I spent over four years as an Active Duty Judge Advocate with the United States Air Force prior to transitioning into civil practice.  As with most JAGs, A Few Good Men holds a special place in my heart.  On the whole, the movie is fairly accurate  from a JAG perspective but it does go astray on a couple big-ticket items.

Let’s start with the accuracies.  I suspect that they hired a former JAG as a consultant to assist them in the script.  They get a lot of the little things right.  For instance:

—     Demi Moore’s character calls for an “802 conference” after she strenuously objects to admission of expert testimony (for a second time).  That’s military lawyer speak for a conference with the judge outside the presence of the jurors.

—     They get the two accused Marines to trial very quickly.  Although I don’t think the movie ever gives an actual time line, it seems like just a few months from the crime to the trial.  That type of speed is actually something upon which the Military Justice Systems places a premium.  In fact, when a Military Member is placed in pre-trial confinement, Rule 707 of the Rules for Courts Martial requires that person be brought to trial within 120 days.

—     The tension between Cruise’s laid-back character, Lt. Kaffee, and the two Marines on trial.  JAGs are military officers and expected to act that way, if for no other reason than to retain the respect of other military members.  In real life, if a JAG acted as aloof as Lt Kaffee, he’d get an earful from many different angles.

—     The Marine Military judge is not wearing a traditional robe during the trial. That’s actually correct for a Marine.  Marine and Navy judges don’t don the robe (although Air Force and Army judges do).

So what did they get wrong? First, you know how Tom Cruise’s character, Lt. Kaffee, is portrayed as a wet behind the ears defense attorney who’s never seen the inside of a courtroom? Well, in real life, the military would never appoint a person with no trial experience to be a defense counsel.  Nearly all defense counsel in the Military start out in the prosecutor’s office for a couple of years where they earn plenty of trial experience.  A JAG usually is only considered for a defense counsel position after he has gotten a number of trials under his or her belt.  The rationale is that the military wants to make sure that if any mistakes are being made (and hopefully they aren’t), those mistakes don’t end up putting an innocent person in jail.  Moreover, Lt. Kaffee certainly wouldn’t have been lead counsel.  In the serious criminal cases, there is a Senior Defense Counsel appointed to take the lead, and the younger defense counsel sits second chair.

Second, speaking of inexperience, do you remember when Lt. Kaffee alludes to his suspicion that his superiors put him on the case because military higher-ups didn’t want the case going to trial?  Well, in real life, defense counsel fall under a separate chain of command that runs straight up to the 3-Star General in charge of the JAG Corps.  Non-JAG military officers have no authority to directly influence defense counsel.  The Military recognizes that defense counsel need to be free from undue influence and the perception of undue influence.

Finally, although the two accused Marines have the main charges against them dismissed, they are still found guilty of “Conduct Unbecoming A Marine” and are discharged from the military.  The only problem? No such crime exists under the Uniform Code of Military Justice (UCMJ).  Article 133 of the UCMJ makes “conduct unbecoming an officer” a crime.  But the two accused Marines were enlisted, rather than officers, and couldn’t have been convicted under Article 133.  Whoops.

In spite of these few in accuracies, the movie is still near and dear to me.   Who doesn’t appreciate a movie that makes a mostly boring career exciting?  I’m sure mall cops feel the same way about Paul Blart: Mall Cop.

As a part of our coverage of the twentieth anniversary of the release of A Few Good Men, we must dedicate one post to the film’s classic, and most memorable, scene. As you no doubt recall, Jack Nicholson’s character, Col. Nathan Jessup, furiously shouts, “You can’t handle the truth!”  It’s the film’s most famous line from its most famous scene.  Nearly everyone, lawyers and non-lawyers alike, know the line.  Tom Cruise’s character, Lt. Daniel Kaffee, masterfully extracts that statement and subsequent admission of guilt from Col. Jessup.  Or did he?  Actually, from a trial advocacy perspective, Kaffee’s gambit is a terrible bit of strategic lawyering.

By way of refresher, the scene arrives during the end of the trial.  Kaffee’s two Marine defendants are on trial for the death of a fellow Marine, who died after they stuffed a rag down his throat as a part of a “code red” hazing.  However, the Marine defendants claim that they were just following orders from their superiors.  As the trial progresses, things are not looking good for Kaffee and his clients.  So Kaffee decides to go for the home run and calls Col Jessup to the stand.  The goal: goad Jessup into admitting that he ordered the code red.

When Kaffee calls Jessup to the stand, he’s armed with little ammunition.  It’s a hail mary gambit.  The witness is full bird colonel, a position which is as credible as they come to a court-martial jury.  There are no prior statements of Jessup that he ordered a “code red,” s no potential impeachment material.  There’s little, if any, extrinsic evidence casting doubt on Jessup’s testimony.  So, what was Kaffee’s brilliant plan?  To call him a liar and scream “I want the truth?”

Seriously, that was his plan.

Would such an approach ever work in an actual courtroom? Imagine this:

Defendant’s Attorney: Ms. Smith, isn’t it true that my client was traveling only 1 mile per hour when his vehicle struck you, you told him afterwards that you were fine, you had no injuries, and your new complaints of injury are completely fabricated?

Witness:  No, that’s not true.

Defendant’s Attorney:  I want the truth!

Witness:  I’ve already told the truth.  Your client slammed into me, and I’ve had serious back pain ever since.

Defendant’s Attorney:  I want the truth!

Plaintiff’s Attorney: Objection asked and answered.

Judge:  Sustained. Move along, counselor.

If it wouldn’t work on your classic fender bender Plaintiff, we doubt it would work on an experienced field grade military officer.  Quite frankly, Kaffee’s strategy is pretty dumb.  But hey, it’s Hollywood, and it made for some great cinematic drama.

Twenty years ago tomorrow, on December 11, 1992, the popular legal drama A Few Good Men saw its release in theaters. Written by Aaron Sorkin (and based on his play), and directed by Rob Reiner, the film has become ingrained in our culture, spawning memorable lines (“You can’t handle the truth”) and scenes (“How did you know where the mess hall was if it’s not in this book?”).  Further, the film assembled a host of Hollywood megastars (Tom Cruise, Jack Nicholson, and Demi Moore), all of whom were super popular at the time. As a courtroom film, it has a special place in the hearts and minds of lawyers. We here at Abnormal Use have always been fans of this movie, so we decided to commemorate its twentieth anniversary with a full week’s worth of coverage.  As you may recall, in March, we did something very similar with My Cousin Vinny to celebrate its twentieth anniversary.  So, for this film, we’ve also gone all out. This week, we’ll be posting  our own thoughts and memories of the film, an interview with one of the actors, and other related content.

We are excited about this project and offer the following preview of what to expect this week:

Tuesday, December 11

“Can You Handle The Truth?” – Our writer Rob Green analyzes the most famous scene in the film and wonders if Tom Cruise’s character actually employed good legal strategy.

Wednesday, December 12

“A Few Good Men: A Former JAG Officer’s Perspective” – A former JAG officer, Rob Green takes a look at the film to determine how accurately it depicted the military justice system.  Spoiler alert: He finds that the filmmakers got some things right, and some things wrong.

Thursday, December 13

“Abnormal Interviews: Actor James Marshall” – We were fortunate enough to score an interview with James Marshall, the actor who played Pfc. Louden Downey, one of the defendants on trial.  Marshall shares his memories of the filming experience and working with Tom Cruise, Demi Moore, and of course, Jack Nicholson.

Friday, December 14

“Friday Links: A Few Good Men Edition” – We’ve cobbled together some interesting links to commentary on the film and its place in history.

We hope you enjoy our anniversary celebration. As the days proceed, we will activate the links to this content above.

Today is an anniversary of sorts.  Two years ago today, on December 6, 2010, we published what was to be a ground breaking, at least for us, interview with the actor who played one of pop culture’s most flamboyant attorneys, Jackie Chiles, the television lawyer from “Seinfeld.”  The character, now infamous, was played by actor Phil Morris.

That, we think, is the moment where we learned we loved this blogging thing.  It’s also the moment we realized that the sky is the limit with respect to blog posts.

Think about it: In this day of Internet blogging and journalism, every citizen is a pamphleteer.  Everyone can be a journalist.  So, why not seek interviews like journalists do?

Back in 2010, we had that thought, and so, we spent weeks and weeks and months and months communicating with the agent and publicist for Mr. Morris.

Our persistence paid off, and we were granted the interview.  After that success, we were emboldened, ultimately seeking and securing interviews with the director, writer, and several casts memnbers of My Cousin Vinny.  But it all goes back to Phil Morris and Jackie Chiles.

So, today, we share with you our favorite part of that interview.  Of course we asked Mr. Morris about the Stella Liebeck McDonald’s hot coffee case:

ABNORMAL USE: . . .  [aO]e of the story lines from “Seinfeld” was, I guess, Kramer’s burns from the hot coffee. Do you have any feeling about that? What about people filing these lawsuits for burning themselves on hot coffee?

MORRIS: Well, we’re so litigious in this society, too much. It’s way beyond the pale. So that’s where I kinda jump off from Jackie. I certainly wouldn’t put stock in a lot of that stuff. I think, it’s just, we’ve gotten away with way too much here in the United States in terms of the legal ramifications of everything. I think, again like I said, beyond the pale. Jackie is an opportunist. So anything like that is manna for him. But personally, I think we’re really hurting ourselves and shooting ourselves in the foot. Not only are we giving our legal system a bad name, but we’re abusing it! We’re misusing those bits of legal power that we have – we’re fortunate enough to have in this country. It kind of drives me crazy.

You can revisit the full interview here.

Ever watch a horror film and think about all the potential tort claims? Think of all the car manufacturers who could be sued because their vehicles failed to start when needed the most. Certainly, those under-staffed hospitals in the Halloween movies breached a duty of care. And, what about premises liability claims for all those slip and falls suffered while fleeing the killer?

Just imagine the possibilities!

As we here at Abnormal Use like to believe, horror films are a microcosm of real life. Take this new suit in Illinois as an example. According to CBS Chicago, the father of a girl who tripped while being chased by a Halloween character has sued Six Flags. Last October, the girl visited Six Flags Great America for the Halloween-themed “Fright Fest.” While walking through the park, a “character” jumped out of a port-a-potty and chased the girl, squirting her with a water gun. As is always the case when fleeing a villain, the girl tripped and fell, suffering some scrapes on her arms and legs. The girl’s father is now seeking $30,000 in damages on her behalf. The suit alleges the park was negligent in encouraging employees to frighten and chase patrons despite the presence of tripping hazards. The report, however, does not indicate what tripping “hazard” caused the girl to fall. Based on knowledge of horror films, we assume that fleeing from a predator creates new tripping hazards.

Even though the facts in the report are sparse, Six Flags’ liability in this case is questionable. While we do not know the age of the girl, by attending an event known as “Fright Fest,” she should have assumed the risk of being confronted by a “Halloween character.” Admittedly, jumping out of a port-a-potty is a little sketchy, but that fact alone shoudn’t render the park negligent. Unfortunately, we do not know how the character pursued the girl. Chasing her violently and physically pushing her to the ground is one thing. Pursuing her at a Jason Voorhees-like pace is another.

Sure, all is fun until someone gets hurt. But, do we want to water down haunted houses and Halloween experiences over the fear of some scrapes and bruises?

At least movie directors don’t have these same constraints.

When I saw the above referenced headline on CNN’s Tech website, I had two, nearly simultaneous, reactions.  First, I had to re-read the headline.  A jury in Caifornia just awarded Apple a BILLION dollars?  With a “b”?  Yes, kids, that’s “billion.”  With a “b.”  My next, less professional, reaction was to cite a string of my favorite quotes from the movie Austin Powers.  Oh, that Dr. Evil! (We’ll wait for you here while you go watch the movie clip for yourself.).

We have been tracking the Apple-Samsung worldwide feud for months now; last November, we blogged about Apple’s victory in Australia in the so-called “tablet wars” – a federal court in Australia granted Apple an injunction against Samsung, preventing Samsung from selling its tablet device “Galaxy Tab 10.1″ in Australia.  Apple alleged that Samsung infringed on “two of its patents relating to touch screens and the gestures that control them.”  Samsung faced similar troubles here in the United States.

This recent verdict was awarded in California federal court over the companies’ respective smartphones – Apple’s iPhone and Samsung’s Galaxy.  The jury determined that Samsung was guilty of “willful” violations of Apple’s patents.  It started out even bigger, but was reduced by $2.5 million when some inconsistencies surfaced in the jury’s award.  Apple had put an even bigger number “up on the board,” so to speak – $2.7 billion.  I am sure that the lawyer writing that closing had to say that figure, out loud, many times to keep it from absolutely catching in his or her throat.  Could you imagine asking a jury for that amount?  With a straight face?  But, I digress.

It is not surpristing that this award represents the largest patent infringement verdict in history.  Still to be decided is the issue of injunctions, and whether Samsung will be able to continue to sell its phone in the United States.  We’ll be watching for that decision, for sure.  In the meantime, we leave you with the quote that partially inspired this post:

Number Two: Don’t you think we should ask for *more* than a million dollars? A million dollars isn’t exactly a lot of money these days. Virtucon alone makes over 9 billion dollars a year!

Dr. Evil: Really? That’s a lot of money.

[pause]

Dr. Evil: Okay then, we hold the world ransom for… One… Hundred… BILLION DOLLARS!

For years, I have watched others obsess over their fantasy teams – fantasy football, fantasy baseball, fantasy soccer – on and on and on.  I don’t really understand the draw – making up fake teams cobbled together with players from real teams, and then “playing” these fake teams against other fake teams to see whose fake team is the best.  A strange pastime, if you ask me, and one that requires time and effort I simply don’t have.

At least for me, it’s hard to get into something that doesn’t have any application or consequences in the real world, unless you have some money riding on it.

That said, I have discovered a fantasy league I can get excited about.  Wait for it . . . .

There is a fantasy SCOTUS league!  FantastySCOTUS is an online fantasy league created by Josh Blackman, head of the Harlan Institute. It involves enthusiasts of constitutional law predicting how each member of the United States Supreme Court will rule on any given case. In its second season, over 5,000 players have registered with the website. A high school version has been created to help improve education in constitutional law. The Harlan Institute is a nonprofit organization with the mission to “bring a stylized law school experience into the high school classroom to ensure that our next generation of leaders has a proper understanding of our most fundamental laws.”  FantasySCOTUS is one of the tools that the institute uses to educate and engage high schoolers on SCOTUS.

How does the league work?  Members earn points by correctly predicting how each justice will rule on any given case:

A Justice can either vote to AFFIRM, REVERSE the lower court, or RECUSE from the case and not cast a vote. Users can make predictions at any point before the case is decided, though predictions will be disabled on all days the Supreme Court announces that opinions will be released.

Any law student, however, can tell you that sometimes a justice will vote to affirm in part and reverse in part; in those situations, FantasySCOTUS decides whether the vote was more of an “affirm” or “reverse” vote, and award points accordingly.  And, as one would expect from such a league as this, there is a way to appeal the scoring of a particular case, using the “clearly erroneous” standard.  Challenges to the rules themselves are reviewed using the “abuse of discretion” standard.  Changes are made via blog, and players are charged with constructive notice of such changes.

Sports fans often wear the jerseys of their favorite team or player when they watch sports and update their fantasy teams.  I wonder if FantasySCOTUS will start selling Scalia or Sotomayor robes for the sake of authenticity.

Shazam!  The folks at Abnormal Use are saddened to learn of the death of the great Andy Griffith, who played Sheriff Andy Taylor on the famed “The Andy Griffith Show,” on which he starred from 1960 to 1968. In addition to that role, Griffith starred in director Elia Kazan’s film, A Face in the Crowd (1957), and was nominated for a Tony award for his Broadway performance in “No Time for Sergeants.”  Griffith played the lead character in “Matlock,” a legal drama which aired on television from 1986 to 1995.  He graduated from the University of North Carolina at Chapel Hill with a bachelor of music degree in 1949.  In addition to his career as an actor, he was a Grammy Award-winning singer.  After Griffith left The Andy Griffith Show in 1968, he starred in many television films, playing the villain in “Murder in Coweta County.”  He also appeared as an attorney in the NBC mini-series “Fatal Vision” in 1984.  Many will also recall his comedy routine, “What It Was Was Football”.

In tribute to Griffith, we have prepared this obituary for Sheriff Taylor, his most famous character.

Sheriff Andy Taylor was a resident of Mayberry, North Carolina.  During his years as Sheriff of Mayberry, he was a widower and father to Opie Taylor, his son by his first wife.  He later had another son, Andrew Jackson Taylor, Jr., after he married Helen Crump.  Andy’s Aunt Bee was his housekeeper and helped raise Opie.  Andy enjoyed using his favorite fishing pole, “Eagle Eye Annie”, and even used the pole to barter with Mayor Roy Stoner to obtain a beautiful bed jacket for Aunt Bee’s birthday.  After dating for several years, Andy eventually married school teacher, Helen Crump.  Opie had previously referred to her as “Old Lady Crump” when she forced Opie and some of his school friends to memorize historical dates.  As a result, Opie and his friends formed a local club, The Mayberry Minutemen.  Andy later left Mayberry and was an agent for the State Bureau of Investigation.  He then retired as a postal inspector in Cleveland before returning to Mayberry.

Before marrying Miss Crump, Andy had several other girlfriends, including Ellie Walker, the “Lady Druggist”.  He also dated several nurses, including Mary Simpson and Peggy McMillan.  Helen was his true love and they shared many double dates with loyal deputy, Barney Fife, and his girlfriend, Thelma Lou.  They enjoyed picnics at Myers Lake and parking at the duck pond.  Mayberry residents still talk about the time Barney helped “rescue” Andy and Helen when they got trapped in the cave.

In addition to serving as Sheriff, Andy was also the Justice of the Peace.  Barney was his only deputy, unless Barney deputized some temporary help, including town drunk Otis Campbell, mechanic Gomer Pyle, and barber Floyd Lawson.  Andy also performed marriage ceremonies, including Charlene Darling and Dud Wash.  Before doing so, he had to deal with Ernest T. Bass and his rock-throwing tendencies.  After Barney took a job in Raleigh, Andy trained a new deputy, Warren Ferguson.

Sheriff Taylor usually did not wear a gun, although Barney always had his pistol and one bullet in his pocket.  When Barney bought a car from Mrs. “Hubcabs” Lesh, Andy helped Barney capture the scam artists who sold him the car.  It was one of the rare occasions Andy authorized Barney to actually put the bullet in his gun.

In addition to monitoring Barney’s attempts to arrest jaywalkers (especially Emma Watson), Andy’s law enforcement duties included chasing down the local moonshiners.  These included Rafe Hollister, who was discovered to have a talent for singing.  Barney helped Andy nab the Morrison sisters, who were making moonshine in their greenhouse.

Andy enjoyed playing his guitar and singing with Barney, or other local characters, including Jim Lindsey, who later played with Bobby Fleet and His Band with a Beat.  Andy also played the guitar with the Darling family when they came to town.  He liked playing checkers and hanging out at Floyd’s Barbershop.  He had a good relationship with local businessmen, including Emmett Clark (Emmett’s Fix-It-Shop), Orville Hendricks (undertaker and television repair), Charlie Foley (grocery store), and Wally, down at Wally’s Filling Station.

Andy was known throughout the community for his honesty and integrity, and for his good heart.  Andy allowed bootlegger Sam Muggins to celebrate Christmas in the jail over the objection of Ben Weaver.  He ate Aunt Bee’s homemade pickles even though they tasted like kerosene.  He helped a Mayberry resident prove that his bad luck was not a jinx.  When struggling door-to-door salesman, Bert Miller, was complaining of his sore shoulder, tired feet and the sound of ringing doorbells, Andy helped him stay in business against the strong-armed tactics of Ben Weaver.  Certainly, his kind treatment of Otis Campbell deserves special recognition.

The town of Mayberry and the State of North Carolina mourn the loss of one of its finest citizens.

“When a man carries a gun all the time, the respect he thinks he’s getting might really be fear.  So I don’t carry a gun because I don’t want the people of Mayberry to fear a gun. I’d rather they respect me.”

(Stuart Mauney previously memorialized actor George Lindsey, who played Goober Pyle on “The Andy Griffith Show,” on the occasion of his death earlier this year.).

Today, Abnormal Use continues its series, “Abnormal Interviews,” in which this site will conduct interviews with law professors, practitioners and makers of legal themed popular culture. For the latest installment, we turn to Charles Brownstein, Executive Director of the Comic Book Legal Defense Fund, which bills itself as “a non-profit organization dedicated to the protection of the First Amendment rights of the comics art form and its community of retailers, creators, publishers, librarians, and readers.” In so doing, it “provides legal referrals, representation, advice, assistance, and education in furtherance of these goals.”  Sounds like the perfect candidate for an interview by comic-loving legal bloggers, right? Brownstein was kind enough to submit to a brief interview about the Fund and, of course, legal comics. So, without further ado, the interview is as follows:

Nick Farr: Can you begin by telling our readers a little bit about the Comic Book Legal Defense Fund?

Charles Brownstein: Sure. The Comic Book Legal Defense Fund was established in 1986 to protect the First Amendment rights of the comic book art forum.  Ever since then, we’ve participated in dozens of cases providing legal support and paying for legal bills pertaining to cases involving retailers, artists and increasingly readers who are being criminally prosecuted in connection with exercising their First Amendment rights.

NF:  How does the Fund decide what cases to take?

CB:  The way our case selection process works is that people come to us with an aid need, and we present that need to our Board of Directors, who then will vote on the case, whether we can take it or not. The guiding principle is always whether the material – whether the case at issue is a First Amendment-based case where the comic is either being prosecuted as a result of sale or prosecuted as a result of being read or created are protected and that this is a case where the First Amendment is being violated.

NF: What percentage of the cases are criminal versus civil?

CB:  I don’t have an exact percent breakdown, but the majority of our work is criminal oriented.  We have done some civil defense from time to time in incidents where an artist might be civilly prosecuted by an organization that is alleging that their parody work is infringement or dilution of their rights, but those cases are fairly rare.  The majority of the work that we get and the majority of the work that’s coming in frankly tends to be criminal in nature.

NF:  Can you tell us about some of the successes of the Fund?

CB:  Absolutely.  Most recently, the Fund was leading a coalition to defend an American citizen who was being unlawfully prosecuted in Canada. When I say unlawfully, there were excesses in the arrest, and he was being prosecuted under the allegation of possession of obscene child pornography for possession of constitutionally protected comics.  And thanks to our efforts in developing a very strong defense, Canada dropped the charges against this American citizen.  That case is R. v. Matheson.  The defendant, Mr. Ryan Matheson, is a comic reader from Minnesota. This is part of a growing generation of cases involving governments in Canada and the United States prosecuting individuals for the contents of the comics that they’re reading. As we speak, there’s a case that is pending here in the states that I can’t really speak in detail about involving an American citizen prosecuted by our law enforcement here.  So that is a very concerning area because we’re seeing these laws that are designed to protect real people being misapplied to the consumers of constitutionally protected art work.  Other successes of the Fund we’ve managed over our history are a variety of cases where we’ve successfully defended retailers who were being prosecuted by local law enforcement for selling constitutionally protected material and the most recent of those is Georgia v. Gordon Lee, which was a case in Rome, Georgia, where a retailer was wrongly prosecuted for allegedly distributing harmful materials to minors.  It took three years and several shenanigans on behalf of the prosecutor where they threw out the facts and then refilled the facts and changed their story several times, but at the end of it we were able to successfully defend Mr. Lee who had not performed the crime that they accused him of. Most importantly, we were able to make sure that constitutionally protected material didn’t suffer a setback in court.

NF:  What are some of the most egregious cases that you’ve seen through the years?

CB:  Probably the – the most disconcerting case is one that happened pretty early in the Fund’s development which was Florida v. Mike Diana.  This is a case involving a comic book artist in Florida who was ultimately prohibited from drawing in his own home.  Mike Diana was a cartoonist that was creating comics for distribution through local stores and through the mail back in the time when there were networks of underground trading going on. He was first pulled aside by local law enforcement that found his physical description matched a suspect they were looking for in a murder investigation. When they realized that he was not the person they were looking for but had looked through his comics and were disturbed by them, they created a sting operation where one of the police officers engaged in a correspondence with Mike and ultimately purchased his comics through the mail.  In doing so, that gave them the warrant to arrest him and he was prosecuted for creation and distribution of obscene material.  Now, Mike’s comics are from a tradition of underground comics that were speaking of – speaking satirically in a kind of outsider art visual idiom about some of the more egregious social issues of the day.  So his comics were black satire about religion and about sexual abuse and about many of the evils that were plaguing society, and he was applying an underground cartoonist editorial point of view to it. Unfortunately, in his case being brought before a jury in Florida, the jury just did not find that there was artistic merit and Mike was ultimately convicted. Despite the efforts of the Comic Book Legal Defense Fund and the efforts of the ACLU on the appeal, that conviction was upheld.  And so, yes, most egregiously an American citizen was told that they were unable to draw in their own home.

NF:  Once you get word of a case, do you work with local counsel or does the Fund handle the representation?

CB:   The CBLDF has – our outside general counsel is Bob Corn Revere of Davis, Wright, Tremaine who’s an extremely experienced First Amendment litigator and who manages the case work that comes in.  By that we mean that Bob will identify the case, make recommendations for the Board and then if we take the case, we’ll locate local counsel that is best equipped to wage the case.  And then we work in a very hands-on capacity with that counsel, supervising how the work’s being done and providing them with access to our network of experts to manage the case.

NF:  At Abnormal Use, we write a good deal about the depictions of lawyers and the legal system in comics.  Do you have a personal favorite depiction of lawyers or the legal system in a comic?

CB:   It’ll take a minute to think about.  I hadn’t anticipated that. Batton Lash at Wolff and Byrd, Counselors of the Macabre is always an amusing look at lawyers and an amusing look at a variety of classic comics genres. I think that’s supernaturallaw.com is his website.  And it’s hard to argue with Matt Murdock, right?

NF:   Do you have any opinions on the most egregious depiction of lawyers in comics?

CB:   You know, lawyers are kinda set dressing in comics.  There really has never been a good literary or thriller depiction of lawyers or law, really.  We’re really good at depicting fantasies about law enforcement, but we’re not so good about the other side of the law.

NF:  In closing, is there anything in particular that you’d want our readers to know about the Fund that they would not have known beforehand?

CB:  I think – right now we’re in the middle of an extremely disconcerting trend where readers are finding themselves vulnerable to prosecution for the contents of the art that they read. As we move into a more robust visual communications environment, this problem becomes much more serious. So the Fund is actively working to participate with folks in doing local CLE sorts of seminars where we talk about the history of our casework, and we talk about the current realm of cases.  Because we feel that it’s extremely important that more individuals know their rights and it’s extremely important that more folks in the legal system or in the legal community are connected with this area of casework that’s emerging.  So I strongly encourage the readers if they’re interested in helping us spread the word about these generations of cases and helping us spread the word about getting these rights into the readership community to please contact us at info@cbldf.org because that’s an increasingly important area. Ultimately, nobody should ever go to jail for reading comic books, making comic books, or selling comic books, and as the fight changes, so do we to stay on top of everything.

BIOGRAPHY: Charles Brownstein is the Executive Director of the Comic Book Legal Defense Fund. Prior to working with the Fund, he served as Programming Director for Comic-Con International in 1998 and 1999, where he developed and managed the panels and special events for Comic-Con. Brownstein is also the publisher of the award-winning interview book Eisner/Miller, and the Eisner and Harvey nominated monograph The Oddly Compelling Art of Denis Kitchen. You follow Brownstein on Twitter here.

I’m frustrated. There is so much cool stuff happening in the world right now, and almost none of it involves the law. Let me preach on it.

As I was looking for inspiration for this week’s post, I came across a fascinating website: www.phys.org. It’s a newsfeed for breaking information on the advancement of scientific knowledge. Now, because I’m a nerd, I love science-y things. However, in the interest of fair disclosure and embarrassing myself, I must admit that most of my scientific knowledge—at least these days—comes mainly from two sources. One of those sources is Morgan Freeman, courtesy of his show TV show, “Through the Wormhole.” The other is Dr. Sheldon Cooper, courtesy of his TV show, “The Big Bang Theory.” You may now color me ashamed.

Phys.org is a great resource because it not only posts information about real scientific achievement, but more importantly, it’s written in such a way that even a scientific tyro like myself can understand the significance of the work that’s being done. Which is an incredible achievement in its own right. Let me give you a taste of its content. As I’m writing this post, the articles on Phys.org include “Scientists watch proteins self-assemble,” “Revealed: Secret of HIV’s natural born killers,” and “Nanotechnologists develop a ‘time bomb’ to fight cardiovascular disease.” Wow. And those are a selection of articles from just today. So like I said, in the scientific world, there are brilliant, beautiful minds making significant contributions in furtherance of alleviating the human condition. And that is truly inspiring.

And then there’s the law. Regrettably, it seems that the only interesting thing happening in my world is that Zach Morris just started Season 2 of “Franklin & Bash.” So take that, science.

Anyway, there’s one story trending right now in the scientific world which is not only utterly fascinating, but also has real-world implications for the law, litigation, and the integrity of the judicial process. You may recall that last year, the Republic of Iran discovered that its nuclear weapons facilities had been infiltrated by “Stuxnet.” Stuxnet is computer malware designed to subvert industrial systems, particularly, certain data systems that control and monitor uranium enrichment infrastructure. Essentially, Stuxnet was destroying Iran’s efforts to enrich uranium, which is necessary for developing nuclear weapons, all while reporting that everything was a-ok.

And it had been doing this for years.

I don’t care who you are. That’s really, really cool.

No one’s really sure who conjured up Stuxnet. But whoever did it decided that the only thing better than planting one insanely complex malware application with the Iranians was planting three of them. Stuxnet was followed up by Duqu, awesomely named after a dark Jedi master from the Star Wars universe. Whereas Stuxnet thwarted industrial processes, Duqu captured data—such as keystrokes—and secretly transmitted it back to whatever third party was listening.

Then, at the beginning of June, the world learned about Flame, yet a third malware application targeting Iran’s nuclear ambitions. Flame was Duqu’s more aggressive younger brother. Like Duqu, Flame was designed to collect and transmit data about Iran’s industrial processes, but was apparently also able to collect a vast amount of electronically stored information, such as email and voice messages. Then, once Flame was discovered, a “suicide” command was sent out which caused Flame to not only erase itself from every computer it had attached itself to, it also bombed those computers in such a way as to make impossible any forensic analysis about what data was transmitted and to whom it was sent.

If you’re not impressed by any of this, then you need to stop reading this blog immediately and check your pulse, because you are, in fact, clinically dead.

The folks who are reporting about the awesome triumvirate of Stuxnet, Duqu, and Flame insist that, due to their level of sophistication (and the expense associated with development and deployment), only a government would have the resources to craft such powerful cyber-weapons. And that’s probably true. But there’s two things to keep in mind. First, in our technologically empowered world, both the virtue and vice of cybernetics are the relatively low barriers to entry. Theoretically, anyone with a talent for programming and access to a computer can play the game. Second, the circumstance with Iran provides proof of concept for what malware like Stuxnet, Duqu, and Flame can do.

Now let’s bring that malware to the legal world. The implications are alarming. Although the resources necessary to craft Stuxnet, Duqu, and Flame were significant, we must anticipate that the cost to reproduce them will be substantially cheaper. Indisputably, there’s tremendous incentive to use these types of malware in civilian contexts. The information that could be covertly discovered would be invaluable. Maybe it comes in the form of corporate espionage between business competitors. Maybe it comes in the form of law firms, locked in contentious, high-stakes litigation, trying to discover information in another’s possession that would otherwise be protected from disclosure by privilege. Maybe it comes in the form of a litigant with a case pending before the Supreme Court, anxious to learn about the course of discussions among Justices and what decision may ultimately be issued. The possibilities are endless, but the market value of the inside information is undeniable.

Historically, the disincentive to attempting such espionage has been the risk of capture. As you might expect, the law frowns upon the use of electronic means to commit fraud, and usually rewards such efforts with the imposition of stiff fines and a lengthy stay in one of the nation’s finest federal penitentiaries. I hear Atlanta has a nice SuperMax.

But bear Flame in mind. Once discovered, a suicide command was executed that erased—permanently—any ability to trace its fingerprints. This sets up the possibility that the integrity of a corporation’s or government’s confidential information could be stolen, and there would be no way to track down the identity of the thief. It’s the perfect crime, in the sense that the perpetrator could get away scot-free.

Oh, well. Like I said, lots of cool stuff happening in the world. In the meantime, me and Zach Morris will be keeping it real down in the legal trenches. I’ll be the one fighting for truth and justice. He’ll be the one with hair.