Ladies and gentlemen of this supposed jury, I have one final thing I want you to consider. Ladies and gentlemen, this is Chewbacca. Chewbacca is a Wookiee from the planet Kashyyyk. But Chewbacca lives on the planet Endor. Now think about it; that does not make sense!

 Why would a Wookiee, an 8-foot-tall Wookiee, want to live on Endor, with a bunch of 2-foot-tall Ewoks? That does not make sense! But more important, you have to ask yourself: What does this have to do with this case? Nothing. Ladies and gentlemen, it has nothing to do with this case! It does not make sense! Look at me. I’m a lawyer defending a major record company, and I’m talkin’ about Chewbacca! Does that make sense? Ladies and gentlemen, I am not making any sense! None of this makes sense! And so you have to remember, when you’re in that jury room deliberatin’ and conjugatin’ the Emancipation Proclamation, does it make sense? No! Ladies and gentlemen of this supposed jury, it does not make sense! If Chewbacca lives on Endor, you must acquit! The defense rests

In the story, Capitalist Records sued Chef for harassing a major record company after Chef sought to enforce his copyright on a song and be credited with its authorship. However, once the fictional Johnny Cochran made his Chewbacca Defense in closing argument, the jury returned a verdict of Chef being guilty of harassing a record company. The fine was $2 million and payable within 24 hours or a jail sentence.

I’ve Got a Bad Feeling About This

What is the legal theory at play in the infamous Chewbacca Defense?

It is Jury Nullification, which is a jury’s knowing and deliberate rejection of the evidence or refusal to apply the law either because the jury wants to send a message about some social issue that is larger than the case itself or because the result dictated by law is contrary to the jury’s sense of justice, morality, or fairness. (From Black’s Law Dictionary App).

The jury rejected Chef’s prior copyright evidence, instead siding with the record company because of the nonsensical red herring argument made by the cartoon Cochran. This result demonstrates jury nullification of Chef’s copyright claim. Additionally, while jury nullification is generally in criminal proceedings, given the size of the fine and jail sentence threatened against Chef, what originally was a civil action has significant criminal law overtones.

Here is how one court described jury nullification:

“[A jury] has the power to acquit on bad grounds, because the government is not allowed to appeal from an acquittal by a jury. But jury nullification is just a power, not also a right, [ ], as is shown among other things by the fact . . . that a trial error which favors the prosecution is harmless if no reasonable jury would have acquitted, though an actual jury might have done so.”

Sorich v. United States, 709 F.3d 670, 678 (7th Cir. Ill. 2013), citing United States v. Kerley, 838 F.2d 932, 938 (7th Cir. 1988).

So, why use Chewbacca to get the jury to ignore the copyright evidence? Because neither an attorney or judge should instruct or encourage juries to use their nullification power. United States v. Appolon, 695 F.3d 44, 64-65 (1st Cir. Mass. 2012), citing United States v. Manning, 79 F.3d 212, 219 (1st Cir. 1996) and United States v. Bunchan, 626 F.3d 29, 34 (1st Cir. 2010). Purposefully telling a nonsensical story about Chewbacca would be the most direct way to get the jury to ignore their duty to apply the facts to the law with an extremely dangerous weapon in court: confusion.

This conduct would be both highly unethical and violate the rules of evidence, because the Chewbacca Defense is 1) Not relevant to the litigation and 2) The prejudicial effect outweighs the probative value of presenting Wookies and Ewoks to a jury in a copyright case. To put it simply, there is too much danger of a jury just letting the Wookie win. A judge likely would say, “I have a bad feeling about this” and possibly declare a mistrial if such an argument was made in court.

A party successfully using the Chewbacca Defense to confuse the jury into engaging in jury nullification in a civil lawsuit runs the risk of the losing party winning on a Judgment Notwithstanding the Verdict (JNOV). In Chef’s case, the copyright violation should have entitled him to a judgment as a matter of law.

What a Wookie

Chewbacca is the ultimate wingman.

He likely would be imposing co-counsel in a trial, delivering howling cross-examinations.

Chewbacca would also give closing arguments no one would forget.

Sadly, Court Reporters would fear him.

However, actually using the Chewbacca Defense to get a jury to nullify the law would end with the judge feeding the lawyer to the Rancor.

President Eisenhower first proclaimed Law Day in 1958 to honor the rule of law in the United States.

President Eisenhower had seen with his own eyes the horrors of a society that suppressed the freedoms of speech, religion, and basic civil liberties.

It is fitting that Eisenhower, despite being a general and not a lawyer, proclaimed the first Law Day.

The 2013 ABA Law Day theme focuses on civil rights and equality. The history from the Civil War to the Civil Rights Movement is long and has many heroes. May 1 is a day to remember those who endured tube feedings for the right to vote, suffered under convict leasing and faced fire hoses for civil rights.

The story of Defiance takes place in the not-too-distant future.

The Earth was terraformed in a war with aliens called Votans, literally wiping out cities and governments.

An armistice is entered between the races, not necessarily meaning peace, but an end to war.

So, what is the law in the former city of St. Louis if the city, state of Missouri and the government of the United States no longer exist?

Defiance appears to be a city-state, such as Sparta, comprised of humans and different races of Votans.

Moreover, the city was protected by a force shield, again pointing towards the status as a city-state.

There are references to a town charter which is the controlling government document. This could be evidence of a “constitution.”

The city charter appears to mirror the US Constitution allowing for religious and cultural freedoms.

This was demonstrated by a Castithan ceremony punishing/torturing a Castithan who acted cowardly in a battle (which likely also violated the law, but was tolerated for political stability). However, given the nature of the torture, the Castithan is arrested for his own protection on the charge of loitering.

Loitering is the criminal offense of remaining in a certain place for no apparent reason. (See, Black’s Law Dictionary App). Loitering statutes are generally held to be unconstitutionally vague. Id.

For example, the City of St. Louis once had § 765.010, Ordinance 50549 of the Revised Ordinances of the City of St. Louis, 1960, which stated:

“No person shall loiter at the corner of streets, or in the vicinity of any place of amusement, or hotel, or public building, or thoroughfare, and refuse to disperse or vacate such places when requested so to do by a police officer.”

St. Louis v. Burton, 478 S.W.2d 320, 321 (Mo. 1972).

This law prohibiting “wandering the streets” was constitutionally prohibited on grounds of both vagueness and overbreadth. Burton, 478 S.W.2d 320, 323 (Mo. 1972).

Charging the victim with loitering again points to Defiance being a city-state. There are no state crimes being violated, other than the laws of the city itself. Moreover, with the undefined city charter of Defiance, and the lack of the US Constitution, it is unknown whether a court would find a law prohibiting loitering in Defiance to be valid.

However, there is a significant argument against Defiance being a city-state: There is an agreed upon currency which is used by others outside of Defiance. Currency is issued by a government, and usually backed so it has value, opposed to gold or silver. And where there is a government issuing currency, there are also laws.

Which brings us back to the original question: what is the law of Defiance? It appears to be that outlined by the city-charter and government. It could be a stand alone city-state in a “territory” of the former United States, perhaps explaining the use of currency. However, given the destruction of the Pale Wars, it is unknown what former US Jurisprudence survived or why currency has value.

We do know this: the Mayor’s sister is a prostitute who runs the local brothel/bar, which is a class C felony in Missouri today. § 567.060 R.S.Mo.

And that is strong evidence that Defiance is a city-state, because only a state could issue such a law.

Miranda was the result of a long line of cases that bars the government from using the statements of a defendant made during a custodial interrogation, to prove the case against the defendant, provided the statements were made before the defendant was told of their rights to remain silent and to an attorney.  See, Miranda v. Arizona, 384 U.S. 436, at 444 (1966). The goal of this “exclusionary rule” is to prevent unlawful police conduct.

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 1984 case of New York v. Quarles, 467 U.S. 649 (1984) created the “public safety” exception to Miranda. The Supreme Court in Quarles held that “overriding considerations of public safety” could justify a failure to provide Miranda warnings before initiating custodial interrogation. 467 U.S. at 651.

The April 13, 2013 case US v. Hodge, addressed whether the public safety exception applied to a defendant who made statements about a pipe bomb. The Hodge court provided the following summary of the “public safety” exception to Miranda:

[Q]uestioning is permissible when “officers have a reasonable belief based on articulable facts that they are in danger.” United States v. Talley, 275 F.3d 560, 563 (6th Cir. 2001). Determining whether an officer’s belief was “reasonable” requires “consideration [of] a number of factors, which may include the known history and characteristics of the suspect, the known facts and circumstances of the alleged crime, and the facts and circumstances confronted by the officer when he undertakes the arrest.” United States v. Williams, 483 F.3d 425, 428 (6th Cir. 2007). As this is an objective standard, the court reviews the reasonableness of an officer’s belief de novo. Talley, 275 F.3d at 563.

United States v. Hodge, 2013 U.S. App. LEXIS 7848, at *14 (6th Cir. Mich. 2013).

The Williams court stated the following test for applying the Quarles exception to guns:

The police officer has to have a reason to believe:

(1) That the defendant might have (or recently have had) a weapon, and

(2) That someone other than police might gain access to that weapon and inflict harm with it.”

Hodge, at *14, citing Williams, 483 F.3d at 428.

The Williams test is phrased in mandatory terms, because “The public safety exception applies if and only if both of those two conditions are satisfied and no other context-specific evidence rebuts the inference that the officer reasonably could have perceived a threat to public safety.” Hodge, at *14.

The Hodge court rejected the Williams test as applying to a pipe bomb for the following reasons:

[I]n a case involving a bomb, the presence of third parties who can access the bomb is usually not a compelling consideration. Bombs are potentially unstable and may cause damage if ignored or improperly handled by the police. We therefore agree with the government that Williams should be limited to situations where the “weapon” in question is one that a person must physically handle in order for it to present a threat to officers.

Hodge, at *15.

The holding in Hodge was based on the types of questions asked by the police to the defendant: Was there “anything in the house that could get anyone there hurt” and questions after the defendant said a bomb was in the house. Hodge, at *17. The Court stated the following on the application of Quarles to the Hodges facts:

As to the first set of questions, Gandy and Pierce had a “reasonable belief” that there was a pipe bomb in Hodge’s house when they arrived to execute the search warrant. Banks, the named informant, claimed that Hodge possessed a pipe bomb that could “blow up the entire house” if detonated and that he intended to hurt police if confronted. The relatively limited inquiry Gandy and Pierce made was appropriately tailored to the information they possessed. Once Hodge admitted the bomb was in the home, the questions Gandy and Robinson asked him were all directed to obtaining information about the bomb’s construction and stability. Both Khalil and Spoerke deemed such questions acceptable even though there was no evidence that a third party could access the bombs. Accordingly, we conclude that the district court did not err in finding that Hodge’s statements about the bomb, as well as the bomb itself, were admissible under Quarles.

Hodge, at *17-18.

The tragedy in Boston is a live case. How a court rules will turn heavily on the facts and the types of questions asked of the defendant. With that stated, the result in Hodge should provide a court significant guidance in determining whether the public safety exception applies to a defendant who has not been advised of his rights to counsel and against self-incrimination.

I personally believe that there must be clear reasons for invoking the public safety exception to Miranda. Finding bombs left in public or in a home where a search warrant is being executed are two such reasons. To put it simply, bombs put lives at risk. There is nothing hypothetical about the danger.

However, trying to compel a defendant to name others, or questions of motive, might be a violation of the exception to Miranda in the eyes of some judges, because the interrogation is going beyond “overriding considerations of public safety” such as the location of a gun or bomb.

The 5^th Amendment right against self-incrimination and the 6th Amendment right to counsel are hallmarks of the United States legal system. We passed them as Constitutional Amendments as a testament to values we believe in as a nation. There is a substantial body of case law because our Constitution and Bill of Rights is what separates us from the police states of Nazi Germany or the Soviet Union we fought against during our finest hours of the 20^th Century. Moreover, the prose of Supreme Court Justice Black in Gideon is something no one should forget: 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 v. Wainwright, 372 U.S. 335, 344 (U.S. 1963). Informing someone charged with a crime of their Constitutional rights is not selectively applied depending on the crime committed; informing those charged with a crime of their rights is what makes us the United States. Deviating from Miranda should only be done with careful thought of the risks to public safety.

There will be much commentary in the days and months ahead on this case. Expect to hear precedents such as Miranda, Quarles and Hodge discussed by attorneys as this issue is resolved before a judge.

My presentation was Litigation’s New Reality: What You Need to Know NOW About eDiscovery. The grand opening was very well attended.

And yes, I did visit the Mary Tyler Moore statue.

I was very impressed by the team at Shepherd Data. Christine Chalstrom, Esq., the founder of the company, is an attorney who understands the worlds of litigation and eDiscovery. Shepherd Data has the professionalism and feel of a law firm, except it is an eDiscovery service provider. More importantly, it is a resource for local attorneys with two training rooms to gain hands-on experience with software and eDiscovery seminars. One of the training rooms has two 40 inch touch screen TV’s. It felt like presenting off a giant iPad.

They also are huge fans of dogs.

I sat down with Chris to discuss eDiscovery and an important geek issue. Check out our discussion below.

Everything seemed great at first.  He could cuss and swear and do all kinds of crazy things (or have Richard and Sal do crazy things).  He loved his boss, Mel Karmazin, and got paid a bunch of money.  And he made Sirius very successful; so much so that it was able to essentially force a merger with its once dominant competitor, XM Radio.

And that’s when trouble began brewing in paradise.  Howard claimed that, because of the additional XM subscribers, he was entitled to a $300 million performance bonus that had been part of his Sirius contract – a bonus that was triggered if Sirius added a certain number of subscribers.  SiriusXM disagreed, stating that he was only entitled to that bonus if Sirius subscribers surpassed a certain benchmark, and that the XM subscribers should not be viewed as “Sirius subscribers.”

Howard and his agent filed suit.  SiriusXM moved for summary judgment on Howard’s claims, arguing that, as a matter of law, Howard’s claims should be dismissed.  And the court agreed, citing to the “clear, unambiguous language” of Howard’s contract.

So Howard appealed.  And now he’s lost again.  He’s obviously disappointed (that’s a lot of money left on the table).  And, according to Howard himself on his show today, he’s frustrated with the legal system and feels that he never got his day in court.

But the truth is that Howard did get his day in court, even if it’s not the way he pictured it.  Many people don’t realize that not all issues go to trial, with their judges, juries, witnesses, and dramatic gestures.  Instead, those moments are reserved for factual questions.  If the only issues that are disputed are strictly legal (in other words, a jury would never get to weigh in on the dispute because they are questions that are reserved for judges), then any party can move for summary judgment if it wants to.  A summary judgment motion “is appropriate if, viewing all facts in the light most favorable to the non-moving party, no genuine issue exists as to any material fact, and the moving party is entitled to judgment as a matter of law.”  BGC Partners, Inc. v. Refco Securities., LLC, 2012 WL 1255253, 2 (N.Y.Sup. 2012).

Summary judgment motions are often used in such cases as Howard’s, where the issue is whether a contract has been breached.  A breach of contract dispute requires the court to interpret the contract, and the general rule followed in New York and most states is that where the language of a contract is clear, unequivocal, and unambiguous, then the contract is to be interpreted by its own language.  See R/S Associates v. New York Job Development Authority,  98 N.Y.2d 29, 32, 771 N.E.2d 240, 242, 744 N.Y.S.2d 358, 360 (N.Y. 2002).  The underlying rationale for this principle is that when parties write down an agreement in a clear, complete document, then the words that they use in that contract should be enforced according to the contract’s own terms.  See id.  The only time extrinsic evidence (a.k.a. “evidence outside the four corners of the document”) will be considered by the court is if a term is ambiguous (e.g., subject to more than one meaning).

The reasoning behind this principle is sound.  If the parties hammer out a written agreement (and, in the case of Howard’s agreement with Sirius, there were surely teams of lawyers on both sides), then one party shouldn’t be able to come back later and say, “Well, I don’t care what the words of the written contract say, I actually meant Y when I said X in the contract.”  On the other hand, if the parties goof up and use a term that can be interpreted in multiple ways, then the courts will allow the parties to introduce evidence (e.g., testimony, emails, drafts of the contract) to show what each side meant when they used that term.

Internal monologues.

And one always broke Navy SEAL.

Magnum, PI was one of the definitive shows of the 1980s. The stories focused on doing what was right and highlighted the honor of those who served in the United States military.

It also raised many legal issues….like was Thomas Magnum a tenant or guest on Robin Masters’ estate, “Robin’s Nest”?

In the first episode of Magnum PI, Magnum is staying in Robin Masters’ guest house, driving the [awesome] Ferrari 308 GTS and serving as the head of security of the estate. This was an unpaid position that included Magnum testing the security systems of the property. Other duties included rescuing the daughter of one of Robin’s friends in Italy and helping with security of Robin’s mansion in England (in different seasons). Would these services constitute rent for staying at the Robin’s Nest?

Under Hawaiian law, a “landlord and tenant may agree to any consideration, not otherwise prohibited by law, as rent.” HRS § 521-21. Additionally, if there is not a written rental agreement between the parties as to the tenancy of a lease, the tenancy is a month to month lease. HRS § 521-22.

The unwritten security services for staying in the guest agreement between Robin Masters and Magnum appear to form a rental agreement. However, there is one structural problem with this agreement: No written document, meaning the lease could be unenforceable under the statute of frauds. HRS § 490:2A-201. However, since there was contract performance by Magnum in his security duties, this arguably would eliminate the statute of frauds issue. See, Shannon v. Waterhouse, 58 Hawai’i 4, 5-6, 563 P.2d 391, 393 (1977).

If Magnum was a valid tenant, this would mean Magnum could exclude others from entering the guest house. However, Higgins virtually never knocked before entering the guest house, which arguably would violate the renter’s rights to have uninterrupted use of the property.

This Reminds Me of One Time…

Magnum frequently entered into oral contracts with Higgins.

The contracts usually included specific use of Robin’s Nest, such as use of the tennis courts, wine cellar, cars and other parts of the property.

These oral contracts were arguably lease modifications that present statute of frauds issues.

However, since both Higgins and Magnum were men of honor that performed their promises, the performance would remove any enforceability issues for the lack of a written document.

The Island Hoppers

Magnum called on his friend TC for helicopter flights in numerous episodes.

These flights, agreements for payment and repairs for small arms fire, should have all been in writing.

One episode had TC’s “tab” up to $800 for all the flights.

However, since TC performed the flights, he would be entitled to payment from Magnum for services rendered.

Why Oral Contracts?

It is a surprise that a billionaire author would not have an attorney write up a lease agreement with a renter acting as his chief of security. However, perhaps because Robin had such honor and prestige, the idea of not performing simply was not the behavior of those he befriended. Regardless, the only compensation for employment being a place to stay and a car to drive might be a great deal for Robin, but might violate some employment laws.