I’m not blind, I don’t live in New York City anymore, I’m not Catholic, and I’m scared of just about everything. But I did practice criminal defense in the greater NYC area, so in at least one respect, I kinda know where Matt Murdock is coming from. Although there normally isn’t much overlap between the worlds of superhero comics and criminal justice, the Netflix series takes Matt’s day job pretty seriously, at least in the first few episodes. The story then takes a turn from regular crazy to ninja crazy, and the intricacies of the law can’t compete with ninja crazy.
Anyway, here’s a spoiler-laden exploration of the legal issues raised in Daredevil.
What It’s Like to Be Arrested in New York City
Sorry, wrong Netflix show.
In Episode 1, after Matt asks Foggy why the police have held Karen without charging her, Foggy notes that they have 24 hours to charge her. This is sort of correct.
A murder suspect arrested in Manhattan will be taken to Central Booking, called “The Tombs” since 1838, located more or less in the notorious Five Points neighborhood depicted in Gangs of New York. At the Tombs, you’ll be fingerprinted and photographed, and a rap sheet will be prepared to see if you’ve had any prior “contact with the criminal justice system,” as it is so artfully described.
After you’ve been interviewed by the police — a.k.a. the time when you’re supposed to say you won’t answer any questions without speaking to a lawyer first — an assistant district attorney will meet with the arresting officer and decide whether there’s enough evidence to charge you. You will get to talk to a person from the Criminal Justice Agency, who is there to determine whether the city will recommend you for bail, or whether you’re likely to show up in court if the police let you out jail.
Assuming there’s even 10% of a shred of evidence against you, you’ll find yourself “arraigned” before a judge. You’ll plead “not guilty,” as everyone does, and you’ll either be released on bail or sent to prison to await trial.
This is all supposed to occur within 24 hours, but that depends on how many people were arrested that night, and whether the corrections officer you pissed off happened to “lose” your paperwork. Karen Page says she has nowhere to go but her empty apartment/murder scene, has no family in NYC (therefore no “ties” to a community), and no friendships with rich people; therefore, even if bail were set, it would be too rich for her blood. Then again, she’s “media-friendly,” as Matt and Foggy put it — which is to say, a pretty white girl.
A Case Named Brady
…for a girl named Karen.
Also in Episode 1, Matt and Foggy posit that the DA didn’t want to charge Karen with anything because they had evidence that she didn’t murder her colleague, and charging her would activate their “Brady obligation” to turn it over. But how can the DA’s office be so corrupt as to play ball with the Kingpin, yet not be corrupt enough to destroy evidence?
In my experience, the State avoids Brady obligations by simply refusing to investigate good leads. The celebrated Brady v. Maryland case only requires the state to turn over evidence in its possession, not to investigate exculpatory leads — no matter how easy it may be to do so.
His Other Superpower: Adderall
In Episode 3, we learn that Nelson and Murdock went to Columbia Law School together, graduated at the top of their class, interned at Landman & Zack law firm, were offered jobs, but turned them down. Who wants to work for a guy with the last name “Zack?”
From this, I can tell you that Matt Murdock is insanely brilliant — Peter Parker brilliant. Law school is hard for everyone, but it’s extra hard if you’re blind.
Oh, the reading. You have no idea. I’m not talking about textbooks, either. In the United States, as in any Common Law country (any country with a legal system based on medieval England’s), law is learned by reading actual legal opinions written by real courts. Until fairly recently, it was so difficult for a blind person to study law that schools would actively discourage it. That said, I’ve heard of at least one blind man who managed to graduate last in his class through sheer stubbornness, and went on to have a staggeringly successful career as a litigator.
Matt Murdock wouldn’t have had it quite as rough these days. Computers have sophisticated voice controls for the blind and can read anything back to the user. In later episodes, we see Matt making use of a refreshable Braille display, a pricey gadget that translates print into the (ingenious) tactile alphabet. Even so, when not edited for inclusion in a textbook, legal opinions are bloated with unpronounceable citations to other cases. To get an idea of what Matt Murdock’s legal education was like, close your eyes while your computer reads this passage back to you:
While a public employee with a property right in her job is normally entitled to a pre-termination hearing, see Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985), employees who are constructively discharged are not. See Hoover v. Cnty. of Broome, 340 Fed.Appx. 708, 711 (2d Cir.2009); Giglio v. Dunn, 732 F.2d 1133, 1134-35 (2d Cir. 1984) (“When an employee resigns, the only possible dispute is whether the resignation was voluntary or involuntary, and this cannot be determined in advance.”); Fortunato v. Liebowitz, No. 10 Civ. 02681, 2012 WL 6628028, at *4 (S.D.N.Y. Dec. 20, 2012).
Hell, try reading it yourself — hours of that stuff, every day, seven days a week, for three years. For a blind person to graduate first in his or her class at one of the most selective law schools in the nation, well… it’s a level of badassery usually reserved for Sumerian myths. It’s like walking into the tundra stark naked, befriending a pack of wolves, and training them to win the Iditarod.
And full boners.
As Karen Page learns in Episode 3, those NDAs every corporate employer in the world makes you sign actually mean something. As the lawyer explains, although there are some whistleblower protections out there, but those really only exist so employees can tip off a regulatory agency — not a newspaper. With this in mind, Union Allied’s lawyer offers Karen a settlement: Union Allied will waive all rights to any legal claims related to Karen’s leak, provided that Karen doesn’t talk to anyone about the company.
Plot-wise, the settlement prevents Karen from exposing Fisk the efficient way, by emailing that spreadsheet to the FBI, CIA, whatever. It also explains how she can work as Matt and Foggy’s secretary for no money.
In reality, there’s absolutely no reason for Union Allied to offer Karen anything. First, Karen is what we call “judgment proof,” a debt-saddled millennial with no money. Second, the only information Karen leaked was unassailable evidence of UA’s criminal activity — not a “trade secret” protected by law. In fact, there’s something called the “clean hands doctrine” that prevents the courts from ruling in UA’s favor. Third, nothing Karen agrees to in this settlement could prevent her from participating in official investigations or testifying against UA in court. This is law, not baseball, but that’s still three strikes.
Pictured: the Devil.
Also in Episode 3, there’s a great little moment between Foggy and John Healy (the bowling alley killer) that shows us, yet again, that Foggy Nelson is an observant and scrupulous attorney. Healy asks Foggy which would sound better: that the victim verbally or physically threatened him. This shows Foggy what kind of lawyers this killer is used to. A lawyer cannot advise his or her client to lie, period. If a lawyer knows for a fact that a client has lied to the court, the lawyer has to correct the record, but that situation is exceedingly rare. I’ve worked with several less-than-trustworthy clients, but whatever lies they told, they told to everyone — including me.
Swifter than bullets.
Here’s a quaint legal adage for you: “justice delayed is justice denied.” Believe it or not, if you’re charged with a crime in New York City and can’t make bail, you’ll sit in prison for years before you get a jury trial. Virtually everyone is to blame for this: lawmakers criminalize everything and clog the courts, prosecutors over-prosecute everything to keep their conviction rates high, defense attorneys take on more clients than they can handle and end up asking for dozens of adjournments, and judges let it all happen, hoping the defendant will lose his or her patience and accept a plea bargain. The bitter irony for many criminal defendants is that, even if they win at trial or the case against them is dropped, they’ve already served all or most of what their sentence would have been.
Amazingly, John Healy’s case proceeds to trial within a matter of days. The show justifies this by having the killer specifically state his intention to forego all pretrial motions. This is, of course, ridiculous: pretrial motions are 95% of criminal practice. It’s how both sides fight over what evidence the jury will be allowed to see and consider. The State will motion for a variety of things on its own, and even if the defendant doesn’t oppose the State, the judge still makes his or her own decision. Usually, the judge will wait for the clerk to read the arguments for each motion and write an opinion on the matter. As a former law clerk myself, I can tell you what I would have thought: “Oh, the defendant in State v. Healy has only been in jail for two days? Welcome to the bottom of my giant-ass inbox!”
Murdock’s closing argument to the jury is borderline malpractice. He’s clearly trying to guilt-trip the jurors into convicting his own client, which would get him disbarred. In reality, the self-defense theory is fatally flawed because of how the victim was killed: death by bowling ball. A witness saw the killer standing over a clearly unconscious man, bashing said man’s head repeatedly with a heavy and unwieldy object. New York’s self-defense doctrine includes a duty to retreat — violence is only justified if you can’t safely escape. At some point between the first and third bludgeoning, it would have been obvious to any observer that the old bleeding man on the floor was no longer a threat to anyone.
Well, that’s pretty much it for he realistic legal aspects of Daredevil. Almost symbolically, Episode 3 ends with the most absurd plot-magic in the entire show: Healy, afraid Daredevil will kill him, identifies his employer as Wilson Fisk. Then Healy’s fear of pain and death evaporates and he promptly impales his own head on a wrought iron fence. The defense rests.
Article by contributor sexrex.