Your New Job: Defense Attorney

[Codename: Nymeria]

Sorry to tell you this, but I'm a drunk barred from more than two US establishments, and no, no, the most reasonable resolution of this case is a trial by combat against the Mountain.

This is clearly spelled out in Godzilla vs. MUTO (2014), where Justice Serizawa found for "let them fight".

 

That case is still pending a writ to SCOTUS, which would have to overturn the prior precedents set in Godzilla v. Mothra (1967) and Alien v. Predator (1982). Although the second was a plurality opinion.

[OldGimletEye]

 

That case is still pending a writ to SCOTUS, which would have to overturn the prior precedents set in Godzilla v. Mothra (1967) and Alien v. Predator (1982). Although the second was a plurality opinion.

Refresh my memory about Godzilla v. Mothra. Is that the one where Bryon White dissented, reasoning that it went against Godzilla v. King Kong(1962)?

[redeagl]

1.The Crown(Joffery.) orderd him to do this.

 

2.Again the order came from the Crown.(Tywin this time.) And Walder didn't kill anyone.

 

3.The Crown orderd the killing (Tywin.) and the Crown granted him the lands and his hier married Rob Stark's hier.

 

4.Did Stannis kill anyone?? I thought it was a shadow.

 

5.The Bolton men is the ones that killed the maester and Theon didn't kill Bran and Rickon. And it was Reek (Ramsey.) who killed the two miller boys.

 

Where is the office overlooking the Blackwater ????

[Lady Blizzardborn]

 

Sorry to tell you this, but I'm a lawyer barred in two US jurisdictions, and yes, yes it absolutely would.

 

The superior orders doctrine quite clearly applies. This is clearly spelled out in United States v. Keenan, 39 C.M.R. 108(1969) and United States v. Calley, 48 C.M.R. 19 (1973), both of which hold that a military officer following orders can only be held criminally responsible for their actions where the order "is one which a man of ordinary sense and understanding would, under the circumstances, know to be unlawful."  This is codified in the Military Code for Court-Martials (MCM) verbatim. So, the burden on the prosecutor would be prove that the act met that standard beyond a reasonable doubt. Given that Sandor wasn't present for Joffrey and Arya's duel, and the queen had just told him Mycah had attacked Joffrey (not to mention that the Queen's word is pretty much law), I can't see a competent defense attorney who wouldn't be able to stop that standard from being met.

 

In fact, Sandor couldn't even be held civilly liable in a US Court, under the doctrine of respondeat superior.

I misread that at first and thought you said you were barred from two jurisdictions.

 

Killing a non-combatant child falls under the underlined (no pun intended). A man of of ordinary sense and understanding would know that to be an unlawful order under even the laws of Westeros, where the accused still have a right to a trial.  Cersei claiming the kid attacked the prince is not proof of guilt any more than her claiming Tyrion poisoned Joffrey was proof that Tyrion poisoned Joffrey.  Cersei has no legal authority to issue death warrants, and she wasn't present for the alleged attack.  Were my client not suffering from PTSD and temporary insanity, he would have been able to make that connection.

 

So...you actually just made my point even better than I did.

 

Any commentary on my defenses, counselor? 

[Codename: Nymeria]

I misread that at first and thought you said you were barred from two jurisdictions.

 

Killing a non-combatant child falls under the underlined (no pun intended). A man of of ordinary sense and understanding would know that to be an unlawful order under even the laws of Westeros, where the accused still have a right to a trial.  Cersei claiming the kid attacked the prince is not proof of guilt any more than her claiming Tyrion poisoned Joffrey was proof that Tyrion poisoned Joffrey.  Cersei has no legal authority to issue death warrants, and she wasn't present for the alleged attack.  Were my client not suffering from PTSD and temporary insanity, he would have been able to make that connection.

 

So...you actually just made my point even better than I did.

 

Any commentary on my defenses, counselor? 

 

I mean, this is a function of the nature of the conversation, but you're applying 20th century morals to Dark Ages laws. First off, why wouldn't Cersei have the authority to issue death warrants? She's representative of the state, and Sandor is part of her (well, her son's) bodyguard. Further, I don't think, in Westerosi society, a lowborn has right of trial against a highborn. In fact, I would suggest that's precisely why Cersei directs Sandor to kill him, rather than, say, Arya - Arya has actual rights in regard to Joffrey, but Mycah doesn't (I don't think Cersei is dumb enough to believe Joffrey's story, she's just evil enough to punish whomever might try and hurt him). I don't think we've seen any indication that killing non-child combatants is considered an obviously illegal act the way it might be in, say, 1970s America (when the Calley case occurred), given that, off the top of my head - Sandor's brother, Raff the Sweetling, Theon...and then there was the whole thing with the Goldcloaks and Robert's bastards. Notice how Mr. High and Mighty (Ned) doesn't really seem to react to care too much about it? You wouldn't think that'd be the case if it was really breaking some ancient tradition, as we know how much Ned loves thoughts.

 

Central to US procedure, at least, is the concept of the "common/reasonable man", which necessarily has to be couched in context. In the United States, in 1972, killing unarmed child combatants was deemed illegal. But given that Westeros should be roughly set (by my estimate) around 1200 AD, I don't really think what he did was unreasonable. It's precisely what his job is, in fact. You or I may not think so, but put yourself in the shoes of a reasonable Westerosi living in a world where first night was abolished 200 years ago, mostly. 

[OldGimletEye]

I misread that at first and thought you said you were barred from two jurisdictions.

 

Killing a non-combatant child falls under the underlined (no pun intended). A man of of ordinary sense and understanding would know that to be an unlawful order under even the laws of Westeros, where the accused still have a right to a trial.  Cersei claiming the kid attacked the prince is not proof of guilt any more than her claiming Tyrion poisoned Joffrey was proof that Tyrion poisoned Joffrey.  Cersei has no legal authority to issue death warrants, and she wasn't present for the alleged attack.  Were my client not suffering from PTSD and temporary insanity, he would have been able to make that connection.

 

So...you actually just made my point even better than I did.

 

Any commentary on my defenses, counselor? 

 

 

I mean, this is a function of the nature of the conversation, but you're applying 20th century morals to Dark Ages laws. First off, why wouldn't Cersei have the authority to issue death warrants? She's representative of the state, and Sandor is part of her (well, her son's) bodyguard. Further, I don't think, in Westerosi society, a lowborn has right of trial against a highborn. In fact, I would suggest that's precisely why Cersei directs Sandor to kill him, rather than, say, Arya - Arya has actual rights in regard to Joffrey, but Mycah doesn't (I don't think Cersei is dumb enough to believe Joffrey's story, she's just evil enough to punish whomever might try and hurt him). I don't think we've seen any indication that killing non-child combatants is considered an obviously illegal act the way it might be in, say, 1970s America (when the Calley case occurred), given that, off the top of my head - Sandor's brother, Raff the Sweetling, Theon...and then there was the whole thing with the Goldcloaks and Robert's bastards. Notice how Mr. High and Mighty (Ned) doesn't really seem to react to care too much about it? You wouldn't think that'd be the case if it was really breaking some ancient tradition, as we know how much Ned loves thoughts.

 

Central to US procedure, at least, is the concept of the "common/reasonable man", which necessarily has to be couched in context. In the United States, in 1972, killing unarmed child combatants was deemed illegal. But given that Westeros should be roughly set (by my estimate) around 1200 AD, I don't really think what he did was unreasonable. It's precisely what his job is, in fact. You or I may not think so, but put yourself in the shoes of a reasonable Westerosi living in a world where first night was abolished 200 years ago, mostly. 

Yes this generally captures the idea. Anybody that has more than a passing familiarity with the Nuremburg Trials knows that they were attacked for using ex post facto laws. The tribunals there denied the charge and explained that were only charging members of the German armed Forces with laws that existed before the start of World War 2. The upshot is that the law of war crimes only charges soldiers for the breaking of laws both in an international and a national context. And of course, the US Constitution has always banned ex post facto laws.

 

Certainly, a modern US soldier ordered to kill an teenager for an alleged assault would be expected to know, as a reasonable person, that such an order was unlawful. The reason would because the soldier would be expected to know that death sentences are not given out to minors. Also, the soldier, as a reasonable person of ordinary prudence, would be expected to know that in our society a death sentence is considered disproportionate for the crime of assault. And the soldier would be expected to know that an ordered punishment without trial or due process would be unlawful.

 

In a medieval type society, however, and in Westeros it appears that there is no general ban on minors receiving the death sentence for alleged crimes. Indeed, boys as young as 12 often go into combat in Westeros. Also, there evidently is no general recognized due process right for commoners. And finally, it's plausible that an assault upon a royal could carry a death sentence in Westeros. Certainly, there is precedent in Westeros that the crime of striking a royal carries the penalty of having the offending appendage removed. However, the allegation against Mycah wasn't just that he had struck Mycah, but that Mycah had participated in an assualt against Joffrey, using sticks along with Nymeria attacking Joffrey. Sandor, isn't a judge. It's not his job to determine whether precedent applies or not.

 

I think it's important to recognize here that Sandor, like any other soldier, is entitled to assume that his direct superior's order is lawful, unless said order is on its face so patently unlawful that no reasonable man could assume it's legality. Certainly, Joffrey had the physical injuries to make Cersei's claim credible. Also, Cersei is Sandor's direct superior not Robert Baratheon. And finally, soldiers are generally not required to go on extensive fact finding missions to determine whether their superior's order is lawful.

 

During the Nuremburg trials, one of the most ardent advocates for limiting the superior orders defense was Justice Robert H. Jackson, chief prosecutor for the United States. In a letter to Harry Truman, Jackson laid for the reasons for limiting the doctrine. However, Jackson acknowledged that there were factual situations in which the doctrine would apply. He used the example of a soldier on a firing squad. Jackson stated that said soldier wouldn't be held liable for the killing of innocent if the soldier reasonably believed that the innocent had committed a crime, carrying a death sentence, and if the soldier had reasonably believed that there was no irregularity in the proceeding that lead to the sentence of death. In several respects, Sandor's case is much like Jackson's example.

[ShadowCat Rivers]

Further, I don't think, in Westerosi society, a lowborn has right of trial against a highborn.

 

I don't have the books with me now, but going form memory, Baelor Breakspear claimed that anyone has a right to trial by combat. Dunk was certainly recognized to have that right. Or is it because he was a knight, therefore somewhat upper in the social scale?

[OldGimletEye]

 

I don't have the books with me now, but going form memory, Baelor Breakspear claimed that anyone has a right to trial by combat. Dunk was certainly recognized to have that right. Or is it because he was a knight, therefore somewhat upper in the social scale?

Anybody with the rank of hedge knight and above.

[ShadowCat Rivers]

Anybody with the rank of hedge knight and above.

Oh shit. Law truly sucks in Westeros.

[OldGimletEye]

Oh shit. Law truly sucks in Westeros.

Just to be more precise.  Baelor tells Dunk that any knight accused of a crime has a right to trial by combat. I'm not aware of any source  pertaining to the ASOIAF universe that suggest commoners in Westeros have a right to a trial.

 

And yeah the law in Westeros does suck.

[Woman of War]

Defense attorney for Sandor Clegane who killed Mycah:
[He] cannot recognize the verdict of guilty. . . . It was [his] misfortune to become entangled in these atrocities. But these misdeeds did not happen according to [his] wishes. It was not [his] wish to slay people. . . . Once again I would stress that [he is] guilty of having been obedient, having subordinated [him]self to [his] official duties and the obligations of war service and [his] oath of allegiance and [his] oath of office, and in addition, once the war started, there was also martial law. . . . [He] did not persecute [children] with avidity and passion. That is what the government did. . . . At that time obedience was demanded, just as in the future it will also be demanded of the subordinate."

Literally the defense of Eichmann himself [I has been replaced with He, Jews with children]

[SeanF]

OGE,

 

I think that's well-argued.  Joffrey's bodyguard could reasonably assume that Joffrey and/or Cersei, in this world, had the authority to sentence a 13 year old to death, for assault on a member of the royal family. I think it would be interesting to consider more generally within the context of the story what would and what would not be considered reasonable orders from a superior.

 

I don't think that Janos Slynt could reasonably assume that Cersei had the authority to order the death of a baby, for example.  The killing of babies is completely outside the norms of criminal justice in Westeros.  Hence, a defence of obeying superior orders would not apply if he were charged with murder.  Nor do I think that Ser Boros Blount or Ser Meryn Trant could rely on a defence of superior orders, if they were charged with indecently assaulting Lady Sansa Stark.  Forcibly undressing a noblewoman and beating her, on the orders of someone who is not her husband, is something that any reasonable person would know to be abnormal.  Likewise, Karstark's men could not rely on such a defence, when charged with the murder of the two squires.  because they were under the protection of their King, and any reasonable person would know that it was a crime to murder people who are under the protection of one's King.

 

"Superior orders" should be a defence for soldier who burns crops, villages, kills livestock, and kills people who attempt to stop him from doing those things, if he's acting under orders from a superior officer during the course of a war.  But, orders to murder non-combatants who offer no resistance, orders to rape, or to torture just to inflict terror should be considered "manifestly illegal" (and of course, people who do such things without orders would have no defence at all).  Torture for the purpose of obtaining information would probably not fall into the category of "manifest illegality."

[OldGimletEye]

Defense attorney for Sandor Clegane who killed Mycah:
[He] cannot recognize the verdict of guilty. . . . It was [his] misfortune to become entangled in these atrocities. But these misdeeds did not happen according to [his] wishes. It was not [his] wish to slay people. . . . Once again I would stress that [he is] guilty of having been obedient, having subordinated [him]self to [his] official duties and the obligations of war service and [his] oath of allegiance and [his] oath of office, and in addition, once the war started, there was also martial law. . . . [He] did not persecute [children] with avidity and passion. That is what the government did. . . . At that time obedience was demanded, just as in the future it will also be demanded of the subordinate."

Literally the defense of Eichmann himself [I has been replaced with He, Jews with children]

Since you're an expert on the Eichmann case, I'm sure you're aware that Eichmann was convicted in Israel and that his conviction was upheld by the Israeli High Court. The funny thing is though is that the state of Israel, itself, recognizes the superior orders defense. In fact, perhaps the most widely quoted authority on the "manifest illegality" rule is Justice Halevy, member of the Israeli High Court. He wrote, in the Kafr Qasim Case:

 

The distinguishing mark of a “manifestly unlawful order” should fly like a black flag above the order given. ..Not formal unlawfulness, hidden or half hidden, nor unlawfulness discernible only to the eyes of legal experts.. ..Unlawfulness appearing on the face of the order itself...Unlawfulness piercing the eye and revolting the heart, be the eye not blind nor the heart stony and corrupt, that is the measure of “manifest unlawfulness” required to release a soldier from the duty of obedience.

 

I'm not sure if you've ever read the opinion in the Eichmann case, although I assume you have since you're such an expert, but if you have not, what got Eichmann convicted, in part, was that he acknowledged the atrociousness of his crimes, essentially admitting that his actions were not appropriate within the context of the 20th Century.

 

 

Although it's true that not all liberal western democracies recognize the superior orders doctrine, the majority do recognize it as a defense in its conditional form. Also, even those that do not recognize the defense, at all, still generally recognize the defense of mistake of fact. Sandor's case could probably argued as a mistake of fact defense.

 

The reason most why most liberal western's democracies recognize the defense is because they recognize the reality that obedience to orders is drilled into a soldier from the day he begins his initial training. What we essentially ask of soldiers, in modern times, is to submit their moral and ethical judgments to their superiors judgment most of the time, but also to reassert their own moral agency in certain cases. If we are going to ask soldiers to, in certain cases, reassert their own moral agency, then the situations in which they must do so must be fairly clear.

 

If you don't quite understand the way soldiers are trained, I'd suggest you do a stint at Parris Island.

 

Perhaps what you're suggesting here is that House Lannister is a criminal organization and that Sandor is merely guilty by being a part of it. If that is true, then so is Tyrion Lannister. And, indeed, Tyrion is probably more culpable than Sandor since he was higher up on the chain of command. Typically, more senior members of a military organization are held to be more culpable than more junior members.

 

I'd note though, referencing Nuremburg again, that the German Army, Navy, and Air Force were not held to be criminal organizations. And, accordingly, members of those organizations were not seen to be criminals, unless they had followed an illegal order.

[Raving Stark the Mad]

The order, however, came from Cersei.

 

I have a longer one if you would like to read it.

No.  I was under the impression the order came from the boy.  An order from the Queen changes the aspect of it. 

[OldGimletEye]

OGE,

 

I think that's well-argued.  Joffrey's bodyguard could reasonably assume that Joffrey and/or Cersei, in this world, had the authority to sentence a 13 year old to death, for assault on a member of the royal family. I think it would be interesting to consider more generally within the context of the story what would and what would not be considered reasonable orders from a superior.

 

I'd say any order to murder smallfolk, without even so much as an allegation of them committing a crime, would qualify. For instance, Ned's Stark's judgement of Gregor Clegane.

[squalleke123]

1. Sandor Clegane, charged with homicide for killing Mycah.
   
   Gentlemen, I present you a soldier, a warrior, a man who follows orders diligently and without question. It is thus not the man we should judge but his master. I therefor plead innocent on this account. Evidence is given by the ladies Sansa and Arya Stark (both are conveniently still alive).
    
2. Walder Frey, charged with ordering a hit on Robb Stark and his bodyguards.  Desecration of said lord's remains.
   
   Gentlemen, I present to you an old man. His age has affected his mind and men of evil disposition have used this opportunity to make him their instrument. We can not deny that Robb Stark was murdered, but we can give you insight in why he was murdered. Walder had nothing to gain by murdering Robb Stark, as his men were loyal bannermen during the war. The only instances that actively needed this gruesome murder were Roose Bolton and the Serpents on the iron throne. It was them that filled Walders ear with this treason to the gods. We therefor plead insanity on his account.
    
3. Roose Bolton, charged with homicide for killing Robb Stark and plotting the removal of his boss from power.  Illegal acquisition of said lord's home and assets.
   
   Mr. Bolton was a loyal bannerman of the Starks, and has been so for many years. He did not commit any crimes and called himself lucky to have survived the red wedding. We plead innocent on account of murder
   
   Mr. Bolton has not aquired control over winterfell and its holdings and was only named warden of the north by the iron throne. There is nothing illegal on this aquisition of a mere title, as it is a title granted by the king, not a birthright
    
4. Stannis Baratheon, homicide in the assassination of his brother, Lord Renly.  Terrorism against the State.
   
   Gentlemen, I present many witnesses that show that Stannis Baratheon was in his own tent when Renly died. Therefor he cannot be guilty of this foul murder.
   
   As far as he was concerned at the time, he was the rightful king, being the elder brother of a childless king. He could not know there was a Targaryen alive, so he acted as he saw fit, for the good of the realm. I call upon lady stoneheart as a witness. Lady stoneheart, did you not hear Stannis offer Renly a peaceful way out? Did you not hear his rightful claim?
    
5. Theon Greyjoy, homicide against his adoptive family, first-degree murder of two boys, and accessory to the murder of his maester.
   
   Gentlemen, this broken creature is Theon Greyjoy, rightful heir to the iron islands. Or at least he was until he came into the claws of the bastard of the dreadfort. He met this bastard after he claimed winterfell as his rightful prize of war. This bastard, Ramsay Bolton, was the one that perpetrated the murder of two boys and the maester. We call to withness Bran Stark who will tell you through the weirwood how it exactly happened.

[Blackfish Tully]

OGE,

 

I think that's well-argued.  Joffrey's bodyguard could reasonably assume that Joffrey and/or Cersei, in this world, had the authority to sentence a 13 year old to death, for assault on a member of the royal family. I think it would be interesting to consider more generally within the context of the story what would and what would not be considered reasonable orders from a superior.

 

 

 

 

I do not think that Joffrey or Cersei have any right to sentence anybody to death . Their power derives from the King and only if he specifically gives him that power would they have it . Joffrey is a minor and there is no way that he would have any power to sentence anybody for any crimes , How screwed up would it be if a child had that kind of power? 

Sandor should have captured Mycah and brought him to the King for justice . If Robert had not been a drunken fool he would have been really pissed at Sandor for  killing the boy without his approval but Robert never wanted to deal with any controversy especially when it came to Cersei so he just looked the other way. 

[OldGimletEye]

 

I do not think that Joffrey or Cersei have any right to sentence anybody to death 

The precise issue in question here isn't whether Cersei did in fact have the authority, but whether Sandor could have reasonably believed so. And, again, if were going to apply the modern law of war crimes, Sandor had little duty to verify the legality of the order. The manifest unlawfulness must be apparent on its face.

[Raving Stark the Mad]

d

 

I do not think that Joffrey or Cersei have any right to sentence anybody to death .

I would agree with Joffrey, but I believe that the Queen does have certain legal powers.  As you say, they are derived from the King, but that does not mean that the King needs to OK everything.  Can the Queen order the capture or death of a peasant she finds to be guilty of assault against the crown prince?  Probably.  But only in the case of a peasant, where the witness is the crown prince, and there is no contrary evidence or witnesses. 

 

Do I think it was right? Of course not, Cersei is a bag of shit.  But she knows what she can get away with.  By not taking issue with the death, the King practically gives his approval.  The King gives his approval because he doesn't want to have to deal with Cersei's bullshit. 

[SeanF]

It's worth noting that the "execution" of Mycah met with widespread approval among the people travelling with Robert.  Only Arya and Ned objected.