What Would It Be Like To Take The Punisher To Trial?

It is a defense attorney’s job to give their client the best representation possible, putting aside any personal ethics to abide by the legal axiom that everyone deserves such a defense. Juries, too, must let only the evidence and text of the law guide their judgment. When you have a controversial defendant, that raises the stakes. And in the Marvel Universe, at least, it’s hard to imagine a more divisive potential client than lethal vigilante Frank Castle/the Punisher.

The recent Disney+ special “Punisher: One Last Kill” alone features Frank (Jon Bernthal, about to return in the much milder “Spider-Man: Brand New Day”) killing an apartment complex’s worth of criminals. Considering Bernthal’s Punisher debuted in “Daredevil” Season 2, which aired in 2016, he’s been “punishing” for over a decade. How would a lawyer possibly defend the infamous Punisher, and what strategies would the other side employ in prosecuting his vigilante crusade?

To get the answers, we asked real-life lawyer Alexander Conley, who previously corresponded with /Film to investigate how good of a lawyer Daredevil/Matt Murdock really is. Conley is a practicing defense attorney in the Commonwealth of Massachusetts who currently runs his own firm, Conley Law, PLLC. He graduated with great honors from New England Law Boston in 2017, and before founding Conley Law, he worked as an attorney at Boston’s Coughlin Law Group and then as a partner at Aprodu | Conley, PLLC. During his time as a criminal defense lawyer, he has defended numerous clients in the Massachusetts District and Superior Courts.

Conley also revisited pertinent episodes of “Daredevil” Season 2 (“Semper Fidelis” and “Guilty as Sin”) where the Punisher is taken to trial; he offered not only a fact check of that story, but also his own legal insights into how a defense attorney — not to mention prosecutors, jury, and a judge — would handle the trial of the Punisher.

During the Punisher’s trial in “Daredevil” Season 2, he’s represented by Matt Murdock (Charlie Cox) and Foggy Nelson (Elden Henson). Their defense? Frank sustained a brain injury during his family’s murder that keeps him in elevated rage, thus he’s not fully responsible for his actions.

Alexander Conley found this defense accurate; it’s essentially an employment of the insanity defense, which argues that a defendant is “not responsible because [they were] suffering some mental disease or defect and that therefore [they] didn’t appreciate the wrongfulness of [their] potential actions.”

“It’s also accurate in that they also went for a secondary defense of basically [Frank’s] mental state was such that he couldn’t develop premeditation and deliberation, making it potential to reduce the charge from a first degree murder to something lower than that,” Conley added.

Conley did flag a common inaccuracy in legal dramas: how quickly the trial moves. Real trials progress slowly, with every piece of evidence introduced in advance, whereas the Punisher’s trial in “Daredevil” is rushed.

“If you’re going to have experts testifying as to the mental state of somebody, you’d have to have a lot of advanced notice of that so that they have a resumé on file,” Conley explained. “Daredevil” justifies the speedy turnaround with vindictive District Attorney Samantha Reyes (Michelle Hurd) trying to get Frank prosecuted as quickly as possible, but that still puts narrative drama before legal accuracy. So, too, does the trial’s conclusion when Matt questions Frank:

“[Matt] basically starts testifying himself as to what he wants the jury to hear. That would never be allowed. He asks, ‘Can I treat the witness as hostile?’ and then just goes on a monologue to the jury. That wouldn’t be permissible. They would never let an attorney do that.”

I asked Alexander Conley if the defense employed by Murdock & Nelson is one he would go with, and he said it seemed “reasonable” based at least on what “Daredevil” provides. “[The show] doesn’t go into detail about what the evidence is, but clearly, there was significant evidence as to the actual homicide taking place. So it’s a reasonable defense to pursue a lack of criminal responsibility defense in that circumstance,” he said.

Part of a lawyer’s job is to use the facts of evidence to sway the jury to their side, sometimes by creating a sympathetic narrative. “It’s always helpful to try and spin a positive narrative through your defense throughout the trial,” Conley confirmed. Part of the narrative that the Punisher’s lawyers spin in “Daredevil” Season 2 is that Frank Castle is a decorated Marine captain hit by tragedy. They call in one of his former commanding officers, Ray Schoonover (Clancy Brown), to testify on his behalf — which, per Conley, is not the kind of typical testimony at a murder trial.

“Character evidence usually doesn’t come in, but they try to get around it by kind of using that as the evidence of [the Punisher’s] potential mental state to make it relevant. But usually there’s pretty strict evidentiary rules that make it so you can’t admit a person’s character to show that they are acting in accordance with their character at the time of the allegations, on both sides,” Conley explained. “Obviously if you can get it in, then yeah, it can certainly be helpful. Anything that the jury hears that could have been more sympathetic is always a valuable thing to try and get to them if possible.”

The cold, hard evidence shows that the Punisher is a mass murderer without remorse or any intention of stopping. But he targets dangerous criminals, and he only does so after he lost his family in a brutal gangland shooting. He’s got an immensely sympathetic history — a war hero who lost his family when he came home — and an arguably noble motive of stopping criminals from harming innocents.

Indeed, in the real world, many do sympathize with the Punisher. Police and military officers (like “American Sniper” Chris Kyle) have embraced his skull logo and see themselves in Frank. “Daredevil: Born Again” even worked this into its story, with in-universe cops appropriating the Punisher’s symbol.

Would a defense attorney, if faced against a mountain of physical evidence against the Punisher’s crimes, turn to his sympathetic motive to win the jury? Alexander Conley explained that motive defenses have their limits:

“[Motive] could come into play if a motive is an element of the offense, if there’s some reason that it actually is a requirement for the jury to find out if, for example, premeditation and intent to do something, then it can come into play. Or any other circumstance where you have to intend certain actions, then you can argue that to a jury. Just kind of an underlying reasoning for why this happened, like, well, like a Robin Hood-type defense — ‘he was stealing because he wanted to help the poor’ type situation — it’s usually not part of what you’re permitted to argue.”

If you push the motive argument, Conley explained, then you risk centering “something that’s not really relevant to the charges and whether or not [the defendant] committed them.” That opens the door for something greatly frowned upon: jury nullification.

Jury nullification is when a jury delivers a “not guilty” verdict for reasons outside of what the evidence shows. For instance, in the 1850s, juries in the Northern United States would nullify themselves in cases involving the Fugitive Slave Act as a show of support for abolitionism.

“[Jury nullification is] not really something that’s looked well upon,” Alexander Conley explained. “It’s very rare that it happens, but nothing they can prohibit, either. If the jury decides to decide something outside the law, then the jury’s deliberation is a secret, etc. So you’ll never know if they do that.”

A hypothetical trial of the Punisher feels like a case where the extraordinary act of jury nullification could happen. Maybe the jurors are or become convinced that the Punisher has the right idea; he’s killing people who are making the world a worse place for their own benefit. If so, they would then find him not guilty not because the evidence failed to convince them, but as a show of support for his vigilante crusade, tacitly allowing him to continue it.

While a defendant’s fate lies in the hands of the jury, there’s another party here to remember: the judge. “As a general matter, the judge is usually [tasked with] determining sentences, [and they’ll be] able to take anything into account,” Conley explained. “They’re not limited in scope of what they can consider the same way that a jury is with determining guilt or innocence. So they can consider all the factors about why they did things, their reasoning, whether it’s amendable in any way or not.”

While it’s unlikely a judge appreciating a man like the Punisher taking the law into their own hands, a “tough on crime” judge could be swayed by the mitigating factors of Frank’s story.

The potential for jury nullification is just one reason why defense lawyers and prosecutors are careful about selecting the right jury. “The impanelment of the jury goes through questions on both sides of the issue, so that would affect both sides to make sure no juror would be biased one way or another,” explained Alexander Conley. In the Marvel Universe, the Punisher is a well-known, high-profile vigilante, so it’s probably hard to find someone without an opinion on him.

Let’s use a real-life example similar to the Punisher’s: Luigi Mangione, who is currently on trial for allegedly murdering UnitedHealthcare CEO Brian Thompson. Upon Thompson’s death in December 2024, social media was abuzz with comments saying his death was a just comeuppance for all the deaths and/or bankruptcies caused by the health insurance industry. When Mangione was charged, New York prosecutors were reportedly concerned that potential jurors were too sympathetic to that line of thinking.

It’s easy to envision prosecutors in the Marvel Universe having the same wariness of trying Frank.  There would also doubtlessly be people strongly opposed to the Punisher, or who have an axe to grind; Frank’s victims have families and friends, remember.

“For a case like this, where there’s so much potential publicity,” Conley explained, “you would have to try and find jurors who will say that they have and don’t already have a preconceived notion or anything that they know about the case. They’re able to put aside to just listen only to the facts and evidence presented to them, not consider anything outside that box, and come to a just and fair conclusion based solely on that evidence and the law as given to them by the judge.”

Prosecutors everywhere should feel lucky they don’t have to find such people to sit in on a trial of the Punisher.