The most recent issue of Daredevil raises some interesting legal questions, though unfortunately we may have to wait until the next issue to get all the details. Nonetheless, let’s see what we can figure out from what we know already.
(As usual, there are spoilers ahead, but you really should be reading Mark Waid’s Daredevil run. It’s available digitally via Comixology or in print at your friendly local comic book store, so go get a copy and come back.)
I. Accessory to Murder
The “client of the month” in this issue is the brother of Adele Santiago, a nurse working for drug kingpin Victor Hierra. Adele was charged with being an accessory to Hierra’s murder. The only problem is that he and she were in a locked room when Hierra was killed, drained of his blood without leaving a trace of evidence. Presumably lacking enough evidence to charge her with the murder directly, the prosecutor charged her with being an accessory. Under N.Y. Penal Law § 20.00, acting as an accessory to a crime carries the same criminal liability as the underlying crime:
When one person engages in conduct which constitutes an offense, another person is criminally liable for such conduct when, acting with the mental culpability required for the commission thereof, he solicits, requests, commands, importunes, or intentionally aids such person to engage in such conduct.
We can probably eliminate the “solicits, requests, commands, [or] importunes” part, leaving “intentionally aids.” I suspect the prosecutor’s theory will be that Adele helped the murderer enter and leave, presumably taking Hierra’s blood with him.
Now, you might think, “wait, how can Adele be charged with being an accessory to murder if the prosecutor can’t prove who killed the victim?” It turns out that it doesn’t matter:
In any prosecution for an offense in which the criminal liability of the defendant is based upon the conduct of another person pursuant to section 20.00, it is no defense that: … 2. Such other person has not been prosecuted for or convicted of any offense based upon the conduct in question
N.Y. Penal Law § 20.05. Thus, it’s enough that the prosecution can prove that Hierra was murdered (which should be easy: draining someone’s blood without leaving any evidence doesn’t exactly happen by accident) and that Adele helped. The evidence is all circumstantial, but that can be enough if there’s no reasonable doubt.
II. The New Business Model, Redux
So that’s what Adele is charged with, but she isn’t the one who came to see Foggy at the former Nelson & Murdock (now just Nelson) law office. Rather, Adele’s brother (first name not given) showed up, asking about Nelson & Murdock’s services assisting clients in representing themselves. We’ve written about that before and concluded that, while difficult to do well, it is theoretically ethically sound, at least in New York. That makes this exchange between Adele’s brother and Foggy kind of weird:
AB: [Adele’s corrupt public defender] barely makes an effort. You must teach me what I need to know.
Foggy: *Sigh* Mr. Santiago, this isn’t a dispute over a neighbor’s fence. This is way above your pay grade. I can’t teach you.
It’s just as well that Foggy ultimately decides to take the case as Adele’s lawyer, since Adele’s brother couldn’t represent her himself. (Basically) anyone can represent themselves, but only a lawyer can represent another person, at least in the US.
Similarly, since Adele’s brother isn’t a lawyer, Foggy couldn’t ethically teach him to teach Adele, for at least two reasons. First, attorney-client privilege would go out the window because everything would be going through a third party. Second, it’s hard enough to do a reasonable job of teaching someone to represent themselves; teaching a person to teach another would be much more difficult. So while Foggy came to a correct result (representing Adele directly), the alternatives he seemed to be considering made no sense.
Several more legal questions came up in this issue, but we’ll have to wait and see what happens before we can comment on them fully. We may also revisit Adele’s case and Foggy’s representation. It will be interesting to see where Waid goes with both.