Could Nick Fury Promote Phil Coulson to Director of SHIELD?

Agents of SHIELD Season 2 has Phil Coulson where he should be: Director of SHIELD.

Fury_Appoint_Coulson_0560Just one GIANT-MAN sized problem: Nick Fury likely did not have any legal right to make such a promotion. No amount of Pym-particles could shirk the fact SHIELD had been disbanded, with its members either wanted for questioning or subject to arrest warrants for treason. Never mind the fact the world also thinks Fury is dead.

While the exact organizational structure has not been stated, SHIELD operated as a branch of the US military (as evident from the questioning by the Joint Chiefs at Congress at the end of Winter Soldier), with also an international oversight committee empowered to make policy. SHIELD was headed by Secretary Alexander Pierce (who likely was confirmed by the US Senate), run by Nick Fury as Director (also likely confirmed by the Senate), and headquartered in Washington, DC. In the wreckage of Winter Soldier, SHIELD was disbanded and political fallout for the fictional US President was overheard on talk radio in Agents of SHIELD.

Did Nick Fury have any legal right to appoint Coulson as Director? It is extremely difficult to envision any statutory authority to do so. However, Fury arguably had apparent authority from a Realpolitik point of view: Fury had all the secrets to rebuild the organization. As such, giving those secrets to Coulson effectively is only enabling vigilantism that borders on treason, albeit justified by the necessity defense.

There is a small amount of evidence that Coulson’s appointment is operating under limited government approval: at the end of Season 1, the former SHIELD agents were not arrested with the HYDRA agents, surgically altered soldiers, and Cybertek employees. Either the arresting agencies decided to ignore Coulson’s team or give him tacit approval by not prosecuting them for attacking General Glenn Talbot and other US soldiers in Canada. The US Government still needs SHIELD to combat threats such as HYDRA, thus might be operating with plausible deniability of Neo-SHIELD’s actions.

We will know for sure as Season 2 unfolds.

Oh My God I am 40: Reflecting on the Top Geek Events in My Life

I have hit the milestone that always seemed like a far distant future: I turned 40.

While my feelings on my age are very reflective of Admiral Kirk in Wrath of Khan, I have lived in one of the best eras of geekdom EVER.

Being a geek means you appreciate the symbolism from the stories you love. Many of us love to quote films. We know the value of a moment in time. We also know that moments in time can be lost like tears in the rain, but for everyone who is a geek, we know that this, this is our time.

Let’s take a look at what I think are the best geek moments of the last 40 years:

Roll Out of Space Shuttle Enterprise (September 17, 1975)


The Space Shuttle Enterprise at the National Air & Space Museum Annex at Dulles International Airport in 2008.

The Space Shuttle Enterprise was rolled out on my first birthday. This event is a testament to how much people love Star Trek, as it was the fans that inspired NASA to name the test Shuttle Enterprise.

The 747 glide and landing tests of Enterprise paved the way for the first flight of the Columbia in 1981. I had the privilege of seeing the roll out of Columbia, because my father was in charge of the team that installed the tiles.

Rollout of Columbia.

Roll out of Columbia.

Star Wars: A New Hope (1977)

A substantial part of my childhood was spent either watching Star Wars, or running around the backyard with my Y-Wing Fighter, or having light saber fights with my brother. Granted, I was so young when I saw the original Star Wars, I had confused memories in my early years of wondering where I saw a double sunset.


Battlestar Galactica (Debuted on my birthday in 1978)

What better birthday present for a four year old then spaceships and robots fighting?

The original Battlestar Galactica was an outright rejection of detente with the Soviet Union or pacifist leaders. Even the doomed Colonies President looked like Jimmy Carter, whose dovish policies resulted in the near destruction of humanity. Political overtones aside, Donald Bellisario created elements in Battlestar that would later be seen in Quantum Leap.

The 2004 reboot of Battlestar Galactica was not a reflection of Cold War politics, but the War on Terror. Lots of great issues and effectively ends with the opening quote of the original series: “There are those who believe that life here, began out there.”

Superman the Movie (1978)

Richard Donner and Christopher Reeve proved a comic book character could be a colossal box office hit. Without Superman the Movie, there would have been no Spider-Man, Iron Man, Avengers, or Guardians of the Galaxy. Add in a “super” movie score, and the bar was set for super-hero movies in 1978.

Star Blazers (Debuted on my birthday in 1979)

Battleships. In space. With a theme song that said, If we can win the Earth will survive.


Star Blazers introduced a lot of “adult” concepts on a children’s TV show. Little things like genocide of the human race through nuclear war.

Captain Avatar’s dying words, as he looked at a picture of his dead son and irradiated Earth through his tears, echoed in my five year old mind for years: “The Earth. I am sorry I will not be here to see you green again. But I have seen you.” [Picture falls to the deck, Doctor comes in the stateroom and salutes his dead Captain.]

Star Wars: Empire Strikes Back (1980)

My mother took me to see Empire on opening day. We sat out on a beach blanket at the now gone Century 21 movie theaters in San Jose waiting hours in line.  I can still remember the heat of that day in May 1980. She loved telling the story of how my feet stopped at the edge of the seat and for the length of the film, I did not move or blink. The audience reacting in total horror and shock of Darth Vader saying, “No, I AM YOUR FATHER,” is perhaps one of the most iconic moments in film.

Empire also taught us life does not always have a happy ending. Sometimes, you just survive to live another day.

Superman 2 (1980)

Kneel before Zod! Kneel!

Raiders of the Lost Ark (1981)

We are simply passing through history. This, this is history.

Steven Spielberg and George Lucas brought the classic adventures of the 1930s back in full force, while fighting Nazis, and finding the Ark of the Covenant.  Moreover, you are hard pressed to find a living male who did not want to be Indiana Jones.

IndianaJonesHat_0408Star Trek II: The Wrath of Khan (1982)

I remember going home from seeing Wrath of Khan, looking out the car window at the night sky, trying not to cry.

The Wrath of Khan has an impressive list of life lessons, from facing a no-win scenario, the challenge of aging, redemption of parents, and sacrificing yourself to save your friends, because the needs of the many outweigh the needs of the few.

Blade Runner (1982)

Ridley Scott’s science fiction epic has many dynamic questions on being human. Roy Batty’s final words always captivated me: I’ve seen things you people wouldn’t believe. Attack ships on fire off the shoulder of Orion. I’ve watched c-beams glitter in the dark near the Tannhäuser Gate. All those … moments will be lost in time, like tears…in rain. Time to die.

The fact Roy Batty let Deckard live added a surreal complexity to the film’s villain, posing the theory that Batty had loved life more than he had before dying, which is why he did not kill the hero.

Return of the Jedi (1983)

I have very fond memories of seeing Return of the Jedi opening weekend. There was a sense of awe. People cheered when Vader threw the Emperor down the exhaust shaft.

And Vader did not yell “Nooooo” in 1983.

Star Trek III: Search for Spock (1984)

Sometimes, the needs of the one outweigh the needs of the many. Search for Spock had wonderful symbolism of loyalty between friends. The crew of the Enterprise was willing to destroy their careers in order to save two of their friends. The end result was another lesson in changing the definition of victory, when you have to destroy your own ship to save everyone.

Plus kick the bad guy off a cliff into lava.


I ain’t afraid of no ghost.

One of the most entertaining geek movies ever. One of the main villains is also the EPA and government regulations, proving not all evil spirits are undead.

Josh_Ghostbusters_9333Back to the Future

I remember seeing Back to the Future with my paternal grandparents in Ann Arbor, Michigan when the movie came out. A wonderful story with reckless driving, treason, collaborating with terrorists, and defense of others.

Man, this is heavy.

BTTF_2395_1TimeCon 1985 & 1986

Josh,Gabe,Checkov2My first “geek” convention was TimeCon in 1985, celebrating Star Trek, Doctor Who, and a whole lot of science fiction. We got to meet James Doohan, Walter Koenig, George Takei, and Anthony Anthony.

TimeCon_85Stark Trek IV: The Voyage Home

1986 was a year when Star Trek went mainstream with The Voyage Home. A great story that caught the attention of a much broader audience than traditional science fiction fans.

We also had a very short trial for our heroes. While they did have a solid necessity defense for stealing the Enterprise, sabotaging Excelsior, and destroying the Enterprise, they went with a guilty plea.

Klingon_BirdofPrey_4070Aliens (1986)

Game over man. 17 days, we won’t last 17 hours.

Exhibit A you can have a science fiction blockbuster with a strong female lead. Bring on Captain Marvel. Agent Carter cannot get here fast enough.

Terminator 2

Come with me if you want to live.

Exhibit B that that you can have a strong female lead.

TRex_1Jurassic Park (1993)

Steven Spielberg brought dinosaurs to life with both CGI and practical special effects.

A real game changer in film making.

Moreover, if you can create an extinct species, is it automatically on the endangered list?

1990s Science Fiction on Television

Star Trek the Next Generation, Deep Space Nine, Voyager, X-Files, and Babylon 5 were all shows I watched weekly. I gave shows like Earth Final Conflict, Space Above & Beyond, Tek Wars, and Lexx, a chance, but never got into them.

X-Men (2000)

The first X-Men movie brought back comic book movies as a viable box office success. After years of defeat, from Superman the Quest for Peace to Howard the Duck, X-Men was a fun adaption of our favorite mutants.

Until X-Men: Last Stand destroyed it, then X-Men: First Class saved it, and X-Men: Days of Future Past, put us back on the right track.

The Lord of the Rings Trilogy

Peter Jackson brought J.R.R. Tolkien to life. The fact Return of the King won Best Picture and Jackson took home Best Director, demonstrated “sci fi” and “fantasy” films could clean house at the Oscars.

Spider-Man (2002)

The first two Spider-Man movies again showed comic book movies could be successful. And then Spider-Man 3 torpedoed the franchise.

Firefly (2002)

What happens when you have an amazing show that is a creative adventure of a steampunk Western in Space where being a “Companion” is a respected career choice? You get cancelled after a dozen episodes (or fourteen counting the two unaired ones). Firefly suffered that initial fate, but because of its incredible fan base, developed cult status and spawned one movie.

You can’t stop the signal.

The Dark Knight Trilogy

Batman Begins, the Dark Knight, and Dark Knight Rises, again demonstrate comic book movies have depth and box office success. Sure, watching all three in a row can be highly traumatic, but an action-packed tour de force. Never mind Gotham looks like a fictional city, then Chicago, and then New York.

CaptainAmerica_25Marvel’s Civil War

I started re-collecting comics after many years because of Civil War. A very gripping story that walked the tight rope of making both sides look right, whether you supported the Registration Act or thought it looked like a massive civil rights violation.

The story’s ending with Captain America’s assassination and following shock waves in Fallen Son and James Barns/Winter Soldier ultimately becoming Captain America were fantastic.

I actually had to get Captain America #25 in Canada. Not one the local comic book stores had the big issue of Cap’s death and I was lucky to get the last issue in Vancouver on a business trip.

DC’s Sinestro War & Blackest Night

The Sinestro War in Green Lantern was a stunning war story that ultimately turned on the Green Lanterns shifting from law enforcement to war-making when the Guardians gave the Green Lantern Corps permission to kill members of the Sinestro Corps. The war is won, but at a cost that ultimately lead to the Blackest Night.

DC delivered again with Blackest Night, where death itself declared war on life. Heroes and villains alike are brutally killed by dead characters who rip out the hearts of the living. There were actually disturbing deaths before the battle was turned in the heroes’ favor.

There many symbolic moments of how the different Lanterns interacted, such as only the Blue Lantern representing Hope could calm the Red Lantern represent rage, or that Compassion was the rarest of all the Power Rings.

Star Trek (2009)

JJ Abrams brought Star Trek back after years of being off the air and the big screen. The return of Star Trek also showed a new era in science fiction film making, because fans who grew up watching the show and movies, are now making the movies.

The Entire Marvel Cinematic Universe

Marvel movies have set the gold standard for comic book adaptions. They range in depth from political thrillers like Captain America The Winter Soldier to a rip-roaring good times of Guardians of the Galaxy. I look forward to their future films.

The Day of the Doctor

Doctor Who for decades was watched on late night PBS in the United States.  The fact the 50th Anniversary special was a global simulcast that broke world records stands as testament that being a “geek” is now mainstream. Also factor in the 3D showings in one night that had fans from five decades dressing up and cheering is just wicked cool.

JoshPOT_SonicsThat Time Being a Geek Helped Save My Life

On February 21, 1990, my bowel ruptured as a result of being undiagnosed with Crohn’s Disease for five years. What followed included nearly 70 days in two hospitals, three surgeries, and a whole lot of pain.

I spent my days in the hospital watching Star Trek and Raiders of the Lost Ark. I also read Tom Clancy’s Clear & Present Danger. My wonderful grandmother set out to find Stephen Coonts’ third book The Minotaur.  I had to know what happened after Final Flight.

My very kind godmother worked some magic with her sister, a florist in Beverly Hills, who through several contacts asked Leonard Nimoy to send me a get well card. Being an outstanding human being, Nimoy delivered.

Nimoy-Card-AutographI was lucky to meet Leonard Nimoy in 2009 at a conference and thank him for sending me a get well card back in 1990.

 Life is the Greatest Adventure

My first 40 years have been a great adventure.

I have seen two Space Shuttle launches, watched dolphins illuminated by bioluminescent plankton swim around a tall ship, borrowed aircraft carriers and battleships, and have traveled from Anchorage to Saint Thomas. There are many more adventures to have and I look forward to the days ahead.

And it is good to be a geek. This is our time.

Was Nick Fury’s Original Sin Having His Own Foreign Policy?

Original Sin ends with several big changes in the Marvel Universe:

Thor is no longer worthy to lift his hammer Mjölnir because of a secret Nick Fury whispered to Thor;

The Orb shot Uatu the Watcher in the head and cut out one eye;

Nick Fury fired the final shot that killed Uatu the Watcher;

Uatu the Watcher threatened Fury on purpose to get Fury to fire the fatal shot;

Fury took the Watcher’s remaining eye;

The Winter Soldier took Fury’s place as the “man on the wall”;

The Watchers punished Fury by making him a chained “watcher” on the Moon, unable to take any action.

Here is my take on Nick Fury: Everything he did was right. Fury saw the world in terms of Realpolitik, which understands that protecting a nation (or in the Marvel Universe, the entire Earth), requires someone who operates in the shadows to eliminate the threats that would destroy freedom. There cannot be any detente with a foreign power, whether it was from another dimension or planet, that sought the Earth’s destruction. Fury’s actions kept interplanetary wars from erupting (and when one did with the Skrulls, Fury was prepared).

OriginalSin_NickFuryWasRight_WinterSoldierThe problem with Fury’s actions is that private individuals are not supposed to have their own foreign policies. The Logan Act (notice, not Wolverine Act), prohibits US citizens from directly or indirectly commencing correspondence with a foreign government with the “intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States…” 18 USCS § 953.

Fury was not sending correspondence with inter-dimensional being, but Gamma bullets to eliminate active threats to planetary security. Fury’s actions would be justified if the United States was declaring it was defending itself, thus ordering strikes on threats, but Fury apparently was writing his own orders on who to kill (unless there is some Kennedy-Era Executive Order giving Fury orders to defend the planet).

Were Nick Fury’s actions justified from a foreign policy perspective? Yes. The logic is difficult to refute, which is why the Winter Soldier took up Fury’s station as the man on the wall. However, this appears to be without any legal authority, even though it is the realistic solution to actual planetary threats operating in the shadows.

NickFury_OriginalSin_LoganActAs for killing the Watcher, Fury had a solid self-defense argument that the other Watchers ignored: Uatu the Watcher raised his hands charged with energy to threaten Fury. The Watcher’s power easily could have killed Fury. As such, Fury was legally justified to shoot Uatu the Watcher.

However, the Watchers permitting the Orb to escape while Fury was chained to the Moon for the rest of time, forced to watch without interference, appears to be an extremely flawed legal system. Letting the Orb, who committed attempt murder and torture by mutilating Uatu, run free with one of the Watcher’s eyes in his chest is not a proportional punishment. If anything, the Orb now has depth perception and possibly binocular vision, which would be personal enhancements.

The Doctor’s Dilemma…and a Doctor’s Duty

The more things change, the more things stay the same…The truth of that cliché hit me recently, when I saw George Bernard Shaw’s “The Doctor’s Dilemma.”  The play deals with a doctor who has a revolutionary treatment for tuberculosis.  He can only treat ten patients, however, and he falls for a woman who is begging him to treat her ill husband instead of one of the chosen ten.

sb10063567v-001Replace tuberculousis with ebola, change the costumes, and this play could have taken place in the past month.  One hundred years ago the medical profession was questioning how to treat tuberculosis, which was a devastating and contagious disease then.  Today, doctors are trying to figure out what experimental treatments should be used for victims of the ebola virus.  The doctors in the play were complaining about issues that are still true today – patients who pop too many pills and latch onto medical fads to take care of their problems.

The play poses the question: who is more important to save, the incredibly talented but morally reprehensible person or the very nice and ethical but otherwise average person?  The doctor with the experimental treatment also has to address the ethical question of whether he should bump somebody from the trial for the husband of the woman he loved.

I’m not touching the first question (dammit, I’m a lawyer, not a philosopher) but the second one is a legal one that I can explore.  By replacing one patient in his trial with another, the doctor is terminating the relationship with the first patient.  Can a doctor do that if the patient doesn’t want the relationship to end?

The answer is yes – but it’s not always easy.  And if it’s not done correctly it could form the basis for a claim of “medical abandonment,” which can be part of a medical malpractice claim but is also treated as a separate claim sometimes.  See McGaughey v. D.C., 740 F. Supp. 2d 23, 30-31 (D.D.C. 2010).  Doctors can terminate the doctor-patient relationship but various states have different requirements for such a termination.  In California, a doctor must give the patient due notice and an ample opportunity to secure other medical care.  See Scripps Clinic v. Superior Court, 108 Cal.App.4th (2003).  In South Carolina, a physician can’t end the relationship without reasonable notice to the patient.  See Melton v. Medtronic, Inc., 389 S.C. 641, 652, 698 S.E.2d 886, 892 (Ct. App. 2010).  Other states seem to have similar standards, with at least some making it easier over the years for the doctors to end a relationship with a patient.

TheaterI saw the play at the American Player’s Theater in Spring Green, Wisconsin.  I haven’t been to many outdoor theaters but this venue is absolutely fantastic: the trees provide a magnificent backdrop, the seating gives everyone a close view of the stage, and the bats keep the mosquitos away.  The walk up the hill to the “Up-the-hill stage” is beautiful and romantic.  I couldn’t find it on any list of the top outdoor theaters but it definitely should be!

The Doctor’s Right to Self-Defense…With a Spoon

It’s all fun and games until Robin Hood shoots an arrow at you, draws a sword, and demands your TARDIS. While not as dramatic as Han shooting Greedo, the Doctor had a right to defend himself. Using a spoon is a non-traditional choice, but well within the Doctor’s legal right.


Let’s break down the facts:

The Doctor steps out of the TARDIS

An arrow is shot at the TARDIS, going into the TARDIS about an inch

Robin demands the Doctor’s “Magic Blue Box”

The right to self-defense has existed in Common Law since the days of the fictional Robin Hood. The principle of the doctrine is described as follows:

“It is an elementary principle in criminal law that the person assaulted is justified in using so much force as is necessary to his defense. To repel a slight assault the person assaulted is not authorized to resort to measures of great violence. He will not be justified in doing those acts that are calculated to destroy the life of the assailant unless the assault is of such a character as to endanger his life or inflict on him great bodily injury, or to excite his fears as a reasonable man that such would be the result of the assault. The law limits him to such acts as are necessary to self-defense. The law does measure the degree of the force that may be used to repel the assault; and although it will not make the measurement with a nice hand and hold the person assaulted to accountability for force slightly disproportioned to the assault, yet it will hold him responsible for a clearly marked excess.”

People v. Shimonaka,16 Cal. App. 117, 126 (Cal. App.1911), citing People v. Campbell, 30 Cal. 312 (Cal.1866).

The elements of traditional self-defense are, “where from the nature of the attack, the assailed person believes, on reasonable grounds, that he is in imminent danger of losing his life or of receiving great bodily harm from his assailant, he is not bound to retreat, but may stand his ground, and, if necessary for his own protection, may take the life of his adversary.” People v. Zuckerman, 56 Cal. App. 2d 366, 374 (Cal. App.1942).

The original view of self-defense required the victim to “retreat to the wall.” However, jurisdictions modified the rule that if the victim is without fault and in a place they legally have a right to be, they could stand their ground and not need to retreat. Id.

If Sherwood Forrest was public land, the Doctor would have had a legal right to be there. Moreover, the Doctor had a right to not be TARDIS-jacked by the Prince of Thieves.

TARDIS_5392The Doctor technically did have his back to the TARDIS after having an arrow fired at him. Moreover, Robin Hood did draw his sword before the Doctor drew his spoon. Both of Robin’s actions would have been considered cause for imminent danger, whether it is being shot with an arrow or stabbed with a sword.

The Thirteenth Doctor physically confronting Robin Hood was very reminiscent of the Third Doctor’s use Venusian Aikido to throw someone over his shoulder. However, the Doctor’s use of a spoon against a sword does highlight how an ordinary object can be a weapon. That being said, a spoon is not as deadly as a sword or arrow. It’s not even a proportional response, even with a spoonful of sugar.

The Doctor was legally justified to defend himself with the appropriate force to stop the assault, and in the end, did not actually harm Robin Hood.


There is NO Way for She-Hulk NOT to Know Who Opposing Counsel is in Trial

She-Hulk issue 8 ends with our legally green hero walking into a Los Angeles Courtroom to find opposing trial counsel is a Matt Murdock. [Nevermind the fact trial is starting within weeks of a complaint on facts from 70 years ago, skipping CMC's, meet & confers, written discovery, depositions, motion practice, and a mandatory settlement conference. A wrongful death case would take months, if not years, to get to trial.]

SheHulk-CaliforniaProblem with Daredevil being opposing counsel: EXTREMELY unlikely to walk into Court and not know who trial counsel is on a case. You might be surprised at a Case Management Conference if a Big Law firm sent one of its many attorneys to cover a hearing, but every legal form in California requires a lawyer’s name and bar number on it. There has to be an Attorney of Record. Every pleading has at least one lawyer’s name and bar number at the top of the first page and ends with the lawyer’s signature. Complaints, Discovery Requests, Motions, Trial Briefs, all of those filings with a Court, are signed by an attorney. Lawsuits do not have ghost lawyers.

This issue is a tad troubling because She-Hulk does find an attorney licensed in California, as she is a New York attorney, so she could appear Pro Hac Vice, in her defense of Captain America in a wrongful death case from 1940 (the story even addresses the statute of limitations issue). We have the comic go out its way to find another California attorney for this legal requirement. The story does a good job on this point, going so far as having Jennifer Walters call Matt Murdock for help, only to have him decline without disclosing his client is the Plaintiff.

For Jennifer Walters to appear in a California Court, she would need the following, per California Rules of Court Rule 9.40, for a Court in its discretion to admit her to appear:

1. Jennifer Walters is a member in good standing and eligible to practice law in New York (CRC Rule 9.40(a))

2. She-Hulk files a verified application with proof of service per CA Code of Civil Procedure section 1013a on all parties in the case and the California State Bar Office in San Francisco (CRC Rule 9.40(c)(1).

3. The Application must contain the following:

(1) The applicant’s residence and office address;

(2) The courts to which the applicant has been admitted to practice and the dates of admission;

(3) That the applicant is a member in good standing in those courts;

(4) That the applicant is not currently suspended or disbarred in any court;

(5) The title of court and cause in which the applicant has filed an application to appear as counsel pro hac vice in this state in the preceding two years, the date of each application, and whether or not it was granted; and

(6) The name, address, and telephone number of the active member of the State Bar of California who is attorney of record.

CRC Rule 9.40(d).

I am interested to see how the story plays out in the next issue. And just for the record, I would have been happy to have been attorney of record for Captain America if She-Hulk needed a California lawyer for her application per California Rules of Court Rule 9.40.


Boston Metaphysical Society Kickstarter Interview

Madeleine Holy-Rosing, author of the Boston Metaphysical Society (and nominated for a 2014 Geekie Award), has a Kickstarter campaign to fund issues 5 and 6 of her steampunk ghostbusting mini-series. Madeleine sat down to talk about her campaign, what is happening in BMS without any spoilers, and her upcoming convention schedule.

The Duty to Treat Rusty the Dalek POW

Doctor Who’s “Into the Dalek” presented wonderful legal issues from treatment of prisoners to the necessity defense. The episode also has huge shout-outs to Star Trek: The Next Generation, Star Wars, and Fantastic Voyage.

If they ever do another Sea Devils story, I would not be surprised if there is a Voyage to the Bottom of the Sea homage.

Rights of Prisoners’ of War to Medical Treatment

Dalek_Star_6705An injured Dalek the Doctor names “Rusty” had been damaged to the point of becoming good. Rusty requested a doctor for medical treatment after being captured by the “rebel” ship Aristotle.

After seeing the birth of a star, Rusty realized that “resistance is futile” to life. Dalek’s are driven by genocidal fascism to kill anything different from them, so making the leap to stargazing and the meaning of life is a very big leap. Especially without feet.

The Geneva Convention requires that a prisoner of war suffering from a “serious disease, or whose condition necessitates special treatment, a surgical operation or hospital care, must be admitted to any military or civilian medical unit where such treatment can be given…” Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949, Article 30.

Prisoners of War also have the right to seek medical attention. Id.

Rusty had the right to request treatment, given the fact he is a uniformed soldier (considering he is part biologic life form fused with a mini-tank), and a prisoner of the “rebels.” As such, treating would have been required under the rules of warfare.

Alternatively, there is another theory to treat Rusty: Prisoners with a serious mental illness can be treated with antipsychotic drugs against their will if the inmate is dangerous to himself or others. Ashby v. Schneck, 1995 U.S. App. LEXIS 17154, 3-4 (8th Cir. Minn. July 17, 1995).

Dalek’s are mentally altered by their computer programing to hate and exterminate others. The fact their computer program keeps their biological minds from growing, having memories, and learning, could be a condition that makes them dangerous to others, thus justifying treatment.

The Necessity Defense

A mildly troubling scene included using a human soldier as bait to save the rest of the team who had traveled into the Dalek. The ill-fated soldier shot anchors for repelling equipment into the deck of the Dalek, promoting antibodies to attack (very much like in Fantastic Voyage, instead with lasers instead of absorbing like the Blob).

Dalek_BaitThe Doctor throw an item to the soldier and said, “Swallow this.” After which the Dalek Antibodies killed the soldier. When questioned by Clara, the Doctor responded, “He was already dead. I was saving us.”

Using the soldier as bait for the antibodies would have been legally justified, while emotionally traumatic, based on the necessity defense.

A law school example of the necessity defense is you are on a runaway trolley, headed down the hill, to crash into station. Pulling out a gun to shoot a bystander to use as a break would save yourself and everyone on the trolley, but would be unjustified murder. You cannot kill an innocent to save yourself.

In the case of our soldier, there was no way for him to escape the Dalek, or the antibodies seeking his immediate destruction. The Doctor giving him a tablet that focused the antibodies solely on the soldier saved everyone else and limited the attack to the target soldier. While extremely cold, it was the right tactical decision to save everyone else and legally justified.

The Great State of Wisconsin and Me

Three years ago today I landed in Wisconsin with my family and it’s an anniversary I celebrate every year.  As I’ve made clear – here, with friends, co-workers, strangers – I love this great state.  And while I don’t want everyone to move here because I like the space, everyone should visit.  Everyone should see the amazing bluffs and valleys of southwestern Wisconsin, the beautiful farmland of central Wisconsin (and Madison’s amazing farmers’ market!), the great shoreline of Lake Michigan, and the incredible lakes and falls of northern Wisconsin.  And drink some beer and eat some ice cream, of course!

If you don’t believe me, maybe you’ll believe these guys:

That’s right!  The greatest state in the Union is using one of the greatest comedies of all time (Caddyshack will always be first in my heart, but this is a close second) to spread the word.  Do young people even get the joke here?  Of course, I didn’t get the Kareem Abdul-Jabbar joke (“I never should have left”).  It had to be explained to me by a long-term ‘Sconnie (and sports fan) that Kareem was actually drafted by the Milwaukee Bucks as the No. 1 draft pick back in 1969 and led them to a championship before leaving for the Lakers.

So yes, I’m happy to be living here – and practicing law here (or at least based here, I’m still licensed in Texas, along with Florida).  The Wisconsin Supreme Court has had a scandal or two, but it also has a proud history.

One of its shining moments came in the lead up to the Civil War.  A center of the abolitionist movement, two Wisconsin abolitionists were charged with aiding a fugitive slave in escaping to Canada in 1854.  In the appeals that followed, the Wisconsin Supreme Court declared the Fugitive Slave Act unconstitutional – the only state supreme court to do so.  In In re Booth, 3 Wis. 1 (1854), the Wisconsin Supreme Court found the Fugitive Slave Act unconstitutional for several reasons, most of which dealt with who could wield judicial power under the Constitution.  But the Court also held that the procedures under this repugnant act violated constitutional due process because there was no process.  The Court noted that under our Constitution everyone is entitled to their “day in court” – a chance to have notice of the charges against them, to question witnesses and rebut their testimony, and to present their defense.  As the Court so eloquently put it (one hundred and sixty years ago and yet we still need the reminder today):

The passing of judgment upon any person without his “day in court;” without due process, or its equivalent, is contrary to the law of nature, and of the civilized world, and without the express guaranty of the constitution, it would be implied as a fundamental condition of all civil governments.”

Just reading those words – and this opinion – makes me proud to be part of the Wisconsin Bar.  Unfortunately, a shameful footnote to this opinion (during the most shameful period in our nation’s history) is that it was overturned by the United States Supreme Court.  I couldn’t read the whole opinion – I was in a good mood right until I started skimming it – but I will share with you this quote from their opinion, which is embarrassing in its apologist attitude towards the Fugitive Slave Act (and slavery itself), especially when compared with the Wisconsin Supreme Court:

“[It] is proper to say that, in the judgment of this court, the act of Congress commonly called the fugitive slave law is, in all of its provisions, fully authorized by the Constitution of the United States.”

Ableman v. Booth, 62 U.S. 506, 526, 16 L. Ed. 169 (1858).

Ugh.  I really don’t even know what to say to that, except that I’m glad that Wisconsin and its Supreme Court were on the right side of history.  And because I don’t want to dwell on the negative on such a special day, I’ll end by returning to my original point – you should all visit the great state of Wisconsin.  Hike Amnicon Falls, check out the beautiful Viroqua courthouse, eat some Bapcock Dairy ice cream, visit the Milwaukee Art Museum with its movable wings, and then head up to Green Bay to the home of football legends for a game.


Doctor Who Special with Matt Weinhold

DeepBreath_GallifreyStandsWe were privileged to have longtime Doctor Who fan Matt Weinhold join us for a special podcast on the Season 8 Premier of Doctor Who.

Jessica asked enough Doctor Who questions to qualify Matt as an expert witness on the Doctor under Federal Rule of Evidence Rule 702.

Matt and I discussed the episode Deep Breath, our thoughts on the 13th Doctor (we both count the War Doctor as the Doctor), and hopes for Season 8.

Want to hear more of Matt Weinhold? Check out his podcast Monster Party on iTunes or follow him on Twitter @MattWeinhold.