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Tuesday, December 5, 2017

Current plans for review sessions

As I have mentioned in class, my "scheduled" review sessions are designed to provide a designated time and place for students to gather in order to ask me questions about course materials, doctrines or past exams (many of which can be found at links here and here).

As of this writing, I am still committed to scheduled reviews session on:

December 5, 2017 in Course materials and schedule, Preparing for the final | Permalink | Comments (1)

Monday, November 13, 2017

Attempt actus reus hypo for consideration and reflection

Though we will start our review of attempt law by unpacking the required mens rea for attempt liability, the most challenging and controversial issues surrounding attempt throughout history has concerned the required actus reus for the crime.  To facilitate our discussion of the actus reus of attempt liability, below is a list of hypothetical actions by a hypothetical troubled young man to get you thinking about where a line should be drawn between "mere preparation" and attempt liability:

Joe McAngry of Columbus truly believes modern technology is the root of much evil in the world, and he often tells his friends that the whole world would be better off without the likes of Apple and Google and Microsoft and their leaders. After watching a documentary about the Oklahoma City bombing and the Unibomber, Joe McAngry does the following:

1. E-mails friend saying he wished Tim Cook was dead and Apple and Google and Microsoft were bankrupt

2. Posts blog comment that he would love to see Apple and Google and Microsoft headquarters blown up

3. Does internet research on location of Apple headquarters in Cupertino, California

4. Does internet research about how often and when Tim Cook goes to his Apple office

5. Does internet research on homemade explosives

6. Rents hotel room for two nights in San Jose, California

7. Rents Ryder truck for driving to San Jose, California

8. Drives rented truck to San Jose, California, checks into hotel, sleeps

9. Drives in morning to Cupertino and drives around the Apple headquarters repeatedly

10. Parks near Apple headquarters, walks around asking employees when Cook is there

11. Returns to hotel room in San Jose, California, does more internet research on bomb-making, sleeps

12. In morning, buys fertilizer/gas/timer and other ingredients for making primitive bomb at hardware store

13. Drives again to Cupertino, now with bomb ingredients in truck

14. Parks in strategic location near Apple headquarters

15. Starts building homemade bomb insider rental truck

16. Waits, watches for Cook to arrive at work

17. Drives past security guard following Cook's car

18. Parks truck right next to Cook's car as he pulls into spot

19. Jumps out of truck with remote bomb trigger in hand

20. Runs away planning to push trigger after hiding behind stone wall



When SHOULD Joe McAngry be deemed guilty of attempted murder?

-- When could he be deemed guilty at common law?

-- When could he be deemed guilty under the MPC?



When do you want police to intervene?

When do you think the police legally can intervene?

When do you think the police will intervene?

November 13, 2017 in Course materials and schedule | Permalink | Comments (0)

Tuesday, November 7, 2017

Interesting local verdict in case that reads like an exam question

Though we are moving on from our self-defense discussions to other defenses, I think it useful to know and notice that defensive use of force is the most widely invoked and widely litigated of all the classic basic criminal law.  As but one example of its importance, today on the CrimLaw professor list-serve there has been an (academic?) accounting of whether and how, under Texas law, it would be defensible for citizens in Texas to have been trying to kill the mass church shooter once he was in his car and fleeing the scene.

As another more local example of self-defense doctrines in action, consider this Columbus Dispatch article in today's paper.  The article is headlined "Jury acquits man in fatal shooting during street brawl," and here are the details:

Earl M. Lindsey testified that he feared for his life when an unarmed man threw a punch at him and a large group of people, some with guns, surrounded him in a South Side intersection.

So, Lindsey said, he pulled a handgun and fired a single shot into Rashawn M. Wilson’s chest. Wilson, 18, died six days later. “I didn’t have any other option,” Lindsey told a Franklin County jury last week.

On Monday, the jury acquitted him of murder, determining that he acted in self-defense.

Wilson’s mother responded to the verdict by cursing at Lindsey after the jurors had been excused. “You put a bullet in my son,” she shouted as deputies hustled her from the courtroom.

Lindsey testified last week that he saw at least three people with guns and heard two gunshots as a crowd converged on him during a street brawl at the intersection of East Gates and Ann streets on May 23, 2016. Wilson “swung on me,” Lindsey said, but he never saw a gun in Wilson’s hands.

To shoot Wilson under those circumstances was “extreme, unnecessary and unjustified,” Assistant Prosecutor Mark Wodarcyk told the jury Monday in his closing argument. “At most, Rashawn was going to engage in a fist fight.”

Seconds after Lindsey shot Wilson, a neighbor fired at Lindsey from a nearby front porch, striking Lindsey in the side of the neck. The bullet remains lodged near Lindsey’s spine and left him with some paralysis. He wasn’t able to fully lift his right hand when he was sworn in before testifying.

The neighbor, Aaron Mahan, wasn’t part of the confrontation in the street. He testified that he fired when Lindsey pointed the gun in his direction after shooting Wilson. “I shot the guy who shot the kid,” he said.

Mahan, who said he is a concealed-carry instructor, was not charged in the case.

Testimony established that the fatal encounter began with a fist fight among several young women. Lindsey said he was trying to separate the combatants when a large group of people, some with guns, began to close in on him. Wodarcyk called it “a simple neighborhood fight” and said Lindsey “decided to put himself in the middle of it with a loaded handgun.”

Defense attorney Byron Potts argued to the jury that Lindsey was justified in using deadly force because he was surrounded by a large crowd that included “multiple people with guns.”

Based on this description of the case, is anyone surprised that Earl Lindsey was acquitted here in Ohio. If the case was tried in Oliwood, do you think the outcome might have possibly been different?

Also, is anyone surprised or troubled that neighbor Aaron Mahan was not charged with any crime?

November 7, 2017 in Notable real cases, Preparing for the final | Permalink | Comments (1)

Monday, November 6, 2017

Readings (and videos) on Paul Butler's proposal for race-based jury nullification

I mentioned briefly in class Professor Paul Butler's (in)famous and provocative law review article in which he urged race-based jury nullification.  The article was published as Racially Based Jury Nullification: Black Power in the Criminal Justice System, 105 Yale L.J. 677 (1995), and is available at this link.  Here is a snippet from the piece's introduction:

My thesis is that, for pragmatic and political reasons, the black community is better off when some nonviolent lawbreakers remain in the community rather than go to prison.  The decision as to what kind of conduct by African-Americans ought to be punished is better made by African-Americans themselves, based on the costs and benefits to their community, than by the traditional criminal justice process, which is controlled by white lawmakers and white law enforcers.  Legally, the doctrine of jury nullification gives the power to make this decision to African-American jurors who sit in judgment of African-American defendants.  Considering the costs of law enforcement to the black community and the failure of white lawmakers to devise significant nonincarcerative responses to black antisocial conduct, it is the moral responsibility of black jurors to emancipate some guilty black outlaws....

My goal is the subversion of American criminal justice, at least as it now exists.  Through jury nullification, I want to dismantle the master's house with the master's tools.  My intent, however, is not purely destructive; this project is also constructive, because I hope that the destruction of the status quo will not lead to anarchy, but rather to the implementation of certain noncriminal ways of addressing antisocial conduct.  Criminal conduct among African-Americans is often a predictable reaction to oppression. Sometimes black crime is a symptom of internalized white supremacy; other times it is a reasonable response to the racial and economic subordination every African-American faces every day.  Punishing black people for the fruits of racism is wrong if that punishment is premised on the idea that it is the black criminal's "just deserts."  Hence, the new paradigm of justice that I suggest in Part III rejects punishment for the sake of retribution and endorses it, with qualifications, for the ends of deterrence and incapacitation.

In a sense, this Essay simply may argue for the return of rehabilitation as the purpose of American criminal justice, but a rehabilitation that begins with the white-supremacist beliefs that poison the minds of us all --- you, me, and the black criminal.  I wish that black people had the power to end racial oppression right now.  African-Americans can prevent the application of one particularly destructive instrument of white supremacy --- American criminal justice --- to some African-American people, and this they can do immediately.  I hope that this Essay makes the case for why and how they should.

For those who (understandably) do not have enough time to read all of Butler's remarkable Essay, here is an effective (though dated, and yet also still timely) 60 Minutes video (under 10 minutes) discussing Butler's ideas.  The discussion usefully touches on some of the broader issues that jury nullification always raises.



Anyone who is eager for even more video on this issue can also see a series of 1995 segments on the Phil Donahue show (part 1 herepart 2 herepart 3 here...) with Butler and other guests.

November 6, 2017 in Class reflections | Permalink | Comments (0)

Saturday, November 4, 2017

For those interesting in learning more about Thomas Dudley and his travails....

9780521188517check out this Wikipedia page on the Dudley and Stephens case and some of the links therein.  That page provides this accounting of the activities that led to a criminal prosecution:

Drawing lots in order to choose a sacrificial victim who would die to feed the others was possibly first discussed on 16 or 17 July, and debate seems to have intensified on 21 July but without resolution.  On 23 or 24 July, with Parker probably in a coma, Dudley told the others that it was better that one of them die so that the others survive and that they should draw lots.  Brooks refused. That night, Dudley again raised the matter with Stephens pointing out that Parker was probably dying and that he and Stephens had wives and families.  They agreed to leave the matter until the morning.

The following day, with no prospect of rescue in sight, Dudley and Stephens silently signalled to each other that Parker would be killed.  Killing Parker before his natural death would better preserve his blood to drink.  Brooks, who had not been party to the earlier discussion, claimed to have signalled neither assent nor protest.  Dudley always insisted that Brooks had assented.  Dudley said a prayer and, with Stephens standing by to hold the youth's legs if he struggled, pushed his penknife into Parker's jugular vein, killing him.

In some of the varying and confused later accounts of the killing, Parker murmured, "What me?" as he was slain.  The three fed on Parker's body, with Dudley and Brooks consuming the most and Stephens very little.  The crew even finally managed to catch some rainwater.  Dudley later described the scene, "I can assure you I shall never forget the sight of my two unfortunate companions over that ghastly meal we all was like mad wolfs who should get the most and for men fathers of children to commit such a deed we could not have our right reason."  The crew sighted a sail on 29 July.

And if you really want to dig deep and get and even more thorough understanding of the context of the crime and the prosecution, check out Chapter 2 of this book, wonderfully titled "Is Eating People Wrong?".  Here is one of many notable passages to be found therein describing Captain Dudley's background and hiring:

Captain Tom Dudley ... was short of stature with reddish hair and beard.  A self-made man of thirty, he had earned himself quite a reputation as a dependable and intrepid mariner; he brought distinction to his home port of Tollesbury in Essex, on the southeast coast of England at the mouth of the river Blackwater.  He was a religious man, ran a tight ship, and insisted that his crew remain dry.  His wife, Philippa, was a local schoolteacher, and Tom was always on the lookout for ways to improve his financial condition for the benefit of his wife and three children.  Although he did not relish being away from his family for such a long time, the trip to Australia offered substantial remuneration and a chance to check out possible business opportunities on that burgeoning continent.  He seemed an ideal choice as captain for Want and the Mignonette’s sixteen-thousand-mile, 120-day voyage.

[ Australian lawyer John Henry] Want engaged Dudley on a generous contract.  For £100 on signing up and a further £100 on delivery of the Mignonette to Sydney, Dudley was to hire and pay a crew, provide all provisions on the trip, and keep her in good repair.  It seemed a wonderful deal and one that would leave Dudley with a handsome profit. However, he had problems securing the crew he required.  The boat was considered light and small for such an arduous trip through some of the world’s most treacherous waters, especially around the Cape of Good Hope. After some initial failures, he recruited a three-man crew of Edwin “Ed” Stephens (as mate), Edmund “Ned” Brooks (as able seaman), and Richard “Dick” Parker (as cabin boy).

The sailing was delayed for a few weeks because the Mignonette was in far from shipshape condition.  Although many timbers were rotten and needed replacing, the parsimonious Dudley opted to make only minimal and makedo repairs.  After extended and agitated negotiations with the Board of Trade over acquiring the necessary documents to certify the ship’s seaworthiness, the Mignonette and her crew were finally cleared to leave (or, at least, not prevented from leaving).  Like most seamen, Dudley was of a superstitious temperament.  Although he was ready to sail on a Friday, he chose to wait until the following, less ill-starred Monday.  Consequently, the ship set sail for Australia from Southampton on May 19, 1884.

November 4, 2017 in Course materials and schedule | Permalink | Comments (0)

Thursday, November 2, 2017

Sage words on prosecutorial discretion and the right to counsel from the Deputy Attorney General

Back when we were preparing for the Joe Shooter role play, I mentioned a speech by Deputy Attorney General Rod Rosenstein discussing prosecutorial discretion, but I failed to here provide a link to the text.  I am now finally remedying this failing by linking here to the speech and quoting this snippet from it:

The ideal prosecutor is dogged, but not an automaton who proceeds at all costs.  Nor is the ideal prosecutor a zealot who demands criminal punishment for every arguable violation of the law.

Robert Jackson, another of our nation’s great Attorneys General, observed: “If the Department of Justice were to make even a pretense of reaching every probable violation of federal law, ten times its present staff would be inadequate.”  Driving the point home, Jackson explained that “no local police force can strictly enforce the traffic laws, or it would arrest half the driving population on any given morning.”

With an ever-growing criminal code, those observations are more accurate today than when Jackson made them in 1940.  Jackson’s point was simple.  Violations of the law abound.  “What every prosecutor is practically required to do,” he said, “is to select the cases for prosecution and to select those in which the offense is the most flagrant, the public harm the greatest, and the proof the most certain.”  As Jackson recognized, the prosecutor necessarily chooses which cases to pursue.

The ability to choose which cases to prosecute is an extraordinary power.  Courts exercise the ultimate authority to rule on the strength of the evidence and the meaning of the law.  But the decision whether or not to prosecute, as the Supreme Court has ruled, is “ill-suited to judicial review.”  Such unreviewable power calls for the exercise of judgment, and the wise use of discretion.

When asked, “Why did you prosecute that case?” it will not do for the prosecutor to respond with, “Because I can,” or “Because I must.”  The only right answer is, “Because I should.”

Of course, our next role play does not engage the issues that surround prosecutorial decision-making and discretion, but rather defense representation.  Conveniently, just today, Deputy Attorney General Rod Rosenstein gave this new speech on the topic of the right to counsel. Here is an excerpt that might help inspire those soon to play the role of defending Thomas Dudley:

The right to counsel is enshrined in our Constitution for a reason. The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right to . . . have the assistance of counsel for his defense.”

Our Founders understood the necessity of protecting individual liberty from government overreach.  And no clearer overreach exists than the power to take someone’s liberty without due process of law.

Protecting the right to counsel is a fundamental component of preserving the rule of law and ensuring equal access to justice....

Defense attorneys work alongside their clients, at every stage of the proceedings, to advocate on their clients’ behalf. And through that advocacy, they play a critical role, a role that is essential to our concept of liberty and due process.

A defense attorney’s work is not just about the individual client represented in any given case.  Rather, the work is an integral part of our constitutional system.

The right to counsel is both substantive and procedural: a lawyer represents a client’s interests substantively, while simultaneously ensuring that the client’s procedural rights are protected.  A defense lawyer is the ultimate check on a prosecutor’s discretion, and a bulwark against the wrongful incarceration of innocent persons.

November 2, 2017 in Course materials and schedule, Reading about law and law school, Starting a career as a lawyer | Permalink | Comments (0)

Sunday, October 29, 2017

A couple of notable "castle doctrine" tweaks for Ohio's approach to self-defense

We will review this week the theoretical justifications and doctrinal nuances of the "duty to retreat" before using deadly force in self defense, as well as the so-called "castle doctrine" exception to the duty to retreat.  These refinements on self defense can get intricate and complicated both at common law and under the modern MPC formula.  As the Thomas case highlights, Ohio generally relies on a common-law approach to self defense (and other defense), but the Ohio General Assembly in 2008 decided to enact these (important?) statutory nuances to the application of self defense in "castle" situations:

2901.09 No duty to retreat in residence or vehicle.

(A) As used in this section, "residence" and "vehicle" have the same meanings as in section 2901.05 of the Revised Code.

(B) For purposes of any section of the Revised Code that sets forth a criminal offense, a person who lawfully is in that person's residence has no duty to retreat before using force in self-defense, defense of another, or defense of that person's residence, and a person who lawfully is an occupant of that person's vehicle or who lawfully is an occupant in a vehicle owned by an immediate family member of the person has no duty to retreat before using force in self-defense or defense of another.

2901.05 Burden of proof - reasonable doubt - self-defense....

(B) (1) Subject to division (B)(2) of this section, a person is presumed to have acted in self defense or defense of another when using defensive force that is intended or likely to cause death or great bodily harm to another if the person against whom the defensive force is used is in the process of unlawfully and without privilege to do so entering, or has unlawfully and without privilege to do so entered, the residence or vehicle occupied by the person using the defensive force.

(2) (a) The presumption set forth in division (B)(1) of this section does not apply if the person against whom the defensive force is used has a right to be in, or is a lawful resident of, the residence or vehicle.

(b) The presumption set forth in division (B)(1) of this section does not apply if the person who uses the defensive force uses it while in a residence or vehicle and the person is unlawfully, and without privilege to be, in that residence or vehicle.

(3) The presumption set forth in division (B)(1) of this section is a rebuttable presumption and may be rebutted by a preponderance of the evidence....

(D) As used in this section.... "Residence" means a dwelling in which a person resides either temporarily or permanently or is visiting as a guest [and] "Vehicle" means a conveyance of any kind, whether or not motorized, that is designed to transport people or property.

UPDATE: As I was gearing up for our discussion of Thomas, I realized I had not provided for you the statutory language the Ohio General Assembly passed in 1990 to address one of the issues raised in this case:

2901.06 Battered woman syndrome evidence.

(A) The general assembly hereby declares that it recognizes both of the following, in relation to the "battered woman syndrome:"

(1) That the syndrome currently is a matter of commonly accepted scientific knowledge;

(2) That the subject matter and details of the syndrome are not within the general understanding or experience of a person who is a member of the general populace and are not within the field of common knowledge.

(B) If a person is charged with an offense involving the use of force against another and the person, as a defense to the offense charged, raises the affirmative defense of self-defense, the person may introduce expert testimony of the "battered woman syndrome" and expert testimony that the person suffered from that syndrome as evidence to establish the requisite belief of an imminent danger of death or great bodily harm that is necessary, as an element of the affirmative defense, to justify the person's use of the force in question.  The introduction of any expert testimony under this division shall be in accordance with the Ohio Rules of Evidence.

October 29, 2017 in Course materials and schedule | Permalink | Comments (0)

Monday, October 23, 2017

A timely commentary providing another (final?) thought for our legislative drafting exercise

At the risk of continuing a dialogue about aggravated rape when we need to be moving on, I urge everyone to read this new commentary this powerful personal article authored by Amber Rose Carlson under the headline "Is There a ‘Rational’ Punishment for My Rapist?". 

I suspect that, had someone read this article to the legislative body during our debates, the motion to increase the maximum possible sentence might have gotten a few more votes.  But maybe not, and I welcome student comments on this or related topics flowing from our legislative exercise.

UPDATE:  I just saw this new Columbus Dispatch article headlined "Man sentenced to 35 years in prison for molesting children," which includes these details that might further impact/inform how we reflect on our legislative debate:

A 50-year-old man who raped children being cared for by a woman he lived with on the Hilltop was sentenced Monday to 35 years in prison. Kenneth E. Kilgore, of the West Side, pleaded guilty in August to three counts of rape, two counts of importuning and two counts of disseminating matter harmful to juveniles.

He admitted to engaging in sex acts with three children, as well as soliciting two children by offering them money or beer if they engaged in sex acts with him and showing pornography to two other children. Kilgore rented a room on South Richardson Avenue from a grandmother who watched her grandchildren and other children, sometimes overnight. The crimes took place between August 2012 and July 2016 and involved children ranging in age from 6 to 12.

Two mothers tearfully addressed the court, asking Franklin County Common Pleas Judge Michael J. Holbrook for the maximum sentence, which would have been 42 years. “They’re no longer allowed to be normal kids,” she said. “He took their innocence away. I’m asking for the max, because they have to live with this for the rest of their lives.”...

Assistant Prosecutor Kara Keating said Kilgore has shown no remorse and blamed his actions on alcoholism, telling police he didn’t remember some of the incidents because he was so drunk at the time. “This is not a one-time offense,” she told the judge. “This was multiple times on multiple dates and in multiple ways ... The victims have suffered serious psychological harm. They will likely never fully recover from what the defendant did to them.”

Defense attorney Mark Hunt said his client deserved some credit for pleading guilty and sparing the children from testifying during a trial.

October 23, 2017 in Class reflections, Notable real cases | Permalink | Comments (1)

Friday, October 20, 2017

Providing link to proctice exam and outline of key issues and exam tips

As of this writing, everyone has had a number of chance to do the practice exam under simulated exam conditions.  For those who have not yet done the practice exam (or want to relive the experience), I am making it available here on-line (and continue to encourage folks to use it as for an exam-taking simulation):

Download practice_exam.rtf

And with everyone having now had a good chance to work on the practice exam, I am now also reposting general feedback in the form of an outline of key issues on the exam and basic law school test-taking tips:

Download key_issues_on_practice_exam.rtf

Download exam_tips_memo.rtf

October 20, 2017 in Preparing for the final | Permalink | Comments (0)

GREAT WORK Oliwood legislators!

Today was a proud day for Oliwood democracy as we made terrific progress on potentially passing an aggravated rape statute for the great state of Oliwood.  I am hopeful that the Oliwood media — despite it recent affinity for "fake news" — will not falsely portray the reasons why we did not get a statute passed today or in any way misrepresent any of the comments from members of our legislative body. 

In the comments below, I welcome recommendations as to whether and how we should continue to seek to get an aggravated rape bill passed.  And in the meantime for your consideration, here is Ohio's Rape statute here (with also links to other Ohio sex offense provisions) to show you how Ohio (indirectly) sets forth some aggravated rape provisions and defines other sex offenses:

Ohio Revised Code Section 2907.02 Rape.

(A)(1) No person shall engage in sexual conduct with another who is not the spouse of the offender or who is the spouse of the offender but is living separate and apart from the offender, when any of the following applies:

(a) For the purpose of preventing resistance, the offender substantially impairs the other person's judgment or control by administering any drug, intoxicant, or controlled substance to the other person surreptitiously or by force, threat of force, or deception.

(b) The other person is less than thirteen years of age, whether or not the offender knows the age of the other person.

(c) The other person's ability to resist or consent is substantially impaired because of a mental or physical condition or because of advanced age, and the offender knows or has reasonable cause to believe that the other person's ability to resist or consent is substantially impaired because of a mental or physical condition or because of advanced age.

(2) No person shall engage in sexual conduct with another when the offender purposely compels the other person to submit by force or threat of force.

(B) Whoever violates this section is guilty of rape, a felony of the first degree.  If the offender under division (A)(1)(a) of this section substantially impairs the other person's judgment or control by administering any controlled substance described in section 3719.41 of the Revised Code to the other person surreptitiously or by force, threat of force, or deception, the prison term imposed upon the offender shall be one of the prison terms prescribed for a felony of the first degree in section 2929.14 of the Revised Code that is not less than five years.  Except as otherwise provided in this division, notwithstanding sections 2929.11 to 2929.14 of the Revised Code, an offender under division (A)(1)(b) of this section shall be sentenced to a prison term or term of life imprisonment pursuant to section 2971.03 of the Revised Code.  If an offender is convicted of or pleads guilty to a violation of division (A)(1)(b) of this section, if the offender was less than sixteen years of age at the time the offender committed the violation of that division, and if the offender during or immediately after the commission of the offense did not cause serious physical harm to the victim, the victim was ten years of age or older at the time of the commission of the violation, and the offender has not previously been convicted of or pleaded guilty to a violation of this section or a substantially similar existing or former law of this state, another state, or the United States, the court shall not sentence the offender to a prison term or term of life imprisonment pursuant to section 2971.03 of the Revised Code, and instead the court shall sentence the offender as otherwise provided in this division.

If an offender under division (A)(1)(b) of this section previously has been convicted of or pleaded guilty to violating division (A)(1)(b) of this section or to violating an existing or former law of this state, another state, or the United States that is substantially similar to division (A)(1)(b) of this section, if the offender during or immediately after the commission of the offense caused serious physical harm to the victim, or if the victim under division (A)(1)(b) of this section is less than ten years of age, in lieu of sentencing the offender to a prison term or term of life imprisonment pursuant to section 2971.03 of the Revised Code, the court may impose upon the offender a term of life without parole.  If the court imposes a term of life without parole pursuant to this division, division (F) of section 2971.03 of the Revised Code applies, and the offender automatically is classified a tier III sex offender/child-victim offender, as described in that division.

(C) A victim need not prove physical resistance to the offender in prosecutions under this section.

(D) Evidence of specific instances of the victim's sexual activity, opinion evidence of the victim's sexual activity, and reputation evidence of the victim's sexual activity shall not be admitted under this section unless it involves evidence of the origin of semen, pregnancy, or disease, or the victim's past sexual activity with the offender, and only to the extent that the court finds that the evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value.  Evidence of specific instances of the defendant's sexual activity, opinion evidence of the defendant's sexual activity, and reputation evidence of the defendant's sexual activity shall not be admitted under this section unless it involves evidence of the origin of semen, pregnancy, or disease, the defendant's past sexual activity with the victim, or is admissible against the defendant under section 2945.59 of the Revised Code, and only to the extent that the court finds that the evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value.

(E) Prior to taking testimony or receiving evidence of any sexual activity of the victim or the defendant in a proceeding under this section, the court shall resolve the admissibility of the proposed evidence in a hearing in chambers, which shall be held at or before preliminary hearing and not less than three days before trial, or for good cause shown during the trial.

(F) Upon approval by the court, the victim may be represented by counsel in any hearing in chambers or other proceeding to resolve the admissibility of evidence.  If the victim is indigent or otherwise is unable to obtain the services of counsel, the court, upon request, may appoint counsel to represent the victim without cost to the victim.

(G) It is not a defense to a charge under division (A)(2) of this section that the offender and the victim were married or were cohabiting at the time of the commission of the offense.

Other major Ohio sex offense provisions:

2907.03 Sexual battery.

2907.04 Unlawful sexual conduct with minor.

2907.05 Gross sexual imposition.

2907.06 Sexual imposition.

2907.07 Importuning.

2907.08 Voyeurism.


October 20, 2017 in Class reflections, Course materials and schedule | Permalink | Comments (0)

Wednesday, October 18, 2017

Proposals for Aggravated Rape statute in the great state of Oliwood

I have received the first submitted draft statute.  It comes from these sponsors: Carl T. Crow, Ruben C. Garza, Nataliya Merkoulova, Jacob L. Nathan and Kevin L. Scott. It reads as follows:

Aggravated Rape

(1) A person at least 18 years old commits ‘Aggravated Rape’ where, without consent for oral, anal, or vaginal penetration, that person purposefully or knowingly executes said non-consensual penetration by any of the following means or under any of the following circumstances:

(A) the assailant purposely uses, threatens to use, or displays a deadly weapon in order to facilitate the commission of the assault;

(B) the offender threatens to cause or causes serious or severe physical injury or disfigurement;

(C) the assailant attempts to kill the victim or another person during the commission of the assault;

(D) the assailant purposely or knowingly receives aid from or commits the assault with one or more other persons;

(E) the assailant knows the victim to be unable to consent due to the victim’s physical or mental disability;

(F) the assailant purposely holds the victim captive against their will in order to perpetrate further nonconsensual penetration;

(G) the assailant knows the victim to be under the age of 18 and creates sexually explicit audio, photographic, or video material of the assault, regardless of whether the material created is intended for personal use or for distribution; or

(H) the assailant purposely or knowingly provides or administers to the victim a substance intended to incapacitate the victim.

(I) the assailant is the parent or legal guardian and the victim is under the age of 18.

(2) Any person at least 18 years old engages in oral, anal, or vaginal penetration with a person under the age of 13 is guilty of ‘Aggravated Rape’ regardless of the offender’s knowledge of the victim’s age.

(3) Aggravated Rape Penalties: A person found guilty of Aggravated Rape shall be incarcerated for 15-25 years with the possibility of parole after 10 years.  Any person convicted of Aggravated Rape must register as a sex offender with both the state and national sex offender registries.  A person convicted of Aggravated Rape may never purchase or otherwise possess a firearm.


Here is the second submitted draft statute, coming from the Committee for Free Beer:

Aggravated Rape

1.) A person is guilty of aggravated rape when they engage in the activity of unwanted sexual intercourse or intrusion either vaginally, anally, or orally

(A) with a person age 10 years old or younger whether or not the offender knows the age of the other person, these persons shall be held strictly liable;

(B) purposefully or knowingly using extreme force or threat of extreme force to facilitate the activity;

(C) purposefully or knowingly with a mentally handicapped person who possesses a sufficiently diminished capacity to be able to consent to sex;

(D) while in the commission of or immediately preceding the commission of a violent crime;

(E) purposefully or knowingly with a person who is unconscious;

(F) while purposefully or knowingly using a position of authority or trust to facilitate the activity;

(G) after using drugs administered to the victim without the victim’s knowledge to facilitate the activity;

(H) while purposefully or knowingly acting in concert with another to facilitate the activity or;

(I) if the offender has already been convicted of a previous charge of rape or aggravated rape.

(J) Any person guilty of any provision under this section is guilty of a first-degree felony.

A person convicted of Aggravated Rape will be sentenced to a minimum of 10 years in prison with a maximum of life imprisonment with the chance of parole.


Here is the third submitted draft statute, coming from the Committee of Olli-garchs (updated because "the Committee of Olli-garchs realized there was a formatting error on the draft we sent you."):

1) A person who purposely, knowingly, or recklessly engages in sexual activity with another without the other’s affirmative consent is guilty of aggravated rape

a. Sexual activity that can constitute rape shall not be limited to intercourse. Rape can also be engagement in oral sex, anal sex, sexual touching of the genitalia of either the actor, victim or both, forced masturbation, any type of sexual penetration with a body part or with another object so manipulated by the offender, no matter how slight the touching is.

     i. Rape can be committed against or by any individual regardless of gender or gender identity.

b. These sexual acts are considered aggravated rape when they are done actor purposely, knowingly, or recklessly by an actor and in the absence of affirmative consent or when the victim revokes affirmative consent.

     i. Affirmative consent is purposeful, voluntary, non-intoxicated, non-impaired, non-coerced verbal or nonverbal consent.

2) A person commits an aggravated rape when any of the following apply:

a. The actor engages in sexual activity with a victim who is less than 12 years old regardless of the actor’s mental culpability

     i. Children under the age of of 12 cannot affirmatively consent

b. The actor uses or threatens to use physical strength, force, or other kinds of violence to encourage the victim to submit to sexual activities

     i. The threat is sufficiently made with or without a dangerous weapon

     ii. The actor’s intent to follow through with a threat is immaterial

c. A victim is mentally disabled such that their mental disability renders the victim

     i. Unable to understand the implications of a sexual act

     ii. Unable to affirmatively consent a sexual act

d. The victim is intoxicated and cannot purposely or knowingly consent to sexual activity

     i. An intoxicated victim is one whose mental capacity is impaired or who has become unconscious due to any type of intoxicating substance including but not limited to alcohol and date rape drugs such as rohypnol, ketamine, and gamma-hydroxybutyrate.

e. The victim is unconscious at any point during the sexual activity and the actor continues with the sexual activity.

f. The actor purposely targets a victim due to actor’s hate for a community of which the victim is a member, and it is the actor’s conscious object to inflict harm on the victim because of the victim’s identity with that community.

     i. Community identities include but are not limited to race, religion, gender, gender identity, sexual orientation, nationality, age, disability, and socioeconomic status.

g. Where an actor commits multiple rape offense of any mental culpability, the actor is guilty of aggravated rape even where the individual instances of rape are not aggravated.

3) In instances where there are multiple actors, each actor is equally culpable for the rape of the victim or victims.

4) A dangerous weapon is any object so designed or so used for the purpose of inflicting harm upon another (including body parts of the offender).

a. An actor using a dangerous weapon need not know that the object would or could be classified as dangerous.

b. So long as an actor implies or suggests that there is a weapon, a threat of a dangerous weapon is established. Visual confirmation that there is a dangerous weapon on the part of the victim need not have occurred to establish threat of a dangerous weapon.

5) Punishments

a. For anyone who violates §§ 2(a) and 2(g) the prison term shall be 25 years to life in prison without parole

b. For anyone who violates § 2(b), the prison term shall be 20 years to life in prison

c. For anyone who all other sections of this statute, the prison term shall be at least 15 years in prison

d. Regular police check-ins with a frequency contingent on prison counselor’s recommendation upon release

e. After release, aggravated rape offenders cannot petition for release from community supervision as other sex offenders have the opportunity to do

October 18, 2017 in Course materials and schedule | Permalink | Comments (0)

Tuesday, October 17, 2017

Some notable recent examples of involuntary manslaughter charges in Ohio

As noted (too) briefly in class, Ohio has a somewhat unique set of involuntary manslaughter provisions because they do not address reckless killing, but do cover deaths caused as a proximate result of other criminal activities.  Of late, one can find lots of different local stories of involuntary manslaughter charges being filed after a person dies from an opioid overdose.  Some examples of these stories, along with a few other recent cases in which Ohio prosecutors brought involuntary manslaughter charges, are linked below:

Woman Charged After 12-Year-Old Boy Dies From Fentanyl Overdose During Sleepover

Ohio Man Charged with Involuntary Manslaughter for Fentanyl Overdose Death

Woman gets 8 years in prison in fatal drug overdose

Akron man sentenced to 10 years in prison for overdose deaths of two Stow women; victim’s mother forgives, ‘will never forget’

Cleveland dinner-party host indicted in unintentional fatal shooting of guest

Trucker pleads no contest in 2016 death: Maumee woman, 20, killed in U.S. 24 crash

New Franklin woman charged in crash that killed two Coventry students

Though nobody should feel compelled to review all these stories, it might be useful to review some of the facts in these cases in order to imagine how a prosecutor in Oliwood might consider possible homicide charges under the Model Penal Code.

October 17, 2017 in Notable real cases | Permalink | Comments (0)

Sunday, October 15, 2017

How does (and how should) homicide law respond to the drunk driver who kills?

As we wrap up the homicide unit, we will a look at how the law deals with drunk (and drugged) driving that results in an unintended death.  As a matter of "raw" numbers, this is arguably the most consequential aspect of our homicide unit: data from 2015 indicate that there were more drunk/drugged driving deaths than all types of intentional homicides throughout the US in that year.  As we will discuss, in many jurisdictions drunk driving cases can possibly be prosecuted under many possible forms of homicide ranging from vehicular homicide to negligent homicide to manslaughter to murder.

As time permits, I plan to have an extended in-class discussion of how you think homicide law should treat the "standard" drunk driver (first offense, relatively low BAC) who causes a single death, as well as the "extreme" drunk driver (repeat offense, high BAC) who causes multiple deaths.  The first part of that discussion will explore what level of homicide liability is available under current laws (particularly, of course, in Oliwood and Ohio), and then we will turn to a discussion of what kinds of liability and kinds of punishments you think ought to be applied in these cases.

I would welcome this discussion getting a running start in the comments here, and perhaps a case out of Florida discussed on my sentencing blog provides an interesting starting point.  This case involves Daniel Phillips who, with methamphetamine in his system, fell asleep at the wheel of his truck and slammed into another car killing two women on a rural Florida road.  Interestingly, though the defendant was convicted only of "DUI manslaughter" under Florida law, he was eligible for and did receive a life without parole sentence for his crimes.

Also, for various perspectives on these enduring issues, here is a national and a local article discussing these crimes and punishments:

Drunken driving homicide: Is it an accident or murder?

Vehicular homicide sentences not harsh enough, say victims' families

October 15, 2017 in Course materials and schedule, Notable real cases | Permalink | Comments (0)

Wednesday, October 11, 2017

What do you think of the sentence given to Robert Richie, the dad convicted of involuntary manslaughter in Ohio's uglier version of Williams?

As reported in this local article, headlined "Robert Ritchie sentenced for his role in son's scalding death," there was a sentencing just yesterday in an Ohio manslaughter case that reminded me  of the Williams case (and also the Lima case and even the Josephine pool hypo). Here are the sad details:

A judge sentenced a father who neglected to get his four-year old son help after his wife held the boy down in scalding water, to seven years in prison.  Robert Ritchie could have been sentenced to 11 years.  Anna Ritchie put her stepson, Austin, in 124-degree water for 20 minutes as a punishment, then put him to bed.  By the next morning, Austin had died.

A jury found Robert Ritchie guilty of involuntary manslaughter and child endangering for not checking on his son or getting him help.

Austin's maternal grandmother says while wife Anna Ritchie did the damage, Robert did nothing.  She said Robert is destined for hell.  Robert's aunt defended Robert.  She told the court he is not the monster he is being portrayed.

Robert's attorney Frank Schiavone III asked for probation for his client, saying he's under a life sentence for his role in Austin's death.  Robert Ritchie’s attorneys said there was no punishment that could top what their client has already received.  He could have received eleven years behind bars, with time served, he will spend a little over six years in prison....

Ritchie was convicted for his role in the 2016 scalding death of his 4-year-old son Austin Cooper.  While his wife, Anna Ritchie, admitted to holding the child down in scalding bath water, prosecutors claimed Ritchie did nothing to help his son.  A point the child's maternal grandmother made to the judge prior to sentencing.

Ritchie himself asked Judge Robert Peeler to "show mercy on me" before Judge Peeler sentenced him.  "I want to do good in this world for my son.  Something good has to come from all this tragedy, something good has to come.  I want to share my faith and my love with the youth and eventually become a full-on pastor, if you deem fit to give me mercy."

Judge Robert Peeler concurred that Ritchie did not cause his son's injuries, but wondered why he did nothing to help his child.

Ritchie's defense team took issue with the fairness in prosecuting some child death cases and not others. Frank Schiavone IV pointed to the recent hot car death of a child where no charges were filed while his client is going to prison.  Prosecutor David Fornshell said that the difference was one parent had knowledge while the other did not....

Anna Ritchie is already in prison. She is serving 18 years to life for causing the injuries that killed the child.

This local article describing testimony from one of the trials in this case (there were two prior mistrials) provides some of the horrible details of the crime and concerning what the parents did and knew.

UPDATE:  Ohio's statute on child endangerment is ORC Section 2919.22, and it is hardly a model of clear statutory drafting.  And folks who have become familiar with Ohio's unique homicide provisions should understand why a charge/conviction under that statute was important for the Robert Richie to be subject to an involuntary manslaughter charge in this case.

October 11, 2017 in Current Affairs, Notable real cases | Permalink | Comments (0)

Monday, October 9, 2017

Here is the Simpson's hypo (aka RIP Rod and Todd Flanders):

Waylon_SmithersThanks to the suggestion of a class member, I realized I could and should provide the Simpson's hypo here for consideration before our next class.  So here it is, with helpful links to the Simpson's wiki:

Mr. Burns, that rich old codger, is having a problem with birds on his country estate.  Bart Simpson built a tree house on the property when he was ward of Mr. Burns, and Bart recently left open a huge vat or Marge’s home-made peanut butter.  (Bart had to take it to the tree house to keep Homer from eating all of it himself.)  Smelling the peanut butter, birds from all over Springfield have invaded Burns’ property.

Burns tells his willing servant Waylon Smithers to get one of his antique flare guns and start firing shots into the tree around the tree house to scare birds away.  Burns warns Smithers to check whether anyone is in the area; Burns knows kids still like to use the tree house, even though he had put up a sign stating that kids playing in the tree house would be prosecuted for trespassing.

Eager to do Burns' bidding and shoo the birds away quickly, Smithers only calls out "Hello, can anyone hear me?" to see if anyone is in the tree house.  Smithers does not personally check to make sure no kids are in the house.  After calling out a few times, he gets no response (though the woods are noisy).  Smithers decides that he has done enough given than he does not plan to shoot at the tree house.  He then takes aim at branches nearby the tree house and starts firing.

Sadly, it turns out that Rod Flanders and Todd Flanders, devout children of The Simpson’s devout neighbor, were in the tree house praying because they thought being off the ground brought them closer to their lord.  (The Flanders thought praying, rather than playing, in the tree house was fine, and they heard Smithers call out, but though it was their lord speaking to them.)  Tragically, the antique flare-gun fired off line and  into the treehouse. 

The flare shot by Smithers struck Rod directly in the chest.  Todd discovers his older brother Rod has been killed instantly, and distraught, he jumps out the treehouse window to his death.

Smithers turns himself in, and now you are the prosecutor trying to decide whether he might be guilty of a form of homicide in Washington (at the time of Williams); in Massachusetts (at the time of Welansky), in Oliwood under the MPC; and in Ohio now.

October 9, 2017 in Course materials and schedule | Permalink | Comments (0)

Wednesday, October 4, 2017

Plans for lunch this week and beyond

I was so very pleased to discover significant interesting in lunch plans, which I thought it now useful to review here:

1.  I will try to remind folks before their scheduled day (e.g., this week we have Adam K., Margaret H., Alison R., Bekah T. and Jacob S.). 

2.  Folks should make their way to my office (Room 313) by 11:30am, dressed/ready to take a walk outside to a location to be determined (influenced by weather and other factors).   I usually work at home in the mornings, so I may not be in my office until just around our scheduled meeting time.

3.  It is no big deal if you need to cancel/change plans even at the last minute, but please try to let me know in advance and/or encourage someone else to take your slot.

With nearly all slots already filled through Nov 3, I am eager to create some more days/times for lunch.   Are there other good lunch days for interested folks other than Fridays?  Please use the comments to suggest other possible good days for lunches.   I will have sign ups for additional Fridays forthcoming, and I am happy/eager to schedule lunches on other days, if possible, to ensure we have plenty of available slots.

October 4, 2017 in Food and Drink | Permalink | Comments (0)

More on Ohio's unique history and application of "prior calculation and design"

In case anyone wishes to dig even deeper into the unique phrasing of Ohio Revised Code Section 2903.01(A), the provision was the subject of an Ohio Supreme Court ruling late last year. In State v. Walker, 2016-Ohio-8295 (Ohio Dec. 23, 2016) (available here), the Court split over whether the trial evidence was sufficient to sustain a jury finding of "prior calculation and design." In so doing, the Walker Court provides this bit of legal history:

When the Revised Code was adopted in 1953, the crime of murder in the first degree — the precursor to aggravated murder — prohibited purposeful killing with “deliberate and premeditated malice.” Former R.C. 2901.01.  Under this earlier standard, “a killing could be premeditated even though conceived and executed on the spur of the moment. The only requirement was that the malicious purpose be formed before the homicidal act, however short in time.” State v. Cotton, 56 Ohio St.2d 8, 11, 381 N.E.2d 190 (1978).

When it amended the aggravated-murder statute, R.C. 2903.01(A), to provide that “[n]o person shall purposely, and with prior calculation and design, cause the death of another,” the General Assembly explicitly rejected the notion that brief premeditation prior to a murder could establish prior calculation and design:

[R.C. 2903.01(A) employs] the phrase, “prior calculation and design,” to indicate an act of studied care in planning or analyzing the means of the crime, as well as a scheme compassing the death of the victim.  Neither the degree of care nor the length of time the offender takes to ponder the crime beforehand are critical factors in themselves, but they must be sufficient to meet the proposed test of “prior calculation and design.”  In this context, momentary deliberation is considered insufficient to constitute a studied scheme to kill.

(Emphasis added.) Ohio Legislative Service Commission, Proposed Ohio Criminal Code: Final Report of the Technical Committee to Study Ohio Criminal Laws and Procedures, at 71 (1971).

October 4, 2017 in Notable real cases, Reflections on class readings | Permalink | Comments (0)

Thursday, September 28, 2017

Thoughts on, reactions to, and results from Shooter role-play

In addition to thanking again our terrific state homicide lawyers, I also want to provide this space for any pressing questions or other thoughts on the Shooter exercise.  The primary point of the role-play was to preview homicide issues we will be working through in October.  But the exercise may also prompt thoughts about matters of procedure and practice that I would be happy to field here or elsewhere. 

Some questions and reactions might also be triggered by the document linked below showing the voting results in the Shooter role play in the three different jurisdictions we examined (California, Kansas and Ohio).  Consider whether the pattern of outcomes tells us more about the unique law in the three different jurisdictions or about the unique choices made by the lawyers who presented the case in these jurisdictions.

Finally, and as a preview of the start of our discussions next week, think about (and perhaps comment upon) the ideal number of different types of homicide.  As mentioned in class, the drafters of the Model Penal Code decided there should only be three different types of homicide.  To my knowledge, not a single US jurisdiction has only three types of homicide crimes.  In Ohio, if you include aggravated vehicular homicide and vehicular homicide, the Revised Code has nine different types of homicide.   Do you think it better for a modern criminal code to have fewer or to have more types of homicide?  What are some consequences of one general criminal harm being subdivided into so many different offenses?

Download 2017 shooter results

September 28, 2017 in Class reflections, Course materials and schedule | Permalink | Comments (0)

A terrific review of the modern realities of the insanity defense and its consequences

Though we will not get to what I call "traditional defenses" for a few weeks and will not get into the insanity defense until the very end of the defenses unit, we have already indirectly encountered some of the challenging issues that mental illness can create for criminal law in cases like Grant and Wetmore.   When we do get to the insanity defense, we will talk about why a good defense lawyer might not even want her client to pursue this defense. This new New York Times Magazine article explains why better than I will be able to in class. 

The full headline and sub-headline provides a helpful summary of the long article: "When ‘Not Guilty’ Is a Life Sentence: What happens after a defendant is found not guilty by reason of insanity? Often the answer is involuntary confinement in a state psychiatric hospital — with no end in sight."  This long article is not required reading, but it is recommended for anyone interested in the important connections between mental health issues and the criminal justice system.

September 28, 2017 in Notable real cases | Permalink | Comments (0)

Tuesday, September 26, 2017

A couple Ohio cases with contested causation circumstances

As I mentioned in class, Ohio tends to adopt a more "common law" approach to causation doctrines than an MPC approach, but this is a distinction that does not really make much of a difference in all but the rarest of cases.  In this post on this blog last year, I flagged four of the rare Ohio criminal cases in which causation doctrines are discussed.  Here are two of those cases I consider the most interesting, and I will here just provide the cites and facts.  You will have to look up the cases if you want to see how they were worked out:

1.  Ohio v Lovelace, 137 Ohio App. 3d 206 (1st Dist. App. 1999), gets started this way:

The issue in this appeal is whether a person who leads police on a high-speed car chase can be found guilty of involuntary manslaughter when one of the police cruisers in pursuit runs a stop sign and collides with another vehicle, killing the driver. The answer turns on whether the evidence was sufficient to support the jury's finding that the defendant-appellant, Paul Wayne Lovelace, should have foreseen the fatal accident as a consequence of his own reckless behavior. At the time of the accident, Lovelace was driving a stolen car and had already led Ohio and Kentucky police on a multi-car chase that reached speeds of one hundred miles per hour, crossed back and forth over the Ohio River, and caused several collisions and near collisions in both states.

Lovelace argues that he cannot be guilty of involuntary manslaughter because he could not possibly have foreseen that the officer would disregard the stop sign — although he had done so himself only moments before.  In his view, the police officer's failure to stop was an intervening cause of the accident, absolving him of criminal responsibility.  Lovelace also contends that his trial was unfair because the trial court's evidentiary rulings deprived him of the opportunity to present crucial evidence, and because the jury instructions misled the jury on the critical issue of proximate cause.

2.  Ohio v Voland, 716 N.E.2d 299 (Ohio Com. Pl. 1999), involves these essential facts:

[T]he defendant, while under administrative license suspension growing out of her arrest for driving under the influence of alcohol, drove her vehicle from the western side of Hamilton County to the Cincinnati Sand Volleyball Courts ... accompanied on that drive and at the courts by her daughter, Alexandria, age four, and a cousin, Ashley Weaver, age twelve.... At some point after her arrival at the Cincinnati Sand Volleyball Courts, Voland was approached by her cousin, Ashley Weaver, who complained that she was hot and bored. Ashley Weaver was watching Voland’s daughter, Alexandria.

At that time, the defendant gave her twelve-year-old cousin the keys to her car so that Ashley could get in and start the car to permit the air conditioning to work, allowing Ashley and Alexandria to cool off and wait while defendant played volleyball.  The two children got into the car, started the car, turned on the air conditioning, and listened to the radio. They played in the car while the engine was running, in excess of ninety minutes unattended, with the exception of one visit by defendant. During the one visit, defendant did not notice any attempts to move the vehicle.

At approximately 8:10 p.m., with the two girls playing in the automobile and the engine running, the car lurched forward, over a parking block six to eight inches in height, across a short, grassy area of four to six feet, where the auto struck a fence. The fence, approximately six to eight feet in height, had a four-by-four post nailed vertically to it, apparently to seam two sections of the fence together. This fence post cracked and fell to the ground on the inside of the fence, striking Steven Smith in the head, causing injuries that resulted in his death.

September 26, 2017 in Notable real cases | Permalink | Comments (0)

Thursday, September 21, 2017

Looking back at omissions and forward to causation

I just came across this recent article, headlined "Why It’s Hard to Punish ‘Bad Samaritans’," that starts with a report on a recent real case from Florida that, sadly, sounds like my drowning Josephine hypo.  Here is how the article starts and a bit of a review of laws that you all now know a bit about:

In the video, Jamel Dunn can be seen flailing in the middle of a Florida pond, his head sinking deeper in the water with every gasping breath.  In the background, teenagers are laughing and mocking him.  “Ain’t nobody’s gonna help you,” one yells.  Seconds later, Dunn, 31, drowns.

Months after the July episode, which was posted online and seen by millions, the teens have faced public outrage, but no legal action. While many agree that what they did was immoral, it wasn’t illegal.... There is no law in Florida — or in most states — that requires someone to act when they see someone else in grave danger.  There is no duty to attempt a rescue, or even to call for help.

That’s unconscionable for many who watched Dunn’s drowning, including lawmakers in Arizona and Florida who are now drafting proposals that would make it illegal to sit idly by if you see someone in grave danger. The laws would impose either a duty to rescue or duty to call 911 or otherwise alert authorities during emergencies. Only a handful of states have similar, broad “bad Samaritan laws,” which apply to any bystander who witnesses an emergency or crime.....

Three states — Minnesota, Rhode Island and Vermont — impose a broad duty to rescue others in an emergency, and three others — Hawaii, Washington and Wisconsin — impose a broad duty to report crimes to authorities. Other states have similar laws, but they’re more specific, and apply only to medical professionals or people who witness certain criminal acts such as child abuse. People are rarely, if ever, prosecuted or sued for breaking these laws, said Christopher Roberts, an associate law professor at the University of Minnesota.

In addition to highlighting for you how some issues we have previously discussed are in the news, I also wanted to flag for you some recent Supreme Court cases dealing with some causation issues we will be discussing.  You are NOT required or even expected to read these cases, but you might still find it interesting to see the settings in which SCOTUS can confront issues that we are reviewing.  Here are links to the rulings, along with the start of the Court's opinion in each case:

Burrage v. United States:  "The Controlled Substances Act imposes a 20-year mandatory minimum sentence on a defendant who unlawfully distributes a Schedule I or II drug, when 'death or serious bodily injury results from the use of such substance.' 21 U.S.C. §841(a)(1), (b)(1)(A)–(C) (2012 ed.).  We consider whether the mandatory-minimum provision applies when use of a covered drug supplied by the defendant contributes to, but is not a but-for cause of, the victim’s death or injury."

Paroline v. United States: "This case presents the question of how to determine the amount of restitution a possessor of child pornography must pay to the victim whose childhood abuse appears in the pornographic materials possessed.  The relevant statutory provisions are set forth at 18 U.S.C. §2259.  Enacted as a component of the Violence Against Women Act of 1994, §2259 requires district courts to award restitution for certain federal criminal offenses, including child-pornography possession.

"Petitioner Doyle Randall Paroline pleaded guilty to such an offense.  He admitted to possessing between 150 and 300 images of child pornography, which included two that depicted the sexual exploitation of a young girl, now a young woman, who goes by the pseudonym “Amy” for this litigation.  The question is what causal relationship must be established between the defendant’s conduct and a victim’s losses for purposes of determining the right to, and the amount of, restitution under §2259."

September 21, 2017 in Notable real cases | Permalink | Comments (0)

Friday, September 15, 2017

How Rhode Island changed its child abuse law after Lima

Though our casebook mentions how New York amended its drug statutes after Ryan, I think it also notable how the Rhode Island legislature responded to the Lima case.  Here is the story via a subsequent Rhode Island ruling, State v. Sivo, 925 A.2d 901 (R.I. 2007):

In Lima, the defendant was convicted of first-degree child abuse for lowering a small child into a bathtub of scalding water, causing him to suffer permanent disfigurement or disability.  The child abuse statute implicated in Lima, § 11-9-5.3(a), provided, in pertinent part, that "[w]henever any * * * [caretaker] * * * abuses [a] child by inflicting upon said child a physical injury, to the extent the child is permanently disfigured or disabled, he or she shall be guilty of child abuse in the first degree * * *." General Laws 1956 (1981 Reenactment) § 11-9-5.3, as amended by P.L.1983, ch. 179, § 1.   Evidence introduced at trial showed that the defendant told the child's father that she had intentionally put the child in the bathtub to wash him, but had not first checked the water temperature, which, unbeknownst to the defendant, was far too hot.  Lima, 546 A.2d at 771.  The trial justice instructed the jury on the elements of the child abuse statute, but did not instruct the jury that intent was a necessary element of the crime charged. Id.   The defendant appealed, alleging that the trial justice committed error when he refused to instruct the jury that an intentional act was required. Id. This Court held that the trial justice's refusal to so instruct the jury constituted reversible error. Id. at 772.  Because the child abuse statute in place at the time was entirely devoid of words of intent, we adopted a standard similar to that set forth in the Model Penal Code (MPC), requiring that "[w]hen the culpability sufficient to establish a material element of an offense is not prescribed by law, such element is established if a person acts purposely, knowingly or recklessly with respect thereto." Lima, 546 A.2d at 772 (quoting Model Penal Code, § 2.02(3) at 226 (A.L.I.1985)).  Pursuant to this standard, we directed the trial justice on remand to instruct the jury accordingly, to "protect [][the] defendant from a conviction predicated upon an act devoid of mens rea while at the same time protecting a class of defenseless victims from physical abuse." Id. 

In the years after Lima, the General Assembly enacted numerous amendments to the first-degree child abuse statute.  What is most significant to the instant litigation is that, in 1995, the General Assembly added words of intent, prescribing punishment only for those individuals who “knowingly or intentionally” inflict a serious bodily injury upon a child.  These statutory words of intent effectively superseded the MPC-inspired words of intent we adopted in Lima..... [where] our concern was the possibility that the jury convicted the defendant without finding that she had acted with a mens rea.

September 15, 2017 in Class reflections, Notable real cases | Permalink | Comments (0)

Monday, September 4, 2017

Highlighting why we need to pass the proposed "Driving in the Rain" criminal law in Oliwood

As you may know, the great state of Oliwood borders Ohio, and the headline of this weekend article from an Ohio newspaper provides a reminder for why proposed "Driving in the Rain" legislation seems so important for community protection and safety: "Saturday rain caused several crashes, highway closures."  Here is the article's lead: "Columbus-areas highways were shut down at least four times on Saturday by crashes on rain-soaked roads that frustrated drivers and clogged traffic until mid-afternoon."

Of course, this Ohio article about the local impact of harmful and costly driving during rainy conditions is hardly a surprise given well-known data on the extent of the rain-driving problem.  As explained in this government website drawing on a decade of crash data (with emphasis added):

On average, nearly 6,000 people are killed and over 445,000 people are injured in weather-related crashes each year.  The vast majority of most weather-related crashes happen on wet pavement and during rainfall: 73% on wet pavement and 46% during rainfall. A much smaller percentage of weather-related crashes occur during winter conditions: 17% during snow or sleet, 13% occur on icy pavement and 14% of weather-related crashes take place on snowy or slushy pavement. Only 3% happen in the presence of fog.

In other words, nearly 1000 people in the US are injured every single day thanks to folks crashing while driving in the rain.  And, as this government paper states not only that "wet weather is far more dangerous than winter weather," but also that "weather-related crashes cause between 94 million and 272 million hours of delay each year [with the] annual cost of weather-related crashes estimated to be between $22 billion and $51 billion."

Of course, any proposed driving-in-the-rain criminal law will not prevent all or even most weather-related crashes (just like existing drunk-driving and texting-while-driving criminal laws do not prevent all other dangerous-driving crashes).  But if a proposed new criminal law can reduce the number of weather-related crashes by even just 10%, that could save dozens of innocent lives, reduce by hundreds the number of Oliwood citizens injured on the roadways, and save millions of dollars each and every year.

The simple proposed draft text for a "Driving in the Rain" criminal liability statute appears below, and it is important to note that it does not call for punishing people for driving in the rain, but really only for crashing in the rain.  I look forward to hearing whether and why Oliwood legislators support or oppose this use of the criminal law in our great state.

PROPOSED OPC Section 55.55: Criminal Damaging While Driving in the Rain:  No person shall cause any physical harm to any other person or to the property of another while driving in the rain.  Punishment for a violation of this section shall depend upon the amount of harm caused and other relevant factors in the discretion of the sentencing judge.

September 4, 2017 in Course materials and schedule | Permalink | Comments (0)

High-profile case that might hinge on voluntary/involuntary act arguments

This weekend a fellow law professor highlighted on the CrimLawProf list-serve — yes, old lawprofs still use list-serves — this CNN article reporting on a high-profile criminal case in which a defendant might seek to claim that her alleged criminal conduct was not voluntary.  Here are the details:

The Department of Justice will retry a woman whom prosecutors say disrupted Jeff Sessions' confirmation hearing for attorney general by laughing.

After rejecting a plea deal, Desiree Fairooz will again face charges of unlawful conduct for disrupting Sessions' hearing in January. According to court records, Fairooz rejected a deal offered by prosecutors that would have required her to plead guilty in exchange for a recommended sentence of time served.

Fairooz was detained after audibly laughing after Sen. Richard Shelby told senators at Sessions' confirmation hearing that the then-Alabama senator had a record of "treating all Americans equally under the law." Her laughter lasted seconds and Shelby continued with his speech without acknowledging the disturbance.

In a statement, Fairooz said she let out a spontaneous "reflexive noise" because Shelby's description was not true. "It was an immediate rejection of what I considered an outright lie or pure ignorance," she said.

Fairooz was previously convicted of a misdemeanor connected to disrupting the hearing, but a judge threw out the guilty verdict in July and ordered a new trial. The new trial is scheduled to begin on November 13.

This HuffPost article about the judge's decision to reject a prior jury verdict suggests (but does not make entirely clear) that the judge was troubled by the idea that laughter alone could serve as the basis for the charges here.

This case provides a useful real-world example of how there can be, in some unusual types of cases, opportunities for defendants to question whether the prosecution can satisfy the act requirement component of a proper prosecution. But it should also provide a reminder that these kinds of act issues will typically arise only in unusual types of cases.

September 4, 2017 in Current Affairs, Notable real cases | Permalink | Comments (0)

Thursday, August 24, 2017

Applicable law for Monday's sentencing role-play

A few folks have wisely inquired about the applicable sentencing law that the lawyers and judges ought to be considering as they approach the sentencing of Rachel Foster and Dan Schayes. If these hypothetical cases were moving forward in the hypothetical world of Oliwood, which is a Model Penal Code jurisdiction, then MPC § 1.02(2) could be used as the guiding sentencing law. (MPC § 1.02(2) appears at p. 1129 of our text.)

But given that Ms. Foster and Mr. Schayes have both committed crimes that could be federally prosecuted, and especially because Attorney General Jeff Sessions has talked about having the federal government prosecute more gun and drug cases, I like imagining these cases being subject to federal sentencing laws this year. US Code, Title 18, Section 3553(a) sets forth a detailed list of "Factors To Be Considered in Imposing a Sentence," and the first two major subsections can and should serve as a guide for sentencing advocacy and decision-making by the lawyers and judges in our role-play. (In other words, lawyers and judges should focus on the substantive provisions of 3553(a)(1) and 3553(a)(2), but should not worry about all the subsequent sections of 3553(a).)

Last but not least, Ohio law has its own unique statute expressly setting forth the purposes of felony sentencing in the Buckeye State. Students can earn Berman brownie points by (1) citing in the comments the Ohio Revised Code section setting forth these purposes, and (2) discussing whether they think Ohio is more concerned with utilitarian or retributivist goals at sentencing.

August 24, 2017 in Course materials and schedule | Permalink | Comments (2)