Obviously this is strongly reminiscent of the killing of Osama bin Laden in Abbottabad, Pakistan in May of 2011, and this post is based on some expert analysis of the law surrounding his killing.  A few more spoilery details inside (about the movie, not bin Laden; don’t get excited).

As far as I can remember the movie doesn’t show Iron Patriot actually killing or arresting/kidnapping anyone.  He does threaten some people with weapons, however, and it is strongly implied that if he had found The Mandarin that he would have killed or captured him.  But since there was no actual killing, we won’t worry about the targeted killing aspect.  Instead, we’ll focus on the military-operation-on-foreign-soil aspect.

I. Consent

The simplest way to address the issue is for Pakistan to have consented to the operation, at least assuming that the Pakistani government has the legal authority to authorize such foreign military operations in its territory.  As Attorney General Eric Holder has said, “the use of force in foreign territory would be consistent with . . . international legal principles if conducted . . . with the consent of the nation involved.” Eric Holder, Att’y Gen. of the United States, Speech at Northwestern University School of Law (Mar. 5, 2012).

The problem is that I don’t recall anyone mentioning getting Pakistan’s go-ahead, nor does the US have a pre-existing arrangement with Pakistan allowing such incursions.  In the bin Laden case, the US neither sought consent nor invoked consent after the fact as a justification.  So what else is there?

II. Self-defense

One view is that state actors (e.g. Iron Patriot) may intervene in the territory of another state (e.g. Pakistan) against a non-state actor (e.g. a terrorist such as The Mandarin) in self-defense.  See, e.g., Thomas M. Franck, Editorial Comment, Terrorism and the Right of Self-Defense, 95 Am. J. Int’l L. 839 (2001).  Another view is that such self-defense is only available against state actors (e.g. if The Mandarin were an agent of Pakistan itself, perhaps).  Ian Brownlie, International Law and the Use of Force by States 278-79 (1963).

The US currently subscribes to the former view.  “[T]he use of force in foreign territory would be [lawful]… after a determination that the nation is unable or unwilling to deal effectively with a threat to the United States.”  Holder, Speech at Northwestern University School of Law.  A leaked Department of Justice White Paper is even more specific.  An attack would be justified under preventive self-defense if the “operational leader” “poses an imminent threat of violent attack against the United States.” White Paper, U.S. Dep’t of Justice, Lawfulness of a Lethal Operation Directed against a U.S. Citizen Who Is a Senior Operational Leader of al-Qa’ida or an Associated Force 3.  But an “imminent” threat “does not require the United States to have clear evidence that a specific attack… will take place in the immediate future.” Id. at 7.

That seems to fit The Mandarin pretty well.  He posed an imminent threat of violent attack against the United States, though the United States did not have clear evidence of a specific attack that would take place in the immediate future.  All the government had was a history of prior attacks and a strong threat of another attack in the future.  From its point of view, the United States probably felt legally justified in sending in the Iron Patriot.

III. A More Nuanced View

For a more nuanced view, consider Arnulf Lorca’s article Rules for the “Global War on Terror”: Implying Consent and Presuming Conditions for Intervention, 45 N.Y.U. J. Int’l L. & Pol. 1 (2012).  Lorca argues that the traditional self-defense  okay/not okay view is too simplistic and extreme.  Instead, he divides countries into innocent, cohabitant, and harboring nations.  Innocent nations (e.g. Germany) are effectively controlling terrorism within their borders and have no link to terrorist groups.  Cohabitant nations are either too weak to control terrorism within their borders (e.g. Yemen) or are reluctant to do so (e.g. Pakistan).  Harboring nations (e.g. Taliban-controlled Afghanistan) are those that, while not expressly endorsing or controlling terrorist groups, nonetheless give them sanctuary or have a mutual understanding.

Lorca’s thesis is a complex one, but the overall suggestion seems to be that because Pakistan is a cohabitant state, intervention should be limited to the law enforcement model rather than military operations.  We see Iron Patriot doing more investigative work rather than shooting first and then asking questions, so he may have been complying with this view.  However, since he was unable to find The Mandarin in Pakistan, it’s hard to say for sure.

IV. Conclusion

Like many issues in international law, this is as much about politics and diplomacy as it is about treaties, statutes, or firm legal principles.  But at least we can say that the Iron Patriot’s actions were purportedly justified or at least potentially justifiable.

Spoilers within, so be forewarned.

I. Homicide and Extremis

For starters, let’s figure out which homicide offense is most applicable here. We’re going to leave aside the question of felony murder with regards to Killian’s larger plan to, among other things, assassinate the President, because that’s too easy, and it hides the more interesting question of the use of Extremis independent of any larger nefarious plots. But we should start by looking at felony murder related to the use of Extremis as such. We can rule out assault as an underlying felony, because that isn’t allowed to serve as a basis for felony murder. That would make almost all killings felony murder. The question is whether conducting unauthorized, unethical medical experiments is a felony.

Turns out. . . it doesn’t seem to be. It’s certainly a violation of medical ethical standards and definitely of the regulations–mostly federal–set up around human subject experimentation. But I can find no statute, state or federal, which actually makes it a crime, let alone a felony, to conduct these sorts of experiments. There was a bill proposed in the Senate in 1997, the Human Research Subjects Protection Act of 1997 which would have made experimentation without informed consent a felony, but it never made it out of committee. So it doesn’t seem that these sorts of medical experiments would be illegal by virtue of their violation of federal regulations, but not federal statutes, and thus would not constitute felonies which might serve as the basis for a felony murder charge. We need to find some way of charging the homicides directly.

First-degree murder doesn’t seem to be a good fit. In the movie, there are actually very few, if any, uses of Extremis with the deliberate intent to kill. Killian injecting Pepper is arguably the main exception, but even there it doesn’t seem like he had any intent to kill her. Cause her significant pain, certainly, but it doesn’t seem that he expected her to die, at least not initially. She doesn’t die, and there’s no room for an attempt charge (no specific intent, so no murder, and you can’t attempt a reckless crime) so no murder charges there. As to his other uses, Killian’s goons voluntarily submitted to the procedure, impliedly because they had all suffered severe physical trauma for which there was no other cure. Now consent is no defense to any charge involving serious bodily injury, but the facts here suggest that Killian’s use of Extremis does not seem to expose him to a charge of deliberate, premeditated murder. He does not seem to have possessed any intent to kill most of the time, and the movie suggests that in certain dosages, the odds of death were pretty low.

But some lesser homicide charge does seem appropriate. This seems a good example of an offense variously called “involuntary manslaughter” or “reckless homicide” in various jurisdictions. The core of the offense is killing someone with a reckless or grossly negligent act. In Pennsylvania, this would be involuntary manslaughter under 18 Pa. Cons. Stat. § 2504. In Indiana it would be reckless homicide under Ind. Code § 35-42-1-5. Here we’ve got Killian et al injecting people with a serum that everyone knows poses a serious risk of killing the subject and quite possibly those around him. The consent of the patient is irrelevant, because again, one cannot consent to serious bodily injury or death. And clearly, other people who die as a result of the injection going badly could also serve as a basis for homicide charges. But that charge would be something like involuntary manslaughter or reckless homicide, because Killian’s mens rea is reckless, not deliberate or knowing. He’s doesn’t actually seem to want anyone to die, and he certainly doesn’t intend to kill most of the people he injects, but he is aware of and consciously disregarding a serious risk. That’s recklessness, so if death results, that’s involuntary manslaughter or reckless homicide, depending on the jurisdiction.

This would also likely be true for people killed by Extremis explosions. This is to be distinguished from people deliberately killed by Extremis patients. Unless ordered to do so by Killian, the intentional acts of Extremis patients would probably break the chain of causality and foreseeability between bystander deaths and Killian. Manufacturers aren’t generally liable for murders committed with their products under a common law theory of products liability, so an Extremis patient using his powers for evil, on his own initiative, wouldn’t be a problem for Killian. But because Killian was aware of the risk of people being injured or killed by Extremis patients blowing up, that would be just another known risk he was disregarding. Reckless homicide/involuntary manslaughter for those deaths too.

II. Defenses

But as mentioned above, surgeons engage in something which is arguably very similar every day, i.e., engaging in a procedure which carries with it a known and sometimes very serious risk of death or serious bodily injury. I don’t think many would seriously argue that a surgeon should be criminally liable for anything for performing a surgery to which the patient consents, even if there’s a bad outcome, so we’ll assume that and move on. The question is why something like Extremis wouldn’t fall into the same category. After all, it’s intended to both cure grievous wounds and even provides some measure of improvement to the human condition.

I think the courts would probably draw a distinction on the basis that most surgeries constitute bona fide medical procedures, whereas injecting someone with Extremis does not. This is where the complete disregard of existing medical regulations comes back into play. If Killian and A.I.M. had worked within the human research subject regulatory system, there wouldn’t be any real question that they were doing above-the-board research, and there would be significant liability shields for any resulting deaths or injuries. People do, in fact, die during legitimate, real-world medical trials, but a researcher who complies with all of the appropriate regulations and gets all of the appropriate permissions isn’t likely to even be criminally investigated. But a surgeon who simply makes up a new procedure and starts using it without telling anyone is going to get in serious trouble. Basic premise here: a researcher who complies with the rules of professional ethics and applicable medical regulations is going to be insulated from most criminal charges, but stepping outside of those rules and regulations will potentially expose him to criminal liability.

So no, the fact that Extremis had some potential medical benefits is not likely to work as a defense here. It seems very unlikely that a court would recognize injecting someone with Extremis to constitute the kind of bona fide medical procedure which could ground that kind of defense to criminal charges.

III. Conclusion

If all Killian had done was develop and inject Extremis, he would likely be vulnerable to charges for involuntary manslaughter/reckless homicide. He was acting in conscious disregard of a known risk of death or serious bodily injury, and death/serious bodily injury resulted. The fact that he was arguably performing some kind of medical experiment won’t help him, because he failed to comply with the regulations in place for medical experimentation. Further, because the experiments injured not only the patients, but people close to the patients, he would probably be liable for their deaths too.

Without giving too much away, we can say that at one point in the movie, Stark gives out his home address on live TV. Shortly thereafter, the press and bad guys show up and things start to get a bit hairy. The movie seems to assume that this would not have happened if Stark hadn’t given out his address. That strikes us as. . . dodgy. Further, the movie takes some inspiration from the Iron Man: Extremis storyline, and though the details of Extremis seem to vary quite a bit from the source material, both involve experimental medical injections. So we’ll talk about those issues as well.

I. Property Recording

Again, things really start to go bad for Tony and Pepper after Tony reveals his home address on live TV. The movie strongly implies that before this happened, they were more-or-less safe.

Simply put, that’s not how that works.

First of all, in-universe, Tony Stark is one of the most newsworthy individuals in the country. Any journalist who can’t dig up the home address of a celebrity of that magnitude inside of an hour should turn in his press pass immediately for basic failure of Shoe Leather Journalism 101. This is as much a logistical observation as a legal one, because in real life, paparazzi routinely camp outside celebrity homes in the hope getting a few shots to sell, and there’s no reason to think the same wouldn’t be true in the Marvel Cinematic Universe. We’re talking something as simple as following the guy home. Once one person does it, the information is out there.

But second, even if the press were keeping that information to themselves—and they generally do—it turns out that property ownership is mostly a matter of public record.  We say mostly because some counties (though not Los Angeles County, as far as we can tell) allow residents to make their property records private or at least semi-private.  For example, in St. Louis County one can request to block lookup of one’s property by the owner’s name.  And in any county one can make it harder to find where one lives by having a shell corporation own the property, as Steve Jobs did when he needed a home in Tennessee.  But a surprising number of celebrities do not take any of these precautions, and there’s always more direct investigatory routes.

In any case, like many counties, Los Angeles County has put its property tax assessment information online. Anyone who wants to can look up the property card for every single property in the county without leaving their desk. Granted, LA’s interface is a bit less helpful than some other municipalities—some will even let you search by owner*—but figuring out the ownership situation of every property on a given street would be a matter of an afternoon’s research. You can zoom in on the map and request the title card for any plot you like. Don’t bother trying to find the actual house with that, though.  The house in the movie is all CGI and film sets; exterior shots were filmed at the protected Point Dume area.  The house was allegedly inspired by a real house in La Jolla, but that’s in San Diego County.

* LA allows searching by owner with an application (which requires giving a reason for needing such access, such as being a real estate agent) and the payment of a fee.

The reason this is the case is that most US jurisdictions still stick to recording as a way of keeping track of property ownership, and the property record is, as one might imagine, a matter of public record. It’s only recently that municipalities have started putting this information online, and it’s as much for their own convenience as for the public’s. But even a hundred years ago, one could get a street address and trundle on down to the record office and look at any property card one wished, no questions asked. You might be asked to pay a nominal fee to copy anything, but that’s about it. Even a jihadist in a cave in Afghanistan could have figured out where Stark lived as long as the cave had access to the net.

So no. If Tony was in danger at home, it had nothing to do with revealing his home address to the media. The media already knew it, and interested parties could have found it with a bit of trivial legwork, possibly not even having to leave their office.

II. Medical Experimentation

Then there’s the question of how in the hell the villains got where they are. Some mild spoilers here, but one of the main villains is Dr. Aldrich Killian, the head of Advanced Idea Mechanics, apparently some kind of privately-funded “think tank”. In the comics, A.I.M. is actually related to Hydra, but whatever. He’s working on Extremis, which is some kind of injectable serum which, on the plus side, can apparently cure almost any wound short of decapitation or the destruction of one’s heart, with the relatively mild negative of occasionally making you and everyone in a ten-foot radius slightly dead. So much for that.

The question here is how in the world this thing ever got to the point of human trials when the side effects showed up when it was used on a houseplant, much less an animal model. We talked about the drug approval process in detail in our post on Limitless, where an experimental intelligence-boosting drug was the main plot point. Suffice it to say that the FDA would be unlikely to even want to heard about something as wild as Extremis, making even privately-funded research highly illegal. Now there seems to be some military involvement, and as we discussed in the chapter on administrative law in our book, that would potentially change the analysis somewhat. Governments can and do engage in secret medical research, and given the rather suspiciously close relationship between the Pentagon and certain defense contractors, a black-ops military research program does seem somewhat plausible.  And in the movie A.I.M. is described as being built on defense contracts, and it seems to have access to wounded veterans, and as discussed on Wednesday, the Vice President does appear to be involved somehow.

In short, the more A.I.M. is working with the military, the more it’s likely to be able to fly under the FDA’s radar. But as human experimentation is highly regulated in the civilian world, one doubts that even the Vice President’s involvement would be able to effectively shield such a program otherwise. The VP, after all, has no actual executive power, and regulatory agencies tend not to care very much what the VP thinks about anything.

In the military world, however, there is a lot of legal latitude for human experimentation that would otherwise be illegal.  A major case is United States v. Stanley, in which the Supreme Court held that an Army master sergeant who was secretly administered LSD as part of Project MKUltra could not sue the government because his injuries were service-related.  483 U.S. 669 (1987).  Whether the Extremis volunteers were doing something service-related is difficult to say.  We’d have to do a frame-by-frame of the shots of military records to be sure, but it seemed like maybe they had been discharged after their injuries, but maybe not, or maybe they were reenlisted in order to take part in the “study.”

But regardless of any government liability, A.I.M. itself is a private think tank, and the government’s immunity under exceptions to the Federal Tort Claims Act and Bivens described in Stanley may not extend to A.I.M. (as a government contractor) or its employees.  Furthermore, at a minimum, any doctors involved would almost certainly lose their licenses.

III. Conclusion

So here we’ve got two issues which the movie doesn’t seem to handle very well. There’s no reason to think that the location of Tony Stark’s residence would not be known to either the press or the villains, as he’s an important public figure, and property ownership is a matter of public record. And A.I.M.’s work with Extremis would seem to violate just about every FDA regulation out there and would probably result in liability for somebody, just maybe not the government itself.

I. When Push Comes to Shove: State and Federal Law Enforcement

First, Iron Man 3 has a scene of one of Killian’s subordinates roughing up Stark. When a local sheriff intervenes, she literally produces a DHS badge and claims to make an arrest. The sheriff demands more information and she roughs him up too. However, assuming she had not, to what extent could the sheriff have legally intervened? On the one hand it has been long recognised that state authorities may not interfere with federal officers carrying out their duties, but on the other hand an unlawful arrest is a crime and even the detainee has the right to know why s/he is being detained. So, assuming that the parties wanted to resolve their differences according to law and not by violence, what exactly would the sheriff be entitled to demand from someone the sheriff reasonably believed to be a federal officer? Furthermore, to what extent would the “federal officer” have to explain herself?

In case it isn’t clear, the woman in Heiki’s question is Killian’s subordinate, a woman with the last name of Brandt.  Brandt roughs up Stark, the sheriff starts to intervene, Brandt produces a DHS badge, then as I recall the sheriff requests that Brandt produce a warrant (something about calling Nashville, I think).  At that point Brandt attacks the sheriff and Stark (briefly) escapes in the resulting confusion.

Heiki is correct that if Brandt really were a federal agent conducting an arrest (lawful or otherwise) then a state law enforcement officer would not be able to interfere. Faulkner v. State, 226 S.W.3d 358, 363 (Tenn. 2007).  But does it suffice to simply wave a badge (that the sheriff probably isn’t familiar with) and claim federal authority?  To what extent could the sheriff demand proof that Brandt was a) really a federal agent and b) acting with in the scope of her authority?

The Tennessee resisting arrest statute reads as follows:

(a) It is an offense for a person to intentionally prevent or obstruct anyone known to the person to be a law enforcement officer … from effecting a stop, frisk, halt, arrest or search of any person, including the defendant, by using force against the law enforcement officer or another.
(b) Except as provided in § 39-11-611, it is no defense to prosecution under this section that the stop, frisk, halt, arrest or search was unlawful.

T. C. A. § 39-16-602.  The exception in § 39-11-611 is an exception for self-defense in cases where the arresting officer uses unnecessary force.  Brandt was rough with Stark, but Stark is a strong guy known for carrying a lot of serious firepower, so I’m not sure the sheriff or Stark could claim that exception (NB: the force must actually be unnecessary; it’s not enough that the sheriff or Stark subjectively believed it was unnecessary).

Going back to the text of the statute: Tennessee requires (as do many but not all states) that the arresting officer be “known to the person to be a law enforcement officer.”  Unfortunately, I can’t find any Tennessee cases focusing on the degree of knowledge or certainty required or whether actual knowledge is required.  But looking at a Florida Supreme Court case that considered the issue somewhat more squarely in the context of a similar statute, I think it could be argued that actual knowledge is required and that the sheriff might not have had it.  See Polite v. State, 973 So.2d 1107 (Fla. 2007) (holding that knowledge is an essential element of resisting arrest with violence in Florida).

In Polite, an undercover officer attempted to arrest a man for tampering with a parking meter.  The officer produced a badge, identified himself as an officer, and pulled out handcuffs.  There was a brief altercation, the man fled, backup was called for, and when the man was found by a uniformed officer he submitted without a struggle, saying that he wasn’t sure if the undercover officer was a policeman.

The Florida Supreme Court case was about whether knowledge of the officer’s status was required in order to convict someone of resisting arrest, not whether the defendant had that knowledge, but the court stated that

In this case, there are certainly facts to suggest that Officer Muñoz took steps to identify himself as a police officer before attempting to arrest the defendant. However, there are also facts to suggest that a jury, if properly instructed and not affirmatively misled by the prosecution, could have determined that the State failed to meet its burden on the element of whether Polite knew that the person who attempted to detain him was a police officer.

In Iron Man 3, Brandt was wearing plain clothes, used seemingly excessive force, only briefly flashed a badge (which the local sheriff probably didn’t recognize anyway), and was uncooperative.  Following the example in Polite, I’d say it could go either way (though a local jury would likely sympathize with the sheriff), and Brandt should probably have produced a little more evidence of her alleged federal status.

The real clincher, though, is not whether the state resisting arrest statute would apply.  If Brandt were a federal officer (or if the sheriff were even a little worried she might be), then the sheriff’s real concern would be 18 USC § 111, “Assaulting, resisting, or impeding certain officers or employees”.  The problem with § 111—from the sheriff’s point of view—is that it does not require knowledge that the victim is in fact a federal officer. U.S. v. Feola, 420 U.S. 671 (1975).  If Brandt really were a DHS agent, and the sheriff intervened, he might be clear of state charges, but he could still be charged with a federal crime.  Given that high level of protection, it’s no wonder the sheriff was fairly deferential under the circumstances.

II. Vice Presidential Arrest, Impeachment, and Removal

Secondly, in the end a scene is shown where the Vice President is taken into custody and led away. While the rule of law applies to the Vice President just like everyone else, are there any special procedural rules for taking him or her into custody and later indictment?

The short answer is no.  The prevailing view today is that neither the Vice President nor the President has any criminal immunity while in office, and either could be indicted prior to being impeached and removed from office.  Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law — Substance & Procedure §§ 8.10(c)(i)-(iii); Eric M. Freedman, The Law as King and the King as Law: Is a President Immune From Criminal Prosecution Before Impeachment?, 20 Hastings Const. L.Q. 7 (1992).  There have even been two historical examples: Vice Presidents Aaron Burr and Spiro Agnew were indicted.  Burr avoided arrest (though not by claiming immunity) and Agnew engaged in a plea bargain.

Presidents Nixon and Clinton tried to argue that a sitting President (specifically the President, not the Vice President) should have immunity, but their arguments were never heard in court.  In Nixon’s case, the Watergate Grand Jury didn’t indict, but the D.C. Circuit did indicate in dictum that it rejected Nixon’s argument. “[The people] do not forfeit through elections the right to have the law construed against and applied to every citizen. Nor does the Impeachment Clause imply immunity from routine court process.” Nixon v. Sirica, 487 F.2d 700, 711 (D.C. Cir. 1973) (per curiam) (en banc).

President Clinton was also never indicted, but he was subject to civil contempt of court.  He could theoretically have been charged with crimes but made various agreements with prosecutors involving, among other things, resigning from the Supreme Court bar and the state bar of Arkansas.  In Clinton v. Jones the Supreme Court upheld the civil contempt order and indicated in broad language that a sitting president could also be subject to criminal charges.  ”[T]he President, like other officials, is subject to the same laws that apply to all citizens.” Clinton v. Jones, 520 U.S. 681 (1997).

The (in my opinion rather weak) argument that the President has any immunity does not rest on explicit language in the Constitution but rather on the implication that imprisoning the President would usurp Congress’s exclusive power to remove the President from office.  Alternatively, the claim is made that it makes no sense for the executive to prosecute himself or herself.  Both of these issues have been resolved, however.

First, the Twenty-Fifth Amendment provides for the transfer of power to the Vice President if the President “is unable to discharge the powers and duties of his office,” which would presumably apply if the President were imprisoned.  The Twenty-Fifth Amendment also provides for nomination of a replacement Vice President if that office is ever vacant.

Second, the Independent Counsel Act (signed into law by President Clinton) forbids the President from firing the Independent Counsel except for cause.  Thus, by giving up control over the IC, the executive is no longer prosecuting himself or herself voluntarily.  And of course executive power is not vested in the Vice President, so prosecuting the Vice President doesn’t raise this issue in the first place, Independent Counsel or otherwise.

Even Robert Bork—and a stauncher advocate of executive privilege you’ll rarely find—argued in a memo authored while he was Nixon’s Solicitor General that only the President was immune from indictment; the Vice President was fair game. In re Proceedings of the Grand Jury Impaneled December 5, 1972, Application of Spiro T. Agnew, Vice President of the United States, Case Number Civil 73-965, Memorandum for the United States Concerning the Vice President’s Claim of Constitutional Immunity, Oct. 5, 1973.

The bottom line is that the way the Vice President’s arrest was handled in the movie was probably about right, particularly since the President was presumably entirely supportive of the arrest and prosecution.  Following the VP’s removal from office or resignation, the President would then nominate a replacement, who would take the job after confirmation by a majority of both Houses of Congress, per the Twenty-Fifth Amendment.

III. Conclusion

These two issues were both handled pretty well by the movie.  A local sheriff might well demand an explanation from a federal agent, but direct intervention is a bad idea unless the sheriff is pretty certain the “agent” is actually an impostor.  The Vice Presidential arrest was also probably how that would play out, even though strictly speaking there’s no exact precedent for it  because neither Burr nor Agnew were arrested.  It would have been more unbelievable to have him impeached first, for example, or worse, showing him resigning rather than being arrested.

This isn’t all we have for Iron Man 3.  Stay tuned!

I just watched Batman: Year One on Netflix, and there was an interesting issue presented that I thought I’d share. Toward the end of the movie, the corrupt Detective Flass is under indictment for involvement in a big drug scheme. Commissioner Gordon (through Batman’s intimidation) gets one of the crooks involved in the scheme, Jefferson Skeevers, to agree to testify against Flass.

Upon hearing this, Flass tells Gordon something along the lines of “he won’t testify if I have something to say about it…” The scene cuts to Skeevers unconscious in a hospital bed. Assuming Skeevers has confessed in a police statement out of court, wouldn’t this still be admissible against Flass under the forfeiture exception to hearsay as long as the prosecutor can show Flass had something to do with Skeevers hospitalization?

The Batman: Year One movie David mentions is a faithful adaptation of the classic Frank Miller graphic novel of the same name, several elements of which were integrated into the Christopher Nolan Batman films.  The book or animated version are well worth checking out.  We even gave away five copies of the book to celebrate our own year one.

Anyway, back to David’s question.  Before we worry about whether any hearsay exceptions or exemptions apply we have to decide whether Skeevers’s statement would be hearsay in the first place.  We don’t know what rules of evidence apply in a local criminal case in Gotham, but we’ll use the Federal Rules of Evidence, since many state rules are based on or are very similar to the FRE.

I. Is It Hearsay?

Under FRE 801, hearsay is an out of court statement (i.e. an oral, written, or nonverbal assertion) offered to prove the truth of the matter asserted in the statement.  In this case, we’re supposing that Skeevers made an oral or written assertion that Flass was involved in the scheme, Skeevers did so out of court, and the prosecution would offer Skeevers’s statement in order to prove that Flass was, in fact, involved in the Scheme (i.e. as proof that what Skeevers said was actually true).  It doesn’t matter whether the prosecution did this by offering a recording, a signed statement, or the testimony of a police officer who interviewed Skeevers.  All of that would be hearsay.

You might think about the exemption for statements ”made by the party’s coconspirator during and in furtherance of the conspiracy”, but although Skeevers and Flass may have been coconspirators at one time, these statements were not made during or in furtherance of the conspiracy.  Indeed, they were probably made as part of some kind of plea bargain or immunity deal.  Without any applicable exemptions, the statements are indeed hearsay, which is ordinarily inadmissible.

Normally this could be overcome by having Skeevers simply testify in person, which would give the jury a better opportunity to judge the truthfulness of his statements, and it would give the defense an opportunity to cross-examine him.  But Skeevers is lying unconscious in the hospital, apparently because Flass or someone acting at his behest put him there.  So now what?

Now we turn to the hearsay exceptions, of which there are several.  Some of them apply whether the declarant is unavailable or not and some of them only apply if the declarant is unavailable.  That said, it appears that only the latter will apply in this case.

II. FRE 803 and Recorded Recollections

You might think that if Skeevers had made a written statement for the police that his statement could be introduced as evidence under the recorded recollection exception of FRE 803(5).  After all, FRE 803 states that “The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness” (emphasis added).  And such a written statement would seem to fit the bill for 803(5):

A record that:
(A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;
(B) was made or adopted by the witness when the matter was fresh in the witness’s memory; and
(C) accurately reflects the witness’s knowledge.

Skeevers clearly once knew about Flass’s involvement but also clearly cannot now recall it well enough to testify fully and accurately: he is unconscious.  The statement was made when the matter was fresh in his memory, before the incident that caused his injuries.  And we’ll assume that it is an accurate statement.

But despite the phrase “regardless of whether the declarant is available as a witness“, the courts have been uniform in holding that 803(5) only applies when there is a witness available to testify that they can’t recall the matter reflected in the record.  See, e.g., Steinberg v. Obstetrics-Gynecological & Infertility Group, P.C., 260 F.Supp.2d 492 (D.Conn. 2003) (the argument that 803(5) applies to an unavailable declarant “borders on frivolous”); Jacobson v. Deutsche Bank, A.G., 206 F.Supp.2d 590 (S.D.N.Y. 2002).

None of the other 803 exceptions are likely to apply in this case, so let’s move on to the heart of the matter: exceptions that apply only when the declarant is unavailable.

III. FRE 804 and the Unavailable Declarant

Declarants can be unavailable for a lot of reasons, one of which is when they “cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness”.  FRE 804(a)(4).  That definitely describes Skeevers.

Once a declarant is unavailable, there are some special exceptions that can apply to statement they made before they became unavailable.  Two might apply in this case.  David alluded to one of them (804(b)(6)) in the question:

The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness: … A statement offered against a party that wrongfully caused — or acquiesced in wrongfully causing — the declarant’s unavailability as a witness, and did so intending that result.

If the prosecution can prove that Flass caused (and that includes indirectly causing via an agent or conspirator) Skeevers’s injuries, then it’s pretty much a slam dunk to introduce Skeevers’s statements against Flass.  After all, we already have Flass indicating his intent: ”he won’t testify if I have something to say about it…”

Another possibility is 804(b)(3), statements against interest:

A statement that:

(A) a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it … had so great a tendency … to expose the declarant to civil or criminal liability

This exception might apply if Skeevers made the statement before he struck an immunity deal.  If he spilled the beans about his role in a criminal conspiracy in which Flass also played a part, confessing to multiple crimes in the process, then that would definitely be a statement against interest.  But if he signed an immunity deal first and then talked, then his statements wouldn’t actually be exposing him to criminal liability and so the exception wouldn’t apply.  If this did apply, however, it could be a useful backup in case the prosecution couldn’t prove Flass’s involvement in Skeevers’s unavailability.

IV. Conclusion

Apart from the issue of proof, this is a classic example of 804(b)(6), which is a rule that meshes very well with most people’s intuition about fairness—and gives criminals a disincentive to intimidate or kill witnesses.

What Superheroes and Comic Books Can Teach Us About Constitutional Law

Real-Life Superheroes in the World of Criminal Law

Everyday Ethics from Superhero Attorneys

Kapow! What Superheroes and Comic Books Can Teach Us About Torts

For a 20% discount on any or all of these programs, use code KABLAM2013.

And if you missed the IP and the Comic Book Superhero program presented by the ABA IP Section, it is available for pre-order as an audio CD for delivery on May 17th.  It may be available as an on-demand program later, I’m not sure.

Finally, if you’ve already taken these courses or are looking for something different, keep an eye out for a new program (presented by Thomson West) to be announced soon.

This post is about a flashback that occurs in issue # 7 and contains some pretty major spoilers, so read with care. But the substance of the post has to do with homicide and related defenses.

I. The Homicide

This issue centers around Zoe, adopted from India, and who wanted to get into Morning Glory Academy and hang out with the cool kids. In issue # 7, we see a flashback to an event from her past, presumably her freshman or sophomore year, since all the students at MGA seem to enroll when they turn sixteen. Anyway, Zoe stumbled onto a fellow student and cheerleader being assaulted by a teacher. She hit the guy over the back of the head with a chair, accidentally killing him. But it turns out that Zoe did not interrupt a rape-in-progress, but a rather kinky roleplay between the teacher and the student. Zoe seems immediately worried that she’s going to be in enormous trouble, and her reputation will never be the same even if she avoids legal trouble.

Let’s leave aside Zoe’s concern for her reputation for a moment, as there’s no way she’d avoid notoriety if this ever got out. What are the legalities? Could she be charged with murder or some other offense? And would she have a defense?

II. The Appropriate Charge

If Zoe is to be charged with anything, it isn’t going to be first-degree murder or its equivalent. She had no premeditated intent to kill anyone, which even the most zealous prosecutor would probably recognize immediately. She had no idea the teacher was going to be in the room, much less any intent to do him harm, so a first-degree murder charge seems unlikely. Even second-degree murder seems a stretch. Sure, given the way the killing is portrayed, a prosecutor might well get a jury to bite on the idea that the killing was deliberate. She hit the guy over the back of the head with a heavy, blunt object. A jury could reasonably infer lethal intent there, so a prosecutor wouldn’t be crazy for bringing that charge. This is why many bar fights are charged as second-degree murder.

But given these facts, a voluntary manslaughter charge seems the best fit, because Zoe seems fairly obviously to be operating under the “heat of passion,” having witnessed something that would provoke any reasonable person to violence. The classic example is finding one’s spouse in bed with someone else, but any situation which would cause a reasonable person to suffer severe emotional disturbance of the sort that could lead to homicide can work, and this would certainly seem to.

So does Zoe have any defenses to a voluntary manslaughter charge?

III. Defense of Others

It turns out she probably does, as defense of others can justify the use of lethal force. This is true even though the book implies that it isn’t the case here. Zoe came upon what she believed to be a crime in progress, with the teacher inflicting what the law considers to be serious bodily injury. In such circumstances, one may use any force necessary, including deadly force, in the attempt to prevent the crime. Now the book suggests that because the sex was consensual, this defense wouldn’t apply here, but that’s not the case. Using lethal force in the defense of others is justified when any reasonable person in the same situation would believe lethal force to be necessary to prevent what a reasonable person would perceive to be a crime in progress. Even if there had been no crime in progress, as long as a reasonable person would have thought there was (and the defendant actually believed there was, of course), defense of others will work.

But more than that, though the book doesn’t seem to pick up on it, there was a crime in progress. Consent (or the lack thereof) is not an element of statutory rape, and some still put the age of consent at 18. In those states what happened would have been a felony. So what Zoe stumbled in on wasn’t common law rape, i.e., non-consensual sexual activity, but statutory rape, which is a serious felony. So not only would this have justified using lethal force in the defense of others, but private individuals are generally privileged to use lethal force to prevent felonies-in-progress, particularly felonies which involve harm to persons. Like statutory rape. Thus, regardless of what Zoe thought she saw, and even regardless of her intent in the matter, accidentally killing the teacher was likely justified in the eyes of the law.

IV. Conclusion

Again, that doesn’t say anything about the damage Zoe’s reputation would have suffered—not to mention the other girl’s—if word of this ever got out. Which is why they took the body to the school furnace and disposed of it there, apparently getting away with it. Turns out that’s probably a criminal offense, and fear for one’s reputation is not a defense. So if the prosecutor did get wind of the death, Zoe could probably escape criminal liability for the killing, but she’d definitely be in legal trouble for the cover-up (which might also constitute obstruction of justice, depending on how things went down) and for getting rid of the body.  ”It’s not the crime, it’s the cover-up.”

This immediately raises a host of questions.  Can an employer commercially exploit the genetic information of its employees without further compensation?  Does sequencing someone’s DNA mean that you own it, in some sense?  Does owning that DNA sequence confer any rights over the person?  And can DNA sequences be owned in the first place?

I. Commercial Exploitation

The answer to the first question is a pretty straightforward yes.  To begin with, people don’t have a property right in their own body parts.  Moore v. Regents of Univ. of Cal., 51 Cal.3d 120 (1990).  Once an employee gives up a cell to the employer, that employer can pretty well do what they want with it, including exploit it for commercial gain, and the employee is not entitled to a cut.  But what’s more, the employee almost certainly signed a contract indicating that the cell and any resulting intellectual property rights or income were being exchanged for employment with the company.  Similar contracts are signed all the time, whereby employees agree to assign rights in creative works or inventions to their employers in exchange for employment.

II. Gene Patents

Genetiks makes a pretty broad leap from “sequenced DNA” to “ownership.”  In reality, there’s a bit more to it than that.  There is no property right in a bare DNA sequence.  Such a sequence is simply a fact.  But if a sequence is observed to be new, useful, and nonobvious, then it may qualify as a patentable invention (NB: in the United States inventions are defined as both inventions and discoveries under 35 U.S.C. § 100(a)).  This might be the case if, for example, the sequence is the sequence for a particular gene, which is what so-called “gene patents” are about.  But that still requires applying for a patent; it’s not automatic the way copyright protection is.

III. The Scope of Gene Patents

What gene patents definitely don’t do, however, is confer any inherent rights over the person that the gene was originally sequenced from or any person that the gene is found in.  First, such patents typically claim isolated DNA molecules with a particular sequence, which don’t exist in human beings, even humans with the genes in question.  Second, it has long been Patent Office policy—now codified in the law—that no patent may claim an invention “directed to or encompassing a human organism.”  Third, even if all that failed, the 13th Amendment would almost certainly have something to say about it.

IV. Are Human Genes Patentable?

But all of this may be a moot point.  The Supreme Court is current considering that question (“are human genes patentable?”) in the case of Association for Molecular Pathology v. Myriad Genetics, Inc.  The oral arguments were heard earlier this month, and the case has the potential to upend the biotechnology sector in the United States.  I won’t try to read the oral argument tealeaves, but I will say that—in general—recent Supreme Court patent cases have not been especially favorable to inventors and patent owners.

V. Conclusion

Genetiks is a good read, even though it rests on an extremely shaky legal premise.  You pretty much have to assume that it takes place in an alternate universe with a very different legal system, despite its apparent similarity to our own world and overall realistic tone.