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.”
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!