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1. Castle’s First Lawyer. That guy was so annoying. No self-respecting defense attorney would suck up to the DA the way this guy does. He sounded as if he was working for the DA instead of his client and wanted Karen to sign a false statement that fit the DA’s theory of the case. He also talked enthusiastically about his own client getting the death penalty in Delaware. His comment about having won a domestic violence case because it’s all about protecting women makes no sense. He’s (supposedly) a defense lawyer, who would have been representing the accused abuser. While women can be abusers, the majority are men, and the majority of victims are women. Finally, in real life, no court would ever appoint someone who had tried only one case to represent the defendant in a multiple murder case.
2. Matt, Foggy, and Karen go to see Castle in the hospital and skate on thin ice, ethically. As DA Reyes points out, Castle is already represented by counsel, and it is unethical for Matt and Foggy to talk to him about the case without the knowledge and permission of his attorney of record. They may also have violated an ethical rule against in-person solicitation, when they ask Castle to hire them as his attorneys. Technically, they may not have violated this rule, because they were offering to take the case pro bono.
3. Castle’s plea. The process of taking Castle’s plea is all wrong. This was a negotiated plea deal. (As an aside, Foggy did a fantastic job, negotiating 37 counts of murder down to one, something that probably would not happen in real life unless the prosecution had major problems with its case.) When taking the defendant’s plea after a deal has been struck, the judge (or prosecutor, in some places) would go over the terms of the deal and make sure the defendant understood and agreed to them. The judge would also ask a series of questions to make sure the defendant hadn’t been coerced or offered something improper for taking the deal. The judge would then take a waiver of constitutional rights. Then the defendant would enter his plea. In some, maybe most, states there would also be a written form, signed by the defendant, setting out the terms of the deal and the defendant’s agreement to it. None of these things happened here. And, of course, Castle reneged on the deal by pleading “not guilty.”
4. Trial starts next week. The timeline is totally unrealistic. It would likely be months before both sides were prepared to answer “ready” for trial in a case like this (more on that below). The judge also stated that she would set the trial date in consultation with the DA. This would be an improper ex parte communication with one side only; with only a few exceptions, the judge has to conduct all proceedings in a case in the presence of both parties or their attorneys.
The writers also got the terminology wrong. When Foggy tells Matt about the trial date, Matt says they’ll “motion for an extension.” In this context, “motion” is not a verb. A postponement of a trial is called a “continuance.” A lawyer would say, “We’ll move for a continuance” or “We’ll ask for a continuance” or “We’ll file a motion for a continuance.”
When Matt says they’ll get an extension [sic], Foggy tells him Castle agreed to the trial date. It doesn’t matter that Castle agreed. His desire to go to trial immediately and his right to a speedy trial don’t override his right to the “effective assistance of counsel” guaranteed by the Sixth Amendment to the U.S. Constitution. Matt and Foggy should have been able to get a continuance by arguing they can’t possibly provide effective assistance of counsel with only a week to prepare.
5. The insanity defense. When Matt and Foggy are discussing possible defenses, they mention the archaic “M’Naghten Rule,” a definition of insanity still used in some states, but not in New York. Foggy also talks about the need to “lock” a defense, a term I never used or heard any other lawyer use in all my years of practice.
6. Dogs of Hell depositions. Before trial, Foggy tells Matt there’s some good material in the Dogs of Hell depositions. However, as far as I know, depositions are not permitted in criminal cases in New York.
7. Pushing for a mistrial. In their pretrial discussions, Karen suggests pushing for a mistrial to gain time. It is unethical to cause a mistrial deliberately. Neither Matt nor Foggy corrects her on this point.
8. Karen interviewing Castle. Since she’s an employee of the law firm, her conversations with Frank would be covered by the attorney-client privilege, but it’s just wrong that she would interview him alone. Matt and Foggy are trying the case; they need to speak directly with their client. As smart as Karen is, she doesn’t have the training or knowledge to recognize the legal significance of what Frank is telling her or to know what follow-up questions to ask. Yes, Frank insisted on talking to Karen alone, but Matt and Foggy should have refused to allow it. It’s called “client control,” something that (admittedly) would be difficult with a client like Frank.
9. Jury selection. The prospective jurors were expressing strong opinions about Castle. They should have been questioned separately about this, to avoid tainting the rest of the panel. It appears that Castle wasn’t in the courtroom for jury selection. The defendant has a right to be present during jury selection, unless he waives that right. The judge should not have bullied counsel into accepting the jury.
10. The orange jumpsuit and shackles. Allowing Frank to appear in front of the jury in the orange jumpsuit and visible shackles sent a message to the jury that he was so dangerous he had to be locked up and restrained, even when in the courtroom. This deprived him of a fair trial. It was malpractice on the part of Matt and Foggy to allow this to happen. They should have gotten an order for Castle to be “dressed out” in street clothes for the whole trial, not only when he testified. (In the Healy trial in season one Healy was “dressed out” for trial in a business suit.) It is permissible for a dangerous defendant to be shackled during trial, but it has to be done so that the jury doesn’t see the shackles. The heavily armed guards standing near Frank also tell the jury that he’s dangerous. With a defendant like Frank, there may be extra security in the courtroom, but it has to be done in a way that is not prejudicial to the defendant. In a real trial, all of these issues would have been addressed before the trial began.
11. Opening statements. DA Reyes’s opening statement was argumentative. It was more like a final argument than an opening statement, which is supposed to summarize, in a non-argumentative manner, the evidence the jury can expect to hear during the trial. It was objectionable on this basis, but Foggy did not object. However, whether to object during opening is a judgment call on the part of counsel.
When Matt failed to show up on time to give the opening statement for the defense, Foggy could have chosen to defer their opening statement until the beginning of the defense case. The judge even asked if he wanted to do so. That might have been the better choice, but, again, it’s a judgment call. And, no, Foggy’s opening was not great. It didn’t actually tell the jury what the defense theory of the case was or what the defense evidence would show. This is not surprising, because Matt and Foggy didn’t have a defense theory of the case at that point.
Both Reyes and Foggy were in the “well” of the courtroom and too close to the jury box. Both are breaches of courtroom etiquette.
12. Tepper’s testimony. Reyes’s “leading” objection to Matt’s question is ridiculous. It’s cross-examination. Leading questions are allowed.
When Tepper says he has to say something, the judge properly sends the jury out of the courtroom. However, Frank should not have been removed from the courtroom; he has a right to be there. I’m not sure it was necessary to remove the spectators from the courtroom.
After Tepper has his say, Foggy correctly moves for a mistrial, which should have been granted. Striking Tepper’s testimony is not the proper action in these circumstances. He is a critical witness for both sides. Arguably, the prosecution can’t prove its case without his testimony. It’s also unfair to the defense, which has not had the opportunity to cross-examine him. Even though the jurors will be instructed to disregard Tepper’s testimony, it’s very hard to “unring the bell.”
13. “Extreme Emotional Disturbance” and the Defense Expert. As I understand it, there is a legal concept called “extreme emotional disturbance” (EED) in New York law. It’s called an affirmative defense but is more accurately described as a mitigating factor. If the jury finds the defendant was acting under the influence of EED, this reduces a killing from murder to a lesser form of criminal homicide, manslaughter. Here is a link to the jury instruction on the defense: http://www.nycourts.gov/judges/cji/2-PenalLaw/125/AC.125.EED.pdf
Arguing EED appears to be the defense strategy Foggy eventually came up with (sometime after the opening statement). In the Castle case, it’s something of a double-edged sword. If Foggy can convince the jury Castle was acting under the influence of EED, then the killings are manslaughter, not murder. However, the cause of the EED is the murders of his family, which provide a hell of a motive for murdering those responsible. Motive is not an element of the crimes, but jurors generally like to be given a motive, so this would help the prosecution.
Whether the defendant was suffering from and acting under the influence of EED is an ultimate issue in the case, to be decided by the jury. For this reason, it was improper for Foggy to ask the defense expert whether Frank met the definition of EED. Reyes objected to the question as calling for a conclusion. Reyes was right to object, but she made the wrong objection. An expert witness is allowed to give his opinions and conclusions; that’s what expert witnesses do. But the witness is not allowed to invade the province of the jury and give an opinion on an ultimate issue like this. Reyes should have objected on this ground. Since she didn’t, the judge properly overruled the objection she did make.
14. Sending Karen to talk Frank into testifying. This is wrong on so many levels. It is almost always a bad idea for a criminal defendant to testify in his own defense, especially if he is a “loose cannon” like Frank Castle. That being said, the decision whether to testify is the client’s, not the lawyer’s. The lawyer should not talk the client into testifying. They can advise the client, and point out the pros and cons of each course of action, but the client decides. Regardless of her relationship and rapport with Frank, Karen is not the person to do this. She lacks the legal knowledge and experience to advise Frank properly. So, no. Just . . . no.
15. Demonstrations, Signs, Outburst in Courtroom. When a young man yelled that Frank killed his father, the judge properly ordered him removed from the courtroom. However, the judge did nothing about the spectators waving signs in the courtroom. Those spectators and their signs should also have been removed. Spectators aren’t even allowed to wear ribbons or pins commemorating the alleged victims, much less bring signs attacking the defendant into the courtroom. There were also signs supporting Frank, which shouldn’t have been allowed, either. In real life, the spectators wouldn’t have gotten through security with their signs. When it became apparent that the judge wasn’t taking action, Foggy should have objected to the presence of the sign-waving spectators and asked for them to be removed; this should have been done at sidebar, out of the hearing of the jurors. This might have been another time to move for a mistrial.
16. Matt’s “direct examination” of Castle. You don’t have to be a lawyer to recognize how wrong this was. It was a total train wreck. Matt completely abandoned any pretense of questioning Frank and argued the case to the jury. Even worse, no one does anything about it. Reyes and Tower sit at counsel table like a couple of potted plants and say nothing. As soon as it was clear what Matt was doing, they should have been on their feet, objecting. The objection would have been sustained, and the train wreck would have been stopped in its tracks (so to speak; sorry not sorry). In this situation, the judge might have intervened even if the prosecutors didn’t object. Most judges will “let the lawyers try their case,” but what Matt did is so extreme that the judge might have taken action without an objection.
17. Frank’s outburst. When Frank asked the judge if he could say something, she should have said “no.” If she allowed him to speak, she should not have allowed him to do so in the presence of the jury.
18. Bonus mistake, post-trial. When Matt goes to see Fisk in prison, Fisk’s attorney, Ben Donovan, presents Matt with a document stating the conditions set by him for the visit. Donovan calls it an “affidavit.” Wrong. An affidavit is a written statement of facts, made under oath. If the writers wanted a “legal-sounding” word, they should have called it a “stipulation.” For some reason, this always annoys the hell out of me.
19. Another bonus mistake, pre-trial. In the first episode, Foggy and Matt arrive at the office, and Karen tells them about the waiting clients and their legal problems – in front of a whole room full of clients. Haven’t Foggy and Matt told her about client confidentiality? I understand the point of the scene; it shows us the nature of N & M’s law practice. But they could have done this without violating client confidentiality, which is a pretty important thing if you’re a lawyer. Oh, and BTW, if we ever get a season 4, I hope Foggy puts his foot down and vetoes the whole idea of getting paid with fruit and pastries. (Yes, I’ve read the reports that Foggy and Karen may not be back for Daredevil: Born Again. I’m still holding out hope they’ll appear and be played by Elden Henson and Deborah Ann Woll.)
20. Additional thoughts. It would have taken months for the prosecution to prepare for trial in this case. As I recall, there were 37 counts of murder, plus all of the lesser charges. Just organizing the evidence would be a monumental job. There would be pre-trial motions aplenty, possibly motions to suppress evidence or to grant the defense experts access to examine certain evidence, to name a couple. There might be a motion for a change of venue outside NYC, given all of the publicity surrounding the case.
We the viewers might think the prosecution had a slam-dunk case, but we know Frank committed the crimes. That won’t cut it in the courtroom. The prosecution has to prove all of the elements of each crime, beyond a reasonable doubt.
What evidence, exactly, would the prosecution have at trial? They probably didn’t have any witnesses to the actual shootings. As I recall, Frank didn’t leave witnesses behind, except for poor Grotto, and Frank made sure he was no longer available as a witness. I suppose Frank could have been seen coming and going, but I don’t recall seeing that on screen. Witnesses at the hospital might have been able to ID Frank, but he didn’t kill anyone there; he was only after Grotto. There would have been a good chance of conviction on multiple counts of assault with a deadly weapon on people at the hospital. However, I don’t see how that evidence would have helped the DA prove the murders of the gang members.
Shell casings and bullets found at the crime scenes or in the victims might be useful, assuming the prosecution had the weapons used and could connect them to Frank. The testimony of the Medical Examiner might fill in some pieces of the puzzle, but the judge struck his testimony after he revealed he was threatened by Elektra. Fingerprint and DNA evidence are also possibilities, but I question whether Frank would be so careless as to leave that kind of evidence at the scenes. Also, Matt and Foggy could hire their own experts to contest the forensic evidence. There probably would be lots of evidence of motive, but motive is not an element of any of the crimes with which Frank was charged.
If the prosecution was uncertain they could get convictions, that might explain why Foggy was able to negotiate a deal for a guilty plea on only one charge – the deal that Frank then blew up.
Foggy and Matt’s best strategy might have been to try a “reasonable doubt” case, trying to raise a reasonable doubt in the jurors’ minds by poking holes in the prosecution’s case and casting doubt on the prosecution’s evidence. If they adopted this strategy, there would have been no need to call Frank as a witness, and they would have avoided the disastrous consequences of his taking the witness stand. However, Foggy and Matt never seem to have considered this strategy.
That’s all, folks. Kudos to anyone who read this far!
Most of these comments are based on my own observations. I also consulted the following online commentaries, to make sure I hadn’t left anything out.
Law and the Multiverse: http://lawandthemultiverse.com/2016/07/10/daredevil-season-2-part-2-the-trial/
The Legal Geeks: http://thelegalgeeks.com/2016/03/22/did-daredevil-adequately-prepare-for-the-punishers-trial/
Video by LegalEagle, “Real Lawyer Reacts to Daredevil (The Trial of Frank Castle)”:https://www.youtube.com/watch?v=aRTSxbgekMM