Did Loki get a Fair Trial from the TVA?

By

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June 16, 2021

The Time Variance Authority put Loki on trial with the punishment tantamount to a death sentence that looked like traffic court. The entire proceeding raised the issue of what is a “fair” trial? While there is the legal maxim that a defendant is “entitled to a fair trial but not a perfect one,” an administrative proceeding without attorneys pushes that precedent to absurdity. State v. J.A.W., No. A-5255-17T4, at *24 (N.J. Super. Nov. 12, 2020).

There are multiple troubling issues with the lack of fairness in Loki’s trial. The first is there was no pretense of an attorney to assist in Loki’s defense. Federal Courts first gave this right to those accused of crimes in Federal cases, which was expanded to the States in Gideon v. Wainwright. The Due Process Clause of the 14^th Amendment and the Sixth Amendment require criminal defendants to have effective counsel. Loki had nothing but a ticket to nonexistence.

Courts have quoted the axiom “It is beyond cavil that a fair trial may be obtained without a jury.” Com. v. Wharton, 495 Pa. 581, 599-600 (Pa. 1981). This is born from the fact a fair trial requires an impartial and properly instructed jury. Rivera v. Illinois, 556 U.S. 148 (2009). While there can be an exception in a case with substantial publicity, Loki was not on trial in New York City for his war of aggression against the Earth; he was on trial for violating the “sacred timeline.” This sounds more like a trial in the Star Chamber than any trial concerned with fundamental fairness.

Verdict: the TVA has unjust trials lacking fairness.

Zorro the Public Defender

By

Jordon Huppert

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August 22, 2020

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Black mask — Black masquerade mask isolated on white background

“From out of the night, when the full moon is bright, rides a horseman known as Zorro!”

I’m often asked why I work in public defense. Sometimes it’s a polite question, sometimes it’s phrased more as ‘why don’t you want to be a real lawyer’. While the answer to that second question is that I attended and graduated from a real law school, passed a real bar exam, opened a real law firm, then went to work for a real dedicated public defender’s office, thus making me as real a lawyer as you’re ever going to meet (to paraphrase Samuel L. Jackson); the answer to the first question is more complicated. When I’m asked I will typically give the following answer: because I grew up watching Zorro. Specifically, I grew up watching Disney’s Zorro starring Guy Williams in the titular role. With issues of policing and law enforcement in the news like never before it seemed an opportune time to share the story of how a legendary outlaw inspired me to work in the law.

Zorro’s Story:

The story of Zorro dates back to the 1919 serial The Curse of Capistrano by Johnston McCulley, and has been retold numerous times in all manner of media from comics, to movies, to TV, to ballet.[1] While there are of course subtle differences to the character in the retelling he is almost always portrayed as Don Diego de la Vega, the wealthy son of Don Alejandro de la Vega. The story typically place in the Spanish territory of California[2] where Don Alejandro has sent his son Diego to Spain for a formal education. While his son is away in Spain Don Alejandro’s compassion for and treatment of the peasant class (and in some versions, the indigenous people) has caused his influence to wane. As Diego is returning home from school he receives word from his father that the Governor has stationed a new military officer in Los Angeles who is implementing martial law and other tactics to force the populace back “into line”. Thankfully that wouldn’t happen today… what’s that about Portland?[3] Diego has become an accomplished swordsman and all around Spanish gentleman of the day, a caballero. Deeply concerned at the injustices his father describes to him, Diego creates two alternate identities for himself. The first is the foppish Don Diego de la Vega, a scholarly lad who is more interested in his books than in winning the acclaim of other young men his age. The second is the roguish outlaw Zorro, The Fox, who fights for justice for the people of Alta California at the tip of a sword against an overbearing military state. When Diego returns to his home he is a deep disappointment to his father who hoped that his son would aid him in rallying the other Dons to fight against the military control of the people. At the same time Zorro becomes an ever-present thorn in the side of the local Comandante, a hero of the people, and a beacon of hope. Eventually, in most stories, Zorro is successful at overthrowing the military control of the people and the Governor comes to the aid of the locals, reforming the government into something more equitable. Of course, that’s fiction. In real life there was a war and California becomes part of the United States.

The Story of Clarence Gideon:

Now, how does a masked man with a sword and a horse fighting an oppressive military force in the old territory of California equate to a kid from Atlanta deciding to become a public defender in Oregon? The answer lies in why we fight and who we fight for. Both public defenders and Zorro fought against oppressive government policing for the poor and lower class. Most people are surprised to know that despite the guarantees of the Constitution and the Sixth Amendment of the Bill of Rights for most of US History you only had the right to an attorney if you were rich enough to afford one.

To hire a lawyer in Eugene, Or (where I practice) on even a relatively simple case will set you back a few thousand dollars, and that’s if you aren’t looking to go trial. When I was in private practice I would bill around $200 an hour in most cases (relatively inexpensive for lawyers in the area). For just being in a short two day trial that’s $3,200, and that doesn’t count the time for preparation, pretrial motions, investigation, expert witnesses, etc. All totaled you’d be looking at easily double that figure for a relatively simple trial, vastly more as the complexity of the trial increases. That’s a pretty solid chunk of change for most people to put down, and before 1963 if you didn’t have it you were wished the best of luck and thrown to the wolves of the court system.

In 1963 however, the US Supreme Court decided Gideon v. Wainwright.[4] The Court heard the case of Clarence Gideon, a Florida man charged with breaking and entering. Mr. Gideon was denied a court appointed attorney because his wasn’t a capital case (punishable by death), and was forced to represent himself at trial. He was convicted and sentenced to five years in prison. From there he appealed up through the system until The Supreme Court eventually heard his case. The Court decided that the Fourteenth Amendment applied the Sixth Amendment’s guarantee of an attorney to the States through the due process clause. That is a longwinded legal way of saying that States were now required to appoint an attorney in all criminal cases where a Defendant’s liberty interests were at stake (where they could be put in jail). This was a landmark decision if ever there was one. It changed the very face of criminal law as it was known at the time with the simple statement that justice wasn’t just for the wealthy.

Practically speaking, this meant that the professional prosecutors, who before were simply rolling roughshod over the poor people who were forced to represent themselves now had professional attorneys to contend with who were educated and trained in how uphold the rights of criminal defendants. It meant that the State could no longer violate people’s rights just because the self-represented litigant didn’t know that they had rights and forced police to adhere to things like the requirement to obtain a warrant to seize people or property for search (ok, admittedly we’re still working on that last one but it’s getting better).

Zorro was the Public Defender of his Day

If the proposition that people, regardless of their income or social status sounds familiar, it’s because that was the same thing Zorro fought for way back when. Granted his law involved less briefing and fewer court appearances, but the reason Zorro fought all those sword fights was the principal that regardless of whether you were rich or poor, a Don or a commoner, you had meaningful access to justice.

It’s no coincidence that in the first season of Disney’s Zorro one of the central themes is Don Alejandro’s struggle to force the military to have a trial for someone they arrested without cause. It culminates in Zorro taking on a corrupt judge who has accepted a bribe in order to guarantee a guilty verdict even after there had been proof presented of the defendant’s innocence.

Since our modern justice system puts the burden of proving guilt on the prosecution, the government, as opposed to requiring the defendant to prove their innocence you might think that the system will work regardless of if there is a lawyer on the side of the Defendant. While that is certainly the aspiration, it is rarely (if ever) the truth. Prosecutors are partisan by design, meaning that it is their job to prosecute people, to put them in jails or prisons. They are often burdened by heavy caseloads and rarely have the time to truly look thoroughly at any given case, which can lead to them simply pushing files through the system from arrest to conviction without ever having the time to question if the evidence was lawfully obtained or if the proof really amounted to beyond a reasonable doubt. And that is assuming that the prosecutor is honestly committed to making sure that those issues are accounted for in the system.

The problems with prosecutors could be, and has been, the subject of numerous articles and books and are far beyond the scope of this article. Suffice to say that if the government, with all of its power and resources, accuses you of a crime you need someone in your corner. Someone who can work within the system, who knows the rules of the system and how to use them, someone who will fight for you, to make sure that no one is convicted of a crime without proof beyond a reasonable doubt that they committed it, and to make sure that even those who are guilty of crimes are sentenced fairly. Whether that’s a masked man who carves Z’s into walls with his sword, or an attorney in a suit who stands next you in court, regardless of how much money you have in your pockets.

Want more proof of the inspiration? This is an actual photo of me dressed as Zorro for Halloween.

[1] For a full history of the character see https://www.zorro.com/history/

[2] Yes, the US state California was once the property of Spain and even part of Mexico. https://www.loc.gov/collections/california-first-person-narratives/articles-and-essays/early-california-history/

[3] https://www.opb.org/news/article/police-violence-portland-protest-federal-officers/

[4] Gideon v. Wainwright, 372 US 335 (1963). https://www.oyez.org/cases/1962/155

Defending War Machine for Not Following the Secretary of State’s Arrest Order

By

Josh Gilliland

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May 22, 2018

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[Fictional] Secretary of State Thaddeus “Thunderbolt” Ross ordered Colonel James “Rhodey” Rhodes to arrest Captain America, Falcon, Black Widow, and Scarlet Witch for violations of the Sokovia Accords. Colonel Rhodes hung up on the Secretary of State and said “that’s a court martial” for violating the order. How could a defense attorney defend War Machine for not following orders?

Secretary of State Ross is Not in the Military Chain of Command

Colonel Rhodes’ first argument is that Secretary of State cannot give a lawful order to an Air Force Colonel based on the military chain of command. A lawful order would need to originate from the President, Secretary of Defense, the Joint Chiefs of Staff, Secretary of the Air Force, Air Force Chief of Staff, U.S. Northern Command, or whoever is Colonel Rhodes’ commanding officer or superior in rank. The Secretary of State is NOT in the military chain of command, thus cannot give an order to Rhodes.

Secretary of State Ross spent his professional life in the Army barking orders amounting to unlawful surveillance of U.S. Citizens in his search for Bruce Banner. While Ross is used to giving orders people follow from his days as an Army General, he was no longer on active duty while serving as the Secretary of State. Moreover, there is no one he could “order” in the military chain of command to have Captain America’s Avengers arrested.

It is possible the Avengers reported directly to the Secretary of State pursuant to legislation enacting the Sokovia Accords as law. If that is the case, Colonel Rhodes still has other valid legal defenses.

The Air Force Cannot Conduct Law Enforcement

Secretary Ross’s order to arrest Captain America’s Avengers would violate the Posse Comitatus Act. The Act expressly prohibits the Air Force from conducting law enforcement:

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.

18 USCS § 1385.

As an Air Force officer, Colonel Rhodes is barred by law from conducting law enforcement activities. There is no better example of law enforcement activities than performing arrests. As such, ordering Rhodes to perform an arrest would violate the law, thus be an “illegal order,” which Rhodes would not have to follow.

Steve Rogers and Sam Wilson were the only team members with military service. Sam Wilson was no longer on active duty. There is no evidence that Steve Rogers was AWOL from active duty, providing Colonel Rhodes legal authority to have Captain America arrested. Rogers was frozen in ice before the end of World War II for over 70 years. His service period would have ended sometime after the war, however, there are good legal questions on how much back pay Captain America is owed by the U.S. Government. Regardless, it would be a stretch to say Colonel Rhodes was a military superior of Steve Rogers and legally required to arrest the greatest soldier of all time.

The Order to Arrest Violated the Fourth Amendment

General Ross only ordered Colonel Rhodes to “arrest them.” There were no specific charges against the Avengers, besides Ross being upset.

The Fourth Amendment to the United States Constitution requires that arrest warrants will not be issued without probable cause supported by an affirmation that describes the person to be seized (arrested). USCS Const. Amend. 4. The Federal Rules of Criminal Procedure further state that criminal complaint and supporting affidavits must “establish probable cause to believe that an offense has been committed and that the defendant committed it.” USCS Fed Rules Crim Proc R 4.

Secretary Ross ignored the probable cause requirements for an arrest warrant and ordered the arrest of Captain America’s Avengers. As the charges against the Avengers were not stated and without an arrest warrant supported by probable cause, Rhodes was correct in not following the order.

The Arrest Order Was an Illegal Order Because the Sokovia Accords Are Unconstitutional

The Hail Mary argument for War Machine is that the Sokovia Accords are Unconstitutional, thus arresting anyone for violating them would be an unlawful act. Colonel Rhodes only has a duty to follow LEGAL orders, because an order “must command a thing not in itself unlawful or prohibited by law.” US v Kinder, 14 C.M.R. 742, 772-773 (A.F.C.M.R. 1954).

U.S. citizens since the adoption of the Sokovia Accords were held without trial on a submarine prison known as the Raft. All were denied the right to counsel. Moreover, the entire concept of a “prison ship” has been rejected in the United States because of events during the Revolutionary War. Colonel Rhodes could argue with a straight face that arresting people in violation of the 4^th, 5^th, 6^th, and 8^th Amendments would amount to an illegal order, thus he was not legally bound to follow it.

Just Say No to Illegal Orders

Colonel James Rhodes was correct in not following Secretary of State’s order, because it was not in the military chain of command, violated the 4th Amendment on its face, and was based on a treaty or enabling laws that violated the United States Constitution. Colonel Rhodes took an oath to upload and defend the Constitution, not desecrate it.

Power Man and Iron Fist Civil Rights Podcast

By

Josh Gilliland

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February 28, 2017

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My good friend Christine Peek joined me to discuss the civil rights issues in the Power Man and Iron Fist comic. The story by David Walker has a villain with a facial recognition app that alters criminal records of individuals and creates arrest warrants. Christine shared her thoughts on the many legal issues with this fictional app used by vigilantes.

Why the Sokovia Accords are Unconstitutional

By

Josh Gilliland

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May 10, 2016

1

Captain America Civil War is an amazing super-hero movie. It is the model of how to have a large cast of characters in a film with action, humor, plot, and heart. The only thing it lacks is a Constitutional law. The gross civil rights violations are reason enough for Captain America to go rogue.

Spoilers Ahead!

The Sokovia Accords were an agreement between 177 countries to have an un-elected panel at the United Nations approve what missions the Avengers could go on. Super-heroes who refused to sign the accords that continued to take the law in their own hands would be prosecuted without a trial and imprisoned on the submersible Raft. While there are significant legal issues with super-heroes entering foreign countries without any legal authority, violating civil rights is not the sane answer to the problem.

There are massive legal issues with the Sokovia Accords. First, an accord is not a law, treaty, or Constitutional Amendment. Second, the United States cannot enact a law to willfully violate the rights of United States citizens. Sure, it can pass a law, but it will be Unconstitutional.

Just because 177 countries sign an agreement, that does not make it a law. To borrow from School House Rock, a bill has to go through both houses of Congress with a majority vote and be signed by the President to become effective. In case of a treaty, the Senate has to approve the treaty by a 2/3 vote (Article II, section 2). The treaty is not ratified until the instruments of ratification are formally exchanged between the US and signing foreign powers. There are incidents in history where the United States signed, but did not ratify a treaty, such as the Kyoto Protocol or Treaty of Versailles.

The United States cannot purposefully enact an Unconstitutional law. The Sokovia Accords appear to have elements of conscription if not outright impressment, with punishments ranging from internment to imprisonment without the Writ of Habeas Corpus. None of these “legal” safeguards on super-hero activity included any form of Due Process. The only way this international agreement could be worse is to throw in elements from the Indian Removal Act.

Treaties Cannot Violate the Constitution

The Sokovia Accords have all the charm of forcing US citizens into self-imposed exile to avoid internment or imprisonment. This should alert Senators to do their Constitutional duty to offer advice and consent on approving the Sokovia Accords, as they are very different from any other treaty entered by the United States.

Consider NATO for example. The North Atlantic Treaty Organization helped keep the peace during the Cold War. NATO is a mutual defense pack, but there was a concern that it would violate the Constitution. Congress has the power to declare war and a treaty mandating a military response if another nation is attacked infringes on Congress’ Constitutional duty to declare war.

Article 5 is the heart of the NATO agreement:

The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defense recognized by Article 51 of the Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area.

Any such armed attack and all measures taken as a result thereof shall immediately be reported to the Security Council. Such measures shall be terminated when the Security Council has taken the measures necessary to restore and maintain international peace and security.

All that is currently publicly available on the Sokovia Accords is the following:

In accordance with the document at hand, I hereby certify that the below mentioned participants, peoples and individuals, shall no longer operate freely or unregulated, but instead operate under the rules, ordinances and governances of the afore mentioned United Nations panel, acting only when and if the panel deems it appropriate and/or necessary.

The Sokovia Accords are the size of a phone book that mandate personal conduct. That is always a warning to anyone concerned about civil rights. Immediately the Sokovia Accords raise two huge issues: mandatory conscription and arresting citizens without Due Process.

Drafting of United States Citizens

The United States first enacted a draft in July of 1863 during the Civil War. Ironically, the states-in-rebellion held a Confederate draft before the United States. For the following 100 years, the United States held drafts in times of war, with President Nixon ultimately ending the draft. President Carter brought back mandatory registration for the draft in 1980. Under current US law, males must register for Selective Service as follows:

(a) Except as otherwise provided in this title, it shall be the duty of every male citizen of the United States, and every other male person residing in the United States, who, on the day or days fixed for the first or any subsequent registration, is between the ages of eighteen and twenty-six, to present himself for and submit to registration at such time or times and place or places, and in such manner, as shall be determined by proclamation of the President and by rules and regulations prescribed hereunder. The provisions of this section shall not be applicable to any alien lawfully admitted to the United States as a nonimmigrant under section 101(a)(15) of the Immigration and Nationality Act, as amended (66 Stat. 163; 8 U.S.C. 1101), for so long as he continues to maintain a lawful nonimmigrant status in the United States.

(b) Regulations prescribed pursuant to subsection (a) may require that persons presenting themselves for and submitting to registration under this section provide, as part of such registration, such identifying information (including date of birth, address, and social security account number) as such regulations may prescribe.

50 U.S.C. § 3802 (LexisNexis, Lexis Advance through Pl 114-146, approved 4/19/16).

The fact only men have to register for the Draft is not subject to an equal protection challenge. 50 USCS Appx § 453; Witt v. Dep’t of the Air Force (9th Cir. 2008) 548 F.3d 1264, 1278-1279.

It is arguably within the President’s power to draft all of the male Avengers for military service. However, the purposeful selection of the Avengers would not be in an impartial manner under 50 U.S.C. § 3805. Moreover, as Steve Rogers served honorably between December 7, 1941 to September 2, 1945, he would not be eligible to be drafted. 50 U.S.C. § 3806(b)(1). Moreover, as all of the human male Avengers are over 26 years of age, they could not be drafted. 50 USCS § 3803(a).

As the Military Selective Service Act would likely fail drafting anyone with super powers, mandating super-heroes be registered and deployed according to the orders of an un-elected United Nations panel sounds a lot like involuntary servitude, which would violate the 13^th Amendment.

That was the cause of another Civil War.

Imprisonment in Violation of the US Constitution

As evidenced in Captain America Civil War, Sam Wilson, Clint Barton, Scott Lang, and Wanda Maximoff are all imprisoned on the Raft after the fight at the German airport. This is extremely troubling, as none of them were afforded their right to counsel, taken before a magistrate after being arrested, or even given a trial.

The estimated time to build the new class of aircraft carriers beginning with the USS Gerald Ford is 11 years at a cost of $10.44 billion ($36.30 billion for the entire program). Ship building construction times will likely decease with the following carriers, however the point is building a large ship takes years. The fact the Raft is fully operational submarine prison operated by the US Navy means the United States government had planned to build the Raft years before the events in Sokovia. This is highly suspect that such a large project was undertaken with the apparent purpose to violate the civil rights of US citizens.

The US government imprisoning US citizens on a submarine prison would deprive anyone accused of a crime of the following civil rights:

The writ of habeas corpus, which requires a person in custody to be brought before a Court;

The 4^th Amendment, which protects people from arbitrary arrests;

The 5^th Amendment, which protects people from being deprived of life, liberty, or property, without due process of law;

The 6^th Amendment right to counsel; and

The 8^th Amendment prohibition against cruel and unusual punishment.

The US Navy apparently is not underway with a Federal Judge, along with a US Attorney, and Federal Public Defender. This means those arrested are not brought before a judge pursuant to the writ of habeas corpus. In the case of the imprisoned Avengers, the fight at the airport arguably was done out of self-defense, because of the Unconstitutional enforcement of the Sokovia Accords, and the UN’s rush to judgment to have James Buchanan Barnes shot on sight instead of arrested. As Tony Stark was more into enforcing his will upon others, Constitutional rights were being ignored, justifying the fight between the Avengers. The accused should have had their day in court to argue their case, opposed to being locked away without a trial.

The lack of any form of trial would violate the 5^th,6^th, and 7^th Amendments to the Constitution. Moreover, was any form of Miranda issued? While some might say, “Hey, the Avengers were in Germany,” thus anything goes with civil rights, they would be wrong. Soldiers arresting terrorists still give Miranda warnings, because our system is the only one we know. We do not ignore it if it suits our needs for expediency.

Holding prisoners in a submarine is one of first impression. The United States has avoided prison ships, most likely because of the Revolutionary War Prison Ship Martyrs. For those not familiar with the history, 11,500 Revolutionary War Prisoners of War died on sixteen British ships used a floating prisons. These prison ships probably were Exhibit A to many of the Founding Fathers when the 8^th Amendment was drafted prohibiting cruel and unusual punishment.

The fact the [fictional] United States built a prison ship throws American history out the window, which would be the subject of lawyers willing to do battle for Wilson, Lang, Barton, and Maximoff in a court of law.

The Wrong Political Solution

Captain America Civil War has 177 governments take aim at super-heroes for the wrongs of others. While it is wrong for super-heroes to act without any regulation, the solution here does not make any sense. Let’s review the wrongs committed in the Marvel Cinematic Universe:

Iron Man: Obadiah Stane sold weapons to terrorists. This is all an inside job at Stark Industries, based on corporate greed. Where was Stark’s oversight?

The Incredible Hulk: The Abomination was created from Army experiment ordered by General Ross, which drove Emil Blonsky mad. If Blonsky had not been experimented on, Blonsky would not have forced Samuel Sterns to conduct the experiment upon Blonsky, which turned Blonsky into the Abomination (and Sterns into The Leader).

The Incredible Hulk: General Ross had SHIELD commit gross violations of 4^th Amendment by searching the CONTENT of all digital communications for Bruce Banner without a search warrant.

Avengers: SHIELD experiments allowed Loki to go to Earth

Iron Man 3: The Vice President of the United States participated in a criminal conspiracy to overthrow US government, which resulted in President Matthew Ellis being kidnapped for execution.

Winter Soldier: HYDRA grew within SHIELD and attempted overthrow of the Government by killing over 11 million Americans within minutes.

Age of Ultron: Tony Stark and Bruce Banner created the murder-bot Ultron.

The major themes from Marvel movies is threats come from secret government projects or Tony Stark. Civil War has these two problem creating forces come together to make a bad situation worse. If anything, there would be loud public outcry against the Elis Administration for an attempted coup d’etat by his own Vice President, followed by crashing helicarriers in the Potomac, and a failing city from the sky, because a US weapons manufacturer made a giant killing robot. President Ellis is destined to be a one term President given how much has gone wrong on his watch.

Captain America was right to take a stand against the Sokovia Accords. Literally no good could come from there. As for what is reasonable regulation of super-heroes, that has yet to be answered.

Daisy Needs a Constitutional Watchdog

By

Josh Gilliland

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March 30, 2016

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What is the proper response to domestic terrorism? Daisy Johnson’s answer on the Agents of SHIELD episode “Watchdogs” is, “they gave up their right to civil liberties.” Daisy then proceeds to conduct two unlawful arrests and force confessions with threats of violence to get information from the Watchdog “prisoners.”

Agents of SHIELD highlights the danger of the military and espionage agencies conducting law enforcement. First, no one gives up their civil liberties. Both the 5th and 14th Amendments prevent the government from depriving people of their liberties without due process of law. Second, civil liberties do not apply only when convenient, but to ensure the government does not abuse its power.

Make no mistake about it, the [fictional] Watchdogs are domestic terrorists who killed Federal government employees in order to inflict fear on Inhumans. This squarely puts the Watchdogs in the same category as a white supremacist/anti-government hate groups.

Captain America would not be thrilled with Daisy’s neo-fascist law enforcement response. There is a long list of civil rights cases that specifically prohibit what she did in “Watchdogs.” From Powell v. Ala., 287 U.S. 45 (U.S. 1932) to Gideon v. Wainwright, 372 U.S. 335 (1963), to Miranda v. Arizona, 384 U.S. 436 (1966), the Supreme Court spent decades establishing people arrested by the government have a right to counsel. Forcing confessions with physical abuse is also antithetical to civil liberties.

Supreme Court Justice Black stated in Gideon, “The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours.” Gideon, at *344.

Daisy trampled on those rights of the Watchdogs, in addition to conducting unlawfully arresting the suspects without first stating they were under arrest for specific crimes, as required by the 4^th Amendment.

There is an argument that Daisy had a valid “public safety exception” to Miranda for the second Watchdog she captured, as Fitz had an implosion device embedded on his neck. As a reminder, the Miranda Court specifically held:

Accordingly we hold that an individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation under the system for protecting the privilege we delineate today. As with the warnings of the right to remain silent and that anything stated can be used in evidence against him, this warning is an absolute prerequisite to interrogation. No amount of circumstantial evidence that the person may have been aware of this right will suffice to stand in its stead. Only through such a warning is there ascertainable assurance that the accused was aware of this right.

Miranda v. Ariz., 384 U.S. 436, 471-472 (U.S. 1966).

The Public Safety Exception states that “overriding considerations of public safety” could justify a failure to provide Miranda warnings before initiating custodial interrogation. New York v. Quarles, 467 U.S. 649, at *651 (1984). Given the fact Fitz would have imploded, taking with him enough area to collapse a building into a large ball, a Court would find a valid exception to giving Miranda warnings. However, that would not give Daisy the license to rough up a suspect for information.

That does not at all excuse Daisy’s earlier conduct of ignoring the Constitution. If SHIELD is conducting law enforcement instead of the FBI, then SHIELD should follow the law, instead of waging war on it.

Flash Single-Handedly Stopped Civil Rights Violations on Supergirl

By

Josh Gilliland

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March 29, 2016

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The Supergirl/Flash crossover was everything a geek would want in seeing two super-heroes meet for the first time. There were confused introductions, gleeful banter in one hero being around another super-hero, and teamwork. Neither the Flash nor Supergirl saw the other as a threat. It’s like when geeks meet at a comic convention and discuss the comics they love.

This episode was a much-needed antidote after Batman v Superman. Supergirl and Flash could have broke-out in song and it would have been heartwarming. If the writers ever need a reason for Supergirl to sing, just pull from Final Crisis with Superman singing Darkseid out of existence. Perhaps a musical vibration that only Kara can hit could open a portal to Earth-1 for an annual cross-over.

The Flash did more than just help Supergirl stop Livewire and Silver Banshee; Barry Allen gave National City the technology to safely arrest super-villains by suppressing their superpowers. This most likely was The Boot rifle seen in The Flash.

This very short dialog means that the DEO will no longer be holding metahumans in a secret prison without a trial. Supergirl’s villains have been held in major violations of their Civil Rights, including:

The writ of habeas corpus, which requires a person in custody to be brought before a Court;

The 4th Amendment, which protects people from arbitrary arrests;

The 5th Amendment, which protects people from being deprived of life, liberty, or property, without due process of law;

The 6th Amendment right to counsel;

The 7th Amendment right to a trial; and

The 8th Amendment prohibition against cruel and unusual punishment.

Holding human beings held prisoner in solitary confinement, in glass cells, without a bed or bathroom, without access to a lawyer, or even a trial, screams so many Civil Rights violations that not even Silver Banshee could hit all the notes. Yes, Earth-Supergirl did not have any facilities set-up to handle such individuals, but thanks to Barry Allen, our heroes will not be aiding in massive Constitutional violations after saving the day.