Category Archives: criminal procedure

Silence & Co.: Money Is Power

Earlier this month, I was fortunate enough to receive an advance copy of Silence & Co.: Money Is Power from its author, Gur Benschemesh. This is his first graphic novel, but the artist (Ron Randall) and letterer (John Workman) both have a long list of titles to their name, many with DC and Marvel. Silence is the story of Alexander Maranzano, the illegitimate but acknowledged youngest son of a major New York crime boss. After getting out of the Marines (for reasons which turn out to be important), he starts working as a hit man for the family. It’s a complete work in three acts, it avoids many of the common pitfalls in crime graphic novels, and it’s got one of the most realistic takes on the process of surveillance I’ve seen so far. Silence is scheduled to hit stores this May, but we’re taking an advance look at its handling of legal issues now. Continue reading

Arrow: “Innocent Man”

Innocent Man” is the fourth episode of Arrow, and once again, Laurel Lance’s role as an attorney takes center stage. The plot this time centers on Peter Declan, a man convicted of the murder of his wife and daughter and scheduled for imminent execution. Oliver deduces that Declan is connected to one of the people on his list, so he does a little digging and figures out that Declan is probably innocent. So he goes to Laurel, hoping that she can intervene in Declan’s case. So we’re talking about post-conviction relief. Continue reading

Little Brother, Part 1

Cory Doctorow’s novel Little Brother is a 2007 young adult bestseller that speculates about the effects of a second 9/11-scale terrorist attack on the United States, particularly with regard to civil liberties.  Told from the perspective of teenage hacker Marcus Yallow, the story suggests that the government response would be to combine new technologies with new laws to frightening yet fruitless effect—at least when it comes to combating terrorism.  The sequel to Little BrotherHomeland, comes out on February 5th, so we thought we’d talk a bit about the first book and then take a look at the sequel once people have had a chance to read it themselves.

Spoilers below for those who haven’t read Little Brother.  If you haven’t, go buy it.  Or download it for free.

Continue reading

Green Lantern # 76, cont’d

Returning to Green Lantern/Green Arrow # 76, which we started looking at last month, we find two more issues to discuss. First, whether the tape recorder Green Arrow set up would have been admissible if it had worked, and relatedly, whether Green Arrow can testify to the contents of the tape even if it’s broken. Second, whether the arrest of the villain at the end of the story is legitimate. Continue reading

Arrow: “Lone Gunmen”

This episode of Arrow, entitled “Lone Gunmen”, aired back in October, but there’s some really good stuff in it. The main legal issue has to do with Oliver Queen’s little sister, Thea, getting picked up by the police for breaking into a store, while drunk, and trying on some outfits with her friends. Continue reading

Arrow: “Honor Thy Father”

This is the second episode of Arrow, and it contains two excellent legal issues for your consideration. First, the legal procedure of coming back from the dead. Second, whether the “evidence” Queen provides against Martin Sohmers would be admissible. Continue reading

Castle: “Cloudy With a Chance of Murder”

I’m getting up to speed on the latest season of Castle, and there’s a quick pair of issues in episode two which aired back on October 1.  The first issue was brought to our attention by Naomi, who writes:

In [the] episode, a suspect is arrested and immediately calls for his lawyer. While they’re waiting for the lawyer to arrive, Beckett and Castle remain in the interrogation room and ignore the suspect, but openly discuss the case in front of him in a (successful) effort to bait him into saying something incriminating. Legally, is this kosher? If it had turned out that the suspect was guilty of the murder, would his outburst have been admissible in court?

So is this okay? Also, what’s the deal with the suggestion that someone is going to jail for violating environmental regulations? Spoilers inside! Continue reading

Daredevil: Redemption

Over on our Facebook page we got a request from Obidike to take a look at Daredevil: Redemption, a six issue series from 2005, also available in trade paperback:

Have you guys read David Hines’ Daredevil: Redemption? I met the author and he claims that a lawyer in the US claims he was spot on with the legal stuff in the story? Do you agree?

There are several legal issues in the story, but we’re going to focus on just a couple of the more overt ones.  There are a few minor spoilers ahead, but nothing too serious.  For those who haven’t read it, the basic setup of the story is that Murdock is hired to represent a teenager accused of murder in the (fictional) town of Redemption, Alabama.  Almost all of the action occurs in that small town,  Daredevil makes only a few appearances, and there are no other superheroes or supervillains.  The story gives up the broad strokes of capes and superpowers in favor of a well-told human drama.  It’s a pretty good read, and we recommend picking up a copy.

I. Pro Hac Vice

You may already be asking yourself “waitaminute: how can Murdock practice law in Alabama.  Isn’t he from New York?”  It’s true that the legal profession is regulated by the states, and ordinarily one must be licensed in a state in order to practice there.  However, in some cases, an attorney may be given special permission by a court to practice out of state.  This is called appearing pro hac vice and is typically done for one-off cases or in cases where the attorney has a history of representing the client in their home state and now needs to represent them in a different state.

The way this is described in the comic is quite accurate.  The local attorney says:

Here’s the situation. The judge has allowed for you to work in the state of Alabama under pro hac vice.  He wasn’t too happy, but you have a good rep and, with the press watching this one, he didn’t want anyone calling bias.  Under state regulation, I sign all the paperwork, I sit beside you in court, but otherwise it’s your case.

That’s pretty much how it works in the real world.  Local counsel can do more than just sign papers and sit in court, though.  Sometimes they are active parts of the legal team, and often they are valuable sources of information on local rules, unstated court customs, and the personalities of judges and court staff.  But fundamentally they are there to make sure that the out-of-state attorneys don’t screw up.

As a side note: what matters is where the attorney is physically located when he or she does the work, not where the client is.  If Murdock had stayed in New York and simply consulted over the phone or by email, he wouldn’t have needed to be admitted pro hac vice.  It wouldn’t matter that he would be advising a client about Alabama law, either.  Alabama doesn’t care what lawyers in New York do, and New York doesn’t care where the client is, only that the attorney in New York is licensed in New York.

II. The Guilty Client and the Not Guilty Plea

As Murdock often does, he asks his (prospective) client whether he committed the crime.  The client says, “Let’s say I am.  You have to defend me even if I say I killed the kid, right?”  Murdock responds:

Wrong.  My professional code of ethics would not allow me to enter a plea of not guilty on your behalf if you tell me you are guilty.  That information would be protected by the rules of client confidentiality, but I would be obliged to withdraw from representing you.

There are a couple of issues here.  First the good news: Murdock is correct that the confession would be confidential.  Now the bad news: there is nothing in the New York or Alabama Rules of Professional Conduct that would prevent an attorney—knowing his or her client is factually guilty of a crime—from entering a plea of not guilty on behalf of the client (although actually it’s the client who states the plea in most cases).

As you probably know, in the United States criminal defendants are presumed innocent until proven guilty.  The plea of “not guilty” is necessary in order to force the state to prove its case.  It’s not a claim of innocence made under oath.  Someone who pleads not guilty and is proven guilty is not also guilty of perjury, for example.  As Robert F. Cochran, Jr. explained:

But, of course, courts do not treat the plea inquiry seriously. Courts expect criminal defendants to plead “not guilty,” irrespective of their guilt. They have avoided what would likely be a constitutional problem by giving defendants what might be called a “right to lie” at the plea inquiry.

“How Do You Plead, Guilty or Not Guilty?”: Does the Plea Inquiry Violate the Defendant’s Right to Silence?, 26 Cardozo L. Rev. 1409, 1433 (2005).  Cochran describes several rationales for this right to lie, including one by Jack Sammons:

[In a criminal trial] there is only one truth which concerns us, and that is the truth of the government’s case. No other truth matters. We permit the defendant the dishonesty of the not guilty plea, and of the questioning of what he knows to be the truth, and, in doing so, we destroy the dishonesty of the plea and of the questioning. . . . It is not dishonest to lie to others when society removes the expectation of the truth for its own moral purposes . . . . [W]hen [the defendant] lies or [defense counsel lies] for him, to put the government to the test by a plea of not guilty or a questioning of what he knows to be the truth, that is not lying at all because only one truth matters—the truth of the government’s case.

In any case, there are many reasons why a client “admitting guilt” to his or her attorney is not the same as the client being legally guilty.  Legal guilt requires that the state prove its case, which doesn’t always happen even when the client is factually guilty.  And the client could be confused, insane, have a faulty memory, or be lying to his or her attorney in order to protect someone else.  So there is no reason for the attorney to feel ethically compelled not to allow the client to enter a plea of not guilty even if the client confesses to the attorney.

III. Perjury

Now, what a lawyer can’t do is knowingly assist a client in committing perjury.  This usually isn’t a problem in a criminal case, since most criminal defendants don’t take the stand.  But if they do (and that’s ultimately the client’s choice, not the attorney’s), the attorney can’t ask questions knowing that the client is going to lie.  There are a few approaches here:

1. The attorney can withdraw.  This is difficult to do in the middle of a trial, but it’s usually not necessary because of option 2.

2. The attorney can simply invite the client to give an open-ended narrative.  For example: “Tell us what you remember from that night.”  Usually this story will get destroyed on cross-examination, but that’s why criminal defense attorneys usually advise their clients not to take the stand.  This approach is approved by Model Rule 3.3 and its New York and Alabama equivalents.

3. In some states the attorney can let the client perjure themselves and then inform the court of the perjury.  Obviously this is not a very satisfying approach for the attorney or the client.

4. Some commentators, such as Monroe Freedman, have argued that the attorney should simply question the client in the usual way, perjury or no.   Freedman would say that the attorney can’t coach the client on how to lie most persuasively or rehearse the false testimony, but there’s no need to dance around the issue with open-ended narrative questions, either.  This is a controversial position, to say the least.  See, e.g, Stephen Gillers, Monroe Freedman’s Solution to the Criminal Defense Lawyer’s Trilemma is Wrong as a Matter of Policy and Constitutional Law, 34 Hofstra L. Rev. 821 (2006).  It is also universally rejected by ethical codes in the US, but I include it for completeness.

IV. Conclusion

The rest of the book is pretty accurate, and it actually hits a lot of key points regarding withdrawing a confession and cross-examining witnesses.  The one major error is irrelevant to the plot anyway.  It’s always nice to see a book that gets the legal details right and also tells a good story.

Surrogates II: Crime and Law Enforcement

We started our discussion of Surrogates back on Labor Day, and this time we’re going to talk about the story’s implication on law enforcement, crime, and punishment. We touched briefly on the labor issues related to an all-surrogate police force, but are there legal issues too? And do the story’s claims about the impact of the widespread operation of surrogates bear up under analysis? Read on! Continue reading

Daredevil: Born Again

Today we have a quick legal ethics note from the classic 1986 Frank Miller Daredevil storyline, Born Again (which is available collected in trade paperback).  At the outset of the story, Wilson Fisk (aka the Kingpin) sets out to destroy Matt Murdock’s life.  One of the first steps is to get him disbarred.  To do this, Fisk frames him for bribing a witness to perjure himself (aka subornation of perjury).  A brilliant defense by Foggy Nelson keeps him out of prison, but Murdock nonetheless loses his license to practice law.  But how does that work?  Can a lawyer be ‘sentenced’ to losing their license?

The answer is ‘sort of, at least in New York.’  First, let’s take a closer look at the facts.

I. Bribery and Perjury

In New York, bribing a witness is a class D felony. N.Y. Penal Law § 215.00.  Subornation of perjury is not a separate offense, but rather the person doing the suborning is guilty of perjury by accomplice liability.  See Staff Comments of the Commission on Revision of the Penal Law. Revised Penal Law. 292-93 (1965).  First degree perjury (i.e. swearing falsely and making a material false statement as part of one’s testimony) is also a class D felony.  N.Y. Penal Law § 210.15.  Class D felonies are punishable by up to 7 years imprisonment with a mandatory minimum of at least one year, unless:

the court, having regard to the nature and circumstances of the crime and to the history and character of the defendant, is of the opinion that a sentence of imprisonment is necessary but that it would be unduly harsh to impose an indeterminate or determinate sentence, the court may impose a definite sentence of imprisonment and fix a term of one year or less.

However, it is not clear to me whether there was any mandatory minimum provision at all in 1986, and the court may have had discretion to sentence Murdock to probation only.  So that could explain why Murdock didn’t end up in prison despite what happens next.

II. Disbarment

As Fisk narrates, “Even as he hears the much-tempered verdict of the court that he will not face a prison sentence, as I had planned—that all he will lose is his license to practice law…whatever reactions he has are hidden—even, I suspect, from himself.”  So Murdock doesn’t receive a prison sentence, but he does lose his license.  But how could a criminal court do that?

This is a fair question.  Disbarment is not a criminal punishment per se.  In New York, for example, attorney discipline is ordinarily handled by the Appellate Division (i.e. the intermediate courts of appeal).  However, in New York, a felony conviction results in an automatic disbarment.  N.Y. Judiciary Law § 90(4)(a).  We discussed this  last year with regard to She-Hulk’s disbarment.  So while the trial court wouldn’t technically sentence Murdock to losing his license, a conviction on either felony count would result in immediate, automatic disbarment with no action from the Appellate Division necessary.  Since the court undoubtedly knew this would happen, it could take that into account when deciding not to sentence Murdock to prison.

III. Conclusion

The circumstances of Matt’s disbarment are a little odd, but it actually hangs together pretty well due to New York’s unusual felony disbarment rule.  Since Murdock loses his license right off the bat, there’s not a lot of legal issues in the rest of Born Again, but it’s a great story in its own right.

However, we will quibble with the fact that Matt is summoned to a grand jury hearing “and not as a witness” (i.e. as the defendant).  Lots of comic books get this wrong, so we’ll say it again in the hope that comic book authors won’t keep making the same mistake: grand jury hearings are secret.  There’s no judge, no public gallery, and the defendant (technically only a suspect at that point) is not present or represented by an attorney.  There’s just the prosecutor, a court reporter, the grand jury, and one witness at a time.  We know that means grand jury scenes sometimes have to be depicted without the main character present, but on the other hand “a grand jury would ‘indict a ham sandwich,’ if that’s what you wanted,” so we recommend not bothering.  Just assume that the grand jury handed down an indictment and move on to the actual trial.