for alternative service of process, such as by publication. Given that the TVA is monitoring the “Scared Timeline,” service by publication would get the immediate attention of the TVA. There is also the likelihood the TVA would know of all discovery, motion practice, and the resolution of the case, which would give the TVA a real unfair trial advantage.