Daredevil Season 2, Part 1

There is so much to discuss about Season 2 of Daredevil that I’m not going to follow the usual post format.  Spoilers ahead, naturally.

The Police Ambush of the Punisher Was Blatantly Illegal

In the second episode, the police set up an ambush for the Punisher, using Grotto as bait.  The goal of the ambush is to kill the Punisher, not arrest him.  This is, of course, a blatantly illegal attempted extrajudicial killing.  The circumstances under which the police can use lethal force do not include “because we think he did some bad stuff before.”

It’s true that defense of others (Grotto or Daredevil) could be used as a justification, but the police opened fire before that was established.

Also, the operation was overseen by District Attorney Reyes, which makes no sense at all.  Anyone who has seen an episode of Law & Order can tell you that the police and the prosecution are separate entities (and for good reason).   As we’ll see, Reyes’s involvement is just one entry on a long list of seriously unethical actions this season.


You Can’t Plead Straight to the Death Penalty

After Castle is arrested, Murdock and Nelson discuss the case with Castle’s public defender, who considers the case open and shut: Castle will plead guilty and be sentenced to death for murders he committed in Delaware, which has the death penalty.  This isn’t quite right.  In Delaware, as in many states that still have the death penalty, the decision to impose the death penalty must be determined by a separate hearing.  See, e.g., Sullivan v. State, 636 A.2d 931 (Del. 1994) (discussing procedures under 11 Del.C. § 4209).  Normally that hearing includes a jury, even if the defendant plead guilty.  It is possible for both the State and the defendant to waive a hearing before a jury, but even then there will be a hearing before the judge. §4209(b)(2).  The defendant can’t plead straight to the death penalty.


The DA is an Idiot

When Murdock and Nelson first attempt to approach Castle, the District Attorney attempts to intervene, arguing that speaking to Castle without his attorney present would be a violation of ethical rules.  This is simply not true. Ironically, it would be an ethical violation for the District Attorney to do the same thing because she represents an opposing party (i.e. the People). N.Y. Rule 4.2(a).  And indeed later Murdock correctly tells her as much.

The DA is doubly an idiot for failing to note that Murdock and Nelson’s conversation with Castle might be an ethical breach for a different reason, namely that it’s an inappropriate in-person solicitation under Rule 7.3(a)(1).


The DA is an Idiot, Again

The DA argues that Nelson & Murdock can’t represent Castle because it would be a conflict of interest given their representation of Grotto.  This is very wrong.  First, Grotto isn’t a current client, since a) he summarily fired the firm in no uncertain terms, and b) he is dead.  This still makes Grotto a former client, which can cause conflicts under Rule 1.9, but those can be avoided in this case.  The main concerns are 1.9(a):

A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.

and 1.9(c), which limits the use or disclosure of the former client’s confidential information.  Representing Castle would not require doing anything materially adverse to Grotto’s interests, especially given that he is dead and evidently had no family or estate.  Neither would it require revealing anything that Grotto told the firm in confidence.  So Nelson & Murdock are clear to take Castle’s case.


Castle’s Hospital Room Arraignment

Castle is arraigned (i.e. enters his plea, in this case not guilty) in his hospital room.  Although unusual, this is permissible.  See, e.g., People v. Mojica, 62 A.D.3d 100 (2009).


Next Up, the Trial

In Part 2 I’ll discuss the trial itself, including the one week prep time between arraignment and opening statements, lots of evidentiary issues, courtroom shenanigans, unauthorized practice of law, and Matt generally being a terrible attorney.

11 responses to “Daredevil Season 2, Part 1

  1. Isn’t there a potential conflict of interest for Nelson & Murdock in that their secretary/office manager/paralegal/girlfriend is an eyewitness to one of Castle’s crimes, i.e. the attempt on Grotto’s life in the hospital?

    NY Rule 3.7(b) only refers to other lawyers within the firm, so it may not strictly apply, but isn’t there still a potential conflict under 1.7? I guess that perhaps, given the defense strategy, Karen Page’s testimony would be an uncontested matter, and Castle would waive any conflict. But I was surprised that wasn’t at least mentioned.

    • Rule 3.7 only applies to attorneys, as far as I can tell. I don’t think it would be an issue here. It’s possible Murdock or Nelson could be called to testify as to what Page told them about the attack, but that’s a bit of a stretch, and the judge might still allow it.

  2. James Pollock

    Can’t a bunch of this be handwaved away by pointing out that, in the Daredevil universe, all of the administration of justice in Hell’s Kitchen is corrupt? The police act illegally, the prosecutors act illegally, and the judges allow it all to happen (illegally)?

    • TimothyAWiseman

      Some of it, yes. But first the whole premise here is to explore the legal issues brought up. Even if the in universe justification is corruption (as opposed to the writers either not knowing the law or ignoring it for drama / time saving purposes) that does not lessen the value of highlighting how it should be done here.

      And others, like the failure to bring up the potential issue under Rule 7.3, was just sloppiness rather than corrupted on the part of the DA.

      Incidentally, Rule 7.3 only forbids the contact if the motive is “pecuniary gain”. That fact is in 7.3(a) in the Model Rules and 7.3(b) for the NY Rules which are slightly different in structure but seem to have the same general effect. This is generally taken to mean that an offer of pro bono is not limited by 7.3. I do recall if that was ever brought up in the show, but if Matt and Foggy planned to do this pro bono that would let them comply with the requirements.

      • James Pollock

        “But first the whole premise here is to explore the legal issues brought up.”

        Agreed. But… if the society in the show is so different from our society, comparisons become much more difficult. Take, for example, possession of the One Ring in the Hobbit/Lord of the Rings. You could try to apply common-law principles to it. (Is it rightfully Bilbo’s, because he won the riddle contest? Is it rightly Smeagol’s, or rightfully Sauron’s? These are fun hypotheticals, but you wouldn’t expect the Rivendell elves to put together a court and decide the issue using modern American law.

        Conversely, you’d normally expect a show set in modern-day New York to be in full compliance with the legal procedures of modern day American Law*. My point isn’t that modern American Law isn’t applicable… it’s that in the Netflix Marvel Universe, courts in New York are not at all like the ones in the real New York. It’s a matter of tone.

        You could spend a while exploring all the civil rights violations present in The Dukes of Hazzard, and the crimes committed in the show (bow and arrow with dynamite taped to the arrow???) but you wouldn’t expect the show to actually be accurate.

        * Yes, I know, Law & Order isn’t accurate, either. The number of times they have a detective testifying as to what somebody told them is ludicrous, and the timeframes are compressed… if it were realistic, the bad guys they could in episode 4 would start their trials in episode 11… of the next season.

      • That’s a good point about pro bono work, although a) I also don’t recall if it was explicitly stated that Nelson & Murdock’s work would be pro bono and b) even if it was, the DA wouldn’t necessarily know and so could object.

        That said, it’s a fair inference, given that Castle started with a public defender. (Despite, apparently, having a house and other assets that would probably make him ineligible.)

      • Pollock, the idea is to say if, in the real world, the actions of movie, tv and comic book characters are legal. For instance, The Hobbit was actualyl covered in an earlier article- insomuch as enforceability of the contract Bilbo signed would be in the real world.

        Also, Hells Kitchen may be corrupt, but that doesn’t mean what happened was legal- just like Batman’s activities being legal or not would be unaffected by Gotham’s corruption. (or, to look at it another way: Al Capone trued to bribe the jury in his tax evasion trial. That was illegal, even if, in chicago, it wouldn’t be unusual.)

    • I think the whole “Corruption!” thing is just a cop-out to excuse bad writing. We’re not just talking corruption here. We’re talking about unabashed ignorance of basic procedural rules. No amount of bribery would allow the events portrayed in season 2 to logical occur. Who exactly would the DA have to pay off to allow her to have command of a police operation?

      • The person who is actually in command.

        Everyone else can be bullied or intimidated.

        It’s really more like, “she isn’t actually in charge; she’s just acting like she is and everyone is going along with it”.

        Given the insane amounts of corruption that occurred in the previous season (and compared to many real-life cases), disregard of procedure is a fairly minor quibble.

        Might indeed be a cop-out, but doesn’t mean it isn’t true. Maybe the D.A. was given unusual powers in the wake of a third of the police force turning out to be killing people on behalf of a bald fat guy.

  3. I think a lot of what the DA was up to was definitely MEANT to be wrong, given what we find out about her later and that she is actively trying to see Castle dead for personal reasons. Nelson and Murdock DO call her out on much of her stuff when she tries this; I think it’s supposed to come off as her spouting legal bullshit as a cover, but actually just trying to intimidate them with her authority and power. Not sure if they really count as examples- seems more like the sort of ethical violations that less scrupulous attorney routinely try and pull every day (excluding the “using a mobster as live bait” part).

  4. Does Madison in the room alone carry privilege or can she be compelled to testify about everything Grotto tells her?

Leave a Reply

Your email address will not be published. Required fields are marked *