Monthly Archives: February 2012

Grimm: Game Ogre

It’s been a while since we’ve done a post on Grimm, and today we have a brief post about an interesting quirk of Oregon law brought up by episode 8, “Game Ogre.”

I. The Setup

The villain of the episode is, unsurprisingly, an ogre.  Nick’s partner Hank helped put him in prison 5 years before the episode, and after escaping from prison the ogre comes after Hank.  In the episode, Hank admits that he “misplaced” a faked security camera tape that might have established an alibi for the ogre.  Hank’s reasoning was that the ogre had a really good lawyer, and if only a single juror felt that the tape established reasonable doubt, then the ogre would have walked.

Interestingly, Oregon—where the show takes place—is the only state in the country for which that isn’t necessarily true.  The Oregon Constitution provides that “in the circuit court ten members of the jury may render a verdict of guilty or not guilty, save and except a verdict of guilty of first degree murder, which shall be found only by a unanimous verdict, and not otherwise.”  Ore. Const. art. I § 11.  Oregon has since replaced first degree murder with aggravated murder, but the unanimity requirement applies to aggravated murder.  See, e.g., State v. Sparks, 336 Or. 298 (2004) (en banc).  We’ll come back to aggravated murder in a moment; first a discussion of jury verdicts and the Constitution.

II. Unanimity and the Constitution

Federal statutory law requires a unanimous verdict in federal cases (Fed. R. Crim. Pro. 31).  However, this requirement is not necessarily rooted in the Constitution, and the states can permit convictions on less than unanimous verdicts.  Apodaca v. Oregon, 406 U.S. 404 (1972).  There was not a clear majority in Apodaca, so depending on which Justice you want to believe, the reason for this is either because the Sixth Amendment simply doesn’t require it or because that part of the Sixth Amendment isn’t incorporated by the 14th Amendment.

So just how much less than unanimous is okay?  The Supreme Court hasn’t drawn an exact line, but the Apodaca case upheld 11-1 and 10-2 convictions, though a later case held that 5-1 was impermissible.  Burch v. Louisiana, 441 U.S. 130 (1979).  Justice Blackmun, concurring in Apodaca, said that he’d be okay with 9-3 but not as far as 7-5.

So that’s the constitutional law aspect.  Now let’s turn to the facts of the case.

III. Aggravated Murder and Lesser Included Offenses

The show isn’t specific, but the ogre was probably charged with aggravated murder.  From the definition of aggravated murder in ORS § 163.095:

 “aggravated murder” means murder as defined in ORS 163.115 which is committed under, or accompanied by, any of the following circumstances:

(e) The homicide occurred in the course of or as a result of intentional maiming or torture of the victim.

In this case the ogre tortured his victim for two days, which would surely count.  So a guilty verdict would have to be unanimous, right?  Not necessarily, via the magic of lesser included offenses.  Basically, the concept of a lesser included offense recognizes that many crimes consist of “committing crime X, plus some other stuff.”  Thus, if someone commits the more serious crime, they’ve necessarily committed the lesser included offense of crime X.  A classic common law example is that robbery is larceny plus assault (i.e. stealing something by force or the threat of force).  So if someone commits a robbery, they’ve necessarily also committed both a larceny and an assault.

This has a few different practical effects.  For one, a defendant can’t be convicted of both an offense and a lesser included offense for the same criminal act.  So for example someone who forcibly steals a purse can’t be convicted of both robbery and larceny, since the larceny was part of the robbery.  Of course, if they forcibly steal a purse and then non-forcibly shoplift some jewelry, then that’s two separate acts and they could be convicted of both a robbery and a larceny.

Another practical effect of this doctrine is that a defendant can, however, be convicted of any lesser included offense of the crime charged.  Keeble v. United States, 412 U.S. 205 (1973).  In fact, in a capital murder case, the Constitution requires the jury to be given instructions for lesser included offenses like manslaughter.  Beck v. Alabama, 447 U.S. 625 (1980).

So, in the ogre’s case, the jury would have been instructed that they could find him guilty of aggravated murder, which requires a unanimous verdict, or they could find him guilty of a lesser included offense, which would require only 10 guilty votes, or they could acquit him.  So if one or two jurors believed the faked alibi tape, but the other 10 or 11 still thought the ogre was guilty of aggravated murder, the jury could still find him guilty of regular murder or manslaughter, the one or two votes to acquit notwithstanding.

In just about any other jurisdiction, the jurors who believe the alibi would vote to acquit and the result would be a hung jury.  Of course, if three or more jurors believed the alibi then all bets are off, even in Oregon.

IV. Conclusion

“Game Ogre” wasn’t the strongest Grimm episode, but more recent ones have been better.  We’ll definitely cover those in future posts, but we couldn’t resist the opportunity to make a post out of what is ordinarily a piece of legal trivia (although maybe it’s not so trivial to criminal defendants in Oregon!).

Breaking Bad: Better Call Saul!

In the eighth episode of season two of Breaking Bad, “Better Call Saul,” our… heroes?… learn that one of their own has been busted. It’s time to hire a lawyer. Said lawyer turns out to be Saul “Goodman” McGill. Apparently he does better business when clients think he’s Jewish. This episode is a real workout for legal ethics, so let’s get into it. Continue reading

Ultimate Comics: Spider-Man

The new run of Ultimate Comics: Spider-Man from Brian Michael Bendis is getting rave reviews.  There haven’t been a ton of overt legal issues, but a scene from the recent issue #6 caught my eye.  Spoilers ahead!

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Batman: Knightfall is a major Batman story arc from the early 1990s in which the Caped Crusader faces off against Bane, the villain who will reportedly be featured in the upcoming Dark Knight Rises. The series is available in a collection of recently reprinted trades: Knightfall, Knightquest, and KnightsEnd. The story opens in Batman # 491, when Bane and his accomplices break open Arkham Asylum. The inmates go on to cause general havoc for the next dozen-odd issues. In this post, we’re going to look at just how much of that Bane is going to be liable for. Continue reading

Dollhouse: Haunted

We’ve written generally about the TV series Dollhouse before, but this is our first look at the legal issues raised by a particular episode from season one.  The show was recent enough that we’ll give a spoiler warning.

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Preacher: The Trials of You-Know-Who

This will be our third post on Garth Ennis’s Preacher (one, two), the irreverent, humorous, disturbing comic from the 1990s. This one’s about a character Vertigo had to call “You-Know-Who” because DC apparently wouldn’t allow the word “arse” to appear on a cover. The character is somewhat of a tragi-comic figure. He grew up in an abusive household and attempted suicide shortly after Kurt Cobain killed himself, only to end up with severe facial deformities rather than dead. But he winds up in some rather interesting legal situations as the series goes on, and we’re going to take a look at those this time around. Continue reading

Sherlock: The Reichenbach Fall

Sherlock is the critically-acclaimed BBC adaptation of Arthur Conan Doyle’s classic Sherlock Holmes stories in a twenty-first-century setting. The latest episode, “The Reichenbach Fall,” is a re-telling of “The Final Problem,” in which Sherlock, battling with arch-nemesis Moriarty, plunges down the Reichenbach Falls, presumably to his death.  It is the final episode of the second season.

He didn’t die in the original story, of course (it isn’t a spoiler if it was published a century ago, people!), but the following will contain some pretty serious spoilers for “The Reichenbach Fall,” so you’ve been warned. Continue reading

Buffyverse Vampires and Criminal Liability

The inspiration for this post comes from an email from Will, who asked about vampires in Joss Whedon’s Buffy the Vampire Slayer and Angel.   Buffyverse vampires are a bit different from most mythological or fictional vampires.  For legal purposes, the biggest difference is that Buffyverse vampires retain their memories from mortal life but are possessed by a demon’s soul, so they tend to be evil.  This raises some interesting questions about vampires’ potential for criminal liability, especially for the character of Angel.

Note that I’m going to gloss over the issue of whether vampires are subject to the human justice system in the first place.  It’s arguable that, as non-humans, they lack legal rights.  From a legal perspective, the original human has died  because their cardiovascular functions have irreversibly ceased.  Cal. Health & Safety Code § 7180(a) (the California version of the Uniform Determination of Death Act).  Since they’re dead, they can’t be human.  That’s not very satisfying or interesting, though, so I’m going to ignore it.

I. Mental Capacity

Most vampires seem to be mentally competent, or at least as competent as they were in life.  Some of them aren’t very bright, but they aren’t anywhere near the level of mental incapacity required to be a defense under California law.  In California, the test for mental incapacity is the same as for insanity:  the accused must be incapable of understanding the nature of his or her act or distinguishing right from wrong. People v. Phillips, 83 Cal. App. 4th 170 (2d Dist. 2000).  Vampires seem mentally capable of understanding what they are doing, and they can distinguish right from wrong.  It’s pretty hard to revel in doing evil acts if you don’t understand that they’re morally wrong.

II. Insanity

For pretty much the same reason, it’s hard to argue that vampires are insane, at least under California’s M’Naghten test, which is defined by statute.  Cal. Penal Code § 25(b).  Under a different test, such as the irresistible impulse test, they might be found insane, but California does not recognize that test. People v. Severance, 138 Cal.App.4th 305, 324 (3d Dist. 2006).  The Severance case is actually surprisingly applicable: “The gist of defendant’s claim of insanity was that after he was hit on the head in January 2000, Satan took control of his mind and body and he did things he does not normally do—namely, rob two stores. In the words Flip Wilson playing Geraldine, “the Devil made him do it.” In essence, defendant’s claim of insanity was a claim he acted under an “irresistible impulse.” The irresistible impulse test, however, has long been discredited in California as a test for legal insanity.”  Severance, 138 Cal.App.4th at 324.

III. The Special Case of Angel

The character of Angel is (almost) unique among vampires.  Through various means throughout Buffy and Angel, his human soul is restored, lost, and restored again.  In his human-souled state, he is called Angel; his demonic form is called Angelus.  Angel feels remorse for the terrible deeds of Angelus and works to set things right.  Does this change anything?  From a legal perspective, I think not.  Essentially, he is akin to a person with a recurring mental illness that doesn’t quite rise to the level of insanity.

One might argue that Angel shouldn’t be punished for Angelus’s crimes.  After all, it’s not like Angel is likely to commit any of the same crimes.  But actually, incarcerating Angel would serve the function of incapacitation (i.e. preventing Angel from turning into Angelus and wreaking havoc).  So it wouldn’t solely be an exercise in (mostly pointless) retribution.  And arguably it would also serve a deterrent function for other vampires by showing that they can be caught and punished by humans.  They may be evil, but they’re not stupid.  Well, mostly.

IV. A Side-Note About Blood

Since the vampires in the Buffyverse can survive on animal blood, they can’t claim the defense of necessity for drinking human blood, at least non-consensually.  Angel generally drinks animal blood, so that’s not a problem for him, and California allows animal blood to be sold for human consumption. 3 CCR § 904.17.

V. Conclusion

Assuming the vampires are considered human (and thus capable of committing crimes in the first place), then their vampirism probably won’t save them from criminal liability.  In Angel’s case, that means he’s potentially liable for a couple centuries’ worth of killing, since there is no statute of limitations on murder.  The animal blood is probably legit, though, so I’m sure that’s a certain comfort.


The movie Chronicle came out last week, and it’s pretty good (the Blu-ray version comes out on May 15, 2012).  The basic plot is that three teenage boys develop powerful telekinetic abilities, resulting in, well, as the AV Club put it, “This is why teenagers cannot have nice powers.”  Obviously a lot of what goes on in the film is plainly illegal, especially toward the end, but there are some more subtle and interesting legal issues to discuss.  Spoilers ahead!

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Breaking Bad: Landlord-Tenant Law

Breaking Bad is the award-winning AMC show about a high school chemistry teacher who, after being diagnosed with Stage III lung cancer, decides to provide for his family by cooking meth. Turns out he’s pretty damn good at the cooking part, but the rest of it is where the drama kicks in and why the show is now headed into its fifth season. Obviously, the core of the show involves doing things which are spectacularly illegal, and the show makes no bones about that. But in Episode 4 of the second season, “Down,” there’s a bit of landlord-tenant law that bears examining. Spoilers to follow. Continue reading