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Expert Witness Reports for the Trial of James Buchanan Barnes

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The Mock Trial of the Winter Soldier at San Diego Comic Fest is a battle of expert opinions: did James Buchanan Barnes understand the wrongfulness of his actions?

James Buchanan Barnes’ defense team will argue that he is not guilty by reason of insanity. The law requires that the defense prove Bucky was insane by clear and convincing evidence, which is a lower standard then the Prosecution proving guilt beyond a reasonable doubt. The jury must weigh the facts and expert opinions presented by both sides and decide if Sargent Barnes was insane under the following Model Jury Instruction for the Insanity Defense for the 9th Circuit:

The defendant James Buchanan Barnes contends he was insane at the time of the crime. Insanity is a defense to the charge. The sanity of the defendant at the time of the crime charged is therefore a question you must decide.

A defendant is insane only if at the time of the crime charged:

1. The defendant had a severe mental disease or defect; and

2. As a result, the defendant was unable to appreciate the nature and quality or the wrongfulness of his acts.

The defendant has the burden of proving the defense of insanity by clear and convincing evidence. Clear and convincing evidence of insanity means that it is highly probable that the defendant was insane at the time of the crime. Proof by clear and convincing evidence is a lower standard of proof than proof beyond a reasonable doubt.

You may consider evidence of defendant’s mental condition before or after the crime to decide whether defendant was insane at the time of the crime. Insanity may be temporary or extended.

Your finding on the question of whether the defendant was insane at the time of the crime must be unanimous.

The Defense and the Prosecution each have an expert witness who will testify on whether James Buchanan Barnes was legally insane during the events of Captain America The Winter Soldier. You can view their expert reports below and see the issues of the trial on February 13, 2016 at San Diego Comic Fest. Page controls are at the bottom of the PDF viewer.

Dr. Janina Scarlet’s Expert Report for the Defense

Defense_Scarlet_Expert_Report

Dr. Andrea Letamendi Expert Report for the Prosecution

Prosecution_Expert_Report

Nothing Frosty About Agent Carter Season 2

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Agent Carter is back with all of its Hollywood vintage charm. Here are my first “legal” reactions to the season premier:

The SSR Knows How to Follow the Constitution

Chief Daniel Sousa and Peggy Carter actually get search warrants. God bless them for not outright walking over the rights of US Citizens (other than Sousa flirting to distract a receptionist while Peggy conducted an unlawful trespass to violate the Constitution, potentially making all information learned from Jason Wilkes the fruit of the poisonous tree, but we’ll overlook that one). In case anyone needs a refresher, the Fourth Amendment to the United States Constitution states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

USCS Const. Amend. 4.

The receptionist at Isodyne Energy acted properly in asking the SSR Agents if they had a search warrant at their first meeting. However, a frozen body that could freeze others, plus two SSR Agents murdered in a professional hit in order to steal the aforementioned body, would be ample “probable cause” for a Federal Judge to sign a search warrant. Chief Sousa would need to describe the Isodyne Energy facility to be searched, but that should not have been a problem.

National Security Act of 1947

The warning to Jack Thompson about the SSR becoming obsolete because of changes at the Department of War was absolutely correct. In the real world, the National Security Act of 1947 would create the Department of Defense in response to the new realities of the Cold War.

The FBI does have a strong claim that it would have jurisdiction over Dottie Underwood. Given the espionage aspects of who were her contacts in Russia gives a pretty valid claim to the SSR questioning Dottie, which would go from law enforcement to foreign affairs very quickly.

Senate Race of Calvin Chadwick

Calvin Chadwick is the poster child for Campaign Finance Reform. We do not want secret societies electing puppets to do their bidding, instead of the needs of the country. However, the first campaign finance reform cases were decades away from happening and 50 years before McCain-Feingold.

There is one significant challenge for Chadwick’s campaign: there was no US Senate race in California in 1948. Senator Sheridan Downey was reelected in 1944 (after defeating Fred Howser). Senator William F. Knowland had been appointed in 1945 and won a special election in 1946. The next election for the US Senate was in 1950, which then-Congressman Richard Nixon won.

It is possible Chadwick was running a high profile California Senate Campaign, which would have meant A LOT of money was being spent for a relatively small geographic area. It is possible a California businessman with a movie star wife could run in a different state, but that would inherently raise campaign issues, ranging from Chadwick being a “carpetbagger” to eligibility based on domicile.

A Crime Against Donuts

Peggy Carter took her anger out on a donut, violently throwing the tasty baked good onto the ground. We would call that littering in 2016. However, the world of 1947 was different. California cities from the early to mid-20th Century had ordnances prohibiting defacing public or private property with posters or notices on streets, sidewalks, and similar public places, which was a proper use of police power. See, Sieroty v. City of Huntington Park, (1931) 111 Cal. App. 377. However, these cases often focus on cities attempting to prohibit people from distributing flyers to others, which violated the First Amendment. People v. Taylor (1938) 33 Cal.App.2d Supp. 760, 762-763.

Statutes prohibiting littering, as we understand it today, started in California in the late 1970s. The law today states it is an infraction to litter on public or private property. Cal Pen Code § 374.4(a). Littering is the act of “the discarding, dropping, or scattering of small quantities of waste matter ordinarily carried on or about the person.” Cal Pen Code § 374.4(c). Throwing the donut in a wrapper would qualify under the California Penal Code. As such, if Agent Carter fans start throwing donuts on public or private property in a strange act of donut cosplay, they would run the risk of being fined at least $250 and community service to pick up litter. Cal Pen Code § 374.4(d)-(e). That would be one expensive donut and Hayley Atwell could end up doing PSA’s on proper donut disposal.

Is Supergirl Financially Responsible for the Destruction of Property?

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Someone only identifying themselves only as “Kara Zor-El” asked the following questions in our request form: Could you do an article addressing whether Supergirl or any superhero is liable for personal property damage.  Who pays for repairs?  Insurance?  Can Supergirl be sued?  If so, how do they get her to pay?

The answers to these questions is…it depends. Supergirl’s super-hero activities generally fall into three categories: 1) Rescuing others; 2) Conducting law enforcement with the DEO; and 3) Vigilantism. The capacity that Supergirl is acting will impact her possible liability for destroyed property.

Supergirl the Good Samaritan

Supergirl the series is a case study in the duty to rescue. Supergirl begins her hero career rescuing a crashing plane in the pilot episode; stopping robberies, flying ambulances to the hospital, and rescuing pet snakes in “Stronger Together;” rescuing people in a massive freeway accident in “Fight or Flight;” and stopping a car with a road-raging driver from taking out children crossing the street in “Red Faced.” Kara Zor-El is the poster child of rescuing those in need.

There is no general common law duty to rescue someone unless there is a special relationship. Rhodes v. Illinois Cent. Gulf R.R., 172 Ill. 2d 213, 232-233 (Ill. 1996). Society does encourage people to help others with “Good Samaritan” laws, which have the “broad goal” to “prompt aid by people under no duty to act, who otherwise might be dissuaded by the prospect of ordinary tort liability.” Miglino v Bally Total Fitness of Greater N.Y., Inc., 20 N.Y.3d 342, 348 (N.Y.2013).

Supergirl’s public rescues should be protected by the Good Samaritan doctrine. In essence, if a “volunteer who, having no initial duty to do so, undertakes to come to the aid of another . . . is under a duty to exercise due care in performance and is liable if (a) his failure to exercise such care increases the risk of such harm, or (b) the harm is suffered because of the other’s reliance upon the undertaking.” Foremost Dairies v. Cal. (1986) 190 Cal.App.3d 361, 365, citing Williams v. State of California (1983) 34 Cal.3d 18, 23.

Supergirl should be protected from liability, unless she fails to exercise due care and increases the risk of harm. As such, repair costs could fall on insurance.

Supergirl the State Actor

Supergirl frequently works with the DEO in protecting the United States (and Earth) from alien threats. As such, any actions taken while Supergirl is working with the DEO would make her a state actor.

There is ample authority that while Supergirl is a state actor, she would not be subject to liability for the destruction of private property. For example, a city was not liable for the negligence of an employee who negligence burning garbage at the dump resulted in a fire that destroyed a home. Miller v. Palo Alto (1929) 208 Cal. 74, 75-76. Moreover, there are very old doctrines that give elected officers to destroy buildings in the path of a fire, in order to stop the spread of the fire. RUSSELL v. MAYOR, ETC., OF NEW YORK (N.Y. 1845) 2 Denio 461, 477.

Courts do not like to second-guess fire fighters who make snap decisions to fight fires. As such, Courts have held that government is immune from tort liability to individual property owners for damage resulting from the discretionary actions of fire fighters in combating fires. Strickland v. Dep’t of Agric. & Consumer Servs. (Fla.Dist.Ct.App. 2006) 922 So.2d 1022, 1023-1024.

Supergirl has not destroyed any buildings or throwing cars at villains, but if she ever did, there is at least some precedent she would be protected for liability.

Supergirl Gone Vigilante

Supergirl conducting law enforcement on her own is vigilantism. Granted, it is probably the friendliest kind of vigilantism, as no one is getting ripped into two messy pieces. Kara does not vaporize those committing robberies. If anything, her actions are best described as being committed in the defense of others and use a reasonable amount of force.

Supergirl’s vigilantism is probably the most high-risk activity she engages in, because she is not a state actor. This area is where she could find herself in the most legal jeopardy.

Who Pays for the Clean-Up?

We do not have case law where super-heroes save cities from alien invasions. However, we do have some guidance from disaster litigation. States such as New York and Ohio follow the general rule that “general rule is that public expenditures made in the performance of governmental functions are not recoverable.” County of Erie v. Colgan Air, Inc., 711 F.3d 147, 150 (2d Cir. 2013). As such, counties have been unable to recover costs responding to, and cleaning up, plane crashes or damages from a blackout. These costs could include wages, overtime, fire, sanitation, and hospital personnel who performed services in response to the emergency. Id.

If this theory applies to Supergirl, National City could not sue her for clean-up costs after saving the airliner from crashing, but leaving it in the river, in the first episode. Responding to emergencies is something that governments are required to do by their very nature. The city, state, and Federal government would have to endure those clean-up costs.

Supergirl might have a problem with the oil spill she caused, because many states allow the state to recover clean-up costs. State of New York v Getty Petroleum Corp., 89 A.D.3d 262, 264-265 (N.Y. App. Div. 3d Dep’t 2011). However, since Supergirl arguably was a state actor responding to the direction of the fire captain, she has a plausible defense to any liability.

Private individuals suing Supergirl for damaged property would likely be on a negligence theory. Serving her would be highly problematic and possibly would have to be done by publication. If Supergirl were seeking legal advice, she should purchase a bag of charcoal and spend an evening crushing them into diamonds. Exercising care not to flood the diamond market, she could retain a lawyer to create a victims’ trust fund, have her attorney sell the diamonds on the market, and fund the trust with the profits. Those who have a claim against Supergirl could then file through her attorney for property claims. This would be good public relations showing she is the “super-hero who cares” if someone’s Tesla is used as a ballistic weapon.

The Giant-Man Sized Murder-For-Hire Issues in Ant-Man

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Nick Spencer in The Astonishing Ant-Man has introduced a very unique concept: a super-villain app for hiring henchmen called “Hench: Every Villain’s Private Army.” Taking the world of food delivery, couch-surfing, ride-sharing apps employing independent contractors to the comic book world, Spencer continues to be one of the most forward thinking writers in comics.

Here is how the Hench app works: the user searches for the super-hero they wish a Henchmen to fight. The App then runs a patented algorithm to find the best match to fight the hero, based on location, power set, and confrontation history. The Henchmen also can have followers like a social media profile. See, The Astonishing Ant-Man 1, December 2015.

The Hench App is a piñata of legal issues. As a preliminary matter, Hench would never get in the Apple App Store for a number of Review Guideline violations, including the fact Hench enables criminal conduct and murder for hire, which violation section 22.3, which states, “Apps that solicit, promote, or encourage criminal or clearly reckless behavior will be rejected.” It would also violate the requirement that an app not be “creepy.”

Assuming Hench could be downloaded as some jailbreak app, we immediately enter the world of RICO, criminal conspiracies, and murder-for-hire.

The ability to select a super-villain like you are ordering a burrito for delivery would leave digital fingerprints of selecting one’s henchmen. There would be electronically stored information on the subject phones and server used by Hench. Evidence showing defendants have planned a murder-for-hire have included many forms of communications, such as phone calls, text messages, emails, wire transfers. United States v. Walker (5th Cir. 2015) 596 F.App’x 302, 308; United States v. Temkin (9th Cir. 2015) 797 F.3d 682, 690. The FBI seeking evidence of a murder-for-hire from an app would not be a stretch of the imagination.

If there were a massive raid, forensically imaging the Hench server likely would identify everyone who downloaded the app and used it. The FBI would then arrest those individuals and search the phones subject to a search warrant. The media fallout of everyone who had an app to order a super-villain to commit murder-for-hire would make those who had Ashley Madison accounts look tame.

The FBI would have jurisdiction in investigating Hench, its users, and subscribers pursuant to the Racketeer Influenced and Corrupt Organizations Act (RICO), which states in relevant part:

(a) It shall be unlawful for any person who has received any income derived, directly or indirectly, from a pattern of racketeering activity or through collection of an unlawful debt in which such person has participated as a principal within the meaning of section 2, title 18, United States Code [18 USCS § 2], to use or invest, directly or indirectly, any part of such income, or the proceeds of such income, in acquisition of any interest in, or the establishment or operation of, any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce.

18 USCS § 1962.

Racketeering Activity comes in all sizes of criminal activities, including any act or threat involving murder, kidnapping, gambling, arson, robbery, bribery, extortion, dealing in obscene matter, or dealing in a controlled substance or listed chemical or any act relating to bribery, mail fraud, and many other crimes. 18 USCS § 1961.

There is no question that a murder-for-hire app would qualify as a racketing activity. A business dedicated to contracting murders for financial gain is the very essence of RICO.

The FBI would also have jurisdiction if Hench requires a super-villain to travel in interstate or foreign commerce. 18 USCS § 1958. As Hench would likely result in personal injury, kidnapping, maiming, assault, and murder, the punishment for Henchmen would range from life to imprisonment to death. 18 USCS §§ 1958; 1959.

Ant-Man is delivering a legally interesting tale to astonish for the end-user of the app. The Hench App features controls for the person hiring the Henchman to call off a hit or finish the job. Murder-for-hire cases generally do not have that level of control, besides a text message to coordinate a hit. This level of control likely would enhance sentencing for those who used the app to commit violent crimes.

How will this all play out in the comic? I recommend reading The Astonishing Ant-Man to find out.

SDCF Preview with Mike Towry on The Mock Trial of the Winter Soldier

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What are the possible issues you will see at the Mock Trial of the Winter Soldier at San Diego Comic Fest? Check out our podcast with Mike Towry and learn about the awesome guests attending SDCF and some of the issues that will be on trial for James Buchanan Barnes, from the insanity defense to how the trial will work.

Did General Lane’s Use of the Army Violate Posse Comitatus?

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Supergirl posed an interesting question: The President ordered General Lane and the Army to take over the Department of Extranormal Operations (DEO) after Hank Henshaw was captured by Kryptonians. Would this violate the Posse Comitatus Act?

The answer is….maybe? The legal analysis gets funky fast with secret government agencies fighting aliens.

The Army is expressly forbidden from conducting law enforcement pursuant to the Posse Comitatus Act:

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.

The Department of Extranormal Operations is a secret Federal government agency whose mission is to safeguard the country from aliens. DEO Agents pose as FBI Agents when interacting with the public. The issue is whether the DEO is a secret law enforcement agency or secret military organization in answering whether the President’s order for the Army to take over the DEO violated Posse Comitatus.

The evidence for the DEO being a law enforcement agency is the fact the DEO actively conducts surveillance for alien activity in the United States and captures aliens unlawfully in the country. The Constitution deems the immigration of aliens as exclusively Federal issues. People v. Salazar-Merino (2001) 89 Cal.App.4th 590, 598; U.S. Const. art. I, § 8. While the Founding Fathers did not envision this provision applying to beings from other worlds, technically the DEO is very similar to the U.S. Customs and Border Protection agency in its mission to protect the country from “alien” aliens in the United States.

The DEO certainly has weapons similar to what the Army uses, operates out of bunkers, and does not arrest aliens, but captures them for imprisonment. There is no due process, very similar to the Army capturing soldiers of an invading army as prisoners of war.

If the DEO were a law enforcement agency task with protecting the borders from aliens from other worlds, the Army taking over the DEO would be illegal, because the Army would be engaging in direct law enforcement. These prohibited activities generally include: arrest, seizure of evidence, search of person, search of building, investigation of crime, interviewing witnesses, pursuit of escaped civilian prisoners, search of area for suspects and other like activities, and any such use of federal military troops. United States v Red Feather (1975, DC SD) 392 F Supp 916.

Passive military assistance that does not violate Posse Comitatus include the following:

Mere presence of military personnel under orders to report on necessity for military intervention;

Preparation of contingency plans to be used if military intervention is ordered;

Advice or recommendations given to civilian law enforcement officers by military personnel on tactics or logistics;

Presence of military personnel to deliver military material, equipment or supplies to train local law enforcement officials on proper use and care of such material or equipment and to maintain such material or equipment; and

Aerial photographic reconnaissance flights.

United States v Red Feather (1975, DC SD) 392 F Supp 916.

General Lane took command of the DEO from its acting director, used torture to gain information, and had his troops conduct a raid with the DEO. All of these actions look like direct law enforcement activities (and civil rights violations of an extraterrestrial alien).

If the DEO was a branch of the military authorized to conduct law enforcement, similar to the Coast Guard, then the President’s order for General Lane to take command of the DEO and engage in military action on US soil would have been lawful.

Call for Cosplayers: Winter Soldier and Black Widow for Mock Trial

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We are adding two witnesses to our San Diego Comic Fest Mock Trial of the Winter Soldier: James Buchanan Barnes, aka Bucky, aka the Winter Soldier, and Natasha Alianovna Romanoff, aka the Black Widow. We also have roles for a bailiff and courtroom clerk.

Update! We have three volunteers for Black Widow, James Buchanan Barnes, and the clerk. We still need a bailiff. 

Witnesses need to be familiar with their witness statements and the events of Captain America The First Avenger and Captain America The Winter Soldier. Each witness will have a direct examination, followed by a cross-examination, and possibly re-direct. A law student will work with you on your testimony and how to be a witness.

Cosplayers interested in participating as witnesses must be able to attend San Diego Comic Fest on Saturday February 13, 2016. The fictional trial will be presided over by a Federal Judge and the trial conducted by law students. If interested, please review the witness statements and contact us on the form below.

Black Widow Witness Statement

James Buchanan Barnes witness Statement 

Mock Trial Exhibits 


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