Category Archives: evidence

It’s taken us a while to get around to it, but we’re finally going to talk about Daredevil, aka Matt Murdoch, one of the most famous superhero lawyers.  This will be the first in a series of posts discussing the Trial of the Century storyline, which ran from Daredevil vol. 2 #38 – 40.  Be warned: there will be significant spoilers throughout this series.

We’d like to start by saying that this is one of the better written trial storylines we’ve encountered in the comics.  It’s not perfect, but we definitely want to give writer Brian Michael Bendis credit for getting the broad strokes as well as many of the details correct.  However, there are a few issues to address, starting with the charges against the defendant.  But first a quick synopsis of the facts:

A couple of gang members are interrupted by a police officer while robbing a pawn shop.  In the ensuing scuffle, the police officer’s gun is taken and he is shot.  Hector Ayala (aka the White Tiger) arrives and attempts to stop the criminals, but they overpower him.  When backup arrives, they find Ayala standing over the dead police officer holding a television.  Certainly, it looks bad for Ayala.  Matt Murdoch takes the case despite the fact that the media is hounding him after allegations surface that he is Daredevil.

I. The Charges — and a Lesson on Lesser Included Offenses

The charges against Ayala are never fully described, although Murdoch describes them as “the crimes he stands accused of,” so we assume there are multiple charges, presumably including some kind of attempted robbery.  What we know for sure is that the jury returns a guilty verdict for the charge of manslaughter in the first degree.  This is strange to say the least.  In New York, where the crime was committed and where the trial takes place, the most relevant definition of first degree manslaughter is this:

A person is guilty of manslaughter in the first degree when:
1. With intent to cause serious physical injury to another person, he causes the death of such person or of a third person. N.Y. Penal Law § 125.20.

However, because Ayala was accused of killing a police officer engaged in performing his official duties it would make more sense to charge him with aggravated first degree manslaughter:

A person is guilty of aggravated manslaughter in the first degree when:
1. with intent to cause serious physical injury to a police officer …, where such officer was in the course of performing his or her official duties and the defendant knew or reasonably should have known that such victim was a police officer…, he or she causes the death of such officer … . N.Y. Penal Law § 125.22

It’s possible that the prosecution intentionally declined to bring an aggravated first degree manslaughter charge, but that seems very strange in a highly visible case involving the death of a police officer allegedly at the hands of a superhero who is being defended by famous attorney Matt Murdoch, who is himself fending off allegations that he is Daredevil.  Indeed, it’s more likely the prosecution would have gone straight to first degree murder.  We’ll stick to manslaughter for our analysis, but bear in mind that a similar analysis would apply to an alternative charge of murder.

Now, it is entirely possible for the prosecutor to bring separate charges for first degree manslaughter and aggravated first degree manslaughter because the prosecution may charge the defendant in the alternative.  People v. Gallagher, 69 N.Y.2d 525, 528 (1987).

However, the doctrine of merger dictates that Ayala could not be guilty of both manslaughter charges simultaneously: the regular charge merges with the aggravated charge because regular manslaughter is a lesser included offense of aggravated manslaughter, i.e. “that it is an offense of lesser grade or degree and that in all circumstances, not only in those presented in the particular case, it is impossible to commit the greater crime without concomitantly, by the same conduct, committing the lesser offense.”  People v. Glover, 57 N.Y.2d 61, 63 (1982).  In this case the only difference between the two crimes is that in one the victim is “another person” and in the other it is a police officer.  Since a police officer count as “another person,” it is impossible to commit aggravated first degree manslaughter without committing regular first degree manslaughter at the same time.  The merger doctrine prevents ‘double-dipping’ multiple charges for the same criminal act.

The weird thing is that the prosecution offered the alternative charge at all.  It’s undisputed that the victim was a police officer performing his official duties.  The defense could try to argue that the defendant did not know and should not reasonably have known that the victim was a police officer, but the victim was killed with his own gun.  It’s pretty hard to take a cop’s gun from him and shoot him without, at some point, realizing that it’s a cop.  So we would expect the prosecution to go straight for the more serious charge.

Now, frequently a defendant will request that a lesser included charge be presented to the jury so that it has the option of finding the defendant guilty of the lesser included offense rather than the greater offense.  But such an instruction requires “a determination that there is a reasonable view of such evidence which would support a finding that, while the defendant did commit the lesser offense, he did not commit the greater.” Id.

As described above, though, we don’t think there’s a reasonable view of the evidence that would support that, and certainly that’s not part of Murdoch’s defense strategy.  So the alternative charge would have to come from the prosecution, weird as that would be.  But if that’s the case, then being found guilty of regular first degree manslaughter is actually a slight win for Ayala.  It’s far from the worst crime he could have been convicted of, given the prosecution’s allegations.

II. Cumulative Evidence, Expert Testimony, and Motions in Limine

Twice during the trial the prosecution and defense debate evidentiary issues.  First, after a police officer who arrived at the scene relates what he saw, Murdoch’s law partner Foggy Nelson states “Your Honor, if the defense stipulates that all seven officers witnessed the same events as Officer Snipes and came to the same conclusions from it…Will the prosecution spare the court the tediousness and move on with the trial?”  The prosecution declines the offer, apparently leading to a series of police officers being called to testify to essentially the same facts.

Second, when the defense calls Reed Richards as an expert witness the prosecution “strongly objects” on the basis that the witness “has had no direct contact with the accused.”  The judge reluctantly allows the witness over the prosecution’s continued objections.

In reality, both of these evidentiary issues would have been fought out via motions in limine rather than in full view of the jury.  More specifically, rather than politely asking the prosecution not to call the other witnesses, the defense would have made a motion to exclude their testimony as cumulative.  And rather than object to Richards as a witness in the middle of trial, the court would have conducted a Frye hearing to determine whether Richards’ testimony would be admissible as expert opinion on the psychological makeup of superheroes.

(Because New York has not adopted the Federal Rules of Evidence, it, along with a few other states, continues to use the older Frye standard for admissibility of expert testimony rather than the more common Daubert standard.)

These are fairly minor points, and we understand that the writers didn’t want to break up the action and the chronology by presenting pre-trial motions.  However, at a minimum the attorneys should have approached the bench or withdrawn to the judge’s chambers to discuss the issues outside of the jury’s hearing.  Besides, it’s a great excuse to use impressive lines like “Counsel, approach the bench” and “Counsel, in my chambers. Now.”

III. Conclusion

The writers did a good job with this storyline, but we think some of the details could have been tightened up without hurting the plot.  In fact, a little more attention to legal detail might even have improved it.  A charge of first degree murder is much more dramatic than first degree manslaughter, after all, and we’ve already discussed how the proper way to handle evidentiary issues can give rise to some nice lines. We’re not done with this storyline yet, though, so keep an eye out for more posts in this series!

This post was inspired by an email from Rebecca, who writes: “In The New Warriors comic [Vol1. No. 20-26], Vance Astrovik [aka Marvel Boy] accidentally killed his abusive father using his telekinetic powers.  He was tried for first degree murder and negligent homicide; he was acquitted of the former and convicted of the latter. Vance did not appeal the conviction, but do you think he would have been successful if he did?”

This is a great question.  Not only can we look at some important issues in criminal law and procedure, but this also gives us a chance to look at how appeals work.  The most important thing to understand about an appeal is that it is not a do-over before a higher court; there are important and often severe limitations on what issues and evidence can be presented on appeal, and the appeals court is itself limited in what it can do and on what basis it can do it.  Since the case occurred in New York in 1992 we will try to analyze it from that point of view.  But let’s start with the facts of the case.

I. The Facts

In case you don’t remember the details of this 18-year-old storyline, the facts are basically these: Vance Astrovik had been physically abused by his father, Arnold, for four years.  Arnold was evidently motivated by hatred of Vance’s mutant status and his tendency to hang out with other mutants.  The one time his mother, Norma, attempted to intervene, Arnold struck her as well.  On at least one occasion, Vance used his telekinetic powers to resist an attack from Arnold without harming him.

After being severely injured in fights with Terrax and Gideon, Vance is attacked by his father, who punches him to the floor and approaches him menacingly, saying “You are a freak!  It’s going to stop–if I have to pound it out of you…”  At that point, Vance unleashes a telekinetic blast, pushing his father through two walls, severely injuring him.  Vance flees the scene.

Later, Vance comes to the hospital where his father is being reated.  There he is arrested for “assault with a deadly weapon–your telekinetic powers, to be exact!” (Note that this suggests that, in the Marvel universe, innate offensive powers are considered weapons, which may have significant legal consequences).  After Vance’s arrest, Arnold dies from his injuries, and the charges are upgraded to murder.

So far everything is legally sound.  There is a reasonable theory for treating innate offensive powers as weapons, and while the prosecutor had a wide range of possible charges she could bring, she has discretion to choose among them.  It would also be appropriate to upgrade the charge to murder after the victim died, so long as the defendant’s attack was still the proximate cause of death (and in this case it was).  This brings us to the trial.

II. The Trial

Most of the New Warriors leave town during the trial for a mission.  Firestar stays behind to testify on the theory that testimony from any of the others would be excludable as cumulative.  See People v. Ventimiglia, 52 N.Y.2d 350 (Ct. App. N.Y. 1981).  That’s a reasonable theory, though it depends on the testimony they had to offer being, in fact, cumulative.  While the testimony the state might want from them could be cumulative (e.g. it’s may be sufficient that only one say that Vance could have stopped his father without resorting to deadly force), the defense would likely want to pile as many positive character witnesses on as it could.  So Vance’s teammates weren’t doing him any favors by taking off.

Vance is represented by Foggy Nelson, a partner in Matt Murdock’s law firm.  Right off the bat, Foggy dismisses two potential jurors who had prior interactions with superheroes.  Presumably their interactions were negative.

The first witness called is an expert on superhuman genetics, Walter Rosen, who was familiar with Vance’s powers.  Rosen testified that Vance had excellent control over his powers and had grown in his abilities over time.  The defense then addressed the witness, who testified that Vance was averse to injuring others, had not injured anyone to the witness’s knowledge, and had tried to save lives and prevent injuries often at risk to himself.  Classic character witness stuff.

The next witness is Firestar, who testifies as Firestar and in her identity-concealing costume, which poses legal issues of its own.  This suggests that either the Marvel universe gives superheroes leeway to testify in costume or that the prosecutor didn’t want to push the issue, lest she lose her witness.  In this case, the defense was also unlikely to object to the witness’s costume and use of an alias.

In any event, Firestar reluctantly testifies that Vance could have stopped his father without resorting to deadly force.  This is curious, since she had no personal knowledge of Vance’s altercation with his father, but the question is not objected to (although Foggy does object to other questions on occasion).  This ends the prosecution’s case in chief.  It’s very strange that the prosecution did not itself call Vance’s mother, the only witness to the actual events that the prosecution could call, since Vance is protected by the Fifth Amendment and the victim is deceased.  But moving on…

The next witness is Ben Grimm, who testifies to Vance’s good character but also his ability to use his powers to prevent people from getting hurt.  After that, the defense calls Vance’s mother, who testifies about Arnold’s history of abuse.  On cross-examination she testifies that Vance had stopped his father once with his powers and that he could’ve stopped his father without killing him.  This ends the defense’s case.

During closing arguments, the defense emphasizes Vance’s good and caring nature and argues that Vance acted in self-defense.  The prosecution argues that Vance had the ability to stop his father without harming him.  To prove the point, the prosecutor pulls out a pistol, aims it at Vance, and fires it.  Vance uses his powers to capture not only the pistol (revealed to be a cap gun) but even the very smoke from the cap gun.  The defense demands a mistrial, and the judge denies the motion but hints that grounds for an appeal exist.  This is not completely unreasonable; despite the prosecution’s antics, judges are loathe to declare a mistrial, especially so close to the end of the trial, since it means an enormous waste of resources.

Curiously, the judge does not give the jury any instructions, which is odd because those are ordinarily an essential part of the trial, but we’re willing to give the comic book authors a pass on this, since jury instructions are usually very, very boring and technical. We’ll assume appropriate jury instructions were given.

In the end, the jury finds Vance not guilty of first degree murder but guilty of negligent homicide.  He is sentenced to fourteen months to three years in The Vault.  Curiously, Foggy suggests an appeal but not post-trial motions such as a motion to vacate the judgment or to set aside the sentence.  Vance declines to appeal and resigns himself to his sentence, but what if he had followed Foggy’s advice and appealed his conviction?

III.  A Little Appellate Procedure

Now some background on how appeals work. (Note: this is a little dry, so if you want to gloss over the legal details and get to the good part, skip to Section IV, or just check Wikipedia on the subject).

There are a lot of issues we’re going to gloss over (e.g., appellate jurisdiction, waiver, harmless vs. reversible error), but we’re going to go into a little detail about the idea of standard of review.  That is, even if an appeals court will consider an alleged error, how bad does it have to be in order for the court to reverse it?  In general, appeals courts are reluctant to address issues that were waived or forfeited, and they are also reluctant to disturb jury verdicts.  In New York, where this case took place, there is a two part test for overturning a jury verdict: legal sufficiency and weight of the evidence.

Legal sufficiency is defined in New York thus: “For a court to conclude…that a jury verdict is supported by sufficient evidence, the court must determine whether there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial and as a matter of law satisfy the proof and burden requirements for every element of the crime charged. If that is satisfied, then the verdict will be upheld by the intermediate appellate court on that review basis.” People v. Bleakley, 69 N.Y.2d 490, 495 (Ct. App. N.Y. 1987).

And weight of the evidence is defined thus: “the appellate court must, like the trier of fact below, weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony. If it appears that the trier of fact has failed to give the evidence the weight it should be accorded, then the appellate court may set aside the verdict. Empowered with this unique factual review, intermediate appellate courts have been careful not to substitute themselves for the jury. Great deference is accorded to the factfinder’s opportunity to view the witnesses, hear the testimony and observe demeanor.” Id.

IV. The (Hypothetical) Appeal

With all of this background in mind, how might the appeal have gone?  Well, assuming the issues were property preserved, here’s what Foggy might have argued.

First, there was insufficient evidence to convict Vance of negligent homicide.  New York defines criminally negligent homicide thus: “A  person  is  guilty  of  criminally  negligent  homicide  when, with criminal negligence, he causes the death of another person.”  N.Y. Penal Law § 125.10. Not very helpful on its own; we need the definition of criminal negligence:

A person acts with criminal negligence  with respect to a result or to a circumstance described by a statute defining an  offense  when  he  fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance  exists.  The  risk  must  be of such nature and degree that the failure to perceive it constitutes  a  gross  deviation  from  the  standard  of  care  that  a reasonable person would observe in the situation.

N.Y. Penal Law § 15.05.  The key here is the second sentence.  The prosecution offered essentially no evidence that Vance’s telekinetic blast was a “gross deviation from the standard of care that a reasonable person would observe in the situation,” given that the situation was one of a heavily injured young adult being beaten by a grown man with no help in sight.  Vance’s blast may have been more than strictly necessary to end the confrontation, but there was no evidence that it was a gross deviation from what a reasonable person would have done in the heat of the moment.

But failing that, there is the issue of self-defense.  The prosecution focused heavily on whether Vance could have used less force to stop his father.  This makes a certain amount of sense because New York defines self-defense thus:

A  person  may,  subject to the provisions of subdivision two, use physical force upon another person when and to the  extent he or she
reasonably believes such to be necessary to defend himself, herself or a third  person  from  what he or she reasonably believes to be the use or imminent use of unlawful physical force by such other person

N.Y. Penal Law § 35.15(1).  Here the issue is whether Vance reasonably believed his violent telekinetic blast was necessary, which basically means whether the jury thought it was reasonable.  And the prosecution argued that no, it was not, since he could have used less force.  But there are special rules for the use of deadly force in self-defense:

A  person  may  not  use deadly physical force upon another person under circumstances specified in subdivision one unless:
(a) The actor reasonably believes that such other person is  using  or about  to use  deadly  physical  force. Even in such case, however, the actor may not use deadly physical force if he or she  knows  that  with complete  personal safety, to oneself and others he or she may avoid the necessity of so doing by retreating; except that the actor is  under  no duty to retreat if he or she is:
(i) in his or her dwelling and not the initial aggressor

N.Y. Penal Law § 35.15(2).  In this case, Vance was in his house and he was not the initial aggressor, so he had no duty to retreat.  Thus, he could use deadly force if he reasonably believed that his father was about to use deadly physical force, even if he could also have used less force.  There is a good argument to be made that such a belief would have been reasonable: Vance was already severely injured, his father had struck him quite forcefully already, his father had him pinned, his father had announced his extremely violent intentions, and there was no help in sight.  That’s pretty compelling stuff.

The problem here, however, is that Foggy didn’t really develop these issues at trial, apart from an oblique mention of self-defense in his closing argument.  The jury would likely have been given instructions related to self-defense, but without solid testimony or other evidence to support it, the jury could reasonably conclude that the weight of the evidence favored the prosecution beyond a reasonable doubt.  The appellate court is under no obligation to make up for the defense’s mistakes.

V. Conclusion

It’s hard to say for sure what an appellate court would make of this case.  The prosecution’s case was a little weak, and there were strong arguments for self-defense.  Unfortunately, Foggy didn’t do such a hot job as Vance’s defense attorney, so the case wasn’t set up for appeal very well.  However, it’s a comic book, and we could just as easily assume that Foggy actually filled in all the gaps but the writers omitted the minutiae for the sake of storytelling.  Still, the Marvel universe is somewhat hostile to mutants, and appellate court judges are not immune to bias.  Ultimately, Vance likely had decent chances on appeal, probably better than most criminal defendants.

(And in case we sound a bit down on the writers, we should add that the legal elements are on par with a typical episode of Law & Order.  They didn’t do a perfect job, but it could have been much worse.)