Daredevil Season 2, Part 2 – The Trial

Following my previous post about Daredevil Season 2, we now move to the main event, the trial of…

…Frank Castle, aka the Punisher.  Right off the bat we see some significant issues, starting with the time Nelson & Murdock have to prepare for the trial: one week.

Trial Timelines

In real life, this would never happen.  Following the arraignment (i.e. when Castle plead not guilty) and assuming Castle waived grand jury proceedings, a complex trial like this would be preceded by several weeks or even months of depositions, motions, and hearings, mostly to establish what kind of evidence could be presented to the jury.  This is especially in important in cases like this one that rely heavily on expert testimony.  To be clear: the DA wouldn’t want to rush this, either.  And even if they did, it would be extremely unusual (and likely appealable) for the judge not to grant the defense an extension of time before the trial started.

I’m willing to give the show a bit of a pass on the timing because they needed to keep pace with the other plotlines, but I would rather have seen it glossed over than focused on, since it’s so flagrantly wrong.  On the other hand, it does help explain part of why Nelson & Murdock’s defense of Castle was so awful.  Like malpractice-level awful.

Courtroom Decorum

It almost goes without saying that no real court would allow the kind of nonsense from the public gallery that went on at Castle’s trial.  Protest signs?  Not a chance.

Preserving Issues on Appeal: The Medical Examiner’s Testimony

A key part of Nelson & Murdock’s defense strategy was convincing the medical examiner to come clean about being asked to falsify the records of the deaths of Castle’s family members.  Initially hesitant, the medical examiner decides to change his story on the stand and tell the truth.  The judge clears the courtroom (about time, although in reality she almost certainly wouldn’t just because a witness was testifying unexpectedly), and the medical examiner spills the beans and explains that he was forced to confess because he had been threatened the night before.  In response the judge strikes the examiner’s testimony…and Matt and Foggy do nothing.  This was a huge mistake.

There is a very important concept in civil and criminal procedure called “preserving an issue for appeal.”  Basically, if the judge makes an error during the trial, if one side doesn’t object during the trial, then it’s much harder or even impossible to appeal the error to a higher court later.  Doing nothing, not even giving a verbal objection, about an issue this important, which could have affected the outcome of the trial, is a colossal screwup.  On the bright side, Castle’s argument for a new trial because of ineffective assistance of counsel just got stronger…

Preserving Issues on Appeal Redux: Courtroom Disturbances

At one point, a person in the gallery begins shouting that Castle killed his father.  The judge orders the person removed, but Nelson & Murdock should have seized the opportunity to request a declaration of a mistrial.  Even if they didn’t get it, it would be yet another issue they could appeal if the trial went badly (which it does).

Expert Witnesses and Ultimate Issues

This is a small thing, but it happens a lot with expert witnesses in TV shows and movies.  Expert witnesses, such as the doctor who testified regarding Castle’s brain injuries, are allowed to give their expert opinion regarding facts (e.g. Castle suffered a brain injury that affects his judgment) but not legal conclusions (e.g “any infractions would be considered crimes of passion”).  Drawing a legal conclusion from the facts (e.g. whether Castle was legally insane) is the job of the judge or jury, not the witness.

Also, the doctor’s conclusion doesn’t even make sense.  “Crime of passion” really only refers to converting murder to manslaughter, which is still a serious crime, and Castle could be accused of quite a few crimes other than murder.

Unauthorized Practice of Law and the Allocation of Authority Between the Lawyer and the Client

As a general rule, it’s a bad idea for criminal defendants to testify in their own case.  It opens the door to a lot of uncomfortable questions from the prosecution, and there’s rarely much the defendant can say that will help rather than hurt their case.  This was also true in Castle’s case, yet Nelson & Murdock have Karen talk Castle into testifying.  This is arguably a breach of ethics.

The decision of whether to testify in one’s case is, ultimately, the client’s decision, not the attorney’s:

In a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, … whether the client will testify.

NY Rule 1.2(a).  Not only do the rules specifically contemplate that the client will consult with the lawyer, but it’s implicit that this consultation is a core part of advising (though not deciding for) a client in a criminal case.  Thus, what Karen did is arguably the unauthorized practice of law, and Nelson & Murdock arguably breached Rule 1.2(a) and Rule 8.4 (which, in addition to some other things, says attorneys can’t get around the rules by having someone else do their dirty work).

Matt is a Terrible Trial Lawyer

Now we get to the big finale: Matt’s disastrous examination of Frank Castle.  After a few questions, Matt asks the judge for permission to treat the witness as hostile, then launches into a long, rambling expository speech.  This is just inexcusably bad lawyering.

Permission to treat a witness as hostile just means permission to treat the witness as though he or she had been called by the opposing party.  This doesn’t change much.  Mainly it means that the lawyer can now ask the witness leading questions (i.e. questions that suggest a particular answer is desired).  It definitely does not mean the lawyer can ask “questions” that are long speeches better suited for a closing statement.  The only thing that saves Matt is the DA’s failure to object to just about every sentence he utters.

Conclusion

All in all, it’s no wonder Castle is found guilty.  Unfortunately, this may say more about Nelson & Murdock’s competence than about the strength of the case against Castle.  While some of the errors can be laid directly at Murdock’s feet, Nelson is not much better, which makes the offer he later receives from Hogarth, Chao and Benowitz all the more absurd.  Nelson & Murdock are generally portrayed as competent, even talented, attorneys, but this Season has made that quite hard to believe.  This greatly diminishes one of the core conflicts driving the plot of the show: it’s hard to feel conflicted about Matt-as-attorney and Matt-as-vigilante when he’s objectively terrible at being an attorney.