April 20, 2025 • 67 mins
Join us for our review of Daredevil Born Again, episode 8, "The Island of Joy."
No part of this recording should be considered legal advice.
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Episode Transcript
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Joshua Gilliland (00:02):
Hello everyone .
My name is Joshua Gilliland,one of the founding attorneys of
the Legal Geeks.
I was wrong that last week wasthe penultimate episode.
Judge Matthew Sciarrino (00:13):
Me too.
Joshua Gilliland (00:15):
Eight's a good number.
I didn't expect it to be nine,that I was wrong.
So this is the penultimateepisode and boy howdy is it a
good one With me to discuss.
It is the retired Judge MatthewSherino, from New York, now in
Florida, and Gabby Martin.
(00:36):
So, your Honor, how are youthis evening?
Judge Matthew Sciarrino (00:41):
I am well, thank you.
Joshua Gilliland (00:42):
Excellent, and Gabby, how are you?
Gabby Martin (00:45):
I'm doing good.
I think, in addition to all thelegal issues in this episode,
which we'll cover, the filmingon this episode was incredible.
Like they did some, they put insome extra work with their
cinematography this episode.
Judge Matthew Sciarrino (00:59):
Yeah, the cinematography, especially
in the black and white ball.
I mean like their their.
Their outfits popped when hecame out in in the.
You know his, his signaturewhite tux it it was.
Gabby Martin (01:11):
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 aspoiler alert at the end um, but
that aspect ratio change wasvery cool and still thinking
about it, so loved it yes, sothe island of joy had a lot of
(01:36):
joy.
Joshua Gilliland (01:37):
It was exceptionally well done and
packed full of legal issues.
So, out of the gate we startwith a taking a prisoner.
Normally when someone is in theI was a police officer, law
enforcement, federal agent, whathave you?
And they go to prison.
They're isolated from generalpopulations to avoid getting
(01:59):
killed, and they do that withbullseye.
Because he's a former federalagent turned hitman assassin,
and they put him in generalpopulation.
Judge Matthew Sciarrino (02:13):
Your honor, I think you have some
notes on this that, uh, help usunderstand the problems with
this yeah, there was a littlebit of a mixed message in the
episode itself when Matt wastold that Agent Poindexter was
moved to Gen Pop by his partner.
You know, she kind of mentionedfederal holding areas as
(02:38):
opposed to I believe the Islandof Joy is meaning Rikers Island,
which is where they keep cityprisoners, although after he
would have been convicted hewould have been transferred to a
state facility.
So he wouldn't have been onRikers Island after he was
(02:58):
convicted of a felony.
But for the episode's sake itlooks like he was on Rikers.
So we'll discuss Department ofCorrections and for the most
part Department of Correctionsdoes have carte blanche with
regards to the transferring ofprisoners to and from the
various facilities, and they cantransfer people to and from the
(03:23):
various parts of the island,including from protective
custody to gen pop generalpopulation, at their whim.
And it seemed that this wasdone at the behest of the mayor,
of the mayor.
(03:49):
The mayor generally would nothave the ability to force
Department of Corrections tohouse someone one way or the
other, although they could ofcourse put in a request.
So I think this was anoverreach from Kingpin in order
to probably result in Bullseyebeing killed so that he wouldn't
be able to ever say anythingbad about the mayor.
Joshua Gilliland (04:12):
Just problematic and I get playing
fast and loose with federaljurisdiction or state
jurisdiction, because there arefederal and state crimes that
Bullseye did commit.
It also season three ended withhim getting a new spine, which
those don't just magicallyhappen.
(04:33):
Uh, so was he an assassin forthe us government?
Like?
Well, there are a lot ofunknowns, things that we don't
necessarily need answers to, butit's like for those who think
about it, it's like how I meanlawyers, like the procedural
history to know where we are.
It's like what's the proceduralstatus and this kind of skips,
(04:57):
all of that which makes us go.
Is he in a state facility orfederal?
Because what's happening here?
Judge Matthew Sciarrino (05:04):
For the entertainment value.
I understand that as well.
You know they can't get intoevery little nuance like we can,
but that's one of the wonderfulthings that it gets us to be
able to talk about.
Joshua Gilliland (05:16):
Yes, gabby, your thoughts.
Gabby Martin (05:19):
Yeah, I'm curious now that you say that and I'm
wondering if the judge has anythoughts on this, because
obviously we find out by the endof 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
(05:42):
have the office of the firstlady and, you know, maybe a
little bit more like politicalsway or power.
Right, there's no officenecessarily of the first lady.
Right, like a first lady wouldhave the office of the first
lady and maybe a little bit morelike political sway or power.
Right, there's no officenecessarily of the first lady.
I don't believe in New YorkCity or on municipal levels.
Can a private citizen then, ifkind of put in the kind of same
request with the Department ofCorrections to move such and
(06:03):
such an individual from one tothe other?
Judge Matthew Sciarrino (06:07):
Yeah, no, a private citizen wouldn't
be able to.
And in a lot of cases wheresomeone's in protective custody,
they're the ones that actuallyasked to go to the general
population, because theprotective custody doesn't have
a lot of the same facilities.
It doesn't have, like you know,movie night and it doesn't have
(06:29):
the recreation areas.
And if you're in realprotective custody where you're
not seeing anyone else, youcould be quite lonely.
So a lot of people do requestto be out of the protective
custody into GenPOP.
But yeah, as you said, mostFirst Ladies of the city don't
(06:51):
have.
They do have a small office,they have a press secretary,
they have a chief of staff, theyhave some other people in the
office because the city of NewYork is so large, it does have a
budget for same and in somemayoralties the spouse of the
mayor have taken on variousroles.
(07:13):
So, like Bill de Blasio, whowas the mayor before the current
mayor, his wife was in chargeof a mental health initiative
for which about eight or $million dollars disappeared.
But you know that's a crimestory for another day.
Joshua Gilliland (07:32):
Now, that's a detail.
Yeah, some accounting needs tobe done there, but be that as it
may.
First, ladies, don't get to putout 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 bestuh now we do have uh bullseye
(08:01):
wanting to talk to matt murdoch.
Raises some interestingprivilege questions, um, and
there are notes here.
So uh, gabby, is this you?
Gabby Martin (08:15):
yeah, because I, when this question kind of
caught me, I was thinking aboutit 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 probablythe minute you graduate law
school, if not the minute youstart telling family and friends
that you're going to law school, you start to get this of like,
(08:38):
well, can I ask you for legaladvice?
Can I ask you, can I talk toyou about this and that and the
other?
And they believe that justbecause you do now have a JD or
you're a licensed attorney, thatyou can provide legal advice to
them and that whatever deepest,darkest secrets they confess to
(08:58):
you are confidential.
But that's just not the case.
And so we have attorney-clientprivilege right that does
protect the confidentialcommunications between a lawyer
and their client that and thisis key here that relate to the
client's seeking of legal adviceor services.
(09:18):
The protection obviouslyextends to any information
exchanged during theseprivileged communications, which
encompasses, as we know, notonly what you and the client
talk about, but things likeattorney work, product and that
sort of thing, things spokenabout in an office between you
know, attorneys, paralegals, etcetera, et cetera.
(09:40):
And so you're required.
We as attorneys are required umto not disclose certain
confidential information, exceptwith certain um exceptions, as
we've kind of talked aboutbefore.
Um.
But cause this is, as uh NewYork says, is um New York court
of appeals, one seeking legaladvice um will be able to
(10:01):
confide fully and freely in hisattorney.
That's why we have theseconfidentiality rules right.
But the key thing is what makesa client right.
This only applies to clients.
The privilege actually existswith the client, meaning the
client can revoke it at any time.
The attorney can't revokeattorney-client privilege.
(10:22):
That's something only theclient can do and it really
doesn't take hold until theparties have agreed on
representation.
So somebody coming up to youout of the blue confessing their
deepest, you know, just by us,as a virtue of us being lawyers,
does not make everyconversation we have with
anybody in the worldconfidential.
With anybody in the worldconfidential.
(10:48):
There has to be that expressacknowledgement in some form of
whether it's in an engagementletter, fee, contract, right.
That's where that whole joke oflike handing somebody a dollar
kind of comes from, that you'reengaging them monetarily, right,
and you could have kind ofother examples of this.
You don't necessarily have tohave that contract.
(11:09):
But the client can't just kindof believe one-sided, right,
that there is an attorney-clientprivilege, that there's
confidential information, and Ithink here what they're talking
about.
He's not been contracted as aPoindexter or Bullseye's lawyer,
right, he's going there just totalk with him.
(11:30):
Right?
There's been no, from what Icould tell, any kind of
agreement that he's his lawyer.
He testified against him atsentencing, right?
There's really nothing thatwould indicate a attorney-client
relationship between the two ofthem.
So I don't think what he'ssaying here is confidential.
(11:50):
But that may be, as he says,you know, in another world.
That would be defending himright, and it would be an
attorney-client relationship.
But I don't think we have thathere.
Joshua Gilliland (12:02):
I agree we don't have it here, but there
are ways it could be created andthere's always the fear of a
Q&A turning into anattorney-client relationship.
One of the prior Daredevilepisodes had Foggy say like oh,
give me $5 or something likethat.
That doesn't work.
(12:22):
That by itself doesn't createan attorney-client relationship.
It's a bad trope.
It's not the law, but someoneasking you questions could turn
into an attorney-clientrelationship and that's where
things get weird, because youhave to be careful as an
attorney not to inadvertentlycreate that relationship and
(12:46):
give advice of.
Well, I met this lawyer at thebar and he said this.
So I went out and did it.
I thought it would be okayfiling a trademark application
this way, like you know, insomething that could turn out to
be expensive and wrong.
That could subject a lawyer tosome 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 meeta client for the first time,
you express that you know whatyou're talking about initially,
may not.
You're really careful to set upthose ground rules of
confidentiality.
And even now, you know I don'tactively practice anymore, right
, but you still have, we stillhave legal brains, right, and so
(13:30):
we always have to be careful tosay you know, this is not legal
advice, please go seek, youknow, counsel from from an
attorney, from your attorney,from from somebody who will be
your, your attorney, right?
It's the same thing thatdoctors do, right?
You see doctors on TikTok, onother platforms.
They always say this is notmedical advice.
(13:52):
Right, it is not.
You should consult your doctorbefore, and that's to prevent a
problem, Because if somebodyrelies on information, you're
telling them there could be aproblem, but it doesn't seem
like he's providing any sort ofconfidential information or
relying or seeking any sort oflegal advice from that.
Joshua Gilliland (14:10):
in this case, Well, I don't think Matt could
take Poindexter on as a clientbecause of the testimony and the
victim sentencing.
I think that could be a hugeproblem and barrier about.
You know, I think going to theduty of loyalty and being able
(14:30):
to zealously represent someoneNow that doesn't necessarily say
knock out the entire firm.
I think that's a question wouldtake some more analysis on
whether or not the firm couldtake on Poindexter if there was
a legitimate reason to do so andif Poindexter is trying to turn
state's evidence or somethinglike that could be a reason to
(14:55):
look at those rules a littlemore closely.
Your Honor Gabby and I justwent down a rabbit hole.
Any thoughts you want to add tothat?
Judge Matthew Sciarrino (15:04):
It was a good rabbit hole.
Any thoughts you want to add tothat?
It was a good rabbit hole andyeah absent, you know really a
written waiver of all of theconflicts that Matt and
Poindexter would have, he wouldnot be able to represent
Poindexter.
But Poindexter, I think, if hemakes a knowing waiver and he
(15:26):
understands all of the thingsthat are the potential conflicts
, I think he would be able toretain Matt's law firm to
represent him, especially if hewas going to come clean with
regards to who hired him to killFoggy or something along those
lines.
But I agree with you 100% onprivilege.
(15:49):
I don't think that there wasever a attorney-client
relationship established, sonone 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'sbest friend.
Judge Matthew Sciarrino (16:05):
Yeah, no, it'd be a tough one, but if
it was 100% explained to him andhe wanted to waive it, and if
Matt wanted to represent him,because no attorney can be
forced to really representsomeone that they don't want to
represent.
With some exceptions, sometimesyou're drafted on a case and
(16:28):
sometimes you're not let out ofa case for particular reasons,
but as a general rule, if you'rea private attorney, you don't
have to take any case that youdon'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 uswith one of our matters.
It was wild.
The lawyer represented acorporation and he lost contact
with the corporation.
They weren't responding tophone calls, emails, emails, and
(17:08):
so he's trying to withdraw,rightly.
But that raises all these weirdissues in california with.
You can't have an unrepresentedcorporation and you know in a
case, so he's, you know like he.
He was and the judge was supersympathetic.
They were trying to figure outhow do we handle this, because
if they've gone radio silent andyou're trying to do your, you
(17:29):
know, ethical obligations, likethe judge was very sympathetic
of, like OK, this can't stand,but we also have to figure out a
way to not turn the worldupside down and and how we
handle this.
So yeah, it can be a real weirdthing for when a lawyer has to
get out of a case, which is whyyou always need to be careful
(17:52):
when you take a case.
Yeah, okay yep, yep, all rightthings.
They teach you in law school.
So, uh, one of the things thatthat's always been discussed,
whether it was law school orjust a practice point assaulting
someone and committing batteryis not okay.
(18:14):
And matt deciding to smashpoint dexter's face on the table
after being goaded by theshackled man, he commits battery
and there are problems withthat.
And, gabby, I think youexplored the notes.
Oh no, your Honor, why don'tyou take it away?
(18:34):
You're both doing a nicepickleball 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 thethird degree, depending on how
egregious the injury was.
If it arises to the level of aserious physical injury and I
think it was bad enough that itprobably did it would be assault
in the second degree, whichwould be a Class D felony, as in
David.
If it's assault in the thirddegree, which is simply a
(19:02):
physical injury to anotherperson, it would be the class A
misdemeanor.
Also would be clear that therewas no self-defense or
justification argument.
The guy was shackled to thetable, could not have attacked
Matt, so he would not have anykind of self-defense type of
(19:26):
situation.
I also thought to myself, afterBullseye was able to escape,
whether Matt doing this was anaid of that escape.
Did he know that by knocking histooth 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
(19:50):
conspiracy with regards toescape?
And if he wasn't, and Bullseyejust did this on his own because
he was in jail for a felony, itwould be escape in the first
degree, which is a Class Dfelony.
A felony, it would be escape inthe first degree, which is a
(20:10):
class D felony, and as much ashe had already been convicted of
murder in the first or thesecond, it would be additional
time to his already lifesentence.
Which is why this is the onlysituation where I am kind of in
favor of capital punishment.
If you're a prisoner, if you'rea prisoner in jail serving a
life sentence, I think thereneeds to be a punishment that
(20:31):
can be done to you.
So if you, you know, kill aguard or fellow prisoner while
serving a life sentence, to methat'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 enoughof a factor that one of my
judge friends has actually usedit in court.
So I need to be careful withthat because I now get into
developing catchphrases.
But breaking down these issues.
The battery, because it's thephysical touching.
(21:15):
Poindexter might have had aplan, whether it was to get a
tooth broken or injured in someway so we could make an escape.
I don't think there's anagreement 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 facilitatedan escape that would not have
resulted in the loss of life andthe fact that at least two
guards die in this process andone through, I'll say, probably
(21:55):
maiming with getting a tooth inthe eye.
Uh, like that's, that ain'tright.
Like there there's a all kindsof levels of bad with how
Poindexter just maims people andmutilates.
And there are the quick killsand then there are the slow
kills and the guy has such ahigh body count, you know he
(22:17):
should be in solitaryconfinement and not allowed to
see daylight ever again.
Eating with, you know, uh, nosharp 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'tthink there was a conspiracy to
(22:39):
commit murder.
I think this is all onpoindexter.
Also, having gone through rootcanals, the idea of breaking a
tooth, as the grandson of adentist, I was screaming inside
because that would hurt so badand I don't know if there was a
root attached to it so theremains of the root could still
(23:00):
be in there.
None of this is good.
None of this is a just from adental perspective, not my lane,
but I I heard enough storiesgrowing up.
That sounds horrible, gabby.
Okay, oh, you look again theexpression for radio of like we
(23:21):
don't need to talk aboutdentistry, 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 tolerancefor for blood and gore.
This has resulted in a lot ofum.
What we're talking about I havenot actually seen.
Uh, because I'm looking awayfrom the TV and just waiting
(23:47):
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 whatit's doing for television in
the Marvel Universe, butpersonally 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 bea meme priceless of oh no, oh
no that bad, all right.
So let's talk about, uh, thebeginning of the episode, or
close to the beginning, whereVanessa and Fisk have their trip
(24:27):
to Red Hook and there's a lotthat happened with, again, wrong
kind of couples therapy justnot okay.
And there's mention about, uh,the guy that they had killed.
So there was a conspiracy to tokill the tracksuit mob boss.
(24:48):
So that's now known.
Uh, but your honor, are theseyour 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 gangleader you know, saying he was a
punk aiming for a throne, andthis was a very effective
session of marriage counselingbecause I think at the end of
this particular session Vanessaand the kingpin are firmly
aligned.
(25:22):
But the most interesting part ofthis particular session Vanessa
and the kingpin are firmlyaligned, but the most
interesting part of this segmentis when he brings her to the
apartment where Adam is beingheld and she gets to see that he
has been holding Adam prisonerand there's basically, uh, both
(25:44):
a key and a gun available tovanessa and vanessa tech chooses
to the gun and she kills adamwhile he's in the cage.
So this would clearly be amurder in the second degree
because it was intent to causethe death of another person,
because she pointed the gun andshot it at pretty close range a
(26:09):
couple of times and Adamapparently was dead and in as
much as the kingpin was theperson who set up the gun being
present and Adam being in a jailcell unable to to defend
himself, he would be guiltyprobably of conspiracy in the
second degree, a class B felony,which we've discussed
(26:31):
previously, which is section105.15 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 Iwould think the term dungeon
would would apply, the fact youused the word apartment gives me
concern about what apartmentsare like in new york uh, it was
(27:03):
an apartment with a side dungeonokay, 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 joshoh you know, just odd, odd, odd,
odd old buildings again therecould 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 Massachusettsthere was a lot of houses from
the revolutionary war period anda friend of mine had a house
that was built in the 1750s1760s and they were doing some
renovation of their basement andtheir basement was all stones
(27:50):
and when they got to aparticular wall it turned out to
be a fake wall and behind itwas a door and there was a
tunnel and the tunnel ran allthe way a good probably 800, 900
feet to another house that wasbuilt around the same time and
in that tunnel was a cache ofmuskets, bullets, all from
(28:16):
revolutionary times.
It was clearly a minute manhiding, you know, hiding place
for, for revolutionary soldiers.
So, yeah, you, you do have someof 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'sdifferent.
Or the building of the LAfreeways, different with with
our urban sprawl.
So, again, just a verydifferent regional history and
nothing explains it more likewater rights, because that's a
(28:54):
big thing out here.
But what else is a big thing isthe notes about Dr Glenn, who
had a rough day like she.
She's understandably upsetabout her experience and she
starts making comments about, uh, muse and daredevil being
connected and they're just boysplaying in masks, and you know.
(29:16):
This is where matt learns thatfiske is one of his girlfriend's
patients and there's aninvitation to the ball because
apparently she's being watchedand that's uh kind of upsetting.
So, uh, who?
Uh, okay, your honor, why don'tyou?
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 Ihave this later on in the notes
because you know, obviously Mattcontinues to push her to really
confirm that Fisk is a patientand she keeps saying I can
neither confirm nor deny orsomething along those lines.
(30:01):
And what she's invoking isobviously HIPAA.
Right, is the HIPAA privacyrule, which and other kind of
code of ethics andconfidentiality which we talked
about, but particularly HIPAA,which limits the circumstances
under which an individual'sprotected health information may
be used or disclosed by coveredentities.
(30:21):
And so generally, a coveredentity may not use or disclose
protected health information,except in certain exceptions.
One of the big ones is calledTPO, which is treatment, payment
or operations, obviously as theindividual allows.
That's why you have kind ofprivacy authorization forms when
(30:43):
you go to the doctors.
And I thought this wasinteresting because there's some
other, like I would say, randomexceptions.
Right, it's not random, it'skind of state and national
policies that have beenimplemented into this rule,
because, again, hipaa is afederal law and there's one
(31:05):
exception under these kind ofnational purposes right, that is
serious threat to health orsafety.
Covered entities may discloseprotected health information
that they believe is necessaryto prevent or lessen a serious
and imminent threat to a personor the public, when such
disclosure is made to someonethey believe can prevent or
(31:26):
lessen the threat, including thetarget of the threat.
So this is interesting becausewe talked about one of the last
times that in certain situations, psychologists and mental
health professionals aremandated reporters and had to
disclose certain informationspecifically to government
authorities.
Right, that is not the case.
(31:47):
They have to just report it tosomeone that they believe can
prevent or lessen the threat,which in the marvel universe
could be somebody like avigilante, right?
So obviously at this pointheather does not know that matt
is daredevil, but if she didknow and believed that there was
a threat posed by Kingpin,especially if she feels that her
(32:10):
life is under threat orsomething like that, she may be
able to fall into that exception.
And then what I thought wasalso interesting is she's
invited to this ball and shedoes not have any objections to
going.
I obviously it's a time to dressup and it's fun, but there are,
under the New York,professional practice guidelines
(32:32):
, which is not necessarily aform of governing law, for
psychologists is like theAmerican Psychological
Association.
Psychologists are reallydiscouraged from socializing
right in non-clinical settingswith their patients, right,
there are certain exceptions,you know, if you, if the
(32:54):
psychologist lives in like arural area, right and they have
to go to the grocery store andthe grocer is also their client,
right, that's you can't kind ofget out of that, right.
But here I think a kind ofethics board may say yeah, you
may not go to the fundraisinggala of one of your clients,
where you know your client isgoing to be right and she really
(33:18):
has no other reason for going,except obviously Fisk is trying
to, you know, kind of do a kindof gamesmanship with Matt and
let Matt know that he's watchingher.
But there's really no clinicalpurpose for her to go to this
event or any other kind ofrelated reason for going to this
(33:40):
event.
And it really might impact andthat's really the key test if it
impacts her impartiality andability 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 withhypotheticals where it would be
OK, but this does seem to beskating into bad territory.
Your Honor, any thoughts?
Judge Matthew Sciarrino (34:14):
Yeah, no, I agree that.
You know it probably would havebeen the best course of action
to not go to such a thing whereboth of your clients are going
to be.
I found the conversation thatwas leading up to the receiving
of the invitation about DrGlenn's opinions of vigilantes
(34:34):
to be quite important, becauseI'm sure that's what's going to
lead to the downfall of thisrelationship.
But other than that, nothing toadd.
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 somereflection, getting away from
the incident, uh, but again,this is the world that half the
population died.
Then a bunch of heroes got halfthe population resurrected.
So, like, does she really feelthat way?
(35:17):
Uh, it seems to be ignoringwhat'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 seefrom all the various movies,
that there is a large segment ofthe population that is against
the superheroes and maybe that,you know, lessened after they
saved all those people thatdisappeared.
(35:44):
But position and probably won'tchange that position, even if
(36:08):
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.
(36:31):
But this then brings in uh, thequestion is daredevil born
again a sequel to spin city.
So because when you have thedeputy mayor of communications,
that was Michael J Fox and spincity, so I just it just made me
(36:52):
wonder.
It's like are they going there?
Like is this, is this the thing?
And but we have, we have somethoughts about one, Does the
mayor appoint deputy mayors?
And two, how does that actuallywork?
And Gabby, as our residentexpert for local government,
(37:12):
walk us through.
Gabby Martin (37:14):
Yes, first of all, I felt very vindicated to have
an appointed comms personactually mentioned, because it's
been very vague what all oftheir staff positions are in the
office, and that sometimeshappens when you're talking
about you know, especiallyappointed positions.
You serve multiple functionsand can have, you know, you
(37:36):
don't introduce yourself by yourtitle every time, but to get
here comms mentioned was reallyexciting.
And so Daniel is obviouslyappointed Deputy Mayor of
Communications or forCommunications, which is
actually from what I was lookingat.
I did a bit of a deep dive onNew York City government kind of
(37:57):
structure which, as the judgementioned earlier, new York City
functions quite differentlyfrom you know kind of more what
we would.
You know maybe smallermunicipalities, right, that most
folks might be more familiarwith.
Obviously, a lot of towns, alot of municipalities have city
councils, have a mayor, maybe atown manager, right.
(38:19):
But because New York City is solarge, the city council
functions almost like its ownform of like a legislative body,
right, because there are citycouncilors from all of the
boroughs and all of thedistricts within New York City
and so that is kind of the citycouncil.
It's not just a couple of folksor you know a smaller body,
(38:40):
it's quite a large body, andthen the mayor acts as a kind of
veto power, you know kind ofexecutive branch, in relation to
the city council.
And so what I could find onthis was all of these positions
were actually laid out inExecutive Order 45, which was
(39:01):
done under the current mayoraladministration back last year
and last September.
But under New York City Charter,chapter 1, section 7, the mayor
does have the authority toappoint deputy mayors, and it
doesn't specify which positionshe has to appoint or not appoint
, so he could theoreticallycreate kind of endless deputy
(39:23):
mayors.
And so the question becomesthough is the deputy mayor for
communications the rightfunction of what he wants Daniel
to do, which is to be his kindof voice with the city council?
And while the deputy mayor doeskind of advise with a
communication strategy overseasyou know things like the office
(39:46):
of the press secretary, officeof director of communications
manages liaison withcommunication positions and does
have the ability to perform anyfunction, power or duty of the
mayor in negotiating, executingand delivering any agreements
(40:06):
necessary to effectuate mattersreferred to in his job
description.
He can't actually represent themayor, unlike some of the other
deputy mayor positions, on anyboards, committees or
commissions of which the mayoris a member.
And the thing is and maybe thejudge can speak to this a little
bit more but typically in stategovernment you have a comms
(40:28):
section of whatever level ofgovernment it is, and then you
have a legislative or, in thiscase, the Office of
Intergovernmental Affairs, ofwhich there is a director of
intergovernmental and externalaffairs who handles that kind of
liaison role.
Right, and they work closelytogether.
But that person is moreexperienced in policy
(40:54):
development, in those sorts ofmatters developing policies,
advancing policies, negotiatingpolicies and other legislative
things and so that's really, Ithink, what Fisk wants him to do
.
It's not necessarily a commsstrategy thing.
So I think he appointed him tothe wrong position.
Gives him a title with moreweight, but I don't think he's
(41:17):
going to actually be able toachieve Fisk's aims with the
city council, unless he does oneheck of a social media campaign
.
Then he's got it all set forthis 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 abit of a role in this.
When you walk into the CityHall building, if you walk to
the left you're in the mayoralwing and his deputies have
offices and the mayor has theiroffice.
And if you walk to the right ofthe City Hall you're in the
(41:59):
council chamber and the counciloffices, the council chamber and
the council offices and in themiddle and the rotunda area you
have the speaker's office andthe minority leader and the
majority leader, and so there'sa lot of fluidity with the
deputy mayors and they changethe names of them every so often
(42:21):
, depending on the mayor andwhat he wants to do.
That's why it's done byexecutive order.
There's the first deputy mayor.
That's kind of statutory, andthat one is the one that takes
the if the mayor is away for anextended period.
The first deputy mayor has alot of the mayor's powers, but
the deputy mayors can be kind ofused a little bit differently
(42:43):
than their roles actuallysuggest.
So it would not have.
It did not surprise me that heappointed him the mayor, the
deputy mayor of communications.
That would kind of put him incharge of a lot of things that
he wouldn't necessarily bedealing with, if he's going to
just be dealing with the citycouncil.
That he wouldn't necessarily bedealing with if he's going to
(43:04):
just be dealing with the citycouncil.
But you know from previousexperience some of the deputy
mayors for communications, theirjobs not only was dealing with
the press but it was dealingwith some of those
intergovernmental issues, asthey did joint press releases
and other things, becausethere's a lot of behind the
(43:26):
scenes in that city hall workthat's being done before they
bring it out as to what they'regoing to be doing.
So it didn't surprise me allthat much.
I think that it's a bit of ajump for him to jump to a deputy
mayorship from being a lackeyduring the campaign and then
(43:47):
coming up and now being incharge of press secretaries and
speech writing, and I don't seethat happening.
So I think maybe there was just, you know, he wanted to give
him a title that was going torub some people the wrong way
and help him be in a positionwhere others would take him
(44:08):
seriously right away.
But you know, I think it wouldbe a kind of a fluid position as
to what he would actually bedoing.
Joshua Gilliland (44:19):
Sounds more than a press secretary, but yeah
, it's just different.
And I don't know if any of ourbig three cities in the Bay Area
have anything comparableBecause, again, san Francisco,
big, but confined, it can't grow.
San Jose is larger than Chicago, so that's probably the biggest
(44:44):
, oakland's substantial as well,and then we have all the other
cities in between that vary insize, and so Piedmont is tiny,
it's like our Luxembourg, and orAlameda is also small, but you
(45:19):
know you get Sunnyvale, mountainView, you know these capital
Silicon Valley towns that arehuge, so, like, a lot of people
live there.
So again it's.
But I've, that's a curiousquestion, so one I've not seen.
Moving on, uh, we do have somelaw, uh, office management,
ethical issues of when you havea client come in for an
interview and it's, uh, I'venever seen anyone be that
disrespectful with you know,feet on the desk and like on the
phone playing while talking.
(45:43):
I would not want to deal withthat personally and Matt kicks
into cross-examination mode ofthe client, which I think is
okay.
Like you know, you need to berespectful because if you can't
handle pressure from your ownlawyer asking you hard questions
, wait till you meet opposingcounsel in a deposition and
(46:03):
you're going to be tap dancingfor 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 berespectful, uh, but you they're
they're not everyone's um uh,the polite professional problem
solver.
There are those who swing upacts uh and depo uh and can hurt
(46:25):
your feelings, uh.
So ethical issues with this,because matt calls his client a
liar, you know embezzled fromteachers, defrauded them, did
bad things to teachers, andthey're stuck representing this
bozo who is entitled to a robustdefense.
(46:46):
Your Honor, did you take itaway?
Judge Matthew Sciarrino (46:53):
So yeah , the potential client or the
new client basically says thathe would have no problem taking
the stand and lying.
And this deals with the issueof can a lawyer knowingly put
someone on the stand who isgoing to lie?
And the answer to that is,ethically no, you can't do that.
(47:13):
A lawyer shall not knowinglymake a false statement of fact
or law to a tribunal or fail tocorrect a false statement or
material fact or law previouslymade to the tribunal by the
lawyer.
And this is rule 3.3 of ourethics code in New York.
It goes on to say that if alawyer, the lawyer's client or
(47:37):
witness called by the lawyer hasoffered material evidence and
the lawyer comes to know of itsfalsity, the lawyer shall take
reasonable remedial measures,including, if necessary,
disclosure to the tribunal,which is the court.
A lawyer may refuse to offerevidence other than the
(47:58):
testimony of a defendant in acriminal matter that the lawyer
reasonably believes is false.
And this does set up adifference between a civil case
and a criminal case.
In a civil case you would notbe permitted to have the lying
witness take the stand at all.
The lawyer would not be able toput them on the stand and offer
that false testimony, but thereis the interplay of a
(48:21):
defendant's right to testify ata criminal trial.
So there is a situation where adefendant who a lawyer knows is
going to lie would still haveto.
Do has developed over the yearsof lots of case law.
One of the better laid outcases is the case of People v
(48:51):
DePaulo D-E-P-A-L-L-O, whichwasa second department case in
New York that arose out of aStaten Island case and the
lawyer is kept out of thedecision to protect his identity
and happened to know this caseand the lawyer whose identity
(49:13):
was being protected and that wasa very, very, very ethical
attorney and he basically wentto the court to say listen, my
client wants to testify, he'sgoing to not tell the truth, and
the appeal was over whether ornot this lawyer was ineffective
in his counsel, and theappellate division said that he
(49:36):
was effective in his counsel.
And it boils down to this If alawyer is handling a criminal
case in New York and theyunderstand that they're dealing
with a client who intends toperjure themselves, the lawyer
has to tell the court, withouttelling any particular details
as to what is going to be lied.
(49:57):
What is a lie, what is the true, what is the true.
You then ask permission topresent the defendant's false
testimony using the narrativemethod and I'll get into that in
a second and then, when itcomes time for your closing
argument, you're not allowed torefer to your client's testimony
(50:18):
and the story that he gave.
You just ignore it like itnever happened.
And what the narrative methodis is most of us who are used to
seeing television examinationson TV, and really those of us
that are in a courtroom, most ofthe way that examination is
done is a question answer,question answer, question answer
(50:39):
.
And that's the way testimony isdone in the courts of this
country.
With a narrative method, youbasically you put your client on
the stand and you say whatwould you like to tell the jury
and he goes through his entirestory and you don't participate
it in any way.
And then, of course, theprosecutor could cross-examine
(51:01):
and have as much fun with thatcross-examination that they can
have, but you don't participatein that perjurious testimony.
And that's what.
If you know, I don't see Mattand his partner probably taking
this case, because if they knowthat their client is not someone
that's truthful, it's probablynot a good client to take.
(51:22):
Granted, the firm is in need ofsome money.
So you know his partner mighthave a different idea, but I
don't see them taking the case.
But if they were to take thecase, if it if it's a civil
embezzlement case, they wouldn'tbe allowed to partake in in
having this client take thestand at all if they know he's
being perjurious.
(51:42):
If it's a criminal case thathe's being charged with
embezzlement and he still wantedto take the stand, it would
have to be done through thisnarrative method.
Joshua Gilliland (51:52):
That's what I remember from law school being
civil practice.
I haven't had to encounter thisfor obvious reasons, but that's
what I remember as well indiscussing California's practice
of the narrative approach andnot to participate in committing
(52:20):
fraud upon the tribunal.
But also you have to let yourclient 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 youknow kind of confidentiality,
which you know is, I think, abit weird for non lawyers to
understand, which is you can'tjust walk up to the court and
say these are all the things myclient lied about, like this is
all the things that are wrong,which is what, like, your
(52:57):
instinct, moral instinct, right,is to just like say no, he's a
liar, this is what he's lyingabout, right, um, but you have
to kind of, as the judge said,you know, kind of share only
what is necessary, right, andnot the kind of narrative story
part of it, but just say youknow he's going to perjure
(53:19):
himself and whatever.
So I think that's always aninteresting thing that kind of
gets overlooked when we talkabout.
You know, the rules ofdisclosure to the court, right,
it's not a all or nothing, right, it leans on usually nothing.
Or you know what I alwaysremember for my ethics course in
(53:39):
law school was, you know youusually lean towards if there's
not a required disclosure to thecourt, it is recusing yourself,
right, so that you cannot be apart of it anymore, and so it's
kind of very different from kindof our normal moral rules, of
what we would think to disclosethe defendant anymore, because
(54:01):
then you're putting anotherlawyer in the exact same
position or, even worse, thatlawyer doesn't know that the
(54:25):
defendant's going to perjurethemselves and then they
knowingly participate in that orthey unknowingly participate in
that perjury.
Judge Matthew Sciarrino (54:34):
So in the case the court actually said
that.
You know, recusal is not theanswer to this kind of situation
.
He kind of has to stick withhis client and you know the
narrative method is the best wayto 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 givethe cross-examination of a
lifetime.
And so you, if you want theperry mason moments for
impeachment, there you go and itcan open the door in all kinds
of fun and exciting ways uh, forwhether it's character evidence
(55:14):
and just being able to rip theguy a new one for, oh, oh, you
claim you have a reputation forbeing honest.
Well, you know, and startrolling out the forge checks or
whatever the issue is.
So that could be, again, goodTV moments.
But the, the perspective client, did straighten up, like when
(55:38):
Matt switched to you knowcross-examine mode, like the
feet came off the table and he,he presented Okay, but the you
can't put a perjurer up.
Just, it's one thing to be wrongit, you know, it's like I made
a mistake.
That's one situation and betterto have.
(55:58):
I was confused with what youwere talking about, or, but it's
another thing to go.
Yeah, he's just going to get upthere and lie.
Um, yeah, it's being wrong, ismistaken, and I I think the best
way for lay people tounderstand that kind of cross
examination is well, we'll savethat for another time.
(56:24):
But there there are examplesfrom pop culture that can be fun
for another example.
So, gabby, are you about to saysomething?
Gabby Martin (56:37):
No, I was going to say I think, you know, thinking
of it afterwards of the episodeis is we continually see Matt
getting continually frustratedwith the kind of defense system,
Right, and you know, he evensays, you know they, they
babysit chaos, right, they'renot actually doing anything,
which is, you know, I think theinteresting line where you know
(57:00):
he had initially kind ofcompletely given up his
vigilantism to handle thingsthrough the courts, right, to
see how the courts handle things, and he's not really getting
anywhere, you know, especiallyas demonstrated by the case with
the theft of the caramel corn,right.
And I think all of this, andeven the kind of ending which I
(57:22):
know we'll talk about in asecond, is setting him up for
that kind of plot line thatwe've talked about of him
getting kind of switching sidesright In terms of his lawyer
capacity, sides right in termsof his lawyer, uh, capacity.
So I just think that's all kindof where that may be leading up
to is for him to go on on theopposite side, um, and go into
(57:44):
the kind of prosecutor side yeah, and it's the setup for the end
, because I mean like, let's getthere.
Joshua Gilliland (57:51):
If you take a bullet for the mayor, there's
going to be some politicalcapital there for the mayor.
There's going to be somepolitical capital there.
Also, I think the kingpin willdig it, because you took a
bullet for me, like he.
He, while he has decapitatedpeople, when he's done all kinds
of horrible things, there's astrong loyalty factor with him,
(58:12):
and taking a bullet's probablyone of those.
Okay, oh, my wife had your bestfriend killed.
I could see him being upset andI can see that playing into
(58:40):
Matt getting appointed DA orwinning an election to be DA.
So there's a lot there, butthere's other things.
Either of you want to jump inon that?
Judge Matthew Sciarrino (58:52):
Yeah, I agree that it's clear that he
was going to give the system itschance to do the right thing
and everywhere out with theirfaces drawn, because they know
that they've been beat plan, youknow, and his task force is
using any and all meansnecessary in order to make sure
(59:13):
that people follow what themayor wants with regards to his
(59:52):
Red Hook rebuilding project andand um, so you know it really, I
think, because matt is hearingall of these conversations what
is, what is his super hearing?
And, uh, he, he could see inhis face you know that.
Gabby Martin (01:00:17):
You know it's another with.
That is what I foundinteresting of those closed-door
meetings and I know we havethis with the black and white
ball notes, but you know youclearly see swordsmen come in.
And it was a contrast and towhat the judge is saying.
It's a contrast to what youknow had been discussed in the
(01:00:38):
mayor's office, right, that theACLU, which is cool, that the
ACLU exists in the MarvelUniverse canon, like I hope I
have not checked out theirsocial, but I hope they
capitalize on that that theyexist canonically within the
Marvel Universe.
So kudos to.
I know a lot of great peopleover at the ACLU.
Joshua Gilliland (01:01:02):
So kudos to I know a lot of great people over
at the ACLU, kudos to them thatthey are, you know, doing the
good work, even in the MarvelCinematic Universe.
Gabby Martin (01:01:05):
The fictional good work, yes, the fictional.
You know I don't know how manypeople are vigilantes in New
York City, but you knowvigilantism is down by 30%,
which that could be two people,it could be four people, I think
they mentioned like 15 lawsuits.
(01:01:26):
So clearly that's you know, atleast 15 people that have had
their rights violated, or thatcould be people that were like
roughed up by the police right,Suspected of being vigilantes.
But what you see with swordsmenis that clearly this task force
is not equitably enforcingtheir mission, right, Because if
(01:01:49):
they were, it is clearly known,at least by Fisk, who Jack
Duquesne is right, and so theycould have picked him up, but
he's using that as leverage forpolitical kind of capital for
this Red Hook project.
So I really do find that kindof another fascinating tidbit
there.
Joshua Gilliland (01:02:11):
So Jack, getting the shakedown to match
public funds or put in privatefunds and then match public?
Um, anyway, he's going to becontributing to a private or to
a public project in order tokeep his.
Whatever vigilanteism he'sdoing has has a secret, but it's
like it's good to see katerubbed off on him.
(01:02:33):
That, uh, that the almoststepdaughter uh doing her
hawkeye life.
Um, you know he did wear asword to the christmas party.
So after being you knowreleased, uh, on a you know
charges of killing a man with asword.
So good for him, good for him,uh.
(01:02:56):
But the again shakedown.
We also see the task forcestart getting into full-on
gestapo kgb type tactics andignoring the police,
commissioner.
Like they burn a guy's hand,member of the press, and well,
sure, it might be a no phonesevent because they don't want
(01:03:16):
pictures, okay, and that doesn'tgive you the license to start
torturing people and just tomake a point and then to tell
the guy in charge go pay on sand, uh, so there's issues there.
Gabby Martin (01:03:36):
Which, to answer his metaphorical question, both
of those were assault.
He did not need to put theguy's hand in oil for it to be
assault.
It was assault from the jump.
So the police commissioner wasright it was assault and battery
.
The officer Powell was notcorrect.
It had been assault and battery, um and undue force yeah, go
(01:03:59):
ahead, follow the complaint.
Joshua Gilliland (01:04:00):
Still, I'm like knock the butthead down.
A point also you just assaulteda member of the press.
Don't pick fights with peoplewho buy ink by the barrel, and
especially now there's evidenceof the guy's maimed hand.
Okay, go for it, fight thefight.
So yeah, just very evil.
(01:04:22):
Either of you want to commenton Bebe?
We actually learned that she'snot a puppet and she has way
more tenacity in line with heruncle.
Judge Matthew Sciarrino (01:04:35):
Yeah, and it's going to be interesting
to see what her and thecommissioner, working together,
are able to accomplish.
Gabby Martin (01:04:42):
Yeah, and I think it is interesting though again,
this was an episode that we didnot see her BB report.
So she has I know she says thatshe has she publishes,
obviously under a different name, somewhere else.
We still don't know where thatis.
How is you know what form thatis?
Um, but clearly her bb reporthas been silenced because these
(01:05:05):
are the two episodes that thatdon't have that um.
So obviously that could be justa time issue, but I think you
know, considering how it wassqueezed in in the previous
episodes, I think that waspurposely um done to show that
she had been at least that partof her um journalistic voice had
been had been silenced yeah,but she's playing the long game.
Joshua Gilliland (01:05:26):
She goes to the party with the newly
appointed deputy mayor and Imean she's playing him.
So I I don't.
Uh, she has a good ground gameand though I like the fact she
knows that the kingpin was thelead suspect in her uncle's
death, so, uh, good for her.
(01:05:48):
I I remember the swordsmanbeing different in the comics.
I want to say it was Hawkeye'sfirst pseudonym or you know
costume that he wore.
I might be completely wrong onmy old Avengers history so I do
(01:06:11):
need to look that up, but Iremember the swordsman being
different, so they might just berecycling the name.
But again, it's been a coupledecades since I've read those
books.
And raises the question howmany vigilantes are running
around.
So anything else for the goodof the order tonight by the
(01:06:33):
sheer number of Marvel comicsthat exist.
There's a lot of vigilantes anddifferent levels of yes, yes, of
what they do.
And sure, a lot of stories werebased in new york, because
that's where the writers werelike it's what they knew, um,
before people started branchingout.
For let's do a story in chicagoor san francisco or la.
(01:06:58):
Now I remember it's like thechampions were based in la, um,
so going way back, so again they, and then were the west coast
avengers.
Uh, so which hawkeye was theleader?
I think for most of that.
So, again, different, differentruns, different eras, where
they do branch out.
So not everything is takingplace in Manhattan.
(01:07:21):
So, but with that, thank youall for tuning in.
We have Easter coming up, alsoa Star Wars celebration for
those who are going to Tokyo, sothe last episode will come out
while some of us are in Tokyo,and then there's Easter.
So we won't record on EasterAgain, happy to have everybody
(01:07:42):
over sometime, but not for that.
And so we'll record after theholiday and after our trip.
But everybody, wherever you are, stay safe, stay healthy and
stay geeky, take care now.
Hello everyone .
My name is Joshua Gilliland,one of the founding attorneys of
the Legal Geeks.
I was wrong that last week wasthe penultimate episode.
Judge Matthew Sciarrino (00:13):
Me too.
Joshua Gilliland (00:15):
Eight's a good number.
I didn't expect it to be nine,that I was wrong.
So this is the penultimateepisode and boy howdy is it a
good one With me to discuss.
It is the retired Judge MatthewSherino, from New York, now in
Florida, and Gabby Martin.
(00:36):
So, your Honor, how are youthis evening?
Judge Matthew Sciarrino (00:41):
I am well, thank you.
Joshua Gilliland (00:42):
Excellent, and Gabby, how are you?
Gabby Martin (00:45):
I'm doing good.
I think, in addition to all thelegal issues in this episode,
which we'll cover, the filmingon this episode was incredible.
Like they did some, they put insome extra work with their
cinematography this episode.
Judge Matthew Sciarrino (00:59):
Yeah, the cinematography, especially
in the black and white ball.
I mean like their their.
Their outfits popped when hecame out in in the.
You know his, his signaturewhite tux it it was.
Gabby Martin (01:11):
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 aspoiler alert at the end um, but
that aspect ratio change wasvery cool and still thinking
about it, so loved it yes, sothe island of joy had a lot of
(01:36):
joy.
Joshua Gilliland (01:37):
It was exceptionally well done and
packed full of legal issues.
So, out of the gate we startwith a taking a prisoner.
Normally when someone is in theI was a police officer, law
enforcement, federal agent, whathave you?
And they go to prison.
They're isolated from generalpopulations to avoid getting
(01:59):
killed, and they do that withbullseye.
Because he's a former federalagent turned hitman assassin,
and they put him in generalpopulation.
Judge Matthew Sciarrino (02:13):
Your honor, I think you have some
notes on this that, uh, help usunderstand the problems with
this yeah, there was a littlebit of a mixed message in the
episode itself when Matt wastold that Agent Poindexter was
moved to Gen Pop by his partner.
You know, she kind of mentionedfederal holding areas as
(02:38):
opposed to I believe the Islandof Joy is meaning Rikers Island,
which is where they keep cityprisoners, although after he
would have been convicted hewould have been transferred to a
state facility.
So he wouldn't have been onRikers Island after he was
(02:58):
convicted of a felony.
But for the episode's sake itlooks like he was on Rikers.
So we'll discuss Department ofCorrections and for the most
part Department of Correctionsdoes have carte blanche with
regards to the transferring ofprisoners to and from the
various facilities, and they cantransfer people to and from the
(03:23):
various parts of the island,including from protective
custody to gen pop generalpopulation, at their whim.
And it seemed that this wasdone at the behest of the mayor,
of the mayor.
(03:49):
The mayor generally would nothave the ability to force
Department of Corrections tohouse someone one way or the
other, although they could ofcourse put in a request.
So I think this was anoverreach from Kingpin in order
to probably result in Bullseyebeing killed so that he wouldn't
be able to ever say anythingbad about the mayor.
Joshua Gilliland (04:12):
Just problematic and I get playing
fast and loose with federaljurisdiction or state
jurisdiction, because there arefederal and state crimes that
Bullseye did commit.
It also season three ended withhim getting a new spine, which
those don't just magicallyhappen.
(04:33):
Uh, so was he an assassin forthe us government?
Like?
Well, there are a lot ofunknowns, things that we don't
necessarily need answers to, butit's like for those who think
about it, it's like how I meanlawyers, like the procedural
history to know where we are.
It's like what's the proceduralstatus and this kind of skips,
(04:57):
all of that which makes us go.
Is he in a state facility orfederal?
Because what's happening here?
Judge Matthew Sciarrino (05:04):
For the entertainment value.
I understand that as well.
You know they can't get intoevery little nuance like we can,
but that's one of the wonderfulthings that it gets us to be
able to talk about.
Joshua Gilliland (05:16):
Yes, gabby, your thoughts.
Gabby Martin (05:19):
Yeah, I'm curious now that you say that and I'm
wondering if the judge has anythoughts on this, because
obviously we find out by the endof 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
(05:42):
have the office of the firstlady and, you know, maybe a
little bit more like politicalsway or power.
Right, there's no officenecessarily of the first lady.
Right, like a first lady wouldhave the office of the first
lady and maybe a little bit morelike political sway or power.
Right, there's no officenecessarily of the first lady.
I don't believe in New YorkCity or on municipal levels.
Can a private citizen then, ifkind of put in the kind of same
request with the Department ofCorrections to move such and
(06:03):
such an individual from one tothe other?
Judge Matthew Sciarrino (06:07):
Yeah, no, a private citizen wouldn't
be able to.
And in a lot of cases wheresomeone's in protective custody,
they're the ones that actuallyasked to go to the general
population, because theprotective custody doesn't have
a lot of the same facilities.
It doesn't have, like you know,movie night and it doesn't have
(06:29):
the recreation areas.
And if you're in realprotective custody where you're
not seeing anyone else, youcould be quite lonely.
So a lot of people do requestto be out of the protective
custody into GenPOP.
But yeah, as you said, mostFirst Ladies of the city don't
(06:51):
have.
They do have a small office,they have a press secretary,
they have a chief of staff, theyhave some other people in the
office because the city of NewYork is so large, it does have a
budget for same and in somemayoralties the spouse of the
mayor have taken on variousroles.
(07:13):
So, like Bill de Blasio, whowas the mayor before the current
mayor, his wife was in chargeof a mental health initiative
for which about eight or $million dollars disappeared.
But you know that's a crimestory for another day.
Joshua Gilliland (07:32):
Now, that's a detail.
Yeah, some accounting needs tobe done there, but be that as it
may.
First, ladies, don't get to putout 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 bestuh now we do have uh bullseye
(08:01):
wanting to talk to matt murdoch.
Raises some interestingprivilege questions, um, and
there are notes here.
So uh, gabby, is this you?
Gabby Martin (08:15):
yeah, because I, when this question kind of
caught me, I was thinking aboutit 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 probablythe minute you graduate law
school, if not the minute youstart telling family and friends
that you're going to law school, you start to get this of like,
(08:38):
well, can I ask you for legaladvice?
Can I ask you, can I talk toyou about this and that and the
other?
And they believe that justbecause you do now have a JD or
you're a licensed attorney, thatyou can provide legal advice to
them and that whatever deepest,darkest secrets they confess to
(08:58):
you are confidential.
But that's just not the case.
And so we have attorney-clientprivilege right that does
protect the confidentialcommunications between a lawyer
and their client that and thisis key here that relate to the
client's seeking of legal adviceor services.
(09:18):
The protection obviouslyextends to any information
exchanged during theseprivileged communications, which
encompasses, as we know, notonly what you and the client
talk about, but things likeattorney work, product and that
sort of thing, things spokenabout in an office between you
know, attorneys, paralegals, etcetera, et cetera.
(09:40):
And so you're required.
We as attorneys are required umto not disclose certain
confidential information, exceptwith certain um exceptions, as
we've kind of talked aboutbefore.
Um.
But cause this is, as uh NewYork says, is um New York court
of appeals, one seeking legaladvice um will be able to
(10:01):
confide fully and freely in hisattorney.
That's why we have theseconfidentiality rules right.
But the key thing is what makesa client right.
This only applies to clients.
The privilege actually existswith the client, meaning the
client can revoke it at any time.
The attorney can't revokeattorney-client privilege.
(10:22):
That's something only theclient can do and it really
doesn't take hold until theparties have agreed on
representation.
So somebody coming up to youout of the blue confessing their
deepest, you know, just by us,as a virtue of us being lawyers,
does not make everyconversation we have with
anybody in the worldconfidential.
With anybody in the worldconfidential.
(10:48):
There has to be that expressacknowledgement in some form of
whether it's in an engagementletter, fee, contract, right.
That's where that whole joke oflike handing somebody a dollar
kind of comes from, that you'reengaging them monetarily, right,
and you could have kind ofother examples of this.
You don't necessarily have tohave that contract.
(11:09):
But the client can't just kindof believe one-sided, right,
that there is an attorney-clientprivilege, that there's
confidential information, and Ithink here what they're talking
about.
He's not been contracted as aPoindexter or Bullseye's lawyer,
right, he's going there just totalk with him.
(11:30):
Right?
There's been no, from what Icould tell, any kind of
agreement that he's his lawyer.
He testified against him atsentencing, right?
There's really nothing thatwould indicate a attorney-client
relationship between the two ofthem.
So I don't think what he'ssaying here is confidential.
(11:50):
But that may be, as he says,you know, in another world.
That would be defending himright, and it would be an
attorney-client relationship.
But I don't think we have thathere.
Joshua Gilliland (12:02):
I agree we don't have it here, but there
are ways it could be created andthere's always the fear of a
Q&A turning into anattorney-client relationship.
One of the prior Daredevilepisodes had Foggy say like oh,
give me $5 or something likethat.
That doesn't work.
(12:22):
That by itself doesn't createan attorney-client relationship.
It's a bad trope.
It's not the law, but someoneasking you questions could turn
into an attorney-clientrelationship and that's where
things get weird, because youhave to be careful as an
attorney not to inadvertentlycreate that relationship and
(12:46):
give advice of.
Well, I met this lawyer at thebar and he said this.
So I went out and did it.
I thought it would be okayfiling a trademark application
this way, like you know, insomething that could turn out to
be expensive and wrong.
That could subject a lawyer tosome 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 meeta client for the first time,
you express that you know whatyou're talking about initially,
may not.
You're really careful to set upthose ground rules of
confidentiality.
And even now, you know I don'tactively practice anymore, right
, but you still have, we stillhave legal brains, right, and so
(13:30):
we always have to be careful tosay you know, this is not legal
advice, please go seek, youknow, counsel from from an
attorney, from your attorney,from from somebody who will be
your, your attorney, right?
It's the same thing thatdoctors do, right?
You see doctors on TikTok, onother platforms.
They always say this is notmedical advice.
(13:52):
Right, it is not.
You should consult your doctorbefore, and that's to prevent a
problem, Because if somebodyrelies on information, you're
telling them there could be aproblem, but it doesn't seem
like he's providing any sort ofconfidential information or
relying or seeking any sort oflegal advice from that.
Joshua Gilliland (14:10):
in this case, Well, I don't think Matt could
take Poindexter on as a clientbecause of the testimony and the
victim sentencing.
I think that could be a hugeproblem and barrier about.
You know, I think going to theduty of loyalty and being able
(14:30):
to zealously represent someoneNow that doesn't necessarily say
knock out the entire firm.
I think that's a question wouldtake some more analysis on
whether or not the firm couldtake on Poindexter if there was
a legitimate reason to do so andif Poindexter is trying to turn
state's evidence or somethinglike that could be a reason to
(14:55):
look at those rules a littlemore closely.
Your Honor Gabby and I justwent down a rabbit hole.
Any thoughts you want to add tothat?
Judge Matthew Sciarrino (15:04):
It was a good rabbit hole.
Any thoughts you want to add tothat?
It was a good rabbit hole andyeah absent, you know really a
written waiver of all of theconflicts that Matt and
Poindexter would have, he wouldnot be able to represent
Poindexter.
But Poindexter, I think, if hemakes a knowing waiver and he
(15:26):
understands all of the thingsthat are the potential conflicts
, I think he would be able toretain Matt's law firm to
represent him, especially if hewas going to come clean with
regards to who hired him to killFoggy or something along those
lines.
But I agree with you 100% onprivilege.
(15:49):
I don't think that there wasever a attorney-client
relationship established, sonone 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'sbest friend.
Judge Matthew Sciarrino (16:05):
Yeah, no, it'd be a tough one, but if
it was 100% explained to him andhe wanted to waive it, and if
Matt wanted to represent him,because no attorney can be
forced to really representsomeone that they don't want to
represent.
With some exceptions, sometimesyou're drafted on a case and
(16:28):
sometimes you're not let out ofa case for particular reasons,
but as a general rule, if you'rea private attorney, you don't
have to take any case that youdon'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 uswith one of our matters.
It was wild.
The lawyer represented acorporation and he lost contact
with the corporation.
They weren't responding tophone calls, emails, emails, and
(17:08):
so he's trying to withdraw,rightly.
But that raises all these weirdissues in california with.
You can't have an unrepresentedcorporation and you know in a
case, so he's, you know like he.
He was and the judge was supersympathetic.
They were trying to figure outhow do we handle this, because
if they've gone radio silent andyou're trying to do your, you
(17:29):
know, ethical obligations, likethe judge was very sympathetic
of, like OK, this can't stand,but we also have to figure out a
way to not turn the worldupside down and and how we
handle this.
So yeah, it can be a real weirdthing for when a lawyer has to
get out of a case, which is whyyou always need to be careful
(17:52):
when you take a case.
Yeah, okay yep, yep, all rightthings.
They teach you in law school.
So, uh, one of the things thatthat's always been discussed,
whether it was law school orjust a practice point assaulting
someone and committing batteryis not okay.
(18:14):
And matt deciding to smashpoint dexter's face on the table
after being goaded by theshackled man, he commits battery
and there are problems withthat.
And, gabby, I think youexplored the notes.
Oh no, your Honor, why don'tyou take it away?
(18:34):
You're both doing a nicepickleball 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 thethird degree, depending on how
egregious the injury was.
If it arises to the level of aserious physical injury and I
think it was bad enough that itprobably did it would be assault
in the second degree, whichwould be a Class D felony, as in
David.
If it's assault in the thirddegree, which is simply a
(19:02):
physical injury to anotherperson, it would be the class A
misdemeanor.
Also would be clear that therewas no self-defense or
justification argument.
The guy was shackled to thetable, could not have attacked
Matt, so he would not have anykind of self-defense type of
(19:26):
situation.
I also thought to myself, afterBullseye was able to escape,
whether Matt doing this was anaid of that escape.
Did he know that by knocking histooth 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
(19:50):
conspiracy with regards toescape?
And if he wasn't, and Bullseyejust did this on his own because
he was in jail for a felony, itwould be escape in the first
degree, which is a Class Dfelony.
A felony, it would be escape inthe first degree, which is a
(20:10):
class D felony, and as much ashe had already been convicted of
murder in the first or thesecond, it would be additional
time to his already lifesentence.
Which is why this is the onlysituation where I am kind of in
favor of capital punishment.
If you're a prisoner, if you'rea prisoner in jail serving a
life sentence, I think thereneeds to be a punishment that
(20:31):
can be done to you.
So if you, you know, kill aguard or fellow prisoner while
serving a life sentence, to methat'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 enoughof a factor that one of my
judge friends has actually usedit in court.
So I need to be careful withthat because I now get into
developing catchphrases.
But breaking down these issues.
The battery, because it's thephysical touching.
(21:15):
Poindexter might have had aplan, whether it was to get a
tooth broken or injured in someway so we could make an escape.
I don't think there's anagreement 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 facilitatedan escape that would not have
resulted in the loss of life andthe fact that at least two
guards die in this process andone through, I'll say, probably
(21:55):
maiming with getting a tooth inthe eye.
Uh, like that's, that ain'tright.
Like there there's a all kindsof levels of bad with how
Poindexter just maims people andmutilates.
And there are the quick killsand then there are the slow
kills and the guy has such ahigh body count, you know he
(22:17):
should be in solitaryconfinement and not allowed to
see daylight ever again.
Eating with, you know, uh, nosharp 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'tthink there was a conspiracy to
(22:39):
commit murder.
I think this is all onpoindexter.
Also, having gone through rootcanals, the idea of breaking a
tooth, as the grandson of adentist, I was screaming inside
because that would hurt so badand I don't know if there was a
root attached to it so theremains of the root could still
(23:00):
be in there.
None of this is good.
None of this is a just from adental perspective, not my lane,
but I I heard enough storiesgrowing up.
That sounds horrible, gabby.
Okay, oh, you look again theexpression for radio of like we
(23:21):
don't need to talk aboutdentistry, 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 tolerancefor for blood and gore.
This has resulted in a lot ofum.
What we're talking about I havenot actually seen.
Uh, because I'm looking awayfrom the TV and just waiting
(23:47):
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 whatit's doing for television in
the Marvel Universe, butpersonally 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 bea meme priceless of oh no, oh
no that bad, all right.
So let's talk about, uh, thebeginning of the episode, or
close to the beginning, whereVanessa and Fisk have their trip
(24:27):
to Red Hook and there's a lotthat happened with, again, wrong
kind of couples therapy justnot okay.
And there's mention about, uh,the guy that they had killed.
So there was a conspiracy to tokill the tracksuit mob boss.
(24:48):
So that's now known.
Uh, but your honor, are theseyour 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 gangleader you know, saying he was a
punk aiming for a throne, andthis was a very effective
session of marriage counselingbecause I think at the end of
this particular session Vanessaand the kingpin are firmly
aligned.
(25:22):
But the most interesting part ofthis particular session Vanessa
and the kingpin are firmlyaligned, but the most
interesting part of this segmentis when he brings her to the
apartment where Adam is beingheld and she gets to see that he
has been holding Adam prisonerand there's basically, uh, both
(25:44):
a key and a gun available tovanessa and vanessa tech chooses
to the gun and she kills adamwhile he's in the cage.
So this would clearly be amurder in the second degree
because it was intent to causethe death of another person,
because she pointed the gun andshot it at pretty close range a
(26:09):
couple of times and Adamapparently was dead and in as
much as the kingpin was theperson who set up the gun being
present and Adam being in a jailcell unable to to defend
himself, he would be guiltyprobably of conspiracy in the
second degree, a class B felony,which we've discussed
(26:31):
previously, which is section105.15 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 Iwould think the term dungeon
would would apply, the fact youused the word apartment gives me
concern about what apartmentsare like in new york uh, it was
(27:03):
an apartment with a side dungeonokay, 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 joshoh you know, just odd, odd, odd,
odd old buildings again therecould 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 Massachusettsthere was a lot of houses from
the revolutionary war period anda friend of mine had a house
that was built in the 1750s1760s and they were doing some
renovation of their basement andtheir basement was all stones
(27:50):
and when they got to aparticular wall it turned out to
be a fake wall and behind itwas a door and there was a
tunnel and the tunnel ran allthe way a good probably 800, 900
feet to another house that wasbuilt around the same time and
in that tunnel was a cache ofmuskets, bullets, all from
(28:16):
revolutionary times.
It was clearly a minute manhiding, you know, hiding place
for, for revolutionary soldiers.
So, yeah, you, you do have someof 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'sdifferent.
Or the building of the LAfreeways, different with with
our urban sprawl.
So, again, just a verydifferent regional history and
nothing explains it more likewater rights, because that's a
(28:54):
big thing out here.
But what else is a big thing isthe notes about Dr Glenn, who
had a rough day like she.
She's understandably upsetabout her experience and she
starts making comments about, uh, muse and daredevil being
connected and they're just boysplaying in masks, and you know.
(29:16):
This is where matt learns thatfiske is one of his girlfriend's
patients and there's aninvitation to the ball because
apparently she's being watchedand that's uh kind of upsetting.
So, uh, who?
Uh, okay, your honor, why don'tyou?
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 Ihave this later on in the notes
because you know, obviously Mattcontinues to push her to really
confirm that Fisk is a patientand she keeps saying I can
neither confirm nor deny orsomething along those lines.
(30:01):
And what she's invoking isobviously HIPAA.
Right, is the HIPAA privacyrule, which and other kind of
code of ethics andconfidentiality which we talked
about, but particularly HIPAA,which limits the circumstances
under which an individual'sprotected health information may
be used or disclosed by coveredentities.
(30:21):
And so generally, a coveredentity may not use or disclose
protected health information,except in certain exceptions.
One of the big ones is calledTPO, which is treatment, payment
or operations, obviously as theindividual allows.
That's why you have kind ofprivacy authorization forms when
(30:43):
you go to the doctors.
And I thought this wasinteresting because there's some
other, like I would say, randomexceptions.
Right, it's not random, it'skind of state and national
policies that have beenimplemented into this rule,
because, again, hipaa is afederal law and there's one
(31:05):
exception under these kind ofnational purposes right, that is
serious threat to health orsafety.
Covered entities may discloseprotected health information
that they believe is necessaryto prevent or lessen a serious
and imminent threat to a personor the public, when such
disclosure is made to someonethey believe can prevent or
(31:26):
lessen the threat, including thetarget of the threat.
So this is interesting becausewe talked about one of the last
times that in certain situations, psychologists and mental
health professionals aremandated reporters and had to
disclose certain informationspecifically to government
authorities.
Right, that is not the case.
(31:47):
They have to just report it tosomeone that they believe can
prevent or lessen the threat,which in the marvel universe
could be somebody like avigilante, right?
So obviously at this pointheather does not know that matt
is daredevil, but if she didknow and believed that there was
a threat posed by Kingpin,especially if she feels that her
(32:10):
life is under threat orsomething like that, she may be
able to fall into that exception.
And then what I thought wasalso interesting is she's
invited to this ball and shedoes not have any objections to
going.
I obviously it's a time to dressup and it's fun, but there are,
under the New York,professional practice guidelines
(32:32):
, which is not necessarily aform of governing law, for
psychologists is like theAmerican Psychological
Association.
Psychologists are reallydiscouraged from socializing
right in non-clinical settingswith their patients, right,
there are certain exceptions,you know, if you, if the
(32:54):
psychologist lives in like arural area, right and they have
to go to the grocery store andthe grocer is also their client,
right, that's you can't kind ofget out of that, right.
But here I think a kind ofethics board may say yeah, you
may not go to the fundraisinggala of one of your clients,
where you know your client isgoing to be right and she really
(33:18):
has no other reason for going,except obviously Fisk is trying
to, you know, kind of do a kindof gamesmanship with Matt and
let Matt know that he's watchingher.
But there's really no clinicalpurpose for her to go to this
event or any other kind ofrelated reason for going to this
(33:40):
event.
And it really might impact andthat's really the key test if it
impacts her impartiality andability 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 withhypotheticals where it would be
OK, but this does seem to beskating into bad territory.
Your Honor, any thoughts?
Judge Matthew Sciarrino (34:14):
Yeah, no, I agree that.
You know it probably would havebeen the best course of action
to not go to such a thing whereboth of your clients are going
to be.
I found the conversation thatwas leading up to the receiving
of the invitation about DrGlenn's opinions of vigilantes
(34:34):
to be quite important, becauseI'm sure that's what's going to
lead to the downfall of thisrelationship.
But other than that, nothing toadd.
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 somereflection, getting away from
the incident, uh, but again,this is the world that half the
population died.
Then a bunch of heroes got halfthe population resurrected.
So, like, does she really feelthat way?
(35:17):
Uh, it seems to be ignoringwhat'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 seefrom all the various movies,
that there is a large segment ofthe population that is against
the superheroes and maybe that,you know, lessened after they
saved all those people thatdisappeared.
(35:44):
But position and probably won'tchange that position, even if
(36:08):
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.
(36:31):
But this then brings in uh, thequestion is daredevil born
again a sequel to spin city.
So because when you have thedeputy mayor of communications,
that was Michael J Fox and spincity, so I just it just made me
(36:52):
wonder.
It's like are they going there?
Like is this, is this the thing?
And but we have, we have somethoughts about one, Does the
mayor appoint deputy mayors?
And two, how does that actuallywork?
And Gabby, as our residentexpert for local government,
(37:12):
walk us through.
Gabby Martin (37:14):
Yes, first of all, I felt very vindicated to have
an appointed comms personactually mentioned, because it's
been very vague what all oftheir staff positions are in the
office, and that sometimeshappens when you're talking
about you know, especiallyappointed positions.
You serve multiple functionsand can have, you know, you
(37:36):
don't introduce yourself by yourtitle every time, but to get
here comms mentioned was reallyexciting.
And so Daniel is obviouslyappointed Deputy Mayor of
Communications or forCommunications, which is
actually from what I was lookingat.
I did a bit of a deep dive onNew York City government kind of
(37:57):
structure which, as the judgementioned earlier, new York City
functions quite differentlyfrom you know kind of more what
we would.
You know maybe smallermunicipalities, right, that most
folks might be more familiarwith.
Obviously, a lot of towns, alot of municipalities have city
councils, have a mayor, maybe atown manager, right.
(38:19):
But because New York City is solarge, the city council
functions almost like its ownform of like a legislative body,
right, because there are citycouncilors from all of the
boroughs and all of thedistricts within New York City
and so that is kind of the citycouncil.
It's not just a couple of folksor you know a smaller body,
(38:40):
it's quite a large body, andthen the mayor acts as a kind of
veto power, you know kind ofexecutive branch, in relation to
the city council.
And so what I could find onthis was all of these positions
were actually laid out inExecutive Order 45, which was
(39:01):
done under the current mayoraladministration back last year
and last September.
But under New York City Charter,chapter 1, section 7, the mayor
does have the authority toappoint deputy mayors, and it
doesn't specify which positionshe has to appoint or not appoint
, so he could theoreticallycreate kind of endless deputy
(39:23):
mayors.
And so the question becomesthough is the deputy mayor for
communications the rightfunction of what he wants Daniel
to do, which is to be his kindof voice with the city council?
And while the deputy mayor doeskind of advise with a
communication strategy overseasyou know things like the office
(39:46):
of the press secretary, officeof director of communications
manages liaison withcommunication positions and does
have the ability to perform anyfunction, power or duty of the
mayor in negotiating, executingand delivering any agreements
(40:06):
necessary to effectuate mattersreferred to in his job
description.
He can't actually represent themayor, unlike some of the other
deputy mayor positions, on anyboards, committees or
commissions of which the mayoris a member.
And the thing is and maybe thejudge can speak to this a little
bit more but typically in stategovernment you have a comms
(40:28):
section of whatever level ofgovernment it is, and then you
have a legislative or, in thiscase, the Office of
Intergovernmental Affairs, ofwhich there is a director of
intergovernmental and externalaffairs who handles that kind of
liaison role.
Right, and they work closelytogether.
But that person is moreexperienced in policy
(40:54):
development, in those sorts ofmatters developing policies,
advancing policies, negotiatingpolicies and other legislative
things and so that's really, Ithink, what Fisk wants him to do
.
It's not necessarily a commsstrategy thing.
So I think he appointed him tothe wrong position.
Gives him a title with moreweight, but I don't think he's
(41:17):
going to actually be able toachieve Fisk's aims with the
city council, unless he does oneheck of a social media campaign
.
Then he's got it all set forthis 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 abit of a role in this.
When you walk into the CityHall building, if you walk to
the left you're in the mayoralwing and his deputies have
offices and the mayor has theiroffice.
And if you walk to the right ofthe City Hall you're in the
(41:59):
council chamber and the counciloffices, the council chamber and
the council offices and in themiddle and the rotunda area you
have the speaker's office andthe minority leader and the
majority leader, and so there'sa lot of fluidity with the
deputy mayors and they changethe names of them every so often
(42:21):
, depending on the mayor andwhat he wants to do.
That's why it's done byexecutive order.
There's the first deputy mayor.
That's kind of statutory, andthat one is the one that takes
the if the mayor is away for anextended period.
The first deputy mayor has alot of the mayor's powers, but
the deputy mayors can be kind ofused a little bit differently
(42:43):
than their roles actuallysuggest.
So it would not have.
It did not surprise me that heappointed him the mayor, the
deputy mayor of communications.
That would kind of put him incharge of a lot of things that
he wouldn't necessarily bedealing with, if he's going to
just be dealing with the citycouncil.
That he wouldn't necessarily bedealing with if he's going to
(43:04):
just be dealing with the citycouncil.
But you know from previousexperience some of the deputy
mayors for communications, theirjobs not only was dealing with
the press but it was dealingwith some of those
intergovernmental issues, asthey did joint press releases
and other things, becausethere's a lot of behind the
(43:26):
scenes in that city hall workthat's being done before they
bring it out as to what they'regoing to be doing.
So it didn't surprise me allthat much.
I think that it's a bit of ajump for him to jump to a deputy
mayorship from being a lackeyduring the campaign and then
(43:47):
coming up and now being incharge of press secretaries and
speech writing, and I don't seethat happening.
So I think maybe there was just, you know, he wanted to give
him a title that was going torub some people the wrong way
and help him be in a positionwhere others would take him
(44:08):
seriously right away.
But you know, I think it wouldbe a kind of a fluid position as
to what he would actually bedoing.
Joshua Gilliland (44:19):
Sounds more than a press secretary, but yeah
, it's just different.
And I don't know if any of ourbig three cities in the Bay Area
have anything comparableBecause, again, san Francisco,
big, but confined, it can't grow.
San Jose is larger than Chicago, so that's probably the biggest
(44:44):
, oakland's substantial as well,and then we have all the other
cities in between that vary insize, and so Piedmont is tiny,
it's like our Luxembourg, and orAlameda is also small, but you
(45:19):
know you get Sunnyvale, mountainView, you know these capital
Silicon Valley towns that arehuge, so, like, a lot of people
live there.
So again it's.
But I've, that's a curiousquestion, so one I've not seen.
Moving on, uh, we do have somelaw, uh, office management,
ethical issues of when you havea client come in for an
interview and it's, uh, I'venever seen anyone be that
disrespectful with you know,feet on the desk and like on the
phone playing while talking.
(45:43):
I would not want to deal withthat personally and Matt kicks
into cross-examination mode ofthe client, which I think is
okay.
Like you know, you need to berespectful because if you can't
handle pressure from your ownlawyer asking you hard questions
, wait till you meet opposingcounsel in a deposition and
(46:03):
you're going to be tap dancingfor 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 berespectful, uh, but you they're
they're not everyone's um uh,the polite professional problem
solver.
There are those who swing upacts uh and depo uh and can hurt
(46:25):
your feelings, uh.
So ethical issues with this,because matt calls his client a
liar, you know embezzled fromteachers, defrauded them, did
bad things to teachers, andthey're stuck representing this
bozo who is entitled to a robustdefense.
(46:46):
Your Honor, did you take itaway?
Judge Matthew Sciarrino (46:53):
So yeah , the potential client or the
new client basically says thathe would have no problem taking
the stand and lying.
And this deals with the issueof can a lawyer knowingly put
someone on the stand who isgoing to lie?
And the answer to that is,ethically no, you can't do that.
(47:13):
A lawyer shall not knowinglymake a false statement of fact
or law to a tribunal or fail tocorrect a false statement or
material fact or law previouslymade to the tribunal by the
lawyer.
And this is rule 3.3 of ourethics code in New York.
It goes on to say that if alawyer, the lawyer's client or
(47:37):
witness called by the lawyer hasoffered material evidence and
the lawyer comes to know of itsfalsity, the lawyer shall take
reasonable remedial measures,including, if necessary,
disclosure to the tribunal,which is the court.
A lawyer may refuse to offerevidence other than the
(47:58):
testimony of a defendant in acriminal matter that the lawyer
reasonably believes is false.
And this does set up adifference between a civil case
and a criminal case.
In a civil case you would notbe permitted to have the lying
witness take the stand at all.
The lawyer would not be able toput them on the stand and offer
that false testimony, but thereis the interplay of a
(48:21):
defendant's right to testify ata criminal trial.
So there is a situation where adefendant who a lawyer knows is
going to lie would still haveto.
Do has developed over the yearsof lots of case law.
One of the better laid outcases is the case of People v
(48:51):
DePaulo D-E-P-A-L-L-O, whichwasa second department case in
New York that arose out of aStaten Island case and the
lawyer is kept out of thedecision to protect his identity
and happened to know this caseand the lawyer whose identity
(49:13):
was being protected and that wasa very, very, very ethical
attorney and he basically wentto the court to say listen, my
client wants to testify, he'sgoing to not tell the truth, and
the appeal was over whether ornot this lawyer was ineffective
in his counsel, and theappellate division said that he
(49:36):
was effective in his counsel.
And it boils down to this If alawyer is handling a criminal
case in New York and theyunderstand that they're dealing
with a client who intends toperjure themselves, the lawyer
has to tell the court, withouttelling any particular details
as to what is going to be lied.
(49:57):
What is a lie, what is the true, what is the true.
You then ask permission topresent the defendant's false
testimony using the narrativemethod and I'll get into that in
a second and then, when itcomes time for your closing
argument, you're not allowed torefer to your client's testimony
(50:18):
and the story that he gave.
You just ignore it like itnever happened.
And what the narrative methodis is most of us who are used to
seeing television examinationson TV, and really those of us
that are in a courtroom, most ofthe way that examination is
done is a question answer,question answer, question answer
(50:39):
.
And that's the way testimony isdone in the courts of this
country.
With a narrative method, youbasically you put your client on
the stand and you say whatwould you like to tell the jury
and he goes through his entirestory and you don't participate
it in any way.
And then, of course, theprosecutor could cross-examine
(51:01):
and have as much fun with thatcross-examination that they can
have, but you don't participatein that perjurious testimony.
And that's what.
If you know, I don't see Mattand his partner probably taking
this case, because if they knowthat their client is not someone
that's truthful, it's probablynot a good client to take.
(51:22):
Granted, the firm is in need ofsome money.
So you know his partner mighthave a different idea, but I
don't see them taking the case.
But if they were to take thecase, if it if it's a civil
embezzlement case, they wouldn'tbe allowed to partake in in
having this client take thestand at all if they know he's
being perjurious.
(51:42):
If it's a criminal case thathe's being charged with
embezzlement and he still wantedto take the stand, it would
have to be done through thisnarrative method.
Joshua Gilliland (51:52):
That's what I remember from law school being
civil practice.
I haven't had to encounter thisfor obvious reasons, but that's
what I remember as well indiscussing California's practice
of the narrative approach andnot to participate in committing
(52:20):
fraud upon the tribunal.
But also you have to let yourclient 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 youknow kind of confidentiality,
which you know is, I think, abit weird for non lawyers to
understand, which is you can'tjust walk up to the court and
say these are all the things myclient lied about, like this is
all the things that are wrong,which is what, like, your
(52:57):
instinct, moral instinct, right,is to just like say no, he's a
liar, this is what he's lyingabout, right, um, but you have
to kind of, as the judge said,you know, kind of share only
what is necessary, right, andnot the kind of narrative story
part of it, but just say youknow he's going to perjure
(53:19):
himself and whatever.
So I think that's always aninteresting thing that kind of
gets overlooked when we talkabout.
You know, the rules ofdisclosure to the court, right,
it's not a all or nothing, right, it leans on usually nothing.
Or you know what I alwaysremember for my ethics course in
(53:39):
law school was, you know youusually lean towards if there's
not a required disclosure to thecourt, it is recusing yourself,
right, so that you cannot be apart of it anymore, and so it's
kind of very different from kindof our normal moral rules, of
what we would think to disclosethe defendant anymore, because
(54:01):
then you're putting anotherlawyer in the exact same
position or, even worse, thatlawyer doesn't know that the
(54:25):
defendant's going to perjurethemselves and then they
knowingly participate in that orthey unknowingly participate in
that perjury.
Judge Matthew Sciarrino (54:34):
So in the case the court actually said
that.
You know, recusal is not theanswer to this kind of situation
.
He kind of has to stick withhis client and you know the
narrative method is the best wayto 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 givethe cross-examination of a
lifetime.
And so you, if you want theperry mason moments for
impeachment, there you go and itcan open the door in all kinds
of fun and exciting ways uh, forwhether it's character evidence
(55:14):
and just being able to rip theguy a new one for, oh, oh, you
claim you have a reputation forbeing honest.
Well, you know, and startrolling out the forge checks or
whatever the issue is.
So that could be, again, goodTV moments.
But the, the perspective client, did straighten up, like when
(55:38):
Matt switched to you knowcross-examine mode, like the
feet came off the table and he,he presented Okay, but the you
can't put a perjurer up.
Just, it's one thing to be wrongit, you know, it's like I made
a mistake.
That's one situation and betterto have.
(55:58):
I was confused with what youwere talking about, or, but it's
another thing to go.
Yeah, he's just going to get upthere and lie.
Um, yeah, it's being wrong, ismistaken, and I I think the best
way for lay people tounderstand that kind of cross
examination is well, we'll savethat for another time.
(56:24):
But there there are examplesfrom pop culture that can be fun
for another example.
So, gabby, are you about to saysomething?
Gabby Martin (56:37):
No, I was going to say I think, you know, thinking
of it afterwards of the episodeis is we continually see Matt
getting continually frustratedwith the kind of defense system,
Right, and you know, he evensays, you know they, they
babysit chaos, right, they'renot actually doing anything,
which is, you know, I think theinteresting line where you know
(57:00):
he had initially kind ofcompletely given up his
vigilantism to handle thingsthrough the courts, right, to
see how the courts handle things, and he's not really getting
anywhere, you know, especiallyas demonstrated by the case with
the theft of the caramel corn,right.
And I think all of this, andeven the kind of ending which I
(57:22):
know we'll talk about in asecond, is setting him up for
that kind of plot line thatwe've talked about of him
getting kind of switching sidesright In terms of his lawyer
capacity, sides right in termsof his lawyer, uh, capacity.
So I just think that's all kindof where that may be leading up
to is for him to go on on theopposite side, um, and go into
(57:44):
the kind of prosecutor side yeah, and it's the setup for the end
, because I mean like, let's getthere.
Joshua Gilliland (57:51):
If you take a bullet for the mayor, there's
going to be some politicalcapital there for the mayor.
There's going to be somepolitical capital there.
Also, I think the kingpin willdig it, because you took a
bullet for me, like he.
He, while he has decapitatedpeople, when he's done all kinds
of horrible things, there's astrong loyalty factor with him,
(58:12):
and taking a bullet's probablyone of those.
Okay, oh, my wife had your bestfriend killed.
I could see him being upset andI can see that playing into
(58:40):
Matt getting appointed DA orwinning an election to be DA.
So there's a lot there, butthere's other things.
Either of you want to jump inon that?
Judge Matthew Sciarrino (58:52):
Yeah, I agree that it's clear that he
was going to give the system itschance to do the right thing
and everywhere out with theirfaces drawn, because they know
that they've been beat plan, youknow, and his task force is
using any and all meansnecessary in order to make sure
(59:13):
that people follow what themayor wants with regards to his
(59:52):
Red Hook rebuilding project andand um, so you know it really, I
think, because matt is hearingall of these conversations what
is, what is his super hearing?
And, uh, he, he could see inhis face you know that.
Gabby Martin (01:00:17):
You know it's another with.
That is what I foundinteresting of those closed-door
meetings and I know we havethis with the black and white
ball notes, but you know youclearly see swordsmen come in.
And it was a contrast and towhat the judge is saying.
It's a contrast to what youknow had been discussed in the
(01:00:38):
mayor's office, right, that theACLU, which is cool, that the
ACLU exists in the MarvelUniverse canon, like I hope I
have not checked out theirsocial, but I hope they
capitalize on that that theyexist canonically within the
Marvel Universe.
So kudos to.
I know a lot of great peopleover at the ACLU.
Joshua Gilliland (01:01:02):
So kudos to I know a lot of great people over
at the ACLU, kudos to them thatthey are, you know, doing the
good work, even in the MarvelCinematic Universe.
Gabby Martin (01:01:05):
The fictional good work, yes, the fictional.
You know I don't know how manypeople are vigilantes in New
York City, but you knowvigilantism is down by 30%,
which that could be two people,it could be four people, I think
they mentioned like 15 lawsuits.
(01:01:26):
So clearly that's you know, atleast 15 people that have had
their rights violated, or thatcould be people that were like
roughed up by the police right,Suspected of being vigilantes.
But what you see with swordsmenis that clearly this task force
is not equitably enforcingtheir mission, right, Because if
(01:01:49):
they were, it is clearly known,at least by Fisk, who Jack
Duquesne is right, and so theycould have picked him up, but
he's using that as leverage forpolitical kind of capital for
this Red Hook project.
So I really do find that kindof another fascinating tidbit
there.
Joshua Gilliland (01:02:11):
So Jack, getting the shakedown to match
public funds or put in privatefunds and then match public?
Um, anyway, he's going to becontributing to a private or to
a public project in order tokeep his.
Whatever vigilanteism he'sdoing has has a secret, but it's
like it's good to see katerubbed off on him.
(01:02:33):
That, uh, that the almoststepdaughter uh doing her
hawkeye life.
Um, you know he did wear asword to the christmas party.
So after being you knowreleased, uh, on a you know
charges of killing a man with asword.
So good for him, good for him,uh.
(01:02:56):
But the again shakedown.
We also see the task forcestart getting into full-on
gestapo kgb type tactics andignoring the police,
commissioner.
Like they burn a guy's hand,member of the press, and well,
sure, it might be a no phonesevent because they don't want
(01:03:16):
pictures, okay, and that doesn'tgive you the license to start
torturing people and just tomake a point and then to tell
the guy in charge go pay on sand, uh, so there's issues there.
Gabby Martin (01:03:36):
Which, to answer his metaphorical question, both
of those were assault.
He did not need to put theguy's hand in oil for it to be
assault.
It was assault from the jump.
So the police commissioner wasright it was assault and battery
.
The officer Powell was notcorrect.
It had been assault and battery, um and undue force yeah, go
(01:03:59):
ahead, follow the complaint.
Joshua Gilliland (01:04:00):
Still, I'm like knock the butthead down.
A point also you just assaulteda member of the press.
Don't pick fights with peoplewho buy ink by the barrel, and
especially now there's evidenceof the guy's maimed hand.
Okay, go for it, fight thefight.
So yeah, just very evil.
(01:04:22):
Either of you want to commenton Bebe?
We actually learned that she'snot a puppet and she has way
more tenacity in line with heruncle.
Judge Matthew Sciarrino (01:04:35):
Yeah, and it's going to be interesting
to see what her and thecommissioner, working together,
are able to accomplish.
Gabby Martin (01:04:42):
Yeah, and I think it is interesting though again,
this was an episode that we didnot see her BB report.
So she has I know she says thatshe has she publishes,
obviously under a different name, somewhere else.
We still don't know where thatis.
How is you know what form thatis?
Um, but clearly her bb reporthas been silenced because these
(01:05:05):
are the two episodes that thatdon't have that um.
So obviously that could be justa time issue, but I think you
know, considering how it wassqueezed in in the previous
episodes, I think that waspurposely um done to show that
she had been at least that partof her um journalistic voice had
been had been silenced yeah,but she's playing the long game.
Joshua Gilliland (01:05:26):
She goes to the party with the newly
appointed deputy mayor and Imean she's playing him.
So I I don't.
Uh, she has a good ground gameand though I like the fact she
knows that the kingpin was thelead suspect in her uncle's
death, so, uh, good for her.
(01:05:48):
I I remember the swordsmanbeing different in the comics.
I want to say it was Hawkeye'sfirst pseudonym or you know
costume that he wore.
I might be completely wrong onmy old Avengers history so I do
(01:06:11):
need to look that up, but Iremember the swordsman being
different, so they might just berecycling the name.
But again, it's been a coupledecades since I've read those
books.
And raises the question howmany vigilantes are running
around.
So anything else for the goodof the order tonight by the
(01:06:33):
sheer number of Marvel comicsthat exist.
There's a lot of vigilantes anddifferent levels of yes, yes, of
what they do.
And sure, a lot of stories werebased in new york, because
that's where the writers werelike it's what they knew, um,
before people started branchingout.
For let's do a story in chicagoor san francisco or la.
(01:06:58):
Now I remember it's like thechampions were based in la, um,
so going way back, so again they, and then were the west coast
avengers.
Uh, so which hawkeye was theleader?
I think for most of that.
So, again, different, differentruns, different eras, where
they do branch out.
So not everything is takingplace in Manhattan.
(01:07:21):
So, but with that, thank youall for tuning in.
We have Easter coming up, alsoa Star Wars celebration for
those who are going to Tokyo, sothe last episode will come out
while some of us are in Tokyo,and then there's Easter.
So we won't record on EasterAgain, happy to have everybody
(01:07:42):
over sometime, but not for that.
And so we'll record after theholiday and after our trip.
But everybody, wherever you are, stay safe, stay healthy and
stay geeky, take care now.
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If you've ever wanted to know about champagne, satanism, the Stonewall Uprising, chaos theory, LSD, El Nino, true crime and Rosa Parks, then look no further. Josh and Chuck have you covered.
Dateline NBC
Current and classic episodes, featuring compelling true-crime mysteries, powerful documentaries and in-depth investigations. Follow now to get the latest episodes of Dateline NBC completely free, or subscribe to Dateline Premium for ad-free listening and exclusive bonus content: DatelinePremium.com
Las Culturistas with Matt Rogers and Bowen Yang
Ding dong! Join your culture consultants, Matt Rogers and Bowen Yang, on an unforgettable journey into the beating heart of CULTURE. Alongside sizzling special guests, they GET INTO the hottest pop-culture moments of the day and the formative cultural experiences that turned them into Culturistas. Produced by the Big Money Players Network and iHeartRadio.