When Army Capt. Stefanie Pelkey's husband returned from Iraq, "his light was gone," she says. Army Sgt. T.J. Hart says he barely survived the numbness that led Pelkey's husband away.
Spoilers! Medical vs. legal death in the Marvel Universe. Here's where it gets crazy:
For most of the first season of Agents of S.H.I.E.L.D. I wondered what on earth I could write about. Comparatively little of the series raised any interesting legal questions, at least ones that could be answered in any kind of concrete way based on the information presented in the series and the Marvel Cinematic Universe. For example, S.H.I.E.L.D.’s jurisdiction is still kind of an open question, with the agency operating freely in some countries but not others. This suggests some kind of treaty, but there just aren’t enough details to do more than speculate.
And then, finally, near the end of the season I received an email from a reader asking some great questions. Massive spoilers for Agents of S.H.I.E.L.D. below, so if you haven’t seen season one and don’t want to be spoiled, stop reading now.
I’m going to quote at length from Megan’s email, since she did a good job of summarizing the back story leading into her questions:
In the movie Avengers, Agent Coulson is killed by Loki. In the scene where Director Fury finds him bleeding out on the floor, this conversation ensues:
Coulson: “Sorry boss, the god rabbited.”
Fury: “Just stay awake. Eyes on me.”
Coulson: “No, I’m clocking out here.”
Fury: “Not an option.”
Coulson: “It’s okay, boss. This was never gonna work if they didn’t have something to…” *dies*
In the course of the show Agents of SHIELD, we learn that Coulson is still alive and the mystery of how he survived has been a big plot arc. At the beginning, it’s implied that he was only dead for somewhere between 8-40 seconds before he was revived, and that Fury lied to the Avengers about his death in order to motivate them to fight. As the show progresses, however, we learn that Coulson has no memory of his recovery in a hospital – just being on Tahiti with a physical therapist until he was recovered enough to assume active duty again. Then we learn that Coulson was dead for several days before he was revived/resurrected – at which point we see a scene of a rather sinister looking robot doing something to his brain, and Coulson begging for them to just let him die, but his wishes being ignored. From there, we learn that Coulson’s memory was tampered with because it was believed that being brought back to life had left him nearly suicidal, and they were trying to give him a pleasant memory of his recovery to counter any suicidal tendencies.
In recent episodes, we’ve learned that they used an experimental drug (apparently harvested from a Kree) which caused complete cellular regeneration and thus brought Coulson to life. Last night’s episode found us discovering that Coulson knew about this project pre-Avengers and was directly in charge of it. It was designed to save the life of a mortally wounded Avenger, but that while the injuries were repaired, the drugs caused mental degradation and instability, so Coulson recommended that the project be scrapped and never used again. In regards to stopping the mental degradation, he stated that “the only course of action that showed any promise of stemming these side effects was memory replacement – erasing completely the awareness of what they’d been through.” He went so far as to tender his resignation to Fury (whether as the director of this project, or completely from SHIELD is rather vague).
The first question I have is related to the “resurrecting superheroes” posts you’ve done in the past. Coulson was – as far as we’ve been told – an ordinary citizen working for a government agency. Did his speech to Fury in Avengers essentially amount to a DNR request, and what rights did Fury violate by resurrecting Coulson – apparently against his will? I understand life-saving attempts wouldn’t apply in this case, since we do see a medical response team try to bring Coulson back, but given that it was several days after Coulson was declared dead, did Fury have the right to order this procedure done?
Second: If Coulson was brought back and regained enough awareness that he was essentially asking the doctors to “let me die” would they have been obligated to stop the process and allow Coulson to die, or would he have been considered mentally compromised enough to not realize what was happening?
We later learn that Fury considered Coulson an Avenger, at least for purposes of deciding whether to administer the drug. Ultimately, Coulson seems mollified by Fury’s explanation. But the questions remain: was it legal to begin the process in the first place and was it legal to continue the process once Coulson was conscious enough to ask for it to stop?
I. Advance Directives and Do Not Resuscitate Orders
In the question Megan refers to a “DNR request”, which is to say a Do Not Resuscitate request, more properly called a Do Not Resuscitate order or directive. There is a lot of confusion and popular misinformation about DNR orders. A DNR order is a medical order issued by a physician, typically in a case involving a terminally-ill patient. The law governing DNR orders varies from state to state, but in general a properly executed DNR is legally binding.
DNR orders must be contrasted against advance directives and living wills, which are non-binding documents that basically amount to suggestions regarding how a person would like to be cared for if they are not competent to make their own health care decisions. Advance directives can be written or oral, and they will often be respected, but they aren’t legally binding.
So in this case Coulson’s objection to the program would not qualify as a DNR order. At best it could be considered an advance directive that he did not agree with its use and so certainly would not want it to be used on him. But once he was unconscious he was no longer competent. Since his advance directive wasn’t legally binding, whoever held the power of attorney to make healthcare decisions for him (Directory Fury, apparently) was free to ignore it and request use of the drug. The physicians caring for him were likewise free to exercise medical judgment and decide that using the drug was, in fact, medically appropriate despite Coulson’s objections.
As far as Coulson being declared dead goes, death is generally legally defined thus:
An individual who has sustained either (1) irreversible cessation of circulatory and respiratory functions, or (2) irreversible cessation of all functions of the entire brain, including the brain stem, is dead.
Since the drug worked and the cessation of those functions was clearly not irreversible, Coulson wasn’t legally dead, though he may have been medically dead from the perspective of any doctor who didn’t know about the secret wonder drug.
II. Competency and the Right to Terminate Treatment
Now we get to an even stickier issue. For some reason it was necessary for Coulson to be conscious during part of the procedure. Coulson spent most of that time begging for the procedure to end and to be allowed to die. The torment of that experience is what was replaced with memories of Tahiti.
If a patient wakes up on the operating table and says they’d rather die than continue in such pain, should the doctors honor that request or go on with the procedure? What if the patient had previously stated that they didn’t approve of the procedure, albeit in a non-binding way?
The easy answer is to say that it doesn’t matter because Coulson was still incompetent, either because his mind was still in tatters from his injuries, or because of the trauma of the treatment, or because of the influence of whatever drugs he had been administered. This is somewhat difficult to reconcile with the fact that he was clearly articulating a consistent position on the issue of the use of the drug, but let’s consider the argument anyway.
A common three-part test for determining patient competency is this one:
1. Is the patient aware of his or her needs and alternatives for meeting them?
2. Is the patient able to express a preference regarding the alternatives?
3. Does the patient demonstrate a factual understanding of the risks, benefits, and alternatives of treatment or no treatment?
It isn’t clear from what we see of the operating scene that Coulson understands much more than that he is in pain (either physical or emotional) and wants it to end. It isn’t clear that, in that moment, he has “a factual understanding of the risks, benefits, and alternatives of treatment or no treatment.”
If Coulson was incompetent, then a lot more deference would be given to the state interest in maintaining human life, and the operation could probably proceed legally, if under ethically questionable circumstances. Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261 (1990).
But if Coulson was competent in that moment, then the doctors had an obligation to terminate treatment because competent adults have the right to refuse unwanted treatment, even if it means dying as a result. Washington v. Glucksberg, 521 U.S. 702 (1997).
Whether Coulson was or wasn’t competent at the time is difficult to say, but that is what the answer hinges on.
I’ve owned my iPad now for almost two years, and I’m finally getting a hang of the purpose I bought it for (or at least what I told myself I bought it for): to have a portable art surface, a digital sketchbook that wouldn’t require carrying around an arsenal of art supplies. Some of you out there would ask my why I need a bunch of art supplies all the time; after all, a good artist shouldn’t need more than a pencil and a sketchbook.
Well, here’s my shocking confession: I’m not a good artist.
I hate drawing. I’m not especially great at it. I don’t have a photographic memory, which seems to be a basic requirement for pretty much any visual arts, so it takes me a long time to do a decent sketch. In fact the only reason I draw anything is so I have some kind of guideline on what I want to color or paint.
I’m not a good artist. I’m just extremely tenacious.
Which is why I carry around all this:
Compared to this:
Note: Not to scale…
The iPad cut down on my chiropractor bill for sure.
I’ve had about a year to test a bunch of things. And when you figure in the cost of the iPad, the art apps, and the various “styli” I’ve bought versus the amount of markers, pens, pencils, watercolors, brushes, sketchpads, etc. I’ve acquired over the years, it’s probably about the same. Of course, this doesn’t mean I’ve stopped buying art supplies, so the whole “versus” argument is invalid. What it really means is I have a damn expensive hobby.
Over $800 worth of Copic markers. Crack would be cheaper. Which is why I’ve had to sell so much of it to buy more markers. :P
This post isn’t exactly cutting edge; there are other reviews out there older than mine that cover this material, but I’ve got a lot of artist friends out there, and if any of you haven’t considering getting an iPad to start your own digital sketchbook, you should.
But there are a lot of apps and a lot of accessories, and it might be hard to know where to start. After experimenting around for a while, I hope to save you some of the trials I’ve been through on what I have found has worked and what hasn’t in my quest for the Perfect iPad Art.
Here are a list of my MUST-HAVES:
This was the 2nd app I purchased also back on my iPod Touch and, even though simple and limited as far as tools go, this is one of the best sketching programs for any tablet interface. It’s basically a digital version of those Buddah Boards that come with a bamboo brush where you drag water around on the board and it vanishes as it drys without ever messing up the paper. Except that the “ink” on Zen Brush doesn’t disappear until you hit the little trashcan icon in the corner and it wipes out your drawing leaving you with a fresh slate.
You get a whopping 5 tools: a round size adjustable “ink” brush, a light brush that does about 50% opacity than the regular “ink” brush, an even lighter one that does 25% opacity, an eraser, and a light eraser that is about 50% opacity. All brushes and erasers are sizable from 1 to 50 pixels. You get a 1-level undo, and the ability to export your picture to the native iOS photo library or Twitter. With that, you also have the ability to change the texture of the paper to 60 different choices, most of them being kind of stupid.
What makes this program remarkable is that it simulates brush dynamics better than any other iPad program out there, and they do it very well.
You’re probably not going to ever draw anything in Zen Brush that’s not much more than a sketch, but that’s kind of the point. It is called ZEN Brush, after all, and it does exactly what it’s supposed to: it gets you drawing for the sake of drawing.
Here’s some stuff I’ve done in ZenBrush:
This is the first art app I bought back a long time ago when all I had was my iPod Touch. And as far as tracing my finger around on a 5 inch screen goes, it wasn’t bad. It was also the first art app I bought when I got my iPhone, and then my iPad.
ArtStudio was kind of a joke, sort of like comparing the Gimp to Photoshop if Photoshop didn’t exist and Gimp cost money. Over the years, though, ArtStudio has really improved to be one of the best art apps out there. Here’s the breakdown:
- Filters Galore: Blur, Sharpen, Edge Detect, Distort, Noise, Render (Clouds, Difference Clouds, Checkerboard, Stripes, Pattern), Border, Stylize (Emboss, Bumpmap, Diffuse, Wind, Drop Shadow, Glow), Colors (Sepia, Heat map, X-Ray, Lomuo, Antique, Cross Process, Cheap Camera…).
- Adjustments: Color adjustment, Contrast/Brightness/Exposure, Curves, Posterize, and more…
- Select Tool: Masks, Feather, Sharpen, Inverse Selection, Transform a Selection.
- Tools: Burn & Dodge, Healing brush, Clone Stamp, Smear, “Wet” brush, Air brush, Texture brush, Gradient tool, Text tool, Blur.
- Menus / Interface are intuitive and easy to use…if you’re familiar with other image editing software. If you’re a novice, probably not so much.
- Brush Dynamics: Not half bad…
Still, ArtStudio has some terrible lag to it, especially when using the textured “wet” brush. It also seems to interpolate the information as “shortest distance to your finger” instead of following the exact path you draw, so it takes a lot of patience to work with. Frequent crashes make it very annoying, and these are problems that have been happening since my old iPod Touch days. Fortunately, I’ve never lost an art piece.
The tools and brushes have gotten loads better, though, and their photo filters are probably the best thing you’re going to find on the iPad for image and photo adjustment and correction in a pinch, but for straight-out drawing and painting, it’s not my favorite.
Here’s an image I did with ArtStudio:
50 Shades of Green
SketchBook Pro for iPad by AutoDesk
There are two schools of thought for Sketchbook Pro: Those who swear by it, and those who swear at it. I’m in the latter camp.
I want to love AutoDesk SketchBook Pro. They try so damn hard to make a great art program, and they do get so very close. It has an impressive array of different pens and brushes, and each version has them making subtle, if not slow, upgrades to tools and functionality, such as the ridiculous excuse for a smudge brush the replaced in 2.8 with an actual functional smudge brush, so there is hope. Unfortunately, there are still some quirks that irritate the hell out of me and it looks like they’re still lingering in 2.9. Here’s a screencap of the interface:
Menu: Like every other draw program, the menu options just drop down. Not much to report here. From left to right, the icons mean: Gallery, New Project, Preferences/Help, Undo, Redo, Brush properties, Freehand/Line/Shape/Circle, Mirror drawing, Text/Transform/Time-lapse Record, Layers.
- Pros: It’s a menu. Woo.
- Cons: It’s slow. Any action you chose can take up to a full second or two to do, so every undo you choose, any layer you pick, any brush properties you change from the menu…1 to 2 seconds each. When you’re working on an art piece, those seconds add up. Additionally, the more layers you have, the more memory it eats, the slower still it is.
Tools: Here’s all your brushes and pens and such.
- Pros: There’s quite a few, and you can hold down on any one of them to bring up the individual properties.
- Most of them are stupid. Remember those image stamps of that Painter used to have had a bunch of? There’s a lot of those. 60 of them, in fact. All of them are pointless in a program like this where the idea is to make original art. Seems like Autodesk could have saved themselves some disk space by cutting these all out.
Color Pallet: Pretty standard.
- Pros: Holds 30 on the vertical scrolling bar, and you can click on any of them and it will bring up a pallet wheel for you to change the colors on the side if you want. Or you click that transparency dot at the very top above the color picker and you can chose a color that way without changing the bar to the side.
- Cons: Nothing, really. Like I said, pretty standard.
Brush Puck: This is the tool they built to choose the opacity and brush size. It’s in the form of a weird little dot at the bottom of the screen (#5) that never goes away, and when you tap it, it brings up that puck in the middle of your screen. Drag up or down the screen for opacity, or side to side for brush size.
- Pros: The radial menu is kinda convenient (also customizable) if you want to auto-hide the tools menu.
- Cons: I’m not a fan of it, especially since you can’t move it anywhere, the puck or that ubiquitous little dot, no matter how hard you wish. but dragging your stylus or finger around on the screen to change opacity and brush size is, well, kind of a drag.
- See #4 above.
Palm Rejection: Tap on it to bring up a big round disk you can drag anywhere so you can rest your hand on the screen while you draw.
- Pros: Kinda cool.
- Cons: My hand is fat, so I never use it.
Customizable buttons: All 4 corners of the canvas have these buttons that are moderately customizable to help you do stuff quicker.
- Pros: Yet another way to do the same thing you can do 4 other places.
- Cons: See that one in the upper right hand corner that looks like a compass rose? It’s supposed to be “full view.” (Here it’s called it “frame canvas.”) Supposed to be that when you tap that, it will temporarily hide all your menus so you can see your full picture. This is how it works in every other drawing program since the beginning of time. Not Sketchbook! We’re special. In Sketchbook, unless you have your pallets and tools set to auto-hide when you begin drawing, it doesn’t work. Which means it’s useless. Why would I need to full-view my canvas if my tools already auto-hide themselves?? Why would there be an option to full-view if it doesn’t work when I pin my tool pallets to the canvas??? IT IS A PARADOX.
- Export to PDF…with layers! Worth the $5 just for this.
- All Inclusive: Unlike a lot of other art apps in the app store, Sketchbook Pro is a complete app when you buy it. There’s no other features to unlock, no additional brushes to buy, no add-on functions. ArtRage and Paper both require you to shell out more money to buy additional program. Paper, for example, comes with pen and eraser. THAT’S IT. You can have layers if you BUY them. ArtRage has a whole bunch of really neat tools
- Gestures: There are dozens of gestures for this app for 1, 2, and 3 fingers. There are also gestures for your whole hand, slamming it against your forehead, licking the screen, and whispering softly into the headphone jack…probably. I don’t know because I can’t remember where I put my keys every day, so memorizing a bunch of gestures is not my thing. Fortunately, there are other ways around the interface…usually.
- Layers: No way to preserve layer blend mode (multiply, screen, overlay, etc…) if you merge the layers. Also, there’s no way to just flatten the whole image to one layer. Your only option is to export it to your camera gallery, Dropbox, or email if you want to do that.
- Gallery view: If you have a mix of portrait images and landscape images you’ve done (and what artist works with just one orientation mode?), then depending on how you rotate your screen, some of your pics will be rotated 90°. This is so that the thumbnails of your pics stay perfectly lined up. This is stupid. I don’t care about my icons being lined up. I want to see the thumbnail as I freaking painted it!
- Limited Undos: 5 is the limit, I think. Get used to saving lots of copies of your work. But at 1 to 2 seconds per undo, I guess 5 is plenty?
- Speed: What speed? Lags in a lot of places. Undos take a full second, layer selection up to 2 seconds, menus take a second to pull up. When you spend 10 hours on a piece, that really adds up. Don’t expect to be speed-painting on this thing.
- Steep Learning Curve: It’ll take you a good while to learn the interface. Might want to look up a few demos before you buy, and a few tutorials to get you accustomed to it.
Next: Procreate, iPad brushes
Sooner or later the wall I'm banging my head into will crack. Must keep banging. It's kind of fun.
My recent guest post on persistence in the writing game at Chuck Wendig’s place was actually the result of the confluence of a few things. The night before I headed out to ConFusion last weekend, a regional convention in Detroit, I read Seth Godin’s The Dip: A Little Book That Teaches You When to Quit (and when to stick).
Anyone who’s followed my blog – in particular longtime readers who’ve been around since those first days back in 2004 – knows I’ve been writing a long time, and suffered a lot of ups and downs. It turned out that after all that time, getting my first three books published wasn’t the end of this road, though. Just like getting married or winning the sports trophy isn’t the end of a person’s story in real life, getting a book published isn’t the end either.
In truth, it’s just the beginning.
I happened to have a new series on submission, and was getting some very frustrating feedback. I started to question why I was in this game. If it wasn’t the money, or the copies, or the “fame” (oh god if any of you want fame, more power to you, but I’ll take money over fame ANYDAY)– what the hell was I in this for?
The “dip” in Godin’s “the dip” is the long slog you enter into with pretty much every new skill you’re looking to acquire. It’s after that first blush of fun and rush of getting good pretty quickly wears off (the way I felt after I went to Clarion, when I felt like I advanced 2 years in my craft in just six weeks), when all the sudden shit gets really hard, and you’re not seeing the results commeasurable with the effort anymore. It’s getting to that point when you’re finally getting personal rejection slips, but haven’t gotten a sale. It’s that time when you’ve already got a book published, but are pushing ahead to try and prove yourself with the next one. It’s the long slog when “getting better” takes far more effort than before, with less noticeable results.
And, unsurprisingly: the “dip” is when most people quit.
Godin argues that this is completely natural, this quitting. It’s part of the process. If we didn’t have the long slog, everybody would be a surgeon, or a lawyer, or a writer or a movie maker. Why not? Afterall, if you’re always seeing results that are exactly in line with your efforts, it doesn’t feel like a con – it feels like a natural progression. But we’re not all cut out to be lawyers and moviemakers.
The natural progression is the naïve way we *think* things are supposed to work. We think our results and our efforts should match. But no.
Tons of people quit a new task just as it’s paying off there on the first rise. That’s totally fine if you’re pursuing something as a hobby. I am only going to get so good at gardening, or modding ponies, or making terrariums. I’ve reached the level I want to reach. I’m cool with not getting better. People who want to be the best at something, though, who want to be better than everyone else – who want to be master gardeners or master pony modders – need to keep going, keep pushing, keep improving, and inevitably, they hit the dip. The long slog.
The worst time to quit the dip, as shown in the graph, is right at the end, just when it’s starting to pay off. I’d say this is like quitting sending out stories just as you’re starting to get your first personalized rejections. Horrible time to quit. You’re actually just starting to come out of it.
The tricky part is that for many writers, there isn’t one dip. There are multiple dips.
This is something that Godin kind of glosses over. You may, indeed, be getting better at your craft over time, and sell some books, but just because you’re getting better doesn’t mean the market is prepared to support you. You can suffer from imploding publishers, bad marketing, bad covers, bad timing, messed up distribution, or any number of external things that can negatively impact your career. If your sales numbers due to these external screw ups are bad enough, it can completely fuck your career.
It can send you right back to the bottom of another dip.
This is where I felt I was when I started reading this book. Like I’d reached some kind of unending slog of a fucking place. On the one hand, yay, my first book did OK! On the other hand, shit, half my sales were ebooks and so when you look on Bookscan (which both other publishers and booksellers do) it looks like I sold half what I actually sold. On Bookscan, it doesn’t look like I have two books that earned out their advances already. It looks like a fucking trainwreck.
And thus: the dip.
I started to wonder why I was still in this writing game, committing myself to a profession with long periods of slog that continually threw me back into the dip. If my definition of success wasn’t money or fame or copies sold, what the fuck was it? Because to stay in this game, I needed to have another metric. I needed something else to drive me forward.
Enter ConFusion, that regional convention I went to. This is the second time I’ve gone. The first time, I felt like an imposter, sort of running around looking for people to talk to like some desperate n00b. I felt wayward in the bar. I did all right on panels, but that writer-stuffed barcon going on felt like something happening in another world. Trying to break into it took more effort than I possessed.
Things happened a little differently this time.
Something has kicked loose in the last two years – maybe because of all the blogging, and how active I am on Twitter – but all the sudden I went from being nobody who didn’t have anyone to talk to to somebody people recognized, and to feeling comfortable around a bunch of writers I’d thought were way out of my “league” (Scalzi has a great post-ConFusion post with baseball metaphors you should check out), most of whom I’d interacted with enough online that they almost felt like old friends.
In truth, I was so relaxed with the small bunch who showed up Thursday night I even had a few drinks with them – usually a no-no for me at cons, which I consider business events (my spouse insists I didn’t say anything I wouldn’t have sober. I just said it MORE LOUDLY). It turned out that folks I knew in passing, or only knew online, were even more awesome in person than they were virtually, which was pretty awesome. Most importantly, I was really comfortable with them, which for somebody introverted and anxiety-ridden like me, was a huge relief. People started coming up to me who certainly didn’t know me two years before. Something had changed in the way folks perceived me. All the sudden, after ten years of slog, some sort of “ah yes, you too are a veteran of this rewarding and yet often so shitty business” thing kicked in, and going to the bar to mingle was suddenly easy instead of anxiety-inducing.
But the most valuable part of this con wasn’t just in feeling like I was part of the community. It was realizing in speaking to folks that it’s fucking hard for everyone. That there are dips in careers. That people you maybe think are selling millions of copies… aren’t. That people you think have quit their day jobs… sure as fuck have not. That sales weren’t always stellar. That reputations built on blog posts are, indeed, only built on blog posts. That everybody fucking hates bad reviews, and fucking reads them anyway.
This is, indeed, the game. There are no guarantees. All you have are the words, and your own persistence.
Going to ConFusion was a really good thing for me. Writers work in isolation, and when you’re yelling at the keyboard, alone, staring at sales numbers, alone, and waiting on responses from potential publishers, alone, it can wear you down. I live in Dayton, Ohio, which doesn’t exactly have a rollickingly community of progressive writers, and my best friend moved away last year, so I’ve been even more isolated than usual recently.
So when I came home from this con, I was reminded that I wasn’t alone, and that not only were there people in my shoes, who had gotten through rough patches like mine, but there were people actively rooting for me, too. A lot of really fantastic people.
Writing fiction, for me, is not like gardening or making terrariums. Writing fiction is something I want to be exceptional at. It’s something I want to continually get better at. It isn’t something I want to quit – no matter how many dips I have to churn through along with my colleagues.
That’s when I realized that my definition of success needed to change. Because if I started chasing big money and sales numbers (which I would still LOVE, naturally, and continue to aspire to), it was highly likely I’d be miserable, at least for a few more years, and then miserable again when, inevitably, I hit another dip. Instead, I needed to have a new definition.
And that definition of success, I realized, was the act of persistence itself.
If I’m still in this game, throwing words at the keyboard and spouting off at cons, a decade, two decades, four decades from now, then fuck it – I’m a success. Because the number of dips I’ll have pushed through and overcome by then will be multitudes.
Winning is bouncing back. Winning is persisting. Your mileage may vary.
The system is made to make as many people fail as possible, and the only part of it you can control is whether or not you get up to fight another day.
That’s all I have.
Like the saying goes, “Fall down seven times. Get up eight.”
That’s the recipe, for me. That’s where the magic happens, for me - that long moment you’re on the mat, sucking air, that seventh time you get hit, when you’re not sure if you can get up.
And then you do.
You get up eight.
Honestly the dwarves (especially Thorin) were insufferably rude to everyone they met on their journey. Thranduil was the only one who caught them without their wizard.
This guest post was conceived of by Piyali Syam and authored by Eric Jokinen. Piyali is Managing Editor of LLM Info, where she occasionally writes about Middle Earth legal problems as well. Eric got his J.D. at the University of Southern California, and was an associate at Proskauer Rose in New York before branching out and becoming a full time freelance writer. Thereafter, he somehow got involved in attempting to analyze the legal problems of fictional characters.
The Hobbit and Refugee Law
With the recent release of the movie The Hobbit: The Desolation of Smaug, we thought it would be interesting to offer a bit of legal analysis to go along with the film. The central story is one that involves the displacement of a group of dwarves from their homeland by a conquering dragon, and it made us wonder—what would happen to the dwarves under modern international refugee law? What about the dragon? And what of the dwarves’ treasure hoard? Below, I will attempt to answer some of these unique questions.
It’s tempting to say that this entire post is a flight of fancy, given that we’re talking about fantastical beings. But since it seems that just like real-world dictators, dragons don’t bother themselves with the dictates of international law, the parallels may be closer than you might think.
Background facts – the dwarves’ expulsion from the Lonely Mountain
According to Middle Earth lore, the dwarves were the first to inhabit the Lonely Mountain. Originally, it was used as a mining colony. Over many years, however, it developed into a central stronghold of a major dwarvish kingdom.
The dwarves of the Lonely Mountain were a prosperous people, and their mining activity yielded an extraordinary amount of precious metals and gems. Unfortunately, this attracted the attention of Smaug, a fire-breathing dragon. One day, he attacked the Lonely Mountain, and killed and drove out the dwarves. The surviving dwarves, led by Thorin Oakenshield, fled and went to live in exile in the Blue Mountains.
Back to reality – basic international refugee law
Refugee law on Regular Earth is governed mainly by the Convention Relating to the Status of Refugees of 1951 and the Protocol Relating to the Status of Refugees of 1967, to which most nations are parties. The primary international organization tasked with facilitating the proper treatment of refugees is the United Nations High Commission on Refugees (UNHCR).
So, who is a refugee under international law? A person who:
- Is outside his or her country of nationality or if he or she doesn’t have one, outside his or her country of former habitual residence;
- Has a “well-founded fear of persecution” due to race, religion, nationality, membership in a particular social group, or political opinion; and
- Is unable or unwilling to return to their former country and attempt to avail him or herself of the protection thereof.
If a person meets this definition, he or she is entitled to a number of protections. Even if a person does not meet the definition, however, principles of customary international law generally still provide that person with some protection. For example, the principle of non-refoulement provides that a person should not be expelled or returned to the “Frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.” There is also the 1984 Convention Against Torture, which prohibits the forcible removal of persons to a country where there is a real risk of torture.
So, where do the dwarves stand?
The dwarves are in an interesting situation.
Assuming that the Lonely Mountain was a sovereign nation under the control of the dragon Smaug, the danger is clearly too great for them to return there. The probability is quite high that, if they attempt to return home, they will be killed. And it can be argued that this danger is due to their race, nationality, or even political view. Thus, it seems that they might be entitled to protection as refugees under the laws of Regular Earth.
But the dwarves aren’t seeking asylum, and this changes things.
If the dwarves wanted to stay in the Blue Mountains, or the Shire, it would be a different question. But everyone knows that a soft life in a hobbit hole with a dozen meals a day doesn’t suit the pleasures of the dwarves. They prefer to occupy themselves with mining and smithing. Instead of settling somewhere new, the courageous lot decided to retake their mountain—thanks in part to the persistence of Gandalf the Grey, who is a notorious troublemaker or one of the saviors of the world, depending on whom you ask.
They’re not asking anyone to allow them to settle within their borders. Instead, they mainly need material support and safe passage through various nations. Sadly, however, many of their actions on this quest, as detailed in J.R.R. Tolkien’s novel The Hobbit, would probably lead to their lawful arrest.
Detention of the dwarves
Take, for example, the dwarves’ detention by the elves of Mirkwood. While it’s true that detaining a refugee is generally presumed to be inappropriate, this rule is fairly broad. It even covers refugees that enter a country illegally, provided that they’ve come directly from their homeland and present themselves to authorities without delay. There are certain exceptions, however. An authority may detain refugees if time is needed to make an asylum determination or to verify identity, to name a few purposes.
Unfortunately for the dwarves, by the time they reach Mirkwood, they’ve traveled through a number of nations (without so much as a single passport stamp). Accordingly, the elves of Mirkwood were probably within their rights to apprehend the dwarves after finding them in conflict with giant spiders. This provides them with an opportunity to control the situation while attempting to properly verify the dwarves’ identities and immigration statuses.
Okay, so the dwarves aren’t asking anyone for asylum. Amazingly, they actually want to return home. So what happens to those refugees who want to go back? Well, there is historical precedent for voluntary repatriation, but it generally requires the participation of the government of the country the refugees want to return to. And, like difficult regimes back here on Regular Earth, there are no indications that Smaug wants to pursue a repatriation initiative—which means that the dwarves’ only option to return home is war.
Could Smaug ever become the rightful “owner” of the territory of the Lonely Mountain?
Under U.S. real estate law, a person can become the legal owner of the real property of another by “adverse possession.” This requires the new owner to make use of the property for a certain period of time and meet a number of other requirements. In our hypothetical scenario, however, Smaug is a conqueror of a nation, so adverse possession may not be the right way to view the situation.
In the context of war, the so-called “right of conquest” once was a principle of international law that legitimized conquerors of nations. Now, however, “wars of aggression” (i.e., not for self-defense, but for territorial or other gains) are negatively defined in U.N. Resolution 3314, but are not illegal per se.
War crimes, however, are illegal. Murder is a war crime that Smaug is likely guilty of in connection with his taking of the Lonely Mountain. As a war criminal, he likely would not be allowed to remain in possession of the Lonely Mountain. This includes the loss of the masses of gold and jewels within it, along with the key symbol of dwarvish royalty, the Arkenstone.
Finally, a good idea for USPS!
From The Washington Post:
The Internet has been blamed for the death of the mail, but now it’s offering hope to the beleaguered U.S. Postal Service.
Amazon announced Monday that it will begin Sunday deliveries using the government agency’s fleet of foot soldiers, office workers and truck drivers to bring packages to homes seven days a week.
To accommodate the online retailing giant, the Postal Service said it will for the first time deliver packages at regular rates on Sundays. Previously, a shipper had to use its pricey Express Mail service and pay an extra fee for Sunday delivery.
The initiative will begin immediately in Los Angeles and New York and spread to the Washington area and much of the rest of the nation next year, Postal Service officials said. The partnership should help the turnaround effort underway at the financially strapped Postal Service, they said.
Link to the rest at The Washington Post and thanks to Meryl and others for the tip.
Awesome idea... who's going to make it happen?
From the September 2013 issue of Locus Magazine
Project Paperless LLC, a strange company whose ownership is shrouded in mystery, wants $1,000 for every person in your company who scans documents and e-mails them. They claim that they have a valid patent covering this ‘‘invention,’’ and while $1,000 per employee is a lot of cabbage, it’s nothing compared to what it would cost you to prove to a court that the patent is as bogus as we all know it to be.
They’re ‘‘patent trolls,’’ part of a massive, corrupt industry that extorts an estimated $29 billion from American companies every year. They exploit the fact that the US Patent and Trademark Office is chronically underfunded and that it has a howling void instead of a sense of solemn responsibility when it comes to ensuring that it only grants patents on actual inventions that were actually invented by actual inventors. The USPTO rubberstamps patents on every conceivable ‘‘invention,’’ from a method for making ‘‘sealed peanut butter sandwiches,’’ to podcasting, to putting links in e-mail, to operating an online shopping cart, to scanning documents and e-mailing them, to using a GPS to tell transit passengers when the next bus will be along.
Everybody pays the price for this: products cost more, companies hire fewer employees (or don’t get started at all), public services like city buses charge more or serve less. The patent trolls don’t produce products, they produce lawsuits. They make derivatives traders seem socially useful. And though the Obama administration has pushed for some kind of patent reform, I’d be totally amazed if any really toothy legislation gets passed in this government or any other in the foreseeable future.
That’s patent trolls. But there are copyright trolls, too: law firms owned by interlocking, anonymous shell companies who send out letters to hundreds of thousands of Internet users threatening to sue them for downloading hardcore pornography with juicy, embarrassing (often LGBT-inflected) titles. Pay us now, the demand letters say, or we will forever link your name with Untamed Anal XVII in the public record, where it will fester and surface every time a potential mate or employer googles you. It will cost you hundreds of thousands to defend yourself, and even if you win, you’ll lose. Or you could just pay us a couple grand and we’ll go away and pretend this never happened. Needless to say, copyright trolls do only the most cursory research to establish the guilt of their victims, many of whom have never downloaded the videos in question – but even the totally innocent are likely to arrive at the conclusion that paying the blackmail is the safe and smart path.
If patent trolls manage to make derivatives traders look good by comparison, then copyright trolls make even the patent trolls look upstanding. One German firm specifically targeted members of the clergy, staff at Arabic embassies, and cops, on the grounds that these people would be especially vulnerable and so likely to pay with a minimum of fuss.
Finally, there are the out-and-out copyfraudsters, companies who claim to hold copyrights they don’t own – sometimes copyrights that expired decades ago, though that doesn’t stop them from threatening people who use ‘‘their’’ copyrights without paying for a license. The best example of this is probably ‘‘Happy Birthday’’, which Warner/Chappell claims to own a copyright over. Anyone who researches the matter – as plenty of credible scholars have – will tell you that ‘‘Happy Birthday’’ wasn’t written when Warner says it was, that its copyright wasn’t renewed when they say it was, and that in any event, the renewal wasn’t correct – and that there is absolutely no question that ‘‘Happy Birthday’’ is in the public domain. None.
And yet, people pay for it. Millions. If you’ve eaten in a chain restaurant where they sing some stupid ‘‘birthday song’’ you’ve never heard of, that’s because they’ve decided to write their own music rather than paying danegeld to Warner, and they’ll have forbidden their employees from singing the familiar words. Every time you’ve heard ‘‘Happy Birthday’’ performed in a movie – even a documentary, where real people are captured really singing the song we all sing in their own homes – that performance has included a license fee. Part of the price of every movie with ‘‘Happy Birthday’’ you’ve ever bought, rented or downloaded went to Warner in license fees for a copyright that they don’t own. ‘‘Happy Birthday’’ isn’t Warner’s copyright. It belongs to no one. Or everyone. They have stolen a song that we sing around our tables in moments of joy and claimed it for their own. They are charging rent on the public domain.
But not for long, maybe. Good Morning To You Productions Corp, producers of a forthcoming documentary, aims to fight Warner over the question of ‘‘Happy Birthday’’’s copyright in court. The subject of the documentary is ‘‘Happy Birthday’’ and Warner’s monumental, decades-long fraud, so getting sued by Warner is effectively part of their production plan. Which is good news for ‘‘Happy Birthday,’’ but not so much for all the other works claimed by copyfraudsters.
Why has Warner gotten away with its theft of ‘‘Happy Birthday’’ for so long? Because the interests of all the people who pay the license fee are diffused, and Warner’s interests are concentrated. For any one licensor, the rational course of action is paying Warner, rather than fighting in court. For Warner, the rational course is fighting in court, every time.
In this regard, Warner is in the same position as copyright and patent trolls: the interests of the troll are concentrated. Their optimal strategy is to fight back when pushed. But it’s the reverse for their victims: the best thing for them to do is to settle.
Collectively, though, the victims are always out more than the cost of a defense. That is, all the money made by a troll from a single stupid patent is much more than the cost of fighting to get the patent invalidated. All the money made by Warner on ‘‘Happy Birthday’’ dwarfs the expense of proving, in court, that they weren’t entitled to any of it.
The reason the victims don’t get together to fight back is that they don’t know each other and have no way to coordinate among each other. In economists’ jargon, they have a ‘‘collective action problem.’’
That’s where the Internet comes in. The Internet has many profound effects on society, but lowering the cost of collective action is the most significant, and it’s just getting started. Take Kickstarter, for example: Kickstarter implements an old idea called ‘‘The Street Performer Protocol.’’ This is a thought-experiment for making money on creative works, inspired by buskers.
Imagine a busking magician who does a series of tricks – some card magic, a bit of this-and-that with coins, some knife-juggling. Then, as the crowd reaches its peak size, she says, ‘‘All right, for my grand finale, I’ve got an amazing trick. I will make my arms change place with my legs, right before your eyes. And I will do this trick as soon as there is $100 in my hat.’’
The magician doesn’t care who pays, nor who watches. She just cares about getting $100. If there is $100 in the hat, she does the trick. If there isn’t, she goes home. If she does the trick, everyone gets to see it, even the people who put nothing into the hat.
The Street Performer Protocol proposes that an artist with some following could make a go of it by releasing some material for free, then withholding the climax until sufficient donations have materialized. Various attempts have been made to make the Street Performer Protocol work over the decades since its codification, but Kickstarter is the first runaway success. At a guess, I’d say that this is because Kickstarter stripped back their implementation to bare basics.
Previous SPP solutions have concentrated on the issues of trust in collective action – specifically on escrowing the money until the ‘‘performer’’ delivers the ‘‘trick.’’ You get the $100 in the service’s hat, prove that you did your bit, and then the service gives you the $100. That makes sure that ‘‘performers’’ don’t just take the money and run, but it also means that the service is only useful for projects where you aren’t using the money raised to capitalize the thing you’ve promised – great for novels, not so much for feature films.
Kickstarter made a bet that by ditching escrow-until-delivery, they’d succeed where others failed. That is, they bet that the losses from the occasional screw-up or rip-off would be offset by the greater variety of projects on offer and the massively reduced administrative costs from not having to confirm that the trick had been done to spec before the money was released. They adopted Brian Eno’s wise aphorism: ‘‘Be the first person to not do something that no one has ever thought of not doing before.’’ It worked.
Back to the trolls and the copyfraudsters, and their victims’ collective action problems.
Imagine a Kickstarter-style service for a new kind of class-action lawsuit: the class-action defense.
Class-action lawsuits are an important mechanism for solving collective action problems. A single large company can make millions by cheating its customers out of a few dollars apiece. For those customers, the individual cost of paying to sue for redress dwarfs their losses. But if a canny, motivated lawyer can get a class of plaintiffs certified as representing everyone who got screwed by BigCo, she can make millions suing the company on their behalf. The company then has to refund everyone their small handful of dollars – which means they lose the millions they ripped off – and they have to pay the class-action lawyer’s fees – millions more. The mere threat of class-action suits has kept untold companies on the straight-and-narrow.
Class-action suits rely on an official mechanism for solving the collective-action problem. Lawyers who want to represent a class of plaintiffs convince a judge to ‘‘certify’’ their class, which means they can represent all of the aggrieved parties without having to track down each of them, one at a time, and talking them into joining the suit (the members of the class can still opt out of the settlement at the end of the process, if they think they can get a better deal on their own). Without certification, there would be no class-action suits.
There is no certification for class-action defenses, because until trolls and copyfraudsters, there was virtually no need for such. Convincing Congress to create class-action defenses might take as long as simply convincing them to fix the patent and copyright messes, and would leave innumerable victims to hang in the meantime.
What would a Kickstarter for Class Action Defense look like? Imagine if you could pledge, ‘‘I promise that I will withhold license fees/settlements for [a bad patent/a fraudulent copyright fee/a copyright troll’s threat] as soon as 100 other victims do the same.’’ Or 1,000. Or 10,000. Hungry, entrepreneurial class-action lawyers could bid for the business, offer opinions on the win-ability of the actions, or even start their own kickstarters (‘‘I promise I will litigate this question until final judgment if 1,000 threat-letter recipients promise to pay me half of what the troll is asking.’’)
Basically, it’s the scene where the villagers decide to stop paying the bandits and offer the next round of protection money to the Magnificent Seven to defend them.
There’s a lot to like about this solution. Once a troll is worried about a pushback from his victims, he’ll need to raise a war-chest, and since the only thing a troll makes is lawsuits, he’ll start sending more threats. Those threats will attract more people to the kickstarter, raising its profile and its search-rank. The more the troll wriggles, the more stuck he becomes.
We could spin out a thousand possible variations on this – a pro-rated refund if the lawyer wins without spending all the money, or preferential shares to early entrants; a traditional plaintiff’s side class-action sister-project that goes after trolls who’ve lost their suits and uses their defeat as the basis for stripping them of every asset to their underwear and redistributing it to victims (and lawyers, of course – though that’s not a bad outcome, since it means lawyers might be willing to spend more on the ‘‘defense’’ part of the action in the hopes of a bigger payout down the line).
It’s not all perfect. There’s still the collective action problem of getting people to pay what they’ve promised. And the named defendant in the suit has to be willing to hang in there for the long haul, possibly through a decade-long ordeal of appeals. The trolls will play games, dropping suits against participating defendants, so you need to have a lot of defendants in line to take their place.
In the case of patents, there’s an additional wrinkle in that a win for one might not be a win for all – some claims in the patent might survive the suit, and some defendants might be violating those claims.
But if there’s one common thread running through the stories of people on the receiving end of these threats, it’s outrage. Getting screwed by thieving, amoral ripoff artists sucks. The reason people give in to the blackmail is because it is unimaginably, impossibly expensive to fight back. I think that if we can nudge ‘‘unimaginable and impossible’’ into the realm of mere ‘‘expensive and time-consuming,’’ we’d have armies lining up to hand these crooks their asses.
What’s more, this is a generalizable solution with a problem-space much larger than mere trolling. Economists talk about ‘‘negative externalities’’ – when someone does something that benefits him a little, and costs society a lot. If you dump your toxic waste into the water, you save a little money, and we pay a fortune to get it out of the water again. The cost of proper disposal is a tiny fraction of the cost to society, but it’s still more than the savings you make from tipping waste into the river.
But the interests of people who rely on the water are diffused, and the interests of polluters are concentrated at the point of the effluent-pipe.
Ideally, regulators, watchdogs, and cops will solve this problem, but for that, we need good laws. Guess what? The interests of people who profit by polluting, selling unfit-for-purpose merchandise, pushing poison as food, getting rich on exotic financial derivatives, and every other corrupt enterprise are concentrated, with the pointy end of that concentration represented by an industry association and a K Street lobbyist’s office in Washington DC. The interests of those of us who get bilked, poisoned, and screwed eight ways to Monday? Diffused.
The important thing is that the victims bear a higher cost than the profit they generate for their attackers. A robo-signer in a foreclosure mill makes a little on the house he steals; the cost to the family that lived there is vastly higher. If the victims could locate each other, pool their resources, and fight back, they could outspend, outmaneuver, and out-flank the whole herd of rough beasts and the paymasters whose brand they wear.
When I was working in San Fransisco, my office was actually right across the street from the CNET building. This was before Giantbomb.com.
It wasn’t until the site was well established that I was introduced to the personalities of Whiskey Media by a co-worker. Since then, I’ve pretty much have had their videos and podcasts running on a side monitor at all hours while I work. I like having that noise as it reminded me of my times growing up and playing video games with my friends late into the night; Something adulthood hasn’t had nearly enough supply of in comparison.
That’s why I feel like I’ve lost a friend with Ryan Davis’s passing even though we’ve never so much as exchanged a word. I’ve always wanted to get together a quick sketch or a fan art for those guys as a thank you. After all, I love getting fan art myself. I had fun making the above one, it’s just a shame it took loss to get me to take the time to do it.
You’re already missed, Ryan. I hope where ever you are, it’s TUUUUUUUESDAY.
Good news! The movie is more like the book than the trailers lead you to believe!
While I'm not a rabid, brain-eating fan of the zombie apocalypse genre, I've enjoyed zombie films before (most recently the ZomRomCom Warm Bodies) and the trailers for World War Z had me excited for the movie. That scene with the zombies acting like ants, climbing on each other to scale a wall, was delightfully disturbing.
Well, if World War Z has a fault, it's those trailers, and I can only tell you why it's a fault by offering up a bit of a spoiler.
SPOILER ALERT: all of the big action moments in the film are covered in the trailers. The zombie ants, the commercial flight, the helicopter, the rooftop, the streets of Philly... all there. Sure, there's more to those scenes, and you don't get the whole story from them, but the trailer is very much a set of storyboard chapter headings.
Fortunately, the trailer's storyboarding won't take you all the way to the end of the movie the way Fast & Furious 6's trailer did. The final act is almost completely absent from the trailers, and this is really refreshing. Unfortunately (maybe, depending on your tastes) the final act doesn't have any of those big action moments. It's tense and exciting and scary and hopefully heroic, but nothing explodes. So, yeah, I'm whining a bit.
I haven't read the book, but I've been assured that the movie is its own creature. Don't go see the film expecting the book to be brought to life on the big screen. Go see the film because you want to see a good zombie apocalypse film with some new zombie behavior, and the fresh horrors that behavior provides. Also, enjoy a movie that lets you mourn the loss of millions (upon hundreds of millions, maybe billions) of people in a personal sort of way. This isn't the faux grimdark, disaster-porn that Man of Steel provided. This is the real deal.
Did I have fun? Yes. Yes I did. I don't like being tense, I don't like being startled, and I resent a trailer that telegraphs the big punches, but I enjoyed myself anyway. World War Z comes in at number 6 for me this year (where it can cuddle up to Warm Bodies, which seems fitting.)
Today we have a post based on a question from David, who asks:
I just watched Batman: Year One on Netflix, and there was an interesting issue presented that I thought I’d share. Toward the end of the movie, the corrupt Detective Flass is under indictment for involvement in a big drug scheme. Commissioner Gordon (through Batman’s intimidation) gets one of the crooks involved in the scheme, Jefferson Skeevers, to agree to testify against Flass.
Upon hearing this, Flass tells Gordon something along the lines of “he won’t testify if I have something to say about it…” The scene cuts to Skeevers unconscious in a hospital bed. Assuming Skeevers has confessed in a police statement out of court, wouldn’t this still be admissible against Flass under the forfeiture exception to hearsay as long as the prosecutor can show Flass had something to do with Skeevers hospitalization?
The Batman: Year One movie David mentions is a faithful adaptation of the classic Frank Miller graphic novel of the same name, several elements of which were integrated into the Christopher Nolan Batman films. The book or animated version are well worth checking out. We even gave away five copies of the book to celebrate our own year one.
Anyway, back to David’s question. Before we worry about whether any hearsay exceptions or exemptions apply we have to decide whether Skeevers’s statement would be hearsay in the first place. We don’t know what rules of evidence apply in a local criminal case in Gotham, but we’ll use the Federal Rules of Evidence, since many state rules are based on or are very similar to the FRE.
I. Is It Hearsay?
Under FRE 801, hearsay is an out of court statement (i.e. an oral, written, or nonverbal assertion) offered to prove the truth of the matter asserted in the statement. In this case, we’re supposing that Skeevers made an oral or written assertion that Flass was involved in the scheme, Skeevers did so out of court, and the prosecution would offer Skeevers’s statement in order to prove that Flass was, in fact, involved in the Scheme (i.e. as proof that what Skeevers said was actually true). It doesn’t matter whether the prosecution did this by offering a recording, a signed statement, or the testimony of a police officer who interviewed Skeevers. All of that would be hearsay.
You might think about the exemption for statements ”made by the party’s coconspirator during and in furtherance of the conspiracy”, but although Skeevers and Flass may have been coconspirators at one time, these statements were not made during or in furtherance of the conspiracy. Indeed, they were probably made as part of some kind of plea bargain or immunity deal. Without any applicable exemptions, the statements are indeed hearsay, which is ordinarily inadmissible.
Normally this could be overcome by having Skeevers simply testify in person, which would give the jury a better opportunity to judge the truthfulness of his statements, and it would give the defense an opportunity to cross-examine him. But Skeevers is lying unconscious in the hospital, apparently because Flass or someone acting at his behest put him there. So now what?
Now we turn to the hearsay exceptions, of which there are several. Some of them apply whether the declarant is unavailable or not and some of them only apply if the declarant is unavailable. That said, it appears that only the latter will apply in this case.
II. FRE 803 and Recorded Recollections
You might think that if Skeevers had made a written statement for the police that his statement could be introduced as evidence under the recorded recollection exception of FRE 803(5). After all, FRE 803 states that “The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness” (emphasis added). And such a written statement would seem to fit the bill for 803(5):
A record that:
(A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;
(B) was made or adopted by the witness when the matter was fresh in the witness’s memory; and
(C) accurately reflects the witness’s knowledge.
Skeevers clearly once knew about Flass’s involvement but also clearly cannot now recall it well enough to testify fully and accurately: he is unconscious. The statement was made when the matter was fresh in his memory, before the incident that caused his injuries. And we’ll assume that it is an accurate statement.
But despite the phrase “regardless of whether the declarant is available as a witness“, the courts have been uniform in holding that 803(5) only applies when there is a witness available to testify that they can’t recall the matter reflected in the record. See, e.g., Steinberg v. Obstetrics-Gynecological & Infertility Group, P.C., 260 F.Supp.2d 492 (D.Conn. 2003) (the argument that 803(5) applies to an unavailable declarant “borders on frivolous”); Jacobson v. Deutsche Bank, A.G., 206 F.Supp.2d 590 (S.D.N.Y. 2002).
None of the other 803 exceptions are likely to apply in this case, so let’s move on to the heart of the matter: exceptions that apply only when the declarant is unavailable.
III. FRE 804 and the Unavailable Declarant
Declarants can be unavailable for a lot of reasons, one of which is when they “cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness”. FRE 804(a)(4). That definitely describes Skeevers.
Once a declarant is unavailable, there are some special exceptions that can apply to statement they made before they became unavailable. Two might apply in this case. David alluded to one of them (804(b)(6)) in the question:
The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness: … A statement offered against a party that wrongfully caused — or acquiesced in wrongfully causing — the declarant’s unavailability as a witness, and did so intending that result.
If the prosecution can prove that Flass caused (and that includes indirectly causing via an agent or conspirator) Skeevers’s injuries, then it’s pretty much a slam dunk to introduce Skeevers’s statements against Flass. After all, we already have Flass indicating his intent: ”he won’t testify if I have something to say about it…”
Another possibility is 804(b)(3), statements against interest:
A statement that:
(A) a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it … had so great a tendency … to expose the declarant to civil or criminal liability
This exception might apply if Skeevers made the statement before he struck an immunity deal. If he spilled the beans about his role in a criminal conspiracy in which Flass also played a part, confessing to multiple crimes in the process, then that would definitely be a statement against interest. But if he signed an immunity deal first and then talked, then his statements wouldn’t actually be exposing him to criminal liability and so the exception wouldn’t apply. If this did apply, however, it could be a useful backup in case the prosecution couldn’t prove Flass’s involvement in Skeevers’s unavailability.
Apart from the issue of proof, this is a classic example of 804(b)(6), which is a rule that meshes very well with most people’s intuition about fairness—and gives criminals a disincentive to intimidate or kill witnesses.
Lastpass doesn't make this situation any better, sadly.