Monthly Archives: July 2011

Manhunter, Volume 4 Part 2

Today we’re continuing our analysis of Mahunter vol. 4.  In Part 1 we discussed conflicts of interest, fee arrangements, and client gifts.  For Part 2 we have more legal ethics issues and a note about grand juries.  These are some of the same ethical issues we discussed during our recent legal ethics CLE program.  Spoilers abound.

I. Trial Decorum and Grand Juries

During Wonder Woman’s grand jury hearing, Kate Spencer objects to a statement made by the prosecutor.  After being admonished by the judge, Spencer uses a feigned apology to plant seeds of doubt in the minds of the members of the grand jury (“I apologize your honor.  It was just reflex.  I’d almost forgotten how different grand juries were from real ones…how low the burden of proof, how geared in favor of the prosecution they are…”).  After a remark from the prosecutor the judge threatens them both with contempt.  Spencer admits to Wonder Woman that the disruption was intentionally calculated to anger the judge, causing her to forget to tell the jury to disregard Spencer’s statement.

There are many problems with this scene.  First, the potential defendant and his or her attorney are not present at a grand jury hearing, except that the potential defendant could be called as a witness.  The comic book sort-of acknowledges this with a line by the judge saying that an exception was allowed for this unique case.  The problem with this explanation is that there isn’t a judge at a grand jury hearing, either.  Grand jury hearings are led by the district attorney, who acts as both legal advisor to the grand jury and as the prosecutor.

Federal Rule of Criminal Procedure 6(d) explicitly spells out who may attend a grand jury hearing: “The following persons may be present while the grand jury is in session: attorneys for the government, the witness being questioned, interpreters when needed, and a court reporter or an operator of a recording device.  No person other than the jurors, and any interpreter needed to assist a hearing-impaired or speech-impaired juror, may be present while the grand jury is deliberating or voting.”  There is no room for a judge to make an exception.  Heck, there’s no room for a judge at all.  Even the witnesses are only allowed in one at a time (hence “the witness being questioned”).

This may seem unfair, but remember that a grand jury is convened in order to indict someone; the adversarial process has not started yet.  Thus, there is only a potential defendant, who is no different from any other witness.  However, after an indictment has been returned the defendant may challenge the composition of the grand jury (e.g. on grounds of bias).  28 USC 1867.  But this is after the fact, not during the hearing.

Of course, Spencer’s claim that she’d “almost forgotten” how grand juries work is ridiculous.  Not only is it basic criminal procedure, Spencer was a federal prosecutor herself for some time before moving to defense and would have conducted many grand jury hearings.  So her claim is either a lie or an admission of incompetence.  That’s the kind of nonsense that judges do not suffer gladly.

Second, Spencer’s outburst was also an unethical intentional disruption of the hearing.  ABA Model Rule 3.5(d) states “A lawyer shall not … engage in conduct intended to disrupt a tribunal.”  (And in case you’re wondering, the comments to Model Rule 3.5(d) together with Rule 1.0(m) show that a grand jury hearing is a ‘tribunal’ for purposes of the rule, judge or no.)

(On a more minor point, the comic portrays the wrong number of grand jurors.  A federal grand jury “must have 16 to 23 members.”  Fed. R. Crim. P. 6(a)(1).  The comic shows a typical jury of 12.)

II. Allocation of Authority Between Lawyer and Client

Spencer discovers that Wonder Woman killed Maxwell Lord because Lord was psychically controlling Superman, making him believe that his friends and allies were actually villains.  In fact, Spencer obtains video evidence proving as much.  However, Wonder Woman forbids Spencer to use that evidence out of concern for Superman’s reputation as a force for good.  Spencer agrees to the constraint even though it will make her job much harder.

As it happens that’s exactly right.  ABA Model Rule 1.2(a) states that “a lawyer shall abide by a client’s decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued.”  Rule 1.4(a)(2) essentially reiterates the obligation to consult with the client: “A lawyer shall … reasonably consult with the client about the means by which the client’s objectives are to be accomplished.”  Furthermore, the comments to Rule 1.2(a) specify that “lawyers usually defer to the client regarding … concern for third persons who might be adversely affected.”

So here Spencer is definitely doing the right thing.  If for some reason she felt that she couldn’t represent Wonder Woman under those constrains the solution would be to withdraw as her attorney.

III. Media Rights

In order to work around Wonder Woman’s prohibition against using the video as evidence, Spencer decides to contact Superman, apparently on the assumption that if he agrees to testify then Wonder Woman will be okay with it.  Since Spencer doesn’t exactly have Superman’s home phone number she contacts Lois Lane and asks her to relay the message.  The plan works but “[Lois] almost made me sign over exclusive media rights to ‘my story’ in this case.”

Spencer was right not to sign any such deal.  ABA Model Rule 1.8(d) says: “Prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation.”  The policy here is that lawyers with media deals will feel tempted to sensationalize or play up the entertainment value of the case to the client’s detriment.

Strictly speaking, this Rule is about agreements between the lawyer and the client regarding the client’s media rights.  However, Spencer’s duty of confidentiality means that she would almost certainly need Wonder Woman’s permission in order to sign media rights over to Lois Lane.  The result is the same.

Further, this also raises issues of inappropriate trial publicity, at least if the story was published while the case was ongoing.

IV. Conclusion

Today was a mixed bag for Spencer.  She got some things right and some things wrong.  Unfortunately, the writers sort of painted themselves into a corner by framing the story around the grand jury hearing instead of a trial.  At that point they had little choice but to contrive a way to put Spencer and Wonder Woman in the court room.  We guess they didn’t want Wonder Woman to even be indicted, but that led to some compromises.  We say stick to trials.  They’re more dynamic, and most people have at least a general sense of how they work.

Transformers: Dark of the Moon

The Fourth of July weekend is a fitting time for the release of Michael Bay’s latest round of cinematic pyrotechnics, Transformers: Dark of the Moon. It’s better than the first two, though that’s not saying all that much. And like the first two, we’re not breaking any new legal ground here either. In fact, as seemingly befits a movie which is almost entirely derivative… there isn’t a whole lot to say that we haven’t covered already. But in any case, here’s a roundup. Continue reading

Law and the Multiverse Holiday Special – Fourth of July Edition

Today is the Fourth of July, or Independence Day in the US (our non-US readers will have to indulge us on this one).  Traditionally this is celebrated with fireworks, both amateur and professional.  Fireworks are regulated at the local, state, and federal levels, but today we’re interested in the federal regulations.  Specifically: if superpowers were fireworks, how might they be classified?

I. The Classification System

In the past the US used a system that divided explosives into three classes: A, B, and C.  Essentially, Class A included high explosives and bulk packages of low explosives.  Class B included professional fireworks.  Class C included common fireworks.  Most Class and A and B explosives required a Bureau of Alcohol Tobacco and Firearms license, whereas Class C explosives did not.

Now the US uses the United Nations explosives shipping classification system.  The BATF regulations generally refer to the UN numbers (e.g. UN0333 is fireworks class 1.1G) rather than the class, and the Department of Transportation regulations may refer to the class.  The US classifications and regulations are described in 27 CFR 555.11, 49 CFR 172.101 and 49 CFR 173.52.  For example, “consumer fireworks” are defined as

Any small firework device designed to produce visible effects by combustion and which must comply with the construction, chemical composition, and labeling regulations of the U.S. Consumer Product Safety Commission … . Some small devices designed to produce audible effects are included, such as whistling devices, ground devices containing 50 mg or less of explosive materials, and aerial devices containing 130 mg or less of explosive materials. Consumer fireworks are classified as fireworks UN0336, and UN0337 … at 49 CFR 172.101. This term does not include fused setpieces containing components which together exceed 50 mg of salute powder.

UN0336 and 0337 are classes 1.4G and 1.4S, respectively.

II. Superhero Fireworks

So supposing a superhero wanted to use his or her powers to put on a show, would they need a permit?  And if so, what kind?  (Note that we’re ignoring the fact that the definitions generally wouldn’t apply to people, e.g. a superhero is not a “small fireworks device”).  Here we’ll discuss Jubilee, Cannonballthe Human Torch, and the Green Arrow, who uses explosive devices for some of his arrows.

Although she no longer possesses this power, Jubilee’s iconic original power was the creation and control of “energy plasmoids,” which look a lot like fireworks.  The power level ranged from the purely visual to dangerous explosions.  As such, Jubilee’s power could fall anywhere from a sparkler (UN0337 / 1.4G) to a large display firework (UN0335 / 1.3G) or bulk salute (UN0333 / 1.1G).  The largest commercial fireworks contain about 1kg of flash powder, approximately equal to .6kg of TNT, which sounds about right for the upper limits of Jubilee’s power.  Thus, Jubilee might or might not need a license in order to use her powers for a fireworks show.

Cannonball’s controlled explosion power, by comparison, definitely starts out at the bulk salute level.  Curiously, there is no explicit upper end to the amount of explosive material that can be used in a display firework, and the explosives may function by conflagration (i.e. simple burning), deflagration (i.e. a subsonic low explosive), or detonation (i.e. a supersonic high explosive).  So despite the fact that Cannonball’s explosions are extremely powerful, they might still be classified as a display firework.

The Human Torch is a different case altogether because he does not cause any explosions but rather simply burns.  Technically this makes him a consumer firework: he produces an aerial visual effect by combustion but produces no explosions.  Thus, no license required.

Finally, the Green Arrow is unique in this group for using conventional explosive devices rather than superpowers.  Because of this he would follow the normal regulations: strapping a sparkler to an arrow wouldn’t require a license, but using a time-bomb arrow as a makeshift firework shell definitely would.

That’s it for today.  Have a happy (and safe!) Fourth of July!