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.