Bucky Barnes
Character » Bucky Barnes appears in 2103 issues.
Believed dead near the end of World War II only to have been found and brainwashed by the Soviets for the next 50 years, Captain America's former sidekick now continues to defend his country from the shadows against those who would threaten it as legendary spy and assassin, the Winter Soldier. He became the new Captain America to honor his friend Steve and he joined the Avengers. When Steve returned as Captain America, Bucky took on the identity of the Winter Soldier once again.
Off My Mind: Is Bucky Guilty of Winter Soldier's Crimes?
Guilty!
How many has Wolverine killed now and he's an Avenger but Bucky's the one they put on trial, hilarious
Sooooo...this is how they get Steve Rogers back in the Cap costume, isn't it?
That's the defense of Duress but it doesn't work in homicides because the system is uncomfortable with people electing to value their own lives over the lives of others. Even though Duress only officially works for lesser offenses, if the facts support Duress, generally the court will call it murder still but mitigate the sentencing into a slap on the wrist (so you get the condemnation of the conviction but don't get much prison time). One classic example is with shipwrecked survivors alone on a raft resorting to killing so the others can survive. In any case, for Bucky, Duress would cover his Treason charges. His murder charges would be covered by other defenses and the State's inability to pin the crimes on him (assuming his actions really were all shadowy and secretive)." I'm no law major, but its basically like having someone make you kill people while keeping a gun to your head. What does that count as? "
Probably!" @Eyz said:
" This plot really starts to feel like a way to bring Steve Rogers as Cap' just in time for the new movie :P "That was my first thought too, they will probably have bucky be detained for a while and have steve return just till the movie is released and then bucky will be cleared of all charges and assume his captain america role again "
off-topic: Heh :P "En Sabah Nur", wasn't that Apocalypse name? *checks* Yep!
nice!
Justification and authority.
If you punch someone on the street, that's assault and battery. If you punch someone in the boxing ring (sanctioned, licensed, etc) you aren't culpable for your actions. If you were subject to a mistake of fact or mental defect that lead you to believe you were authorized and justified in punching someone- that the whole wide world was now a sanctioned boxing ring and those within willing participants- you'd have a defense.
As far as I know, we've only been told- in absolute terms- what Winter Soldier actually did (kill people)... but not what he knew or was told about what he was doing. If he was given a justification and the appearance of authority to do what he did, it would diminish his ability to appreciate the wrongfulness of his actions. A more direct example would be if Washington orders the bombing of a building and there is collateral damage, the bomber would not be liable- or found "wrongful"- for the collateral... the situation would not suddenly change if his superior officer lied to the bomber and said the bombing was sanctioned and collateral would be OK. The bomber would be insulated from liability. But as I mentioned, we don't have such "clean" brainwashing in the real world so it's not a lock but it's certainly arguable. "
In an older jurisprudence, perhaps, but that argument was deemed insufficient (whether rightfully or wrongly) to save even middle and low ranking German soldiers from conviction after WWII. The problem with your example, as I see it, is that it involves an American soldier getting a pass because a particular illegal act was authorized by his American chain of command. No country is eager to prosecute war crimes carried out by its own people. Bucky, however, was an agent of the Soviet Union who killed Americans. If there was an interest in letting him off the hook for these crimes he would not have been brought to trial and all the evidence would've been swept under the rug. Considering that he's actually going to trial, I can easily see the disallowal the "just following orders" defense. I think an act of jury or court martial nullification to save the "fake" Captain America, especially one who attempted to say that he was just following orders, would be unlikely.
As for the morality of covert operations, again, the frame of reference is totally different (and one of the reasons this trial belongs before a commission instead of a jury) as there is express permission and authority to do otherwise wrong things for the sake of a greater good. Covert operatives have no frame of reference other than what their handlers from above give them and they must trust in that absolutely in order to do their jobs... they can't start questioning whether a target is a triple agent, has greater political implications, etc. They're a surgical tool without personal individual discretion. "Just following orders" doesn't work for crime which exceed the context of the conflict (be it war or covert operations) but it is a legitimate defense for those with in it. You don't start rounding up drafted ex-soldiers on the other side for the crimes of murder of people on your side anymore than you hold covert operations to a standard that's out of context. Both, whether foot soldiers or spies, are largely considered tools and not culpable for being weld. "
That's far too authority-worshipping a legal standard for me. Humans always have agency and discretion (barring some sort of fantastic meat-puppeting, which Bucky wasn't subjected to anyway), they don't become mindless tools free from any responsibility just because the job they took is dangerous and requires implicit trust and blind obedience: that's a job that shouldn't be taken. That would indeed be a convenient excuse for every sort of atrocity.
Moreover, your analogy is false one. Bucky was not a soldier fighting in a lawful conflict, operating under the recognized rules of war. He was a spy, an infiltrator, an assassin that used disguises and subterfuge to kill not just military but civilian targets during a time of peace. He would be treated under the category of espionage, or as an unlawful combatant, not as a soldier fighting for his life and trying to achieve valid military objectives in wartime. Spies, especially spies that participate in assassinations, certainly are held culpable for their actions, regardless of the supposed authority of their handlers, if captured by the opposing side.
EDIT: I also wanted to say that your point on the loss of memory being tied to the loss of a moral compass can't readily be said to apply to Bucky. He had a certain level of amnesia, but he was not a tabula rasa that had never known better, unlike the hypothetical child soldiers of your example. I think it would be an extremely hard sell to say that while he didn't lose any of his combat skills, forget how to speak English or indeed any other knowledge not related to his identity, he was still able to forget his moral and ethical foundation.
1. I addressed that above based on context. Unless you're inside the "rules" of your profession, like a foot soldier, you can can be culpable. A pilot's torpedo that sinks a ship will not be held as a mass murderer afterwards, nonetheless a single soldier committing a single rape having a whole life of civilian moral memories dictating his ability to appreciate the wrongfulness of his action can be held to an account. Covert Operations are have an "always on" cold-war-like aspect that shades the context of their actions. James Bond killing an enemy spy is par for the course and does not trigger any moral condemnation whereas James Bond deciding to release doomsday technology to the press would. They're not held to the same standard as civilians backed up by the fact they're not tried in open civilian courts.to save even middle and low ranking German soldiers from conviction after WWII. . . . Bucky, however, was an agent of the Soviet Union who killed Americans. If there was an interest in letting him off the hook for these crimes he would not have been brought to trial and all the evidence would've been swept under the rug. "
2. Agency, again, requires full capacity and freewill. Bucky was missing all his memories and thus moral context for his actions. When his memories returned he wasn't conflicted by the shift in loyalty, he was conflicted by the moral consequences of his actions. As for the killing American's part, again, covert ops. There are Americans who kill Americans... whether law enforcement, the State executing a capital offender, etc. So long as the justification and authority is there liability does not attach.
3. The Interest argument is weak because it's putting the cart before the horse and makes the huge assumption that the trials in the Marvel Universe actually follow legal procedure. a) I said it was a defense not an absolute defense, the State may want Bucky to make his case; b) This may be simply a way of airing dirty laundry, getting in front of a controversy before the press controls the story; c) Given the politics, the prosecutor may have very little public discretion even if the case is weak and the defenses / justifications strong; d) This could be a fishing expedition to dredge up additional intelligence; e) This could be a means of airing Russia's dirty laundry while showing off America as so idealistic that not even Cap is above the law; f) This could be a loyalty test for Cap; g) This public trial might be the only form of punishment that will stick; and so on. It's pretty limited to believe the only motivation for a trial is punishment. The State's motivations for trial don't really address the strength of Bucky's defenses.
@Illuminarch said:
1. The authority standard is what we use, otherwise there would be a chilling effect on those told to take lives in need-to-shoot situations. It doesn't serve the interests of the law for police snipers to be worried about their personal liability when given a kill command. The situation is amplified a hundred fold for covert operations. As for "humans" Bucky was the furthest thing from human. He was defrosted only to be used as a weapon. He had no moral code to fall back on which, again, is why his memories returning caused his actions to cease. Judging a weapon with no freewill in determining their life beyond the mission based on "human" standards is not particularly practical.1. That's far too authority-worshipping a legal standard for me.Humans always have agency and discretion (barring some sort of fantastic meat-puppeting, which Bucky wasn't subjected to anyway), they don't become mindless tools free from any responsibility just because the job they took is dangerous and requires implicit trust and blind obedience: that's a job that shouldn't be taken. That would indeed be a convenient excuse for every sort of atrocity.
2. Moreover, your analogy is false one. Bucky was not a soldier fighting in a lawful conflict, operating under the recognized rules of war. He was a spy, an infiltrator, an assassin that used disguises and subterfuge to kill not just military but civilian targets during a time of peace. He would be treated under the category of espionage, or as an unlawful combatant, not as a soldier fighting for his life and trying to achieve valid military objectives in wartime. Spies, especially spies that participate in assassinations, certainly are held culpable for their actions, regardless of the supposed authority of their handlers, if captured by the opposing side.
EDIT: I also wanted to say that your point on the loss of memory being tied to the loss of a moral compass can't readily be said to apply to Bucky. He had a certain level of amnesia, but he was not a tabula rasa that had never known better, unlike the hypothetical child soldiers of your example. I think it would be an extremely hard sell to say that while he didn't lose any of his combat skills, forget how to speak English or indeed any other knowledge not related to his identity, he was still able to forget his moral and ethical foundation. "
2. How is my analogy false, this is exactly what I've been saying only you've come to the wrong conclusion. Spy, infiltrators, and assassins are different they're held to a separate standard but the logic is the same as for the foot-soldier who is considered a mere weapon of the State. The United States would not tolerate a foot soldier performing infiltrations or assassinations but, believe it or not, we do tolerate spies who do so and routinely forgive them for the actions of their handlers. Indeed we recruit them or horse trade spies, which only increases the emphasis that they are seen as weapons not autonomous culpable individuals. The benign treatment of Ana Chapman, the Russian tabloid spy, shows the different standard of treatment intelligence assets are given- Why? It's simple. DO UNTO OTHERS. The United States recognizes a different treatment of spies because the last thing it wants is its own spies to be treated otherwise. Spies know they're in for treason level charges wherever they go but their risks are mitigated by this international understanding... they're just tools.
3. You have to make the case but you can't prove it and that's the point. Prosecution has the burden of proving sanity, but the defense can argue a lack of moral memory. Your argument is easily extended... if you want to claim his memory of some things proves moral judgment, I could similarly argue in reverse to prove his lack of autonomy and freewill. Who would elect to, without compensation, free time, or anything other than mission-based defrosting, be a pure weapon with no life except someone without moral memories or freewill? No standard covert operative. Even by your own argument a normal spy wouldn't kill who Bucky killed. So the defense is strengthened, not weakened. As for the child soldiers, they're sadly not hypothetical.
Additionally, just on a scientific basis, the parts of the brain that contain motor memory (combat skills) and language are not the same as those which hold moral memory or impulse control. Indeed, one potential affliction upon those with head injuries is disassociation of affection or psychopathy. It would be a cakewalk for the defense to trot out experts to distinguish between the ability to act as weapon of war and the ability to appreciate wrongfulness. Those abilities, scientifically, don't prove anything. By contrast, if you stand before the jury and ask them how do they know right from wrong, how do they know their own stance on gun control, abortion, religion, immigration, etc. all of those moral choices and decisions are rooted in memories and a civilian life... Bucky had neither as a the Winter Soldier. I think the latter plays far better before the fact finder than trying to say the motor control to pull a trigger equals a moral judgment.
1. I addressed that above based on context. Unless you're inside the "rules" of your profession, like a foot soldier, you can can be culpable. A pilot's torpedo that sinks a ship will not be held as a mass murderer afterwards, nonetheless a single soldier committing a single rape having a whole life of civilian moral memories dictating his ability to appreciate the wrongfulness of his action can be held to an account. Covert Operations are have an "always on" cold-war-like aspect that shades the context of their actions. James Bond killing an enemy spy is par for the course and does not trigger any moral condemnation whereas James Bond deciding to release doomsday technology to the press would. They're not held to the same standard as civilians backed up by the fact they're not tried in open civilian courts.
You addressed it, but the context you placed it in was a false one, and you continue to place it into a false context by omission. First you are ignoring that no state of war existed between the United States/NATO and the Soviet Union/Warsaw Pact at the time Bucky was assassinating people, blowing up peace conferences, etc... That alone puts his actions beyond any defense of actions appropriate to warfare. Secondly, even in war there are rules that must be adhered to, it's not as simple as, "I'm a soldier, I get to kill and blow stuff up and get away with it." A pilot or submariner who torpedoes a ship can certainly be and have been held to account for their actions when it was judged that they engaged an unlawful target, and "following orders" under such circumstances provides no reliable shield. In fact, at least circa 2001, officers and enlisted personnel in the US military are reminded that unlawful orders should not be obeyed, and carrying out an unlawful action just because it was ordered does not shield one from either moral or legal responsibility.
You can argue that such prosecutions are "victor's justice", especially since the winning side almost never seeks to prosecute war criminals that worked for them, and I would even be partially sympathetic to that argument, but the right/wrong of it doesn't change the facts that it has happened. And there is no convention or treaty that would designate Bucky's all or even most of Bucky's marks as legitimate military targets, even if he was acting in a lawfully recognized military capacity (which he was not).
2. Agency, again, requires full capacity and freewill. Bucky was missing all his memories and thus moral context for his actions. When his memories returned he wasn't conflicted by the shift in loyalty, he was conflicted by the moral consequences of his actions. As for the killing American's part, again, covert ops. There are Americans who kill Americans... whether law enforcement, the State executing a capital offender, etc. So long as the justification and authority is there liability does not attach.
You're begging the question. I have disputed that he was lacking the moral context for his actions and even all of his memories. That's fine if you don't agree, but the point you're arguing has nowhere been confirmed. You have also not established that Bucky had either valid authority or justification for any of his kills. Asserting, as is true, that there are legally recognized exceptions and loopholes for various killers, be they men in camouflage and helmets or men in blue suits and badges, is not the same thing as establishing that Bucky's actions actually fit into any of those exceptions and loopholes.
Of course any of those things are possible, but I find it extremely unlikely that anyone would expose the rather heinous crimes of the current symbol of American values and goodness unless they had an actual interest in making him pay for said crimes. I can't think of a time when the government didn't choose to ignore something or exert leverage on the press to suppress these damaging revelations rather than throw up flashing lights, ring a bell, and make a big show that they really have nothing to hide. I also can't see any in-universe interest in airing Russia's dirty laundry, especially as it can be dismissed as "the defunct Soviet Union's dirty laundry". If they were trying to dig up additional intelligence or test his loyalty, they wouldn't make a big public display of arresting him.3. The Interest argument is weak because it's putting the cart before the horse and makes the huge assumption that the trials in the Marvel Universe actually follow legal procedure. a) I said it was a defense not an absolute defense, the State may want Bucky to make his case; b) This may be simply a way of airing dirty laundry, getting in front of a controversy before the press controls the story; c) Given the politics, the prosecutor may have very little public discretion even if the case is weak and the defenses / justifications strong; d) This could be a fishing expedition to dredge up additional intelligence; e) This could be a means of airing Russia's dirty laundry while showing off America as so idealistic that not even Cap is above the law; f) This could be a loyalty test for Cap; g) This public trial might be the only form of punishment that will stick; and so on. It's pretty limited to believe the only motivation for a trial is punishment. The State's motivations for trial don't really address the strength of Bucky's defenses.
The circumstantial evidence says to me that they're out to lock up Bucky or make him step down from the Captain America role.
Oh, believe me, I know full well that the state erects all kinds of obstacles to protect its trained killers, even when no decent person could find an excuse for their agents brutalizing or murdering another person. It's complete moral nonsense, creates perverse incentives, and runs contrary to the rule of law, but I know that's the reality of it.
1. The authority standard is what we use, otherwise there would be a chilling effect on those told to take lives in need-to-shoot situations. It doesn't serve the interests of the law for police snipers to be worried about their personal liability when given a kill command. The situation is amplified a hundred fold for covert operations. As for "humans" Bucky was the furthest thing from human. He was defrosted only to be used as a weapon. He had no moral code to fall back on which, again, is why his memories returning caused his actions to cease. Judging a weapon with no freewill in determining their life beyond the mission based on "human" standards is not particularly practical.
But what I think you're missing is that, for the crimes he's being charged with, Bucky was not their trained killer. He was working for the Russians and killing their people. You address some of this in the next point, below which I will try to succinctly explain how your conclusions are unfounded.
Your argument here is that because SOME enemy agents have been turned into assets, or pardoned, or whatever, that there somehow exists a blanket protection for those fitting their job description that includes immunity from murder, theft, mayhem, treason, etc... Frankly, that's nonsense and everyone knows it. Spies (let alone dedicated assassins) that are let off the hook are almost certainly the exception to the rule compared to those that find themselves in for some sort of punishment once they get caught. There are graveyards filled with executed spies, from Nathan Hale to Julius and Ethel Rosenberg, and many others rot in prison - Jonathan Pollard and John Walker being too notorious examples in recent memory. Spies are exchanged or turned only when it fits an intelligence interest. When this happens, it is point of expediency, not a point of law.2. How is my analogy false, this is exactly what I've been saying only you've come to the wrong conclusion. Spy, infiltrators, and assassins are different they're held to a separate standard but the logic is the same as for the foot-soldier who is considered a mere weapon of the State. The United States would not tolerate a foot soldier performing infiltrations or assassinations but, believe it or not, we do tolerate spies who do so and routinely forgive them for the actions of their handlers. Indeed we recruit them or horse trade spies, which only increases the emphasis that they are seen as weapons not autonomous culpable individuals. The benign treatment of Ana Chapman, the Russian tabloid spy, shows the different standard of treatment intelligence assets are given- Why? It's simple. DO UNTO OTHERS. The United States recognizes a different treatment of spies because the last thing it wants is its own spies to be treated otherwise. Spies know they're in for treason level charges wherever they go but their risks are mitigated by this international understanding... they're just tools.
3. You have to make the case but you can't prove it and that's the point. Prosecution has the burden of proving sanity, but the defense can argue a lack of moral memory. Your argument is easily extended... if you want to claim his memory of some things proves moral judgment, I could similarly argue in reverse to prove his lack of autonomy and freewill. Who would elect to, without compensation, free time, or anything other than mission-based defrosting, be a pure weapon with no life except someone without moral memories or freewill? No standard covert operative. Even by your own argument a normal spy wouldn't kill who Bucky killed. So the defense is strengthened, not weakened. As for the child soldiers, they're sadly not hypothetical. Additionally, just on a scientific basis, the parts of the brain that contain motor memory (combat skills) and language are not the same as those which hold moral memory or impulse control. Indeed, one potential affliction upon those with head injuries is disassociation of affection or psychopathy. It would be a cakewalk for the defense to trot out experts to distinguish between the ability to act as weapon of war and the ability to appreciate wrongfulness. Those abilities, scientifically, don't prove anything. By contrast, if you stand before the jury and ask them how do they know right from wrong, how do they know their own stance on gun control, abortion, religion, immigration, etc. all of those moral choices and decisions are rooted in memories and a civilian life... Bucky had neither as a the Winter Soldier. I think the latter plays far better before the fact finder than trying to say the motor control to pull a trigger equals a moral judgment. "
That's a better argument and it would probably persuade a jury filled with people who:
A) implicitly accept those mechanistic interpretations of brain consciousness, and
B) accept that he had to know better at one point, but just forgot.
Assumption B, though a comforting thought, is open to serous doubt. For instance, it could just as easily be that Bucky still had "moral memory", but just didn't give a damn. Bolstering this argument is his checkered past working as an OSS agent (or whatever he was) in WWII, including the execution of German soldiers who had surrendered (I believe this was in one of the Wolverine Origins) comics. If he was willing to commit war crimes while fighting for the Allies, before any alleged loss of memory or brainwashing, there's little reason to believe he would have scrupled against doing the same thing for the Soviets even with his moral memory indisputably intact.
Of course, the members of the jury may never find any of this out, but I'm speaking from my own knowledge as a comic book reader.
I'm not ignoring the state of war, I'm stating that covert operations are unto themselves a state of war. "Cira '01" is irrelevant for a Forever Soldier acting on orders decades prior, post ex facto retribution, basic Constitutional Law. And, again, covert ops have a different legal and moral standard which is why they operate under different tribunals. Their profession does shield their moral and legal actions. Even at a law enforcement level, an undercover cop is permitted to partake of illegal substances to maintain cover. A WITSEC subject can enter enforcible contracts under a false identity. When it comes to treason or murder one of the elements is mens rea which is completely dissolved by believing one has the authority and justification to do something. You've equivocated "illegal action" with ALL illegal action which is plainly not true even for the military (either that, or you've conveniently defined illegal action circularly as anything that is illegal except when ordered to do it with justification). What constitutes illegal action for covert ops is different.You addressed it, but the context you placed it in was a false one, and you continue to place it into a false context by omission.
Criminal guilt almost never turn on factual occurrence. That's almost always stipulated (and here can easily be defended by a ton of clone, LMD, etc. type reasonable doubt defenses). It almost aways turns on intent, mens rea, and psychological factors which, here, are plainly compromised.but the right/wrong of it doesn't change the facts that it has happened.
Once again you've confused the issue. The question isn't whether Bucky did have actual authorization, the issue is whether Bucky believed he had authorization. Lacking any context except what he's given when defrosted, he easily could be told those were legitimate targets and would have no ability to discern otherwise. This is the logic and rationale for the foot soldier, the spec ops, the covert ops, or the undercover cop. The superiors tell them what the legitimate target is and they have to execute.And there is no convention or treaty that would designate Bucky's all or even most of Bucky's marks as legitimate military targets, even if he was acting in a lawfully recognized military capacity (which he was not).
Disputing is irrelevant. Unless the Prosecution can prove it, it's a viable defense. You're confusing the burden of proof.I have disputed that he was lacking the moral context for his actions and even all of his memories. That's fine if you don't agree, but the point you're arguing has nowhere been confirmed.
Which is all that's relevant to a defense. Now you're confusing probability with certainty. There is no burden to prove the mostlikely outcome, even if it's with respect to the government's motivations, to defend you only need a reasonable alternative.Of course any of those things are possible,
Context. This is comic books. For all we know this will all turn out to be the elaborate plot of a Skrull. In any case, their motivations are irrelevant to the validity of Bucky's defense.The circumstantial evidence says to me that they're out to lock up Bucky or make him step down from the Captain America role.
Mens rea / mistake of fact. It's irrelevant whether he had actual authorization (whether he was or wasn't on their side; was or wasn't their agent) but what he believed.Oh, believe me, I know full well that the state erects all kinds of obstacles to protect its trained killers, even when no decent person could find an excuse for their agents brutalizing or murdering another person. It's complete moral nonsense, creates perverse incentives, and runs contrary to the rule of law, but I know that's the reality of it. But what I think you're missing is that, for the crimes he's being charged with, Bucky was not their trained killer. He was working for the Russians and killing their people. You address some of this in the next point, below which I will try to succinctly explain how your conclusions are unfounded.
If it was unconstitutional they would be called to task for it, it is a point of broader law which is why they still hold closed-door commissions and don't just handle it with a handshake and a nod. The law allows for expediency. Moreover it sets the precedent of when expediency is applied... in essence, when the asset is valuable and can be turned. A deprogrammed formerly brainwashed agent with Captain America level skills is just about the textbook definition of valuable asset and changed sides. The absolute mind control aspect only makes the contrast more stark. The only reason the spies you list are held to account is because Marvel-level science fiction brainwashing doesn't exist in the real world and the mens rea for treason is easily established.When this happens, it is point of expediency, not a point of law.
If you're going to argue a point of law you've got to remember the elements of said crime.
What other one will clear the necessary burden for the relevant expert to testify? Motor skills = morality doesn't meet the Frye test, Daubert, or FRE standards. This is how the mind words and how the defense's parade of experts will present it.A) implicitly accept those mechanistic interpretations of brain consciousness, and
Which I can tell you fails as a prosecution strategy. I said it earlier, but the insanity defense is weaker today but when it works it is almost always with more dirty than not behavior. Arguing Bucky is dirty only improves that defense. People don't want to think that people like Malvo were sane.B) accept that he had to know better at one point, but just forgot.
Once again you're confusing actus reas with guilt, which, in a court of law are very different things.
Before we get dragged into minutiae of line by line replies... let's take a step back and look at the charges, the case, the burdens of proof, etc.
The charges would be treason and murder, basically. And their elements require wrongful intent and wrongful action (mens rea and actus reus).
The State has the burden of proving both beyond a reasonable doubt to secure a guilty conviction. They're going to have a hard enough time establishing actus reus given all of this was done covertly, in secret, with little evidentiary trail to begin with (otherwise why use a covert Winter Soldier at all?), say noting of all the reasonable doubt defenses like "it was a clone, an illusion, etc." But, let's say, at best, they can prove in absolute terms that the events happened. That's not enough! You keep circling back to the fact the events happened, but you're ignoring how important the second half of intent or mens rea is to conviction. An action, in and of itself, is not enough to be guilty. Yes, killing an American citizen is a homicide, but a homicide is not a crime without the mens rea... one could be justified as in self defense, one could be authorized as a cop, one could be mistaken (and apply an earlier exception), etc.
The State is going to wrestle to prove beyond a reasonable doubt that the Bucky had the requisite mens rea. Performing the action itself, again, is not enough. For treason Bucky needed to know he was on our side and that he betrayed our side. For murder Bucky had to know he wasn't authorized to kill and had no justification and was not mistaken. The memory loss easily addresses the treason and provides reasonable doubt as to whether Bucky thought or was told he was authorized or justified (or plain mistaken). There is no real-world analog to this because we don't have 100% mind-wiping brainwashing science, but when child soldiers are brainwashed they get a pass because they have no other context on which to base wrong from right.
Against the affirmative defenses of lack of capacity, the State has to prove otherwise and they won't be able to do it if only because the Winter Soldier never had full autonomy. He was a defrosted weapon. If, between missions he was vacationing in Paris you could make an argument, but someone with no life outside of missions spaced decades apart is for all intents and purposes a slave or a robot. That fits nicely into the duress defense which could also negate treason and would bolster his character-based argument against his murder charges. If you're presented with a former and present patriot that Steve Rogers speaks for as character witness, that gave his life in war, and who is recognized as a man of character amongst his peers past and present and you contrast that against his Winter Soldier actions, the prosecution is going to have a hell of a time arguing it was done of free will, of a mind that recognized right from wrong, of a mind free from influence, or of someone who matches the character of Bucky at all. The more dirty the Winter Soldier's acts the stronger the defense becomes because actus reus IS NOT ENOUGH.
Just "happening" is not criminal guilt. You can repeat over and over that American citizens were killed but without the intent there's no guilt. Another way to look at it is the classic trilogy of "means motive opportunity"... what motive was there to act as Winter Soldier beyond legal insanity?
It doesn't mean that Bucky is automatically innocent, but his plethora of defenses and the Prosecution's inability to make their case means that barring jury nullification he's likely to get off.
Regarding the mens rea, you appear to be a lawyer or studying to become one, but I have never known the mens rea to be related to morality or justification, but rather the knowledge that the act is going to result in someone's death, and the intent to carry out the act having that knowledge. If my neighbor has a bomb implanted in his skull that is set to go off whenever I push the button on a remote control left on my doorstep, and I push the button, that wouldn't satisfy the mens rea, and it has nothing to do with my knowledge of murder being a "bad thing." If I don't know that murder is a bad thing, but someone tells me that if I push that button, someone will die, and I push the button, that would satisfy the mens rea. On the other hand, if someone tries to break into my house and murder me, and I shoot him to death, I intend to kill him and know that my actions are going to kill him, satisfying the mens rea, but it doesn't matter because of a specific exception for self-defense. That has always been my understanding. Are you telling me differently?
I'm not really interested in the duress arguments - I don't think he was under much duress when he was off on a mission by himself. In any case, as you agreed in a previous post, that would be mitigating, not exculpatory. I'm also not on the prosecution's side, per se. I do not think the US government has the moral authority to prosecute him, considering they were fine using him for the same kind of thing, just on a reduced scale. Besides that, he's obviously changed - whether through Steve's tutelage or the effects of the Cube or whatever, so it would seem absurd to punish him criminally (as opposed to civilly) now.
" the knowledge that the act is going to result in someone's death, and the intent to carry out the act having that knowledge. If my neighbor has a bomb implanted in his skull that is set to go off whenever I push the button on a remote control left on my doorstep, and I push the button, that wouldn't satisfy the mens rea, and it has nothing to do with my knowledge of murder being a "bad thing." If I don't know that murder is a bad thing, but someone tells me that if I push that button, someone will die, and I push the button, that would satisfy the mens rea. On the other hand, if someone tries to break into my house and murder me, and I shoot him to death, I intend to kill him and know that my actions are going to kill him, satisfying the mens rea, but it doesn't matter because of a specific exception for self-defense. That has always been my understanding. Are you telling me differently?"Yes, I'm telling you differently.
Mens rea is the inference of intent based on the totality of the circumstances. As a default, lacking telepaths, we infer that people intend the natural consequences of their actions. This, however, is a rebuttable presumption.
A trite example is if John strikes Don then it is assumed that John intended to strike Don, despite a lack of mind-readers. Nonetheless, John can present evidence that he has a muscle spasm condition and the action was involuntary or unintentional.
Using your bomb example, you're skipping many of the inferences that apply to said situation. 1. That murder, being malum in se, is universally known to be evil; 2. That the defendant is competent to know the natural consequences of his actions; and 3. That the defendant intended the natural consequences of his actions. By focusing on knowing death and the action of pushing you're missing all the places that the assumptions could be rebutted. For example, even if you knew and you pushed... if you did it because of a muscle spasm, or you did it because someone else pushed your hand down, or if you did it while you were unconscious, you would not be liable. Similarly, here, you conveniently set up what is malum in se murder, so we can assume the defendant is competent to know murder is evil. However, if our defendant was 1 year old and still knew the button meant death and the pushed the button, the defendant would not be liable because the assumption of bad intentions and knowledge of wrongfulness would be wiped away. Likewise, if the button was pushed in self-defense, the assumption of evil murderous intent would be rebutted.
When you talk about justification, authority, mistake, etc. almost none of them operate on the facts or the actions (you can have intervening causes and what not but that's neither here nor there)... they all operate on intent making the same action okay. Shooting someone in self-defense operates on your intentions because you are not wrongfully killing in cold blood, you are justifiably stopping a threat to prevent your imminent harm. If you have every reason to believe you're shooting a water gun and it turns out to be a prototype ray gun that kills someone, your intentions change the liability consequences of your actions. No longer is there a malignancy to your intentions.
For someone mind wiped, brainwashed, and let out only during mission defrosts with no civilian, social, or human context to inform him otherwise, the assumption of malignancy can be rebutted in argument.
And, just to be clear, yes, this means horrific psychopaths who both know the result of their actions and do their actions can be found not-guilty by reason of insanity because the ability to appreciate wrongfulness matters. They can know as a rational fact people will die, but if the defense raises the defense and the prosecution can't prove the defendant didn't appreciate the wrongfulness of his or her actions, then not-guilty is the correct legal result (even if the jury doesn't always come out that way). The issue for Bucky is whether he could raise the defense; and between his own testimony, Cap's character testimony, telepaths, and what not- he certainly can raise it and it's doubtful the prosecution can prove something inside Bucky's mind when their "malum in se" presumption is ripped away.
Bucky can't be held responsible for his Winter Soldier actions, that's like saying Wolverine qwas responsible for his axctions as Weapon X. They didn't go after Logan so why go after Bucky? I admit I can understand why they would want to bring him to trial, but I mean it doesn't make any real sense? Personally I think Red Skull might have something to do with it, I mean he does seem like the main person who would get the most outta screwing up Captain America's rep (no matter who it really is under the mask). But all in all, he should never be held accountable for his actions as the Winter Soldier.
" I'm no law major, but its basically like having someone make you kill people while keeping a gun to your head. What does that count as? "That would count as "under duress". It's what I would argue for if I was the defense lawyer. Bucky's "crimes" as the Winter Soldier were committed as an operative of the Soviet government, and were legally sanctioned by the same. As far as we're aware, they only consisted of killing certain people. Dirty, but it's not a war crime, so he can't be tried for them. The only crime he can be tried for is treason, for serving a foreign government. And that's really shaky, since 1.) an "under duress" defense would work very well, given that he was amnesiac and brainwashed, and 2.) he was legally considered dead by the United States at the time. Which makes it difficult to (legally) prove that he was actually committing treason, given that he technically did not exist.
The other thing is, the trial is going to shed a lot of light on a lot of things that are going to make Bucky look bad to the public. Even if he is declared not guilty, and therefore not thrown in jail or just executed, if there is some nefarious mastermind such as Zemo, the Red Skull, Dr. Faustus, et al. (probable), then just showing everyone what he's done may be enough to destroy everyone's confidence in him.
atlast the worst character ever gets what he deserves...
@dakens_son: sir you are correct.
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