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Review of Daredevil Born Again episode "The Hollow of His Hand"
Daredevil Born Again episode 3 is a trial episode! Join us for our review of "The Hollow of His Hand," where we discuss whether Matt Murdock is a good lawyer, whether he had a duty to tell the court about the attempted murder by the corrupt detective, the admissibility of character evidence, if police reports could be admitted without witnesses, and the charges against the White Tiger.
No part of this recording should be considered legal advice.
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Hello, my name is Joshua Dillowand, one of the founding attorneys of the Legal Geeks With me to discuss Daredevil Born Again, episode 3, is retired. Judge Matthew Sherino, gabby Martin and Chris Butler All of us have practiced law and we are here to talk about a trial episode of Daredevil Going in the order I just described, for sake of not everyone talking at once. Judge Cherino, how are you tonight? I am very well thank you. Excellent, Gabby. How are you?
Gabby Martin:I'm doing excellent. I am loving Daredevil Born Again. So far it's been fantastic.
Joshua Gilliland:And Chris, how are you and what do you think?
Kris Butler:I'm doing a lot better than spoiler warning White Tiger at the end of the episode.
Joshua Gilliland:Doing a lot better than that. Spoilers. We're going to be talking lots about this, so if you haven't watched the episode yet, please go and watch the episode, then come back. You can listen to our voices then. So this is a trial episode. We have courtroom scenes and a trial that happens, I think, fairly quickly after the arrest. So the right to a speedy trial is put to good measure here. Your Honor, did that seem realistic to you? I mean, superheroes aside.
Judge Matthew Sciarrino:It certainly fits within Daredevil in that the trials do come about really, really fast after arraignment it's generally within days. That certainly does not happen in real life. A capital case, a murder case, a case involving a police officer probably would not go to trial for about a year after arraignment, just as a general guess.
Joshua Gilliland:Well, you know they have that super fast time travel and things.
Judge Matthew Sciarrino:As a defense attorney, you probably want to get some discovery before you actually go to trial.
Joshua Gilliland:As a defense attorney, you probably want to get some discovery before you actually go to trial. Yeah, a lot of us are old fashioned that way, but not every TV show has that. So let's talk about the charges that White Tiger gets accused and tried for. And your honor you helped outline and tried for. And your Honor you helped outline. You know there are multiple charges here and somebody on TikTok asked like hey, can you have multiple charges? And the answer is yes. So why first question why have multiple charges?
Judge Matthew Sciarrino:You generally, if you're a prosecutor, you're going to charge any of the particular crimes for which the elements are met because, depending on how the proof comes out in trial before the case is submitted to the jury, some of the charges might be dropped. Sometimes lesser included offenses, at the request of defense counsel, might be added into the deliberations that the jury is going to actually consider. But in case the proof at trial comes out a little bit differently and additionally, you might also prove various crimes and for each of the crimes for which someone is convicted in, they can be sentenced. Now if the crimes themselves are all out of one act, then those sentences will be running at the same time, what we call concurrently. If they're different acts, even if the same course or scheme but separate acts, then the judge might sentence someone consecutively, which means they're going to serve each of those sentences one after the other and just as another.
Judge Matthew Sciarrino:Aside as a bit of trivia, I guess, with regards to the trial, that is an actual courtroom at 100 Center Street. I recognize some of the artwork that was on the walls. One of my friends actually sits in that courtroom and it's a really, really pretty courtroom. The thing that annoys me is that every time they show the outside of that courthouse, they are showing 60 Center Street, which is the civil Supreme Court in Manhattan. It's a much, much prettier outside, I get it, but all of the trials take place for criminal at 100 Center, which is this really kind of Gotham-y art deco building. I happen to think it's very beautiful, but it doesn't like fit into one shot. So they always are using 60. Law and Order does the exact same thing. They show the outside 60 Center, but the courtrooms are all at 100 Center. Pet peeve of mine.
Joshua Gilliland:Valid. Well, so let's break down the charges and uh, chris, if you could help with this, that'd be fantastic but uh, the defendants charged with, starting from lowest to highest, manslaughter murder two murder one. And can you help walk us through those different charges?
Kris Butler:yeah. So this is a little different from my, my jurisdiction, where, uh, you know, usually murder is the the more uh, that's the one you start off with and manslaughter is usually the one that's like, okay, maybe you don't have all the elements, but, uh, and I don't think our manslaughter has degrees, uh, but in new york, uh, manslaughter in the first degree is a person, uh, they're, they're trying to seriously injure someone. This is the first element, and the second one is they're trying to kill them. Uh, so this is greater than assault, which you know is different in a criminal and civil context. Uh, so what they're trying to get here they're. This is like sort of the netting of how they're trying to get, uh, hector ayala, you know it's, they're not trying to get away.
Kris Butler:There are some cases where you think it's clear that someone killed someone, but maybe the prosecution overcharged or had circumstantial evidence, uh, which I think was really the case here. There was a lot of evidence we did not get introduced that we thought I think the four of us would think you would see in a case, but they sped through this thing like it was the Flash. Different universe but same result. We don't talk about Quicksilver in the MCU Murder in the second degree. Oh wait, something that's important is in New York. Manslaughter in the first degree is a class B felony. That's going to need someone else that's in New York to explain the differences between those, because we don't have that here in the.
Kris Butler:Great Lakes state. Murder in the second degree is a person intending to cause a death of another person causes that death of that person or another person. And there are. I'm trying to talk, I'm just going to read it the defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse. Pretty much you're trying to have a reason out for why you killed that person or why your actions led to that person's death or the person being charged with a defendant. Your conduct caused or you aided unless you were under duress or deception, you caused the person to commit suicide or extreme recklessness, depravity, you did not care what happened to that person.
Kris Butler:Uh, this is considered a class a1 felony. Man, y'all are complicated in new york, uh, and murder in the first degree is a person is guilty when they intend to cause the person. Uh, you intend to murder, kill the person, uh, or it you ended up killing someone else, um, and either the intended victim was a police officer, which was the case here, um, and that's where they get that charge and this is also a class a1 felony yeah, the degrees confuse me too, because we don't have all it's different in california as well.
Joshua Gilliland:So, uh, gabby, as as the other east coast, uh uh, attorney, can you help us understand the degrees? For those of us that well, our laws are just different yeah, no, and it's.
Gabby Martin:It's funny because you know I went to law school in Connecticut, registered practice in Connecticut, and so we have a friendly competition with our friends in the great state of New York and it's interesting in going to law school there. You know we always talk about the difference in the criminal system, know we always talk about the difference in the criminal system and so I think what's interesting about you know the state of New York, especially this kind of murder in the first degree and I think, to kind of tie it to current events, I think and Judge you can correct me if I'm wrong on this, but this came up with the trial of Luigi Mangione, of the escalation to get to a first degree murder charge. That is specific to New York and I think in New York this is where you have to have that kind of elevated charge, as you guys were mentioning on last week's episode. That kind of elevated charge, as you guys were mentioning on last week's episode, you know, murder in the first degree, you're having the death of a police officer, which is one of the escalations here, the other degrees that we have.
Gabby Martin:Murder in the second degree you intend to cause the death of another person and then manslaughter. This is where you know it's funny I I remember the chart from my criminal procedure criminal law classes and manslaughter is those charges where you're you're talking about. You didn't necessarily you don't have kind of that malicious intent to kill somebody, right, but you do have that intent, that criminal intent, malicious intent to cause physical injury and that does result in somebody's death. So what he's being acquitted of here is the jury is basically finding that he did not have any form of intent to commit any sort of either physical injury or murder or cause the death of another person. I should say because it was, as they found and we know from seeing the whole thing happen, it was an accident. So part of the I want to highlight.
Joshua Gilliland:California does have like murdering the first and murdering the second degree but the like class A felony, class B felony. I don't see that as a civil litigator and your honor if you could help us, because New York code sometimes feels like it needs a decoder ring for the different felony levels no-transcript.
Judge Matthew Sciarrino:The best way to look at um these three charges is in light of what you stated before, why you charge the multiple uh counts. If the prosecutor proved to the jury that he killed him and he knew he was a cop, murder in the first degree. If the prosecution proved that he intended to murder, murdered him but he did not know at the time that he put, threw him into the train that he was a cop, that would have been murder in the second degree, which is common law murder. And then, lastly, if he proved that he didn't intend to kill him but he did intend to injure him by putting him in front of the train and that resulted in his death, that would have been the manslaughter and the jury acquitted him of all three charges. And the reason then that you have the A1 felonies and the B felonies and it goes C, d and E felonies and then for misdemeanors, there's A and B misdemeanors and basically it has to do with the punishment for which you can then be sentenced.
Judge Matthew Sciarrino:And to simplify things, for an A violent felony, which was both murder in the second and murder in the first, you would face life without possibility of parole or a sentence of 20 to 25 years, depending on other circumstances. Your prior records, all of those things can escalate you from one thing to another. Whether you're a predicate, a first time felony offender, a second time felony offender In New York, all of those take into. You have to take those into account as a judge when you're doing sentencing. And for a B felony, which would have been the manslaughter if he was only convicted of that, the sentence could be from five to 25 years, again depending on his prior record and other circumstances, again depending on his prior record and other circumstances. So the class of the felony really comes into play with the punishment after they're convicted.
Joshua Gilliland:Thank you, that's very helpful for those who wonder hey, a what? So let's jump into something that happened to us on social media that Chris jumped on with is Matt Murdock a good lawyer, which is going to be the intro to evidence discussion that we'll have? And, chris, do you want to take the first swing at this on whether or not Murdock is a good attorney?
Kris Butler:So I know one of the sticking points that I've been asked about and I know that, uh, I've seen circulated online. It is did matt break uh attorney client privilege when he introduced the white tiger mask, uh and the identity into the case? Um and I? I can't say that he did um I, because we know that the judge knows, we know that the prosecution knows, and while hector admitted that he was the white tiger that was found during the course of I can't remember his investigator's name uh, cherry cherry. Okay, I wanted to say that, but I was like that's, that can't be right. Uh, cherry. Uh found it in in in his home.
Kris Butler:And what I also thought was really surprising, given that he was a murder suspect, you would have thought that would have been taken by the police in the course of the investigation. But you know, not, not everybody, I mean everybody's watched enough, like svu or ncis or csi to you know, throw that in there. But uh, yeah, at least when it comes to me, I don't think that's a violation of attorney-client privilege. Might be a little bit underhanded lawyering after he fought to keep it out, um, but it is character evidence, all the things that he's trying to get uh the door he's trying to open with the white tiger identity and I I don't know if it's improper. I don't think it shows proper, uh, candor to the court. Um, but you know some, sometimes, uh, I guess you need a lawyer to do that. When the hand is stacked against, you Can't say I condone it, but I do understand it.
Joshua Gilliland:I would venture to say because Cherry was Murdoch's investigator, all of his work does fall under the attorney-client privilege because he is operating that way. So a discussion that matt and cherry would have would be privileged because he's the you know investigator doing that work. Now cherry can testify to what he's seeing and whether for them to get evidence in, but I think there's an argument that cherry's investigation could be protected. Uh, honor, do you have a thought on that?
Judge Matthew Sciarrino:Everyone that's in the law office that's a non-attorney the attorney is ethically responsible for. So with Cherry we have a couple of issues. We have one, the fact that he's paying off a witness with drugs. I think that can raise some ethical concerns and I think here, in as much as it was found by Cherry while he was in Matt's employ and the white tiger did not want this to be disclosed, I think there are some ethical issues with disclosing that.
Judge Matthew Sciarrino:Now, granted it worked out because it, I believe, was the only reason the white tiger was acquitted. So I don't think that the ethical bodies would come down very, very hard on this particular case case. The judge was certainly not happy and part of that is that that judge kind of went out on, you know, out of the way to make that ruling it was not, I'm sure, a very popular ruling with the prosecutor's office or the police department and as much as he kind of put his head out there to make that ruling and then Matt Murdock did what he did, I well understand when they went back into chambers, why that judge was not particularly happy with the way that that was done. So I think there are some ethical issues. I don't think that in the end, matt would get into a whole lot of trouble with it, but I think that it is something that some ethical bodies might look into.
Joshua Gilliland:Gabby, what are your thoughts?
Gabby Martin:So I kind of, what we're talking about is, you know, you can understand it right, you know, and as the judge said, you know it did ultimately work in his favor. But I think what struck me, and and I was trying desperately to find a case that would kind of speak to it is there's for me a a difference of, you know, if this would say like a spider-man reveal or you know any, you know, kind of flash, obviously we're crossing universes, but flash, or you know whatever. Um, but there, obviously we're crossing universes, but flash, or you know whatever.
Gabby Martin:But there was something about the way he described the white tiger being connected to his cultural heritage that kind of sent up a red flag for me that it might have. You know, it seemed very similar to like Black Panther and you know, just, it could have cultural, ethnic, religious undertones and if, perhaps, by revealing that there's something almost, you know, protected about that, in a way that's not just you know, oh, his identity, right, that there's something deeper there to his connection as the white tiger, you know it's clearly connected to his cultural heritage. You know talking about the island of Puerto Rico, and you know there's an amulet, right. And so my thought was again. Yes, it's legal gray area whether he can or can't reveal it, right. But I think there's something deeper, that there's this kind of religious cultural violation. That happens as well.
Joshua Gilliland:I have all kinds of problems with that and from the duty of loyalty to the client incurring the wrath of the judge because there could have been other ways to have brought this out. Because the issue is the confidential informant that the police were going to murder chickened out on the stand because the courtroom was full of law enforcement staring at him, people with Punisher tattoos on the neck. He's a little nervous, so I don't know if there would have been a way to recruit a courtroom of police officers so he could have felt safe to testify, or if there's a way to effectively impeach the victim. And how do you do that? And your Honor, if you have a thought on, was there another trial strategy that could have worked here? I would love your thoughts on this.
Judge Matthew Sciarrino:It also seemed like someone came into the courtroom they really didn't show who or what, at least unless I missed it which kind of triggered his change. It was like the godfather or godfather two, while Michael Corleone was being targeted and the informer was on the stand and then all of of a sudden Michael was sitting next to the brother of the witness and there was that subtle message. So I don't know who came into the courtroom that might have triggered that particular thing. I think that you would have asked the judge to send away the jury. If you were Matt Murdock, send away the witness and kind of give your offer of proof as to what you believe that this witness was going to testify, because you had a good faith basis in that, because you've discussed it with that witness and something happened that changed his mind. And then, without anyone in the courtroom other than, of course, the defendant and the prosecutor and Matt Murdock, you could have put that witness back on the stand and asked a couple of questions to see if he was being threatened.
Judge Matthew Sciarrino:And there is a procedure for this where a person can be kind of forced to testify against their will, not necessarily what they're going to say, testify against their will not necessarily what they're going to say.
Judge Matthew Sciarrino:So if he was going to stick to his story that he was home, you know you might declare him hostile. But clearly I think Matt realized that he wasn't going to get anywhere and that his best course of action was to change tactics. But there is a mechanism for if this kind of thing and this does unfortunately happen for if this kind of thing and this does unfortunately happen it happened in several gang murder trials that I was involved in where witnesses who were eyewitnesses to various things the day before the testimony they either disappeared, they made themselves unavailable. There were times where we would have to send out detectives to arrest a witness and hold them in a hotel until it was ready for them to testify. You know there is procedures for all of this that still try to keep a trial fair to the defendant and for due process as well, but there are procedures for dealing with it depending on the actual events in question.
Joshua Gilliland:Fascinating. Why don't we get to what I love and that's the rules of evidence? Because back in law school I spent a lot of time alone. But let's get into character evidence, and there's a time you can't offer it. You can't offer it and when it could be a very bad idea. Uh, I know the judge and I are evidence nerds. Gabby, how do you feel about other nerds and can you help us understand character evidence?
Gabby Martin:You're bringing up some like.
Gabby Martin:This was always my toughest subject I had, so, but it's interesting because I think what you see here is really and I'll leave it to you guys to comment on the accuracy the 100% accuracy, right, accuracy, the 100% accuracy, right.
Gabby Martin:But it's it's really interesting because obviously Matt changes tactics and, you know, revealing the white tiger is to speak to his character, right. And so evidence of a person's character is not admissible to prove that the person acted in conformity with that particular character on a particular occasion, except in certain circumstances, right. So in a criminal proceeding, it can be admissible where the evidence of that character is an essential element of a crime charge or claim. So here you know, you could argue that might be the case, right, that he's part of his character is that he goes around, you know, getting into altercations with police officers, right, that he hates police officers, that he, you know, and it speaks to his, his intent or lack thereof, to harm these police officers, these police officers. A defendant may offer evidence of character that is relevant to prove the defendant acted in conformity if evidence on a particular occasion and in a criminal proceeding, there's some other evidence of character in terms of defense, justification or self-defense.
Joshua Gilliland:Chris, would you like to add anything on character relevance?
Kris Butler:Yeah, especially in this context where, you know, as Gabby said, matt is using the white tiger persona to demonstrate, uh, that, uh, uh, you know, hector has this propensity to help people out because, as he says, quote, it's the right thing to do, unquote. Um, you know, the prosecution has, uh, the ability to rebut that introduction of character evidence. Now, they didn't show, they didn't show a lot of the prosecution's case on that. So I would be curious, as, since the prosecution fought hard to bring this evidence in there and they obviously lost, I wonder if they were going to go for the angle of. You know, this is not character evidence of someone that is helping for us the right thing to do. It's someone that maybe just wants to get out there and fight and he's not taking context of the uh situation in into account or something to that effect.
Kris Butler:Um, and what I also found interesting was and maybe they didn't show this and maybe he was alluding to this, but he brought in all these police reports from all the different officers and then we got possibly a cameo mention of Officer Morales, quite possibly the father of Miles Morales. Miles Morales, but In my experience and I think this is sort of universal from what I've looked into. Police reports are inadmissible hearsay. You know there are layers to hearsay, but at least in this context I feel like the police officers would more than likely be available. But he's using these as character evidence that Hector Ayala is a guy that helps out because it's the right thing to do, and I don't think that would have been allowed.
Joshua Gilliland:Luckily we have a retired judge that can help us with this, because I have your Honor. What are your thoughts on the issues that Chris has raised?
Judge Matthew Sciarrino:Absolute hearsay and absolutely inadmissible at the trial. And there's really no way around that issue. They would have to have put those officers on the stand and asked them about those incidents and his reputation and what happened, because a report cannot be cross-examined. So even though, in addition to it being hearsay, you have a Crawford issue where there is an issue where the prosecutor has a right, or reverse Crawford issue where the prosecutor has a right to cross-examine those witnesses, so those reports never would have been allowed in at any trial.
Judge Matthew Sciarrino:The dirty cop who did testify he testified that him and his partner were alone on the train station that night and it seemed like the prosecutor's case and, as Chris said, there wasn't much that was shown. There's no way around. I don't think the fact that the theme and the motive that the prosecutors seemed to be going after was that the defendant did not like cops and that's the reason he took this cop and he knew he was a cop and he threw him in front of a train because he did not like cops. So, as a result, the character evidence in and of itself would have been relevant and would have been allowed at trial, just not through reports. They would have to have put spider-man's dad on the stand there's.
Joshua Gilliland:We live in an age where there are cameras every place. The idea that you didn't try acquiring security footage from the subway seems very strange to me, because that could torpedo the prosecution's case not not all of the new york subway system stations have cameras.
Judge Matthew Sciarrino:It's it's in a high 80s to 90 percent. Some of them, some of them and you know this is a clear example of, I guess, maybe ethnic privilege. But the midtown stations were the first ones to get the cameras and then as we got to the poorer neighborhoods they were some of the last places to get the cameras. And you would think that since that's where arguably at least that's where people argue most crime takes place, that that's where they would put a lot of the cameras. But it did not work that way and part of that was infrastructure and that the more newly renovated stations had the infrastructure to put the cameras. And also Staten Island and its little train system was one of the last to get cameras and not all of those stations have cameras yet. So it is in the high 90s as far as, and most of the Manhattan stations have, but some of the stations in the Bronx and in upper New York did not have cameras yet.
Kris Butler:I would. I would also add they could have used that to torpedo the confidential informants testimony that he was home. Oh, absolutely, because then you'd be like, ok, maybe you didn't see him because the subway system didn't have cameras, but I'm sure one of the corners outside the subway station had a camera. And then you could be like, well, is this not you? Where were you going? Where were you headed from? Why were you in such a hurry?
Judge Matthew Sciarrino:and then you know permission to treat the witnesses hostile and then get that testimony in there right and the and the other thing that on that is is matt murdo, I think, because he assumed that he was going to be a good witness for him didn't bother to get all of those cameras from the local stores, the local streets, be able to piece someone's progress through the city, or or from camera to camera to camera to camera, uh, in order to show where they went, from point a to point z.
Judge Matthew Sciarrino:And we saw that a lot. But I don't think that you know that the police certainly weren't going to be getting that footage because it didn't help their uh crooked case, um, so and and matt, I don't think, went after it. I would have thought cherry would have done a little bit more due diligence on that, uh, but but apparently, because I guess the trial happened in like three days, they didn't have the time to get the, the, the footage from all of the stores to show that he wasn't home, that he was on his way to the train station, et cetera.
Gabby Martin:Yeah, I mean they that that law firm has a lot of staff that could have found all the video evidence they needed for a firm that's been in existence for one year. That's my sticking point.
Joshua Gilliland:They have a lot of staff that could have helped with this case you could also get the cell phone information to show where the uh witnesses cell phone was pinging. Because if it was like, oh, okay, you're gonna say you were home, you know you're on a recess and you get the you know cell phone data and impeach him uh to show like you this is it shows this in the train station the one issue on that is if a prosecutor is getting that cell phone data, he's going to get it very, very fast.
Judge Matthew Sciarrino:If you're a defense attorney trying to get that cell phone data, it's going to take a very, very long time and you're going to have to go through a lot of hoops to get that particular cell phone data, and it's not fair. But that is reality reality, yes.
Joshua Gilliland:And again, the three-day trial is kind of a uh hang up here because you think they would have had more time to do more due diligence, because even if they had a month like there's a lot of this stuff might still take 30 days for it to arrive. So, uh, frustrating, but there would have been ways to impeach the victim, which I know is sounds horrible. But if he's playing, I don't want to have my wife and kids end up dead too fine, uh, but he's still not off the hook. That just because he survived being on the stand, that doesn't mean he gets to live. So so, again, ending up Godfather 2 comes to mind.
Joshua Gilliland:But let's talk about other elements of this case with you know, somebody's brought up bribing the witness with drugs. I think that was you know the comment about, like I can't have you drooling on the stand. I don't know if that's a bribe as opposed to well medicating the guy, which doesn't make it right. But the question about can you give your best testimony today? If he's drooling, no. If he's high, also no. Your Honor, you came off mute pretty quick. So your thoughts also know, your Honor, you came off mute pretty quick.
Judge Matthew Sciarrino:Yeah, I have problems with someone from your law office giving an illegal substance to a witness, so I really don't see that as being something that should be done. You know clearly he wanted him at at baseline and to get him at baseline. He's a drug addict. The easiest way to do is to is to give him his drug of choice, but there are substitutes that that are not. As illegal as what appeared to have been given to him.
Kris Butler:But yes.
Judge Matthew Sciarrino:I have ethical issues because he is a member of his law office and you know all of those he is. Ultimately, matt Murdock is ultimately in charge of the ethics of that office and giving an illegal substance I don't believe can be found to in any way be kosher under New York's rules of character and fitness.
Joshua Gilliland:So they lose their main witness and Matt, after a recess which has time to go home and strategize in the war room, decides to cross-examine his own client and say are you not the white tiger? I have problems with this and I'm going to be curious to hear what the others say. But my reaction to that is he didn't talk to the client before having this giant change in strategy. There was time to actually go back to the office, so this means that there was no time to talk with the client prior to putting him on the stand, no time to pass a note prior to putting them on the stand. Ambushing one's own client seems problematic. Now there's the other issue of client competencies.
Joshua Gilliland:I'm still not convinced Hector's identity as the white tiger was public information because, as we see in the trial, it's not. I still don't know if the DA didn't know about it until Matt brought it up, because I don't think the police did a good job searching that apartment if the apartment had been searched at all, because, again, it's in a box under the bed. How lazy were they that they either didn't look or, if they did look, they left it Like that's not screaming thorough with that investigation. Screaming thorough, uh with that investigation but I it feels like he disclosed attorney client confidences. Uh investigation that had not. Uh arguably was privileged and it's it's a, I think, problematic and gabby. What are your thoughts?
Gabby Martin:yeah, like I said, as soon as it happened, you feel a certain way at least I did because, again, going back to it's not just kind of revealing his identity, but there is this kind of cultural component that seemed almost like outing and it just rubbed me the wrong way, um, and it just rubbed me the wrong way, um, and obviously when he's speaking to him in the cell, you know it's almost like he's, you know, doing something on his own behalf for his client, right, he says, you know you'll be better off, like, not taking it up again, right, ignoring the kind of cultural significance and or, you know, religious, you know ethnic, um kind of significance to his particular, um, superhero identity or vigilante identity, uh, versus matt and and being daredevil, um, I do think, going back to what we were talking about of, you know, character evidence and all of that, there is a certain strategy here which is getting ahead of something right, introducing something before the prosecution has an opportunity to introduce it, right, so that you kind of control the narrative.
Gabby Martin:Right, so, if you know he had which is kind of confusing because obviously the motion to eliminate was granted and the evidence was suppressed, right, but you know you could make an argument that maybe he thought that you know the prosecution was going to try to attempt, like a gotcha, as he did, right. And so there is that kind of strategy in trial to kind of get ahead of the bad evidence, right, so that you control what's being said. That's one of the reasons for putting your client on the stand, right. And so, yeah, that is the strategy. But the reveal is, I agree with you, not 100% ethical there.
Joshua Gilliland:It's problematic because he's in, you know, the lawyer's endangering the client's family as well, which is part of the reasons why superheroes have secret identities, so their loved ones don't get taken out. I remember reading the original marvel civil war, you know, and there's an exchange between uh captain america, steve rogers, and spider-man after spider-man's reveal of uh. You know how does mary jane like knowing that the green goblin or the hobgoblin has her home address? Like you know, you're, you're endangering others with that conduct. Uh, you know, again that may get shot. So problematic, uh, all around. Uh, chris, did you want to add something?
Kris Butler:yes, also, you almost triggered something by bringing up aunt may getting shot and then brand new day happening to erase all that. This made me stop reading marvel comics for a decade anyway. Uh, a couple of things, um, that I thought interesting is that matt murdoch got bit by the tony stark bug, and what I mean by that is I feel guilty and self-righteous about something. So I need to project this on to you, hector, um, because he's like I gave up Daredevil and I am all the better for it, and you will be too. You know, sort of forcing Hector into that corner, and I feel like that's for Matt, but it's also a narrative tool for us, because there's nothing keeping Matt from.
Kris Butler:You know, if he didn't want to say it in the prison to, while they're in the courthouse waiting for the judge to come in, to be like, hey, I got a new strategy. And if he, if he doesn't even want to tell him straight up, he just be like trust me or just say, hey, we got to bring in your identity or you're going to die. You know that kind of thing, um, because you know, like you both said, you know it puts his family in danger. It completely ignores the, the heritage um portion of what the white tiger means to hector um, and I just thought that that was a. It was a wild move, it worked, but it only worked for what a day, 12 hours, you know, after he got acqu acquitted.
Kris Butler:And then the other thing would be it's weird, I don't know as a as a result of that, and I'm jumping ahead to the closing argument of the prosecution where he's saying you know, real heroes don't hide behind masks. It's a. It's a kind of a wild thing to say post-end game in the mcu. Uh, you've already had the sokovia accords both. You know you had everybody fight for it. They got passed, then they got repealed. In a post-repealed sokovia accord world, it's wild to say that heroes don't wear masks after half the population gets turned to dust and comes back.
Joshua Gilliland:There have been two alien invasions. Turns out there's an undersea kingdom. People might be a little on the freaked outside and also comfortable with the norms of like, oh, aliens are real, yeah, we know. Now, like I, I'm still upset about, about the price of gas. Like they could just not like register it might not be important anymore. Or they actually might see the person as a hero because like oh, you stopped the giant rhino man from destroying my neighborhood. Thank you, your Honor, your thoughts.
Judge Matthew Sciarrino:I don't think I could have said it any better than chris, so I'm not going to add anything to what chris has already said, except for the fact that in this mcu universe, if it follows the, the comic book story that this is kind of getting its information from the da is appointed by the mayor, as opposed to real life, where the da in new york is elected um by by the citizens of the county. So in as much as he's appointed by the mayor and he knows the mayor's feelings against vigilantes, that could be the reason that he made the statement about uh, the real, the heroes don't wear masks and and public opinion could swing.
Joshua Gilliland:But if this is also post-Break New World and the president turned into a Red Hulk, there might be a much lower threshold for like yeah, okay, we call that Tuesday. They just might not. They're used to weird at this point.
Kris Butler:There's a Red Hulk oh there's another evidentiary uh that I want to bring up, which probably would have been an expert witness. But in the prosecution's closing argument he brings up he's like do you know what happens when you get hit by a train? You know, that is that is I mean. Granted, it's closing argument and the juries are instructed to not listen to closing arguments, but having been a juror myself, I can tell you that does not happen. But he brings up you know all the things that happen to your body when you get hit by a train and how you're not dead and everything like that.
Kris Butler:He couldn't just say that off the cuff, he would need an expert witness to introduce that. And then you know that brings up the you know feeling of like. This is how you know depraved. He must have been to hit that element of uh I think that was murder in the second degree had to hit that element of like. He did not care what happened to this person's life, because there's no getting around this and the pain and terror that the cop would have felt.
Joshua Gilliland:It also raises the terrifying question how often does that happen?
Judge Matthew Sciarrino:Because if you have that kind of knowledge about train accidents, Unfortunately, people being thrown out to the tracks in New York City does happen with quite a bit of frequency.
Judge Matthew Sciarrino:And there would. The medical examiner, in as much as this was a death case, would have had to have testified. So there would have been expert testimony to establish that the victim was in fact dead and there would have been testimony as to the trauma that the body. So, although a prosecutor is actually under a much higher ethical duty in their closing arguments than a defense attorney, there would have been, I think, that underlying information for that prosecutor to make those statements that they did, because there would have been no way to prove a murder case absent some of that expert testimony, at the very least the medical examiner.
Joshua Gilliland:Moving ahead. So here's an issue that reasonable minds can differ on, but I'm of the mindset that Murdoch should have told the court that the star witness police officer tried to have him executed in the confidential informants apartment. I think that's an important fact the judge should know about. I think it's something the jury would want to know about, because if you're going to play the dirty cop card, it shows the intent of the police officer to go on a murder spree and after especially after losing the star witness, that would have been helpful because it goes to the entire issue that these cops are dirty and that they're out there killing people. Because they were, they had no qualms about executing a defense attorney. Reasonable minds can differ, uh, but I think that should have been brought out and I think there was a duty to the court to do it. I think there was a duty to the client, uh, to do it as well, uh, it does raise some sticky questions about how did they find a confidential informant? But my two cents.
Gabby Martin:Gabby, your thoughts, probably you know. My guess and my feeling is that Matt knows that Fisk is behind this, right you know. And and even it was telling what the police commissioner saying, like you're always going to be the kingpin, right you know that he doesn't know, kind of how deep this goes. Right, because clearly something is weird. If these guys just you know, concoct and it has the whole storyline was kind of weird to me that they concocted this story, that you know they were on the, you know they were doing police activity, right, and this guy just came up and and attacked him, which is clearly not what happened. Right, right, they were roughing up a confidential informant, but it just all seems. Obviously we know, with the Punisher tattoos and at the end of the episode seeing potentially the Punisher back, spoiler alert, but I think that kind of was the reason for not disclosing that.
Joshua Gilliland:Your Honor, do you have thoughts on this?
Judge Matthew Sciarrino:reported the police officer and whether or not the defense of his client put a duty to disclose it because it would have helped his client's case.
Judge Matthew Sciarrino:I think one goes more to his attorney's strategy in the particular case. So again, I don't think it was a mandatory duty to report it but it might have helped his case. It's also very possible the judge would have said that this was a collateral issue outside of the scope of this particular trial and as much as the police officer had already testified. So it could have raised a couple issues where he probably wouldn't have been able to pursue that line of inquiry, raised a couple issues where he probably wouldn't have been able to pursue that line of inquiry anyway at that particular point. I think once his witness kind of turned on him and if they had explored that more and the reasons for his client changing his story, that then might have been the time to raise that particular issue. But it doesn't seem that it ever went that far for whatever reasons and we didn't particularly see that. So I don't think there was an absolute duty. You can certainly make the case that he should have.
Joshua Gilliland:Yeah, there's a difference between the ethical duty to report wrong conduct versus the duty to the client for putting on the best case possible. And if the reason Matt didn't want to do that was it could have disclosed oh, I have a radar-like sense and I'm really good at fighting. That could also again. Then the duty of loyalty isn't to the client, it's, it's to the lawyer's self-interest instead, in this case, not getting out of his door. Double chris. Any any thoughts on that issue?
Kris Butler:um, I I don't think I have anything to add about uh, whether, whether there's a duty. I think gabbyby and Judge Cherino covered that quite well. But on the intimidation of a witness issue, I'd also throw in harassment of counsel, given that the police officer that was a star witness for the prosecution then pulled over the investigator of the defense, um, and then you would have to bring him on the stand and be like, well, why did you do that? Why were you there? You know that's, you know to me, I don't, I don't know where his, you know uh precincts boundaries are, but seemingly that is.
Kris Butler:It seemed like it was well outside that. But you bring that up and then, um, you can ask him questions like have you seen uh, or have you been to the confidential informants home? Like, you know there's a, there's a rabbit hole. You say that you know this is just continued harassment, because I'm um representing uh, the competent, or I'm representing Hector Ayala and the confidential informants key to my case. I think there was a lot they could have explored there, but they went through this pace. I thought this trial would be at least two episodes.
Joshua Gilliland:Yes, but sometimes the viewing public isn't into that.
Judge Matthew Sciarrino:So as to jurisdiction, all cops in the city have jurisdiction in the entire city and the way the detectives in Manhattan are broken up for the most part is a South office and a North office and they can really go wherever they like. But for the most part the business district which is City Hall South is one detective overarching hierarchy and then from City Hall North is another one. So he probably is a North detective and so he would have been within his jurisdiction. Granted, he had no cause to pull over, really, the van other than to try to stop the witness there. So I agree that it would not have been a bad tactic to put his PI on the stand in order to, you know, kind of flush that out if he was going through that particular strategy.
Joshua Gilliland:Gabby, you raised some interesting issues with mayor fisk and conflicts of interest. Can you walk us through the issue of, say, a? Uh in this case he is a convicted felon who's now mayor of new york and still might be running a crime family uh. So can you help us understand what's going on?
Gabby Martin:yeah, no, and it's it's been fascinating for me because it's like you have the legal side on. So can you help us understand what's going on? Yeah, no, and it's been fascinating for me because it's like you have the legal side on one side and then, obviously, the kind of government and all the kind of laws and regulations that govern that. Having worked in state government, that's very exciting to see, to see staff, people right and seeing very just like we've been talking about the realism of the courtroom procedure, sometimes not as realistic, right, but there is a lot of realism in how the office of the mayor operates, right, that tracks with things we would see in state government, municipal government, that sort of thing. And one of the big things that oversees any branch of government from the local, state level, federal level are conflict of interest regulations or laws, code of ethics, that sort of thing. And one of the major things that you can't do which seems common sense but it is codified in law is you really cannot use your position for personal financial benefit. Right, it's common sense, but you would be violating the law if you did that. So in New York City it's governed by the New York City Charter, chapter 68, which governs conflicts of interest and there's a whole host of conflicts of interest that arise for municipal officers. And I should also note, very key here is not just public servants, right, the elected officials themselves, but also the people who work with for them.
Gabby Martin:Right, this individual that's working for Fisk, or Vanessa right, who goes and visits the crime families, but also Vanessa herself, is subject to the conflicts of interest policies. She is what is called an associated person, right, she is the spouse of the elected official and we get some reference to this. Right, his staff person, who I'm imagining the woman who works for him is his chief of staff. This other shady character, right, it might be what we call like a body man versus a chief of staff, because he's, you know, doesn't seem to have as much kind of direction in the office. He could have some other title, but basically conflicts of interest would prevent them. You cannot misuse the office, you can't misuse city resources. So if this individual drove his city vehicle to this meeting with the crime families, that would not be allowed. And what they discuss is Vanessa running, even though Fisk seems to have taken a very separated position from the crime organization.
Gabby Martin:Vanessa, obviously, and this is the subject of their spousal, you know kind of issues is in therapy is that she still wants to and may still be running the crime syndicate right, and so she has to also take a step back because she's subject to the same kind of conflict of interest policies, because there's going to be certain things that she knows as the spouse of a mayor. She can't violate those confidentialities. She can't use that information uh for her own gain. Um, there could be um a assault solution, if you will, if they put the and obviously this wouldn't necessarily be allowed because we're talking about a crime syndicate.
Gabby Martin:But if there were a conflict of interest say a business that was on the up and up um, that they could put in what they call a blind trust, which neither vanessa uh nor Fisk would have to have access to. It would have to be with somebody who was an independent trustee. They could put those assets that would potentially cause a conflict of interest, could put them in a blind trust, which would negate the conflict of interest while they were in office. But obviously we're talking about a crime uh organization and washing money and all of that, and even this knowing about what's happening uh could cause him problems down the line yeah, putting a criminal operation to a blind trust seems to uh not make a lot of sense, because the entire purpose is being criminal uh.
Joshua Gilliland:So you know, it's casual morals at best at that point. So it's super, super weird, uh, but your insight from your state government days is super uh hopeful to understand. So, with all that said, we get to the end of this episode, and if I was advising someone who had been a costume vigilante superhero type and they'd been outed and that involved the death of a police officer, I would say now is a great time to move to Lincoln, nebraska, or Ann Arbor, michigan or Albuquerque. It's time to go and not come back. And don't leave a forwarding address. It's time to go.
Joshua Gilliland:Hector doesn't do that and in fact he suits up again to go out and ends up getting shot through the head, and his rolling credits is very haunting with the sound of the frog from Puerto Rico that he talked about, and the assailant has a Punisher logo on his chest. I don't think it's Frank Castle. I think law enforcement is taking up summary executions, which is a reason why we'll see Frank Castle in the series later. But yeah, I think he needed to move and not come back. Uh, it's time for a new identity and a new stage, far away from new york city. Uh, I want to get first, uh, chris, your thoughts on on it's time to move oh, he should have been out of there.
Kris Butler:You should have gotten him and his family plane tickets, bus tickets what have you out the city. That should have been your first move. Honestly, I didn't think he was going to make it past the courtrooms or the courthouse steps. I thought he was going to be walking out. People were going to be, you know doing, you know reporters were going to be there. He's going to be walking down the steps to be like you know know, matt says something and pow, thought that was just going to be it.
Kris Butler:But the fact that he went back out in costume and I don't understand, as Matt, how you do not expect him to do this, because think about how long for you, matt, it took for you to throw off the costume for for good and for matt not to just be there and be like what are you doing? Go back inside and honestly, I think, wouldn't that spark a an investigation by the state? Bar is like your actions deliberately led to this man's death and, given the potential you know confidentiality issues raised that we've raised already I feel like that would, uh, it would be something very interesting question.
Joshua Gilliland:Uh, your honor, do you have thoughts on what chris has raised?
Judge Matthew Sciarrino:yeah, I agree that the, the uh, the death definitely, I think will would raise some ethical issues, in as much as it's clear that the revealing of his identity in that courtroom probably was the reason for the hit and clearly the white tiger should have been on the next plane out to Puerto Rico so he can listen one last time to the uh, the, the cookie frog, um and and and disappear into the rainforest for for for a little time.
Judge Matthew Sciarrino:Um, I think in the in the comic book world, his uh, younger sister and or his niece take up the mantle of the white tiger. It'd be interesting to see if the show does a white tiger type of show, which would highlight a younger Latina superhero, which could be an interesting show in and of itself. So maybe we'll see a white tiger show down the line with his younger sister or with his niece. Is on many police officer vehicles within the city of New York and became popular with the Blue Lives Matter answer to Black Lives Matter. So the Punisher has gained a bit of popularity amongst the NYPD, and I think that this was probably someone either at the behest of the kingpin or was someone that just believes to take out all the vigilantes.
Joshua Gilliland:It's dark, gabby, your thoughts.
Gabby Martin:Yeah, I mean, I agree with Chris, that was my feeling. As soon as he was acquitted, I was like his days are numbered. I thought he was definitely going to get killed walking out of that courtroom. But when an actor dies in real life and then they're viciously killed off and that's kind of their ending Right.
Gabby Martin:You know you have like a Ray Stevenson who's very sad to me, but I agree, I think you know we're talking about kind of the ethical violations that matt did, you know, revealing his identity, and I think one thing he didn't take into account again, you know we talked about how revealing the information put the lives of um hector ayala's family friends. But it also kind of violated his own ability to stay in place, right, not just this kind of cultural piece of being the white tiger, but he has every right to stay in New York, right To stay where he lives, right Is, you know that decision to unmask him upended his life. As we said, he should have, for all intents and purposes, been on the next, you know, plane, bus, train out of New York City, um, but he didn't. He shouldn't have had to, right, um, but Matt took this step, um, that put his privacy at risk and you violated something much deeper, because it has this kind of deeper connection that I don't think Matt took into account.
Joshua Gilliland:Yeah, lots of questions and lots of problems with this. Did I mean crossing Disney properties? You know Ray Stevenson's character from Ahsoka has been recast with Rory McCann, at least reportedly Did the actor who played White Tiger die, and I missed that.
Gabby Martin:Yeah, so that was the dedication at the beginning of episode two. Um, he unfortunately died a battle of cancer that I believe he was dealing with while shooting daredevil, which is why he looks um the way he does. So he did pass after he had filmed the scenes, um, I believe at the end of last year, if not the beginning of this year, that's, I think it was at the end of 2023 maybe.
Kris Butler:Um, because I know I looked that up afterwards, uh, because I was like, who is this dedicated to?
Joshua Gilliland:and, yeah, well, now, all, now, all the articles are about, oh, his character died, and not when he died troubling on all kinds of levels because the if they added that after the actor passed, I find that troubling on all kinds of levels. If that was part of the story to begin with, I don't have a problem with it, and dedicating the story to him is appropriate in either situation because he does a great performance, especially if he was fighting cancer while filming.
Kris Butler:Yeah, it was the end of 2023 that he passed.
Joshua Gilliland:So this was filmed a while ago.
Gabby Martin:Yeah, I wonder if this was a end of 2023 that he passed, so this was filmed a while ago.
Kris Butler:Yeah, yeah, I wonder if this was a part of the first, uh, sort of few episodes, um, because you know it went through extensive reshoots, uh, because people did not like the direction of the of the first, you know, uh it died first go around on christmas eve.
Judge Matthew Sciarrino:Christmas Eve 2023, december 24th 2023. So it was right at the end of 2023. So it was probably right after some of the filming and then they had to do some refilming, depending on the storyline.
Joshua Gilliland:I think that would overlap with the writer's strike and the other strikes that took place. Oh, that just.
Gabby Martin:Yeah, I would. I would imagine that was always planned. Like you know, chris, and I said his days were numbered walking out of that courtroom, so, but it is just tragic to kind of line that up with somebody who did die tragically, um right, so it does make it all the more tough, um, but yeah, it's, it's interesting because, as you said it's, it's part of it's. I find it's interesting to to determine what's been reshoots and what's been, um, you know, part of the, the original storyline that's a lot to take in and a lot to uh like.
Joshua Gilliland:My opinion would be very uh, fact, specific on knowing what happened, and I don't know how I feel about that yet. Well, all of that aside, what I do feel good about is they're doing an amazing job with this series. Uh, you know, the depiction of lawyers are overall positive, that, you know, the courtroom seems scenes. Uh, aren't the like get up and scream at the tv. Aren't the get up and scream at the TV? They're realistic, looking enough, even if it is a weekend. He's been charged a week ago and we're doing this. What it's like, the Punisher trial in season two, taking like a week. That's not how courtrooms work, but the arguments and everything seem plausible. So, uh, with that said, any closing thoughts from uh, all of you and we'll go in reverse order, chris any, any closing thoughts uh, you know, I I thought this, uh I think I've said before this was very rushed, um, but obviously they got somewhere.
Kris Butler:They gotta go, and so they're just like we have no time for a proper murder trial, but I did think it was interesting that they, what they included. I feel like it is definitely going to uh play a part later on in the series, whether that's, um, the cop that is still alive, uh, maybe the one in in the punishers, you know, vest, or maybe there are a bunch of them and they'll get their comeuppance. Whether, you know, uh, like judge sereno said that the district attorney was put in power by fisk. So that will come to play later on and definitely like that closing argument. Maybe the theme of this is, you know, heroes don't wear masks, um, but, uh, you gave us some good content for today to talk about. So, you know, and and it's not like, uh, um, law and order where they, you know, make all defense attorneys look like the scum of the earth.
Joshua Gilliland:So, you know, a win is a win yes, yes, good, good, good thought uh gabby your uh closing thoughts yeah, like I said, I love the seeing both um.
Gabby Martin:You know obviously not just the lawyer um the legal field and you know the lawyer drama and all that kind of stuff and I agree it's it's nice to see a defense attorney be the good guy for one um, but also, like I said, seeing all the kind of elected official. What's happening in the kind of municipal government world which I hope they show a bit more of is going to be really interesting. Obviously you have Gandolfini as the kind of very sketchy aid to the mayor right that he may not be totally on the up and up as well, um, so it'll be interesting to see how that all part of the drama um plays out as well. So I'm excited for that.
Joshua Gilliland:And your honor, your closing thoughts.
Judge Matthew Sciarrino:A very good legal advisors, whoever's uh helping with regards to these shows.
Judge Matthew Sciarrino:The fact that we have good issues to discuss is a very good thing, because it shows that they're also probably considering some of these issues when they decide the way that the story is going to go. And likewise, I like to see a defense attorney portrayed in a nice light. I had the privilege of having many, many wonderful, wonderful defense attorneys appear in front of me, and I happen to be very pro-defense attorney with regards to what they do on any given day is not the easiest thing to do, and there are many, many, many great prosecutors that also came in front of me on any given day. And I like things that portray the criminal justice system and show both the warts as well as the virtues of the criminal justice system, because it does have both. And the fact that people will discuss some of the things that happen in the criminal justice system is always a good thing, because it's those kind of things that help reform the criminal justice system. Even if it's a you know, a little show like Daredevil, it still gets people discussing certain things.
Joshua Gilliland:Well, and at the risk of sounding like an Eddie Haskell, the judge is depicted well.
Judge Matthew Sciarrino:Yes, I like that judge a lot. He was very realistic, including him being very mad after putting his, because I've been in that situation where I've kind of stuck my neck out to make a particular ruling, been in that situation where where I've kind of stuck my neck out to make a particular ruling and then something happens, uh, which made me regret that particular decision. So I understood where that that judge was coming from and it was very realistically portrayed yeah, it's just.
Joshua Gilliland:Having done cmcs many times for case management conference. For those who don't know their abbreviation, you know it's nice seeing that seems like a real judge. I'm glad to see that who's fair and normal sounding as opposed to other depictions. So all good stuff. So with that I can now say we will be at WonderCon on March 28th at 4 pm for Yar the Pirates of Star Wars or I'll say it correctly, yar the Pirates of Star Wars, super excited.
Joshua Gilliland:I've been re-watching a lot of the animated series and Skeleton Crew. One of the other lawyers texted me today and said you know who hadn't watched Bad Batch yet and went, went. This is awesome, it's like clone wars with seals and was just like, yes, it's a fantastic show. I understand you might accidentally watch all three seasons. Uh, because there's lots of pirates in every star wars series and we'll get to talk about pirates and can't wait. And for those going to Star Wars Celebration in Tokyo, at least Chris and I will be there and there'll be two other legal geeks there as well. So if you're going to Tokyo, say hi, we're going to try to coordinate and I can't wait. My grandfather went to Japan three times. They hosted Japanese exchange students when I was young, can't wait to go and see everything, so it should be a wonderful time, with a bunch of Star Wars fans going to go right before Amor comes out. So with that, everyone, stay safe, stay healthy and stay geeky. Take care now.