Our coverage of the recently re-launched Daredevil continues with the second issue. There are some great legal topics here, including criminal procedure and legal ethics.
I. Attack First, Arrest Second?
As teased at the end of the first issue, Captain America has shown up to arrest Daredevil for crimes he committed while possessed by a demon (which is a very good defense, if you can prove it). There are some potential issues with the way Captain America handles the arrest, though.
First, Cap starts things off by throwing his shield at Daredevil. He explains that this was to make sure it really was Daredevil, though that’s a troublesome explanation. If it hadn’t been Daredevil, presumably he would have smacked some innocent cosplayer upside the head, likely causing serious or even deadly injury. He’s lucky that it was, in fact, Daredevil, or else he’d be opening himself (and the Avengers / the US government) up to a serious lawsuit.
Second, Cap doesn’t read Daredevil his Miranda rights. This is not a huge problem, but it does mean that it may be difficult to admit as evidence anything Daredevil says while he argues that he should be let go. We can forgive this one, though, since nothing serious was admitted and it would probably be a boring waste of panels.
Notably, Daredevil breaks a window and trespasses into a warehouse while resisting arrest. These are crimes in and of themselves, and his past possession wouldn’t be a defense here. An innocent person has no right to resist a lawful arrest, even if they are ultimately acquitted. See, e.g., People v. Thomas, 657 N.Y.S.2d 184 (N.Y. App. Div. 1997). He should really have tried talking things out first and only running as a last resort.
II. Romantic Entanglements and Legal Ethics
Meanwhile, Kirstin McDuffie, a new assistant DA, comes to Nelson & Murdock’s office, where it’s revealed that she and Foggy have a romantic relationship. Moreover, she passes him some useful evidence relevant to the Jobrani case (the police brutality case from issue #1). She says her boss wouldn’t look favorably on this, and it’s implied that she’s doing this because of her relationship with Foggy.
First off, we should note that the New York City DA’s office handles criminal cases, not civil ones such as a police brutality suit. That is the responsibility of the New York City Law Department. However, it’s possible the DA’s office would have evidence of interest from a criminal investigation of the officers, so this detail isn’t necessarily a problem. But if this was evidence the DA’s office planned to use against the officers, then it would come out in court anyway, so we’re not sure why all the secrecy.
However, if it were evidence from a criminal investigation of Jobrani himself, then it would likely be covered by the prosecutor’s duty to disclose information showing a defendant’s innocence (i.e. New York Rule of Professional Conduct 3.8).
But let’s suppose that the DA has no duty to disclose the evidence and that it wouldn’t come out in court (e.g. because the DA isn’t going to bring charges against the police, perhaps because of corruption). Did McDuffie just do something unethical? We think so. New York Rule 1.6 states that “confidential information” includes information that a client requests be kept confidential and information that would be embarrassing or detrimental to a client if disclosed. Information showing that the city is liable in a police brutality suit would likely fit.
For his part, Foggy is likely free to use the information. In New York, attorneys that receive confidential information inadvertently are restricted in whether they can use it, but information given voluntarily is probably fair game. However, Foggy does have a duty to report McDuffie’s ethical lapse, which would probably make for a pretty awkward second date.
III. Legal Ethics, Again
Daredevil speaks to the lawyers that Jobrani tried to hire. Each of them refused to take his case after receiving threatening phone calls. The problem is that he does this as Daredevil. If he’d simply gone as Matt Murdock, Jobrani’s attorney, then Jobrani could have easily approved of the revelation of confidential information (e.g. how he planned to spend the money if he won). But the lawyers were wrong to disclose anything to Daredevil, and Daredevil was wrong to encourage them to break the ethical rules. We don’t actually understand why he did this bit as Daredevil rather than Murdock, since Murdock was tipped off about the other attorneys, not Daredevil.
Despite the occasional legal error, the Daredevil relaunch continues to make for good reading, so we suggest picking up a copy of the first couple of issues if you haven’t already.