Review of Daredevil Born Again - The Island of Joy

Join us for our review of Daredevil Born Again, episode 8, "The Island of Joy." 

Chapters

• 0:02 Episode Introduction and Corrections
• 1:45 Bullseye in General Population
• 4:51 Attorney-Client Privilege Questions
• 8:01 Vanessa Takes Control
• 17:03 Dr. Glenn's HIPAA Dilemma
• 20:22 Deputy Mayor of Communications Role
• 27:53 Client Perjury Ethical Issues
• 35:29 Task Force Tactics and Power Abuse
• 1:03:31 Final Thoughts and Sign-Off

Transcript

Joshua Gilliland: 0:02

Hello everyone. My name is Joshua Gilliland, one of the founding attorneys of the Legal Geeks. I was wrong that last week was the penultimate episode.

Judge Matthew Sciarrino: 0:13

Me too.

Joshua Gilliland: 0:15

Eight's a good number. I didn't expect it to be nine, that I was wrong. So this is the penultimate episode and boy howdy is it a good one With me to discuss. It is the retired Judge Matthew Sherino, from New York, now in Florida, and Gabby Martin. So, your Honor, how are you this evening?

Judge Matthew Sciarrino: 0:41

I am well, thank you.

Joshua Gilliland: 0:42

Excellent, and Gabby, how are you?

Gabby Martin: 0:45

I'm doing good. I think, in addition to all the legal issues in this episode, which we'll cover, the filming on this episode was incredible. Like they did some, they put in some extra work with their cinematography this episode.

Judge Matthew Sciarrino: 0:59

Yeah, the cinematography, especially in the black and white ball. I mean like their their. Their outfits popped when he came out in in the. You know his, his signature white tux it it was.

Gabby Martin: 1:11

I agree, gabby, it was really good cinematography yeah, I'm still stuck on the um, the, the change in aspect ratio. Um, when you get to the end, which um? I guess we're putting up a spoiler alert at the end um, but that aspect ratio change was very cool and still thinking about it, so loved it yes, so the island of joy had a lot of joy.

Joshua Gilliland: 1:37

It was exceptionally well done and packed full of legal issues. So, out of the gate we start with a taking a prisoner. Normally when someone is in the I was a police officer, law enforcement, federal agent, what have you? And they go to prison. They're isolated from general populations to avoid getting killed, and they do that with bullseye. Because he's a former federal agent turned hitman assassin, and they put him in general population.

Judge Matthew Sciarrino: 2:13

Your honor, I think you have some notes on this that, uh, help us understand the problems with this yeah, there was a little bit of a mixed message in the episode itself when Matt was told that Agent Poindexter was moved to Gen Pop by his partner. You know, she kind of mentioned federal holding areas as opposed to I believe the Island of Joy is meaning Rikers Island, which is where they keep city prisoners, although after he would have been convicted he would have been transferred to a state facility. So he wouldn't have been on Rikers Island after he was convicted of a felony. But for the episode's sake it looks like he was on Rikers.

Judge Matthew Sciarrino: 3:04

So we'll discuss Department of Corrections and for the most part Department of Corrections does have carte blanche with regards to the transferring of prisoners to and from the various facilities, and they can transfer people to and from the various parts of the island, including from protective custody to gen pop general population, at their whim. And it seemed that this was done at the behest of the mayor, of the mayor. The mayor generally would not have the ability to force Department of Corrections to house someone one way or the other, although they could of course put in a request. So I think this was an overreach from Kingpin in order to probably result in Bullseye being killed so that he wouldn't be able to ever say anything bad about the mayor.

Joshua Gilliland: 4:12

Just problematic and I get playing fast and loose with federal jurisdiction or state jurisdiction, because there are federal and state crimes that Bullseye did commit. It also season three ended with him getting a new spine, which those don't just magically happen. Uh, so was he an assassin for the us government? Like? Well, there are a lot of unknowns, things that we don't necessarily need answers to, but it's like for those who think about it, it's like how I mean lawyers, like the procedural history to know where we are. It's like what's the procedural status and this kind of skips, all of that which makes us go. Is he in a state facility or federal? Because what's happening here?

Judge Matthew Sciarrino: 5:04

For the entertainment value. I understand that as well. You know they can't get into every little nuance like we can, but that's one of the wonderful things that it gets us to be able to talk about.

Joshua Gilliland: 5:16

Yes, gabby, your thoughts.

Gabby Martin: 5:19

Yeah, I'm curious now that you say that and I'm wondering if the judge has any thoughts on this, because obviously we find out by the end of the episode that it's not necessarily Fisk, it's Vanessa, and obviously a spouse of a mayor really has. No, it's not like a first lady, right, like a first lady would have the office of the first lady and, you know, maybe a little bit more like political sway or power. Right, there's no office necessarily of the first lady. Right, like a first lady would have the office of the first lady and maybe a little bit more like political sway or power. Right, there's no office necessarily of the first lady. I don't believe in New York City or on municipal levels. Can a private citizen then, if kind of put in the kind of same request with the Department of Corrections to move such and such an individual from one to the other?

Judge Matthew Sciarrino: 6:07

Yeah, no, a private citizen wouldn't be able to. And in a lot of cases where someone's in protective custody, they're the ones that actually asked to go to the general population, because the protective custody doesn't have a lot of the same facilities. It doesn't have, like you know, movie night and it doesn't have the recreation areas. And if you're in real protective custody where you're not seeing anyone else, you could be quite lonely. So a lot of people do request to be out of the protective custody into GenPOP.

Judge Matthew Sciarrino: 6:47

But yeah, as you said, most First Ladies of the city don't have. They do have a small office, they have a press secretary, they have a chief of staff, they have some other people in the office because the city of New York is so large, it does have a budget for same and in some mayoralties the spouse of the mayor have taken on various roles. So, like Bill de Blasio, who was the mayor before the current mayor, his wife was in charge of a mental health initiative for which about eight or $ million dollars disappeared. But you know that's a crime story for another day.

Joshua Gilliland: 7:32

Now, that's a detail. Yeah, some accounting needs to be done there, but be that as it may. First, ladies, don't get to put out a hit on an individual. That's that's not. They're not elected to anything, and they don't get to do summary executions. That's that's not. No, no, um, that's not the best uh now we do have uh bullseye wanting to talk to matt murdoch. Raises some interesting privilege questions, um, and there are notes here. So uh, gabby, is this you?

Gabby Martin: 8:15

yeah, because I, when this question kind of caught me, I was thinking about it as well and and you and you know it gets to the, I think, the heart of of a question every lawyer like, I think probably the minute you graduate law school, if not the minute you start telling family and friends that you're going to law school, you start to get this of like, well, can I ask you for legal advice? Can I ask you, can I talk to you about this and that and the other? And they believe that just because you do now have a JD or you're a licensed attorney, that you can provide legal advice to them and that whatever deepest, darkest secrets they confess to you are confidential. But that's just not the case. And so we have attorney-client privilege right that does protect the confidential communications between a lawyer and their client that and this is key here that relate to the client's seeking of legal advice or services. The protection obviously extends to any information exchanged during these privileged communications, which encompasses, as we know, not only what you and the client talk about, but things like attorney work, product and that sort of thing, things spoken about in an office between you know, attorneys, paralegals, et cetera, et cetera. And so you're required. We as attorneys are required um to not disclose certain confidential information, except with certain um exceptions, as we've kind of talked about before. Um. But cause this is, as uh New York says, is um New York court of appeals, one seeking legal advice um will be able to confide fully and freely in his attorney. That's why we have these confidentiality rules right.

Gabby Martin: 10:07

But the key thing is what makes a client right. This only applies to clients. The privilege actually exists with the client, meaning the client can revoke it at any time. The attorney can't revoke attorney-client privilege. That's something only the client can do and it really doesn't take hold until the parties have agreed on representation. So somebody coming up to you out of the blue confessing their deepest, you know, just by us, as a virtue of us being lawyers, does not make every conversation we have with anybody in the world confidential. With anybody in the world confidential. There has to be that express acknowledgement in some form of whether it's in an engagement letter, fee, contract, right. That's where that whole joke of like handing somebody a dollar kind of comes from, that you're engaging them monetarily, right, and you could have kind of other examples of this. You don't necessarily have to have that contract.

Gabby Martin: 11:09

But the client can't just kind of believe one-sided, right, that there is an attorney-client privilege, that there's confidential information, and I think here what they're talking about. He's not been contracted as a Poindexter or Bullseye's lawyer, right, he's going there just to talk with him. Right? There's been no, from what I could tell, any kind of agreement that he's his lawyer. He testified against him at sentencing, right? There's really nothing that would indicate a attorney-client relationship between the two of them. So I don't think what he's saying here is confidential. But that may be, as he says, you know, in another world. That would be defending him right, and it would be an attorney-client relationship. But I don't think we have that here.

Joshua Gilliland: 12:02

I agree we don't have it here, but there are ways it could be created and there's always the fear of a Q&A turning into an attorney-client relationship. One of the prior Daredevil episodes had Foggy say like oh, give me $5 or something like that. That doesn't work. That by itself doesn't create an attorney-client relationship. It's a bad trope. It's not the law, but someone asking you questions could turn into an attorney-client relationship and that's where things get weird, because you have to be careful as an attorney not to inadvertently create that relationship and give advice of. Well, I met this lawyer at the bar and he said this. So I went out and did it. I thought it would be okay filing a trademark application this way, like you know, in something that could turn out to be expensive and wrong. That could subject a lawyer to some liability.

Gabby Martin: 13:07

Yeah, and I think that's where you get on in that kind of principle of reliance, and that's why you know we're taught, especially when you meet a client for the first time, you express that you know what you're talking about initially, may not. You're really careful to set up those ground rules of confidentiality. And even now, you know I don't actively practice anymore, right, but you still have, we still have legal brains, right, and so we always have to be careful to say you know, this is not legal advice, please go seek, you know, counsel from from an attorney, from your attorney, from from somebody who will be your, your attorney, right? It's the same thing that doctors do, right? You see doctors on TikTok, on other platforms. They always say this is not medical advice. Right, it is not. You should consult your doctor before, and that's to prevent a problem, Because if somebody relies on information, you're telling them there could be a problem, but it doesn't seem like he's providing any sort of confidential information or relying or seeking any sort of legal advice from that.

Joshua Gilliland: 14:10

in this case, Well, I don't think Matt could take Poindexter on as a client because of the testimony and the victim sentencing. I think that could be a huge problem and barrier about. You know, I think going to the duty of loyalty and being able to zealously represent someone Now that doesn't necessarily say knock out the entire firm. I think that's a question would take some more analysis on whether or not the firm could take on Poindexter if there was a legitimate reason to do so and if Poindexter is trying to turn state's evidence or something like that could be a reason to look at those rules a little more closely. Your Honor Gabby and I just went down a rabbit hole. Any thoughts you want to add to that?

Judge Matthew Sciarrino: 15:04

It was a good rabbit hole. Any thoughts you want to add to that?

Judge Matthew Sciarrino: 15:05

It was a good rabbit hole and yeah absent, you know really a written waiver of all of the conflicts that Matt and Poindexter would have, he would not be able to represent Poindexter. But Poindexter, I think, if he makes a knowing waiver and he understands all of the things that are the potential conflicts, I think he would be able to retain Matt's law firm to represent him, especially if he was going to come clean with regards to who hired him to kill Foggy or something along those lines. But I agree with you 100% on privilege. I don't think that there was ever a attorney-client relationship established, so none of their conversations would have been privileged.

Joshua Gilliland: 15:56

Yeah, it's really hard to imagine the waiver with. I killed the managing partner's best friend.

Judge Matthew Sciarrino: 16:05

Yeah, no, it'd be a tough one, but if it was 100% explained to him and he wanted to waive it, and if Matt wanted to represent him, because no attorney can be forced to really represent someone that they don't want to represent. With some exceptions, sometimes you're drafted on a case and sometimes you're not let out of a case for particular reasons, but as a general rule, if you're a private attorney, you don't have to take any case that you don't want to take.

Joshua Gilliland: 16:39

Yeah, and I've actually seen that at a couple of CMCs where a case ahead of us with one of our matters. It was wild. The lawyer represented a corporation and he lost contact with the corporation. They weren't responding to phone calls, emails, emails, and so he's trying to withdraw, rightly. But that raises all these weird issues in california with. You can't have an unrepresented corporation and you know in a case, so he's, you know like he. He was and the judge was super sympathetic. They were trying to figure out how do we handle this, because if they've gone radio silent and you're trying to do your, you know, ethical obligations, like the judge was very sympathetic of, like OK, this can't stand, but we also have to figure out a way to not turn the world upside down and and how we handle this. So yeah, it can be a real weird thing for when a lawyer has to get out of a case, which is why you always need to be careful when you take a case.

Joshua Gilliland: 17:53

Yeah, okay yep, yep, all right things. They teach you in law school. So, uh, one of the things that that's always been discussed, whether it was law school or just a practice point assaulting someone and committing battery is not okay. And matt deciding to smash point dexter's face on the table after being goaded by the shackled man, he commits battery and there are problems with that. And, gabby, I think you explored the notes. Oh no, your Honor, why don't you take it away? You're both doing a nice pickleball match of back and forth on the issues.

Judge Matthew Sciarrino: 18:40

Yeah, this was either assault in the second degree or assault in the third degree, depending on how egregious the injury was. If it arises to the level of a serious physical injury and I think it was bad enough that it probably did it would be assault in the second degree, which would be a Class D felony, as in David. If it's assault in the third degree, which is simply a physical injury to another person, it would be the class A misdemeanor. Also would be clear that there was no self-defense or justification argument. The guy was shackled to the table, could not have attacked Matt, so he would not have any kind of self-defense type of situation.

Judge Matthew Sciarrino: 19:28

I also thought to myself, after Bullseye was able to escape, whether Matt doing this was an aid of that escape.

Judge Matthew Sciarrino: 19:40

Did he know that by knocking his tooth out, he would be able to use that tooth as a weapon? And if he did aid in the escape, he could be part of a conspiracy with regards to escape? And if he wasn't, and Bullseye just did this on his own because he was in jail for a felony, it would be escape in the first degree, which is a Class D felony. A felony, it would be escape in the first degree, which is a class D felony, and as much as he had already been convicted of murder in the first or the second, it would be additional time to his already life sentence. Which is why this is the only situation where I am kind of in favor of capital punishment. If you're a prisoner, if you're a prisoner in jail serving a life sentence, I think there needs to be a punishment that can be done to you. So if you, you know, kill a guard or fellow prisoner while serving a life sentence, to me that's the only justification for a capital offense. But that's a political decision, not a moral one.

Joshua Gilliland: 20:50

So a couple things to unpack and apparently me saying that has become enough of a factor that one of my judge friends has actually used it in court. So I need to be careful with that because I now get into developing catchphrases. But breaking down these issues. The battery, because it's the physical touching. Poindexter might have had a plan, whether it was to get a tooth broken or injured in some way so we could make an escape. I don't think there's an agreement from matt. I think matt was just angry.

Judge Matthew Sciarrino: 21:30

Uh, because very well could be yeah it's.

Joshua Gilliland: 21:32

I don't, because I'm going to the issue of helping him escape. Murdoch would have facilitated an escape that would not have resulted in the loss of life and the fact that at least two guards die in this process and one through, I'll say, probably maiming with getting a tooth in the eye. Uh, like that's, that ain't right. Like there there's a all kinds of levels of bad with how Poindexter just maims people and mutilates. And there are the quick kills and then there are the slow kills and the guy has such a high body count, you know he should be in solitary confinement and not allowed to see daylight ever again. Eating with, you know, uh, no sharp instruments, so it's going to be tacos here on out, uh, even though he could throw one. So again it's. It's a. It's a weird thing, but I don't think there was a conspiracy to commit murder.

Joshua Gilliland: 22:40

I think this is all on poindexter. Also, having gone through root canals, the idea of breaking a tooth, as the grandson of a dentist, I was screaming inside because that would hurt so bad and I don't know if there was a root attached to it so the remains of the root could still be in there. None of this is good. None of this is a just from a dental perspective, not my lane, but I I heard enough stories growing up. That sounds horrible, gabby. Okay, oh, you look again the expression for radio of like we don't need to talk about dentistry, how about just the legal?

Gabby Martin: 23:24

issues like I, not. It's so funny with this one. I I have pretty low tolerance for for blood and gore. This has resulted in a lot of um. What we're talking about I have not actually seen. Uh, because I'm looking away from the TV and just waiting till it's safe to look again. Because I just I'm not. I'm not a fan of that. I respect it immensely for what it's doing for television in the Marvel Universe, but personally not a fan, not a fan. I'll respect it, but not a fan.

Joshua Gilliland: 24:05

Tooth injuries and eye injuries and they're connected? No, that does not. Again, your expression could be a meme priceless of oh no, oh no that bad, all right. So let's talk about, uh, the beginning of the episode, or close to the beginning, where Vanessa and Fisk have their trip to Red Hook and there's a lot that happened with, again, wrong kind of couples therapy just not okay. And there's mention about, uh, the guy that they had killed. So there was a conspiracy to to kill the tracksuit mob boss. So that's now known. Uh, but your honor, are these your notes for vanessa ascending to the throne? Help us understand understand.

Judge Matthew Sciarrino: 25:02

So I loved Vanessa's line when talking about the other gang leader you know, saying he was a punk aiming for a throne, and this was a very effective session of marriage counseling because I think at the end of this particular session Vanessa and the kingpin are firmly aligned.

Judge Matthew Sciarrino: 25:22

But the most interesting part of this particular session Vanessa and the kingpin are firmly aligned, but the most interesting part of this segment is when he brings her to the apartment where Adam is being held and she gets to see that he has been holding Adam prisoner and there's basically, uh, both a key and a gun available to vanessa and vanessa tech chooses to the gun and she kills adam while he's in the cage. So this would clearly be a murder in the second degree because it was intent to cause the death of another person, because she pointed the gun and shot it at pretty close range a couple of times and Adam apparently was dead and in as much as the kingpin was the person who set up the gun being present and Adam being in a jail cell unable to to defend himself, he would be guilty probably of conspiracy in the second degree, a class B felony, which we've discussed previously, which is section 105.15 of our penal law really well done.

Joshua Gilliland: 26:41

Scene uh showing the the the evilness of vanessa and kingpin, and the uh, you know, the re-establishment of their strong union so while I would think the term dungeon would would apply, the fact you used the word apartment gives me concern about what apartments are like in new york uh, it was an apartment with a side dungeon okay, it's just, some have escape rooms yeah, there's.

Gabby Martin: 27:10

There's a lot of strange buildings here in the new england tri-state area josh oh you know, just odd, odd, odd, odd old buildings again there could be a road trip.

Joshua Gilliland: 27:24

I mean, we, we got missions, but it's just, it's different.

Judge Matthew Sciarrino: 27:28

Yeah, I'll digress on that issue. Where I lived in Massachusetts there was a lot of houses from the revolutionary war period and a friend of mine had a house that was built in the 1750s 1760s and they were doing some renovation of their basement and their basement was all stones and when they got to a particular wall it turned out to be a fake wall and behind it was a door and there was a tunnel and the tunnel ran all the way a good probably 800, 900 feet to another house that was built around the same time and in that tunnel was a cache of muskets, bullets, all from revolutionary times. It was clearly a minute man hiding, you know, hiding place for, for revolutionary soldiers. So, yeah, you, you do have some of those those crazy things up in in in new England.

Joshua Gilliland: 28:31

Yeah, we, our gold rush experience left its mark on the state, but it's different. Or the building of the LA freeways, different with with our urban sprawl. So, again, just a very different regional history and nothing explains it more like water rights, because that's a big thing out here. But what else is a big thing is the notes about Dr Glenn, who had a rough day like she. She's understandably upset about her experience and she starts making comments about, uh, muse and daredevil being connected and they're just boys playing in masks, and you know. This is where matt learns that fiske is one of his girlfriend's patients and there's an invitation to the ball because apparently she's being watched and that's uh kind of upsetting. So, uh, who? Uh, okay, your honor, why don't you? Oh, gabby, gabby, take it away, gabby yeah, no, it's.

Gabby Martin: 29:39

it's funny because she never actually confirms that Fisk is a patient and I have this later on in the notes because you know, obviously Matt continues to push her to really confirm that Fisk is a patient and she keeps saying I can neither confirm nor deny or something along those lines. And what she's invoking is obviously HIPAA. Right, is the HIPAA privacy rule, which and other kind of code of ethics and confidentiality which we talked about, but particularly HIPAA, which limits the circumstances under which an individual's protected health information may be used or disclosed by covered entities. And so generally, a covered entity may not use or disclose protected health information, except in certain exceptions. One of the big ones is called TPO, which is treatment, payment or operations, obviously as the individual allows. That's why you have kind of privacy authorization forms when you go to the doctors.

Gabby Martin: 30:46

And I thought this was interesting because there's some other, like I would say, random exceptions. Right, it's not random, it's kind of state and national policies that have been implemented into this rule, because, again, hipaa is a federal law and there's one exception under these kind of national purposes right, that is serious threat to health or safety. Covered entities may disclose protected health information that they believe is necessary to prevent or lessen a serious and imminent threat to a person or the public, when such disclosure is made to someone they believe can prevent or lessen the threat, including the target of the threat. So this is interesting because we talked about one of the last times that in certain situations, psychologists and mental health professionals are mandated reporters and had to disclose certain information specifically to government authorities. Right, that is not the case. They have to just report it to someone that they believe can prevent or lessen the threat, which in the marvel universe could be somebody like a vigilante, right? So obviously at this point heather does not know that matt is daredevil, but if she did know and believed that there was a threat posed by Kingpin, especially if she feels that her life is under threat or something like that, she may be able to fall into that exception. And then what I thought was also interesting is she's invited to this ball and she does not have any objections to going.

Gabby Martin: 32:23

I obviously it's a time to dress up and it's fun, but there are, under the New York, professional practice guidelines, which is not necessarily a form of governing law, for psychologists is like the American Psychological Association.

Gabby Martin: 32:41

Psychologists are really discouraged from socializing right in non-clinical settings with their patients, right, there are certain exceptions, you know, if you, if the psychologist lives in like a rural area, right and they have to go to the grocery store and the grocer is also their client, right, that's you can't kind of get out of that, right. But here I think a kind of ethics board may say yeah, you may not go to the fundraising gala of one of your clients, where you know your client is going to be right and she really has no other reason for going, except obviously Fisk is trying to, you know, kind of do a kind of gamesmanship with Matt and let Matt know that he's watching her. But there's really no clinical purpose for her to go to this event or any other kind of related reason for going to this event. And it really might impact and that's really the key test if it impacts her impartiality and ability to provide clinical services to her patient.

Joshua Gilliland: 33:52

Yeah, because it's fun is not a good reason. It's just no, just no. It's one thing. I'm sure we could come up with hypotheticals where it would be OK, but this does seem to be skating into bad territory. Your Honor, any thoughts?

Judge Matthew Sciarrino: 34:14

Yeah, no, I agree that. You know it probably would have been the best course of action to not go to such a thing where both of your clients are going to be. I found the conversation that was leading up to the receiving of the invitation about Dr Glenn's opinions of vigilantes to be quite important, because I'm sure that's what's going to lead to the downfall of this relationship. But other than that, nothing to add.

Joshua Gilliland: 34:45

But she had a bad day she had a beyond a bad day, yeah. And it certainly was.

Judge Matthew Sciarrino: 34:53

You know some masked people that were causing that bad day.

Joshua Gilliland: 34:56

Yeah, so she might have realized she might change her view upon some reflection, getting away from the incident, uh, but again, this is the world that half the population died. Then a bunch of heroes got half the population resurrected. So, like, does she really feel that way? Uh, it seems to be ignoring what's been going on for 15 years.

Judge Matthew Sciarrino: 35:23

in this world of you have superheroes and maybe but what we also see from all the various movies, that there is a large segment of the population that is against the superheroes and maybe that, you know, lessened after they saved all those people that disappeared. But position and probably won't change that position, even if some of them were later saved.

Joshua Gilliland: 36:10

Yeah, but it's still a glass house situation, Are you sure? But if you've just been, someone tried to murder you, I understand being um upset, especially if it's the next day or 36 hours later. But this then brings in uh, the question is daredevil born again a sequel to spin city. So because when you have the deputy mayor of communications, that was Michael J Fox and spin city, so I just it just made me wonder. It's like are they going there? Like is this, is this the thing? And but we have, we have some thoughts about one, Does the mayor appoint deputy mayors? And two, how does that actually work? And Gabby, as our resident expert for local government, walk us through.

Gabby Martin: 37:14

Yes, first of all, I felt very vindicated to have an appointed comms person actually mentioned, because it's been very vague what all of their staff positions are in the office, and that sometimes happens when you're talking about you know, especially appointed positions. You serve multiple functions and can have, you know, you don't introduce yourself by your title every time, but to get here comms mentioned was really exciting. And so Daniel is obviously appointed Deputy Mayor of Communications or for Communications, which is actually from what I was looking at. I did a bit of a deep dive on New York City government kind of structure which, as the judge mentioned earlier, new York City functions quite differently from you know kind of more what we would. You know maybe smaller municipalities, right, that most folks might be more familiar with. Obviously, a lot of towns, a lot of municipalities have city councils, have a mayor, maybe a town manager, right. But because New York City is so large, the city council functions almost like its own form of like a legislative body, right, because there are city councilors from all of the boroughs and all of the districts within New York City and so that is kind of the city council. It's not just a couple of folks or you know a smaller body, it's quite a large body, and then the mayor acts as a kind of veto power, you know kind of executive branch, in relation to the city council. And so what I could find on this was all of these positions were actually laid out in Executive Order 45, which was done under the current mayoral administration back last year and last September.

Gabby Martin: 39:07

But under New York City Charter, chapter 1, section 7, the mayor does have the authority to appoint deputy mayors, and it doesn't specify which positions he has to appoint or not appoint, so he could theoretically create kind of endless deputy mayors. And so the question becomes though is the deputy mayor for communications the right function of what he wants Daniel to do, which is to be his kind of voice with the city council? And while the deputy mayor does kind of advise with a communication strategy overseas you know things like the office of the press secretary, office of director of communications manages liaison with communication positions and does have the ability to perform any function, power or duty of the mayor in negotiating, executing and delivering any agreements necessary to effectuate matters referred to in his job description. He can't actually represent the mayor, unlike some of the other deputy mayor positions, on any boards, committees or commissions of which the mayor is a member.

Gabby Martin: 40:21

And the thing is and maybe the judge can speak to this a little bit more but typically in state government you have a comms section of whatever level of government it is, and then you have a legislative or, in this case, the Office of Intergovernmental Affairs, of which there is a director of intergovernmental and external affairs who handles that kind of liaison role. Right, and they work closely together. But that person is more experienced in policy development, in those sorts of matters developing policies, advancing policies, negotiating policies and other legislative things and so that's really, I think, what Fisk wants him to do. It's not necessarily a comms strategy thing. So I think he appointed him to the wrong position. Gives him a title with more weight, but I don't think he's going to actually be able to achieve Fisk's aims with the city council, unless he does one heck of a social media campaign. Then he's got it all set for this Red Hook project.

Joshua Gilliland: 41:31

Your Honor any thoughts on local government?

Judge Matthew Sciarrino: 41:37

In New York City. The geography kind of plays a bit of a role in this. When you walk into the City Hall building, if you walk to the left you're in the mayoral wing and his deputies have offices and the mayor has their office. And if you walk to the right of the City Hall you're in the council chamber and the council offices, the council chamber and the council offices and in the middle and the rotunda area you have the speaker's office and the minority leader and the majority leader, and so there's a lot of fluidity with the deputy mayors and they change the names of them every so often, depending on the mayor and what he wants to do. That's why it's done by executive order. There's the first deputy mayor. That's kind of statutory, and that one is the one that takes the if the mayor is away for an extended period. The first deputy mayor has a lot of the mayor's powers, but the deputy mayors can be kind of used a little bit differently than their roles actually suggest. So it would not have.

Judge Matthew Sciarrino: 42:48

It did not surprise me that he appointed him the mayor, the deputy mayor of communications.

Judge Matthew Sciarrino: 42:54

That would kind of put him in charge of a lot of things that he wouldn't necessarily be dealing with, if he's going to just be dealing with the city council.

Judge Matthew Sciarrino: 43:03

That he wouldn't necessarily be dealing with if he's going to just be dealing with the city council.

Judge Matthew Sciarrino: 43:05

But you know from previous experience some of the deputy mayors for communications, their jobs not only was dealing with the press but it was dealing with some of those intergovernmental issues, as they did joint press releases and other things, because there's a lot of behind the scenes in that city hall work that's being done before they bring it out as to what they're going to be doing. So it didn't surprise me all that much. I think that it's a bit of a jump for him to jump to a deputy mayorship from being a lackey during the campaign and then coming up and now being in charge of press secretaries and speech writing, and I don't see that happening. So I think maybe there was just, you know, he wanted to give him a title that was going to rub some people the wrong way and help him be in a position where others would take him seriously right away. But you know, I think it would be a kind of a fluid position as to what he would actually be doing.

Joshua Gilliland: 44:19

Sounds more than a press secretary, but yeah, it's just different. And I don't know if any of our big three cities in the Bay Area have anything comparable Because, again, san Francisco, big, but confined, it can't grow. San Jose is larger than Chicago, so that's probably the biggest, oakland's substantial as well, and then we have all the other cities in between that vary in size, and so Piedmont is tiny, it's like our Luxembourg, and or Alameda is also small, but you know you get Sunnyvale, mountain View, you know these capital Silicon Valley towns that are huge, so, like, a lot of people live there. So again it's. But I've, that's a curious question, so one I've not seen.

Joshua Gilliland: 45:24

Moving on, uh, we do have some law, uh, office management, ethical issues of when you have a client come in for an interview and it's, uh, I've never seen anyone be that disrespectful with you know, feet on the desk and like on the phone playing while talking.

Joshua Gilliland: 45:43

I would not want to deal with that personally and Matt kicks into cross-examination mode of the client, which I think is okay. Like you know, you need to be respectful because if you can't handle pressure from your own lawyer asking you hard questions, wait till you meet opposing counsel in a deposition and you're going to be tap dancing for your life, uh, because they will ask you mean hard things, uh, and you need to be ready for that. I mean, they'll still be respectful, uh, but you they're they're not everyone's um uh, the polite professional problem solver. There are those who swing up acts uh and depo uh and can hurt your feelings, uh. So ethical issues with this, because matt calls his client a liar, you know embezzled from teachers, defrauded them, did bad things to teachers, and they're stuck representing this bozo who is entitled to a robust defense. Your Honor, did you take it away?

Judge Matthew Sciarrino: 46:53

So yeah, the potential client or the new client basically says that he would have no problem taking the stand and lying. And this deals with the issue of can a lawyer knowingly put someone on the stand who is going to lie? And the answer to that is, ethically no, you can't do that. A lawyer shall not knowingly make a false statement of fact or law to a tribunal or fail to correct a false statement or material fact or law previously made to the tribunal by the lawyer. And this is rule 3.3 of our ethics code in New York. It goes on to say that if a lawyer, the lawyer's client or witness called by the lawyer has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal, which is the court. A lawyer may refuse to offer evidence other than the testimony of a defendant in a criminal matter that the lawyer reasonably believes is false. And this does set up a difference between a civil case and a criminal case. In a civil case you would not be permitted to have the lying witness take the stand at all. The lawyer would not be able to put them on the stand and offer that false testimony, but there is the interplay of a defendant's right to testify at a criminal trial. So there is a situation where a defendant who a lawyer knows is going to lie would still have to. Do has developed over the years of lots of case law. One of the better laid out cases is the case of People v DePaulo D-E-P-A-L-L-O, which wasa second department case in New York that arose out of a Staten Island case and the lawyer is kept out of the decision to protect his identity and happened to know this case and the lawyer whose identity was being protected and that was a very, very, very ethical attorney and he basically went to the court to say listen, my client wants to testify, he's going to not tell the truth, and the appeal was over whether or not this lawyer was ineffective in his counsel, and the appellate division said that he was effective in his counsel. And it boils down to this If a lawyer is handling a criminal case in New York and they understand that they're dealing with a client who intends to perjure themselves, the lawyer has to tell the court, without telling any particular details as to what is going to be lied. What is a lie, what is the true, what is the true.

Judge Matthew Sciarrino: 50:06

You then ask permission to present the defendant's false testimony using the narrative method and I'll get into that in a second and then, when it comes time for your closing argument, you're not allowed to refer to your client's testimony and the story that he gave. You just ignore it like it never happened. And what the narrative method is is most of us who are used to seeing television examinations on TV, and really those of us that are in a courtroom, most of the way that examination is done is a question answer, question answer, question answer. And that's the way testimony is done in the courts of this country. With a narrative method, you basically you put your client on the stand and you say what would you like to tell the jury and he goes through his entire story and you don't participate it in any way.

Judge Matthew Sciarrino: 50:57

And then, of course, the prosecutor could cross-examine and have as much fun with that cross-examination that they can have, but you don't participate in that perjurious testimony. And that's what. If you know, I don't see Matt and his partner probably taking this case, because if they know that their client is not someone that's truthful, it's probably not a good client to take. Granted, the firm is in need of some money. So you know his partner might have a different idea, but I don't see them taking the case. But if they were to take the case, if it if it's a civil embezzlement case, they wouldn't be allowed to partake in in having this client take the stand at all if they know he's being perjurious. If it's a criminal case that he's being charged with embezzlement and he still wanted to take the stand, it would have to be done through this narrative method.

Joshua Gilliland: 51:52

That's what I remember from law school being civil practice. I haven't had to encounter this for obvious reasons, but that's what I remember as well in discussing California's practice of the narrative approach and not to participate in committing fraud upon the tribunal. But also you have to let your client testify in a criminal matter. So yeah, it's. It's. That's nasty Gabby. Any thoughts?

Gabby Martin: 52:36

Yeah, and I think, as the judge said, you know, it gets to the heart of the you know kind of confidentiality, which you know is, I think, a bit weird for non lawyers to understand, which is you can't just walk up to the court and say these are all the things my client lied about, like this is all the things that are wrong, which is what, like, your instinct, moral instinct, right, is to just like say no, he's a liar, this is what he's lying about, right, um, but you have to kind of, as the judge said, you know, kind of share only what is necessary, right, and not the kind of narrative story part of it, but just say you know he's going to perjure himself and whatever.

Gabby Martin: 53:22

So I think that's always an interesting thing that kind of gets overlooked when we talk about. You know, the rules of disclosure to the court, right, it's not a all or nothing, right, it leans on usually nothing. Or you know what I always remember for my ethics course in law school was, you know you usually lean towards if there's not a required disclosure to the court, it is recusing yourself, right, so that you cannot be a part of it anymore, and so it's kind of very different from kind of our normal moral rules, of what we would think to disclose the defendant anymore, because then you're putting another lawyer in the exact same position or, even worse, that lawyer doesn't know that the defendant's going to perjure themselves and then they knowingly participate in that or they unknowingly participate in that perjury.

Judge Matthew Sciarrino: 54:34

So in the case the court actually said that. You know, recusal is not the answer to this kind of situation. He kind of has to stick with his client and you know the narrative method is the best way to then go through that whole thing.

Joshua Gilliland: 54:52

Well then, and the other half of this, this is you have the da that can give the cross-examination of a lifetime. And so you, if you want the perry mason moments for impeachment, there you go and it can open the door in all kinds of fun and exciting ways uh, for whether it's character evidence and just being able to rip the guy a new one for, oh, oh, you claim you have a reputation for being honest. Well, you know, and start rolling out the forge checks or whatever the issue is. So that could be, again, good TV moments. But the, the perspective client, did straighten up, like when Matt switched to you know cross-examine mode, like the feet came off the table and he, he presented Okay, but the you can't put a perjurer up.

Joshua Gilliland: 55:50

Just, it's one thing to be wrong it, you know, it's like I made a mistake. That's one situation and better to have. I was confused with what you were talking about, or, but it's another thing to go. Yeah, he's just going to get up there and lie. Um, yeah, it's being wrong, is mistaken, and I I think the best way for lay people to understand that kind of cross examination is well, we'll save that for another time. But there there are examples from pop culture that can be fun for another example. So, gabby, are you about to say something?

Gabby Martin: 56:37

No, I was going to say I think, you know, thinking of it afterwards of the episode is is we continually see Matt getting continually frustrated with the kind of defense system, Right, and you know, he even says, you know they, they babysit chaos, right, they're not actually doing anything, which is, you know, I think the interesting line where you know he had initially kind of completely given up his vigilantism to handle things through the courts, right, to see how the courts handle things, and he's not really getting anywhere, you know, especially as demonstrated by the case with the theft of the caramel corn, right.

Gabby Martin: 57:19

And I think all of this, and even the kind of ending which I know we'll talk about in a second, is setting him up for that kind of plot line that we've talked about of him getting kind of switching sides right In terms of his lawyer capacity, sides right in terms of his lawyer, uh, capacity. So I just think that's all kind of where that may be leading up to is for him to go on on the opposite side, um, and go into the kind of prosecutor side yeah, and it's the setup for the end, because I mean like, let's get there.

Joshua Gilliland: 57:51

If you take a bullet for the mayor, there's going to be some political capital there for the mayor. There's going to be some political capital there. Also, I think the kingpin will dig it, because you took a bullet for me, like he. He, while he has decapitated people, when he's done all kinds of horrible things, there's a strong loyalty factor with him, and taking a bullet's probably one of those. Okay, oh, my wife had your best friend killed. I could see him being upset and I can see that playing into Matt getting appointed DA or winning an election to be DA. So there's a lot there, but there's other things. Either of you want to jump in on that?

Judge Matthew Sciarrino: 58:52

Yeah, I agree that it's clear that he was going to give the system its chance to do the right thing and everywhere out with their faces drawn, because they know that they've been beat plan, you know, and his task force is using any and all means necessary in order to make sure that people follow what the mayor wants with regards to his Red Hook rebuilding project and and um, so you know it really, I think, because matt is hearing all of these conversations what is, what is his super hearing? And, uh, he, he could see in his face you know that.

Gabby Martin: 1:00:17

You know it's another with. That is what I found interesting of those closed-door meetings and I know we have this with the black and white ball notes, but you know you clearly see swordsmen come in. And it was a contrast and to what the judge is saying. It's a contrast to what you know had been discussed in the mayor's office, right, that the ACLU, which is cool, that the ACLU exists in the Marvel Universe canon, like I hope I have not checked out their social, but I hope they capitalize on that that they exist canonically within the Marvel Universe. So kudos to. I know a lot of great people over at the ACLU.

Joshua Gilliland: 1:01:02

So kudos to I know a lot of great people over at the ACLU, kudos to them that they are, you know, doing the good work, even in the Marvel Cinematic Universe.

Gabby Martin: 1:01:05

The fictional good work, yes, the fictional. You know I don't know how many people are vigilantes in New York City, but you know vigilantism is down by 30%, which that could be two people, it could be four people, I think they mentioned like 15 lawsuits. So clearly that's you know, at least 15 people that have had their rights violated, or that could be people that were like roughed up by the police right, Suspected of being vigilantes. But what you see with swordsmen is that clearly this task force is not equitably enforcing their mission, right, Because if they were, it is clearly known, at least by Fisk, who Jack Duquesne is right, and so they could have picked him up, but he's using that as leverage for political kind of capital for this Red Hook project. So I really do find that kind of another fascinating tidbit there.

Joshua Gilliland: 1:02:11

So Jack, getting the shakedown to match public funds or put in private funds and then match public? Um, anyway, he's going to be contributing to a private or to a public project in order to keep his. Whatever vigilanteism he's doing has has a secret, but it's like it's good to see kate rubbed off on him. That, uh, that the almost stepdaughter uh doing her hawkeye life. Um, you know he did wear a sword to the christmas party. So after being you know released, uh, on a you know charges of killing a man with a sword. So good for him, good for him, uh. But the again shakedown. We also see the task force start getting into full-on gestapo kgb type tactics and ignoring the police, commissioner. Like they burn a guy's hand, member of the press, and well, sure, it might be a no phones event because they don't want pictures, okay, and that doesn't give you the license to start torturing people and just to make a point and then to tell the guy in charge go pay on sand, uh, so there's issues there.

Gabby Martin: 1:03:36

Which, to answer his metaphorical question, both of those were assault. He did not need to put the guy's hand in oil for it to be assault. It was assault from the jump. So the police commissioner was right it was assault and battery. The officer Powell was not correct. It had been assault and battery, um and undue force yeah, go ahead, follow the complaint.

Joshua Gilliland: 1:04:00

Still, I'm like knock the butthead down. A point also you just assaulted a member of the press. Don't pick fights with people who buy ink by the barrel, and especially now there's evidence of the guy's maimed hand. Okay, go for it, fight the fight. So yeah, just very evil. Either of you want to comment on Bebe? We actually learned that she's not a puppet and she has way more tenacity in line with her uncle.

Judge Matthew Sciarrino: 1:04:35

Yeah, and it's going to be interesting to see what her and the commissioner, working together, are able to accomplish.

Gabby Martin: 1:04:42

Yeah, and I think it is interesting though again, this was an episode that we did not see her BB report. So she has I know she says that she has she publishes, obviously under a different name, somewhere else. We still don't know where that is. How is you know what form that is? Um, but clearly her bb report has been silenced because these are the two episodes that that don't have that um. So obviously that could be just a time issue, but I think you know, considering how it was squeezed in in the previous episodes, I think that was purposely um done to show that she had been at least that part of her um journalistic voice had been had been silenced yeah, but she's playing the long game.

Joshua Gilliland: 1:05:26

She goes to the party with the newly appointed deputy mayor and I mean she's playing him. So I I don't. Uh, she has a good ground game and though I like the fact she knows that the kingpin was the lead suspect in her uncle's death, so, uh, good for her. I I remember the swordsman being different in the comics. I want to say it was Hawkeye's first pseudonym or you know costume that he wore. I might be completely wrong on my old Avengers history so I do need to look that up, but I remember the swordsman being different, so they might just be recycling the name. But again, it's been a couple decades since I've read those books. And raises the question how many vigilantes are running around. So anything else for the good of the order tonight by the sheer number of Marvel comics that exist.

Joshua Gilliland: 1:06:35

There's a lot of vigilantes and different levels of yes, yes, of what they do. And sure, a lot of stories were based in new york, because that's where the writers were like it's what they knew, um, before people started branching out. For let's do a story in chicago or san francisco or la. Now I remember it's like the champions were based in la, um, so going way back, so again they, and then were the west coast avengers. Uh, so which hawkeye was the leader? I think for most of that. So, again, different, different runs, different eras, where they do branch out.

Joshua Gilliland: 1:07:17

So not everything is taking place in Manhattan. So, but with that, thank you all for tuning in. We have Easter coming up, also a Star Wars celebration for those who are going to Tokyo, so the last episode will come out while some of us are in Tokyo, and then there's Easter. So we won't record on Easter Again, happy to have everybody over sometime, but not for that. And so we'll record after the holiday and after our trip. But everybody, wherever you are, stay safe, stay healthy and stay geeky, take care now.