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.


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.


19 responses to “Daredevil Season 2, Part 2 – The Trial

  1. Megan Saunders

    So, I understand some of what you’re saying regarding the medical examiner’s testimony, but even if Foggy or Matt had objected for the purpose of appeal, why does it seem like the D.A. gets a free pass on bribing the medical examiner in the first place? The judge’s decision hurts Castle’s case and defense, but if anything it strengthens the D.A.’s case, because now the line of corruption from the D.A. they were trying to prove is basically nullified.

    Even taking away the fact that the medical examiner was bribed and then confessed, shouldn’t the fact that he was bribed to lie on the stand in the first place still stand? There’s no way to connect Elektra’s actions to Matt and Foggy, since she didn’t tell Matt what she was going to do. If anything, it seems as if Matt and Foggy are being blamed because when they start the line of questioning about the corruption, the ME interrupts and basically says, “I know what you’re trying to get me to say because I was threatened”. This makes it seem like Matt or Foggy threatened him, yet there’s no connection to Elektra and the D.A. gets a pass on the original bribe. Huh?

  2. Otho Fernandes Damasceno

    In short, the writters of the MCU sucks at understanding the law.

  3. For the moment I’m going to withhold judgement on Nelson being hired by a top law firm on the grounds that I can see that being something that Wilson Fisk may have arranged for, especially since he realised that Matt is Daredevil and if I remember rightly the offer came after this.

    (would not be surprised if that isn’t the case, but still a possibility)

    • There was no clear indication saying Fisk figured it out though it does appear he has some idea that it may be so. As to the hiring of Foggy, it was mainly there to tie Jessica Jones into Daredevil, thus the manufactured plot device.

  4. Terry Washington

    Why didn’t Murdock enter an insanity plea on behalf of Frank Castle(aka the Punisher), claiming that the murder of his wife and children had unhinged him?
    Simple, nothing he said or did as the Punisher indicated mental illness or instability? he only killed known or seriously suspected criminals. He planned ahead for weeks and months with meticulous zeal.
    So insanity pleas were NOT an option!

    • Martin Phipps

      I think insanity was off the table as soon as Castle insisted he wasn’t insane. Of course, when does an insane person say he is insane?

      I think a crime can be premeditated by an insane person. The question is whether or not the person understood right from wrong. For example, they could have argued that Castle was having flashbacks to Vietnam and he thought the various gang members were the enemy.

      Ultimately I think the reason why they put Castle on trial was because his story as told to Daredevil in the cemetery was moving. Murdock thought the jury should hear it.

      • A person must voluntarily choose to plead insanity.

        And, one must note, that the insanity verdict usually results in spending more time locked up than a guilty one. They can not let you out unless they think you are sane again.

        The question that might arise is whether he was competent to plead — that is, was still insane at the time of the trial.

      • Martin Phipps

        We had an article about the insanity plea as it pertains to the Joker. There is a difference between being insane and being legally insane. Someone like the Joker, for example, could not plead insanity because he clearly knows what he is doing. He would literally not be innocent of his crimes.

    • More likely is that insanity pleas almost always fail.

  5. I noticed a lot of these issues at the time. They pretty much made all the common TV/movie mistakes — rushed proceedings, the defendant testifying, the lawyer giving argument during examination. That last one stood out as particularly egregious. I don’t think I’ve seen such outrageously nonsensical courtroom procedure since FUTURAMA. (“I’m going to allow this.”)

    But I think you’re far too generous when it comes to the rush to get to trial. It wasn’t really necessary to keep pace with the other storylines, because there was a natural lull in the narrative at that point — the Punisher arc had been resolved for the time being and the Elektra arc was still in its early stages. Elektra was still investigating the Hand and hadn’t yet dragged Matt in too deeply, so she could’ve easily left town for a while and come back later. If anything, the entire narrative would’ve been better-served by a time jump of a couple of months at that point — it would’ve let Matt heal from his injuries (something he did with implausible speed throughout the season, especially compared to Foggy) and allowed his burgeoning relationship with Karen to deepen. So rushing the storyline was unnecessary and undermined the credibility of a number of things besides the trial.

    I mean, really, when the whole season is released on a single day and the seasons are a year apart, there’s no sense even trying to approximate real time, so why not let the timeline stretch out between episodes? As long as the events of the season still fit within a year, it works fine.

  6. James Pollock

    “But I think you’re far too generous when it comes to the rush to get to trial.”

    I’m going to offer an alternative theory. There comes a point where Hollywood’s version of reality replaces the actual reality. People come to believe that if police don’t Mirandize criminals at the time of arrest, the arrest is invalid. Why? Because they saw it on TV. If something is repeated on enough TV shows, a show that reflects reality seems, to people who don’t know better, to have “gotten it wrong” because it’s different from all the other shows. “Ha-ha”, says the uninformed viewer, “don’t these writers know that if the arresting officers don’t Mirandize someone when the arrest them that the arrest is invalid and the arrestee will go free? Everyone who watches TV knows this!”

    I think that enough TV shows have compressed the time between arrest and trial so as to fit the narrative structure of the show, that to show the real time line would seem “wrong” or at least “off” to people who don’t know better, which includes the writers and producers of the show as well as the great majority of the American public and near totality of the overseas public (who know of American legal procedure only what they’ve seen on TV, of course.)

  7. I think time actually does pass before the trial starts. The start of the season is in summer and the end is winter (Not that there’s any other indication time is passing).

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  9. This is still better than “The Trial of the Punisher” in the comics, where the judge, without even ordering an examination, simply DECLARED Castle “insane” on the basis of counsel’s rhetoric.

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