Since that time, we have had a wonderful adventure across the legal issues in science fiction, comic books and pop culture.
Needless to say, I also have had a blast in going action figure and t-shirt shopping for “research.”
Rise of the Geek Lawyers
I have learned there are a substantial number of geek attorneys and in the United States. I was first alerted to this when a partner at a Big Law firm asked over lunch, “Hey, do you have the lightsaber app for your iPhone?”
How did the number of “geek” lawyers come to be?
Today, we have a substantial number of attorneys and judges from Generation X and Generation Y. We grew up with Gene Roddenberry/George Lucas/Steven Spielberg enriched childhoods. The stories from our youth that made a significant impact, from “I have been and always will be your friend” to “Throw me the idol, I’ll throw you the whip,” were truly important to many of us. We spent countless hours in the backyard with space ships and action figures. These were defining happy moments. Those memories without question would echo throughout our lives and practice of law.
So for every attorney who has considered making a Battlestar Galactica or X Files references in a points and authority, you are not alone.
Geek Discovery
The Legal Geeks has allowed me to go boldly beyond blogging about eDiscovery. In the past year, I have been able to research prenuptial agreements and the 6th Amendment right to counsel. Some of my favorite posts this year have included:
I especially want to thank io9 for picking up my Firefly post and Above the Law for sharing multiple posts. I appreciate all of the Tweets and Facebook shares.
No, There is Another
Jessica Mederson is a wonderful blogging partner. A smart lawyer who has read the classic science fiction books for the last century, she was also into vampires before they were sparkling moody teenagers. Her post on judges who quoted Star Trek in opinions was brilliant and picked up by io9.
Jess has been a very good sport about podcasting in Sci Fi t-shirts and debating the finer points of legal geekdom.
We had an excellent adventure at the Paraben Forensic Innovation Conference and got to work with many other talented attorneys.
You Be The Judge
One of the greatest highlights this year has been getting to know Judge Matthew Sciarrino. He is a true civil servant who puts in long hours for the people of New York. People know of the newsworthy criminal cases he has presided over.
What the Judge does not get credit for was checking on his courthouse after the damage caused by Hurricane Sandy and performing a marriage ceremony for a couple.
No power, people struggling to get back to normal after the storm and Judge Sciarrino took the time to do something kind: performed a wedding ceremony for two people trying to get married.
Judges across the country do similar quiet good works. I have seen many local judges volunteer for the county high school mock trial tournament. There are many other examples as well. Their contributions to society are usually done without fanfare, but are not be forgotten by those they help.
In the past year, I also had the good fortune to spend time with Magistrate Judge John Facciola, moderated a panel with District Judge David Nuffer and had a blast with our anniversary podcast with Magistrate Judge Paul Grewal this year. I really cannot state how much I respect our judges. They work hard to uphold the Constitution and their service to country is very appreciated.
Oh, The Places You’ll Go
I attended the Alternative Press Expo and Big Wow! Comics Convention this year. In my opinion, attorneys attend legal conferences because they have to; people attend comic/geek conventions because they want to. I would like to find how we can make legal conferences events lawyers want to attend.
Presenting on Assumption of Risk & Red Shirts at PFIC
Part of the answer lies in the type of panel discussions that are held at conferences. The “geek” shows offer big names on topics and “how to” panels. While a Clarance Darrow cosplay panel would not likely be useful, focusing on how to conduct expert depositions, how to propound discovery requests for social media, or even how to balance billable hours to raising a family might be good starting points for conference organizers.
I am not sure the exact answers, but hope to have a better idea how to improve educational events for attorneys for the future.
Perhaps lawyers would like bow tie tying panel.
Your Honor, Your Honor
With due regard for Caddyshack, we were very honored to have an honorable mention by The Geekie Awards for our “fireside chat” podcast with Judge Matthew Sciarrino. I will attend the awards show on August 18 and look forward to meeting the extremely talented geek nominees and judges.
Which brings us to the ABA Journal Blawg 100. Nominations are now open and close on August 9 at 700pm EST. If you enjoy our blog, please nominate us for the ABA Journal Blawg 100.
Again, thank you for a great Year One. I look forward to Year Two.
Thomas Jefferson, Declaration of Independence, July 4, 1776
One of my motivations for becoming an attorney was my love of country.
Celebrating our Declaration of Independence on the 4th of July has always been very important to me (Just as is Constitution Day).
Not because of memories of my grandfather making homemade ice cream by hand, fireworks in front of our house or marching in the local parade as a youth.
Those things made up my American Experience.
My love of the 4th of July is heavily fueled by my love of history. From the events of 1763 to the Declaration of Independence; from to the Federalist Papers to the United States Constitution and ultimately the Bill of Rights, essentially define American life in the United States. The story of how all came about have been the subject of many books, each with great leaders who will be remembered as long as we have a country.
Nature throws us all into the world equal and alike…the only maxim of a free government ought to be to trust no man [kings included] to endanger public liberty.
John Adams, from his notes on an oration at Braintree, quoted in John Adams, by David McCullough, page 121.
On Being a History Geek
I took enough upper division history classes at UC Davis for a mini major in United States history. Our history has many heroes who did the hard work to build a free nation. They literally put their lives on the line for a free nation to be born.
Do you recollect the pensive and awful silence which pervaded the house when we were called up, one after another, to the table of the President of the Congress tosubscribe what was believed by many at that time to be our own death warrants?
Benjamin Rush, letter to John Adams, 1781, The Essential Wisdom of the Founding Fathers, edited by Carol Kelly-Gangi
We value our freedom from government intervention with our lives. Perhaps the most overlooked evidence of this national value is the Third Amendment to the US Constitution. Few people EVER hear mention of this Amendment, but it expressly forbids the quartering of soldiers in private homes. The Third Amendment expressly states:
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
The United States simply has not quartered soldiers in private homes because of our Revolutionary experience from the British soldiers being unwanted house guests. There is barely any case law of the Third Amendment, simply because the US Army has not forced soldiers into the homes of citizens to be fed and housed. We don’t do that here.
The Third Amendment highlights one of our fundamental beliefs in country: to be free of an oppressive police state. This is paramount for anyone to have “life, liberty and the pursuit of happiness.” Moreover, the Third Amendment is part of the Bill of Rights creating a “penumbra of privacy” as cited in Griswold v. Connecticut, 381 U.S. 479, 484 (U.S. 1965).
The Third Amendment might be one of the forgotten amendments, but it certainly demonstrates our values of a free society.
On Service to Country
Every post is honorable in which a man can serve his country.
George Washington, Letter to Benedict Arnold, September 14, 1775, The Essential Wisdom of the Founding Fathers, edited by Carol Kelly-Gangi
Our country is free because of those willing to defend it.
I have many friends who serve in the military. I know many who serve the public trust as district attorneys, public defenders, county counsel and judges. To everyone who took an oath to uphold and defend the Constitution, thank you.
…and Third Amendment notwithstanding, there are very few Americans who would not be proud to invite someone serving in the military over to join in a 4th of July celebration.
Let’s be clear about one thing: my brother Gabe Diani is in Research, so this is a mild tale of nepotism.
Each episode of Research could provide law professors hours of exam questions for law students. It should give Employment Lawyers nightmares that result in them carrying whiskey flasks to client meetings. Uncontrollable laughter is also foreseeable.
Let’s review the highlights of the main legal issues presented in the first two episodes.
Episode 1: The Pilot
Episode 2: Secretariat
Let’s Poison a Test Subject
Taking a room full of test subjects and telling them one might drink poison raises many legal issues. The obvious is murder, because a poison is being used to kill a person (California Penal Code section 189). This demonstrates malice aforethought to kill a test subject and clearly is first degree murder, regardless of whether or not a specific test subject is the target of the poison.
There would also be significant issues of intention inflection of emotional distress by telling test subjects that there is a poison in one of the test cups. While there would need to be waivers of liability to participate in any research study, one cannot willfully try to torture people. There is simply no waiver of liability for torture.
Taylor’s Sexual Harassment of Dave
An attractive woman randomly kissing a supervisor might be common on late night cable, but it is sexual harassment in the real world. To prove sexual harassment, Dave would must demonstrate the following:
1. That Dave had a business, service, or professional relationship with Taylor; and
2. That Taylor made sexual advances to Dave.
Alternatively, Dave could prove under California law that:
1. Taylor engaged in verbal, visual, and physical conduct of a sexual nature;
2. Taylor’s conduct was unwelcome and also pervasive or severe;
3. Dave was unable to easily end the relationship with Taylor; and
4. That Dave has suffered or will suffer the violation of a statutory or constitutional right as a result of Taylor’s conduct.
5-30 California Forms of Jury Instruction 3065.
Contrary to Taylor saying it was not sexual harassment when a “woman does it,” Taylor could be found to have sexually harassed Dave, because the law is not limited on which gender can sexually harass the other. (The law even provides protection against same gender harassment, See Singleton v. United States Gypsum Co., 140 Cal. App. 4th 1547, 1548 (Cal. App. 2d Dist. 2006)).
There was uninvited kissing and verbal comments. Moreover, Taylor waiting in the conference room boarders on stalking Dave. All of these facts would show a repeated pattern of harassment of Dave or at a minimum stalking.
Job Posting on JDate
Research also raises issues of religious discrimination by posting a job ad on JDate, showing a preference for Jewish employees at the expense of qualified non-Jewish candidates (not to mention a high degree of cultural insensitivity). The California Constitution specifically prohibits disqualifying a person from employment based upon their religion. Cal Const, Art. I § 8.
There is an exception to the above, because a religious employer has discretion to select employees who will not interfere with their religious mission. Silo v. CHW Med. Found. (2002) 27 Cal.4th 1097, 1108-1109 applying U.S. Const., Amend. I; Cal. Const., art. I, § 4 to Cal. Const., art. I, § 8. As the team on Research has nothing to do with a religious mission, this hiring practice could result in a lawsuit.
Physical Battery by Dr. Rust
Dr. Rust slapped Dave across the face. There is also facial touching of both receptionists.
Battery under California Penal Code section 242 is “is any willful and unlawful use of force or violence upon the person of another.” Dr. Rust slapping Dave would unquestionably be battery, resulting in civil and criminal liability. It is also a terminable offense from employment.
The touching of both receptionists’ faces would be unlawful touching as well. While not the same physical force as a slap, it is extremely creepy behavior that could result in a lawsuit.
This says nothing of giving Kate face melting acid.
Who Handled the Blood Sample?
Performing blood draws and the storing of blood is a heavily regulated profession. (See, Cal Bus & Prof Code § 1242 and Cal Health & Saf Code § 7150.10). The team at Research could not simply leave a large bottle of blood out in the open brought in by a test subject.
Sexual Discrimination in Hiring
Grant’s mandate for Dave to hire a “hot chick” would be several forms of sexual discrimination. First, it eliminates all qualified men who applied for the position. Second, it discriminates against women based solely on appearance, whether or not they are skilled to do the job. Third, it invites unlawful future sexual harassment of the new hire. The mandate is a lawsuit waiting to happen.
There Are Even More Issues
Research is a law professor’s dream on possible legal issues. These are only the first two episodes and just the tip of the iceberg on possible liability for the fictional company.
Raiders of the Lost Ark asks the age old question: Can a bar fight with Nazi henchmen that causes the destruction of the bar result in partnership formation with the former bar owner?
What fiduciary duty is owed between partners on an adventure to find rare antiquities?
Partnership formation can happen without warning, like a giant bolder crashing down upon you.
Or darts shooting out of walls.
All the essential elements for a partnership needed under Connecticut law, home of Marshall College, is “the association of two or more persons to carry on as co-owners of a business for profit forms a partnership, whether or not the persons intend to form a partnership. . . .” Hirschfeld v. Hirschfeld, 50 Conn. App. 280, 287 (Conn. App. Ct. 1998), citing Conn. General Statutes § 34-314.
Let’s put on our fedoras and get out the bullwhips, because it is time to analyze the partnership issues in Raiders of the Lost Ark.
Throw Me The Idol & I’ll Breach My Fiduciary Duty
What fiduciary duty was owed by Satipo to Indiana at the Temple of the Chachapoyan Warriors?
Indiana Jones contracted with Satipo for assistance in finding the Chachapoyan Fertility Idol.
Satipo arguably was in a partnership with Jones because of the business venture from the History Museum to find the Idol.
As such, Satipo would have owed Jones the fiduciary duties of loyalty and care. Conn. Sec. 34-338.
These duties include an accounting to the “partnership and hold as trustee for it any property, profit or benefit derived by the partner in the conduct…” and avoid having adverse interests to the partnership. Conn. Sec. 34-338(b)(1) and (b)(2).
Satipo telling Jones to “throw me the Idol, I’ll throw you the whip” while they were trying to escape was a breach of his duty of loyalty to Jones. Moreover, Satipo not throwing over the whip was not only a breach of his duty, but an improper partnership dissolution, because he attempted to steal the Idol for himself (the same can be said for the former partner Barranca, who also breached his duty of loyalty by pulling a gun on Jones).
Alternatively, if there was not a partnership because Satipo was simply an independent contractor, he would have breached his contractual obligations by trying to demand the Idol for the whip for Indiana to escape.
You Still Remember How To Show A Lady A Good Time
Indiana Jones, an independent contractor for the US government, traveled to Nepal to purchase Headpiece to the Staff of Ra from Abner Ravenwood.
Jones negotiated with Marion Ravenwood for the Headpiece to the Staff of Ra for $3,000 cash, plus another $2,000 when they returned to the United States.
Marion kept the $3,000 cash.
After a Nazi thug bar fight resulting in the destruction of Marion’s bar and the $3,000 cash, Marion held up the Headpiece and said, “I am your goddamn partner!”
Would Indiana and Marion have a valid legal partnership?
Based on the statute and case law, yes.
You and I Are Merely Passing Through Partnership Formation…This, this IS Partnership Formation
A partnership is “the association of two or more persons to carry on as co-owners a business for profit forms a partnership, whether or not the persons intend to form a partnership.” Conn. Sec. 34-314(a). Moreover, a “person who receives a share of the profits of a business is presumed to be a partner in the business…” Conn. Sec. 34-314(c)(3).
Marion’s participation in the partnership with Jones was for the fee of 1) $5,000 in exchange for, 2) the Headpiece to the Staff of Ra, so 3) Jones could find the Ark of the Covenant for the United States government in the Well of Souls.
The partnership would be a valid partnership, despite the lack of a written partnership agreement. As one Court explained:
A partnership is a contractual relation, which may be implied from conduct and circumstances alone. See 59A Am. Jur. 2d Partnership § 89. Connecticut General Statutes § 34-314(a) defines the formation of a partnership as follows: “the association of two or more persons to carry on as co-owners a business for profit forms a partnership, whether or not the persons intend to form a partnership.” The elements of a partnership as expressed by the courts, generally include,an association of persons to combine property, money, effects, skill, and knowledge under a contract or agreement to carry out a lawful business enterprise for profit; co-ownership of the business enterprise; the conduct or contemplation of business activity; a community of interest in the business profits, management, and control; and the sharing of profits and losses from the business enterprise.
Balzer v. Millward, 2011 U.S. Dist. LEXIS 43355, 8-9 (D. Conn. Apr. 21, 2011).
The Jones-Ravenwood partnership was the blending of Marion’s property and Jones’ skill to locate the Ark of the Covenant for the United States, with Marion getting $5,000 (which adjusted for inflation from 1936 would be $81,741.62 in 2012 for the bronze headpiece). All of this conduct demonstrated a valid partnership between the parties.
The Man is Nefarious
Marion Ravenwood was the legal owner of the Headpiece to the Staff of Ra. Marion’s father lawfully found it as a treasure trove, because King Shishak had been dead since approximately 979 or 978 BC, thus waiving any claim to the headpiece.
As such, would the Jones-Ravenwood partnership have a copyright claim against the Nazi Major Arnold Toht for unlawfully copying one side of the headpiece?
Possibly, but the issue is moot, because Toht melted from the wrath of God. Moreover, violating at least half of the 10 Commandments before opening the Ark of the Covenant would superseded any copyright claims.
The Adventures Continues
The legal adventures of Indiana Jones do not end there. Another time we will explore child endangerment in Temple of Doom, destruction of public property in Last Crusade and back child-support in Crystal Skull.
In the Man of Steel, Clark Kent goes to church and seeks out his minister for advice.
Would those communications be protected?
Could the pastor be forced to disclose those communications and that Clark Kent was Superman?
Most likely no, but there is a small chance the minister could disclose those communications, assuming the laws of the United States and Kansas applied to someone born on another planet.
The Kansas Rules of Evidence define the “Penitential Communication Privilege” as follows:
(a) Definitions. As used in this section,
(1) the term “duly ordained minister of religion” means a person who has been ordained, in accordance with the ceremonial ritual, or discipline of a church, religious sect, or organization established on the basis of a community of faith and belief, doctrines and practices of a religious character, to preach and to teach the doctrines of such church, sect, or organization and to administer the rites and ceremonies thereof in public worship, and who as his or her regular and customary vocation preaches and teaches the principles of religion and administers the ordinances of public worship as embodied in the creed or principles of such church, sect, or organization;
(2) the term “regular minister of religion” means one who as his or her customary vocation preaches and teaches the principles of religion of a church, a religious sect, or organization of which he or she is a member, without having been formally ordained as a minister of religion, and who is recognized by such church, sect, or organization as a regular minister;
(3) the term “regular or duly ordained minister of religion” does not include a person who irregularly or incidentally preaches and teaches the principles of religion of a church, religious sect, or organization and does not include any person who may have been duly ordained a minister in accordance with the ceremonial, rite, or discipline of a church, religious sect or organization, but who does not regularly, as a vocation, teach and preach the principles of religion and administer the ordinances of public worship as embodied in the creed or principles of his or her church, sect, or organization;
(4) “penitent” means a person who recognizes the existence and the authority of God and who seeks or receives from a regular or duly ordained minister of religion advice or assistance in determining or discharging his or her moral obligations, or in obtaining God’s mercy or forgiveness for past culpable conduct;
(5) “penitential communication” means any communication between a penitent and a regular or duly ordained minister of religion which the penitent intends shall be kept secret and confidential and which pertains to advice or assistance in determining or discharging the penitent’s moral obligations, or to obtaining God’s mercy or forgiveness for past culpable conduct.
(b) Privilege. A person, whether or not a party, has a privilege to refuse to disclose, and to prevent a witness from disclosing a communication if he or she claims the privilege and the judge finds that (1) the communication was a penitential communication and (2) the witness is the penitent or the minister, and (3) the claimant is the penitent, or the minister making the claim on behalf of an absent penitent.
K.S.A. § 60-429.
Clark went to church to for advice on what actions to take. For the privilege to apply, this would mean Clark was a “penitent” under the law, who recognizes the existence and the authority of God and who seeks or receives from a regular or duly ordained minister of religion advice or assistance in determining or discharging his or her moral obligation… K.S.A. § 60-429(a)(4).
This means Clark Kent, the boy from another world who grew up on a farm in Kansas, is a Christian.
The communications with the pastor, who appeared a duly ordained minster, was for guidance on what moral direction to take on whether to surrender to the US government and be turned over to General Zod.
This would meet Kansas’ “penitential communication” definition under K.S.A. § 60-429(a)(5).
Based on the above, Clark Kent’s visit to the church meets all of the elements under the Kansas Rules of Evidence for his communications to be privileged, because he sought moral advice from his minister.
Kansas case law holds that a party who made a privilege communication to a minister can have the privilege waived if the penitent tells the facts to third parties. State v. Andrews, 187 Kan. 458, 357 P.2d 739, 1960 Kan. LEXIS 436 (1960), writ of certiorari denied by 368 U.S. 868, 82 S. Ct. 80, 7 L. Ed. 2d 65, 1961 U.S. LEXIS 784 (1961).
This opens the door for the minster to disclose Clark’s penitential communications if Clark told others about the facts discussed with the minister about surrendering to General Zod. While Superman did turn himself over to the military, he did not disclose he was Clark Kent, nor the underlining content of his penitential communications. As for Lois Lane, she had already figured out Clark Kent had extraordinary powers, but did not discuss content of his seeking moral advice from his minister.
There is a chance the minister could disclose the content of Clark Kent’s penitential communications seeking moral advice on the technicality a Christian was not from Earth, but it is unlikely a Man of God would do that to the Man of Steel.
A boy who grew up in abject poverty and became the President of the United States.
The man who went to the Republican Convention to nominate another man for President, only to get the nomination himself.
And stalked by an office seeker who murdered him.
President Garfield was one of the best men qualified for the office in US History. The country needed him, because the later half of the 19th Century is short on political heroes who stood on principle.
James Garfield was President for only 200 days.
Much of that time was spent dying.
The Destiny of the Republic
Candice Millard’s Destiny of the Republicis an amazing book on the life of President James Garfield.
Her analysis of Garfield’s rise to the Presidency and death from both an assassin’s bullet and his doctors is simply historical storytelling at its best.
Moreover, the accounting of Charles Guiteau’s trial is excellent, with a detailed summary of the insanity defense in the 19th Century.
After reading Destiny of the Republic, I reviewed the case law from Charles Guiteau trial and related legal issues.
Here are significant legal issues from Garfield’s assassination:
Presidential Succession
President Garfield’s death highlighted a huge gap in the Presidential Succession: There was no plan for who was in charge if the President was unable to fulfill his duties, but still alive. We have the 25th Amendment and Presidential Succession Act today, which explains how the Vice President can become the Acting President (or if the country is really having a bad day, the Speaker of the House on down to the Secretary of the Interior).
Garfield was shot on July 2, 1881. He did not die until September 19, 1881. That is a significant amount of time for “who exactly is in charge” for decisions that had to be made on matters of state.
Jurisdiction for A Presidential Assassin
President Garfield was shot in Washington, DC. He died in New Jersey. Justice Cox for the Supreme Court of the District of Columbia determined that the District of Columbia had jurisdiction to try Charles Guiteau for the President’s murder.
The Court held that DC was the proper venue, not where the President died as argued by Guiteau’s attorney Charles Reed, because “the crime was committed where the wound was inflicted.” United States v. Guiteau, 1 Mackey 498 (D.C. 1882). The Court explained:
The contention is, in this case, that murder can only be tried and punished in the county where it is committed; that death is an essential element in the crime, and that, as the death did not occur within this District, the crime of murder was not committed here, but, at most, an assault with intent to kill. The same reasoning will apply to the place where the death occurred. The mortal wound being an essential element of the crime, and this not having been inflicted in the same jurisdiction where the death occurred, it follows that murder was not committed there. The consequence of this doctrine is that, although murder most foul may be committed, yet, if by accident, or even by contrivance of the assassin himself, the victim be conveyed, before his death, over the territorial boundary of the jurisdiction where he was smitten, it becomes impossible to locate the murder, and its perpetrator secures immunity from the punishment due to this heinous crime.
///
A wound, not immediately fatal, is inflicted in this District. Until its consequences are ascertained, it cannot be determined whether the offense committed is a homicide or an attempt. But when death results from the wound, no matter where, it is ascertained that a homicide is committed. Everything of which the perpetrator was guilty was committed here. The crime consists in intentionally and unlawfully causing the death. Wherever the death may have occurred, it was caused here, by the fatal wound inflicted here. It is even a misnomer to speak of such an offense as having been begun here and completed elsewhere.
///
In this condition of affairs, I feel at liberty to adopt and announce the opinion which seems most to conform to common sense, and that is that the jurisdiction is complete where the fatal wound was inflicted.
United States v. Guiteau, 1 Mackey 563, 567-568, 584 (D.C. 1882).
Medical Malpractice
Charles Guiteau’s argued in his defense that Doctor Willard Bliss and the medical team killed President Garfield. Guiteau had a point, if you ignore the fact Bliss would have never treated Garfield but for Guiteau shooting the President. (See, Destiny of the Republic, Chapter 22).
Bliss did not believe in sterilizing medical equipment, explored Garfield’s wound without cleaning it and dominated the treatment of the President. This was also long before latex gloves and hand sanitizer.
Bliss was wrong. Arrogant. Ignorant. And he killed the President of the United States from his poor treatment.
Bliss’ arrogance was highlighted with his interaction with Alexander Graham Bell. Bell invented a medical metal detector specifically to find the bullet in the President. However, Bliss only let Bell scan the areas where Bliss thought the bullet was located.
Bliss’ treatment would make for an excellent civil case for medical malpractice, plus a possible criminal case for negligence. However, that would not be enough to give Guiteau a free pass for shooting James Garfield.
Bliss treated Garfield because Charles Guiteau planned to shoot President Garfield, purchased a gun for the purpose, practiced with said gun, stalked the President, and then shot Garfield in public with the intent to kill the President.
“But for” Guiteau’s actions, President Garfield would have never been under Bliss’ care for a gunshot wound.
A Fair Trial For a Very Public Crime
Jury Selection
Selecting an impartial jury for someone who murdered a President of the United States is no small task. It is a news story that is hard to miss.
Guiteau’s trial lasted from November 14, 1881 to January 25th, 1882. He was found guilty the same day. He was sentenced to be executed on June 30, 1882. United States v. Guiteau, 1 Mackey 498 (D.C. 1882).
How did the Court ensure Guiteau’s Constitutional right to a jury trial was fair? It’s not like they could simply move the trial to St. Thomas in the hopes of finding jurors who had not heard about Guiteau shooting Garfield (for the record, the United States did not purchase St. Thomas until 1917).
A 1893 opinion referenced the challenge of finding impartial jurors in both the Aaron Burr and Charles Guiteau trials. The Court explained:
The jury duty devolved upon the citizen is no more voluntary than his similar obligation to render military service. He can escape from neither upon the strength of his mere representation of his unfitness, and thus be allowed at his will to cast his obligation upon others, whose burden grows heavier by every such exemption. The duty of the examining authority, instead of ceasing when the citizen, in either case, has made his general claim to exemption, may more properly be said to have then really begun.
In the Burr trial, every one of the hundreds of persons summoned as jurors, with scarcely one exception, answered on his voir dire that he had formed an opinion. The attorneys for the United States could not have been far wrong when they expressed their belief that to obtain a jury in that case entirely free from all opinions as to the guilt or innocence of the prisoner was not possible, unless it should be dropped from Heaven, or be composed of hermits who had passed their lives immured in caves or hollow trees.
The same conditions appeared in the Guiteau trial.
But impartial jurors were finally obtained in each case, by a careful analysis by the court of the sources and extent of their alleged opinions. There must be few persons of intelligence in this country, who have not heard and participated in discussions as to the probabilities of the guilt of the person charged with the savage murder of her parents at Fall River a short time since; and atrocious crimes committed in even foreign countries, attract almost the same degree of attention here, and give rise to similar expressions of opinion, on the newspaper accounts of the facts or of coroners’ inquests. But as all sensible persons observe the reports vary in the different newspapers of the same day, and in successive issues of the same newspaper, it is impossible to believe such opinions can have a disqualifying effect upon the minds of men of average good sense. If this were so, the very lawyers who are employed to defend the accused and are on the alert to pronounce intelligent jurors disqualified, would find it their duty to decline service in a case they had thus necessarily prejudged.
Although the oath taken on the voir dire is to make true answers to such questions as may be asked by the court, the examination is often conducted in great part by counsel whose experience has taught them exactly what are the crucial points involved in the inquiry. Under such examinations, an ignorant person, appearing in court perhaps for the first time as a juror, with the limited vocabulary of the uneducated, may naturally assent to questions not fully understood; or by using technical terms in an inexact manner, may indicate the formation of disqualifying opinions; until a careful examination by the judge, the one person concerned in the inquiry who must be supposed to be entirely disinterested in any result except the attainment of justice to the prisoner and the community, may evince an impartiality fitting him to serve.
United States v. Barber, 1 Tuck. & Cl. 456, 462-464 (D.C. 1893) (Emphasis added).
Travel Costs for Witnesses
Getting across the United States costs money and takes time. Guiteau was broke. As such, the Defense made an application for the Court allowing fees for witnesses residing at a distance of more than one hundred miles from Washington testifying for the defense. United States v. Guiteau, 1 Mackey 585(May 22, 1882).
The application was made pursuant to section No. 839 of the Revised Statutes of the District, which stated, “In all criminal trials the Supreme Court, or the judge trying the case, may allow such number of witnesses on behalf of the defendant as may appear necessary, the fees thereof, with the costs of service, to be paid in the same manner as Government witnesses are paid.” Id.
The Court decided in chambers how many witnesses were to testify for the defense at the expense of the Government. US v. Guiteau, 1 Mackey 585(May 22, 1882).
The Insanity Defense
Guiteau plead to the Court that he was not guilty by reason of insanity, because God told him to kill President Garfield. Moreover, he was no longer insane because God was not talking to him (See, Destiny of the Republic, Chapter 22 for a beautifully detailed account of the trial).
And so began a very long trial on whether or not Charles Guiteau was insane that included 36 expert witnesses. Guiteau himself testified for two weeks.
The Court issued the following jury instruction on the insanity defense:
“If he is laboring under disease of his mental faculties–if that is a proper expression–to such an extent that he does not know what he is doing, or does not know that it is wrong, then he is wanting in that sound memory and discretion which makes a part of the definition of murder.”
US v Guiteau, 1 Mackey 498, at *550.
Justice James of the Supreme Court for the District of Columbia explained the insanity defense as follows:
Insanity is a defense on the very ground that it disables the accused from knowing that his act is wrong. The very essence of the inquiry is whether his insanity is such as to deprive him of that knowledge. If a witness is competent to give his opinion as to the mental condition of the accused, he is competent to state his opinion as to the degree of capacity, or of incapacity, by reason of disorder, and whether the disorder seemed to have reached such a degree as to deprive him of the knowledge of right and wrong. That capacity or incapacity is itself a question as to the extent of the disorder, if disorder exists, and is not a conclusion to be drawn from the existence of insanity.
US v Guiteau, 1 Mackey 498, at *546.
The Supreme Court of the District of Columbia found the witnesses who testified on the issue of sanity were competent to do so and thus no error in their testimony. Id.
Dr. Fordyce Barker was a Prosecution witness who answered the following question on direct examination:
“Is the habit of boasting of intimacy with people holding high position, and possessing influence and power, when the fact is otherwise, any evidence, in your judgment, as a scientist, of an insane delusion?”
Answer:
“It is not an evidence of a delusion of an insane person, because it is not the result of disease. It is a result of vanity and self-conceit and love of notoriety. These are vices and not diseases.”
US v Guiteau, 1 Mackey 498, at *546.
The Court explained the testimony was admissible, because the issue of shooting the President had been conceded by the Defendant. The doctor’s answer spoke only to the issue of sanity or insanity and not of guilt. Id.
Guiteau’s ex-wife also testified that she saw no evidence of Guiteau being of unsound mind. The ex-wife had been instructed by the court not to disclose any communications between husband and wife, which are protected. As she was only testifying to her opinion, not any communications, her testimony was admissible. US v Guiteau, 1 Mackey 498, at *547-549.
Scholars on the Rules of Evidence may still question this testimony, because the ex-wife’s opinions were based on marital communications. Apparently, the NSA is not the first to argue the “context over content” argument in court.
Other witnesses testified to fraudulent activity of Guiteau from the early and mid-1870s, after the Defense had introduced evidence of “insanity” that spanned Guiteau’s entire life. Guiteau had even testified on these events.
The Court held the rebuttal “sanity” evidence was admissible:
In this body of defensive evidence his moral nature and traits had been presented, as a means of showing that acts done by him must be accounted for by a conclusion of insanity. It was competent to show, in rebuttal, that the grounds on which this inference of insanity was based, did not exist, and to do this by exhibiting particular acts and conduct of the defendant, contemporaneous with the history produced on his part, which tended to disprove the existence of those grounds. If a conclusion might be drawn from his moral nature that his acts must be insane, it was relevant and proper to show that his real moral nature was one which did not call for such an explanation.
After comparing the evidence, as to particular acts, offered on both sides, we are of opinion that the evidence in rebuttal was responsive to the evidence in defense, and was admissible. It must be remembered that the killing of the deceased was admitted; the implication of malice had already been made when the prosecution rested their case. The issue now was whether the defendant was responsible for that act by reason of insanity. The application of his improper acts was limited, therefore, to that issue. For these reasons we find no error in the admission of the facts referred to, and for the same reasons we find none in that part of the charge to the jury which related to this point.
US v Guiteau, 1 Mackey 498, at *549.
The Insanity Defense has never been popular with the public. Cases frequently are tried in the press before they are tried in a courtroom. This causes public outcry when press driven results are not reached by the jury. However, it is rare for the public to actually listen to an entire trial, watch each witness or understand the jury instructions. As one Court stated, “As to the reasonableness of a defense being mounted in this case, we need look no farther than the “Twinkie” defense asserted in the Moscone-Milk murder case for an example of what may appear reasonable to a jury.” People v. Burns, 184 Cal. App. 3d 203 (Cal. App. 2d Dist. 1985)
The Insanity Defense had a substantial amount of scorn from the Prosecution in the trial of Sirhan Sirhan for the murder of Robert Kennedy. The closing argument by World War II hero and later California Court of Appeals Justice Lynn Compton stated to the jury that if they didn’t buy the psychiatric testimony, “then there’s nothing left but plain old cold-blooded first-degree murder.”
Despite the hostility toward the Insanity Defense, Courts have described the Insanity Defense over the years with effectively the same intent:
[The] insanity defense, which is to save from criminal conviction one who lacks responsibility for his unlawful acts, has not been achieved on this record by the introduction of sufficient evidence to make that defense a substantial issue in the determination of appellant’s guilt or innocence.
United States v. Collins, 433 F.2d 550, 556 (D.C. Cir. 1970).
The California Jury Instructions state the following on the determining whether a Defendant is legally insane:
The defendant was legally insane if:
1. When (he/she) committed the crime[s], (he/she) had a mental disease or defect;
AND
2. Because of that disease or defect, (he/she) was incapable of knowing or understanding the nature and quality of (his/her) act or was incapable of knowing or understanding that (his/her) act was morally or legally wrong.
None of the following qualify as a mental disease or defect for purposes of an insanity defense: personality disorder, adjustment disorder, seizure disorder, or an abnormality of personality or character made apparent only by a series of criminal or antisocial acts.
2-3400 CALCRIM 3450.
No one wants to see the guilty go free. No one wants to see the innocent convicted of a crime they were not responsible for committing. This is what makes the Insanity Defense a challenge, because rational human beings should not engage in the unlawful killing of another human being. When someone is murdered, we as a society want justice. Many have viewed the Insanity Defense as a way of escaping justice, when its intent is to ensure that those convicted of a crime actually had the criminal intent to do so.
Charles Guiteau may have had several sever personality disorders and delusions of grandeur. Was he insane? Some expects thought yes and some no. In the case of the jury, they saw a man who deliberately planned to murder President James Garfield.
Would the same result be reached today? I think so because of the substantial premeditated planning, target practice and stalking by Guiteau to kill President Garfield. Guiteau knew his actions would result in the death of James Garfield.
With that said, there would be substantial arguments over whether Guiteau had a disease that diminished his capacity to know right from wrong. Expert witnesses would argue that a personality disorder with imagined self-importance is not a disease under the law. However, it is hard to predict if Guiteau would have been tried like Sirhan Sirhan or not have been competent to stand trial like John Hinckley.
Guiteau & Defamation
History views Presidential assassins with a high degree of scorn.
In 1887, a Plaintiff sued over the Defendant calling him a “crank.” Since Garfield’s assassination, the word “crank” had obtained a meaning referring to Guiteau that meant a “crack-brained and murderously inclined person” from the media. Walker v. Tribune Co., 29 F. 827, 829 (C.C.D. Ill. 1887).
The Court granted a demur for the Defendant, citing Ogilvie’s Imperial Dictionary (1885 publication), which defined “crank” as “Some strange action, caused by a twist of judgment; a caprice; a whim; a crotchet; a vagary. Violent of temper; subject to sudden cranks. Carlyle.” Id.
What Garfield Means to the United States
President Garfield is in second place for the shortest Presidency in US History. Garfield was one of the few successful Presidential dark horse candidates to get nominated by his party, joining the likes of James K Polk.
Why is he relevant today?
James Garfield represented everything honorable about the American Experience. The poor child with a brilliant mind. The young man who went to college and swept the floors, only to ultimately become president of the school. The daring Civil War General who knew the value of human life. The good husband and father.
America will always need people like James Garfield. A good man who did not seek higher office, but was sought out for it. We need the heroes who are willing to do the hard work to make our country better. That is why we should remember James Garfield.
Thank you everyone for a very successful first year of The Legal Geeks.
Jessica Mederson is a wonderful blogging partner. A smart lawyer who has read the classic science fiction books for the last century, she was also into vampires before they were sparkling moody teenagers. Her post on judges who quoted Star Trek in opinions was brilliant and picked up by io9.
What the Judge does not get credit for was checking on his courthouse after the damage caused by Hurricane Sandy and performing a marriage ceremony for a couple.
