Jurors in criminal cases are instructed that the accused is presumed innocent. Attorneys usually question potential jurors during jury selection on their ability to presume a defendant innocent. Potential jurors, however, often struggle with cognitive dissonance when trying to presume the defendant is innocent while he is also accused of a crime. The presumption of innocence is something that people outside of the courtroom also struggle with. We can see this struggle played out in conversations about local crime or on television with talking heads like Nancy Grace. Often, as Ms. Grace infamously has done, people assume an accused person is guilty before a trial begins.
Kamala Kahn, as Ms. Marvel, provides an interesting perspective on the presumption of innocence in Generation Why. She defeats her first major villain, “the Inventor,” and attempts to place him under citizen’s arrest. The Inventor runs away to the top of a scrap heap that collapses and kills him. Ms. Marvel is stunned, and stammers, “I just–I thought he’d go to jail and there’d be a trial and stuff.”
Ms. Marvel witnessed the crimes that the Inventor committed and attempted to place him under arrest for those crimes. She also believed that he was entitled to trial and expected him to have one. Ms. Marvel demonstrates that she can hold two seemingly contradictory values at the same time. As a young superheroine, her ability to deal with cognitive dissonance could be chalked up to naivety where Volume 3 explores what it means to be a superhero or superheroine. Her ideals are challenged and checked in her discussions with veteran superhero Wolverine and superherione Captain Marvel. Ms. Marvel’s belief that the accused should be afforded the presumption of innocence, even if she knows he is guilty, may be another shattered ideal for the young heroine in the Ms. Marvel series. Frank Miller’s Daredevil run, however, provides a similar viewpoint from a presumptively less idealistic veteran superhero.
In Devils, Daredevil’s nemesis Bullseye is diagnosed with a life-threatening brain tumor and escapes from a hospital before his surgery. Daredevil captures Bullseye, and contemplates letting him die, “You deserve to die, Bullseye… You’d just kill again…I hate you…” Daredevil then, however, saves Bullseye’s life. Detective Nick Manolis asks Daredevil why he let Bullseye live, and Daredevil replies
Nick, men like Bullseye would rule the world– — were it not for a structure of laws that society has created to keep such men in check. The moment one man takes another man’s life in his own hands, he is rejecting the law–And working to destroy that structure. If Bullseye is a menace to society, it is society that must make him pay the price. Not You. And not Me. I–I wanted him to die, Nick. I detest what he does…what he is. But I’m not God–I’m not the law– –And I’m not a murderer. [emphasis original].
Daredevil’s understanding of justice and the presumption of innocence is informed by his training as a lawyer. As discussed in a previous post, the presumption of innocence requires jurors to presume the defendant is innocent. It also requires that the defendant be acquitted unless the prosecution is able to prove each element of each charge against him or her beyond a reasonable doubt. However, the Marvel Universe often fails to completely extend the presumption of innocence to its villains. One of the most revealing examples of this failure is found in the legal representation sometimes granted to villains and anti-heroes.
In Daredevil season 2, episode 6, Foggy Nelson hesitates to represent Frank Castle, The Punisher, after Matt Murdock suggests taking him as a client. To persuade Foggy, Matt says, “We don’t have to defend him. We can just negotiate a plea deal, without extradition or an electric chair. Then Castle goes away, [the DA] gets her ticker tape parade. Everyone wins.” Karen Page then suggests that they could possibly save Mr. Castle’s life through their representation, to which Foggy responds incredulously, “A murderer!”
Foggy’s response is interesting in that he is denying Mr. Castle’s legal right to receive effective legal representation on the grounds that Foggy believes him guilty. He, a criminal defense attorney, is incredulous that “a murderer” should be granted Constitutional protections which could possibly stave off the death penalty. Meanwhile, the only person who seems interested in providing The Punisher an effective defense is Karen, the non-lawyer.
Part of the reason the presumption of innocence is strained is because the reader or viewer generally already knows that the villain is guilty. Before the The Punisher’s legal defense, or lack thereof, is even discussed by his would-be defense team, the viewer has already witnessed him murder dozens of people. Being asked to presume a person innocent whom the viewer knows to be guilty requires the ability to deal with cognitive dissonance which Ms. Marvel exhibits in Generation Why. More often, however, the presumption of innocence, if it is addressed at all, becomes an inconvenient storytelling obstacle, or worse, an impediment to justice. This creates a world where the presumption of innocence either does not exist or, if invoked, is an enemy to law and order instead of a sacred and valued legal principle.
The struggle with the presumption of innocence manifests in the way defense attorneys are portrayed in comic books and their live action adaptations. Showrunners and authors are tasked with navigating the moral and ethical complexities of representing an unpopular client and often bow to the pervading opinion that a moral lawyer cannot earnestly defend a guilty person. Foggy reaches the conclusion that The Punisher should not receive effective legal representation because he, Foggy, is unwilling to extend the presumption of innocence to his potential client. In short, in a world where the presumption of innocence is not applied, effective legal representation of a person accused of committing atrocities cannot be a moral action. It, like the presumption itself, becomes an impediment to justice rather than a sacred legal principle. Even Matt, who initially suggests representing The Punisher, makes it very clear that he has no intention of defending him.
This sentiment is peppered throughout pop culture references to defense attorneys. There seems to be a continuum where (1) a moral attorney zealously represents an good/innocent client, (2) a moral attorney half-heartedly or ineffectively represent an evil/guilty client, (3) an immoral attorney zealously represents a evil/guilty client, and (4) an immoral attorney may represent an good/innocent client. What we rarely see is (5) the good or moral attorney representing a guilty client. To expand on the second category, there are generally three ways that a good, or moral, lawyer is excused for representing an unpopular/guilty client: (a) half-hearted representation; (b) ineffective representation; or (c) betrayal.
The Daredevil television series demonstrates each of these types. Foggy half-heartedly and hesitantly provides The Punisher rushed and often unprepared representation. Matt excuses himself from most of the trial, providing nearly no representation at all and, again, insists in his pitch to represent The Punisher that they would not have to “defend him.” This is the same Matt Murdock who tells a realtor in the first episode of season 1 that his firm only represents clients who are “innocent.” Ironically, it is Foggy who responds, “And I believe the innocent includes anyone not yet convicted of a crime. You know, as the law states.” Unfortunately, Foggy’s loyalty to the presumption of innocence doesn’t seem to survive through season 2.
Season 2, episode 6 also introduces Christopher Roth, The Punisher’s Court-appointed counsel. And while Mr. Roth’s woeful ineptitude has been discussed at length here, he is also readily prepared to betray his client’s interests.
Mr. Roth explains that he foresees a plea agreement in The Punisher’s future involving extradition to Delaware followed by the death penalty. He even goes so far as to say that the death of his own client will help everyone “sleep better.” And while Mr. Roth is harangued for being a “bench-warmer,” he cannot be accused of being what is apparently worse, an effective lawyer earnestly providing a defense of an unpopular or guilty client.
In the third issue of Daredevil Volume 2, Daredevil introduces perhaps another way to excuse a good or moral lawyer from representing a guilty client: self-loathing, soul-corrosion, loss of integrity, and the creation of an emotional void.
While this moment of self-reflection recognizes the importance of a fair trial, it seems to indicate that a lawyer ensuring his guilty client receives one can only come at the cost of his integrity, his soul, self-hatred, or an ulcer.
The Marvel Universe isn’t alone or the first in this representation. In his Essay In Defense of the Damned, Loyala Law Professor Stanley Goldman shares several examples of this phenomenon. One particular example is that of the popular television series, Matlock. He states
The title character, a kind, folksy, older version of Perry Mason, has never lost a case and never defended anyone who was not innocent—except once. During one episode, Matlock realizes, to his shock, that his client actually did it. He is, in fact, defending a murderer. Since he would never knowingly use his enormous talents to benefit the guilty, he chooses simply to lose the case. By pretending to place the blame for the defendant’s crime on someone she loves, our hero successfully maneuvers his own client into confessing her guilt in open court. As the program comes to a close, the defeated lawyer is consoled by those who feel terrible for him. He has lost a case. He feigns regret, but the audience knows the truth. He was willing to see his reputation diminished rather than help a murderer go free.
A slightly more recent example is that of Ellen Wolf, the seemingly heartless defense attorney from Dexter season 3. At first introduced as a despicable attorney who zealously represents despicable people, Wolf only becomes a sympathetic character after she betrays her client, Albert Chung, by luring him into a trap. Wolf sets up an appointment with Chung and then tips off law enforcement without his knowledge so they can arrest him.
Both Matlock’s and Wolf’s actions are celebrated despite violating ethical obligations to their clients that they took an oath to uphold. Their betrayals are alternative to the “greater evil” of providing effective and candid representation to clients who the viewer is given permission to presume guilty. And the presumption of innocence and effective representation are again presented as enemies to justice.
Professor Goldman explains how this narrow representation of criminal justice can have real-world consequences
The message is clear: Representing those who have actually committed crimes is a sin and should itself be a crime. In the real world, however, criminal defense attorneys spend most of their time representing either those who probably are guilty or whose innocence will never be definitively established. In failing to depict what actually constitutes a significant portion of the real-life justice system, the mass media is affecting public perceptions as well as missing out on a lot of good stories.
It is The Punisher, ironically, who speaks for the masses as to the presumption of innocence and the defense attorney’s role when he meets Foggy, Matt, and Karen: “Yeah, I know who you are. You protect shitbags.” This sentiment reflects back on the storytelling in problematic ways. For example, in 2015 Daredevil turned in his decades of work as a defense attorney to take a position as a prosecutor. In an interview with AV Club, Daredevil author and attorney Charles Soule discussed how this shift affects the character
Throughout most of his history, Matt Murdock the lawyer has been a defense attorney, with his own practice. So, his clients have been bad guys, or wrongfully accused individuals.
Now, though, he is working as a prosecutor—an Assistant District Attorney, or ADA, to be specific. His job is to make a case against the bad guys the cops bring him and send them to jail. His only clients are the city and people of New York.
This is important, because it means that for the first time, his actions as Daredevil and his lawyering gig are aligned, instead of pushing and pulling against each other. Everything he does is in pursuit and service of justice. He’s pretty psyched about it, although we’ll have to see if it works out the way he hopes.
Instead of resolving the cognitive dissonance as Ms. Marvel did, the comic book sidesteps decades of Daredevil’s personal ideology by simply converting him into a prosecutor. The author makes it clear that as a district attorney, unlike during his career as a defense attorney, Daredevil’s actions both in and out of costume are now in the “pursuit and service of justice.” This implies that effectively representing a possibly guilty client is not in the pursuit or service of justice, but actually an impediment to it. Again, the presumption of innocence and right to effective counsel are presented as incompatible opposites to law and order. This time, however, the author takes the next step to indicate that the only legal action aligned with justice is prosecuting the “bad guys” Matt Murdock once represented.
In doing so, the Daredevil series does its part in turning public perception against the presumption of innocence and effective assistance of counsel. It presents a world where defendants are villains, where villains are presumed guilty, and affording them Constitutional protections is adversarial to justice. That belief is then disseminated to the audience, accepted, and fed back into the storytelling through authors like Soule who, in turn, disseminate it. Meanwhile, the more accurate and more interesting portrayal may rest closer to Ms. Marvel’s ability to resolve justice and the presumption of innocence without succumbing to the temptation to make them adversaries.