Monthly Archives: May 2011

Thor, Part Two

We’ve written one post about the Thor movie already, but there are a couple of other legal issues to discuss.  As before, spoilers follow after the break.

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So Thor is out. And it’s pretty good. I mean, it’s no Dark Knight, or even Iron Man, but neither is it The Fantastic Four (which, let’s face it, just sucked).

But you aren’t here for a review of the movie as a movie. You’re here for a review of the movie as it pertains to the legal system! At first glance, one might wonder exactly how a movie about an Asgardian major deity might have anything whatsoever to do with the American legal system. You’d be surprised! Spoilers, as always, follow after the break.

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Daredevil: The Trial of the Century Part I

It’s taken us a while to get around to it, but we’re finally going to talk about Daredevil, aka Matt Murdoch, one of the most famous superhero lawyers.  This will be the first in a series of posts discussing the Trial of the Century storyline, which ran from Daredevil vol. 2 #38 – 40.  Be warned: there will be significant spoilers throughout this series.

We’d like to start by saying that this is one of the better written trial storylines we’ve encountered in the comics.  It’s not perfect, but we definitely want to give writer Brian Michael Bendis credit for getting the broad strokes as well as many of the details correct.  However, there are a few issues to address, starting with the charges against the defendant.  But first a quick synopsis of the facts:

A couple of gang members are interrupted by a police officer while robbing a pawn shop.  In the ensuing scuffle, the police officer’s gun is taken and he is shot.  Hector Ayala (aka the White Tiger) arrives and attempts to stop the criminals, but they overpower him.  When backup arrives, they find Ayala standing over the dead police officer holding a television.  Certainly, it looks bad for Ayala.  Matt Murdoch takes the case despite the fact that the media is hounding him after allegations surface that he is Daredevil.

I. The Charges — and a Lesson on Lesser Included Offenses

The charges against Ayala are never fully described, although Murdoch describes them as “the crimes he stands accused of,” so we assume there are multiple charges, presumably including some kind of attempted robbery.  What we know for sure is that the jury returns a guilty verdict for the charge of manslaughter in the first degree.  This is strange to say the least.  In New York, where the crime was committed and where the trial takes place, the most relevant definition of first degree manslaughter is this:

A person is guilty of manslaughter in the first degree when:
1. With intent to cause serious physical injury to another person, he causes the death of such person or of a third person. N.Y. Penal Law § 125.20.

However, because Ayala was accused of killing a police officer engaged in performing his official duties it would make more sense to charge him with aggravated first degree manslaughter:

A person is guilty of aggravated manslaughter in the first degree when:
1. with intent to cause serious physical injury to a police officer …, where such officer was in the course of performing his or her official duties and the defendant knew or reasonably should have known that such victim was a police officer…, he or she causes the death of such officer … . N.Y. Penal Law § 125.22

It’s possible that the prosecution intentionally declined to bring an aggravated first degree manslaughter charge, but that seems very strange in a highly visible case involving the death of a police officer allegedly at the hands of a superhero who is being defended by famous attorney Matt Murdoch, who is himself fending off allegations that he is Daredevil.  Indeed, it’s more likely the prosecution would have gone straight to first degree murder.  We’ll stick to manslaughter for our analysis, but bear in mind that a similar analysis would apply to an alternative charge of murder.

Now, it is entirely possible for the prosecutor to bring separate charges for first degree manslaughter and aggravated first degree manslaughter because the prosecution may charge the defendant in the alternative.  People v. Gallagher, 69 N.Y.2d 525, 528 (1987).

However, the doctrine of merger dictates that Ayala could not be guilty of both manslaughter charges simultaneously: the regular charge merges with the aggravated charge because regular manslaughter is a lesser included offense of aggravated manslaughter, i.e. “that it is an offense of lesser grade or degree and that in all circumstances, not only in those presented in the particular case, it is impossible to commit the greater crime without concomitantly, by the same conduct, committing the lesser offense.”  People v. Glover, 57 N.Y.2d 61, 63 (1982).  In this case the only difference between the two crimes is that in one the victim is “another person” and in the other it is a police officer.  Since a police officer count as “another person,” it is impossible to commit aggravated first degree manslaughter without committing regular first degree manslaughter at the same time.  The merger doctrine prevents ‘double-dipping’ multiple charges for the same criminal act.

The weird thing is that the prosecution offered the alternative charge at all.  It’s undisputed that the victim was a police officer performing his official duties.  The defense could try to argue that the defendant did not know and should not reasonably have known that the victim was a police officer, but the victim was killed with his own gun.  It’s pretty hard to take a cop’s gun from him and shoot him without, at some point, realizing that it’s a cop.  So we would expect the prosecution to go straight for the more serious charge.

Now, frequently a defendant will request that a lesser included charge be presented to the jury so that it has the option of finding the defendant guilty of the lesser included offense rather than the greater offense.  But such an instruction requires “a determination that there is a reasonable view of such evidence which would support a finding that, while the defendant did commit the lesser offense, he did not commit the greater.” Id.

As described above, though, we don’t think there’s a reasonable view of the evidence that would support that, and certainly that’s not part of Murdoch’s defense strategy.  So the alternative charge would have to come from the prosecution, weird as that would be.  But if that’s the case, then being found guilty of regular first degree manslaughter is actually a slight win for Ayala.  It’s far from the worst crime he could have been convicted of, given the prosecution’s allegations.

II. Cumulative Evidence, Expert Testimony, and Motions in Limine

Twice during the trial the prosecution and defense debate evidentiary issues.  First, after a police officer who arrived at the scene relates what he saw, Murdoch’s law partner Foggy Nelson states “Your Honor, if the defense stipulates that all seven officers witnessed the same events as Officer Snipes and came to the same conclusions from it…Will the prosecution spare the court the tediousness and move on with the trial?”  The prosecution declines the offer, apparently leading to a series of police officers being called to testify to essentially the same facts.

Second, when the defense calls Reed Richards as an expert witness the prosecution “strongly objects” on the basis that the witness “has had no direct contact with the accused.”  The judge reluctantly allows the witness over the prosecution’s continued objections.

In reality, both of these evidentiary issues would have been fought out via motions in limine rather than in full view of the jury.  More specifically, rather than politely asking the prosecution not to call the other witnesses, the defense would have made a motion to exclude their testimony as cumulative.  And rather than object to Richards as a witness in the middle of trial, the court would have conducted a Frye hearing to determine whether Richards’ testimony would be admissible as expert opinion on the psychological makeup of superheroes.

(Because New York has not adopted the Federal Rules of Evidence, it, along with a few other states, continues to use the older Frye standard for admissibility of expert testimony rather than the more common Daubert standard.)

These are fairly minor points, and we understand that the writers didn’t want to break up the action and the chronology by presenting pre-trial motions.  However, at a minimum the attorneys should have approached the bench or withdrawn to the judge’s chambers to discuss the issues outside of the jury’s hearing.  Besides, it’s a great excuse to use impressive lines like “Counsel, approach the bench” and “Counsel, in my chambers. Now.”

III. Conclusion

The writers did a good job with this storyline, but we think some of the details could have been tightened up without hurting the plot.  In fact, a little more attention to legal detail might even have improved it.  A charge of first degree murder is much more dramatic than first degree manslaughter, after all, and we’ve already discussed how the proper way to handle evidentiary issues can give rise to some nice lines. We’re not done with this storyline yet, though, so keep an eye out for more posts in this series!

Marvel Civil War II: Deadlines and Due Process

This is the second in our series on Marvel’s Civil War event. We started with some framing issues, namely that there are problems with the way the series treats the law in general. Now we’re going to look at some of the specifics about how the stories implement the law as a plot point.

I. The Deadline

For the first few months of the event, much of the drama centered on what would happen at the stroke of midnight when the Superhuman Registration Act (“SHRA”) went into effect. Civil War #2 actually shows a screen in what is probably Times Square announcing “Registration Act Becomes Law” at midnight on that day. The gist is that it seems that Congress passed the bill and the President signed it into law, and the text of the bill said that it was slated to go into effect at some point in the future. Is that really how laws work?

Sort of. Yes, it’s entirely possible for a law to incorporate a delay in its effectiveness. The 2010 health care reform law contains numerous provisions which will not go into effect for years, and even the ones that are currently operative did not generally become so the instant the bill was signed. There are dates, specified in the bill, when certain provisions go into effect. This is actually pretty common, as at the very least, Congress tends to like at least some lead time to permit the Library of Congress to update the United States Code before the new code sections are to be effective. Having bills become effective as soon as they’re signed can be useful, but where time is not of the essence, picking a date in the near future tends to make the logistics of the process run a bit more smoothly.

So yes, if Congress were to pass a version of the SHRA, there would be a deadline beyond which superhumans would be required to register, and something big would likely go down on that day. But the deadline for registration would probably not be the date the law became effective. Why? Because before the law becomes effective, there is no way for anyone to register. The law which creates the need for registration also creates the process for registration, so before the law is effective, a superhuman who wanted to register would have no way of doing so. This is actually inadvertently hinted at in the way registration is portrayed in the stories. We never see superhumans headed down what amounts to the superhuman DMV. Instead, they’re all approached, in person, either individually or in small groups, by agents of S.H.I.E.L.D., asking them to sign the paperwork. Where that paperwork came from is never really addressed—Who wrote it? When? If it was before the bill became law, under whose authority?—but it’s all a pretty ad hoc process. We’ll talk about the constitutional problems with this in a minute, but that aside, even if Congress were silly enough to pass a the SHRA, it’s highly doubtful that they’d require each and every superhuman to be served with papers personally. The DMV may suck, but it does basically work, and there’s no reason to think that Congress wouldn’t create an analogous agency (or empower an existing one) to take care of this.

Still, though the portrayal is rather inconsistent and not without its problems, with two relatively minor tweaks the writers could still create a situation where the country was holding its breath as the clock ticks towards midnight on Registration Day. First, the law would go into effect without much fanfare, and it would authorize a federal agency to promulgate the rules and develop the process whereby superhumans could register. The agency would probably have a fixed—and short!—amount of time to do this. Second, the law would specify another date after the agency deadline, probably 30, 60, or 90 days, by which all superhumans would be required to register. It would be that date, not the date the bill became law or first went into legal effect, which would be the focus of the drama. And it would be that date, not the date when Tony Stark shows up at your door with a bunch of papers for you to sign, beyond which an unregistered superhero would be in violation of the law. That’s just how these things work.

II. Due Process

The reason they work that was isn’t just logistical. There’s also a very good constitutional reason for having things work this way: The Fifth Amendment right to due process.

Due process is basically the constitutional doctrine that no one can be punished or have their legal rights adversely affected without there being some kind of procedure. For example, if the government wants to imprison someone for committing a crime, there must be a trial, the defendant must have the option of a jury trial, the defendant must have access to competent counsel, and the prosecution must prove its case beyond a reasonable doubt—among other things. Similarly, in the civil context, no one can have a judgment enforced against them unless they were properly served, i.e. notified of the lawsuit.

So if the SHRA were to work the way it seems to in the comics rather than in the way outlined above (which, you will note, still lets the story proceed largely intact), a superhuman arrested for failure to register would have a number of arguments that this violated his constitutional right to due process.

First, there’s the fact that the law requires superhumans to register by a certain date without actually giving them any opportunity to do so. There do not appear to be any logistical structures in place to permit registration before the stroke of midnight when the bill became law, so arresting people ten seconds later is just unfair. Any hero who wasn’t served with papers could plausibly argue that he’d love to register if only someone would tell him how.

Second, there’s the timing issue. Cars must be registered, but most states give you a week if not a full thirty days to register a car after you buy it. Why? Because the DMV isn’t always open, because people have jobs, and because there’s just no good reason to insist that it happen right away. So when the cape-killers come to knock down his door at five seconds past midnight, why can’t a hero just say, “Gentlemen, my wife is sleeping, my kids are sleeping, and until you so rudely awakened me, I was sleeping. Can this not wait until morning?” Really, there doesn’t seem to be any reason why not. Heck, why not just make the deadline noon instead of midnight? But even that wouldn’t really solve the problem. People, even superhumans, have lives, things to do, obligations, responsibilities, the whole nine yards. If the government’s going to come along and add another thing to that neverending list, the least it can do is give people a chance to work it into their schedule. Complete failure to do that would almost certainly constitute a due process violation. Again, even if this were done right, there’s still plenty of drama to be had here. It would only have taken a panel or two to show that a month had gone by since the act become law, and that any superhuman who was going to register had his chance to do so. On with the cape-killers and the fighting and the angst.

III. Conclusion

Ultimately, this issue is kind of a toss-up. The writers got it wrong, but they did so in the name of drama, and as it turns out, a few relatively minor tweaks to the way the law was conceived would have permitted most of that drama. But what’s disappointing is that if they had adopted those tweaks, the pro-reg side would have seemed a lot more reasonable. Luke Cage wouldn’t have been able to make his rather overwrought comparison to race lynchings in the 1960s if instead of Iron Man and a squad of cape-killers, he had gotten a registration packet in the mail and a month to think about it. If he defies the law then, he looks less like someone who just wants to get a good night’s sleep without having his home invaded by federal troops and more like someone who really is taking a principled but morally ambiguous stance. And when Stark does show up, he’d be able to take the position that Cage had plenty of opportunity to trundle on down to the local registration office (or file a lawsuit opposing the law!), that he’d had every chance to do this like a civilized adult, but was now choosing the hard way. As the event seems to have wanted to explore those issues, getting the law wrong leaves the story more than a bit lop-sided.