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Boldly Going- Lawyers & Star Trek

Vulcan-SaluteStar Trek is one of the most successful and enduring science fiction stories of the last 45 years. In addition to heroic tales of making a cannon out of natural elements around you,  many of the stories touched on deeper issues. One is Court Martial from the Star Trek The Original Series. 

Court Martial

In the episode, Captain Kirk is charged with perjury and negligence in the death of a shipmate during an ion storm.

Specifically, Kirk claims he jettisoned a pod with Lt. Commander Ben Finney in it after going to Red Alert; the ship’s computer log shows Kirk jettisoned the pod, thus killing Finney, before going to Red Alert.

The alleged motive is that Lt. Commander Finney and Kirk used to be close friends. Finney had even named his daughter Jamie after Kirk (James to Jamie is better than some permutation of Tiberius).  However, the two friends were estranged because years before Ensign Kirk corrected and logged an error Finny made while on the USS Republic that would have resulted in the Republic’s destruction. Finney’s career did not recover, with him being passed over for promotion.

During a verbal confrontation with Commodore Stone investigating the incident, Kirk demands a court martial when the Commodore effectively proposes that Kirk’s career and honor be swept under the rug with a ground assignment over the death of Finney.

Beam Down the Prosecutor 

The trial focuses on a key theme of man verse machine. However, there are some immediate problems that cause lawyers to raise one eyebrow:

The Prosecutor is Lt. Areel Shaw, a woman Kirk had a relationship with years earlier (knowing Kirk, most likely physically and emotionally intimate. Moreover, any relationship with Kirk was life altering for any woman, for she forever knows any other man in her life will only be second best to Jim Kirk).

Lt. Shaw actually refers to Kirk in the bar scene as “dear old love.”

A bigger ethical issue is when Kirk met with Shaw with phasers set to charming, Shaw did not immediately disclose she was the JAG officer building the case against Kirk.

It is generally frowned upon for former girlfriends to prosecute former boyfriends, especially meeting them without counsel present. While Kirk did consent to her prosecuting the case, it might cause others to raise conflict of interest questions.

Finally, Lt. Shaw had a very bad habit of asking long leading questions on the direct examination of her own witnesses. This is perhaps because the witnesses were Spock and Dr. McCoy, so she could have been treating them as “hostile witnesses.” However, it went against the trial practice of having the witness do 90% of the talking on direct examination.

Samuel T. Cogley, Attorney at Law

When Kirk meets his defense attorney Samuel T. Cogley, a quirky old fashioned lawyer in the 23rd Century played by Elisha Cook, Jr., the lawyer has moved into Kirk’s quarters on the Star Base to prepare for trial.

LawbooksCogley is introduced surrounded by law books (inducing some law school flashbacks for some attorneys, while some others say, “Hey, that’s my office”).

Cogley states his preference for books over using the computer for legal research when Kirks comments computers take less space then books. This was decades before Lexis and West Law started giving law students free legal research accounts. ARPANET had not even been built yet (the episode aired in 1967 and ARPANET established in 1969). iBooks was still A LONG way off. Once again, Star Trek predicted a technology that is commonly used today: computer-assisted legal research.

Kirk Verses The Computer

The key issue in the case against Captain Kirk was that the Enterprise Computer could not be wrong. Kirk statements and the visual record did not match, therefore resulting in a man verse machine debate.

We hold today that records from a computer are presumed accurate. For example, as one California Court recently stated over the admissibility of photos from a red light camera:

Evidence Code sections 1552, subdivision (a) and 1553 establish a presumption that printed representations of computer information and of images stored on a video or digital medium are accurate representations of the computer information and images they purport to represent. Thus the images and information (including the date, time, and location of the violation and how long the light had been red when each photograph was taken) imprinted on the photographs are presumed to accurately represent the digital data in the computer. 

People v. Goldsmith, 203 Cal. App. 4th 1515, 1522-1523 (Cal. App. 2d Dist. 2012).

However, a party can (and should if the facts support it) offer evidence that a computer or program was not operating or used correctly (such as cases involving red light cameras or formulas in Excel files).

As for our story, the evidence against Kirk is grim. Highly leading questions from the Prosecutor on direct examination of Spock introduce the computer records; equally leading questions on McCoy showed motive, because it was possible Kirk did not like Finney because Finney did not like Kirk (based on Finney being denied rank advancement).

However, what is never discussed until the conclusion of the case is the possibility the computer was tampered with by someone. Spock finds the “evidence” of this tampering after winning five games of Chess against the computer.

In today’s world of computer forensics and eDiscovery, a computer expert could find evidence of tampering with the ship’s log. That is the sort of thing computer forensic examiners do professionally. However, writers could only foresee so much in 1967.

There are some wonderful quotes from Samuel T. Cogley in demanding the cross-examination of the USS Enterprise computer. One was “I speak of rights. A machine has none. A man must!” Here is selected text from the argument scene:

I’d be delighted to, sir. Now that I’ve got something HUMAN to talk about. Rights, sir! Human rights! The Bible, The Code of Hammurabi, and of Justinian, Magna Carta, The Constitution of the United States, Fundamental Declarations of the Martian Colonies, The Statutes of Alpha III. Gentlemen, these documents all speak of rights. Rights of the accused to a trial by his peers, to be represented by counsel, the rights of cross-examination; but, MOST importantly, the right to be confronted by the witnesses against him – a right to which my client has been denied. 

////

And I repeat, I speak of rights! A machine has none. A man must. My client has the right to face his accuser, and if you do not grant him that right, you have brought us down to the level of the machine! Indeed, you have elevated that machine above us! I ask that my motion be granted. And more than that, gentlemen – in the name of a humanity fading in the shadow of the machine – I demand it. I demand it! 

Enterprise-NCC1701The proceedings were in turned moved to the USS Enterprise.

In short order, Finney is found alive after clearing the ship of the entire crew and listening for heartbeats.

Finney faked his death as a means of revenge on Kirk to ruin the Captain’s career.

As required by tradition and precedent, Kirk saved the Enterprise by climbing into a Jefferies Tube, after his shirt was ripped in the fight with Finney.

Star Trek on Rights

Court Martial has wonderful eDiscovery and computer forensic issues, in addition to the concept of cross-examination of a machine. Today, such a cross-examination would be conducted by an attorney on the human being who either programed the computer or engaged in the computer analysis. After all, we presume computers work correctly. It is up to the human lawyer to challenge any data with a human witness.

The episode also has a very beautiful subtext that can easily be overlooked in the 21 Century: the commanding officers presiding over the court martial are of different nationalities. In 1967, showing a future where people only saw people as people was a wonderful message. Today, it could be easily overlooked because that is how we expect everyone to be treated.

And finally, Lt. Areel Shaw. Women were approximately three percent of the lawyers in the United States in the 1960s. Seeing a woman serving as a JAG officer who could go to the brink of conviction, plus throw down argument with defense counsel, was a bold view of lawyers in the future in 1967.

Boldly Going- Lawyers & Star Trek

Star Trek is one of the most successful and enduring science fiction stories of all time. In addition to heroic tales of making a cannon out of natural elements around you,  many of the stories touched on deeper issues. One is Court Martial from the Star Trek The Original Series. 

Court Martial

In the episode, Captain Kirk is charged with perjury and negligence in the death of a shipmate during an ion storm.

Specifically, Kirk claims he jettisoned a pod with Lt. Commander Ben Finney in it after going to Red Alert; the ship’s computer log shows Kirk jettisoned the pod, thus killing Finney, before going to Red Alert.

The alleged motive is that Lt. Commander Finney and Kirk used to be close friends. Finney had even named his daughter Jamie after Kirk (James to Jamie is better than some permutation of Tiberius).  However, the two friends were estranged because years before Ensign Kirk corrected and logged an error Finny made while on the USS Republic that would have resulted in the Republic’s destruction. Finney’s career did not recover, with him being passed over for promotion.

During a verbal confrontation with Commodore Stone investigating the incident, Kirk demands a court martial when the Commodore effectively proposes that Kirk’s career and honor be swept under the rug with a ground assignment over the death of Finney.

Beam Down the Prosecutor 

The trial focuses on a key theme of man verse machine. However, there are some immediate problems that cause lawyers to raise one eyebrow:

The Prosecutor is Lt. Areel Shaw, a woman Kirk had a relationship with years earlier (knowing Kirk, most likely physically and emotionally intimate. Moreover, any relationship with Kirk was life altering for any woman, for she forever knows any other man in her life will only be second best to Jim Kirk).

Lt. Shaw actually refers to Kirk in the bar scene as “dear old love.”

A bigger ethical issue is when Kirk met with Shaw with phasers set to charming, Shaw did not immediately disclose she was the JAG officer building the case against Kirk.

It is generally frowned upon for former girlfriends to prosecute former boyfriends, especially meeting them without counsel present. While Kirk did consent to her prosecuting the case, it might cause others to raise conflict of interest questions.

Finally, Lt. Shaw had a very bad habit of asking long leading questions on the direct examination of her own witnesses. This is perhaps because the witnesses were Spock and Dr. McCoy, so she could have been treating them as “hostile witnesses.” However, it went against the trial practice of having the witness do 90% of the talking on direct examination.

Samuel T. Cogley, Attorney at Law

When Kirk meets his defense attorney Samuel T. Cogley, a quirky old fashioned lawyer in the 23rd Century played by Elisha Cook, Jr., the lawyer has moved into Kirk’s quarters on the Star Base to prepare for trial.

Cogley is introduced surrounded by law books (inducing some law school flashbacks for some attorneys, while some others say, “Hey, that’s my office”).

Cogley states his preference for books over using the computer for legal research when Kirks comments computers take less space then books. This was decades before Lexis and West Law started giving law students free legal research accounts. ARPANET had not even been built yet (the episode aired in 1967 and ARPANET established in 1969). iBooks was still A LONG way off. Once again, Star Trek predicted a technology that is commonly used today: computer-assisted legal research.

Kirk Verses The Computer

The key issue in the case against Captain Kirk was that the Enterprise Computer could not be wrong. Kirk statements and the visual record did not match, therefore resulting in a man verse machine debate.

We hold today that records from a computer are presumed accurate. For example, as one California Court recently stated over the admissibility of photos from a red light camera:

Evidence Code sections 1552, subdivision (a) and 1553 establish a presumption that printed representations of computer information and of images stored on a video or digital medium are accurate representations of the computer information and images they purport to represent. Thus the images and information (including the date, time, and location of the violation and how long the light had been red when each photograph was taken) imprinted on the photographs are presumed to accurately represent the digital data in the computer. 

People v. Goldsmith, 203 Cal. App. 4th 1515, 1522-1523 (Cal. App. 2d Dist. 2012).

However, a party can (and should if the facts support it) offer evidence that a computer or program was not operating or used correctly (such as cases involving red light cameras or formulas in Excel files).

As for our story, the evidence against Kirk is grim. Highly leading questions from the Prosecutor on direct examination of Spock introduce the computer records; equally leading questions on McCoy showed motive, because it was possible Kirk did not like Finney because Finney did not like Kirk (based on Finney being denied rank advancement).

However, what is never discussed until the conclusion of the case is the possibility the computer was tampered with by someone. Spock finds the “evidence” of this tampering after winning five games of Chess against the computer.

In today’s world of computer forensics and eDiscovery, a computer expert could find evidence of tampering with the ship’s log. That is the sort of thing computer forensic examiners do professionally. However, writers could only foresee so much in 1967.

There are some wonderful quotes from Samuel T. Cogley in demanding the cross-examination of the USS Enterprise computer. One was “I speak of rights. A machine has none. A man must!” Here is selected text from the argument scene:

I’d be delighted to, sir. Now that I’ve got something HUMAN to talk about. Rights, sir! Human rights! The Bible, The Code of Hammurabi, and of Justinian, Magna Carta, The Constitution of the United States, Fundamental Declarations of the Martian Colonies, The Statutes of Alpha III. Gentlemen, these documents all speak of rights. Rights of the accused to a trial by his peers, to be represented by counsel, the rights of cross-examination; but, MOST importantly, the right to be confronted by the witnesses against him – a right to which my client has been denied. 

////

And I repeat, I speak of rights! A machine has none. A man must. My client has the right to face his accuser, and if you do not grant him that right, you have brought us down to the level of the machine! Indeed, you have elevated that machine above us! I ask that my motion be granted. And more than that, gentlemen – in the name of a humanity fading in the shadow of the machine – I demand it. I demand it! 

The proceedings were in turned moved to the USS Enterprise.

In short order, Finney is found alive after clearing the ship of the entire crew and listening for heartbeats.

Finney faked his death as a means of revenge on Kirk to ruin the Captain’s career.

As required by tradition and precedent, Kirk saved the Enterprise by climbing into a Jefferies Tube, after his shirt was ripped in the fight with Finney.

Star Trek on Rights

Court Martial has wonderful eDiscovery and computer forensic issues, in addition to the concept of cross-examination of a machine. Today, such a cross-examination would be conducted by an attorney on the human being who either programed the computer or engaged in the computer analysis. After all, we presume computers work correctly. It is up to the human lawyer to challenge any data with a human witness.

The episode also has a very beautiful subtext that can easily be overlooked in the 21 Century: the commanding officers presiding over the court martial are of different nationalities. In 1967, showing a future where people only saw people as people was a wonderful message. Today, it could be easily overlooked because that is how we expect everyone to be treated.

And finally, Lt. Areel Shaw. Women were approximately three percent of the lawyers in the United States in the 1960s. Seeing a woman serving as a JAG officer who could go to the brink of conviction, plus throw down argument with defense counsel, was a bold view of lawyers in the future in 1967.

My Geek Credentials

I wear bow ties. I watch Dr. Who. I think Star Trek 2: The Wrath of Khan is one of the greatest films of all time. Why, you ask? Because it involves themes of aging, loyalty, sacrifice and redemption of a father to a son. Plus space ships.

I am also a lawyer. I know Civil Procedure and Evidence exceptionally well. It enabled me to save thousands of dollars not dating while in law school, but made me popular at finals.

I know a lot of US History. I found an error at the Smithsonian’s Presidential Exhibit where it stated President Andrew Johnson served as a United States Senator after he was President. Not true. While the Redeemer Government in Tennessee elected him to the Senate, Johnson died before taking the oath of office, thus never served.

Some of you might wonder if I could be deemed a geek expert under Federal Rules of Evidence Rule 702. Well, here are my credentials:

I have watched Doctor Who since elementary school, long before it was cool or remotely socially acceptable by “the in crowd.”

I attended my first TimeCon in 1985.

I read my fair share of comic books.

Leonard Nimoy sent me a get well card in 1990 when I was deathly ill and hospitalized.

To Boldly Go

Nimoy is a class act. In 2009, Nimoy was the keynote at legal technology conference. I was one of the first 20 in line to meet him after his speech. When my turn came, I shook his hand and stated, “You sent me a get well card when I was 15 and in the hospital. That really meant a lot and I just wanted to say, thank you.”

I started to move away (because the needs of the many dictated not holding up the 900 people behind me) and he put his hand on my shoulder to stop me. No, Nimoy did not do the Vulcan Nerve Pinch. He stated, “I was very glad I did that.” I started to move again, and again he stopped me two more times, asking what had happened and if I was ok now.

Class act. A wonderful human being.

I Remember It Differently 

Two weeks before meeting Leonard Nimoy, I was in Los Angeles to see the opening of Star Trek with my brother. Prior to the show, we saw a high school stage production of Dr. Horrible’s Sing-A-Long Blog. I was very impressed many of the actors from Dr. Horrible attended to support the high school students, including Nathan Fillion and Felicia Day.

Fillion was extremely gracious, signing autographs and talking with students. Kindness to others is a wonderful virtue.

Not being shy (I was actually terrified), I decided to talk to Felicia Day. A very cool woman. My brother violated every Man Law by saying it was time to go to dinner while she was asking me questions about my career.

No, I Am Your Father

My mother took me to see Empire Strikes Back the day it opened. I was 5. We waited for hours in the movie theater parking lot sitting on a blanket. As the story goes, I watched that Sci Fi epic with my feet barely going to the end of the seat, completely enthralled by that masterpiece. I reportedly did not blink the entire film.

There are few other movie shockers than Darth Vader saying, “No, I am your father.” I can still recall the gasps and total shock of the entire movie theater, as if thousands of voices screamed out in terror, then nothing.

Today, that is forever engrained in pop culture to the point where the shock has been heavily diluted to common knowledge. At the time, it was masterful storytelling that threw every moviegoer a sucker punch they did not see coming.

A good friend of mine honored this film in the geekiest way possible: He named his son Luke. That’s right, he can honestly say, “Luke, I am your father.”

Bow Ties Are Cool

I love the law. I also love being a Geek, because Sci Fi is one of the best parables for describing the human condition. It also usually involves space ships.

I hope you enjoy The Legal Geeks, as Jessica and I analyze the Law and all things Geek.

And who knows, the future isn’t written. We might have an eDiscovery/Geek panel at Comic-Con one day.

Hello. My Name is Jessica and I’m a Legal Geek

Okay, it’s 2012, so I guess it isn’t that brave to identify myself as a geek (on the other hand, it still takes guts to admit to strangers that I’m a lawyer).  In fact, because it’s now cool to be a geek (at least to other geeks), I feel required to establish my geek credentials:

It all started in 1977, when I saw Star Wars: A New Hope in the theater, sitting on my dad’s lap.  Transfixed by Darth Vader, I fell in love with Star Wars (the original three movies, anyway) and soon became a fan of Star Trek (both the movies and the first two television series) as well.  I don’t know if I’m technically supposed to like both – according to Fanboys I’m breaking the rules but can’t help myself!  Despite my love affair with both Star Wars and Star Trek, I wouldn’t call myself a TV or movie sci fi geek.  I’ve never seen Dr. Who, Blade Runner, Battlestar Galactica, or even Avatar.  Superhero movies, on the other hand, I adore.  I would love a quality Wonder Woman film, but once they rejected The Great Joss Whedon’s script I gave up hope of it happening in my lifetime.

And yes, I have a huge geekgirl crush on The Great Joss Whedon (I think “The Great” is an official part of his name).  Buffy is one of all the time great TV series – I own the entire series on DVD, buy the comic books, and devoured the Watchers Guides.  Angel was also awesome (what lawyer doesn’t love Wolfram & Hart)?  I haven’t seen Firefly yet, however, which is a completely wrong for somebody who calls herself both a geek and a Whedon devotee, so I’ve got it on my Netflix list and plan to watch the entire series very soon!

Meanwhile, I could talk sci fi books all day.  The first sci fi book I ever read was my dad’s copy of A Princess of Mars, the classic Edgar Rice Burroughs book that was a $200 million disaster for Disney earlier this year.  I fell in love with Barsoom, John Carter, Tars Tarkas, and Dejah Thoris then and never looked back.  After reading all of the Barsoom series my dad introduced me to Isaac Asimov, with his robot detectives and three rules of robotics and psychohistory.  After that, I read the Dune series for the first time.  To me, that is the ultimate science fiction series, so good and so deep that I’ve read the original six books at least five times and I’ve even read all of the new books put out by Frank Herbert’s son.  Since then I’ve consumed several of Robert Heinlein’s adult fiction, some Octavia Butler works, and most of Terry Pratchett’s hysterical while still depressingly insightful Discworld books.  I also love the Hitchhiker’s Guide to the Galaxy.  I’ve downloaded a Neil Gaiman book to my Kindle but haven’t read it yet.  I know I’m missing others but that’s all I can think of right now.

So that’s it – my geek girl credentials.  It’s a work in progress, and I hope to continue to develop my geekiness through this blog and in my spare time.  And if I can ever work a Buffy or Star Wars reference into a legal brief I will be able to say that I have reached the pinnacle of legal geekiness (okay, a panel at Comic-Con would be the true pinnacle, but I’m trying to set realistic goals).

Introducing The Legal Geeks: Jessica Mederson & Josh Gilliland

Two attorneys discussing why they are geeks, covering topics from Star Wars, John Carter of Mars, Star Trek, Doctor Who, comic books and the law.

Thank you for checking out our blog.