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Strategies for Direct Examination of the Punisher

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The Daredevil season 2 episode, “Guilty as Sin” had Frank Castle testify in his capital murder trial. This high risk trial strategy was to connect the dots to the defense expert’s theory that Castle suffered from “Sympathetic Storming,” due to the traumatic brain injury from being shot in the head.

Matt Murdock’s direct examination of Frank Castle did not go well. Castle exploded on the stand, due to a deal offered to him from a police officer from an unknown individual.

Was Murdock right to treat Castle as a hostile witness? Did Murdock have other options for conducting the direct examination? Let’s explore possible case strategy.

The Defense theory centered on Castle suffering from “Sympathetic Storming.” This condition is “theorized to be an increase in activity of the sympathetic nervous system created by a disassociation or loss of balance between the sympathetic and parasympathetic nervous systems.” See, Denise M. Lemke, MSN, APNP-BC, CNRN,Sympathetic Storming After Severe Traumatic Brain Injury.”

Those suffering from “Sympathetic Storming” can be in a “state of agitation, extreme posturing/dystonia, tachycardia, tachypnea, hypertension, diffuse diaphoresis, and hyperthermia. Id.

Matt Murdock needed to connect Castle’s story to the expert’s theory that Castle suffered a case of “Sympathetic Storming” from seeing his family brutally murdered in a sting gone bad with three different gangs. Murdock knew Castle’s history from Castle telling Daredevil what happened in the park the day of the gunfight. Here is one possible line of questions where the attorney only does 10% of the talking, the witness the other 90%:

What was your wife’s name?

When were you married? 

What was the name of your daughter?

When was her birthday?

What was the name of your son?

When was his birthday?

What branch of the military were you in?

Where were you deployed?

How long were you deployed?

When did you return from deployment overseas?

When did you first get scared as a Marine?

Where did you first go after returning from deployment?

Who did you go see?

What happened when you saw your daughter?

What happened after you went home with your family?

Did your daughter have a favorite book?

What quotes you remember from that book?

When was the last time your daughter asked you to read her the book?

Did you read to her the final time she asked you to? 

Where did you go with your family the day after you returned from deployment?

What happened at the park?

What happened to your wife at the park?

What happened to your daughter?

What happened to your son?

What happened to you?

You are charged with murdering 37 people. How did you select the individuals you attacked?

Who were the Irish gang you confronted?

Why did you confront them?

What were the men doing when you confronted them?

Did they attack you when they saw you?

Who were the Dogs of Hell?

Why did you confront the Dogs of Hell?

What were the Dogs of Hell doing when you confronted them? Did they attack you when they saw you?

What Cartel did you confront? Why?

What were the men in the Cartel doing when you entered the warehouse to confront them? Did they attack you when they saw you?

Going back to your daughter’s book, have you ever quoted that phrase?

What are the specific times you said that quote?

The goal is to make Frank Castle look human. The Defense should focus on Castle’s suffering and that constant grief is the reason he waged a one-man war on organized crime. That Castle saw his family butchered and is obsessive with killing those that destroyed his family. It would be a form of the insanity defense, with a touch of jury nullification that is unstated.

Punisher_I_am_Agitated_0535

Jury nullification is a dangerous argument for any attorney, because lawyers cannot outright ask juries to ignore the law. Matt Murdock and Foggy Nelson would have to offer a justification for the killings before the jury, by showing that the people Frank Castle killed had even killed more people and would have continued to do so.

The smarter plan would have been NOT having Frank Castle testify. Expert testimony on the Dogs of Hell, the Irish mob, and the Cartel, would have established the crimes attributed to each gang, the number of people the gangs had killed, and establish how dangerous each group was to the public. The psychologist’s expert opinion on Castle’s mental state and then tied to the gangs in closing argument would have avoided the explosive situation of having the Defendant testify.

Did Daredevil Adequately Prepare for the Punisher’s Trial?

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Spoiler Warning: Do not read unless you have watched Daredevil season 2 episodes “Semper Fidelis” and “Guilty as Sin.”

Matt Murdock and Foggy Nelson represented Frank Castle in his trial that included 37 murder and 98 other charges. Both attorneys owed Castle the duty of competency and loyalty in their representation.

Problem: Murdock was late to trial, so he missed giving his opening statement, forcing Foggy to take the lead instead. Did Murdock violate his duty of competency to his client?

New York defines the duty of competence for attorneys under New York’s Rules of Professional Conduct, Rule 1.1: 

(a)     A lawyer should provide competent representation to a client. Competent representation   requires   the   legal   knowledge,   skill,   thoroughness   and   preparation reasonably necessary for the representation. 

(b)       A lawyer shall not handle a legal matter that the lawyer knows or should know that the lawyer is not competent to handle, without associating with a lawyer who is competent to handle it.

(c)        A lawyer shall not intentionally:

(1)       fail to seek the objectives of the client through reasonably available means permitted by law and these Rules; or

(2)       prejudice or damage the client during the course of the representation except as permitted or required by these Rules. 

The committee notes also explain how lawyers must adequately prepare their case as follows:

Thoroughness and Preparation

[5] Competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners. It also includes adequate preparation. The required attention and preparation are determined in part by what is at stake; major litigation and complex transactions ordinarily require more extensive treatment than matters of lesser complexity and consequence. An agreement between the lawyer and the client may limit the scope of the representation if the agreement complies with Rule 1.2(c). 

Matt Murdock did not prepare for trial, instead spending the night with Electra roughing up a perverted language professor to crack a code used by The Hand. Murdock’s vigilante life as Daredevil kept him out late, so he overslept, and thus was late to court.

Daredevil_Comic_Foggy_Opening_0527

Foggy Nelson had the option to delay giving the Defense’s opening statement until after the Prosecution’s case-in-chief. Defense attorneys often make this strategic decision so the Defense effectively responds to the Prosecution’s case before calling their witnesses (think of a delayed opening statement as a sorbet to cleanse the jurors’ intellectual palates). Foggy decided to give the Defense own opening statement extemporaneously, which carried higher risk then Murdock being late.

Matt Murdock’s lack of preparation extended to missing strategy sessions, witness preparation, and working with his trial team. Attorneys have been suspended for failing to appear for schedule compliance conferences and even disbarred for systemic violations of their professional responsibilities. See, In the Matter of Jorge Sorote, 973 N.Y.S.2d 101 (Sept. 17, 2013) and In the Matter of C. Vernon Mason, 621 N.Y.S.2d 582 (Jan. 26, 1995).

Murdock being late to the courthouse and missing the beginning of the trial is very bad on its face. However, since Murdock had Nelson as has co-counsel, this makes the situation murky on whether Castle suffered any prejudice. Moreover, Nelson had the option to defer the opening statement until Murdock arrived. Nelson did not have to give the opening statement at that exact moment and could have avoided the risk to the client.

This does not free Murdock of any violation of the duty of loyalty to Frank Castle. Moreover, Murdock likely breached his fiduciary duty to Foggy Nelson, as his legal partner, with his inattention to Castle’s case. Castle could have had a valid complaint against Murdock to the New York Bar, minus Castle’s own sabotaging his own case.

A few notes on Trial Advocacy and Evidence: 

The District Attorney improperly objected to Murdock’s cross-examination questions as “leading.” The entire point of cross-examination is to ask leading questions to control the witness, which is allowed. It is equally wrong to object to cross-examination as argumentative, because cross-examination by its very nature is supposed to be argumentative to discredit the witness.

There was also the issue whether Dr. Gregory Tepper altering medical records were relevant to Frank Castle’s case. In Federal Courts and many states a witness’ veracity for truthfulness is relevant. Dr. Tepper altering medical records would discredit his testimony, which could be introduced on cross-examination. See, Federal Rules of Evidence Rule 608(b)(1) and California Rules of Evidence Rules 785 and 786. New York has similar rules based on common law, as New York States does not have an evidence code.

Confronting Dr. Tepper with evidence of falsifying medical records would be potentially devastating and extremely relevant to Castle’s case. However, as the medical records would have been collateral, the Judge would have limited questioning to avoid confusing the jury with facts not material to Castle’s case.

Nelson & Murdock: Worse Client Consultations Ever

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The fictional attorneys Franklin “Foggy” Nelson and Matt Murdock have the very real world problems with running a small law firm. Real attorneys every day have clients who cannot afford paying their legal bills. This has negative consequences on the operational costs of running a firm, from practice management software, to online legal research, to making payroll. While alternative fees are good, it is extremely difficult to keep the lights on when clients pay in bananas.

Nelson & Murdock have a serious ethical issue with how they conduct client consultations. Karen Page identifying each prospective client in the waiting room, publically disclosing each individual’s legal problem, potentially is a violation of a New York attorney’s duty of confidentiality to a prospective client.

New York’s Rules of Professional Conduct, Section 1.18(a) state that “A person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a “prospective client.” Every person in the waiting room of Nelson & Murdock had disclosed information to the Karen Page for the possibility of representation by Nelson & Murdock. Those communications arguably would have been protected under Section 1.18(b) from disclosure. Moreover, both Foggy Nelson and Matt Murdock had a duty to supervise Karen Page as a non-lawyer under New York’s Rules of Professional Conduct, Section 5.3, in how she maintained that information.

The New York State Bar Association Ethics Opinion 1067 addresses the duty of confidentiality to prospective clients under New York’s Rules of Professional Conduct, Section 1.18(b). The Opinion defines the test for confidentiality as follows:

Whether the prospective client’s identity, the fact of the consultation, and the subject matter of the consultation constitute confidential information turns on whether the information is protected by the attorney-client privilege, on whether disclosure likely would be embarrassing or detrimental to the prospective client, and on whether the prospective client has asked the lawyer not to disclose the information. 

Foggy Nelson and Matt Murdock should both discuss the importance of confidentiality with Karen Page for prospective clients. Whether or not there was an ethical violation would turn on each individual client. It is a smart practice to not create legal risk where there would otherwise be none.

Pie_Fee_Agreement

As to the matter of attorney’s fees, there is nothing in Rule 1.5 that would prohibit Nelson & Murdock being paid in pies as “excessive” legal fees (except as to calories). However, while pies are extremely tasty at accounts receivable meetings, they do not pay any bills.

Supreme Legal Geeks

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Justice Elena Kagan continues to proudly fly the geek flag in her recent dissent in Lockhart v. United States. It is a safe bet that the late Justice Scalia would have been proud of for Justice Kagan’s analysis of statutory sentence structure.

Puppet_StarWars

Justice Kagan stated in dissent:

Imagine a friend told you that she hoped to meet “an actor, director, or producer involved with the new Star Wars movie.” You would know immediately that she wanted to meet an actor from the Star Wars cast—not an actor in, for example, the latest Zoolander. Suppose a real estate agent promised to find a client “a house, condo, or apartment in New York.” Wouldn’t the potential buyer be annoyed if the agent sent him information about condos in Maryland or California? And consider a law imposing a penalty for the “violation of any statute, rule, or regulation relating to insider trading.” Surely a person would have cause to protest if punished under that provision for violating a traffic statute. The reason in all three cases is the same: Everyone understands that the modifying phrase—“involved with the new Star Wars movie,” “in New York,” “relating to insider trading”—applies to each term in the preceding list, not just the last.

Lockhart v. United States (2016) ___U.S.___ [136 S.Ct. 958, ___L.Ed.2d___].

Justice Kagan succinctly summed up the issue in one sentence: That ordinary understanding of how English works, in speech and writing alike, should decide this case. Id. 

It is refreshing to see a Supreme Court Justice who can make a point on common sense sentence construction while invoking both Star Wars and Zoolander.

Justice Kagan is the current legal geek on the Supreme Court. Time will tell if Judge Merrick Garland will be asked in Senate hearings on Han Solo’s Legal Justification to Shoot First, how the needs of the many outweigh the needs of the few, or if worthiness creates a revocable ownership interest in Thor’s Hammer.

Dr. Andrea Letamendi Podcast on Batman

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Batman issues 41 to 49 tell the story of Jim Gordon becoming the new Batman after the original Batman’s death in End Game. Dr. Andrea Letamendi from The Arkham Sessions shares her professional opinion what motivated Bruce Wayne to become Batman and Jim Gordon’s reasons to also wear the cowl. Join us to to hear Dr. Letamendi on Bruce Wayne’s mental state without memories of his personal trauma, Gordon’s growth with being Batman, and who made the greater sacrifice in issue 49, Julie Madison or Bruce Wayne.

Can a President Order Felons to Conduct Convert Opts?

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Agents of SHIELD is back to following President Elis’ orders, but could a [fictional] President order black opts with people who have broken the law? Join Jessica and I as we discuss the new season of Agents of SHIELD and all of Agent Carter season 2.

Stay Tune! Transferring to a New Hosting Partner

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We’re moving to a new hosting partner! Stay tune as we make enhancements to our site, update the database, and other improvements to The Legal Geeks.