The Chewbacca Defense made famous on South Park originally aired during my first year of law school. It is a powerful satire of trial advocacy, mocking the closing argument from the OJ Trial.
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
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
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.
Long, long ago, in a galaxy far far away, the planet of Tatooine apparently did not have any laws on employee safety or premise liability.
Jabba’s safety standards raise many issues as they related to employees (such as the guard who fell in the Rancor Pit), independent contractors (Boba Fett) and those held in servitude (Oola, the green dancing girl fed to the Rancor & Princess Leia).
On a side note, if you are looking for a Life Day present for special someone, Slave Leia costumes range from $36 to $90.
Employers’ Duty to Employees
Provided the Old Republic had similar employee protection laws to the United States, an employer:
(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees;
(2) shall comply with occupational safety and health standards promulgated under this Act.
29 USCS § 654(a).
Additionally, floors with holes that “persons can accidentally walk” into (such as on a construction site) must be guarded by a railing or cover. W. C. Sivers Co. (1972) OSHRC Docket No. 239, 1973-1974 CCH OSHD P 17792, 29 CFR 1926.500(b)(8).
The Trap Door to The Rancor Pit
Jabba the Hutt used a trap door to 1) dispose of Oola, the dancer who displeased Jubba and 2) attempt to eliminate Luke Skywalker, accidentally sending a guard to be a snack for the Rancor.
Jabba’s actions would range from holding someone in slavery (which apparently was legal on Tatooine) to outright murdering her.
Jabba’s Palace Guard who fell in the Rancor Pit with Luke Skywalker was owed a duty by Jubba to be free from recognized hazards that are causing or are likely to cause death or serious physical harm.
However, as a palace guard, he also assumed the risk the different dangers that came with the job. With that said, being a palace guard does not mean he assumed the risk of falling through a trap door and being eat alive by the Rancor.
Even if the Guard could have assumed the risk of falling down the trap door, the Rancor was a wild animal (See, Wookieepedia). Case law has found that an owner of property can be liable for injuries under premises liability for a free roaming wild animal on their property provided they have knowledge of the dangerous animal. (See, The Landings Ass’n, Inc. v. Williams, 736 S.E.2d 140 (Ga. Ct. App. 2012), regarding knowledge of an alligator in a lagoon that injured someone). In Jubba’s case, the Rancor was imported to Tatooine to be used as an execution weapon in a pit. It certainly was not free roaming, but purposely contained because it was dangerous. It was highly foreseeable that the creature could accidentally eat the wrong person.
The Independent Contractor & The Sarlacc Pit
Boba Fett was an independent contractor, because he was a bounty hunter not directly employed by Jabba the Hutt. In the universe of premises liability, independent contractors are viewed as business invitees. Taylor v. Nabors Drilling United States, LP, 2013 U.S. Dist. LEXIS 14555, at *5 (S.D. Miss. Feb. 4, 2013).
What duty was Boba Fett owed by Jabba while on the Barge over the Sarlacc Pit?
A case involving an injury on an oil rig is illustrative, if we view Jabba’s barge over the Sarlacc Pit like an oil rig at sea.
Jabba as a premises owner (the barge, not the sand dunes) had a general duty to “provide an independent contractor with a reasonably safe work environment or give warning of danger.” Taylor, at *5, citing Nofsinger v. Irby, 961 So. 2d 778, 781 (Miss. Ct. App. 2007).
However, Jabba as a premises owner was not, “an insurer of the [independent contractor's] safety.” Taylor, at *5, citing Coho Res., Inc. v. McCarthy, 829 So. 2d 1, 10 (Miss. 2002). However, “there are exceptions to the general rule, which can be reduced to two issues: who controls the work which caused the injury, and whether the contractor had actual or constructive knowledge of the hazard which caused the injury.” Taylor, at *5, citing Coho Res., Inc. v. McCarthy, 829 So. 2d 1, 10 (Miss. 2002).
Case law states that when the premises owner “devolves upon the contractor the right and fact of control of the premises and the nature and details of the work, the owner has no liabilities for injuries experienced by the contractor’s workers where those injuries arose out of or were intimately connected with the work.” Taylor, at *5.
A premises owner is “not liable for the death or injury of an independent contractor or his employees resulting from dangers that the contractor, as an expert, knows or reasonably should know.” Taylor, at *6, citing McCarthy, 829 So. 2d at 14. The Taylor Court went on to state:
Phrased differently, a premises owner will not be held liable where an independent contractor has “assumed the risk” of danger. Stokes, 217 F.3d at 357. Accordingly, an “employer is relieved of the duty of informing an independent contractor of a danger at the work site if the independent contractor knows of that danger.” Nofsinger, 961 So. 2d at 781.The “knowledge of the danger” exception . . . does not require such a close nexus between the dangerous condition and the work the contractor is obligated to perform. That rule rests on the premise that under circumstances where the contractor has knowledge of the condition, his ability to avoid the harm is equal to that of the owner of the premises. The ability of the contractor to avoid injury where he knows that a dangerous condition exists does not depend on his control over the manner in which the work is performed or his reason for being on the premises. Stokes, 217 F.3d at 359.
Boba Fett was the adult clone of Jango Fett, trained as an expert bounty hunter. Given his skill as a warrior-for-hire, he assumed the risk of engaging Luke Skywalker, Han Solo and Chewbacca in battle over the Sarlacc Pit. As such, Jabba owed Boba Fett no duty under premises liability for any injuries sustained in the Sarlacc Pit.
Rancors’ Rights: Possible Episode VII Plot Ideas
The New Republic may mean the end of Slave Leia outfits, but what about the Rankors of the universe? Will the outlawing of slavery in the New Republic mean these creatures could still be held against their will for brutal entertainment? Let’s review one California case for a possible outcome.
Plaintiffs in California brought a Next Friends case on behalf of orca whales held at Sea World, claiming the whales’ 13th Amendment rights were being violated. Tilikum v. Sea World Parks & Entm’t, Inc., 842 F. Supp. 2d 1259, 1262-1264 (S.D. Cal. 2012).
That’s right, the Killer Whales were the Plaintiffs.
After lengthy historical analysis, the Court held the 13th Amendment applied only to persons, not non-humans. Tilikum, at *1263.
In the case of the Rancors, it is unlikely a law prohibiting slavery would apply to them, as they were simply eating machines. As such, the New Republic would need specific legislation to ensure the safe and humane treatment of Rancors.
Attorneys Jessica Mederson and Josh Gilliland reviewing “self defense” under Common Law and the Model Penal Code in analyzing whether Han Solo was legally justified in shooting Greedo first in the original Star Wars (Episode IV).
There is no question about it.
And in 1977, no one questioned it.
However, the legal question remains, was Han Solo legally justified in killing Greedo (Provided the Empire’s Doctrine of Fear had similar Common Law traditions)?
For those who do not have the scene memorized, here is the dialog from the original version from IMDB:
Greedo: [In Huttese; subtitled] Going somewhere, Solo?
Han Solo: Yes, Greedo. I was just going to see your boss. Tell Jabba I’ve got his money.
Greedo: It’s too late. You should have paid him when you had the chance. Jabba’s put a price on your head so large, every bounty hunter in the galaxy will be looking for you. I’m lucky I found you first.
Han Solo: Yeah, but this time I’ve got the money.
Greedo: If you give it to me, I might forget I found you.
Han Solo: [stealthily going for his blaster] I don’t have it with me. Tell Jabba…
Greedo: Jabba’s through with you! He has no use for smugglers who drop their shipments at the first sign of an Imperial cruiser.
Han Solo: Even I get boarded sometimes. Do you think I had a choice?
Greedo: You can tell that to Jabba. At best, he may only take your ship.
Han Solo: Over my dead body!
Greedo: That’s the idea… I’ve been looking forward to this for a long time.
Han Solo: Yeah, I’ll bet you have.
[Han blasts Greedo, then heads out, tossing the bartender a coin]
Han Solo: Sorry about the mess.
Enter the 1990s
Moreover, Greedo wildly misses in extremely close quarters, if not point blank range.
This made Greedo not just a horrible shot, but an extremely bad bounty hunter.
Greedo should have been a Nerf Herder.
Always Shoot First
Here are the basic facts: Han is stopped at gunpoint by Greedo. During the entire conversation in the bar, Greedo has his weapon pointed directly at Han. There is a dispute over money, with Han saying “Over my dead body,” to which Greedo replies, “That’s the idea. I’ve been looking forward to this for a long time.”
Second, let’s review the Model Penal Code on using deadly force in self-defense. The MPC states:
§ 8.02 Use of Deadly force
[A] Common Law – Deadly force is only justified in self-protection if the defendant reasonably believes that its use is necessary to prevent imminent and unlawful use of deadly force by the aggressor. Deadly force may not be used to combat an imminent deadly assault if a non-deadly response will apparently suffice.
[B] Model Penal Code – The Code specifically sets forth the situations in which deadly force is justifiable: when the defendant believes that such force is immediately necessary to protect himself on the present occasion against:
2. Serious bodily injury;
3. Forcible rape; or
The Code prohibits the use of deadly force by a deadly aggressor, i.e., one who, “with the purpose of causing death or serious bodily injury, provoked the use of force against himself in the same encounter.” [MPC § 3.04(2)(b)(i)]
Under the Model Penal Code, the issue is whether Han believed deadly force was immediately necessary to protect himself against 1) Death (in the event Greedo fired first); 2) Serious bodily injury (a blaster wound likely do serious injury if not fatal) or 3) Kidnapping (Greedo arguably could have intended to take Han to Jabba the Hut.)
The next issue is whether Han was required to “retreat” from Greedo.
The rules state:
§ 8.03 Retreat Rule
[A] Common Law – If a person can safely retreat and, therefore, avoid killing the aggressor, deadly force is unnecessary. Nonetheless, jurisdictions are sharply split on the issue of retreat. A slim majority of jurisdictions permit a non-aggressor to use deadly force to repel an unlawful deadly attack, even if he is aware of a place to which he can retreat in complete safety. Many jurisdictions, however, provide that a non-aggressor who is threatened by deadly force must retreat rather than use deadly force, if he is aware that he can do so in complete safety.
A universally recognized exception to the rule of retreat is that a non-aggressor need not ordinarily retreat if he is attacked in his own dwelling place or within its curtilage [the immediately surrounding land associated with the dwelling], even though he could do so in complete safety.
[B] Model Penal Code – One may not use deadly force against an aggressor if he knows that he can avoid doing so with complete safety by retreating. Retreat is not generally required in one’s home or place of work. However, retreat from the home or office is required: (1) if the defendant was the initial aggressor, and wishes to regain his right of self-protection; or (2) even if he was not the aggressor, if he is attacked by a co-worker in their place of work. However, the Code does not require retreat by a non-aggressor in the home, even if the assailant is a co-dweller.
Finally, we must consider whether Han had a “reasonable belief” about Greedo’s threat. The Model Penal Code states:
§ 8.04 ”Reasonable Belief”
The privilege of self-defense is based on reasonable appearances, rather than on objective reality. Thus, a person is justified in using force to protect himself if he subjectively believes that such force is necessary to repel an imminent unlawful attack, even if appearances prove to be false.
Courts are increasingly applying a standard of the “reasonable person in the defendant’s situation” in lieu of the “reasonable person” standard. Factors that may be relevant to the defendant’s situation or circumstances include:
|1.||The physical movements of the potential assailant;|
|2.||Any relevant knowledge the defendant has about that person;|
|3.||The physical attributes of all persons involved, including the defendant;|
|4.||Any prior experiences which could provide a reasonable basis for the belief that the use of deadly force was necessary under the circumstances.|
Applying the facts to the Model Penal Code and Common Law, Han was justified in shooting first and killing Greedo. Without a doubt, having a blaster pointed directly at Han put his life in danger. Additionally, Greedo’s statement “That’s the idea. I’ve been looking forward to this for a long time,” communicated Greedo’s intent to kill Han. Shooting first was the only away to prevent Greedo from using deadly force himself.
As for the retreat issue, Han was already at gunpoint and cornered in the booth when Han shot Greedo. It is unlikely Han could have retreated with his back to the wall and in a seated position. Shooting his way out appeared to be his only option.
Finally, reasonable belief: Han was in Mos Eisley Spaceport, a wretched hive of scum and villainy. Second, Greedo had his weapon pointed at Han the entire time, with Han cornered in a booth. This should be sufficient to show the reasonableness of the threat to Han’s life.
While Han was justified in shooting first, a better question is why did Malcolm Reynolds shoot the Alliance pilot who was surrendering in Serenity?