Impostors & Amnesty of SHIELD

October 30, 2014

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

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

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

HYDRA’s Criminal Impersonation

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

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

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

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

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

Does SHIELD Now Have Amnesty?

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

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

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

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

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

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

Expunging Records vs Pardons in Guardians in the Galaxy

Josh Gilliland

August 17, 2014

Guardians of the Galaxy ends with the Nova Corps expunging the records of Star-Lord, Gamora, Drax the Destroyer, Rocket Raccoon, and Groot.

What does the mean for our felons-turned-heroes?

An “expungement of records” means the “extraction and isolation of all records on file within any court, detention or correctional facility, law enforcement or criminal justice agency concerning a person’s detection, apprehension, arrest, detention, trial or disposition of an offense within the criminal justice system.” N.J. Stat. § 2C:52-1(a).

Expunging someone’s record is very broad, as it can include “complaints, warrants, arrests, commitments, processing records, fingerprints, photographs, index cards, ‘rap sheets’ and judicial docket records.” N.J. Stat. § 2C:52-1(b).

Some states allow a record to be expunged if someone was arrested without probable cause, or if no charges were filed, or other specific circumstances. § 610.122 R.S.Mo.

In determining whether to expunge records, Courts balance the harm caused to a person by the existence of a criminal record against the “utility of the Government” for keeping the record. Walker v. United States, 116 F.R.D. 149, 151 (S.D.N.Y. 1987).

In specific cases, the FBI has a responsibility to expunge an incident from its criminal identification files after learning a person who was arrested has been exonerated or released without charge or a change of record to “detention only.” Menard v. Saxbe, 498 F.2d 1017, 1028 (D.C. Cir. 1974).

It is worth noting that the Guardians of the Galaxy had an expungement of past crimes, not a general pardon. A “pardon” does not absolve someone of guilt, but forgives them for the offense. People v. Chiappa, 53 Ill. App. 3d 639, 641 (Ill. App. Ct. 2d Dist. 1977). Moreover, a pardon is usually given to someone who might be subject to prosecution, but has not been convicted. Brown v. Walker, 161 U.S. 591, 601-602 (U.S. 1896)

As Justice William Guild of the Appellate Court of Illinois, Second District, (who in the 1970s had red t-shirts made that said The Mighty Second), said: In the vernacular, such a pardon is an act of forgiveness, not forgetfulness. People v. Chiappa, 53 Ill. App. 3d 639, 641 (Ill. App. Ct. 2d Dist. 1977).

As the Nova Corps had decided to “forget” about the Guardians’ past crimes upon which they had been convicted, an expungement is the proper legal remedy. However, the Guardians might have needed a pardon for breaking out of prison.