Author Archives: James Daily

Mailbag for June 27, 2011

Posted on June 27, 2011 | 8 comments

Today’s mailbag is a grab bag of questions from astute reader Jessica.  We have questions about rogue superheroes, more on the Negative Zone and the Eighth Amendment, and personal jurisdiction and The Dark Knight.  As always, if you have questions or post suggestions, please send them to james@lawandthemultiverse.com and ryan@lawandthemultiverse.com or leave them in the comments.

I. Rogue Superheroes and RICO

For the first question, Jessica asks “[A]re the X-Men or the Avengers complicit or in any way culpable if [Wolverine kills someone or uses excessive force] while out with a team, given that they know he does this?”

This is a great question and one we’ve been thinking about for a while.  We’ve talked about how RICO statutes could be used against supervillain organizations but we haven’t considered how the laws might apply to a superhero organization with rogue members.

First, a brief summary of RICO (Racketeer Influenced and Corrupt Organizations) laws.   The original RICO law is the federal version, 18 USC 1961-1968, although many states have passed their own similar laws.  The general pattern of the law is that a person who is a member of an organization that has committed any two of a list of 35 crimes within a 10 year period can be charged with racketeering, which is a serious felony.  To be charged with racketeering the member must have done at least one of the following (paraphrased from 18 USC 1962):

  • have invested income derived from racketeering activity in an organization engaged in or affecting interstate or foreign commerce
  • acquired or maintained an interest or control in such an organization through a pattern of racketeering activity
  • conducted or participated in the affairs of such an organization, directly or indirectly, through a pattern of racketeering activity
  • or conspired to do any of the first three

It’s important to note the phrases “derived from racketeering activity” and “through a pattern of racketeering activity.”  Merely investing income derived from an organization doesn’t count: it has to have come from racketeering activity (e.g. counterfeiting, theft, drug trafficking, securities fraud).  Similarly, merely controlling or participating in an organization doesn’t count: the control or participation has to be accomplished through a pattern of racketeering activity (e.g. extortion, bribery, murder).  These requirements prevent innocent members of an organization from getting swept up in a RICO action.

The practical upshot of this is that even if a member of an organization (Wolverine, for example) commits the required crimes (e.g. murder), the other X-Men may not be criminally liable under RICO if their own activities (investment, control, or participation) were unrelated to racketeering activity.  It’s not like Professor X routinely asks Wolverine to murder people or the other X-Men routinely assist Wolverine in committing murder.  Perhaps the biggest issue is if any of Wolverine’s unlawful activities brought money into the organization.  X-Men who invested those ill-gotten gains could find themselves facing charges (and a civil suit) under RICO.

Basically, RICO doesn’t work very well if applied to a fundamentally law-abiding organization, and this is by design.

II.  The Negative Zone and the Eighth Amendment Revisited

The second question is about the emotional effects of the Negative Zone: “Would [the effects] be a factor in determining the conditions for the purposes of Eighth Amendment compliance?”  In other words, does imprisoning someone in the Negative Zone violate the Eighth Amendment because of the Zone’s effects on people’s emotions and mental health?

In short, we think the answer is no.  The fact is that even regular prisons are seriously depressing, so it’s already going to be difficult to prove that a prison in the NZ is worse enough to be considered cruel or unusual punishment.  As the Supreme Court has said:

“The unnecessary and wanton infliction of pain . . . constitutes cruel and unusual punishment forbidden by the Eighth Amendment. We have said that among unnecessary and wanton inflictions of pain are those that are totally without penological justification. In making this determination in the context of prison conditions, we must ascertain whether the officials involved acted with deliberate indifference to the inmates’ health or safety.”  Hope v. Pelzer, 536 U.S. 730, 737-38 (2002) (holding that handcuffing an inmate to a hitching post outdoors for several hours with inadequate water and restroom breaks violated the Eighth Amendment) (quotations and citations omitted).

Furthermore, “a prison official’s act or omission must result in the denial of the minimal civilized measure of life’s necessities.”  Farmer v. Brennan, 511 U.S. 825, 834 (1994).  Prison officials “must provide humane conditions of confinement; prison officials must ensure that inmates receive adequate food, clothing, shelter, and medical care, and must take reasonable measures to guarantee the safety of the inmates.”  Id. at 833.

In the Negative Zone case the emotional effects are not really part of the punishment but just a side effect of the place.  Because the Negative Zone is the only suitable prison for many supervillains, the side effect is arguably necessary.  Further, the side effects are not controlled or intentionally inflicted by anyone.  Thus, the effects are not inflicted wantonly (i.e. deliberately and unprovoked).  A charge of deliberate indifference could probably be eliminated by offering the inmates adequate living conditions and mental health care to offset the effects of the Negative Zone.  Finally, it would be difficult to argue that imprisonment in the Negative Zone denies the minimum civilized measure of life’s necessities.  “The Constitution does not mandate comfortable prisons,” as the Farmer court noted, only humane ones, and the Negative Zone is probably not bad enough to run afoul of the Eighth Amendment under the circumstances.

III. The Dark Knight and Forcible Personal Jurisdiction

The last question is about The Dark Knight (spoilers if you haven’t seen the movie yet, which you really should).

“In the Dark Knight, a Chinese national commits crimes on American soil, or at least against American citizens (even if they were all money-related crimes), and then returns to China knowing he won’t be extradited.  Batman follows him, kidnaps him, and dumps him back in America in police custody.  What are the basic legal repercussions of this, given Batman’s pseudo-status with the police?  What if it had been a completely free agent instead of Batman?”

As it turns out, the Chinese national is out of luck, assuming the prosecutor wants to file charges against him.  The Supreme Court has consistently held that “the power of a court to try a person for crime is not impaired by the fact that he had been brought within the court’s jurisdiction by reason of a forcible abduction.”  Frisbie v. Collins, 342 U.S. 519, 522 (1952).  This is true even if the abductors were government agents (in the Frisbie case the defendant Collins was allegedly abducted by police officers and taken to another state to be tried).  This rule, known as the Ker-Frisbie doctrine, has been upheld quite recently at the circuit level.  See, e.g., United States v. Arbane, 446 F.3d 1223 (11th Cir. 2006).

However, the abductor may still be liable under the Federal Kidnapping Act, 18 USC 1201.  And if the abductor were a state actor (or at least seen to be one politically), then China would likely take a very dim view of it, to say the least.

That’s all for today’s mailbag.  Keep your questions coming in!

8 Comments

Posted in constitutional law, criminal law, criminal procedure, mailbag

Law and the Multiverse CLE

Posted on June 27, 2011 | 1 comment

Thanks to everyone who signed up for the Law and the Multiverse CLE courses, and thanks again to Thomson West for the opportunity to present them.  The Ethics CLE course we presented today had over 120 attorneys tuned in (“off-the-charts,” said our Thomson West director)!  We look forward to doing more CLE courses in the future, so if there are any topics that you’d like to hear about, please let us know.

1 Comment

Posted in interviews and podcasts

Manhunter, Volume 4 Part 1

Posted on June 22, 2011 | 2 comments

This is the first part of our fourth post in our series on the Marc Andreyko run of Manhunter (prior posts one, two, and three).  This volume has quite a few more legal issues than the last one, including conflicts of interest, fee arrangements, grand jury procedure, multiple evidentiary issues, the allocation of authority between the lawyer and the client, and lawyers’ media rights.  We’ll talk about the first two of those issues in this post.  The rest will have to wait for future entries in this series.  As always, spoilers follow.

I. Conflicts of Interest

In this volume we see the conclusion of the trial of Dr. Psycho (short version: he flips out and tries to kill everyone before the verdict is read; Kate Spencer / Manhunter stops him; it turns out he was found not guilty anyway).  Later, Spencer represents Wonder Woman, who has been accused of murdering Maxwell Lord.  As a reporter in the comic puts it: “How do you rep heroes and villains?”  If the report knew Spencer’s identity as Manhunter, he might also have asked “How do you rep the same villains that you fight as a superhero?”

ABA Model Rule 1.7 describes conflicts of interest between current clients.  As a criminal defense lawyer, Spencer will rarely run afoul of a direct conflict of interest, since her clients are never suing each other.  However, she may run afoul of a ‘material limitation’ in her ability to effectively represent her clients.  From the Rule:

[A] lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if … there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

As you can see, the conflict can exist not only between clients but between a client and anyone, including the lawyer.  The comments to the Rule further explain that “a conflict of interest exists if there is a significant risk that a lawyer’s ability to consider, recommend or carry out an appropriate course of action for the client will be materially limited as a result of the lawyer’s other responsibilities or interests.”

Spencer is written as a highly competent lawyer able to separate her identities and responsibilities as a lawyer and a superhero.  But the ethical rule doesn’t require an actual conflict; a significant risk is sufficient.  Under that standard, Kate really should seek to fix the conflict.  And as it turns out, many conflicts can be waived.  As the Rule explains:

[A] lawyer may represent a client if:

(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;

(2) the representation is not prohibited by law;

(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and

(4) each affected client gives informed consent, confirmed in writing.

So how does this apply to Spencer and her motley mix of clients?

A. Conflicts Between Wonder Woman and Villain Clients, Current and Former

In this case, Wonder Woman appears to give something like informed consent, which we can presume was confirmed in writing.  Certainly Spencer and Wonder Woman discuss the various kinds of clients that Spencer represents, and Wonder Woman praises Spencer’s objectivity.  We don’t know if Spencer has any other clients at the moment, but if any are the type that routinely fight superheroes (especially if they fight Wonder Woman specifically), Spencer will have to seek their consent as well.

But what of Spencer’s other clients, like Dr. Psycho?  Well, after he attacked her we can presume that he is a former rather than a current client, but attorneys still owe many duties to their former clients, and Model Rule 1.9 covers conflicts with former clients.  Per the Rule, most conflicts with former clients can be cured by informed, written consent, but an attorney generally can’t reveal confidential information or use it to disadvantage a former client.  The problem is that a client like Dr. Psycho may very well refuse to give that consent, even if only out of spite.

Here, though, Spencer doesn’t need Psycho’s consent, since she is representing Wonder Woman in an unrelated matter that will not require using anything she learned in confidence from Psycho.

B. Conflicts Between Spencer-as-Manhunter and Villain Clients

It’s all well and good that Spencer didn’t need Psycho’s consent to represent Wonder Woman, but what about representing Psycho in the first place?  Was there not a significant risk that Spencer’s secret identity as Manhunter could materially limit her ability to zealously advocate for a supervillain like Dr. Psycho?  Part of the problem here is that Spencer’s secret identity is, well, secret.  It would be impossible for her to get Psycho’s informed consent without informing him of her identity.  (NB: This wasn’t a problem with Wonder Woman since WW had deduced Spencer’s identity already.  It probably wouldn’t be a problem anyway in that case.).  If this seems like an insurmountable problem, that’s because it is.  If Spencer wants to keep her identity secret yet still represent supervillains, she has no choice but to break the ethical rules.

II. The Meaning of Pro Bono and Client Gifts

Because Themyscira’s United States assets were frozen after Maxwell Lord was killed, Spencer offers to take the case pro bono (short for pro bono publico: for the public good)—except that she also asks Wonder Woman to train her.  Is this a problem?  Doesn’t pro bono mean “free of charge” as well?

Actually, as ABA Model Rule 6.1 explains, most pro bono work can and should be “without fee or expectation of fee,” but it can also be “delivery of legal services at a substantially reduced fee to persons of limited means.”  Under the circumstances, Wonder Woman is a person of limited means.  The question is whether a one-on-one training session with an A-List superhero is really a substantially reduced fee.  That’s hard to say either way, but in the end it’s a moot point.  As the comments to the rule explain, “The responsibility set forth in this Rule is not intended to be enforced through disciplinary process,” so no one is going to formally chastise Spencer if she claims this as pro bono work.

But what if Spencer really is representing Wonder Woman for free.  Taking a close look at the dialogue, it’s arguable that Spencer was soliciting a gift from Wonder Woman.  Rule 1.8(c) flatly forbids attorneys from soliciting substantial gifts from their clients unless the client is a relative.  It would behoove Spencer to make it clear (preferably in writing, per Rule 1.5) that the training was, in fact, the fee for her services and not a gift.

III. Conclusion

There are a ton of legal issues in this volume left to discuss, so stay tuned!

2 Comments

Posted in legal ethics

Law and the Multiverse CLE Reminder

Posted on June 17, 2011 | 3 comments

Just a reminder for the attorneys in the audience:  Our online CLE courses presented by Thomson West are fast approaching.  The June 21st program is an overview of some torts concepts illustrated by comic book situations, and the June 27th program is about superhero attorneys and legal ethics.  Be sure to use promotional code HEROES2011 for a 25% discount!

3 Comments

Posted in interviews and podcasts, legal ethics, torts

Mailbag for June 17, 2011

Posted on June 17, 2011 | 7 comments

In today’s mailbag we have a follow-up question about the legal ramifications of psychic powers.  We’ve discussed some of these issues already, including hearsay, Fourth, and Fifth Amendment issues; liability for and the unintended consequences of causing amnesia; and more recently liability for causing others to commit crimes.  Astute reader Tim had three questions about some areas that we haven’t addressed yet, or at least not fully.  As always, if you have questions or post suggestions, please send them to james@lawandthemultiverse.com and ryan@lawandthemultiverse.com or leave them in the comments.

I. Surface Thoughts

Tim first asks “Is picking up the ordinary surface thoughts of another person a form of illegal intrusion?”  It’s important to emphasize that we’re talking about a private actor here.  A government psychic would generally need a warrant in order to read even someone’s surface thoughts (i.e. what they are thinking of right then) because if there is anywhere a person has a reasonable expectation of privacy it’s their own thoughts.  But what about a private actor like Professor X?  If X-Men: First Class is anything to go by then he does it all the time to chat up women in bars.  Is he breaking the law or just slightly sketchy?

First, let’s define some terms.  Since by “surface thoughts” we mean what the person is thinking of at the moment, the psychic isn’t causing any changes in the subject’s brain or body by reading those thoughts.  In other words it’s non-invasive.  It’s more like a very precise long-distance EEG.  The best real-world comparisons might be eavesdropping, which is generally legal—if impolite—although the eavesdropper may be breaking the law in other ways, such as trespassing.

Taking our cue from eavesdropping we can turn to the law of privacy, which we’ve talked about before in a four part series.  The best fit seems to be intrusion, discussed in the first part of the series.

Intrusion can be summarized as follows: (1) an intentional intrusion, physical or otherwise, (2) upon the plaintiff’s solitude or seclusion or private affairs or concerns, (3) which would be highly offensive to a reasonable person.  Moreover, courts have held that the right to privacy includes psychological & emotional solitude and the intrusion can occur in a public place.  See, e.g., Phillips v. Smalley Maintenance Svcs, Inc., 435 So.2d 705, 711 (Ala. 1983) (holding “one’s emotional sanctum is certainly due the same expectations of privacy as one’s physical environment.” and “the ‘wrongful intrusion’ privacy violation can occur in a public place, when the matter intruded upon is of a sufficiently personal nature”).  Finally, most reasonable people would probably consider having their mind read to be a highly offensive intrusion, especially if the thoughts read were personal or private.

II. Deeper Thoughts and Memories

The second question was about deeper thoughts (i.e. actively plumbing the depths of the subject’s mind or forcing them to recall memories).  This is probably just a more intense form of intrusion, particularly in the case of forced recall (i.e. the subject is not just being passively scanned but rather actively experiencing the memories).  That begins to enter the next category.

III. Mind Control and Memory Alteration

Now we shift gears from mere intrusion to outright assault or battery.  Because of the way the brain works, anything a psychic does that actually affects the mind of the subject must necessarily affect the subject’s physical neurons.  That’s definitely the way it works in the DC universe, as well, as Doctor Mid-Nite testified in Manhunter vol. 3.

If the alteration is harmful or even merely offensive then that’s a battery in tort terms because battery only requires an intentional harmful or offensive contact, which does not have to be a literal touching of the defendant’s body to the plaintiff’s.  For example, many jurisdictions have held that intentionally blowing tobacco smoke at a person can be a battery.  See, e.g., Leichtman v. WLW Jacor Communications, Inc., 92 Ohio App.3d 232 (1994).  Even something as incorporeal as a laser is also capable of touching a person.  Adams v. Commonwealth, 534 S.E.2d 347 (Ct. App. Va. 2000) (Adams is a criminal assault and battery case but the principles are applicable to tortious battery).

And speaking of criminal assault and battery, as we discussed in the comments on the amnesia article, these kinds of psychic attacks may qualify.  In the comments we discussed Missouri law, but it is not unique.  In Virginia, for example, “battery is the actual infliction of corporal hurt on another (e.g., the least touching of another’s person), willfully or in anger, whether by the party’s own hand, or by some means set in motion by him.”  Adams, 534 S.E.2d at 350.  Affecting even a single neuron would seem to qualify as “the least touching of another’s person,” and a psychic attack is definitely “some means set in motion by [the psychic].”

These kinds of psychic attacks may also be grounds for a claim of intentional infliction of emotional distress, especially if the forced actions, forcibly recalled memories, or implanted memories are extreme or outrageous.

IV. Conclusion

Psychics should be careful of how they use their powers.  There are many possible defenses, including consent, necessity, and self-defense and defense of others.  But intruding into another person’s private thoughts or reaching out and touching their mind is not something to be undertaken lightly.

That’s all for this week!  Keep your questions coming in!

7 Comments

Posted in criminal law, mailbag, torts

Manhunter, Volume 3

Posted on June 15, 2011 | 20 comments

This is the third post in our series on the Marc Andreyko run of Manhunter (prior posts one and two).  Volume Three is quite a bit lighter on the overt legal issues, so this will be a short post for the sake of completeness.  In fact, there’s really only one issue of note.  Spoilers follow, as always.

I. Murder by Psychic Possession

At this point Kate has resigned as a federal prosecutor and now works as a criminal defense attorney.  Her client in this volume is Doctor Psycho, on trial for telepathically commanding several civilians to kill a gang of villains who wouldn’t follow his orders.  It’s not made clear, but Psycho is apparently on trial for murder.  We’ve previously considered whether someone subject to mind control would be responsible for any crimes they are ordered to commit (short answer: no), but this cases raises a different question: is the mind controller himself criminally liable for acts committed by people under his control?

For clarity, we’ll refer to three people here: the telepath, the intermediary (i.e. the person being controlled), and the victim (i.e. the ultimate victim of the crime).

The answer here is a probably yes, under one of two theories.  If the intermediary is indeed under the control of the telepath, then that person is simply an instrument used to commit the crime, no different from a tool in the hands of the telepath.

If, on the other hand, the intermediary was not so thoroughly controlled by the telepath as to absolve them of legal responsibility (e.g. they were still fundamentally in control of themselves), then the telepath becomes a conspirator.  Effectively the telepath suggested a crime, the intermediary agreed, and (in jurisdictions where this is required) at least one step was taken in furtherance of the conspiracy.  This opens the door to conspirator liability for the telepath.  He or she would be liable for the separate crime of conspiracy as well as all crimes committed in furtherance of it.

We should note one possible loophole, however: in many jurisdictions, particularly those that have adopted the Model Penal Code, “[a] person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or the omission to perform an act of which he is physically capable.”  MPC § 2.01(1) (emphasis added).  An “act” is defined as “bodily movement whether voluntary or involuntary.”  MPC § 1.13(2) (emphasis added).  So, literally speaking, a telepath who can control someone’s mind without voluntary bodily movement (which covers most telepaths) may not be criminally liable.

However, the MPC does not actually specify that the required bodily movement be the defendant’s.  One possible reading of § 2.01(1) would be “[a] person is not guilty of an offense unless his liability is based on [an action and its accompanying state of mind] which includes (a voluntary [bodily movement]) or (the omission to perform an act of which he is physically capable).”  Under that reading, a telepath would be guilty of any crimes involving voluntary bodily movements intended by the defendant but would only be guilty of a crime of omission if he or she was physically capable of the act himself or herself.  In other words, a telepath wouldn’t be liable for failing to command someone else to perform an act that the telepath wasn’t physically capable of.  But the telepath would be liable for causing someone else’s body to commit a crime.  This seems like a fair result to us.

II. Conclusion

Telepaths are probably guilty of crimes they command others to commit, even if it takes a little creative statutory interpretation to get there.  Stay tuned for the next post in this series: the next volume features Wonder Woman being charged with murder!

20 Comments

Posted in criminal law

The Trial of Captain America

Posted on June 7, 2011 | 3 comments

The Trial of Captain America was a 5 issue Captain America story arc covering the trial of James Buchanan “Bucky” Barnes, who took over as Captain America following Steve Rogers’s apparent death.  There are a bunch of legal issues here—mostly handled pretty well—so let’s get right to it.  Spoilers ahoy.

I. The Charges

By way of background: In 1945 Bucky was found by the Russians after the plane he was in exploded, plunging him into the icy North Atlantic.  The Russians revive Bucky and take advantage of his amnesia to reprogram him as an assassin.  During his career as the Winter Soldier, Bucky kills numerous US citizens.  When word of this leaks out decades later, Bucky submits to a criminal trial in order to clear his name.

So, are these charges appropriate?  There’s no statute of limitations for murder, so when they occurred is unimportant.  But what about where?  No doubt some of the murders occurred “within the special maritime and territorial jurisdiction of the United States” as required by the federal murder statute, 18 USC 1111.  But what if Bucky murdered a US citizen abroad?  Could he still be charged in a US court for that?  As it turns out, maybe.  18 USC 2332 criminalizes, among other things, the murder of US nationals abroad, but it was only enacted in 1986.  Bucky could potentially dodge being charged for a few early crimes that way, but it only takes one successful murder charge to make for a serious prison sentence.

II. Legal Ethics

Steve Rogers asks a friend (and former girlfriend) of his, Bernie Rosenthal, to act as Bucky’s defense attorney.  That’s not the problem.  The problem is that Steve not only sits in on Bucky’s first meeting with Bernie but actively participates in discussion of trial strategy.  We don’t see them discuss anything too sensitive, but this is a great way to waive attorney-client privilege.  Only the client can waive the privilege, but the simplest way to do it is to let a non-privileged person (like Steve) in on the confidential information.  To protect against this, Bernie probably should have asked Steve to leave the room lest he be called to testify about their discussion.  At the very least she should have informed Bucky that letting Steve stay in the room would risk waiving the privilege.

As Kate Spencer did in Manhunter vol. 2, Bernie goes on a Larry King Live-esque talk show to argue her case in the court of public opinion.  Unlike in  Manhunter, this comic doesn’t show her saying anything particularly problematic.  In fact, the host says “many would argue [Bucky] has already been tried in the media”, to which Bernie replies “And that’s why I’m here, Barry.  For weeks we’ve had a 24 hour-a-day bashing of my client with no balance whatsoever.”  This could be seen as an invocation of ABA Model Rule 3.6(c):

a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity.

(A side note: Steve, Bernie, and Bucky discuss whether to put Bucky on the stand, with Bernie against it, Steve initially for it, and Bucky agreeing with Bernie.  While most issues of trial strategy are ultimately at the discretion of the attorney, whether or not a criminal defendant takes the stand is up to the defendant.  ABA Model Rule 1.2(a).  So while Bernie can (wisely) counsel Bucky not to take the stand, Bucky could have gone against that advise.  The same is true of the decision to waive the right to a jury trial, which Bucky does.)

III. Cameras in the Court Room

The judge in the case bars cameras from the courtroom in order to avoid a media circus.  This is a curious thing to mention because it’s a federal case, and cameras are forbidden in federal courts, outside of a very recent pilot program.  Still, a judge has pretty much complete control over the court room, and even if cameras were potentially allowed he could easily prohibit them instead.

IV. “Doctor-Patient Confidentiality”

Sin, daughter of the Red Skull, leaks a video of a interview from a psychiatric hospital in which she accuses Bucky of being the Red Skull’s willing accomplice (and not, as Bucky claimed, mind controlled).  It’s strongly hinted that Sin made up the accusations on the tape knowing that they would be used in the trial.  In any case, the prosecution submits the video as evidence.  While Steve and Bernie are discussing the tape (another ethically shaky move), Steve asks “is it even admissible?”  Bernie replies “I don’t know.  Leaking your own psych interviews to the press probably invalidates doctor-patient confidentiality.”  This is a pretty serious misstatement of the physician-patient privilege for two reasons.

First, doctor-patient confidentiality refers to a doctor’s ethical obligation to keep what a patient tells them confidential.  The physician-patient privilege is the evidentiary privilege that allows a patient to prevent a physician from testifying as to certain things in certain circumstances.

Second, yes, leaking the tape to the press would waive the privilege, but as the holder of the privilege Sin was always free to do so.  The privilege prevents no problems with regard to the tape’s admissibility as long as it is clear that Sin was responsible for the leak.

It’s also worth noting that the federal courts do not recognize the physician-patient privilege.  See, e.g., United States v. Bek, 493 F.3d 790, 801-02 (7th Cir. 2007) (“we can find no circuit authority in support of a physician-patient privilege … and we can find no reason to create one now”).  However, they do recognize the psychotherapist-patient privilege.  See Jaffee v. Redmond, 518 U.S. 1 (1996).  So depending on who Sin was talking to in the interview, a privilege might or might not have existed in the first place, at least as far as the federal courts are concerned.

However, all of this misses the real reason the tape is very likely inadmissible: it’s hearsay because the tapes are Sin’s out of court statements offered to prove the truth of what she’s saying (i.e. that Bucky was a willing accomplice of the Red Skull).  Further, none of the hearsay exemptions or exceptions apply.  Sin isn’t discussing the details of a conspiracy with Bucky that she was a part of while she was a part of it, so Federal Rule of Evidence 801(d)(2)(E) doesn’t apply.  Although it’s a quasi-medical interview these particular statements don’t seem like they were made “for purposes of medical diagnosis or treatment,” so 803(4) doesn’t apply.  Sin is unavailable to testify, but her testimony doesn’t meet any of the 804(b) exceptions.  The 807 / 804(b)(5) catchall exception could apply, but we find it extremely hard to believe that Sin’s interview has the necessary “equivalent circumstantial guarantees of trustworthiness.”  She is, after all, a delusional psychopath with a known vendetta against Captain America.  It’s hard to get less trustworthy.

—

There are more legal issues  in this storyline to talk about.  Check out part 2 here!

3 Comments

Posted in criminal law, criminal procedure, evidence, legal ethics

Manhunter, Volume 2

Posted on June 3, 2011 | 15 comments

(Note: We’ll have a review of the new X-Men movie up soon.)

This is the second post in our series on the Marc Andreyko run of Manhunter (here is the first).  The second volume contains some interesting legal issues, including prosecutorial ethics and subpoenaing a superhero.  Spoilers follow.

I. Prosecutorial Ethics

Kate Spencer (aka Manhunter) is a federal prosecutor.  In advance of the trial of Shadow Thief for the murder of Firestorm, Kate appears on a Larry King Live-esque TV show to talk about the trial, which she is litigating.  A caller asks Spencer if she thinks Shadow Thief will plead out or offer to turn state’s evidence against other supervillains.  Spencer responds “Well, I can’t get into specifics about the prosecution’s plans, but Mr. Carl Sands has many connections in the supervillain community, so I would, theoretically, be interested in hearing what information he would have to offer” (emphasis in original).

This is a somewhat problematic statement.  California Rule 5-120—California’s version of ABA Model Rule 3.6—governs trial publicity, and it specifically applies to prosecutors and defense attorneys.  The general rule is that

A member who is participating … in the … litigation of a matter shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the member knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.

Here, Spencer is participating in the litigation of a matter and has made an extrajudicial statement (i.e. out of court) that will definitely be disseminated by means of public communication (she’s on a live national TV show).  The question is, does the statement have a substantial likelihood of materially prejudicing the trial?  That’s hard to know.  Certainly the statement could be prejudicial because it suggests the defendant’s guilt by association.  However, if it can be proved in court by admissible evidence, then that’s less of a problem.  Unfortunately, we never see such evidence introduced, so it’s hard to say.  This kind of statement is indicative of the careful line prosecutors and other litigators must walk when talking about a case, and Spencer’s other public comments (at least the ones we see) are carefully measured.

II. Serving Superman a Subpoena

Actually, Superman, Hawkman, and Batman are served, although we only see Superman and Hawkman testify.  The interesting thing is, they are served at Justice League headquarters on the Moon.  Naturally this raises a question: is such service of process effective?  After all, it’s for a federal court case, but the Moon is explicitly not the territory of any nation.

Federal Rule of Criminal Procedure 17 states:

A marshal, a deputy marshal, or any nonparty who is at least 18 years old may serve a subpoena.  The server must deliver a copy of the subpoena to the witness….If the witness is in a foreign country, 28 U.S.C. § 1783 governs the subpoena’s service.

The process server delivers the subpoenas in person the three recipients.  But what about this “foreign country” business?  We think a court would consider this to include the Moon, despite its non-territorial status.  The Rules make a distinction between the United States and “foreign countries,” and a court could easily read this to mean “the rest of the universe.”

As the Supreme Court has said “Nor can it be doubted that the United States possesses the power inherent in sovereignty to require the return to this country of a citizen, resident elsewhere, whenever the public interest requires it, and to penalize him in case of refusal. … It is also beyond controversy that one of the duties which the citizen owes to his government is to support the administration of justice by attending its courts and giving his testimony whenever he is properly summoned.”  Blackmer v. United States, 284 U.S. 421, 437-38 (1932).  It is unlikely that the courts would allow a witness to escape this duty simply by fleeing to unclaimed territory, especially when service of process was otherwise carried out properly.

So on to 28 USC 1783:

(a) A court of the United States may order the issuance of a subpoena requiring the appearance as a witness before it … of a national or resident of the United States who is in a foreign country … if the court finds that particular testimony … by him is necessary in the interest of justice

(b) The subpoena shall designate the time and place for the appearance …. Service of the subpoena … shall be effected in accordance with the provisions of the Federal Rules of Civil Procedure relating to service of process on a person in a foreign country. The person serving the subpoena shall tender to the person to whom the subpoena is addressed his estimated necessary travel and attendance expenses, the amount of which shall be determined by the court and stated in the order directing the issuance of the subpoena.

Superman, Hawkman, and Batman are all identified as nationals or residents of the United States (“Superman of Metropolis, Hawkman of St. Roch, Batman of Gotham”), and presumably the court is satisfied that their testimony is necessary.  And since the JLA has a teleporter, Superman and Hawkman can fly, and Batman owns his own plane, we’ll assume that either travel and attendance expenses were waived by the witnesses or that the court found them to be zero.

In sum: if you can find them, you can subpoena a superhero pretty much anywhere.  And if they don’t show up, then the court can find them in contempt, fine them up to $100,000, and sell their stuff to pay the fine under 28 USC 1784.

III. Superheroes on the Stand

Hawkman and Superman both testify at the trial as witnesses for the prosecution.  Hawkman testifies about the defendant, Shadow Thief, and Superman testifies about Firestorm, the victim.  We want to address two issues raised by their testimony.  First, Hawkman gives a good example of common hearsay issues, and Superman gives a good example of the practical reality of asking a superhero about their identity on the stand.

Spencer asks Hawkman “And did you, in your many confrontations with [the defendant], ever warn him of the dangers of prolonged use of the device [that gave the defendant his powers]?”  Hawkman answers “When he wasn’t trying to kill me, yes, but [the defendant] wouldn’t hear of it.  He believed that he was stronger than the belt and ignored my multiple warnings.”

There are two issues here.  First, Hawkman is recounting his own out of court statements to the Shadow Thief (i.e. the warnings).  This is not hearsay, however, because the statement is not offered to prove that the belt was, in fact, dangerous (Hawkman’s own expert testimony regarding the belt is sufficient for that).  Instead, the statement is offered to prove only that Shadow Thief was on notice.  This is a classic non-hearsay use of an out of court statement.

Second, Hawkman says “[the defendant] wouldn’t hear of it.  He believed that he was stronger than the belt.”  This is problematic.  If Shadow Thief had made some statements to that effect (e.g. “I’m strong enough, Hawkman”), then Hawkman’s testimony as to those statements would be admissible under FRE 803(3) as “a statement of the declarant’s then existing state of mind.”  As it was, though, the defense really should have objected to that answer.

Finally, the defense asks Superman point blank “what is your legal identity?”  Naturally, Superman refuses to answer.  Then the defense does the smart thing and simply notes that the witness is refusing to answer a direct question under oath, thus impeaching Superman’s credibility as a witness.  Theoretically the defense could press the issue, and the court could even find Superman in contempt, but everybody knows that would be a pointless distraction.  This is probably how things like this would actually play out in court.

IV. Conclusion

There are more legal issues to cover in the next three volumes, so stay tuned for the rest of this series!

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Posted in criminal procedure, evidence, legal ethics

The Lincoln Lawyer

Posted on May 27, 2011 | 28 comments

A couple of months ago we were asked about the movie The Lincoln Lawyer.  It’s not a comic book film, but it’s still close enough to pop culture that we thought people might be interested in a short post about it.  Spoilers follow, starting with the question itself.

“Benjamin Button” asks “is it feasible that any of [Mickey Haller’s] ‘legal obligations’ could prevent him from telling the courts that his client did in fact murder someone?”

In the film, Mickey Haller is the titular criminal defense lawyer.  He discovers that one of his clients (Louis Roulet) is a serial killer, but attorney-client privilege apparently prevents him from disclosing information that could free a former client (Jesus Martinez) wrongly convicted of one of Roulet’s crimes.  So the question really goes to the crux of the plot: is Haller actually in an ethical bind, and is his solution actually within ethical boundaries?

I. The Attorney-Client Privilege and the Duty of Confidentiality

The film is correct in stating that the privilege is held by the client, not the attorney, and that an attorney has an obligation to keep a client’s confidences.  In California, where the film takes place, the Business and Professions Code § 6068(e)(1) states that attorneys must “maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.”  Confidentiality is a key part of being an attorney, and attorneys take that obligation very seriously, even in the face of death threats and criminal charges.  Without Roulet’s permission Haller could not testify against Roulet in court, nor could he disclose what he knew to the police or anyone else.

There are narrow exceptions to the duty of confidentiality, but they do not apply here.  In California, an attorney “may, but is not required to, reveal confidential information relating to the representation of a client to the extent that the member reasonably believes the disclosure is necessary to prevent a criminal act that the member reasonably believes is likely to result in death of, or substantial bodily harm to, an individual.”  California Rules of Professional Conduct 3-100.  Although Roulet showed signs of being a serial killer he was careful not to overtly threaten anyone or indicate a planned future crime.  Haller’s hands remain tied.

II. Haller’s ‘Solution’

Unfortunately, Haller’s solution is not free of ethical problems, to say the least.  The biggest issue is that Haller inappropriately discloses confidential information to at least two people: Gloria and Margaret.

Gloria is the imprisoned client that he uses to relay information to a known jailhouse snitch; she alleges to the snitch that if he testifies against Roulet that the prosecutor will cut him a deal.  There are several problems here.  First, there’s the breach of confidence inherent in disclosing anything that Roulet told Haller.  Second, he asked Gloria to solicit the snitch to commit perjury.  This is a violation of Rule 1-120 and quite likely a crime as well.

Margaret is Haller’s ex-wife and a prosecuting attorney.  Haller tells Margaret that his investigator, Frank, found information tending to exonerate Jesus Martinez and implicating Roulet in a prior murder.  But Frank only found that information as part of his investigation into Roulet’s alibi, and therefore the information is privileged.  Note that in many jurisdictions Margaret would be under an affirmative duty to report Haller’s ethical breach (ABA Model Rule 8.3), but California does not have a mandatory reporting rule for attorneys.  Nonetheless, she could theoretically report him, although the movie suggests that would be out of character for her.

III. Haller’s Other Ethical Breaches and Crimes

Haller commits several other ethical breaches, but we’ll limit our discussion to three of the most egregious ones.  First, he lies to a judge about the need to continue a trial by inventing a fictitious witness (“Mr. Green”) in order to extract payment from a client.  This violates Rule 5-200: an attorney “Shall not seek to mislead the judge … by an artifice or false statement of fact.”  It also violates § 6068: an attorney may not “encourage … the continuance of an action or proceeding from any corrupt motive of passion or interest.”  It’s also almost certainly a crime.

Second, Haller commits an ethical violation when he promises to recommend Val Valenzuela’s bail bond services in exchange for being recommended as an attorney to Roulet.  Rule 1-320(B) states “A member shall not compensate, give, or promise anything of value to any person … for the purpose of recommending … employment of the member … by a client, or as a reward for having made a recommendation resulting in employment of the member … firm by a client.”  Although it ultimately comes out that Roulet had specifically requested Haller and that Valenzuela was simply trying to secure a recommendation for his bail bond service, Haller did not know that at the time that he made the deal with Valenzuela

Third, it is strongly implied that Haller contacted the biker gang and asked them to beat up Roulet.  This is obviously a crime.

IV. The Good Stuff

We don’t want to sound too down on the movie.  It’s an enjoyable court room drama with a nice twist, and it gets many of the legal details right, even if the protagonist is ultimately a scoundrel and a hypocrite.  (Haller defends his career as a criminal defense lawyer on the basis of the sanctity of the justice system and criticizes a prosecuting attorney for going too far, yet Haller himself repeatedly acts outside the justice system.)

So, here’s some of the good stuff.  Criminal defendants often do not get nice rooms alone with their attorneys; the movie’s portrayal of conversations between Haller and his clients are pretty accurate.  Court is largely fairly boring, heated objections are rare, the jury is excused when discussing issues like whether a new witness can be put on the stand, and objections are made with reasons instead of simply by shouting ‘objection!’  Attorneys are usually collegial toward one another outside the courtroom.

V. Conclusion

The Lincoln Lawyer is a pretty good film as long as you don’t come away with the mistaken impression that Haller is just a slick attorney who knows how to work the system.  Instead, he’s a flawed, conflicted attorney who often uses morally and legally questionable means to accomplish noble ends.

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Posted in criminal law, legal ethics, movies

Law and the Multiverse CLE

Posted on May 27, 2011 | Leave a comment

For the attorneys in the audience: Thomson West has invited us to give two CLE webcasts!  The June 21st program is an overview of some torts concepts illustrated by comic book situations, and the June 27th program is about superhero attorneys and legal ethics.  Be sure to use promotional code HEROES2011 for a 25% discount.  If there are any topics not mentioned in the program descriptions that you’d like us to address, please send us an email and we’ll try to work it in.

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Posted in conventions and talks