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Elementary: Sherlock Holmes and the Mystery of Missing Due Process

By
Caesar Kalinowski IV
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Pictured (L-R) Jonny Lee Miller as Sherlock Holmes and Lucy Liu as Watson of the CBS series ELEMENTARY, premiering for a fourth season on Thursday, Nov. 5 10:00-11:00 PM ET/PT. Photo: Justin Stephens/CBS © 2014 CBS Broadcasting Inc. All Rights Reserved.

“What one man can invent another can discover.” Sherlock Holmes, The Adventure of the Dancing Man

Normally I don’t write negative pieces about shows, but I have been stewing since the Sherlock Holmes-but-updated show Elementary aired “Uncanny Valley of the Dolls” last month. Ever since I spent a summer reading through the Sir Arthur Conan Doyle’s collected works, I have loved Sherlock Holmes. Elementary is meant to be a new take on the cocaine-addicted sleuth, managing some decent story lines but not adding to the character much beyond what we’ve already seen in the BBC and Guy Ritchie versions. My biggest complaint regarding Elementary, however, is Sherlock and Joan Watson’s consistent disregard for due process. Whether it’s accusing literally everyone of murder (attorney request be damned) or picking locks to illegally break into private property multiple times, the show focuses less on intellectual investigative skills and more on clean, east-to-digest stories.

But what does that have to do with sci-fi you might ask? Well, in “Uncanny Valley of the Dolls,” Sherlock and Co. set out to solve the murder of a sex robot designer who previously headed secret research into real-life teleportation. Gasp! After finding out that last fact, a minor character announces that he was offered (and paid a whole $1000 for) copies of the top secret research. Throwing around some law regarding the Invention Secrecy Act, the detectives surmise that (1) the information was leaked so that the perpetrator could cash in on the research and avoid the Act and a non-disclosure agreement, and (2) the victim was murdered in the presence of his sex robot.

“Sure Sherlock, you might be a world renowned detective and genius, but let me play this old Star Trek episode to explain teleportation.”

Following the deus ex machina discovery of a song recorded by the sex robot that is somehow perceived (correctly!) to be the perpetrator’s cell phone ringtone, see Anita Ward, Ring My Bell (Juana Records 1979), the detectives trot in three minor characters for “interviewing.” Proceeding to call the first suspect’s phone, which plays the song, they announce the killer and everyone is satisfied that the murder has been solved and a conviction is all but guaranteed. Hold up, what? Not even the mildly appeasing “Ya got me this time, copper!” full-blown confession after being shown some absolutely circumstantial evidence? Well, while CBS and Elementary may not take their time researching the legal issues actually underlying the episode, we will.

The Exclusionary Rule

Aka don’t break into private property to steal evidence.

As previously mentioned, Elementary’s Sherlock and Dr. Watson love to pick locks and break into buildings. While Captain Gregson meagerly explains away these violations as “creative” and usually buttressed by a claim that someone was heard yelling inside, could they actually do this? The answer is no, they totally cannot. Sherlock and Joan are consultants for the NYPD’s Major Crimes Unit. As such, they are acting on behalf of the government when they conduct investigations. So while they don’t have badges, guns, or arresting authority, they do have a responsibility to, you know, abide by the Constitution and proper police investigative procedures.

“The Fourth Amendment assures the ‘right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.’” Stone v. Powell, 428 U.S. 465, 482 (1976). Because such a provision protects individuals from the government illegally entering and searching one’s home, “[e]vidence obtained by police officers in violation of the Fourth Amendment is excluded at trial[.]” Id. at 492. The Fourth Amendment, however, generally does not protect against unreasonable intrusions by private individuals. Walter v. United States, 447 U.S. 649, 656 (1980). But when the private individual “acted as an ‘instrument’ or agent of the state,” Coolidge v. New Hampshire, 403 U.S. 443, 487 (1971), the exclusionary rule applies and the evidence can be suppressed as “fruit of the poisonous tree.” Nardone v. United States, 308 U.S. 338, 341 (1939). See also United States v. Hardin, 539 F.3d 404 (6th Cir. 2008); United States v. Reed, 15 F.3d 928 (9th Cir. 1994). Because Sherlock and Joan are definitely government agents, anything they find after illegally breaking into private property would be suppressed.

Invention Secrecy Act

Were we supposed to be wowed when they showed us how to “teleport” a chocolate bunny with email and a 3D printer?

In the episode, the perpetrator kills the victim after classified research on real-life teleportation technology (organic-to-digital information transmitter) is leaked. Showing off her obscure federal statute knowledge, Joan makes all sorts of assertions about the effect of the Invention Secrecy Act, 35 U.S.C. § 181 et seq., on the case. So can the government take away your invention and force you to keep quiet? Yea, pretty much. But can you get around the Act by leaking the information? No, definitely not.

After submitting a patent application to the government, if certain federal officers determine that the invention “would be detrimental to the national security, . . . the invention [shall] be kept secret and [the patent office] shall withhold the publication of the application or the grant of a patent for such period as the national interest requires[.]”  35 U.S.C. § 181. But do you agree with Joan and the killer that leaking the research or application would remove the gag order and open the flood gates of profit? Think again. If the invention, application, or applicable research is ever disclosed “by the inventor, his successors, assigns, or legal representatives, or anyone in privity with him or them,” the patent application is held abandoned and the potential windfall is lost. 35 U.S.C. § 182. Furthermore, anyone convicted of leaking said information can “be fined not more than $10,000 or imprisoned for not more than two years, or both.” 35 U.S.C. § 186. See also 18 U.S.C. § 798(a), 793(d). So no, leaking suppressed research does not give one free reign to ignore an order under the Act.

On a related note, the journalist and technology enthusiast featured in the show that attempted to buy the research might also be in choppy waters as well. Under 18 U.S.C. § 793(c), “[w]hoever . . . receives or obtains . . . from any source whatever, any document . . . connected with the national defense,” can be convicted of a felony and “fined under this title or imprisoned not more than ten years.” So while purchasing the secret teleportation research might have seemed like a good idea at the time, I would definitely not risk ten years in federal prison for purportedly secret documents that cost only $1000.

Conclusion

            Sherlock Holmes is meant to be an investigative genius, discerning the small forensic details and using logical reasoning to solve crimes. In Elementary, however, we have a shady Sherlock willing to break the law and ignore a suspect’s due process rights. Additionally, this particularly episode hinged its entire theory of motive on a misreading of the Invention Secrecy Act. Sir Arthur Conan Doyle, the father of Sherlock Holmes and “fervent advocate of justice,” would not be pleased. Simply put, Sherlock should follow the law and Elementary should do it’s homework.

Random Thoughts:

  • Captain Gregson even called Sherlock and Joan out for constantly breaking the law in this episode, but shrugged it off as “creative” detective work. It’s not “creative,” it’s criminal.
  • In the recent episode “Fit to be Tied,” an FBI agent actually told Sherlock to not even joke about “extrajudicial activity,” but Sherlock simply snorted [effectively], “Well, while you’re wasting time, my methods [of illegally breaking and entering] will be getting us real evidence to use.” Sigh.
  • “Elementary, my dear Watson” is commonly attributed to Sherlock Holmes, however, he never actually said those words. The actual quote (from “The Crooked Man”) is “‘Excellent!’ I cried. ‘Elementary,’ said he.”
  • In 2014, the Sherlock Holmes character came off copyright, which may account for CBS’s “creative” changes to the character. How about we stick to a version of Sherlock that doesn’t break the law at ever turn?

What are the Civil legal implications of Han’s Street Racing and Reckless Driving at the beginning of the movie Solo?

By
Steve Chu
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Welcome back.  Today we have part 2 of our series on whether Han’s high speed driving at the beginning of the movie Solo exposes him to any potential legal problems.  In part 1 we examined Han’s potential criminal liability, which could involve Han having to pay a fine, serve jail time, or if certain things happened he could even get the death sentence (Check out Part 1 for more). Today we look at the civil aspect of his potential liability, which could result in Han having to pay money to an injured or aggrieved party.

What do you mean I have to pay monetary damages??

Civil Liability

Even if Han escapes criminal liability, he can still be sued for civil damages by anyone who suffered injury to their person or property as a result of Han’s actions.  The difference between Criminal and Civil liability is simply that Criminal law typically implicates one’s liberty by posing the threat of confinement in jail/prison, while Civil liability typically implicates one’s finances because an aggrieved individual can sue another person for money damages.  Similar to Criminal law, Civil law provides protection against reckless drivers as well.

  1. Civil Law Principles

One oft quoted rule in civil law is that drivers are permitted to expect that every other person will use reasonable care and not violate the law.  California Civil Jury Instructions (“CACI”) 411.  With regard to the speed question specifically, the California vehicle code addresses that issue as follows: “no person shall drive a vehicle upon a highway at a speed greater than is reasonable or prudent having due regard for weather, visibility, the traffic on, and the surface and width of, the highway, and in no event at a speed which endangers the safety of persons or property.”  Cal. Veh. Code § 22350.  Simply put, drivers must not drive so fast that they create a danger to people or property.  CACI 706.

Let’s see what she’s got!

If the trooper who falls from the bike suffered some injuries, he might be able to sue Han and argue that Han’s reckless driving caused the injuries.  Any bystanders who suffered injuries from the race/chase could also sue.  Again, using California state law as a model, such an argument could have at least some merit.  Witnesses to the incident would include Han, Q’ira, and the other participants in the chase/race, as well as bystanders who may have seen some of the events.  Han would likely argue that any participants who were injured in the race brought it upon themselves due to their own participation in a dangerous activity, namely street racing.  However, Han would have a more difficult time making such an argument against a bystander who suffered injuries.

How such a question would be decided would depend upon the judgment of the trier of fact, whether it be a judge or jury.  In California state court, such disputes are typically decided by a jury and often involve some allocation of fault between the various parties involved.  For example, while it is possible that a jury could find Han 0% at fault, and the injured party 100% at fault, a more common result is for the jury to pin some percentage of fault upon Han, and some fault upon the other party.   It is important to note that unless Han has some form of auto insurance available to cover this incident, he may ultimately have to pay out of pocket for any monetary damages that are awarded as a result of the incident.

I was just out for a relaxing drive!

  1. Han’s Potential Civil Exposure

Han could, of course, argue variations on a theme of how he was being pursued by criminals in fear of his life.  It is possible that this may help him in a criminal trial, but it would likely not help him as much in a civil trial where the plaintiff is likely to be some innocent bystander who was doing nothing wrong and then suffered injury when Han and his pursuers blasted by.  Depending upon how badly the plaintiff is injured, Han could be on the hook for quite a bit of cash, likely enough to pay the debt he will someday owe to Jabba several times over.

Han’s best hope may be to use his smuggler charm and try to somehow convince the jury that he was simply in the wrong place and the wrong time and none of this is really his fault: the blame should all fall upon the other people who were involved in the chase.  That would seem to be a longshot, but stranger things have happened.  Han could also argue that this was not really a race, but rather it was a scared youth trying to escape a life of criminal servitude from a gang enforcer after assaulting Lady Proxima with sunlight and stealing coaxium.

On the flip side, the Plaintiffs could argue that Han was racing for nothing but glory, and the chance to win a little street cred.  In most situations, it would ultimately be up to a jury to decide.  In California, at least 12 jurors must be impaneled, though some alternates are typically brought in as well in case a juror has to step down for any reason.  9 out of 12 jurors must vote a certain way in order to reach a civil verdict.  So under that legal system, Han would need to convince 9 out of 12 of his peers to believe him.  It could happen, but it’s not a sure thing.

Who are you calling Chicken?

  1. Han’s Civil Liability: The Bottom Line

If Han’s high speed driving did injure some people, then Han would likely face an uphill battle to convince a jury that he is not responsible in any way for those injuries.  He may be able to argue that some portion of the injuries are not his fault, but it is very likely that most, if not all, of the liability would fall on Han.

Given the potential legal troubles that arise from Han’s participation in the street racing and chase on Corellia, Han would probably have been best served by following the example set by another sometimes hot-headed traveler, Marty McFly from Back to the Future.  Marty, after learning from some mistakes, ultimately refuses to take the bait and backs out of a street race challenge at the end of Back to the Future 3.  The race challenger, Needles, may also be a distant relation to the Corellia street racing mentor named Needles who Han mentions in passing at one point during the Solo movie.  Don’t do it Han, if you can avoid getting into too much trouble, Leia awaits.

 

Han Solo & The Great Coaxium Heist

By
Thomas Harper
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Solo will soon be released on DVD/Blu-Ray/LaserDisc/Beta Max, which means it’s high time to take another look at our favorite scruffy looking nerf herder’s spectacular entry into the world of scoundreling: the conveyex train heist. Apart from being one of the most fun scenes in any Star Wars movie, Han’s participation in the heist would almost certainly land him in deep bantha poodoo with the Imperial military. We’ve analyzed Han’s legal woes based on 19th century train robbery laws, but Han’s military service gives him unique and significant added legal exposure beyond what the other members of Beckett’s crew would face.

Beckett’s amended advice: Don’t trust anyone, especially an Imperial Navy Recruiter.

Before diving into the heist itself, it’s worth asking whether the Imperial military would even have jurisdiction to prosecute Han in the first place. After all, Han had walked away from his military unit by that time. Unfortunately for Han, his half-baked exit strategy from military service would not free him from the Empire’s jurisdictional hooks.

At the time Han joined up with Beckett & Friends™, he was still an Imperial soldier. In most real world cases, enlisted soldiers continue serving until their contractual term of service runs out or they are discharged in some other fashion (e.g. medical reasons or for misconduct). Han voluntarily enlisted in the Imperial military, which means he probably had a similar term of service that was not completed when he ran away from Camp Forward (if you were hoping for a more creative Imperial base name, you’re out of luck). That means Han, just like a real soldier, would still be subject to military law even though he no longer wore the fine grey threads of the Imperial Army at the time of the heist.

“Have you ever been to an Imperial court-martial on Mimban? They’re nuts!”

While robbing a normal train is bad enough, Han’s problems are multiplied because he is an Imperial soldier stealing Imperial property. Just like in civilian criminal codes, larceny is a crime under the UCMJ. However, the UCMJ makes a special distinction when military property is the thing being stolen. Soldiers like Han are often entrusted with millions of dollars (or Imperial credits) worth of equipment and property. Even though theft of military property is not a distinct UCMJ article, it functions as an aggravated form of larceny that reflects the seriousness of a breach of that trust. As a reflection of that seriousness, its maximum punishment is double that of traditional larceny.

Under Article 121 of the UCMJ, larceny of military property requires that five elements be proven:

  1. That the accused wrongfully took certain property;
  2. That the property belonged to the United States government;
  3. That the property was of a particular value (property worth $500 or more equates to a higher maximum punishment);
  4. That the taking was with the intent to permanently deprive the government of the use and benefit of the property; and
  5. The property was military property.

The Military Judge’s Benchbook defines “military property” as real or personal property that is owned or used by one of the armed forces which has either a uniquely military nature, or is used by an armed force in furtherance of its mission. For example, a M1 Abrams tank would be the dictionary definition of military property, because its very nature is a war-fighting machine. Likewise, the tank’s fuel (though not uniquely military in nature) would still be military property because of its use by the Army in furtherance of its mission.

In Solo, the coaxium aboard the railcrawler train would undoubtedly fit the definition of military property. While coaxium is not a uniquely military item, this particular stockpile of it was being used by the Imperial armed forces in furtherance of its mission. The Imperial fleet depends on coaxium to power its fleet, while the specific batch of coaxium targeted by Beckett and Han was on its way to an Imperial facility where it would no doubt be destined for distribution and use.

Getting cooked and served in an ewok ceremony honoring C-3PO may be the only thing worse for Han than his military legal woes.

Han stands a better chance of successfully navigating an asteroid field than of beating this sort of charge. As for the first element, Han certainly took the coaxium, even if he wasn’t successful in getting it offworld. He not only helped Chewie break the coaxium train car free, but he then piloted the AT-hauler that was meant to carry the precious cargo away to safety. Even though the crew didn’t make it far with the coaxium (thanks to the supreme badass known as Enfys Nest) Han physically removed the coaxium car from the train and transported it elsewhere.

The Imperial military also wouldn’t break a sweat proving the second and third elements. If there’s one thing the Imperial military seems truly adept at, it’s the mundane business of exhaustive record keeping. With that in mind, Imperial prosecutors would likely trot out an exhaustive string of evidence to trace ownership of the fuel from the train all the way back to the Imperial facility that originally acquired and refined it. Given coaxium’s importance to military operations, the Empire almost certainly kept detailed records about its stockpiles in order to maintain accountability of the extremely valuable resource.

Since the coaxium from the heist was destroyed, those records would be critical to establish the value of the supply. In real world cases, the military unsurprisingly keeps detailed acquisition records on every piece of property, from the smallest bullet or wrench to tanks and aircraft. Military prosecutors typically trot out logistics and acquisitions officials who can testify to those records and amounts, providing the court with precise cost and value information.

Solo makes it clear that coaxium is exceptionally valuable, which means the amount stolen from the train was likely worth tens of millions of credits. Given coaxium’s cost and huge operational value, the Empire almost certainly kept close track of its expenditures for the resource. The mighty Imperial military would have no trouble lining up an army of stuffy experts to testify in perfectly crisp British accents about the staggering value of the fuel. This testimony would not only satisfy the third element of the crime, but it would also inevitably influence the opinion of military jurors, who would likely harbor outrage at Han’s audacity in stealing such a tremendous amount of the Empire’s property (which was no doubt totally lawfully obtained in the first place).

If legalese was one of Threepio’s 6 million languages, this would translate to “we had better start working on a plea deal immediately.”

As for proving Han’s intent to permanently deprive the Empire of the coaxium, the circumstances of the heist are damning for Han. From the theft of the AT-hauler to the team’s shootout with Range Troopers and their demolishing of the train bridge, the scale of the heist strongly suggest that the crew wasn’t just temporarily borrowing the coaxium. A plan of that complexity is evidence in and of itself of an intent to permanently deprive the Empire of the property. To make matters worse for Han, he piloted the ship that carried the coaxium away—an act that would almost certainly convince any military jury that he had the requisite intent to commit the crime.

Given the overwhelming evidence against Han, even a droid with a bad motivator could probably manage to secure a conviction against him. Of course, Han Solo would absolutely be the type of criminal defense client defiantly tell his military defense counsel “Never tell me the odds.”

Lady Proxima had the Worst Orphanage Ever

By
Josh Gilliland
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Society has safeguards for runaway or homeless children to be in community care facilities. We saw a version of this with the Oliver Twist dial turned up to 50 in the beginning of Solo. Lady Proxima, the Grindalid matriarch of the White Worms, had a business model of taking in young Corellian children and giving them food and shelter in exchange for committing crimes. This was one of those rare fusions of Boys Town meets The Godfather.

California defines an abandoned child as an individual under 18 years old who is without provision, supervision, or necessary care. Cal. Fam. Code § 3402. Han and Qi’ra both were under 18 years of age when they were introduced in Solo. They technically were either abandoned or runaways when Proxima took them in under her care. Lady Proxima effectively ran a home for runaway or homeless children, which would need to meet the following requirements:

  1. Provide short-term nonmedical care not exceeding 21 days for youth who voluntarily enter the shelter;
  2. Have a maximum capacity of 25 youth;
  3. Have a ratio of one staff person for every 8 youth;
  4. Can use bunk beds limited to two tiers;
  5. Operated by a non-profit;
  6. Staff will assist youth in obtaining emergency health-related services;
  7. Reconnect youth with family when possible; and
  8. Work with local government for placing in foster care

Cal. Health & Safety Code § 1502.35.

The White Worms complied with none of the basic requirements for a runaway or homeless youth shelter. First, youth were there for years, which is in excess of 21 days. There clearly were more than 25 youth at the “facility.” While the ratio of youth to staff might have been at the right ratio, this was to quill uprisings of children who wanted food, not for childcare. Sleeping accommodations were not in compliance with the law. Moreover, the White Worms were not operating a non-profit, but a criminal enterprise using the children as its agents in a crime for food program.

Lady Proxima and her gang could be prosecuted for a long list of crimes, ranging from racketeering to health code violations. Proxima could be charged with contributing to the delinquency of minors crime for using children in a criminal enterprise. Anyone who encourages a person under 18 years old to commit a crime (thus be subject to juvenile court) is guilty of a misdemeanor and can be punished by up to one year in county jail, fined $2,500, or both. Furthermore, anyone who lures a child under 14 away from home is also guilty of a misdemeanor. Cal. Penal Code § 272. If Proxima was charged for each youth she induced to commit crimes or lured away from home, she could be go to jail for decades.

There is a larger issue with Lady Proxima: child neglect. “Neglect” is the maltreatment of a child by a person responsible for the child’s welfare under circumstances indicating harm or threatened harm to the child’s health or welfare. Cal. Penal Code § 11165.2. The children under Proxima’s “care” had to steal for food, fight off other children in order to get food, and were in living conditions that would cause Child Protective Services to scramble a squadron of X-Wings.

Each member of the White Worms could be charged with child abuse, which is the willful harming of a child. Cal. Penal Code § 11165.3 Rebolt enforced Lady Proxima’s will with corporal punishment against Han for failing in a criminal act for Proxima. Moloch pulled a blast on Solo when he resisted the abuse, followed by a high speed chase, blaster fire, and releasing Corellian hounds in pursuit of Han and Qi’ra. All of these actions would be extreme child abuse.

Han and Qi’ra were right to escape the White Worms. There is no credible argument that Lady Proxima had a licensed home for runaway or abandoned children. Unfortunately for those who had to steal for food, the Empire clearly did not care about the well being of children. For a society that had traded freedom for a secure “Empire,” this is not a surprising end result.

Space Force: Civil War

By
Caesar Kalinowski IV
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Unless you’ve been avoiding all news, then you know that President Trump has ordered the creation of the U.S. Space Force—a sixth branch of the U.S. military that would oversee war-fighting in the final frontier. Under the newly-formed Space Command, a four-star flag officer will lead the Space Operations Force and Space Development Agency to “strengthen security, ensure our prosperity and . . . carry American ideals into the boundless expanse of space.” While additional details are scant, we here at The Legal Geeks have decided that one critical issue must be decided first and foremost: Will the Space Operations Force be modeled after the U.S. Marine Corps or the U.S. Army?

Tapping our contributing blogger talent pool, we have enlisted the top military legal minds to solve this problem. Thomas Harper—Han Solo fanboy and U.S. Army Judge Advocate—believes that the Space Force should take its cues from the pride of ole’ George Washington himself, the U.S. Army. Caesar Kalinowski IV—Philip K. Dick devotee and former U.S. Marine—contends that calling the interplanetary troops anything other than Space Marines is tantamount to blasphemy.

Because settling the issue is needed before Thanos is prosecuted for murdering half of Earth and faces a Space Force firing squad, we asked them to make their case. So should it be Space Marines or Space Soldiers?

Thomas Harper

“Experience teaches us that it is much easier to prevent [a hostile war mongering alien race] from posting themselves than it is to dislodge them after they have obtained possession [of the Earth].” – George Washington, 1776
General Washington, were he here today, would no doubt proclaim (after first seeking some modern dental care) his beloved U.S. Army as the obvious choice to form the backbone of the new Space Force™. Although the Marine Corps may seem like a tantalizing choice, it’ll take more than the few and the proud to defend our blue marble against the evil that undoubtedly lurks in the great beyond. Enter the U.S. Army, the nation’s go-to force when you need to get embroiled in a long-term conflict far from home, whether that’s across the globe, or across the stars.

At its core, the Army has the perfect origin story to lend to the Space Force. As the very first military branch (we beat the Marines by a whole five months), the original Continental Army was proudly formed out of citizen-soldiers who comprised militias in each of the 13 colonies, as opposed to a few drunken brawlers at a bar. While the modern Marine Corps has admittedly expanded its recruiting beyond the bar at your local Applebee’s, the Army has always truly been a force comprised of the average American. Likewise, the Space Force should model itself on those same humble roots, representing a true cross-section of America as it whoops ass around the solar system.

General Veers & the Imperial Army: The Galaxy’s choice delivery mechanism for peace, prosperity, and a steady supply of crayons for all the Space Marines out there.

The fatal flaw in using the Marine Corps as a model comes from the Corps’ own recruiting motto, “The Few, The Proud, The Marines.” After all, why would you use a scalpel when you can wield a sledgehammer, especially a space-sledgehammer? When it comes to slugging it out across the galaxy, we need a numerically superior force capable of going toe-to-toe with any hostile alien force. Sci-fi has repeatedly proven that there is strength in numbers: Darth Vader didn’t roll around the galaxy far, far away with a small contingent of Marines, he brought an entire legion of troops to smash Rebel scum. When it was time to take the fight to the Bugs in Starship Troopers, it was the iron fist of the mighty Mobile Infantry that delivered the haymaker on Earth’s behalf (please ignore the inconvenient fact that Robert Heinlein was a U.S. Naval Academy graduate).

With a current strength of just shy of one million active, reserve, and National Guard soldiers (compared to a measly ~200,000 Marines), the Army is the only military branch capable of marshaling the sheer numbers it will take to defend our space borders. Despite its size, the Army also has the ability to strike quickly. Rapid deployment forces like the 82nd Airborne Division and 75th Ranger Regiment are capable of having combat troops en route to fight within 18 hours.  Perhaps the Marine Corps can rapidly assemble a force to tag along if the Uranus Embassy needs some guards, though.

The Marines Corps’ sci-fi prowess encapsulated in a single photo.

It also bears mentioning that, while the Marines have a vaunted place in sci-fi, they seem to get their asses kicked left and right. In Aliens, it was a pissed off civilian pilot with a Class 2 rating in a Power Loader who took down the Queen, rather than the force of Colonial Marines. Meanwhile in the Battlestar universe, the Colonial Viper Squadron pilots always seem to be the ones doing the heavy lifting against the Cylons. With such a suspect record, the Space Force is better served looking elsewhere for inspiration.

Finally, when planning the newest military branch, the coolness factor is an absolutely essential consideration. Coolness is something the Army has in spades. In real life, all the coolest service members wore Army green, including General Patton, Colin Powell, Clint Eastwood, Jimi Hendrix, and even Ice T. The Army’s legend looms just as big on the screen, boasting legends like Johnny Rico and Dutch in Predator. Meanwhile the Marines are stuck with duds like Private Hudson from Aliens.

While the Marine Corps may very well form the eventual backbone of the Space Force, it’s a virtual certainty that the Army will be close behind to bail them out when they eventually call “Game over, man!” In the meantime, surely this Space Force will need Space JAGs, right? You know where to find me.

Caesar Kalinowski IV

All Hail Saint Mattis of Quantico, aka Mad Dog Mattis, aka The Warrior Monk, aka The Patron Saint of Chaos.

Although Secretary of Defense and former Marine General James Mattis initially seemed bearish on the idea of a Space Force, I have to assume it was only because he always assumed the Marine Corps would take over that role. As a fundamental Mattisonian, I too had expected that the U.S. would simply give Marine Lance Corporals some space suit training and then send them into orbit to wreak havoc at a bar on the Moon until they were needed to police call space trash. But now that the President has announced that an entirely separate force be created, it’s obvious to me that we should create the Marine Corps Part II: Marines in Space.

First, the history of the Marine Corps is pretty much the history of all space troops. In 1775, the Marine Corps was born in a bar called Tun Tavern during the American Revolution. The bar’s owner, Robert Mullan, became the Corps’ first Captain and recruiter—allegedly luring drunks and degenerates to fight in the new force with promises of cold beer and steady pay. Like the infamous Mos Eisley Cantina, Marine recruits from this “wretched hive of scum and villainy” were loaded half-drunk onto ships to fight the British in the hostile waters of the Caribbean. I mean, who else would sail into enemy territory with no reinforcements except men with nothing to lose and a voracious appetite for conquest and booze? Similarly, we should expect that the first people recruited to stand watch on an asteroid base are going to be folks with (1) little left on Earth to miss, (2) a desire for adventure, and (3) more than a few screws loose. If that doesn’t sound like a Marine, I don’t what does.

Three hots, a cot, and all the space rum you can drink

Second, Space Marines have already played a prominent role in nearly every outer space battle.  From the Colonial Marine Corps in Aliens and Battlestar Galactica to the EarthForce Marine Corps of Babylon 5, Space Marines have been kicking butts and taking names for decades. Even the mighty Chinese Space Defense Force was defeated by U.S. Colonial Marines at the Battle of Tannhäuser Gate, asserting American dominance during off-world colonization in Blade Runner. So if Space Marines are good enough for sci-fi legends James Cameron and Ridley Scott, why would we even look elsewhere now?

Third, the American space mission demands a small, flexible Space Force that acts as a force-in-readiness just like the Marine Corps does today. The current Corps is America’s first response force—small (~200,000 personnel), fast (able to place Marines on the ground in less than 24 hours), and designed solely “to locate, close with and destroy the enemy by fire and maneuver or to repel the enemy’s assault by fire and close combat.” In the open expanse of space, America will not be able to send large amounts of troops on short notice to defend distant outposts. Accordingly, the Space Operations Force will need to be staffed by a small number of expertly trained fighters, capable of hopping the nearest transport to fight skirmishes off the Belt of Orion at a moment’s notice.

Obviously, like real Marines today, every Space Marine is going to be jacked and equipped with a chainsword

The U.S. Army, however, is a large (~2.1 million Active and Reserve soldiers), clunky, bureaucratic organization that needs four field-grade officers to sign out a pen. How could we depend on them to respond quickly when they can’t even mobilize troops for 72 hours? See Thomas F. Lippiatt, et al., Mobilization and Train-up Times for Army Reserve Component Support Units, RAND Corporation Published Research. The answer is we cannot. We must have fit and fast Space Marines, not slow soldiers whose current mission includes “providing prompt, sustained, land dominance.” See Army Mission Statement.

Ultimately, the Space Force cannot just sit on space bases providing “prompt” support; instead, it instead must draw on the Marine Corps’ historic mission of delivering proven results in expeditionary and asymmetrical warfare. And Secretary Mattis, in case you’re reading this, I’m totally open to being your new Assistant Secretary of Defense for Space.

We need you … to police call all of this space trash, Private

Thomas Harper

Thomas is the Senior Legal Advisor in International Humanitarian Law for the American Red Cross. He is a Major in the U.S. Army Reserves serving as a Judge Advocate General (JAG) officer. Thomas leads the Red Cross IHL Program, which carries out the Geneva Conventions obligation of educating the American public about the rules of war. During his time in the JAG Corps, he has served in a variety of positions, including as an Operational Law attorney advising on the law of war and rules of engagement in Afghanistan.

After completing more than 7 years on active duty, he now serves in the Army Reserves as a senior military defense counsel, representing accused soldiers in complex cases. While he loves all things geek, he is a massive Star Wars fan, collector, and trivia fiend. Follow his ramblings about the galaxy far far away on Twitter at @thomasLharper.

Defending the Ghost for her Crimes in Ant-Man and The Wasp

By
Josh Gilliland
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The Ghost phasing through the mold of villains in Ant-Man and the Wasp by being an adversary who was a victim seeking a cure, not someone intent of causing massive carnage or revenge (see Red Skull, Loki, Whiplash, Ultron, HYDRA, Abomination, or The Hand, to name a few). The fact the Ghost is someone seeking a cure for a physical illness caused by an experiment, she actually has legal defenses for a jury.

Ghost Stories

Ava Starr was injured as a child by energy from the Quantum Realm in an experiment conducted by her “egghead” father Elihas Starr.  Ava’s physical condition from the accident was being out of phase with the universe. Ava was taken in by SHIELD to become a field agent used for clandestine missions with her abilities to pass through solid objects. Ava’s abilities were exploited by SHIELD (which had been compromised by HYDRA). She was later cast out on her own after SHIELD fell (as seen in Captain America The Winter Soldier and Agents of SHIELD).

Starr’s physical condition deteriorated to the point she going to cease to exist. Her body kept phasing, resulting in her being in a state of pain and mental distress. She had to sleep in a chamber designed by Bill Foster to slow her decay from existence.

The Ghost committed multiple forms of assault, larceny, and burglary, or larceny to steal a miniaturized building, in order to find a cure for her condition. The most challenging of her crimes is the killing the corrupt FBI Agent Stoltz in order to acquire Hank Pym’s laboratory. While the FBI agent was on the take from the criminal Sonny Burch, the death of a Federal agent causes a significant problem in defending Starr.

Lay the Ghost of Crimes to Rest

The Ghost’s crimes were in the city and county of San Francisco. However, the Ghost did kill a Federal agent, so Ava Starr could be prosecuted in both California and Federal Court for her separate crimes.

There are two plausible defenses for Ava Starr. The first is the medical necessity defense and the other insanity.

The common law medical necessity defense has the same elements as the necessity defense. A defendant can argue the necessity defense when for any criminal act, except taking an innocent human life. People v. Trippet, 56 Cal. App. 4th 1532, 1538, (1997), citing People v. Pena 149 Cal. App. 3d Supp. 14, 22 (1983). The six elements to the defense require the defendant to prove:

  1. The act charged as criminal must have been done to prevent a significant evil;
  2. There must have been no adequate alternative to the commission of the act;
  3. The harm caused by the act must not be disproportionate to the harm avoided;
  4. The accused must entertain a good-faith belief that his act was necessary to prevent the greater harm;
  5. Such belief must be objectively reasonable under all the circumstances; and
  6. The accused must not have substantially contributed to the creation of the emergency.

Trippet, at *1538, citing Pena, at pp. Supp. 25-26.

Focusing only at the available state charges of assault and larceny, the Ghost does have a chance to argue a medical necessity defense:

  1. The attempted theft of technology to access the Quantum Realm was done to prevent her imminent death, which would be a “significant evil.”
  2. The technology was only available from the black market dealer who was selling it to Hope van Dyne;
  3. The act of stealing the technology was not disproportionate to the harm avoided, which was her death. However, this argument is weakened by every assault Starr commits;
  4. Starr had the good-faith belief that stealing the technology to access the Quantum Realm was the only way to prevent her death;
  5. The theft of technology to access the Quantum Realm was objectively reasonable. Each assault does undermine the reasonableness under all the circumstances;
  6. As to the accused must not have substantially contributed to the creation of the emergency, it was the criminal actions of Sonny Burch that caused the escalation of violation that Starr responded to in order to acquire the technology. Moreover, Ant-Man and the Wasp did break into Starr’s hideout, which makes their kidnapping a legal mulligan.

In a prior case, the necessity defense was not available to a cult de-programmer who kidnapped a cult member to “rescue” them, because the family’s knowledge of the cult was four or five years earlier. Moreover, there was no knowledge of imminent physical harm. People v. Patrick 126 Cal. App. 3d 952 (Cal. App. 4th Dist. Dec. 18, 1981). This case is distinguishable from Ava Starr’s case, because she personally had a reasonable belief to justify her actions. Starr’s danger was imminent and she had a rational belief her life was in danger.

Pale as a Ghost

Ava Starr could argue that at the time she killed FBI Agent Stoltz, she was suffering from years of physical pain from phasing in and out of reality, thus did not understand the wrongfulness of her actions. See, 18 U.S.C.S. § 17. The insanity defense is rarely effective, but there is a good argument to be made that Starr had a mental disease from her years of suffering, which caused her to not understand that killing Stoltz was wrong.

Expert testimony would be needed to explain the impact of constant physical pain caused by the exposure to the Quantum Realm upon Ava Starr. First, a psychologist could report on Starr’s mental state from a lifetime of a physical condition causing her to phase through objects. Second, the psychologist could further opine on the effect of a child being trained by SHIELD/HYDRA to conduct assassinations and espionage operations. Third, the physical impact of constant pain for years upon Starr’s mental state would need to be offered as expert opinion for the jury to consider. All of these factors could show Starr did not understand the wrongfulness of killing Agent Stoltz.

Don’t Give Up the Ghost

The Ghost was a victim of her father’s experiments that resulted in her being exploited as a weapon by HYDRA agents within SHIELD and a lifetime of physical pain. Such nightmarish conditions could drive someone mad to the point they only want the pain to stop. Ava Starr’s mind was clearly haunted by suffering and sought relief. That resulted in extreme actions, but not ones that a jury should render a life sentence for surviving.

Gattaca and the Law of Designer Babies

By
Caesar Kalinowski IV
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“I belonged to a new underclass no longer determined by social status or the color of your skin. No, we now have discrimination down to a science.” – Vincent Anton Freeman

From the ubiquitous grade school novel Brave New World, to the 1997 cult classic Gattaca, sci-fi writers love the idea of genetically tinkering with babies. Also known as “test tube” or “designer” babies, future science promises prospective parents the option of creating the newborns with perfect features and genetics. Because fellow Legal Geek blogger Thomas Harper and I both recently became first-time fathers, I thought we should explore our options in case helicopter parenting doesn’t work and our wives want to remove our less-admirable genetic traits next time.

In Gattaca, Ethan Hawke’s Freeman fights his way through life with poor eyesight and a heart defect after his parents made him “the old fashioned way.” His brother, however, was brought into the world in what was now called “the natural way.” Parents using that process get their first choice for all attributes. Gender screening, defect screening, physical attribute choice. Hell, for an extra $5,000 the embryo could have genes spliced into it to have enhanced musical or mathematical skills.

The “old-fashioned way” versus the new “natural” way. The new way does seem less fun.

Today, designer babies are the product of Preimplantation Genetic Diagnosis (“PGD”), which “is a procedure that identifies genetic defects in early embryos conceived via In Vitro Fertilization techniques.” Bratislav Stankovic, “It’s A Designer Baby!” Opinions on Regulation of Preimplantation Genetic Diagnosis, UCLA J.L. & Tech., 2005, at 3, 1. But PGD isn’t only used for screening out defects, it can also allow parents to select some physical traits, gender, and create a donor offspring for a preexisting sibling in need of a stem cell. Susan M. Wolf, et al., Using Preimplantation Genetic Diagnosis to Create a Stem Cell Donor: Issues, Guidelines & Limits, 31 J. L. Med. & Ethics 327 (2003).

While illegal in a number of countries, the United Kingdom’s ethics body has recently come out in favor of PGD if it is used in the future child’s best interests. The United States government, however, has largely stayed out of regulating PGD despite U.S. researchers already using the technique to genetically modify embryos. The Food and Drug Administration has issued a final rule regulating certain uses of human cells, tissue, and cellular and tissue-based product. See Human Cells, Tissues, and Cellular and Tissue-Based Products; Establishment Registration and Listing, 66 FR 5447-01. Identifying future concerns, the U.S. National Academies of Science, Engineering, and Medicine published a 261-page report suggesting limitations on the technology but agreeing that it is permissible if researchers meet strict criteria.

My son pondering why he was so lucky to get all of my wife’s features except for his dad’s enormous noggin

Acknowledging a woman’s privacy rights, the Supreme Court in Roe v. Wade held that “a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life.” 410 U.S. 113, 154 (1973) (emphasis added). Accordingly, several states have enacted laws regulating embryo research, including some with felony penalties for violations. Michigan law prohibits nontherapeutic research if “the research substantially jeopardizes the life or health of the embryo.” Mich. Comp. Laws § 333.2685. Minnesota law bans all research “except to protect the life or health of the [embryo],” Minn. Stat. § 145.422, and Pennsylvania makes it a felony to perform any type of research on an unborn child, 18 Pa. Cons. Stat. § 3216. See also Me. Rev. Stat. tit. 22, § 1593; La. Stat. Ann. § 9:129.

Critics of PGD and genetically-engineered babies often associate the process with the eugenics practices of the early 20th century, such as the forced sterilization of disabled persons to remove unwanted traits from society. See Buck v. Bell, 274 U.S. 200, 207 (1927) (upholding sterilization law because “society can prevent those who are manifestly unfit from continuing their kind”). The high cost of PGD procedures also means that it is functionally only available for the wealthy elite, subtly encouraging a culture of selectivity and discrimination based on “desirable” traits. Greedy medical clinics will likely jump at the chance to cater to the whims of these “buyers,” disregarding ethical concerns and turning “the process of having child into a consumer experience, giving it a measurable, commodified value.” Stankovic, “It’s A Designer Baby!”, at 3, 34. So what controls or criteria should—and can—be implemented to address the obvious pitfalls of this technology?

A very technical diagram of how babies are genetically modified

The U.S. Constitution does not explicitly mention reproduction, but that does not mean the Supreme Court has avoided the topic. Abortion, which can implicate the rights of the both the mother and child, has been upheld with certain cabining concepts. First, the Court has ruled that “[b]efore viability, the State’s interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman’s effective right to elect the procedure.” Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833, 846 (1992). Because viability has been the benchmark, protecting the rights of embryos in PGD may turn on establishing the fertilized ovum’s personhood. See Ronald Dworkin, Unenumerated Rights: Whether and How Roe Should be Overruled, 59 U. Chi. L. Rev. 381, 400 (1992).

Second, the Court has also commented on the broad category of permissible state interests in the reproductive realm. “[T]he state interest in [protecting] potential human life is not an interest in loco parentis, for the fetus is not a person . . . . [This interest] is not grounded in the Constitution. It is an indirect interest supported by both humanitarian and pragmatic concerns[.] The State may also have a broader interest in expanding the population, believing society would benefit from the services of additional productive citizens– or that the potential human lives might include the occasional Mozart or Curie. These are the kinds of concerns that comprise the State’s interest in potential human life.” Casey, 505 U.S. at 915. Accordingly, the Court is likely to leave the question of where to draw the ethical and prudential lines around PGD to the states.

So now EV gets her dad’s genes and taste in comic books? Something must be done.

But state statutes have been deemed unconstitutional on the basis of violated fundamental liberty interest, or on grounds of vagueness regarding what constitutes “experimentation” or “therapeutic.” See Lawrence v. Texas, 539 U.S. 558 (2003); Lifchez v. Hartigan, 735 F. Supp. 1361 (N.D. Ill. 1990); Margaret S. v. Edwards, 794 F.2d 994, 999 (5th Cir. 1986). What level of scrutiny these potential PGD laws are tested under, however, is not entirely clear. While state laws that “impinge on personal rights protected by the Constitution are subjected to strict scrutiny and will be sustained only if they are suitably tailored to serve a compelling state interest,” no enumerated personal rights pertaining to reproduction and genetic modification exist. City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 433 (1985). Therefore, because unmodified embryos are also not a protected class, it’s likely the courts will review future state laws under the easily-met rational basis test. Stankovic, “It’s A Designer Baby!”, at 3, 13.

In conclusion, the technology for genetically designing babies that first seemed so ridiculous in Gattaca is knocking on the door of reality. While the federal government is likely to cede regulation of PGD to the states (at least initially), state laws will likely be subject to scrutiny under the Fourteenth Amendment’s Equal Protection Clause or Due Process Clause. And because U.K. and U.S. medical boards have deemed the practice ethically sound at least in theory, I’d imagine that we will start to see these issues crop up sooner than later. So the only remaining question is, do Thomas and I talk our wives into making our next children football or electric guitar prodigies?

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