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General comments. The handling of Matt’s professional life as a lawyer is generally much improved over the Netflix series, possibly resulting from the involvement of lawyers in the writers’ room before the reset. One thing that I particularly appreciate is that the lawyers talk like lawyers and not like a non-lawyer’s idea of how lawyers talk.
Because it’s a TV series, we don’t see complete legal proceedings, but much of what we see is fairly accurate. That being said, we can’t expect total realism. Some things will always be done for dramatic effect or to keep the story moving along.
Before the reset, Daredevil: Born Again was intended to be an episodic legal drama. This means lots of Lawyer Matt and many legal issues. So let’s get started.
Murdock & McDuffie, Attorneys at Law. After the one-year time jump in episode one, we see Matt going to work in the rather nice offices of his new law firm, Murdock & McDuffie. (I especially like the glass-walled conference room.) They’re a big step up from the offices of Nelson & Murdock in seasons one and two. They’re also a step up from the storefront office of Nelson Murdock Page that we see briefly at the beginning of the episode. (Oh, how I wish we’d seen Matt, Foggy, and Karen working together in that storefront.)
The firm is not just Matt and Kirsten, the partners; they have employees: Cherry, their investigator, at least one associate attorney, and probably others who aren’t seen or mentioned on screen. And in episode five, we learn that the firm wants to expand, hiring additional associates and moving to larger offices.
Apparently, Matt has finally accepted that it takes money to run a law firm or, in the words of the senior partner in my old firm, “Cash flow is life.” In fact, it’s Matt who goes to the bank in episode five to request the loan (probably a line of credit) to pay for the firm’s planned expansion. Still, in his heart he’d probably prefer to work for free. In episode two, Hector Ayala tells Matt he can’t afford him, and Matt tells him not to worry about it. Whether they got paid for representing Hector is unclear.
Still, Matt and Kirsten have overhead, plenty of it, with paying the rent on their nice offices, meeting payroll for their employees, and all the other expenses involved in running a law firm, not to mention paying themselves so Matt can afford his nice apartment and his well-tailored suits. So what type of practice enables them to pay their bills? When he is trying to persuade Kirsten to take Hector’s case, Matt reminds her that they set up the firm to take on the hard cases, the “impossible odds work.” Hector’s case probably would fall into that category.
There’s at least some “white-collar” criminal defense work involving financial crimes, like the Madison case, where the client embezzled money from a group of teachers. The clients in those cases could afford to pay them and would be billed at an hourly rate or a flat fee paid up front. (I hope they got paid up front for the Madison case.) They may also handle civil cases. There are several mentions of depositions, and in New York, a deposition would take place only in a civil case. A couple of big contingency fees in serious personal injury cases would go a long way toward keeping the firm afloat financially.
Over the course of the season, we see only two other cases. In episode two, we see Matt talking to a family member of the client, who is charged with a DUI. In episode four, Kirsten asks Matt to handle Leroy Bradford’s case as a favor to someone (more on that case later). Both of these cases seem like outliers, probably not what the firm usually does. I wonder if the client in the DUI case is a former client of Nelson & Murdock.
One final question: does Matt actually have his own office in that nice office suite? We only see him working in the conference room.
Poindexter’s sentencing. The sentencing we see on screen is only part of what would have been a longer hearing, but what we see is generally accurate. Matt’s only role is to give a victim impact statement, which is a common part of sentencing hearings; in this case, with multiple victims, there likely would have been other victim impact statements. Poindexter was convicted of 11 counts of first degree murder and sentenced to life without the possibility of parole on each count, to be served consecutively. This is the correct sentence. (New York Penal Law section 70.00.)
The Hector Ayala case. There’s a lot to unpack here, so I’ll break it down into separate issues.
Matt becomes Hector’s attorney. While speaking to a client’s family member at the police station, Matt hears cops beating Hector and demanding a confession. After Matt makes his excuses to the family member, the next thing we see is a cop admitting Matt to the interrogation room where Hector is. Matt’s not Hector’s attorney at this point, so how did he get in to see him? I like to think he talked his way into that room, just as he talked his way into the prison in season three. Matt then basically solicits Hector, telling him that he wants to represent him. In doing this, Matt’s on shaky ground ethically, unless he ends up doing the case pro bono. It isn’t clear whether Hector is already represented by an attorney at this time. At one point he asks Matt if he’s the public defender, suggesting he hasn’t yet met with an attorney. If Hector is already represented, that would be another ethical problem for Matt.
Bail hearing. The DA himself appears at the bail hearing. This is unusual. The DA is an elected official, more of a politician than an attorney, who doesn’t usually handle cases. But he might have decided it was to his benefit politically to handle a case of an alleged cop killing. Plus, this is a TV show, and having the DA prosecute the case personally adds an element of drama.
It was a foregone conclusion that the judge would deny bail, but I was a little surprised that the judge ruled without giving Matt a chance to speak. Matt went ahead and made the argument for bail anyway. I’m not sure this was a smart move, since arguing after the ruling is one sure way to piss off a judge.
Discovery of Hector’s secret identity as the White Tiger. This occurs after the bail hearing, so at least several days have passed since Hector’s arrest. I’m wondering why the White Tiger suit was still in Hector’s apartment to be found by Cherry. I would expect one of the first things the cops would do was to search the apartment.
“This is a tough case. The only way I can win it is if I know every way I can lose it.” You’re right about that, Matt.
The motion in limine. This is one scene that reflects the involvement of lawyers in the writers’ room. Non-lawyers and even some lawyers (those who don’t try cases) would not be familiar with motions in limine. A motion in limine is a motion made to obtain a pre-trial ruling on an important issue, usually involving the admission or exclusion of evidence, that is likely to arise at trial.
The scene in the judge’s chambers where Matt moves to exclude evidence of Hector’s secret identity as the White Tiger is a reasonably accurate, if condensed, depiction of a hearing on a motion in limine. In real life, the motion and opposition would be submitted in writing, and the motion would be argued in the courtroom on the record a few days before the scheduled beginning of the trial.
The scene shows a shortened version of the arguments that would be made on a motion of this type: why the evidence is or is not relevant; and why the evidence is or is not unduly prejudicial to the moving party (Hector, in this case). In this context, evidence is “unduly prejudicial” when it inflames the jurors’ emotions against the defendant personally and creates a risk they will decide the case on that basis instead of the evidence. (In this case, interestingly, the eventual disclosure of Hector’s secret identity apparently disposed the jurors favorably toward him.)
I have read some comments criticizing Matt for disclosing Hector’s secret identity to the prosecution and the court by making this motion. Matt was not disclosing a confidential communication from his client. Hector didn’t tell him he was the White Tiger; Matt learned this because Cherry found the costume. Nevertheless, this was the client’s secret, and Matt should not have disclosed it without talking to Hector and getting his permission. I am going to give Matt the benefit of the doubt and assume the prosecution had already learned Hector’s secret identity, as Matt predicted in his conversation with Hector at Riker’s.
General observations about Hector’s trial. Hector is “dressed out” in a business suit for the trial. This is as it should be. However, on at least one occasion we see Hector being brought into the courtroom in handcuffs when the jury apparently is present. This should not occur in the jury’s presence. The usual procedure is to have everyone in their places in the courtroom before the jury is brought in. Still, compared with Frank Castle being in jail clothes and visible shackles during his trial in season two, this is a big improvement.
On several occasions during the trial, we see one of the attorneys in the “well” of the courtroom close to the jury box. During his final argument, the DA is even leaning on the jury box, invading the jurors’ personal space. This is very much Not Done. For opening statements and final arguments, a lectern is usually set up facing the jury, and the attorneys address the jury from that location.
As you would expect, what we see on the screen is only bits and pieces of a much longer trial. In real life, the trial of this case likely would last two weeks or more and involve many more witnesses than those we saw, for example, the medical examiner. There is also little or no on-screen cross-examination of the witnesses we do see. Because the trial is so condensed and some things seem to take place out of order, it is sometimes difficult to figure out what part of the trial we are seeing.
Officer Powell’s testimony. On direct examination, the DA elicits testimony from Powell about what a good guy his (now deceased) partner was and what good friends they were. This testimony isn’t relevant and was presented to appeal to the jurors’ emotions. Matt and Kirsten could have objected on these grounds, but doing so might have alienated some jurors. Not objecting probably was the right call.
Matt’s cross-examination of Officer Powell would have been longer in real life. We did get to see Matt mocking Powell before starting his questioning, a typical Matt move (if not his smartest move) and something that is unlikely to occur in a real trial.
After rewatching the fight in the subway, I question whether Powell was even in a position to see how his partner ended up falling onto the tracks. Powell is lying face down on the platform and seems to be looking away from Hector and his partner. If Hector noticed this and pointed it out to Matt, I would expect Matt to cross-examine Powell on this point. I also wonder about security cameras. There are security cameras in NYC subway stations, but apparently no footage from them was used by either side at trial. Perhaps Powell chose a location that was not covered by cameras, or he disabled the cameras, or he deleted the recording.
The testimony of Nicky Torres, or witness intimidation works. After a thrilling dash to the courthouse utilizing Cherry as a decoy, Nicky takes the witness stand. Matt establishes his name and that he is a police informant before his testimony goes totally sideways, and he denies having been at the 168th Street subway station on New Year’s Eve, claiming he was at home all night. This is one of a trial lawyer’s worst nightmares: your witness suddenly blurts out something you’ve never heard before, or he contradicts everything he’s previously told you. All you want in that moment is for a trap door to open beneath your feet so you can descend into the courthouse basement.
Matt’s handling of this situation is odd, in my opinion. He withdraws Nicky as a witness. I have seen witnesses withdrawn before they testify, usually because it turns out their testimony is not needed. I have never seen a witness withdrawn in the middle of his testimony. In this situation, the judge probably would instruct the jury to disregard Nicky’s testimony. However, even Nicky’s brief appearance as a witness helps the defense, because it lets the jury see there is a real person whom Hector can later identify as the person Powell and his partner were beating. In my experience, most attorneys would have handled this situation differently.
Nicky’s collapse may have been shocking, but it should not have been unexpected. Matt, Kirsten, and Cherry knew Nicky was terrified, and he had good reasons to be terrified. They also knew he would be testifying in front of a courtroom full of cops. As Kirsten mentions, they prepared him for his testimony and what to expect when he was on the witness stand. Experienced trial attorneys like Matt and Kirsten also would have prepared for the possibility that Nicky wouldn’t come through. They could have had Nicky sign a written statement under oath recounting the events in the subway station. (Cherry would have handled this.) When Nicky lied on the stand, Matt could then confront him with his statement and ask him to affirm or deny its contents. If Nicky continued to deny being at the subway station or denied other parts of the statement, it would be admissible to impeach Nicky’s credibility. (Guide to New York Evidence, §§ 6.15, 8.33). In this scenario, Matt would be in the unenviable position of having to impeach the credibility of his own witness and perhaps overcome an objection by the DA that he should not be allowed to do so.
One downside of this approach might be that Nicky would then be subject to cross-examination by the DA. However, if he continued to deny even being at the subway station, it seems unlikely that he could say anything on cross-examination that would be more damaging than his testimony on direct.
If Matt and Kirsten took this approach, they would need to rely on Cherry to testify about Nicky’s fear and the preparation and signing of the statement. They would need to be very careful not to ask Cherry anything that might result in Matt becoming a witness, and Cherry, too, would have to choose his words very carefully. They definitely do not want to open the door to testimony about Matt’s role in helping Nicky escape or, worse, putting a beat-down on Powell and his crony.
One final note about Nicky’s testimony. He did not witness Powell’s partner falling onto the tracks. As soon as both Powell and his partner were occupied fighting with Hector, Nicky hightailed it out of the subway station and was long gone by the time of the fatal fall. He could not testify to what, or who, caused him to fall.
The decision that Hector will testify. In the aftermath of Nicky’s about-face, Matt, Kirsten, and Cherry meet back at the office and decide that Hector needs to testify. It’s usually not a great idea to have the defendant testify in a criminal case. Even a journeyman prosecutor can usually take apart the defendant on cross-examination. However, Hector testifying is their only alternative, because he is the only witness who can rebut Powell’s testimony about what happened on that subway platform. In addition, he seems like someone who would hold up well under cross-examination. However, the client, not the attorney, is the one who gets to decide whether to testify. I am going to give Matt and Kirsten the benefit of the doubt here and assume there was an off-screen meeting with Hector where they explained the pros and cons of testifying, gave their best advice, and let him make the decision.
Matt reveals Hector is the White Tiger. This is the big dramatic moment in the trial. The judge and the DA are outraged that Matt has just introduced the very evidence he got excluded, and the judge immediately calls them into chambers to chastise Matt. However, as it turned out, there really were no consequences for Matt’s violation of the court’s order excluding the White Tiger evidence. When I watched the scene for the first time, I halfway expected the judge to hold Matt in contempt of court for basically giving the court a middle finger salute. Alternatively, the judge might have told Matt there would be consequences, and he would decide this after the conclusion of the trial. Neither of these things happened.
The judge also decided not to grant a mistrial, apparently reasoning that the jury had already heard the White Tiger evidence. In my opinion, this was not a valid reason for not granting a mistrial. The ruling excluding the White Tiger evidence shaped how the trial was conducted up to that point. For example, if the White Tiger evidence had been allowed, both sides would have questioned prospective jurors about their opinions about the White Tiger and their attitude toward vigilantes in general. Both sides would have addressed the issue of Hector being the White Tiger in their opening statements. The prosecution might have introduced additional or different evidence during their case in chief. (The revelation that Hector is the White Tiger occurred during the defense case.)
Legal issues aside, the real reason there was no mistrial probably is that this is a TV show, and the show must go on.
I also question whether it was necessary for Matt to reveal Hector’s secret identity. Did he think he had to do it because of Nicky’s failure to testify as expected? Or was he concerned that Hector would fold under cross-examination, and the jury would not believe him? Or did he change course and adopt this tactic because of “who he was” (as Cherry correctly observed in another context)?
Whatever Matt’s reasoning was, the revelation was not spur-of-the-moment. It was planned. The White Tiger mask did not get in Matt’s briefcase by itself; it was there because he was planning to use it.
Finally, no reasonable attorney would have disclosed his client’s secret identity in violation of the court’s ruling and without discussing it with his client, but this move was totally in character for Matt Murdock. In the comics, he sued a tabloid for defamation after it outed him as Daredevil. (Apparently he missed the law school class where the professor mentioned that a defamatory statement has to be false.) In another comic, he took a case for a client who wanted to sue Daredevil. (Conflict of interest, much?) In another instance, Matt persuaded the courts to recognize a superhero’s identity as, for example, Daredevil or Spider-Man, as a person in the eyes of the law, separate from their true but secret identities as Matt Murdock or Peter Parker. (Now that's a legal fiction.)
White Tiger and character evidence. After the disclosure of Hector’s identity as the White Tiger, Matt’s defense theory apparently was that it was out of character for Hector/White Tiger to attack a couple of cops without provocation and murder one of them by throwing him under a subway train, as Powell claimed. However, there are some problems with this strategy, not to mention that the whole issue of character evidence gives me a headache.
The evidence that Matt and Kirsten present in support of this theory comes mainly from two witnesses, a man who testifies that Hector/White Tiger rescued his family from a burning car, and a woman who testifies that Hector/White Tiger saved her when she was being attacked. Kirsten also reads from a police report stating that Hector/White Tiger assisted an officer in subduing and arresting a suspect. Then Matt waves around several more apparently similar police reports, naming the officers who made them.
The first problem with this evidence is that, in New York, evidence of a character trait is not admissible to show a person acted consistently with that character trait on a specific occasion, unless character is in issue as a matter of substantive law. (Guide to New York Evidence, §4.09). Character is not an element of any of the crimes with which Hector was charged. Second, even if character evidence were admissible, evidence of specific instances of a person’s conduct is not admissible to show character. Only evidence of the person’s reputation for a character trait is admissible. (Guide to New York Evidence, §4.09). Third, it’s not clear whether the police report Kirsten was reading from and the reports Matt was waving around were admitted into evidence. It’s also unclear whether the reading and waving around occurred during the presentation of evidence or during argument.
All that being said, the evidence in question was admitted, and the jury was allowed to hear and consider it. Perhaps the DA did not object. As one cynical attorney once told me, “Anything is admissible as long as no one objects.” It’s not ethical, however, to present evidence that you know or should know is inadmissible. As experienced trial attorneys, Matt and Kirsten surely would know the rules of evidence. And I can’t imagine why the DA wouldn’t have objected. Still, Matt’s strategy was successful in the end, and it’s hard to argue with success.
The “difficult” client, aka the Leroy Bradford case. Matt gets an early morning phone call from Kirsten, asking him to cover an appearance in Leroy's case. So Matt puts on his business suit and heads downtown. If anyone was wondering what a lawyer's life is like, this is it. Having to scramble to cover an appearance or a deposition or a meeting for a partner or associate at the last minute is part of the job. Very realistic if you're a criminal defense lawyer or a civil litigator.
Leroy Bradford is charged with petty theft, specifically, stealing five boxes of caramel corn from the local bodega. The theft was caught on the store’s security cameras and witnessed by the clerk, and Leroy is caught with the boxes outside the store. This, along with Leroy’s long rap sheet, doesn’t give Matt much to work with.
Leroy has a shitty life and probably has had a shitty life since day one. The system that is supposedly trying to help him is difficult or impossible for him to navigate and sometimes hurts rather than helps. Matt wants to empathize with him, but he’s not a likeable guy (and not only because of his ableist comments about Matt’s blindness). And as Matt correctly observes, he’s brought a lot of his troubles on himself.
So what does Matt do as his lawyer? He can’t fix Leroy’s shitty life. He’s Leroy’s lawyer, not a social worker. Matt puts aside his unlikeability and his ableist comments, and does his best for him. In this case that means getting the best possible deal for Leroy, even if he realistically can’t get him probation, as Leroy demands.
Matt goes off to the misdemeanor arraignment courtroom to negotiate (and flirt) with the lovely Sofija, the ADA handling the arraignment calendar. He turns on the Murdock charm and makes a few legal points, and ends up getting a deal for 10 days in custody, which in practice will be less than that. This is a very good deal.
It’s a little unrealistic that Leroy would be pissed off at Matt when he comes back to tell him about the offer. He’s been through the legal system enough times to know that it’s a very good deal. But for some reason (never explained in the episode), he’s fixated on getting probation, despite his long rap sheet of similar petty crimes and failure to comply with the terms of probation in the past. Matt is unhappy that Leroy doesn’t appreciate his efforts and the good deal he obtained. He tells Leroy emphatically that probation isn’t happening and was never going to happen, but Leroy won’t accept it. He launches into a monologue about his truly shitty life. When Matt agrees, Leroy just shrugs and says it doesn’t matter.
Sadly, our society considers people like Leroy as disposable and begrudges every penny spent on them. Yet as Leroy correctly observes, feeding him would be cheaper (and more cost-effective) than incarcerating him.
The bank robbery and felony murder. In episode five (the bank robbery), Matt correctly tells Devlin, the leader of the robbers, that if anyone is killed during the robbery, it would be felony murder, for which the penalty is 25 years to life.
The Madison case. In episode eight, Matt and Kirsten meet with their client Thomas Madison, who is accused of embezzling or otherwise stealing funds from a group of teachers. Matt detects that Madison is lying when he denies stealing from the teachers. Matt loses it, telling the client he is lying and to let them know when he wants to discuss a plea deal. Matt then stomps out of the conference room.
Of course, it’s distressing to learn that your client is lying to you, but there are much better ways to handle the situation. Ordinarily, you (Matt) would cool off and have another meeting with the client, in which you calmly but firmly explain the facts of life to the client and let him know his options. This is sometimes called a “come to Jesus” meeting.
“Babysitting chaos.” I hear you, Matt. And I guarantee most attorneys have felt at one time or another that what they’re doing is futile. This is one cause of attorneys burning out or turning to drugs or alcohol.
Fisk’s acquittal on the charges on which he was tried after season three. In Vanessa’s conversation with Dex at the beginning of episode nine, we finally learn why Fisk is not in prison. Vanessa tells Dex that Fisk was acquitted because of “the whole FBI corruption scandal, Agent Nadeem, all of that.”
The prosecution in that case would have relied on the testimony of the FBI agents like SAC Hattley, who “flipped.” It's possible that the jury chose not to believe and rejected the testimony of these witnesses. However, in real life, it is common for prosecution witnesses in criminal trials to be criminals themselves, often accomplices of the defendant who is on trial. Experienced prosecutors know how to handle this situation and rehabilitate the credibility of such witnesses. In this case there was the added element that it was Fisk himself who corrupted the FBI agents. But the jury is the sole judge of the credibility of witnesses, and juries can be unpredictable. On the other hand, it’s entirely possible that Fisk or someone on his behalf got to the jurors, just as he got to the grand jurors in season three.
Poindexter’s “Conditional Release.” At the beginning of episode nine, there is a flashback to a year ago. Vanessa meets with Poindexter, who is in custody after being convicted of some or all of the murders and other crimes he committed during season three. These convictions are being appealed. Vanessa has obtained an order for his conditional release pending appeal. In real life, it is highly unlikely Poindexter would be granted conditional release pending appeal, considering the nature of his crimes and his continuing dangerousness.
The “free port” of Red Hook. In episode nine we learn that Foggy planned to get the case against his client, “Dumb Benny,” dismissed on the ground that it occurred in the “free port” of Red Hook, which was not subject to the laws of New York City or State or the laws of the United States. When Matt and Karen go to the firm’s storage space, Karen finds a document establishing Red Hook as a “free port” in 1855. Such a lawless zone would be a haven for criminal activity and money laundering. (Vanessa has apparently been using it for this purpose, laundering money through the purchase and sale of artworks that remain in the free port until they are resold.)
Free ports do exist, but they are not the lawless zones described in the show. A free port is: “1. A port or an area of a port in which imported goods can be held or processed free of customs duties before reexport. 2. A port open on equal terms to all commercial vessels. 3. An area adjoining a port where goods that are intended for reshipment can be received and stored without payment of duties.” (The American Heritage Dictionary of the English Language, Fifth Edition.)
If Red Hook had been outside the jurisdiction of the city, state, and national governments since 1855, it seems to me that would be common knowledge, not something newly discovered by Foggy, as the show suggests.
Fisk’s “safer streets” initiative and martial law. As part of his “safer streets” initiative, Fisk declares that vigilante activity is now illegal. However, he does not have the power to do this. A penal law of this type would have to be passed by the state legislature.
At the same time, Fisk declares that the city is under martial law. He does not have the power to do this, either. The governor is the only state official who can declare martial law. In addition, when martial law is declared, the state’s National Guard would be activated. Again, the mayor of New York City does not have the power to call up the National Guard; only the governor has this power. Finally, the conditions for declaring martial law do not exist at the time Fisk declares it. Martial law “is implemented only when a civilian government is unable to function, such as during an invasion, rebellion, or catastrophic natural disaster. This action involves the suspension of ordinary law and the transfer of government functions to the armed forces to restore public order.” (https://legalclarity.org/what-happens-when-martial-law-is-declared/).
If you made it this far, thank you for reading! If you have any questions, or if you spotted any legal issues not covered in this treatise, please let me know in the comments.