Monthly Archives: June 2011

Green Lantern

So there’s this Green Lantern movie out. Reviews have… not been kind. There may actually be some kind of dogpile effect going on here, i.e. Green Lantern being the movie that it’s awesome to hate on. I mean, sure, it’s bad, but it’s no Rise of the Silver Surfer, which inexplicably got better reviews. Green Lantern’s CGI was admittedly pretty dumb though. Hard to argue with that.

Anyway, what about the legal aspects? Well, there are a couple. Oddly enough, most of them don’t involve much in the way of spoilers this time around. Still, we’ll keep the actual review inside, just in case. Continue reading

Mailbag for June 27, 2011

Today’s mailbag is a grab bag of questions from astute reader Jessica.  We have questions about rogue superheroes, more on the Negative Zone and the Eighth Amendment, and personal jurisdiction and The Dark Knight.  As always, if you have questions or post suggestions, please send them to james@lawandthemultiverse.com and ryan@lawandthemultiverse.com or leave them in the comments.

I. Rogue Superheroes and RICO

For the first question, Jessica asks “[A]re the X-Men or the Avengers complicit or in any way culpable if [Wolverine kills someone or uses excessive force] while out with a team, given that they know he does this?”

This is a great question and one we’ve been thinking about for a while.  We’ve talked about how RICO statutes could be used against supervillain organizations but we haven’t considered how the laws might apply to a superhero organization with rogue members.

First, a brief summary of RICO (Racketeer Influenced and Corrupt Organizations) laws.   The original RICO law is the federal version, 18 USC 1961-1968, although many states have passed their own similar laws.  The general pattern of the law is that a person who is a member of an organization that has committed any two of a list of 35 crimes within a 10 year period can be charged with racketeering, which is a serious felony.  To be charged with racketeering the member must have done at least one of the following (paraphrased from 18 USC 1962):

  • have invested income derived from racketeering activity in an organization engaged in or affecting interstate or foreign commerce
  • acquired or maintained an interest or control in such an organization through a pattern of racketeering activity
  • conducted or participated in the affairs of such an organization, directly or indirectly, through a pattern of racketeering activity
  • or conspired to do any of the first three

It’s important to note the phrases “derived from racketeering activity” and “through a pattern of racketeering activity.”  Merely investing income derived from an organization doesn’t count: it has to have come from racketeering activity (e.g. counterfeiting, theft, drug trafficking, securities fraud).  Similarly, merely controlling or participating in an organization doesn’t count: the control or participation has to be accomplished through a pattern of racketeering activity (e.g. extortion, bribery, murder).  These requirements prevent innocent members of an organization from getting swept up in a RICO action.

The practical upshot of this is that even if a member of an organization (Wolverine, for example) commits the required crimes (e.g. murder), the other X-Men may not be criminally liable under RICO if their own activities (investment, control, or participation) were unrelated to racketeering activity.  It’s not like Professor X routinely asks Wolverine to murder people or the other X-Men routinely assist Wolverine in committing murder.  Perhaps the biggest issue is if any of Wolverine’s unlawful activities brought money into the organization.  X-Men who invested those ill-gotten gains could find themselves facing charges (and a civil suit) under RICO.

Basically, RICO doesn’t work very well if applied to a fundamentally law-abiding organization, and this is by design.

II.  The Negative Zone and the Eighth Amendment Revisited

The second question is about the emotional effects of the Negative Zone: “Would [the effects] be a factor in determining the conditions for the purposes of Eighth Amendment compliance?”  In other words, does imprisoning someone in the Negative Zone violate the Eighth Amendment because of the Zone’s effects on people’s emotions and mental health?

In short, we think the answer is no.  The fact is that even regular prisons are seriously depressing, so it’s already going to be difficult to prove that a prison in the NZ is worse enough to be considered cruel or unusual punishment.  As the Supreme Court has said:

“The unnecessary and wanton infliction of pain . . . constitutes cruel and unusual punishment forbidden by the Eighth Amendment. We have said that among unnecessary and wanton inflictions of pain are those that are totally without penological justification. In making this determination in the context of prison conditions, we must ascertain whether the officials involved acted with deliberate indifference to the inmates’ health or safety.”  Hope v. Pelzer, 536 U.S. 730, 737-38 (2002) (holding that handcuffing an inmate to a hitching post outdoors for several hours with inadequate water and restroom breaks violated the Eighth Amendment) (quotations and citations omitted).

Furthermore, “a prison official’s act or omission must result in the denial of the minimal civilized measure of life’s necessities.”  Farmer v. Brennan, 511 U.S. 825, 834 (1994).  Prison officials “must provide humane conditions of confinement; prison officials must ensure that inmates receive adequate food, clothing, shelter, and medical care, and must take reasonable measures to guarantee the safety of the inmates.”  Id. at 833.

In the Negative Zone case the emotional effects are not really part of the punishment but just a side effect of the place.  Because the Negative Zone is the only suitable prison for many supervillains, the side effect is arguably necessary.  Further, the side effects are not controlled or intentionally inflicted by anyone.  Thus, the effects are not inflicted wantonly (i.e. deliberately and unprovoked).  A charge of deliberate indifference could probably be eliminated by offering the inmates adequate living conditions and mental health care to offset the effects of the Negative Zone.  Finally, it would be difficult to argue that imprisonment in the Negative Zone denies the minimum civilized measure of life’s necessities.  ”The Constitution does not mandate comfortable prisons,” as the Farmer court noted, only humane ones, and the Negative Zone is probably not bad enough to run afoul of the Eighth Amendment under the circumstances.

III. The Dark Knight and Forcible Personal Jurisdiction

The last question is about The Dark Knight (spoilers if you haven’t seen the movie yet, which you really should).

“In the Dark Knight, a Chinese national commits crimes on American soil, or at least against American citizens (even if they were all money-related crimes), and then returns to China knowing he won’t be extradited.  Batman follows him, kidnaps him, and dumps him back in America in police custody.  What are the basic legal repercussions of this, given Batman’s pseudo-status with the police?  What if it had been a completely free agent instead of Batman?”

As it turns out, the Chinese national is out of luck, assuming the prosecutor wants to file charges against him.  The Supreme Court has consistently held that “the power of a court to try a person for crime is not impaired by the fact that he had been brought within the court’s jurisdiction by reason of a forcible abduction.”  Frisbie v. Collins, 342 U.S. 519, 522 (1952).  This is true even if the abductors were government agents (in the Frisbie case the defendant Collins was allegedly abducted by police officers and taken to another state to be tried).  This rule, known as the Ker-Frisbie doctrine, has been upheld quite recently at the circuit level.  See, e.g., United States v. Arbane, 446 F.3d 1223 (11th Cir. 2006).

However, the abductor may still be liable under the Federal Kidnapping Act, 18 USC 1201.  And if the abductor were a state actor (or at least seen to be one politically), then China would likely take a very dim view of it, to say the least.

That’s all for today’s mailbag.  Keep your questions coming in!

Law and the Multiverse CLE

Thanks to everyone who signed up for the Law and the Multiverse CLE courses, and thanks again to Thomson West for the opportunity to present them.  The Ethics CLE course we presented today had over 120 attorneys tuned in (“off-the-charts,” said our Thomson West director)!  We look forward to doing more CLE courses in the future, so if there are any topics that you’d like to hear about, please let us know.

Manhunter, Volume 4 Part 1

This is the first part of our fourth post in our series on the Marc Andreyko run of Manhunter (prior posts onetwo, and three).  This volume has quite a few more legal issues than the last one, including conflicts of interest, fee arrangements, grand jury procedure, multiple evidentiary issues, the allocation of authority between the lawyer and the client, and lawyers’ media rights.  We’ll talk about the first two of those issues in this post.  The rest will have to wait for future entries in this series.  As always, spoilers follow.

I. Conflicts of Interest

In this volume we see the conclusion of the trial of Dr. Psycho (short version: he flips out and tries to kill everyone before the verdict is read; Kate Spencer / Manhunter stops him; it turns out he was found not guilty anyway).  Later, Spencer represents Wonder Woman, who has been accused of murdering Maxwell Lord.  As a reporter in the comic puts it: “How do you rep heroes and villains?”  If the report knew Spencer’s identity as Manhunter, he might also have asked “How do you rep the same villains that you fight as a superhero?”

ABA Model Rule 1.7 describes conflicts of interest between current clients.  As a criminal defense lawyer, Spencer will rarely run afoul of a direct conflict of interest, since her clients are never suing each other.  However, she may run afoul of a ‘material limitation’ in her ability to effectively represent her clients.  From the Rule:

[A] lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if … there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

As you can see, the conflict can exist not only between clients but between a client and anyone, including the lawyer.  The comments to the Rule further explain that “a conflict of interest exists if there is a significant risk that a lawyer’s ability to consider, recommend or carry out an appropriate course of action for the client will be materially limited as a result of the lawyer’s other responsibilities or interests.”

Spencer is written as a highly competent lawyer able to separate her identities and responsibilities as a lawyer and a superhero.  But the ethical rule doesn’t require an actual conflict; a significant risk is sufficient.  Under that standard, Kate really should seek to fix the conflict.  And as it turns out, many conflicts can be waived.  As the Rule explains:

[A] lawyer may represent a client if:

(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;

(2) the representation is not prohibited by law;

(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and

(4) each affected client gives informed consent, confirmed in writing.

So how does this apply to Spencer and her motley mix of clients?

A. Conflicts Between Wonder Woman and Villain Clients, Current and Former

In this case, Wonder Woman appears to give something like informed consent, which we can presume was confirmed in writing.  Certainly Spencer and Wonder Woman discuss the various kinds of clients that Spencer represents, and Wonder Woman praises Spencer’s objectivity.  We don’t know if Spencer has any other clients at the moment, but if any are the type that routinely fight superheroes (especially if they fight Wonder Woman specifically), Spencer will have to seek their consent as well.

But what of Spencer’s other clients, like Dr. Psycho?  Well, after he attacked her we can presume that he is a former rather than a current client, but attorneys still owe many duties to their former clients, and Model Rule 1.9 covers conflicts with former clients.  Per the Rule, most conflicts with former clients can be cured by informed, written consent, but an attorney generally can’t reveal confidential information or use it to disadvantage a former client.  The problem is that a client like Dr. Psycho may very well refuse to give that consent, even if only out of spite.

Here, though, Spencer doesn’t need Psycho’s consent, since she is representing Wonder Woman in an unrelated matter that will not require using anything she learned in confidence from Psycho.

B. Conflicts Between Spencer-as-Manhunter and Villain Clients

It’s all well and good that Spencer didn’t need Psycho’s consent to represent Wonder Woman, but what about representing Psycho in the first place?  Was there not a significant risk that Spencer’s secret identity as Manhunter could materially limit her ability to zealously advocate for a supervillain like Dr. Psycho?  Part of the problem here is that Spencer’s secret identity is, well, secret.  It would be impossible for her to get Psycho’s informed consent without informing him of her identity.  (NB: This wasn’t a problem with Wonder Woman since WW had deduced Spencer’s identity already.  It probably wouldn’t be a problem anyway in that case.).  If this seems like an insurmountable problem, that’s because it is.  If Spencer wants to keep her identity secret yet still represent supervillains, she has no choice but to break the ethical rules.

II. The Meaning of Pro Bono and Client Gifts

Because Themyscira’s United States assets were frozen after Maxwell Lord was killed, Spencer offers to take the case pro bono (short for pro bono publico: for the public good)—except that she also asks Wonder Woman to train her.  Is this a problem?  Doesn’t pro bono mean “free of charge” as well?

Actually, as ABA Model Rule 6.1 explains, most pro bono work can and should be “without fee or expectation of fee,” but it can also be “delivery of legal services at a substantially reduced fee to persons of limited means.”  Under the circumstances, Wonder Woman is a person of limited means.  The question is whether a one-on-one training session with an A-List superhero is really a substantially reduced fee.  That’s hard to say either way, but in the end it’s a moot point.  As the comments to the rule explain, “The responsibility set forth in this Rule is not intended to be enforced through disciplinary process,” so no one is going to formally chastise Spencer if she claims this as pro bono work.

But what if Spencer really is representing Wonder Woman for free.  Taking a close look at the dialogue, it’s arguable that Spencer was soliciting a gift from Wonder Woman.  Rule 1.8(c) flatly forbids attorneys from soliciting substantial gifts from their clients unless the client is a relative.  It would behoove Spencer to make it clear (preferably in writing, per Rule 1.5) that the training was, in fact, the fee for her services and not a gift.

III. Conclusion

There are a ton of legal issues in this volume left to discuss, so stay tuned!

Super 8

Okay, so it’s not exactly a comic book movie, but Super 8 does come from director J.J. Abrams, and this, like most of his other work, is still in the basic genre ballpark, so what the hell.

Yes, it’s a good movie. But you can read other reviews for that stuff. Spoilers inside.
Continue reading

Law and the Multiverse CLE Reminder

Just a reminder for the attorneys in the audience:  Our online CLE courses presented by Thomson West are fast approaching.  The June 21st program is an overview of some torts concepts illustrated by comic book situations, and the June 27th program is about superhero attorneys and legal ethics.  Be sure to use promotional code HEROES2011 for a 25% discount!

Mailbag for June 17, 2011

In today’s mailbag we have a follow-up question about the legal ramifications of psychic powers.  We’ve discussed some of these issues already, including hearsay, Fourth, and Fifth Amendment issuesliability for and the unintended consequences of causing amnesia; and more recently liability for causing others to commit crimes.  Astute reader Tim had three questions about some areas that we haven’t addressed yet, or at least not fully.  As always, if you have questions or post suggestions, please send them to james@lawandthemultiverse.com and ryan@lawandthemultiverse.com or leave them in the comments.

I. Surface Thoughts

Tim first asks “Is picking up the ordinary surface thoughts of another person a form of illegal intrusion?”  It’s important to emphasize that we’re talking about a private actor here.  A government psychic would generally need a warrant in order to read even someone’s surface thoughts (i.e. what they are thinking of right then) because if there is anywhere a person has a reasonable expectation of privacy it’s their own thoughts.  But what about a private actor like Professor X?  If X-Men: First Class is anything to go by then he does it all the time to chat up women in bars.  Is he breaking the law or just slightly sketchy?

First, let’s define some terms.  Since by “surface thoughts” we mean what the person is thinking of at the moment, the psychic isn’t causing any changes in the subject’s brain or body by reading those thoughts.  In other words it’s non-invasive.  It’s more like a very precise long-distance EEG.  The best real-world comparisons might be eavesdropping, which is generally legal—if impolite—although the eavesdropper may be breaking the law in other ways, such as trespassing.

Taking our cue from eavesdropping we can turn to the law of privacy, which we’ve talked about before in a four part series.  The best fit seems to be intrusion, discussed in the first part of the series.

Intrusion can be summarized as follows: (1) an intentional intrusion, physical or otherwise, (2) upon the plaintiff’s solitude or seclusion or private affairs or concerns, (3) which would be highly offensive to a reasonable person.  Moreover, courts have held that the right to privacy includes psychological & emotional solitude and the intrusion can occur in a public place.  Seee.g., Phillips v. Smalley Maintenance Svcs, Inc., 435 So.2d 705, 711 (Ala. 1983) (holding “one’s emotional sanctum is certainly due the same expectations of privacy as one’s physical environment.” and “the ‘wrongful intrusion’ privacy violation can occur in a public place, when the matter intruded upon is of a sufficiently personal nature”).  Finally, most reasonable people would probably consider having their mind read to be a highly offensive intrusion, especially if the thoughts read were personal or private.

II. Deeper Thoughts and Memories

The second question was about deeper thoughts (i.e. actively plumbing the depths of the subject’s mind or forcing them to recall memories).  This is probably just a more intense form of intrusion, particularly in the case of forced recall (i.e. the subject is not just being passively scanned but rather actively experiencing the memories).  That begins to enter the next category.

III. Mind Control and Memory Alteration

Now we shift gears from mere intrusion to outright assault or battery.  Because of the way the brain works, anything a psychic does that actually affects the mind of the subject must necessarily affect the subject’s physical neurons.  That’s definitely the way it works in the DC universe, as well, as Doctor Mid-Nite testified in Manhunter vol. 3.

If the alteration is harmful or even merely offensive then that’s a battery in tort terms because battery only requires an intentional harmful or offensive contact, which does not have to be a literal touching of the defendant’s body to the plaintiff’s.  For example, many jurisdictions have held that intentionally blowing tobacco smoke at a person can be a battery.  See, e.g., Leichtman v. WLW Jacor Communications, Inc., 92 Ohio App.3d 232 (1994).  Even something as incorporeal as a laser is also capable of touching a person.  Adams v. Commonwealth, 534 S.E.2d 347 (Ct. App. Va. 2000) (Adams is a criminal assault and battery case but the principles are applicable to tortious battery).

And speaking of criminal assault and battery, as we discussed in the comments on the amnesia article, these kinds of psychic attacks may qualify.  In the comments we discussed Missouri law, but it is not unique.  In Virginia, for example, “battery is the actual infliction of corporal hurt on another (e.g., the least touching of another’s person), willfully or in anger, whether by the party’s own hand, or by some means set in motion by him.”  Adams, 534 S.E.2d at 350.  Affecting even a single neuron would seem to qualify as “the least touching of another’s person,” and a psychic attack is definitely “some means set in motion by [the psychic].”

These kinds of psychic attacks may also be grounds for a claim of intentional infliction of emotional distress, especially if the forced actions, forcibly recalled memories, or implanted memories are extreme or outrageous.

IV. Conclusion

Psychics should be careful of how they use their powers.  There are many possible defenses, including consent, necessity, and self-defense and defense of others.  But intruding into another person’s private thoughts or reaching out and touching their mind is not something to be undertaken lightly.

That’s all for this week!  Keep your questions coming in!

Manhunter, Volume 3

This is the third post in our series on the Marc Andreyko run of Manhunter (prior posts one and two).  Volume Three is quite a bit lighter on the overt legal issues, so this will be a short post for the sake of completeness.  In fact, there’s really only one issue of note.  Spoilers follow, as always.

I. Murder by Psychic Possession

At this point Kate has resigned as a federal prosecutor and now works as a criminal defense attorney.  Her client in this volume is Doctor Psycho, on trial for telepathically commanding several civilians to kill a gang of villains who wouldn’t follow his orders.  It’s not made clear, but Psycho is apparently on trial for murder.  We’ve previously considered whether someone subject to mind control would be responsible for any crimes they are ordered to commit (short answer: no), but this cases raises a different question: is the mind controller himself criminally liable for acts committed by people under his control?

For clarity, we’ll refer to three people here: the telepath, the intermediary (i.e. the person being controlled), and the victim (i.e. the ultimate victim of the crime).

The answer here is a probably yes, under one of two theories.  If the intermediary is indeed under the control of the telepath, then that person is simply an instrument used to commit the crime, no different from a tool in the hands of the telepath.

If, on the other hand, the intermediary was not so thoroughly controlled by the telepath as to absolve them of legal responsibility (e.g. they were still fundamentally in control of themselves), then the telepath becomes a conspirator.  Effectively the telepath suggested a crime, the intermediary agreed, and (in jurisdictions where this is required) at least one step was taken in furtherance of the conspiracy.  This opens the door to conspirator liability for the telepath.  He or she would be liable for the separate crime of conspiracy as well as all crimes committed in furtherance of it.

We should note one possible loophole, however: in many jurisdictions, particularly those that have adopted the Model Penal Code, “[a] person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or the omission to perform an act of which he is physically capable.”  MPC § 2.01(1) (emphasis added).  An “act” is defined as “bodily movement whether voluntary or involuntary.”  MPC § 1.13(2) (emphasis added).  So, literally speaking, a telepath who can control someone’s mind without voluntary bodily movement (which covers most telepaths) may not be criminally liable.

However, the MPC does not actually specify that the required bodily movement be the defendant’s.  One possible reading of § 2.01(1) would be “[a] person is not guilty of an offense unless his liability is based on [an action and its accompanying state of mind] which includes (a voluntary [bodily movement]) or (the omission to perform an act of which he is physically capable).”  Under that reading, a telepath would be guilty of any crimes involving voluntary bodily movements intended by the defendant but would only be guilty of a crime of omission if he or she was physically capable of the act himself or herself.  In other words, a telepath wouldn’t be liable for failing to command someone else to perform an act that the telepath wasn’t physically capable of.  But the telepath would be liable for causing someone else’s body to commit a crime.  This seems like a fair result to us.

II. Conclusion

Telepaths are probably guilty of crimes they command others to commit, even if it takes a little creative statutory interpretation to get there.  Stay tuned for the next post in this series: the next volume features Wonder Woman being charged with murder!

Marvel Civil War V: International and Interplanetary Law

We’re nearing the end of our series on Marvel’s Civil War event. This time we’re talking about the fact that the conflict spills outside of US territory and implicates aspects of international law even within US borders.

I. Extraterritorial Conflicts

A. Foreign Nationals

As in the real world, the United States in Earth-616 is watched fairly closely by other countries as something of a weather vane for world events. So when the federal government passed the SHRA, all eyes were keenly fixed on the US to see how that was going to play out, not only in the international superhuman community, but by foreign governments. Things get really interesting where the two overlap, such as with Dr. Doom and T’Challa.

For starters though, the writers seem largely cognizant of the fact that the SHRA’s effect outside of the US is pretty limited. When Ben Grimm realizes that he can’t support either side of the conflict in good conscience, he relocates to Paris under the correct assumption that it will be difficult for federal agents to make him do much of anything if he’s in France. A number of other characters discuss fleeing to Canada. But it should be noted that Grimm did register with the government before he moved, whereas a superhuman who did not could theoretically be in violation of the SHRA in the same way that a draft dodger might escape punishment but still be in violation of the law. So Grimm’s registration and subsequent self-imposed exile does not necessarily violate the law (unless participation in The Initiative is mandatory, which some stories suggest may be the case).

Beyond that, the writers raise the question of whether a superhuman temporary visitor (who wasn’t a head of state or otherwise qualified to diplomatic immunity) would be required to register. This is never resolved in-universe, but it would stand to reason that this would work in much the same way as similar laws interact with immigration status. In general, when the government requires someone to register, that duty only attaches when permanent residence (or employment of some kind) is established. So a vacationing or exchange student would probably not be required to register, but someone seeking refugee status, permanent residency (a “green card”) or citizenship (naturalization) would. Requiring temporary visitors to register would not only be an absolute hassle, but would probably piss off other nations by imposing arguably unnecessary and burdensome obligations on their citizens. Even given the anti-super fervor which swept the country, one can imagine Congress taking a measured approach here.

Finally, there is also the issue, mentioned above, that certain characters are both superhuman and highly placed in foreign governments. Victor Von Doom is the head of state of Latveria. T’Challa is the king of Wakanda. There’s also the Atlanteans, who in at least one case are diplomatic envoys (though their spies probably don’t count, as spies can be detained). All of these will be entitled to diplomatic immunity, and attempting to abrogate that—as War Machine does late in the series—would constitute an act of war which should probably have caused a far bigger international incident than it seems to have. Even more, a foreign head of state actively taking sides with an insurrection, as T’Challa does with the Anti-Registration forces, is just completely out of bounds. This would be on the same level as France assisting the American Colonies or Britain coming in on the side of the Confederacy in the American Civil War, i.e. it would immediately lead to a state of warfare between the US and the offending foreign power (NB: the Union threatened war if Britain recognized the Confederacy but Britain did not actually do so). The fact that T’Challa is a former Avenger is given far more weight to the resolution of this situation than seems appropriate, and why the US and Wakanda aren’t completely at each other’s throats is never adequately explored. Granted, it takes two to tango, and if T’Challa wants to let the thing slide, that’d help, but there’s no reason that US State Department would want to do that.

Then we come to Storm, aka Ororo Munroe, aka T’Challa’s wife and the reigning Queen of Wakanda, who happens to be a US citizen—in theory, anyway. It seems unlikely that she would be permitted to retain her citizenship after taking up her office in the Wakandan government, even though her official status is never worked out in any great detail. But as the Wakandan monarchy appears hereditary, it would seem that marrying T’Challa would invest her with at least some official political authority. So when federal troops attempt to arrest her when she returns to the US as part of their honeymoon political tour… it’s not entirely clear that 1) she is still subject to the SHRA given her questionable citizenship, or 2) why her status in the Wakandan government does not grant her diplomatic immunity. T’Challa certainly seems to take a dim view of the attempt.

Why the US should care about this is significantly less a question of law than practice. Ultimately, laws really are just customs that society has decided to enforce, but the fact that so few of us have any role in that process tends to make us forget this. But in international law, because there is no sovereign to enforce the laws, custom and practice are pretty important. So if the US is seen to be flouting international law by attempting to arrest foreign dignitaries… that’s going to cause a wide range of problems not only with the dignitaries in question but with just about every other country in the world. The State Department is going to have one hell of a time trying to explain to other countries why the government decided that any domestic political issue trumped long-established international law, and why it isn’t going to happen again.

B. Embassies

The other main international law issue here is that of embassies. Embassies are generally subject to a limited form of extraterritoriality under the Vienna Convention on Diplomatic Relations, of which the US is a member. Essentially, while still technically the sovereign territory of the host nation, embassies remain under the jurisdiction of the represented nation, and the host nation may not enter without permission. This is why so many intelligence operations are centered around embassies: the host nation cannot come and go as it pleases. So if simply setting foot in an embassy without permission is a big deal—and it is—how much more is completely leveling one, as happens during the final battle of the series? Again, Wakanda seems to basically shrug this off, as T’Challa decides not to make a big deal out of it, but it’s remarkable that no other countries would say anything. We’re talking about the destruction of a foreign embassy on US soil which the government does not seem to have been able to prevent. That’s not going to give the international community warm and fuzzy feelings, and it’s entirely possible that other governments could use this incident as a pretense to beef up security at their own embassies in the US without the State Department being able to object as much as they otherwise might.

II. Interplanetary Law

We talked about this one back in Mailbag XIII. US jurisdiction extends to spacecraft outside the Earth’s atmosphere which are operating under the US flag, but not really much beyond that. However, the Inhumans, who live in the Blue Area of the Moon would probably be treated mostly like a foreign country, despite their extraplanetary location. They certainly seem to talk as if they should be treated as a foreign country. Black Bolt has imposed what amounts to a universal ban on earthlings hanging around the moon, which seems to amount to a territorial claim. While the US might not be all that happy about this—The whole moon? Really?—there doesn’t seem to be all that much that they can do about it, nor ultimately all that much incentive to either. The Inhumans don’t exactly have representation at the UN or any other international bodies, don’t seem to spend all that much time dirtside, and the US doesn’t have any ongoing presence on the moon, even in Earth-616. So really, Inhuman/US relations seem analogous to any other nation with which the US does not have formal relations. The fact that it takes a spacecraft to get there seems of little import.

III. Conclusion

So the SHRA and Civil War stories do seem to have a lot to do with international law, though again, such issues are frequently matters of custom (and politics) as much as law. The issues related to foreign nationals are not very well worked out, and the way the stories are told seem to make some of the more obvious solutions to those issues problematic. The stories seem to take the destruction of an embassy pretty lightly. But as in other contexts, the fact that some of the people with whom the stories deal are located outside Earth’s atmosphere doesn’t make as much difference as it might seem at first.

The Trial of Captain America

The Trial of Captain America was a 5 issue Captain America story arc covering the trial of James Buchanan “Bucky” Barnes, who took over as Captain America following Steve Rogers’s apparent death.  There are a bunch of legal issues here—mostly handled pretty well—so let’s get right to it.  Spoilers ahoy.

I. The Charges

By way of background: In 1945 Bucky was found by the Russians after the plane he was in exploded, plunging him into the icy North Atlantic.  The Russians revive Bucky and take advantage of his amnesia to reprogram him as an assassin.  During his career as the Winter Soldier, Bucky kills numerous US citizens.  When word of this leaks out decades later, Bucky submits to a criminal trial in order to clear his name.

So, are these charges appropriate?  There’s no statute of limitations for murder, so when they occurred is unimportant.  But what about where?  No doubt some of the murders occurred “within the special maritime and territorial jurisdiction of the United States” as required by the federal murder statute, 18 USC 1111.  But what if Bucky murdered a US citizen abroad?  Could he still be charged in a US court for that?  As it turns out, maybe.  18 USC 2332 criminalizes, among other things, the murder of US nationals abroad, but it was only enacted in 1986.  Bucky could potentially dodge being charged for a few early crimes that way, but it only takes one successful murder charge to make for a serious prison sentence.

II. Legal Ethics

Steve Rogers asks a friend (and former girlfriend) of his, Bernie Rosenthal, to act as Bucky’s defense attorney.  That’s not the problem.  The problem is that Steve not only sits in on Bucky’s first meeting with Bernie but actively participates in discussion of trial strategy.  We don’t see them discuss anything too sensitive, but this is a great way to waive attorney-client privilege.  Only the client can waive the privilege, but the simplest way to do it is to let a non-privileged person (like Steve) in on the confidential information.  To protect against this, Bernie probably should have asked Steve to leave the room lest he be called to testify about their discussion.  At the very least she should have informed Bucky that letting Steve stay in the room would risk waiving the privilege.

As Kate Spencer did in Manhunter vol. 2, Bernie goes on a Larry King Live-esque talk show to argue her case in the court of public opinion.  Unlike in  Manhunter, this comic doesn’t show her saying anything particularly problematic.  In fact, the host says “many would argue [Bucky] has already been tried in the media”, to which Bernie replies “And that’s why I’m here, Barry.  For weeks we’ve had a 24 hour-a-day bashing of my client with no balance whatsoever.”  This could be seen as an invocation of ABA Model Rule 3.6(c):

a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity.

(A side note: Steve, Bernie, and Bucky discuss whether to put Bucky on the stand, with Bernie against it, Steve initially for it, and Bucky agreeing with Bernie.  While most issues of trial strategy are ultimately at the discretion of the attorney, whether or not a criminal defendant takes the stand is up to the defendant.  ABA Model Rule 1.2(a).  So while Bernie can (wisely) counsel Bucky not to take the stand, Bucky could have gone against that advise.  The same is true of the decision to waive the right to a jury trial, which Bucky does.)

III. Cameras in the Court Room

The judge in the case bars cameras from the courtroom in order to avoid a media circus.  This is a curious thing to mention because it’s a federal case, and cameras are forbidden in federal courts, outside of a very recent pilot program.  Still, a judge has pretty much complete control over the court room, and even if cameras were potentially allowed he could easily prohibit them instead.

IV. “Doctor-Patient Confidentiality”

Sin, daughter of the Red Skull, leaks a video of a interview from a psychiatric hospital in which she accuses Bucky of being the Red Skull’s willing accomplice (and not, as Bucky claimed, mind controlled).  It’s strongly hinted that Sin made up the accusations on the tape knowing that they would be used in the trial.  In any case, the prosecution submits the video as evidence.  While Steve and Bernie are discussing the tape (another ethically shaky move), Steve asks “is it even admissible?”  Bernie replies “I don’t know.  Leaking your own psych interviews to the press probably invalidates doctor-patient confidentiality.”  This is a pretty serious misstatement of the physician-patient privilege for two reasons.

First, doctor-patient confidentiality refers to a doctor’s ethical obligation to keep what a patient tells them confidential.  The physician-patient privilege is the evidentiary privilege that allows a patient to prevent a physician from testifying as to certain things in certain circumstances.

Second, yes, leaking the tape to the press would waive the privilege, but as the holder of the privilege Sin was always free to do so.  The privilege prevents no problems with regard to the tape’s admissibility as long as it is clear that Sin was responsible for the leak.

It’s also worth noting that the federal courts do not recognize the physician-patient privilege.  See, e.g., United States v. Bek, 493 F.3d 790, 801-02 (7th Cir. 2007) (“we can find no circuit authority in support of a physician-patient privilege … and we can find no reason to create one now”).  However, they do recognize the psychotherapist-patient privilege.  See Jaffee v. Redmond, 518 U.S. 1 (1996).  So depending on who Sin was talking to in the interview, a privilege might or might not have existed in the first place, at least as far as the federal courts are concerned.

However, all of this misses the real reason the tape is very likely inadmissible: it’s hearsay because the tapes are Sin’s out of court statements offered to prove the truth of what she’s saying (i.e. that Bucky was a willing accomplice of the Red Skull).  Further, none of the hearsay exemptions or exceptions apply.  Sin isn’t discussing the details of a conspiracy with Bucky that she was a part of while she was a part of it, so Federal Rule of Evidence 801(d)(2)(E) doesn’t apply.  Although it’s a quasi-medical interview these particular statements don’t seem like they were made “for purposes of medical diagnosis or treatment,” so 803(4) doesn’t apply.  Sin is unavailable to testify, but her testimony doesn’t meet any of the 804(b) exceptions.  The 807 / 804(b)(5) catchall exception could apply, but we find it extremely hard to believe that Sin’s interview has the necessary “equivalent circumstantial guarantees of trustworthiness.”  She is, after all, a delusional psychopath with a known vendetta against Captain America.  It’s hard to get less trustworthy.

There are more legal issues  in this storyline to talk about, so stay tuned for the thrilling conclusion!