Ever Wonder How to Properly Cite the Prime Directive?

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February 11, 2016

New York Judge Richard A. Dollinger wrote a very straightforward opinion on the standards for attorney disqualification in New York.

The Court stated in its summary, “Finally, this evolving “clear showing” standard seems to be in direct contrast to the “prime directive” from appellate courts on matters relating to disqualification: i.e., that the decision rests solely in the discretion of the trial court.” Lyons v Lyons (Sup.Ct.) 2015 NY Slip Op 25414, ¶ 7, fn. 3.

Footnote 3 is Exhibit A that Judge Dollinger is a Trekie: “See Star Trek, First Contact, Paramount Pictures, 1996 (Articles of the Federation, Chapter I, Article II, ¶VII).”

Raise a glass of tranya, because a New York Judge went beyond making a reference, but boldly cited the Articles of the Federation and Star Trek First Contact.

Was it Robbery when Scott Lang took the Ant-Man suit?

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Brad Blanchard

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February 7, 2016

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Ant-Man starts with Scott Lang just getting out of prison. Scott owes back child support (Incarceration alone doesn’t stop child support), which we assume he was unable to pay while in prison. He tries to go straight so he can make up those payments, gets fired from Baskin-Robbins, and his ex-wife threatens to withhold visitation of their daughter, Cassie, until it’s all paid. So, Scott breaks into a house, steals the Ant-Man Suit, tries to return it, gets arrested for burglary, ends up in jail, escapes, goes on the run, saves the day, and it all gets worked out at the end of the movie. But did he actually commit burglary?

Scott likes to point out in the movie that he went to jail for burglary, and not robbery, because robbery involves threat where burglary does not. But what are the elements?

What are the elements:
Under the California Penal Code (459), Burglary consists of
1) Entering
2) A structure specified by the code, such as a house,
3) With the intent
4) to commit a felony once inside.

What actually happened:
1) Scott entered Hank Pym’s house through a window, which satisfies element one.
2) A house is a structure specified by the code, satisfying element two.
3) Scott intends to steal whatever is in the safe: gold, jewels, money before he enters, satisfying elements three and four.

Verdict? GUILTY! Right? Maybe not.

Defenses:
It looks like an open and shut case, except that Hank Pym wanted Scott to go into his house and take the suit. Which means the Scott has a common law defense to burglary that he can assert, because it’s not stealing if they wanted you to have it.

And this is actually the case in Ant-Man because Hank Pym goes through an elaborate ruse so that Scott will take the suit, which he then tells him to keep. As he says at one point to Scott, “I go to all the effort to have you steal my suit and then Hope has you arrested.”

In other words, Scott spent over half the movie on the run from the police for taking an item that Hank Pym wanted him to have and, on acquiring, Hank told Scott to keep it. And, Hank Pym could cleared everything up with one phone call to the police saying, “I gave him the item he took from my house.”

And the second time he broke in, when Hope called the police, was not burglary because he had no intent to commit a felony. He may be guilty of other offenses, such as trespass, but he wouldn’t be guilty of burglary.

Sidenote: Can Maggie withhold visitation because Scott is behind on child support?

The catalyst for the entire burglary is the idea that Maggie won’t let him see his daughter, Cassie, until Scott catches up on child support. But child support and parent time/visitation are independent obligations. Parent time is not contingent on whether child support is paid. And child support cannot be withheld just because someone isn’t receiving parent time/visitation. And Paxton can’t arrest him for being behind on child support without a court’s approval. So….

Bizarro Civil Rights Violations on Supergirl

By

Josh Gilliland

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February 3, 2016

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Agent Alex Danvers on Supergirl decided to go big in violating the United States Constitution in the episode “Bizarro.” In the episode, Maxwell Lord has taken comatose women and performed medical experiments upon them to create a “Bizarro” Supergirl clone. Lord knows Kara is Supergirl and that she is Alex’s sister.

Danvers in rightly upset that Maxwell Lord should be arrested for possibly kidnapping of comatose women; unlawful medical experiments in violation of the Nuremberg Code of Ethics in Medical Research and Declaration of Helsinki to prohibit unethical experiments on living human beings, which is codified as law in California pursuant to Cal Health & Saf Code § 24171; and terrorism in using Bizarro Supergirl as his agent in carrying out domestic terrorism. There is no shortage of probable cause for the FBI or local law enforcement to arrest Maxwell Lord.

Problem: the DEO does not have jurisdiction to conduct law enforcement, only protect the United States from alien threats. Moreover, the Federal agency is secret, so the FBI is not even aware of the DEO’s existence.

Alex Danvers took armed DEO Agents to Maxwell Lord’s office and arrested him without stating the charges against him or reading him his Miranda rights. Lord was then taken to the DEO and placed in a holding cell.

Maxwell Lord was deprived of his Fourth Amendment rights by arresting him without stating the charges against him; violated his Fifth and Sixth Amendment Rights to counsel; denied him the writ of habeas corpus; and a host of other issues from false imprisonment, malicious prosecution, false arrest, unlawful arrest, and possibly cruel and unusual punishment (like where is the bathroom in his cell).

There is no exception to the United States Constitution for someone’s sister being threatened. Max’s well-paid lawyers could sue the United States government for his civil rights violations AND Alex Danvers under a 1983 action.

Here is how Alex is in a boatload of trouble:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.

42 USCS § 1983 (Emphasis added).

Alex Danvers knew the DEO lacked any jurisdiction to arrest Maxwell Lord, yet arrested him anyway under the color of her authority as a DEO Agent. This cannot stand. Lord could sue her personally, as there is nothing to give her any immunity as acting for conducting her unlawful arrest.

Let’s hope Alex knows a good lawyer for playing Star Chamber with Maxwell Lord.

I Get Confused Around Books on the 4th Amendment

By

Josh Gilliland

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January 30, 2016

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Agent Carter is perhaps the best Marvel show when it comes to the Fourth Amendment. In the episode “Better Angels,” Peggy covertly enters the private all-male Arena Club, thanks to Howard Stark and his all-female “production assistants” causing a diversion. Our hero snuck around, found a room hidden behind a secret entrance, and attempted to place a wiretap in the room. When caught in the hallway, she quickly offered a ditzy “I get confused around books,” to explain why she was “lost.”

There was giant problem with Peggy Carter’s failed attempt at wiretapping the Arena Club: it grossly violated the Fourth Amendment. However, here is the golden takeaway: the writers KNEW it! New York SSR Chief Jack Thompson verbally complained to Peggy that her actions lacked probable cause and a search warrant.

Gold Star Agent Carter writers for giving a shout out to the US Constitution.

Why does the SSR need a search warrant based on probable cause to search the Arena Club? Because not securing a warrant can end in the evidence being suppressed. For example, in 1922 a police officer entered a residence search for opium under a void search warrant. The officer found a loaded revolver without a permit and arrested the gun owner. The Court held that a “motion for an order directing the return of the revolver and the dismissal of the indictment should be granted, as there was no authority for such seizure, no crime having been committed in the presence of the officer and he having no probable cause for believing that the revolver was in the defendant’s possession; that the officer had no lawful right to search the defendant’s residence and seize the revolver without a search warrant.” People v. Jakira (Ct.Gen.Sess. 1922) 118 Misc. 303, 305.

Cases with warrantless searches of private property usually end with motions to suppress. However, there are exceptions. For example, state Alcoholic Beverage Control agencies can perform warrantless administrative searches of liquor permit-holders’ premises are legal if they are establishing an administrative violation if they are limited in time, place, and manner. AL Post 0557 v. Liquor Control Comm’n (Ct.App. Sep. 24, 1998, CASE NO. 97 JE 2) 1998 Ohio App. LEXIS 4597, at *8, citing New York v. Burger (1987), 482 U.S. 691, 702-03, 96 L. Ed. 2d 601, 107 S. Ct. 2636.

The SSR could not with a straight face perform a liquor license check on the Arena Club, as it would be purely pretextual and grossly exceed the SSR’s authority, not to mention infringing on the state and local jurisdiction.

There are cases with law enforcement legally entering a club and seeing drugs in plain view that do not violate the Constitution. However, those cases are free from law enforcement entering a club by force or fraud. Commonwealth v. Black (1989) 520 Pa. 115, 117-118. In Peggy’s case, using Howard Stark as a diversion bordered on force with the production assistants barging into the Arena Club, and definitely was fraud. Moreover, we know no book has ever confused Peggy Carter.

There is no question Agent Carter did violate the Fourth Amendment in “Better Angels.” Worse yet, Jack Thompson recognizing the headline about the Senator’s resignation could be “fruit of the poisonous tree” and suppressed in trial. However, there is a strong possibility evidence of the conspiracy could be fall under the “inevitable discovery” as the season progresses.

The Dark Side Made Me Do It

By

Josh Gilliland

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January 28, 2016

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Could Anakin Skywalker argue the insanity defense for the decades he spent as an agent of evil? Could Anakin claim he was legally insane while following the Dark Side, thus not guilty for crimes ranging from murdering Younglings to blowing up Alderaan?

Anakin Skywalker could not Chewbacca Defense himself out of the billions of people he helped kill. A trial of Darth Vader would have a body count near impossible to determine, given it would include every act of evil from cutting off Mace Windu’s arm (and the Emperor killing the Jedi Master); to butchering Tusken Raiders between Episodes IV and V on Tatooine (See Marvel’s Star Wars Darth Vader comic); murdering Captain Raymus Antilles with his bare hands; ordering the deaths of the crew of the Tentive IV, Force killing Captain Lorth Needa and Admiral Kendal Ozzel when court martials were in order; and many other acts done in the name of “The Doctrine of Fear.”

Darth Vader would not be absolved of criminal responsibility just because Govenor Tarkin gave the order to destroy Alderaan. The “I was just there” or “I was just following orders” did not work at Nuremberg war crimes trials and would not be a defense for blowing up a planet. Vader was an active participant in the Empire’s plans for galactic domination, thus would be viewed as being part of the “inner circle” for the crimes of the Empire.

The Insanity Defense is an affirmative defense where Anakin would need to prove by clear and convincing evidence that “as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts.” 18 USCS § 17.

Emperor Palpatine spent decades manipulating Anakin Skywalker’s ultimate fall to the Dark Side. These acts included preying on Anakin’s fears of his wife dying and a promise that Palpatine could save Padme from death. All of Anakin’s actions do not appear to be because of a mental disease, but being gullible. Anakin was promised that he could save Padme, which was the reason Anakin Skywalker marched on the Jedi Temple to murder children.

Every death Anakin committed as Darth Vader was a choice. It was not done because the “Dark Side” made him do it, but because he decided to kill others in the name of “Peace, Freedom, and Justice.” While there is no question Anakin was manipulated into becoming Darth Vader, it was a choice Anakin made for himself. Just as it was a choice Darth Vader made to save Luke Skywalker and throw Emperor Palpatine down the Death Star’s reactor shaft in Return of the Jedi.

As much as Anakin could whine that it was Emperor Palpatine’s undue influence that made him turn to the Dark Side, Anakin Skywalker could not prove by clear and convincing evidence he was legally insane during the decades he murdered those in his path after a failed attempt to save his wife Padme.

Expert Witness Reports for the Trial of James Buchanan Barnes

By

Josh Gilliland

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January 21, 2016

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

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

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

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

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

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

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

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

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

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

Dr. Janina Scarlet’s Expert Report for the Defense

Defense_Scarlet_Expert_Report

Dr. Andrea Letamendi Expert Report for the Prosecution

Prosecution_Expert_Report

Nothing Frosty About Agent Carter Season 2

By

Josh Gilliland

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January 20, 2016

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

The SSR Knows How to Follow the Constitution

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

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

USCS Const. Amend. 4.

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

National Security Act of 1947

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

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

Senate Race of Calvin Chadwick

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

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

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

A Crime Against Donuts

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

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