Author Archives: James Daily

Manhunter, Volume 1

Posted on May 23, 2011 | 1 comment

This is the first post in a new series analyzing the legal issues raised by the 2004-09 Marc Andreyko run of Manhunter.  These issues cover Kate Spencer’s turn as the eponymous superhero.  By day, Spencer is a federal prosecutor who later becomes a criminal defense attorney for supervillains.  As with She-Hulk and Daredevil there are a lot of overt legal issues here but also a lot of more subtle ones.  There will be spoilers, but we plan to cover the issues chronologically, so if you want to read along then we suggest picking up the trade paperbacks (Manhunter vols. 1-5).

I. Not Guilty by Reason of Genetic Anomaly?

Early on in the first issue, Kate is prosecuting a case against Copperhead, a metagene-enhanced supervillain with a nasty habit of killing and eating people.   The defense stipulates to the facts of the case but argues that Copperhead is a genetic anomaly, possibly insane, and should not be held to the standards of human behavior.  Rather than being executed, the defense argues that he should be confined and studied.  The jury finds him “not guilty by reason of genetic anomaly” and he is sent to the Death Valley Metahuman Research Facility.

Assuming that “not guilty by reason of genetic anomaly” is not a defined verdict in the DC universe, could a jury do this anyway?  The answer is a clear yes.  For better or worse, a jury in the US system can find a defendant not guilty for any reason or no reason, even against all the weight of the evidence, and an acquittal cannot be appealed by the prosecution.

However, as we’ve discussed before, an acquittal (e.g. by reason of insanity) does not necessarily mean that the defendant won’t be involuntarily committed.  A defendant can lack the requisite mental capacity to be guilty of a crime (or as the defense appeared to argue in this case, the requisite personhood) yet still be a danger to themselves or others, justifying involuntary commitment.  So again the story is accurate in that Copperhead could be confined at a research institute despite the acquittal.

All that said, the defense theory is a strange mishmash of insanity and lack of personhood, which is itself a novel theory (“my client can’t be guilty, your honor, he isn’t even human” hasn’t been tried in the real world as far as we know).  It would have worked just as well to say that the defendant was legally insane and the underlying mental defect was caused by the genetic anomaly.  Still, off to a good start.

II. Child Endangerment

Here’s where things start to get dicey.  Kate’s son Ramsey finds her staff, which Kate had barely hidden in her house.  Curious, he activates it, causing an explosion that severely injures him.  Kate lies about the cause of the explosion, saying it was a gas leak.  It’s unclear why DCFS didn’t investigate, but supposing they had, what might Kate have been charged with?

One possibility is child endangerment.  Cal.Penal Code § 273a(a) states “Any person who, under circumstances or conditions likely to produce great bodily harm or death … willfully causes or permits [a] child to be placed in a situation where his or her person or health is endangered, shall be punished by imprisonment.”  Other options include criminal storage of a firearm if the staff is considered a firearm and reckless possession of a destructive device otherwise.

III. Blackmail

Later, Kate blackmails a former supervillain gadget-guy, Dylan Battles, into repairing and maintaining her equipment.  In particular, she threatens to reveal to his wife that he used to work for supervillains and is now in the witness protection program.

This is, as the comic points out, a crime.  Specifically, in the comic’s setting of California it’s extortion.  Cal. Penal Code § 518-19.

518. Extortion is the obtaining of property from another, with his consent, … induced by a wrongful use of force or fear.

519. Fear, such as will constitute extortion, may be induced by a threat … to expose any secret affecting him or them.

Although Kate primarily extorts services, some property comes along with it as well.

Further, by asking Dylan to break the law (the comic doesn’t say what but it’s probably weapons-related), Kate is committing both the crime of solicitation and an ethical breach.  California Rule of Professional Conduct 3-210 prohibits attorneys from “advis[ing] the violation of any law.

IV. Conclusion

Kate’s actions expose the contradictions inherent in every vigilante character: they often break the law while nominally trying to uphold it.  Sometimes the authors call that out explicitly, but sometimes they don’t.  There’s a lot to talk about in this series, so look out for more posts coming soon.

1 Comment

Posted in criminal law

Tonner Doll Convention & The Summit City Comic Con

Posted on May 22, 2011 | 2 comments

Today we have some news about recent and upcoming appearances and talks.

First, James and Ryan recently spoke at the Tonner Doll Company’s 2011 convention.  Tonner has long had a great DC Comics product line, and our talk—about Superman’s citizenship and renunciation thereof—was part of the announcement of Tonner’s new line of Marvel Comics dolls, which starts off with Captain America and a host of X-Men characters (e.g. Phoenix and the Scarlet Witch).  We had a great time at the convention, and we’d like to thank Robert Tonner for inviting us and everyone at the convention for being such a terrific audience.  The Q&A session after the talk was great, and if anyone from the convention has a question we didn’t have a chance to answer, please email us at james@lawandthemultiverse.com and ryan@lawandthemultiverse.com or leave a comment on this post.

Second, Ryan will be appearing at the Summit City Comic Con on June 18 in Fort Wayne, Indiana.  This will be Law and the Multiverse’s first comic con appearance, and we hope to make it the first of many.  If there’s a convention in your area that might be interested in having us give a talk or participate in a panel, drop us a line!

2 Comments

Posted in conventions and talks

The State of Things

Posted on May 18, 2011 | 4 comments

Law and the Multiverse co-author James Daily will be part of a panel discussion on the relevance of comic books in contemporary American culture on WUNC’s The State of Things, which airs today at 12pm Eastern.  You can listen online here.

4 Comments

Posted in interviews and podcasts

Mailbag for May 13, 2011

Posted on May 13, 2011 | 10 comments

Today we have a question about superheroes who work for the military and the Posse Comitatus Act.  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.

Repentinus asks about the Posse Comitatus Act and its effects on superheroes serving in the military (e.g. Captain America) or in quasi-military organizations like S.H.I.E.L.D.  First, a bit of background about the act.

Posse comitatus dates back to the common law era and has been defined in the US as “The entire population of a county above the age of fifteen, which a sheriff may summon to his assistance in certain cases, as to aid him in keeping the peace, in pursuing and arresting felons, etc.” United States v. Garcia, 672 F.2d 1349, 1368 n. 32 (11th Cir. 1982) (quoting Black’s Law Dictionary).  The Act prohibits the willful use of “any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws” except “in cases and under circumstances expressly authorized by the Constitution or Act of Congress.” 18 USC 1385.  Note that although the Act specifies the Army or the Air Force, “the Posse Comitatus Act applies to the Navy through section 375 and 32 C.F.R. § 213.10.”  United States v. Kahn, 35 F.3d 426, 431 (9th Cir. 1994).  The Naval Criminal Investigative Service (NCIS) also falls within the Act despite being primarily staffed and run by civilians. See United States v. Chon, 210 F.3d 990 (9th Cir. 2000).  As a result, Congress granted the NCIS explicit authority to execute warrants and make arrests.  10 USC 7480.  Note, however, that the Act does not apply to the Coast Guard, partly because of the Coast Guard’s historical dual role as a law enforcement agency.  Jackson v. State, 572 P.2d 87 (Alaska 1977).

The final thing to note is this part of the Act: “or otherwise to execute the laws.”  This broader language means that the Act prohibits not just conscription into a posse but also prohibits the military from doing anything “which is regulatory, proscriptive or compulsory in nature, and causes … citizens to be presently or prospectively subject to regulations, proscriptions, or compulsions imposed by military authority” (without explicit Congressional or constitutional approval).  United States v. McArthur, 419 F.Supp. 186, 194 (D.N.D. 1975) (aff’d by 541 F.2d 1275 (8th Cir. 1976)).  Examples of such prohibited acts include “arrest; seizure of evidence; search of a person; search of a building; investigation of crime; interviewing witnesses; pursuit of an escaped civilian prisoner; search of an area for a suspect and other like activities.”  United States v. Red Feather, 392 F.Supp. 916, 925 (D.S.D. 1975).

That’s pretty much a laundry list of typical superhero activities.  However, note the key phrase “imposed by military authority.”  As the court in Chon held, “[Department of Defense] personnel may participate in civilian law enforcement activities in their private capacities, [but] they may not do so under the auspices of the military.”  Chon, 210 F.3d at 993.  As the Chon court explained, civilian NCIS agents “represented and furthered the interests of the Navy, and were delegated the same authority to do so as military NCIS agents. When the civilian world is confronted by agents of the Navy, it is unlikely to make the fine distinctions asserted by the government between military and civilian NCIS agents.”  Id.

Thus, superhero members of the military may engage in law enforcement activities so long as it is clear that they are doing so as private citizens (or to have explicit Congressional approval).  Luckily, most superheroes are quite adept at maintaining multiple identities, so it should be easy to separate out the civilian and military roles via a quick costume change.

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

10 Comments

Posted in mailbag

Daredevil: The Trial of the Century Part II

Posted on May 11, 2011 | 20 comments

For the first part of our series on this Daredevil storyline we discussed the charges against Daredevil’s client and evidentiary procedural issues.  This post will address a variety of issues and observations about the trial.  We’ll begin with evidence gathering.  As with the prior post, spoilers follow.

I. Evidence Gathering by the Defense

The defense team hires Heroes for Hire to track down and interrogate the gang that actually committed the murder.  Apart from entering the house by busting in the door, this isn’t particularly unusual.  Although the defense can use the criminal version of discovery to obtain a wealth of information from the police and prosecution (see, e.g., Fed. R. Crim. P. 16), a criminal defendant can’t direct the police investigation.  If the police don’t want to follow a particular lead or theory, that’s within their discretion.  As a result, it is common for criminal defendants to hire investigators, including expert witnesses and more traditional private investigators.

II. Legal Research

This storyline has the first conventional legal research scene we’ve encountered on the blog.  It’s true that the She-Hulk’s law firm (Goodman, Lieber, Kurtzberg & Holliway) maintains a law library, but in a bit of Fourth Wall-stretching, the library consists of comic books, which in the Marvel universe are a legally admissible record of the activities of Marvel superheroes and supervillains.

By contrast, the law library at the offices of Murdock and Nelson is pretty typical, if a bit old-fashioned even by 2002 standards.  Although there is a laptop in the scene, most of the work seems to have been done using printed sources.  There’s even the classic Wall O’ Case Reporters (here’s a real-life example), which you might recognize as a common background in law firm advertisements.

These days, most attorneys use electronic sources for the majority of their research.  The two main legal database companies are Westlaw (part of Thomson Reuters) and LexisNexis (part of Reed Elsevier).  Both are expensive, but they’re cheaper than maintaining an up-to-date print library.  Case reporter and statute book subscriptions aren’t cheap.  For example, a not-quite-complete set of federal case reporters costs about $44,000 plus another $2,400 per month to keep them up to date.  It would be much cheaper for Murdock and Nelson to switch to electronic databases.

One tiny nitpick: when listing potential cases to cite, Nelson offers Illinois v. Steve Rogers and Utah v. Banner as possibilities.  Those would actually be People v. Rogers and State v. Banner.  It’s possible that Nelson was indicating a particular case by giving the state name, but he also lists People v. Tony Stark, and we find it hard to believe that Stark has only been a defendant in one criminal case.

III. Witness Examination

There are two issues we’d like to address with regard to witness examination: objections and the examination procedure itself.

On multiple occasions during the trial the prosecution and the defense object to questions asked by the other side.  Like countless other fictional courtroom scenes, the attorneys simply say “objection,” the judge says “sustained,” and that’s that.  In reality, a party must give a brief reason for the objection (e.g. “objection, hearsay”).  A judge may allow an objection without an explanation, but if the judge overrules the objection then the party’s failure to state the basis for the objection may lead to the issue being waived on appeal.  At one point in the trial the prosecutor asks questions over Murdock’s repeated objections without any ruling from the judge.  Again, in reality trials are usually fairly calm affairs and the prosecutor would wait for a ruling from the bench before continuing.  But we’ll give the writers a pass on these, since almost everybody uses these tropes and for the most part they don’t affect the story.

The more important issue is that the writers shortened the examination process.  Most people are familiar with the first two stages, examination and cross-examination.  But the process can go further: redirect, recross, further redirect, and further recross.  At one point both Murdock and Ayala give pained expressions when the prosecutor seems to have trapped Reed Richards with a question without allowing Richards to explain his answer.  In reality, Murdock could have given Richards a chance to elaborate.  This is a bit less excusable than the other issues, but it can still be justified in the name of pacing and the length limitations of the medium.

IV. Putting the Defendant on the Stand

This case is a good illustration of the dangers of putting a criminal defendant on the stand.  Here the problem was that the defendant’s emotions got the better of him in the face of heated questioning from the prosecutor, and he said some things that didn’t reflect well on his character.  This is one of the many reasons why criminal defendants are rarely put on the stand.  The benefits rarely outweigh the risks.

V. Conclusion

All in all, Trial of the Century is a better courtroom storyline than The Trial of Marvel Boy, although that one isn’t too shabby itself.  We’ll analyze more comic book trials as we come across them, but if there’s one in particular you’d like to see us discuss, let us know!

20 Comments

Posted in criminal procedure, evidence

Thor, Part Two

Posted on May 9, 2011 | 8 comments

We’ve written one post about the Thor movie already, but there are a couple of other legal issues to discuss.  As before, spoilers follow after the break.

Continue reading →

8 Comments

Posted in movies, torts

Daredevil: The Trial of the Century Part I

Posted on May 4, 2011 | 14 comments

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

III. Conclusion

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

14 Comments

Posted in criminal law, criminal procedure, evidence

Mailbag for April 29, 2011

Posted on April 29, 2011 | 24 comments

[Be sure to read the update to this post in Law and the Multiverse Retcon #1!]

We have another intellectual property question this week, this time about gene patents and Spider-Man.  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.

@MrCrumley on Twitter asks: “Have you dealt w/ Spider-Man’s genetically modified dna & the similarities to Monsanto’s suits regarding GM corn?”  Here, MrCrumley is asking about Spider-Man’s origin in the 2002 film, in which he gains his powers from a genetically engineered spider’s bite rather than the traditional radioactive one.  There are a few different issues to consider here, including the patentability of genetically engineered organisms and the nature of gene patents.  First, a brief bit of factual background.

I. Monsanto and GM Crops

For those who don’t know, Monsanto is a large agricultural biotechnology company.  (As it happens the company’s headquarters is about two miles from James’s house).  In particular, it manufactures a wide variety of genetically engineered crops, herbicides, and especially crops that are resistant to those herbicides, thus allowing farmers to spray the herbicides on the crops, killing only the undesirable weeds.

Monsanto requires farmers who buy its seeds to sign an agreement that the farmers will not save and replant seeds from the patented crops, and Monsanto is not afraid to sue farmers who violate that agreement.  The company has sued 145 farmers in the United States, and 11 of those suits went to trial, each time ending in Monsanto’s favor.  This is somewhat unusual because patent infringement cases are generally filed against businesses rather than individual end users.

Perhaps the most controversial Monsanto case occurred in Canada: Monsanto Canada, Inc. v. Schmeiser, 1 S.C.R. 902 (2004).  In that case, the defendant farmer alleged that genetically engineered canola seeds had simply blown onto his fields, and so his subsequent saving and replanting of seeds should not be considered patent infringement.  Specifically, he argued that planting the seeds did not amount to an infringing use of the patented cells and genes.  The Supreme Court of Canada held otherwise.  However, we will focus on US law here.

The question, then, is this: assuming that the genetically engineered spiders were covered by one or more patents, could Spider-Man infringe those patents?

II. The Patentability of Genes and Genetically Modified Organisms

A threshold question is what, exactly, do we mean when we say that the spiders are covered by one or more patents.  People often talk about “gene patents,” but what exactly are they?  In the United States there are two main kinds of claims in gene patents: claims to genetically modified organisms and claims to DNA or proteins produced by DNA.

We should first note that the patentability of DNA sequences is currently the subject of a federal lawsuit, Ass’n for Molecular Pathology v. USPTO, 702 F.Supp.2d 181 (S.D.N.Y 2010) (presently on appeal to the Federal Circuit).  The suit could potentially invalidate all patents claiming an unaltered genetic sequence (i.e. a sequence as it appears in nature, even if the patent claims isolated, purified DNA).

The validity of claims to genetically modified organisms was first recognized in the landmark case Diamond v. Chakrabarty, 447 U.S. 303 (1980).  Although the Chakrabarty case involved a genetically modified bacterium, the Patent Office and the courts have subsequently recognized the validity of patents claiming multi-cellular organisms, including animals.  So presumably a genetically modified spider could be patented.  However, a human couldn’t infringe claims to a genetically modified spider, since, well, a human is not a spider.

So what about claims to the DNA itself?  Claims to DNA generally take the form of “Purified and isolated DNA, wherein the DNA molecule has a nucleotide sequence as set forth in Fig. 1” or “A purified and isolated protein, as an expression product of a transformed host cell containing a DNA molecule coding for the protein, the DNA molecule having a nucleotide sequence as set forth in Fig. 1.”  As you can see, these kinds of claims require a purified, isolated form of DNA, which is not the natural state for DNA in the body, and so Spider-Man wouldn’t infringe such a claim.

Even the second example, a purified and isolated protein (such as the proteins that make up spider silk), wouldn’t apply because spider silk is made up of several proteins.  But one could imagine a patent claiming spider silk produced by a genetically modified organism having a particular DNA sequence.  In fact, a patent application claiming a genetically modified silkworm that produces spider silk was filed in 2010.  So could a patent like that spell trouble for Spider-Man?

We think not.  The patent would likely have to claim a genetically modified spider or another specific organism (e.g. a silkworm or, believe it or not, a goat), which of course would not apply to a human.  A patent that tried to claim a broad class of organisms (e.g. mammals) modified to produce spider silk would be invalid for lack of enablement unless the patent “contain[ed] a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same.”  35 USC 112.  Since genetic engineering is a fairly complex and difficult process, it is unlikely that a patent could describe a general process for modifying organisms to produce spider silk.

The only way Spider-Man could infringe the patent, then, is if it specifically claimed and described a genetically modified human that produced spider silk.  There is no evidence, however, that the scientists in the movie had developed a way to modify a human in that way, and furthermore it is likely that the Fifth and Fourteenth amendments would forbid claims that covered genetically modified humans.  Just for starters, a patent could not grant someone the right to exclude another human from reproducing because the Constitution protects “personal decisions relating to … procreation.”  Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 851 (1992).  There would be other problems with, e.g, the unavoidability of infringement, since it would be difficult or impossible to cease infringing.

III. Conclusion

Spider-Man is almost certainly safe from a patent infringement suit.  Either the patents simply wouldn’t cover him or, if they did, they would be invalid for doing so.  This same analysis applies to pretty much any superpowered character whose abilities come from genetic mutations or modifications.  While gene patents may be controversial for many reasons, the threat of lawsuits against superheroes isn’t one of them.

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

24 Comments

Posted in intellectual property, mailbag, patents

Law and the Multiverse Holiday Special – Easter Edition

Posted on April 24, 2011 | 11 comments

Many of our readers might remember the first Law and the Multiverse Holiday Special, which analyzed the legal issues surrounding Santa Claus.  This time around we’re going to take a brief look at the Easter Bunny (who, along with Santa Claus, is technically a DC comics character).

I. Intelligent Bunnies

As with Santa Claus, a big issue for the Easter Bunny is trespass.  Entering other people’s property and leaving eggs definitely fits the bill for the tort of trespass to land.  Now, with Santa Claus there was an easy answer to this problem: the home owners clearly invited Santa Claus to enter their property, as demonstrated by the stockings, milk and cookies, and so forth.  But there’s no consistent signal that the Easter Bunny is allowed to enter a person’s property.  This is a problem for any version of the Easter Bunny that might be considered a legal person (e.g. the versions that are intelligent and can talk).

Another problem for these Bunnies: where do they get the eggs?  Do they own and raise the chickens themselves?  If so, do they follow all the regulations for chicken farming?  If they buy the eggs, where do they get the money?  There are a lot of holes in the Easter Bunny’s story, to say the least.  At least Santa has a ‘volunteer’ labor force to make the toys.

Of course, unlike Santa, nobody seems to know where the Easter Bunny actually lives these days.  Service of process and jurisdiction might be significant problems for any would-be plaintiffs.

II. Non-Intelligent Bunnies

Some versions of the Easter Bunny are more-or-less actual rabbits, and animals can’t be liable for torts.  However, the animal’s owner can be.  If an animal’s owner lets an animal loose (either intentionally or negligently), and the animal enters another person’s property, that can be a trespass.  But the Easter Bunny doesn’t seem to have an owner (with the possible exception of Cadbury), so this suggests those Bunnies are actually wild animals.

This is unfortunate for the Bunny.  On the one hand it means that neither the Bunny nor any person is liable for its trespasses, but on the other hand it means that in many places the Bunny could be legally captured or even shot.  This concern seems pretty theoretical, however, since the Bunny is apparently very stealthy.

III. Conclusion

As a practical matter, both intelligent and non-intelligent Easter Bunnies seem to be safe from both lawsuits and rabbit traps.  We would still advise intelligent Easter Bunnies to adopt a standard signal that they are allowed on a person’s property, though.  Better safe than sorry!

11 Comments

Posted in torts

The Legal Side-Effects of Amnesia

Posted on April 20, 2011 | 37 comments

Characters in comics frequently come down with amnesia, whether induced by superheroes, supervillains, or more pedestrian causes.  This post considers one legal side-effect of amnesia: loss of competency to stand trial.

We’ve talked about supervillains and competency before in the context of the mental illnesses that many supervillains (and even some superheroes) arguably suffer from.  But what about amnesia?  If a telepathic superhero (e.g. Professor X, Psylocke) erases a supervillain’s memories in order to stop an attack or prevent future crimes, could that interfere with the government’s ability to try the supervillain for the crimes he or she already committed?  Or if a superhero’s memories are erased by a supervillain, leading the superhero to commit crimes, could the superhero argue incompetency to stand trial for those crimes?  In some jurisdictions, the answer may be yes.

I. Competency and Due Process

In the US, competency is part of the constitutional right to due process.  “It has long been accepted that a person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial.”  Drope v. Missouri, 420 U.S. 162, 171 (1975).  The Court noted that “the prohibition is fundamental to an adversary system of justice.”  Drope, 420 U.S. at 172.  In other words, in an adversarial system it’s simply not fair to pit the entire weight of the state against an incompetent defendant.

II. Amnesia and Competency

So then, does amnesia—specifically, amnesia regarding the alleged crime—render a defendant incompetent to stand trial?  The general rule is that it does not.  “[T]here is no record of any court holding a defendant incompetent to stand trial solely on the basis of amnesia.”  Amnesia: A Case Study in the Limits of Particular Justice, 71 Yale L.J. 109 (1961) (emphasis added).  Courts are reluctant to allow a defense of amnesia because it can be faked and because it is often de-coupled from an ongoing mental illness or defect, which means the amnesiac may be clearly competent in many ways.

However, while no courts have adopted a bright line rule that amnesia necessarily implies incompetence, several courts have allowed amnesia to be considered in the usual competency analysis.  See, e.g., Wilson v. United States, 391 F.2d 460 (D.C. Cir. 1968); United States ex rel. Parson v. Anderson, 481 F.2d 94 (3d Cir. 1973); Morris v. State, 301 S.W.2d 381 (Tex. Crim. App. 2009).  Severe amnesia—to the point of interfering with a defendant’s ability to consult with and assist his or her lawyer—may lead to a finding of incompetency.

The Wilson court went one step further and gave a list of six factors a trial court should use at the post-trial stage in considering whether a defendant’s amnesia has affected the fairness of the trial:

(1) The extent to which the amnesia affected the defendant’s ability to consult with and assist his lawyer.

(2) The extent to which the amnesia affected the defendant’s ability to testify in his own behalf.

(3) The extent to which the evidence in suit could be extrinsically reconstructed in view of the defendant’s amnesia. Such evidence would include evidence relating to the crime itself as well as any reasonably possible alibi.

(4) The extent to which the Government assisted the defendant and his counsel in that reconstruction.

(5) The strength of the prosecution’s case. Most important here will be whether the Government’s case is such as to negate all reasonable hypotheses of innocence. If there is any substantial possibility that the accused could, but for his amnesia, establish an alibi or other defense, it should be presumed that he would have been able to do so.

(6) Any other facts and circumstances which would indicate whether or not the defendant had a fair trial.

In general, the worse the amnesia and the weaker the external evidence—including the government’s case—the more likely that the trial will be found to violate due process.  However, the D.C. Circuit is essentially alone among jurisdictions in taking this approach, which has been explicitly rejected by many other courts.  See, e.g., State v. Peabody, 611 A.2d 826 (R.I. 1992).

III. The Wilson Test In Practice

So let’s apply this to a few examples. For starters, in X-Men #3 from 1963, Professor X winds up erasing the Blob‘s memory of the X-Men and his attack on them. But the Blob only winds up losing a few hours of memory, maybe a day at the worst. So while he wouldn’t be able to testify about what he did, if the state decided to press charges for something he did during his rampage, he’d probably wind up passing a competency hearing.  His amnesia is not so severe that he has forgotten who he is or why he might have been motivated to do what he did.  Further, there’s enough extrinsic evidence that it’s unlikely that any of his defenses would require him to testify from memory.  Courts routinely reject this kind of short-term amnesia as an impediment to competence in cases where defendants have forgotten the crime itself because of substance abuse (e.g. blacking out after a bar fight) or trauma.

But what about Magneto in Defenders # 15-16? Magneto is regressed to infancy by Alpha. That right there raises significant competency questions, not only to do with memory, but rationality and maturity. Again, proving Magneto’s mental state could be tricky, but the fact that he does not remember anything about what happened before his encounter with Alpha should not be hard to establish. Here, the fact that Magneto possessed essentially no record of his prior life should produce a very different outcome from the Blob’s case above, as the “old” Magneto could have presumably raised affirmative defenses—such as necessity—for his actions, while the new one cannot even understand why he would have done the things of which he is accused, something the Blob probably would be able to do.

IV. Conclusion

Superheroes should think twice about erasing a villain’s memories.  While it may be an effective way to stop a villain in his or her tracks, it may also render them incompetent to stand trial.  In general, the worse the amnesia, the more likely the defendant is to be found incompetent, so go easy on the mind wipes, guys.

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Posted in constitutional law, criminal procedure