Powers and Precedent: A Conversation with Jennifer Martinez
ABA Journal, November 2022
Jennifer Martinez has built one of the nation's most respected practices defending powered individuals, but she didn't set out to specialize in superhuman law. A former public defender in Philadelphia, Martinez found herself increasingly drawn to the complex intersection of traditional criminal defense and emerging powers legislation. Today, her firm Martinez & Associates handles some of the most challenging powered defense cases in the country. We sat down with her to discuss the evolving landscape of powered criminal defense.
ABA Journal: How did you transition from traditional criminal defense to powered cases?
Martinez: It wasn't a planned transition. In 2012, I was assigned a case involving a defendant who activated during a convenience store robbery. The prosecution wanted to classify his enhanced strength as a weapon under Davis, which would have significantly increased his sentence. That case forced me to really dig into the implications of Davis and how it intersects with traditional criminal law. After that, powered cases just kept coming my way.
ABA Journal: How has U.S. v. Davis shaped your approach to powered defense?
Martinez: Davis created this framework where powers can be classified as weapons, but it's not automatic. The prosecution has to demonstrate that the power was used in furtherance of a crime. This creates interesting opportunities for the defense. For example, I recently handled a case where my client's electromagnetic abilities accidentally disabled security cameras during a trespassing incident. The prosecution wanted to enhance the charges under Davis, but we successfully argued that the power activation was involuntary and therefore couldn't constitute weapon use.
ABA Journal: What are the unique challenges in jury selection for powered cases?
Martinez: Voir dire becomes incredibly complex when powers are involved. You're dealing with both explicit and implicit biases against powered individuals, plus the challenge of finding jurors who can truly separate the existence of powers from the elements of the crime. We've developed specific voir dire protocols focused on identifying jurors who may harbor anti-power prejudices while being careful not to create appellate issues by excluding jurors solely based on their views on powered individuals.
ABA Journal: How does LUMA registration status affect defense strategy?
Martinez: LUMA status is often central to these cases. An unregistered defendant faces additional challenges, but the prosecution's focus on registration status can sometimes work in our favor. We've successfully argued in several cases that the prosecution was inappropriately focusing on LUMA violations to prejudice the jury against our clients regarding the underlying charges. Courts are increasingly receptive to separating LUMA compliance from other criminal allegations.
ABA Journal: How do you approach cases involving powers that are inherently dangerous or difficult to control?
Martinez: These cases require carefully structured defense strategies. The prosecution often tries to argue that merely possessing certain powers constitutes reckless endangerment or criminal negligence. We've had success countering this by bringing in experts to testify about power control development and the Bracing Effect. In one recent case involving a client with pyrokinetic abilities, we demonstrated that his level of control was actually above average for his time since activation, which helped contextualize the incident in question.
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ABA Journal: What special considerations come into play regarding evidence in powered cases?
Martinez: Chain of custody becomes extraordinarily complex when powers are involved. For example, how do you maintain evidence integrity when dealing with objects affected by matter manipulation powers? We recently handled a case where the prosecution's evidence had been collected from a crime scene affected by temporal manipulation. We successfully argued that without establishing a baseline temporal reference, they couldn't prove the evidence reflected the scene at the time of the alleged crime.
ABA Journal: How has the emergence of the "goon economy" affected powered defense work?
Martinez: The organized nature of powered crime has created new legal challenges. We're seeing more RICO cases involving powered individuals, which requires expertise in both traditional organized crime defense and powers legislation. The courts are still working out how to handle cases where traditional criminal enterprise laws intersect with power-specific regulations. It's crucial to stay current with these evolving interpretations.
ABA Journal: What's your approach to handling the media attention these cases often attract?
Martinez: Media management has become a crucial part of powered defense work. We have to balance our ethical obligations to our clients with public safety concerns and media interest. I've found it's essential to maintain strict policies about media engagement and to work closely with court information officers to ensure accurate reporting of power-related legal issues. This helps prevent sensationalism from affecting jury pools or creating security issues.
ABA Journal: How do you handle cases involving multiple powered defendants?
Martinez: Joint defense agreements become particularly complex in powered cases. Beyond traditional conflict considerations, you have to account for power interactions and potential amplification effects. We've developed specific protocols for cases involving multiple powered defendants, especially when their abilities might interact in ways that affect criminal liability. This often requires bringing in power interaction experts early in the case planning process.
ABA Journal: What do you see as the next major legal battleground in powered defense?
Martinez: I think we're going to see significant litigation around privacy rights for powered individuals and vice versa, particularly regarding individuals with "detection" powers. There are already cases working through the system challenging whether powers that operate as passive detection via forms of extrasensory perception constitute a search under the Fourth Amendment. We're also seeing interesting questions about whether certain powers should be protected under attorney-client privilege – for instance, if a client's powers give them perfect recall of conversations with counsel.
ABA Journal: Your firm's New York office has become particularly notable for handling complex powered cases. What unique challenges does practicing in New York present?
Martinez: New York presents fascinating jurisdictional challenges due to the density of powered activity. We often deal with cases that cross multiple precincts and districts, sometimes involving both state and federal charges. The Southern District of New York has developed some of the most comprehensive powered case law in the country, which creates both opportunities and challenges for the defense.
The concentration of corporate interests in New York also adds complexity to powered defense work. We frequently handle cases involving powered individuals accused of corporate espionage or securities violations, which requires expertise in both powered defense and white-collar criminal law. The intersection of powers and financial crimes is becoming an increasingly significant part of our practice.
ABA Journal: Any final advice for attorneys considering powered criminal defense?
Martinez: First, invest in understanding the science. The Bracing Effect, power classification systems, activation theory – these aren't just academic concepts. They have real implications for defense strategy. Second, build a strong network of expert witnesses and power specialists. And finally, remember that despite all the complexity powers add to criminal defense, our fundamental obligation remains the same: ensuring every defendant, powered or not, receives a fair trial and zealous defense under the law.
Jennifer Martinez is the founding partner of Martinez & Associates, with offices in New York and Philadelphia. She teaches Advanced Powers Legislation at Columbia Law School and serves on the ABA's Task Force on Powered Individual Rights.