In Defense of Wanda Maximoff

• Pages: 16-17
• Date: 01 July 2021
• Subject Matter: Civil Law

Published in Litigation News Volume 46, Number 4, Summer 20 21. © 2021 by the American Bar A ssociation. Repro duced with permissi on. All rights reser ved. This informati on or any portion the reof may not be copie d or disseminated in any

form or by any means or sto red in an electronic da tabase or retrieval sy stem without the ex press writt en consent of the Amer ican Bar Associatio n.

In Defense of Wanda

Maximo

Note: If you haven’ t f‌inished Marvel’s WandaVision or don ’t follow the Marvel Cine matic

Universe (MC U), you should skip this syn opsis. For everyone else , The Legal Geek’s

Sylvia La Rosa oe rs an impassioned def ense of Wanda and her acti ons during

the series.

Analyzing the alleg ed crimes (kidnap ping, false impris onment, and tortu re) under the California Pen al

Code and assumin g its application to MCU c rimes, La Rosa do esn’t believe a prosecutor ca n show all ele-

ments of the kidnapp ing or torture charge s. Kidnapping re quires showing Wanda ( 1) took, held, or de -

tained another pe rson by using force or instillin g reasonable fear ; (2) used that force or fear, moved the

person, or mad e the person move a substantia l distance; and (3) d id not have the person’s consent to be

moved. La Rosa argues th at not only did Wanda not use force or i nstill reasonable fea r in the residents of

West View—noting the prosecution wou ld have to show that Wanda’s mind control of resident s classif‌ies

as a means of force or reason able fear—she did not move any of them. Accord ing to La Rosa, that West

View’s residents continu ed to stay in their homes and th eir town will defeat the kidnap ping charge.

La Rosa’s view on the prosecution’s likeli hood of success on the tor ture claim is similarly dim . The prosecu-

tion must show Wanda (1) in f‌licted great bodily in jury (GBI) on someo ne else; and (2) when inf‌lic ting the in-

jury, intended to cause cru el or extreme pain and s uering for the purp ose of revenge, extortion, p ersuasion,

or for any sadistic purpo se. La Rosa argues n one of the residents of West View were in jured at the hands of

Wanda, except perhaps Agatha H arkness in self-defe nse or defense of others , and the residents we re actu-

ally well protected in their town. M oreover, because GBI claim s require a showing of physical in jury, Wanda’s

mind control cannot be co nsidered. La Ros a also argues the prosec ution cannot show the seco nd element

for a torture claim beca use, at the time she created th e hex that surrounded West View, Wanda wasn ’t in the

right frame of mind to have a specif‌i c intent. In the f‌inal ep isode, Wanda also makes cl ear to the residents

she didn’t intend anyone’s suering.

La Rosa concludes sh e may have to concede the false impri sonment count, whic h requires a showing that

Wanda (1) intentionally res trained or conf‌ine d or detained some one by violence or men ace, and (2) made

the other person stay or g o somewhere against th at person’s will. Bec ause Wanda detained th e residents

of West View inside the hex agains t their will—with no one leaving a bsent Wanda’s permission —La Rosa be-

lieves the best move may be to concede this coun t and focus argument s on the more egregiou s counts.

If she were to try to defeat all three cl aims, La Rosa would h ave a doctor evaluate Wanda to determine if

she even had the requisite state of min d to commit any of the charged oe nses. La Rosa be lieves Wanda’s

burden of grief and an ger throughout the e ntire series would make “any reason able person ques tion wheth-

er she was even sane during th e commission of these o enses.” In several scene s through the series , Wanda

appears confus ed as to what is happenin g or why. Because La Rosa beli eves Wanda understood the natu re

of her criminal act s only after the fac t but never as they were happen ing, she conclude s the best defense to

all Wanda’s charges would be not g uilty by reason of insanit y.

http://bit.ly/LN464-pn1

Who Decides?

Who decides , lawyer or client? Ethical Ground s blogger

Michael Kenne dy examines what lawyers shoul d do when cli-

ents insist on pr esenting claims lawyers think s are frivolous.

Kennedy balan ces the ABA’s Model Rules of Professiona l

Conduct 1 .2 and 1.4 with Rules 3.1 a nd 1.16. Rule 1.2(a) leaves

the objectives of re presentation to clients but the m ethod of

pursuit to lawyers , in consultation with clients . Rule 1.4(a)(5)

requires lawyer s to consult with clients about releva nt limita-

tions on their con duct when lawyers know clien ts expect as-

sistance not pe rmitted by rule or law. Rule 3.1 in turn pro hibits

lawyers from brin ging claims or asserting p ositions without

non-frivolous b ases in fact or law. Finally, Rule 1.1 6(a)(1) re -

quires lawyers withdraw when continued representation will

result in rule or law vi olations. Kennedy conclu des “the lawyer

decides which facts and arguments will be advanced” and

“the lawyer, not the client, decides whic h facts and arguments

are frivolous.” I f the client insists the lawyer pre sent frivolous

claims, Kenne dy advises withdrawing from repre sentation.

However, Kennedy cautions there is a dierence between

frivolous c laims and those with little chan ce of prevailing.

http://bit.ly/LN464-pn2

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