Category Archives: criminal law

Superhero Runaways

Posted on April 12, 2012 by | 13 comments

Today’s post was inspired by a question from Frank, who asks “Cloak and Dagger are teenage runaways. If they could catch them, could the police forcibly separate them, incarcerate them, remand them to their parents and/or institutionalize them as wards of the state?”

Cloak and Dagger aren’t the only examples.  There are several other runaway superheroes, including, naturally, the Runaways.

This is a pretty interesting question.  I didn’t know the first thing about the law of runaway children, so I had to do a bit of research.  I decided to focus on Cloak and Dagger, since the Runaways all fled (and ultimately defeated) parents who were supervillains, whereas Cloak and Dagger were more ordinary disaffected teenagers.  As it happens, Cloak and Dagger both ran away to New York City, so we’ll primarily look at the law of New York.  Cloak is originally from Boston, and Dagger is from Ohio, which is also relevant.

I. What Exactly are Runaways?

In New York a runaway is a “child under the age of eighteen who has run away from home without just cause.”  N.Y. Fam. Ct. Act § 718(a).  A police officer may return a runaway to the child’s parent or another legally responsible person or may take the child to a state certified facility. N.Y. Fam. Ct. Act § 718(a), (b).  This requires only the police officer’s reasonable belief that the child is a runaway.  Id.

The cases and commentaries don’t really explain what “just cause” would be, but presumably fleeing abuse, neglect, or a similarly dangerous situation would be acceptable.  Thus, the Runaways might not actually have been runaways, at least under New York law.

Cloak and Dagger don’t seem to have that excuse, however.  Cloak ran away out of guilt over the death of a friend, and Dagger ran away because she felt her mother was too busy for her.  Not great situations, but probably not enough to justify running away from home, either.

II. So Now What?

If Cloak and Dagger were determined to be runaways, they could be returned to their parents or to a state facility.  But their parents don’t live in New York.  A state government generally has no authority outside of its borders, so how could the New York authorities legally transport them back to Massachusetts and Ohio, respectively?  Enter the Interstate Compact for Juveniles.

The Compact allows the child’s home state (called the “requisitioning state”) to request the child’s return from the state the child ran away to (called the “asylum state”).  The requisition includes “the name and age of the juvenile, a determination that the juvenile has run away without consent of a parent or legal guardian, and that it is in the best interest and for the protection of the juvenile to return to the requisitioning state.” 2 Children & the Law: Rights and Obligations § 8:53.

Nearly all states have adopted the Compact, including Ohio, Massachusetts, and New York.  Note that the current version of the New York law is set to expire in 2013 and will be replaced with the most recent version of the Compact.  See 2011 Sess. Law News of N.Y. Ch. 29.

So, perhaps unsurprisingly, the result is that both Cloak and Dagger could be returned to their home states.  This is separate from the issue of juvenile delinquency, however, and actually involves a different age standard.  Cloak and Dagger have engaged in a fair amount of vigilantism over the years, often involving the deaths of supervillains and more ordinary criminals.  In New York, for purposes of juvenile delinquency, juveniles are generally children over the age of 7 and under the age of 16.  N.Y. Fam. Ct. Act § 301.2.  When Cloak and Dagger ran away they were 17 and 16, respectively, which means they would likely be tried as adults.  I’m not too familiar with their exploits, but from what I’ve read they could be looking at some serious jail time.

III. Conclusion

As runaways, Cloak and Dagger could either be returned to their parents in Massachusetts and Ohio or placed in a state-certified facility in New York.  But as potential criminal defendants, they would likely be tried as adults.  In any case, they would almost certainly be separated.  The only reason they might not be is that consuming the energy produced by Dagger’s superpower is quite possibly the only legal way for Cloak to stay alive.

13 Comments

Posted in criminal law, family law, mailbag

The Hunger Games and Dangerous Sports II

Posted on March 30, 2012 by | 7 comments

Two weeks ago, we looked at the legality of a “sporting” event like the one depicted in The Hunger Games. There, we were mostly concerned with the legality of organizing or participating in the Games, recognizing that the Games are obviously legal in Panem but manifestly illegal should someone try to conduct a similar event in real life.

This time, we’re going to look at another angle: potential culpability for spectators and sponsors. Continue reading →

7 Comments

Posted in criminal law, movies

Ghostbusters and the EPA

Posted on March 28, 2012 by | 18 comments

Today’s post is inspired by an email from Casey, who wondered about a couple of issues in the movie Ghostbusters.  Specifically, was Ray Stantz really a “duly-designated representative of the City, County and State of New York” with any kind of legal authority to order Gozer the Gozerian to leave the city?  And did the EPA have a legal basis for shutting down the Ghostbusters’ containment unit?

I. Were the Ghostbusters Duly-Designated Representatives of New York?

It’s pretty strongly implied in the movie that the mayor of New York authorizes the Ghostbusters to deal with the threat posed by Gozer.  That much covers the city.

Moving one level up, we turn to the county.  The five boroughs of New York City are each coterminous with a county.  For example, New York County covers the same area as Manhattan.  The New York County government is pretty vestigial, with most ordinarily-county-level functions handled by the city.  There are some borough-level officials, such as the Manhattan Borough President’s office, but it has a comparatively tiny budget and is mostly concerned with land use and zoning.  Still, there’s no reason to think that the Ghostbusters couldn’t be appointed to represent New York County as well.

Finally there’s the state level.  New York City obviously has a fair amount of clout in the state of New York, and we suspect the Mayor would have no trouble convincing the governor to give the Ghostbusters state authority in this situation, especially since it was geographically confined to New York City.

So what kind of authorization could there be?  One possibility is that the Ghostbusters could have been made emergency special deputies “for the protection of human life and property during an emergency.” N.Y. County Law § 655.  That would give the Ghostbusters the powers of regular police officers.  Not actually very helpful against an ancient Sumerian deity, but it’s something.  At the very least the qualified immunity would potentially prevent them from being personally liable for collateral damage.

Strictly speaking, all of this state authority would have little effect on the EPA’s jurisdiction (to the extent it has any) or the federal government’s ability to arrest the Ghostbusters or order the shutdown of their facility, but we can assume that the Regional Director of the EPA (actually titled the Regional Administrator), who was present at the mayor’s office, took care of all that.

II. Are Ghosts a Pollutant?

Walter Peck, from the EPA’s “third district,”* thinks the Ghostbusters are scam artists using dangerous chemicals to produce hallucinations and storing hazardous materials in their headquarters.  He alleges that they are in criminal violation of the Environmental Protection Act**, and for some reason, this leads him to shut off the containment grid, resulting in all of the captured ghosts being released.

* The EPA actually divides the country into regions.  Region 2 covers New York.

** There is no such federal law in the United States.  Federal environmental law is a hodgepodge of laws: the Clean Air Act, the Clean Water Act, and the Comprehensive Environmental Response, Compensation, and Liability Act, just to name some of the big ones.  There’s no Environmental Protection Act, though.

Peck is wrong about the Ghostbusters, but if they were storing and releasing hallucinogenic substances then that could qualify as pollution.  For example, under the Comprehensive Environmental Response, Compensation, and Liability Act (aka CERCLA aka Superfund) “pollutant or contaminant”

shall include, but not be limited to, any element, substance, compound, or mixture, including disease-causing agents, which after release into the environment and upon exposure, ingestion, inhalation, or assimilation into any organism, either directly from the environment or indirectly by ingestion through food chains, will or may reasonably be anticipated to cause death, disease, behavioral abnormalities, cancer, genetic mutation, physiological malfunctions (including malfunctions in reproduction) or physical deformations, in such organisms or their offspring

42 U.S.C. § 9601(33).  That’s pretty dang broad and would definitely include hallucinogenic gases.

One problem with Peck’s actions is that most of the enforcement mechanisms for pollution control are civil, not criminal, and even in the criminal case there would have to be a trial before any penalties could be assessed.  In fact, it would probably be easier and faster for the EPA to get a temporary restraining order or preliminary injunction in a civil case than to seek criminal penalties.

But we can gloss over all of those issues.  What we really want to know is whether ghosts could qualify as a pollutant.  Of course, for most purposes nothing is a pollutant unless it is discharged into the environment, and the Ghostbusters were doing a good job of preventing that.  But were the ghosts at least a potential pollutant?

I think they could be, at least under some environmental laws.  The fact that ghosts are, in some sense, living organisms doesn’t seem to matter.  For example, disease-causing organisms such as viruses and bacteria can be considered pollutants for purposes of the Clean Water Act.  33 U.S.C. § 1362(13) (defining “toxic pollutant” to include disease-causing agents that cause, among other things, behavior abnormalities); 66 C.F.R. 2960 (describing pathogens as a “leading pollutant” in bodies of water).  The Clean Air Act likewise defines “air pollutant” to include biological substances or matter that enters the air.  42 U.S.C. § 7602(g).

So it appears that the federal government could potentially regulate the release of ghosts into the environment.  Since the Ghostbusters never (voluntarily) released any ghosts, however, I’m not sure the EPA would have much standing to complain.

III. Conclusion

If the movie had been written so that a ghost or two escaped the Ghostbusters’ containment system, the EPA might have been on firmer legal footing.  Alternatively, the EPA might have been able to go after the potential discharge of radiation from the Ghostbusters’ proton packs.

Still, apart from some technical mistakes and omitted detail to keep the plot moving, the legal issues here were pretty minor.  The EPA is probably the right agency, to the extent any federal agency is the correct one, and we can forgive the writers for not wanting to get bogged down with administrative hearings and settlement talks.

18 Comments

Posted in administrative law, criminal law, criminal procedure, mailbag, movies

Superman: Grounded (# 707): Theft, Necessity, Insurance, and Mitigation of Damages

Posted on March 26, 2012 by | 39 comments

The second hardcover volume of Superman: Grounded came out in December, and the very first issue, Superman # 707, contains a doozy of a legal conundrum.

Here’s the setup. Superman is in Des Moines, Iowa, saving people and basically doing his thing. He’s on his cell phone (Yes, he’s using a cell phone. No, it doesn’t make any sense for him to be doing so.) with Lois, when the chemical plant she’s at has a fire. He hears it and flies over. He puts out the fire with water from a nearby creek, but notices that the fire has caused structural damage to the plant, which is likely to collapse and possibly even reignite. So, seeing a passing truck full of steel bars, he ganks a bunch of them and uses them to shore up the building. The driver of the truck says, and I quote, “Hey, Superjerk, you can’t just take those!” Which is probably true. Superman’s response is “I assure you, sir, it’s for a good cause.” Which is as may be, but doesn’t change the fact that Superman has likely stolen at least several thousand dollars worth of goods. Continue reading →

39 Comments

Posted in criminal law, insurance, superheroes, Superman, torts

Superman, Duels, and Affray

Posted on March 22, 2012 by | 61 comments

Today we take a step back in time both in comic book history and the law.  While reading some classic Silver Age Superman comics, I found Superman #153, which contains a couple of great stories: “The Day Superman Broke the Law!” and “The Town of Supermen!”  Today’s post is about the second of these; don’t worry, though, we have a post planned for the first one.

I. The Set-up

The DC Wiki article has a good synopsis of the plot of “The Town of Supermen!”  but here’s the executive summary: A group of Kryptonian criminals escape the Phantom Zone and set up in the western ghost town of Deadwood Gulch, where they challenge Superman to a fight using Phantom Zone projector guns.  Superman accepts the challenge and wins by melting their guns with his heat vision and sending the criminals back to the Phantom Zone.

You might be wondering, “well, that sounds like standard Silver Age silliness, but what’s the legal issue?”  It turns out there are several, including some that involve old common law crimes with goofy names, which are always fun to talk about.

Note that the location of “Deadwood Gulch” is not specified in the story, so I refer to the law of various states in this post.

II. Dueling

One might guess, as I initially did, that the problem here is that Superman wasn’t acting in self-defense but rather voluntarily engaged in a duel.  It’s true that he wasn’t acting in self-defense or defense of others (the Kryptonians hadn’t directly threatened anyone yet), but in the eyes of the law this wasn’t a duel, despite Superman calling it “a showdown duel”:

The word “duel” bears a fixed, definite signification, not only colloquially, but juridically. Webster’s Dictionary defines a “duel” as a “combat between two persons, fought with deadly weapons, by agreement.” This definition is, as stated, the common—in fact, we may truthfully say the universal—understanding of the word. It indeed, is its intrinsic signification, and as so defined has been invariably adopted and used in the law and followed by the courts.

People v. Morales, 77 Cal.App. 483, 487-88 (1926).  Also see, e.g., Colo. Rev. Stats. § 18-13-104(2) (“Persons who by agreement engage in a fight with deadly weapons, whether in a public or private place, commit dueling, which is a class 4 felony.”).

In this case the parties used Phantom Zone projector guns, which certainly aren’t deadly weapons.  In fact, they wouldn’t even necessarily qualify as firearms in many jurisdictions, which avoids a lot of “criminal use of a firearm” type offenses.  See, e.g, Cal. Penal Code § 16520(a) (“As used in this part, “firearm” means any device, designed to be used as a weapon, from which is expelled through a barrel, a projectile by the force of any explosion or other form of combustion.”).

As is often the case in the criminal law, the lack of one essential element of a crime doesn’t necessarily mean the act is legal.  Instead, it’s just a different crime, usually a lesser one.  In this case, the lack of deadly weapons turns it from a duel into an affray.

III. Affray

Affray is a very old common law offense, dating back to the late 15th century or so.  In fact, it’s so old that it originated from a French word, effrayer, meaning “to affright,” back when court business was still conducted in French following the Norman Conquest. See State v. Huntly, 25 N.C. 418, 421 (1843).  (Etymological side-note: the word “afraid” is the past-participle of affray and is essentially the only surviving remnant of the word in everyday English.)  As Edward Coke defined it in 1669:

But albeit upon the single combate no death ensue nor blood drawn, yet the very combate for revenge is an affray, and a great breach of the kings peace, an affright and terrour to the kings subjects, and is to be punished by fine and imprisonment … An affray is a publique offence to the terrour of the kings subjects, and is an English word, and so called, because it affrighteth and maketh men afraid …

Despite these ancient origins, affray is still very much alive in many US jurisdictions.  See, e.g, Hickman v. State, 193 Md.App. 238 (2010) (“we hold that common law affray continues to be a viable offense in the State of Maryland”); In re May, 357 N.C. 423 (2003); D.J. v. State, 651 So.2d 1255 (Fla. App. 1995).

As the court in May observed, “the essential elements of affray have proved remarkably durable, surviving through the ages without substantive change. …  An affray is defined at common law as a fight between two or more persons in a public place so as to cause terror to the public.”  In re May, 357 N.C. at 426.

That definition fits this case quite well. The fight was between Superman and eight Kryptonians, which is two or more people.  It took place on the main street of Dry Gulch, which is certainly a public place.  And the fight terrorized “the public,” namely Lois Lane, Perry White, and Jimmy Olsen, who made comments such as “I–I c-can’t look!”, “Jeepers! How can even Superman beat eight super-powerful foes to the draw?”, and “Poor Superman is doomed! *sob*”

So it looks like Superman may have broken the law by consenting to an affray rather than fleeing the scene, contacting the authorities, or waiting until self-defense or defense-of-others were available defenses.

IV. Conclusion

I suspect Jerry Siegel intended for the Phantom Zone projector guns to be both a way to dispose of the Kryptonian criminals at the end of the story and a way to make the fight non-lethal, fitting with Superman’s Silver Age morality.  Unfortunately, it was still a crime, albeit probably a less serious one than actual dueling.  This has implications far beyond this obscure story, however.  Affray, dueling, and related offenses could apply to many pre-arranged, public fights between superheros and supervillains.  That kind of open confrontation is much harder to legally justify than the standard self-defense, defense-of-others, and lawful arrest scenarios.

61 Comments

Posted in criminal law, Superman

The Hunger Games and Other Dangerous Sports

Posted on March 16, 2012 by | 43 comments

[amazon_link id=”0545265355″ target=”_blank” container=”” container_class=”” ]The Hunger Games[/amazon_link] is a trilogy of books, the first of which is also called [amazon_link id=”0545425115″ target=”_blank” container=”” container_class=”” ]The Hunger Games[/amazon_link] and which has been adapted into a film that debuts next week.  It looks like it’s going to be both a good movie and feature more accurate archery than The Avengers, but I digress. The books are set in a future dystopian society in which teenagers, selected more or less at random, are forced to compete to the death in the titular Hunger Games.

Since the book takes place in a fundamentally different world than the real one, we can’t really examine the Games on their own terms. We can say they would certainly be illegal in the real world (no surprises there), but it may be interesting to examine why, exactly. After that we’ll ponder just how dangerous a real-world version of the Games could be without obviously running afoul of the law.

Some very minor spoilers follow (nothing you wouldn’t know from the trailer, I think).

I. The Set-Up

Most entrants to the Hunger Games are selected randomly, but it is possible to volunteer.  That’s how the protagonist enters the Games, for example.  The Games themselves take place in a large uninhabited area in which the competitors (called tributes) are given weapons and supplies and expected to kill each other.  The people running the Games (the Gamemakers) have various carrot and stick mechanisms they use to goad the tributes into competing, and the more or less inevitable result is that a single victor emerges with everyone else dead.  If a group of tributes refused to fight then the Gamemakers would likely kill all of them or all but one.

II. So Why Exactly is This Illegal?

Intuitively this seems like it should be illegal, and it would be in the real world.  For starters, the Gamemakers’ actions are pretty clearly illegal: the involuntary competitors are essentially kidnapped and falsely imprisoned, then threatened with death if they don’t compete.

The voluntary competitors are pretty much just as bad, as they’re agreeing with the Gamemakers to try to kill other people, many of whom are there involuntarily.  That’s conspiracy and either attempted or actual premeditated murder.

(Note: By “voluntary competitors” I mean both tributes like the protagonist who make a direct choice to compete as well as those tributes who enter their names into the tribute selection lottery multiple times in order to earn extra food for their families.  Arguably both are voluntarily entering the Games, whereas the tributes whose names are entered the minimum required number of times could be said to be involuntary competitors.)

The involuntary competitors are only slightly better off.  They aren’t guilty of conspiracy because they didn’t agree to compete, but they may still be guilty of attempted murder or murder because they can’t claim the defenses of duress or necessity, since neither is a defense to murder in most jurisdictions.  They could avoid liability by only fighting in self-defense, however, but that would usually mean waiting until other tributes attacked them first, which isn’t typically a winning strategy.

Now wait a minute, you might say, what about consent?  Doesn’t it matter that the voluntary competitors consented to compete in the games?  The answer is no, not really, even if the minor competitors’ parents also consented.  While a person can consent to an assault or battery (think of boxing, for example), one cannot consent to one’s own serious injury or death. See, e.g., State v. Mackrill, 345 Mont. 469, 476 (2008) (“it is against public policy to permit a person purposely or knowingly to cause serious bodily injury to another, even though that conduct and the resulting harm were consented to”).

Well, what about assumption of the risk?  Aren’t the voluntary competitors assuming the risk that they will get hurt?  The problem here is that assumption of the risk does not extend to intentional wrongdoing, only negligence and recklessness.  Restatement (Second) of Torts § 496A (“A plaintiff who voluntarily assumes a risk of harm arising from the negligent or reckless conduct of the defendant cannot recover for such harm.”) (emphasis added).

Similarly, the exception made for the harm inherent in sporting events only applies to lawful sports, whereas the Games are predicated on kidnapping, conspiracy, and threats.  See, e.g, Colo Rev Stats, § 18-1-505(2) (“When conduct is charged to constitute an offense because it causes or threatens bodily injury, consent to that conduct or to the infliction of that injury is a defense only if … the conduct and the injury are reasonably foreseeable hazards of joint participation in a lawful athletic contest or competitive sport.”).

That pretty much sums up why the Games would be both criminal and tortious, but what are the real-world limits for something like this?

III. So How Close Can We Get?

Clearly we’ll have to begin with consent, so we can toss out all of the involuntary competitors.  Ideally we’d get informed written consent from both the competitors and their parents, together with explicit waivers of liability for the Gamemakers and other competitors.  Of course, to be meaningful the consent must be ongoing, which means the competitors must be free to leave the game at any time.

An important part of the informed consent process is to ensure that the competitors and their parents are aware of the reasonably foreseeable hazards of the Games.  This helps bring the Games within the exception for lawful sports: “When conduct is charged to constitute an offense because it causes or threatens bodily injury, consent to such conduct or to the infliction of such injury is a defense if: … (b) the conduct and the injury are reasonably foreseeable hazards of joint participation in a lawful athletic contest or competitive sport ….” Model Penal Code § 2.11(2) (emphasis added).

The Games themselves would have to be watered down from a fight to the death to something more like Mixed Martial Arts.  While certainly a vigorous athletic contest, serious injuries are not inherent in MMA, and so consent and assumption of the risk will go a lot farther in eliminating both criminal and tort liability.

That doesn’t mean that everyone is necessarily off the hook.  Competitors and Gamemakers could still be liable for injuries that result from, for example, breaking the rules of the game that are concerned with safety.  See, e.g., Nabozny v. Barnhill, 31 Ill. App. 3d 212 (1st Dist. 1975).  With children involved the Games would likely need to either take advantage of sovereign immunity or have a hefty insurance contract.

IV. Conclusion

So after all that, what are we left with?  Basically a kind of free-form outdoor MMA, which the competitors can quit at any time.  Not quite as exciting as a forced fight to the death in the wilderness, we’ll admit.  What can we say?  Lawyers spoil all the fun.

43 Comments

Posted in criminal law, movies, torts

My Cousin Vinny: The Perils of Joint Representation

Posted on March 13, 2012 by | 12 comments

Today’s post is our contribution to Abnormal Use’s My Cousin Vinny 20th anniversary celebration. Although it doesn’t have anything to do with comic books or superheroes, we still recommend giving it a watch. It’s a comedy, but it’s actually one of the more accurate representations of trial procedure in a film (which isn’t necessarily saying a lot). If you haven’t seen it, the Wikipedia article has a thorough plot synopsis, but we recommend buying a copy, since it really is a pretty good movie.

Since the movie has been around for 20 years, a lot of ink has been spilled on it, but there’s at least one issue that isn’t often discussed, probably because it’s only implicit in the film. The issue is that the defendants, Bill and Stan, are represented jointly by Bill’s cousin Vinny, but joint representation is fraught with ethical issues, especially in a criminal case. (For those looking for some kind of connection to comic books, I’ll note that a lot of supervillains work in groups and might find themselves in a joint representation situation. The same ethical issues apply.)

Simultaneous representation of clients whose interests may conflict is a common enough issue that there’s a rule especially for it.  ABA Model Rule of Professional Conduct 1.7:

(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:

(1) the representation of one client will be directly adverse to another client; or

(2) 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.

(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), 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.

The movie takes place in Alabama, and its rule is similar. Notably, the Alabama rules were adopted effective January 1, 1991, so it’s conceivable that the rule applied during the time in which the film is set.

The situation in the movie is an example of paragraph (a)(2): “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.”  What exactly does the rule mean by that?  The official commentary goes into more detail:

A conflict may exist by reason of substantial discrepancy in the parties’ testimony, incompatibility in positions in relation to an opposing party or the fact that there are substantially different possibilities of settlement of the claims or liabilities in question. Such conflicts can arise in criminal cases as well as civil. The potential for conflict of interest in representing multiple defendants in a criminal case is so grave that ordinarily a lawyer should decline to represent more than one codefendant.

Rule 1.7 Comment 23 (emphasis added). So it seems very likely that the rule applies in this case.

Paragraph (b) describes the circumstances under which a client can be represented despite a conflict, but unfortunately they aren’t met here. It’s far from his worst ethical lapse (repeatedly lying to a judge, anyone?), but Vinny almost certainly cannot reasonably believe that he “will be able to provide competent and diligent representation to each affected client.”  That is, he might believe it (in fact he nearly says as much), but his belief isn’t reasonable given the seriousness of the case and his lack of experience and knowledge. Nor does the movie contain any indication that Bill and Stan gave informed, written consent, although I might excuse that omission on the grounds that it would be a relatively boring detail.

So why exactly is the potential for conflict of interest so grave in a criminal case?  There are lots of reasons, but a major one is that codefendants may be sorely tempted to point the finger at each other in exchange for favorable treatment (e.g. immunity or a better plea bargain). Imagine in this case if Stan (accused of being an accessory to murder) claimed that it was all Bill’s idea and that Bill had kidnapped him after committing the murder.  That’s a fine defense for Stan, but it puts Bill on the hook for both murder and kidnapping. As their attorney it would be impossible for Vinny to be loyal to both Bill and Stan in that situation. The conflict would be further complicated by his family relationship to Bill.

Another example: neither Bill nor Stan waived their Fifth Amendment rights and took the stand.  What if the prosecution had offered immunity to whichever one testified against the other?  It would be virtually impossible for Vinny to advise his clients fairly.

As it happens the prosecution didn’t offer any deals, and both defendants agreed with Vinny’s strategy, so there wasn’t a serious conflict. And, for what it’s worth, Mitchell Whitfield (the actor who played Stan) says in an interview with Abnormal Use that he doesn’t think Stan would have turned state’s evidence if a deal had been offered: “[L]et’s say it was different, and there was something that I had that I could have used to sort of say, “Oh, look, he’ll get five years and they’ll try him.” No.  Never.  I’m neurotic, but I’m not a narc.”

It’s also hard to fault the writers for not wanting to introduce the complexity of two attorneys (with the exception of the brief appearance of the public defender).  But in many real-world criminal cases it’s a common strategy to turn co-defendants against each other, which is why this rule is so important.

Vinny’s joint representation of Bill and Stan was ethically problematic, even if it was ultimately only a theoretical problem.  In my opinion that makes it all the more worthwhile to examine it, much like the legal issues implicit in comic books. I also don’t think one more ethical breach hurts the movie, since Vinny’s inexperience and ethical problems are essential to the plot.  My Cousin Vinny holds up pretty well even when watching it critically. If you haven’t seen it, I recommend it.

12 Comments

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

Justice

Posted on March 12, 2012 by | 11 comments

Justice is a limited DC comic series by Alex Ross and Jim Krueger with art by Ross and Doug Braithwaite. The basic story is that the world’s supervillains band together to… save the world. Which they seem to, for a while, only to have that turn out badly, after which the Justice League steps in to do its thing. It’s an interesting series for a number of reasons, most particularly because it deals with the rather obvious superhero-related question of why people like Superman don’t “save the world” in more mundane ways, e.g., combating disease, poverty, war, the sorts of things superheroes could probably do if they decided to.

But the series also includes a handful of things, largely tangential to the main story, which bear some legal analysis. We’ll take a look a those here. There are some spoilers inside. Continue reading →

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Posted in criminal law

Superman, Kryptonite, and Treason

Posted on March 7, 2012 by | 31 comments

Today we’re continuing to clear out the mailbag, this time with a question from Jon, who asks about the 2008 Superman/Batman story arc “The Search for Kryptonite” (now available as a trade paperback):

[In the story], a Kryptonite meteorite has landed, making the element common all over the world. People are putting it in jewellery, using it as paperweights – it’s everywhere. Superman decides that the only way he can be effective as a hero is to gather it all up and get rid of it, arguing that people die when he’s incapacitated. “I can only save as many people as I can be there for.” What right does Superman have to do this?

Aquaman calls it arrogance, when Supes and Batman are collecting a large chunk of green K from the seabed – “You do as you will, and expect people to thank you for it”. Amanda Waller calls it treason, when they break into a government facility to take K-based weapons (a multi-billion dollar facility specifically created to stop Superman, should he go rogue) – “You boys justified the need for this facility the minute you broke into it”.

There are two aspects to this question: first, does Superman have any right to go rounding up kryptonite and second, did Superman and Batman really commit treason?

I. Self-Defense?

The answer to the first part is “no,” for two reasons.  First, Superman isn’t in any imminent danger from the vast majority of the kryptonite, so self-defense doesn’t apply (and thus defense-of-others doesn’t apply to Batman’s actions either).  Second, like everyone else, Superman doesn’t have a general duty to prevent crime or rescue others.  Thus, although an abundance of kryptonite may be unfortunate for both Superman and the general public, it isn’t interfering with a legal obligation and so Superman can’t really claim a legal right to remove the kryptonite.  Even if he could, his remedy would be in court, not taking matters into his own hands.

II. Treason?

The answer to the second part is also “no and yes.”  While Superman and Batman no doubt broke multiple federal laws by breaking into the Last Line facility, it couldn’t have been treason for Superman, though it might conceivably have been for Batman.

In the US, treason is defined by the Constitution thus: “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.” U.S. Const. art. 3 § 3 (emphasis added).  That ‘only’ means that Congress has no power to redefine treason.  “This definition is meticulously exclusive and that it was so intended is indicated by the use of the adverb ‘only.’  The Constitution has left no room for constructive treason and Congress could not and has not undertaken to restrict or enlarge the constitutional definition.”  Stephan v. United States, 133 F.2d 87, 90 (6th Cir. 1943).

Arguably, neither Superman nor Batman has levied war against the United States.  Levying war requires that “a body of men be actually assembled for the purpose of effecting by force a treasonable purpose.”  Ex parte Bollman, 8 U.S. 75, 126 (1807).  I’m not sure how many men it takes to make “a body,” but I suspect it’s more than two.  Otherwise any two people who committed or intended to commit a violent crime against the United States could be charged with treason.

That leaves adhering to and giving aid and comfort to the enemies of the United States.  The problem is that the only possible enemy aided or comforted here is Superman himself.  And if Superman is an enemy of the United States, then it stands to reason that he cannot owe the United States a duty of loyalty and thus cannot commit treason.  If there were some larger entity that Superman was assisting (e.g. a Kryptonian separatist group), then that would be different, but as it stands he appears to be the only direct beneficiary, which makes it difficult to call him a traitor rather than a run-of-the-mill self-interested criminal (albeit one with superpowers).

The same cannot necessarily be said of Batman, however.  If Superman is an enemy of the United States (as proven when he broke into a military base), then Batman is arguably committing treason by helping him.  “Aid and comfort” are read very broadly, and includes “an act which weakens or tends to weaken the power of the [sovereign] and of the country to resist or to attack the enemies of the [sovereign] and the country.” Cramer v. United States, 325 U.S. 1, 29 (1945) (quoting Lord Reading in the Casement trial).  Since the Last Line was created specifically to defend against a possible rogue Superman, helping Superman destroy that facility seems like a pretty clear example of “weakening the power of the United States to resist or to attack the enemies of the United States.”

Superman’s citizenship is not an issue, by the way.  One does not have to be a citizen to commit treason; even a resident alien owes the United States a kind of loyalty, and Superman is definitely at least a resident alien (if not necessarily a lawful one).  See Carlisle v. United States, 83 U.S. 147, 154 (1872) (“The alien, whilst domiciled in the country, owes a local and temporary allegiance, which continues during the period of his residence.”).

III. Conclusion

So is Superman just completely hosed here if he wants to follow the law?  Not necessarily.  At a minimum, he could keep his Clark Kent alter ego safe by claiming to have developed a kryptonite allergy.  This would probably qualify as a disability under the Americans with Disabilities Act, with the result that the Daily Planet (or at least the part of the office where Kent works) would become a kryptonite-free zone.  Since there’s no real need for kryptonite there, that seems like a reasonable accommodation.

This may seem like a pretty poor consolation, but on the other hand Superman’s kryptonite-resistant “K-suit” managed to survive a pretty severe beating before giving out, so he’d probably be able to continue fighting crime effectively.  He’d just have to be a bit more careful.

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Posted in Batman, constitutional law, criminal law, mailbag, Superman

Person of Interest: Witness

Posted on March 2, 2012 by | 14 comments

We’ll be back with more comic book-inspired posts next week, but we’ve been clearing out the mailbag lately and we’ve had quite a few questions about television shows.  Today’s question comes from Brian, who asks about an episode of Person of Interest.  Minor spoilers ahead.

In the episode, protagonist John Reese is trying to protect a witness to a mob killing.  Unfortunately, the witness is shot in the shoulder.  With the mob still on their trail, Reese makes an attempt at first aid using topically applied cocaine and glue, without the witness’s prior consent.  Brian asks:

If/when the victim presents himself at the hospital and informs doctors of how it was treated, would the victim be in violation of any laws due to the presence of cocaine in his bloodstream and/or how would he be (legally) expected to handle the consequences of being given a highly addictive and illegal street drug as an analgesic?

There are several aspects to this question.  First, did Reese violate any laws?  Second, did the witness?  And third, how does the physician/patient privilege come into play?

First, a brief factual background: cocaine has legitimate medical uses, including as  a vasoconstrictor to control bleeding (that’s why it’s a Schedule II drug instead of Schedule I in the US).  Its use in that role is mostly limited to areas like the nose rather than large-scale trauma like a gunshot, but there’s at least some theoretical efficacy there.  Similarly, certain cyanoacrylate glues (e.g. Dermabond) are FDA approved for use in closing wounds.  The medically approved kind are not all that different from over-the-counter cyanoacrylate glues, so again there’s some vaguely reasonable basis for the treatment.

I. Reese’s Liability

The most obvious problem is that Reese purchased and possessed an illegal drug.  It’s hard to tell exactly how much he bought, but it was probably about a gram, which would make it fourth degree criminal possession of a controlled substance under N.Y. Penal Law § 220.09, a Class C felony, plus liability as a buyer.  Could this be excused under a necessity theory?  And even if that could be excused, what is his potential liability if his first aid actually made things worse?

A. Necessity

In New York, the defense of necessity is called “justification,” and is described by N.Y. Penal Law § 35.05:

… conduct which would otherwise constitute an offense is justifiable and not criminal when:

…

Such conduct is necessary as an emergency measure to avoid an imminent public or private injury which is about to occur by reason of a situation occasioned or developed through no fault of the actor, and which is of such gravity that, according to ordinary standards of intelligence and morality, the desirability and urgency of avoiding such injury clearly outweigh the desirability of avoiding the injury sought to be prevented by the statute defining the offense in issue. The necessity and justifiability of such conduct may not rest upon considerations pertaining only to the morality and advisability of the statute, either in its general application or with respect to its application to a particular class of cases arising thereunder.

Basically New York follows a “choice of evils” theory: “the desirability and urgency of avoiding such injury [must] clearly outweigh the desirability of avoiding the injury sought to be prevented by the statute defining the offense in issue.”  Importantly, the choice is judged by an objective standard: the question is whether a reasonable person would agree that Reese’s conduct was necessary under the circumstances?  See People v. Craig, 78 N.Y.2d 616 (1991).

The word “necessary” must also be emphasized.  The statute “rules out conduct that is tentative or only advisable or preferable or conduct for which there is a reasonable, legal alternative course of action.”  Craig, 78 N.Y.2d at 623.

So, was there an imminent private injury?  Yes, the witness had been shot, was severely wounded, and there was no help on the way.  Was it Reese’s fault?  No, he was trying to protect the witness, who was shot by the mob.  Was Reese’s action necessary under the circumstances?  Quite possibly, but that issue would probably ultimately come down to expert testimony.  If a reasonable person would have thought that the witness was likely to die without the ad hoc medical treatment (and ordinary first aid would have been insufficient), then it was probably justified.

B. Good Samaritan Laws

So far, so good.  Reese may be off the hook for buying the cocaine.  But what if his unusual first aid actually made things worse?  Could the witness sue?

New York, like just about every state, has a “Good Samaritan law” that limits liability for people who render aid to others.  New York’s law is particularly strong, since it gives complete immunity to qualifying people who give aid:

… any person who voluntarily and without expectation of monetary compensation renders first aid or emergency treatment at the scene of an accident or other emergency outside a hospital, doctor’s office or any other place having proper and necessary medical equipment, to a person who is unconscious, ill, or injured, shall not be liable for damages for injuries alleged to have been sustained by such person or for damages for the death of such person alleged to have occurred by reason of an act or omission in the rendering of such emergency treatment unless it is established that such injuries were or such death was caused by gross negligence on the part of such person.

N.Y. Public Health Law § 3000-a.  So as long as Reese’s cocaine & Superglue first aid didn’t amount to gross negligence, he’s in the clear.  Of course, it’s easy to argue that cocaine is so often adulterated with toxic substances that it would be gross negligence to even try to use it in that situation.  It would all come back to what a reasonable person would think and whether Reese, knowing of an unreasonable risk, took it anyway.

So that’s Reese’s liability.  Now let’s turn to the witness.

II. Possession

If Reese’s use of the drug was justified, then the witness’s possession is also necessarily justified, but if Reese’s use wasn’t justified, then could the witness be in trouble?

In New York (as in most jurisdictions), possession requires knowledge of the possession of the controlled substance.  In this case, the witness was conscious as the cocaine was administered, so he certainly had knowledge.  And while he wasn’t asked for permission in advance, he seemed to consent during the procedure (“there’s a first time for everything”), so he can’t claim that he tried to divest himself of the drugs.

On the other hand, New York does not seem to recognize an “internal possession” theory of possession (e.g. using an elevated blood alcohol level as the sole evidence in proving that a minor had been in possession of alcohol).  I could not find a case specifically rejecting this theory, but the NIH agrees with this assessment.

So merely having cocaine in his bloodstream may not be enough to prove that the witness possessed cocaine.  Of course, the prosecution could impose immunity on Reese and compel him to testify, but that seems unlikely.

III. The Physician/Patient Privilege

New York, like many jurisdictions, privileges certain communication between a physician and a patient from disclosure.  N.Y. CPLR § 4504:

Unless the patient waives the privilege, a person authorized to practice medicine, registered professional nursing, licensed practical nursing, dentistry, podiatry or chiropractic shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity.

Knowing that the witness had potentially adulterated cocaine in his system would probably be necessary to enable a physician to attend to the witness in a professional capacity.  So given that, it’s difficult to see how the police would ever learn about what happened, assuming neither Reese nor the witness talked.

IV. Conclusion

We don’t typically follow Person of Interest, but this episode had a lot of interesting legal issues, even if some of them turned out to be moot points (if you’ve seen the episode or read the plot synopsis you’ll know what I mean).

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Posted in criminal law, evidence, mailbag, television, torts