Wednesday, October 19, 2016
Some local Ohio homicide headlines
As we move into our "specific crimes" unit of our course, the laws we are reviewing are often going to be central to real cases that frequently generate news coverage. For example, just today's Columbus Dispatch includes these two new Ohio homicide stories:
Monday, October 17, 2016
Seeking a California defense attorney for Joe Shooter....
because every other position is filled for Wednesday's role play. Here is the line-up (as well as the expected order of events):
California v. Joe Shooter
Prosecutor: Chance Johnson
Defense Attorney: _________
Kansas v. Joe Shooter
Prosecutor: Abbey Zeller
Defense Attorney: Elizabeth Hartman
Ohio v. Joe Shooter
Prosecutor: Claudia Cash
Defense Attorney: Erica Duff
If nobody volunteers for the last open role, I suppose I will have to defend Joe Shooter in California, but I am certain I will do a much worse job than would a capable student (and I already treat myself to too many beers). Also, to help both lawyers and jurors, here you can find a "verdict" form to help you work through the homicide charging options in each jurisdiction:
Thursday, October 13, 2016
"Ballot Questions In Three States May Affect Death Penalty Nationwide"
The title of this post is the headline of this Nebraska NPR piece which talks reviews some of the issues we discussed in class on Wednesday and may prove helpful for anyone doing the death-penalty extra credit and/or making election predictions.
Wednesday, October 12, 2016
Class schedule and activities for week of October 17
Because I had way too much fun, and was disinclined to make you do any "real" work in your last class before the break (and also forgot to hand out the Joe Shooter facts in class), I think we now need to tweak my plans for the week of October 17. Here is my new/latest thinking:
Monday, Oct 17: Finally finish causation doctrines, preview rest of class (getting Part II of syllabus), introduce homicide unit, and explain context, value, roles for Joe Shooter role play.
Wednesday, Oct 19: Do Joe Shooter role play and discuss its many lessons
Friday, Oct 21: Celebrate my birthday ... by discussing intentional homicides (Watson and Walker, pp. 346-363 in text), and then watching 53-minute long documentary on American prisons, and then happy hour.
Starting homicide doctrines starting with Joe Shooter role play
Next week we will begin our in-depth discussions of homicide laws and we get started with another role-play. To get off to a running start, here is a link to the Joe Shooter facts (which I am also handing out in class), along with an encouragement for folks to sign up (in the comments and/or via an e-mail) to play the role of either prosecutor or defense attorney on Joe Shooter's behalf in California (a common-law-influenced jurisdiction) or Kansas (an MPC-influenced jurisdiction) or Ohio (a little of everything).
This time around, we only really need one lawyer for each side -- so 6 total volunteers, a single prosecutor and a single defense attorney for each state. In addition to the usual offer of future happy hour celebration, volunteers this time around can know that they will be rewarded for their efforts by being assured they get a really good running start at tackling homicide doctrines
So, review the Shooter facts and sign on up in the comments or via an e-mail to me.
UPDATE: We have our Ohio lawyers, Claudia Cash has volunteered to prosecute and Erica Duff volunteered to be the defense attorney in Ohio. Thanks, and know now that I think, after having had too much fun in class today, that I am pushing back the role play to Wednesday (10/19). Watch this space (i.e., this new post) with more details.
And Elizabeth Hartman has now signed up to be the Kansas defense attorney, and now Chance Johnson is to be the California prosecutor. Two spots left.
Monday, October 10, 2016
For a useful set of perspectives on the death penalty in Ohio and elsewhere...
check out this 50-minute local WOSU/NPR segment from last week. Here is the overview of what you will hear:
Support for the death penalty has been on the decline and recently hit a a record, four decade low. Despite the decline, legislators in many states continue to back capital punishment. Today we discuss Ohio as it prepares to reinstate the death penalty after a two year hiatus, and look at how Nebraska ended the practice.
Jim Petro, Former Ohio Attorney General
Robert Blecker, Professor of Criminal law and Constitutional law, New York Law School; and Author, “The Death of Punishment: Searching for Justice among the Worst of the Worst”
Colby Coash, Nebraska State Senator
Saturday, October 8, 2016
If you have any pre-midterm questions...
ask your classmates, and if they do not have a ready answer, just relax about it.
But if you cannot relax, and think I can help, ask the question in the comments here and I will try to respond so all can see/hear.
UPDATE: I just saw this good question in a prior thread:
Student Q: "Professor Berman, when using rules from the MPC/ORC to answer the exam questions, do we need to specifically cite which section of the MPC/ORC the rule is coming from?"
Berman A: There is need to cite to a precise/specific code provision if you can make the substantive point effectively without doing so, but you may often find it more efficient to be able to cite to a specific code section rather than to have to explain the point you want to make in extended prose.
Wednesday, October 5, 2016
Four interesting examples of Ohio criminal cases in which causation was a debated issue
To finish our review of the "general part" of the criminal law, we will dig further into the law of causation. In that review, I will note that Ohio tends to adopt a more "common law" approach to causation doctrines than an MPC approach, but I will also explain why this is a distinction that does not really make much of a difference in all but the rarest of cases. Still, I thought it might be useful here to note the facts of a couple of the rarest of Ohio criminal cases in which causation doctrines were discussed. So, if you want to take a deep dive into some notable Ohio causation cases, consider checking 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.
3. Ohio v Dixon, 2002 WL 191582 (6th Dist. App. 2002), involves these essential facts:
Defendant Christopher Dixon, appeals from his conviction and sentence for felony murder [resulting from] Dixon and his cousin Sherman Lightfoot [making] plans to rob the Jiffy Lube located at 3931 Salem Avenue in Dayton, Ohio. In preparation for the robbery, Dixon and Lightfoot obtained latex gloves and “Jason” masks, which were popularized in the movie, “Friday the 13th.” At approximately 6:15 p.m., the two men drove a blue Camaro to the Jiffy Lube, parking it across the street. Dixon was wearing an orange-colored hooded sweatshirt, while Lightfoot was wearing a white hooded sweatshirt.
Dixon and Lightfoot entered the Jiffy Lube and Dixon grabbed one of the employees, Gregory Anderson. Lightfoot pointed a gun in Anderson's face, and the two robbers demanded to know where the money was located. Anderson told them it was in the office. Dixon and Lightfoot then took Anderson to the office. Anderson told them that only the manager had the key to the drawer where the money was kept. Lightfoot instructed Anderson to call for the manager. Anderson complied and the store manager, Michael McDonald, came to the office. At that point Lightfoot pointed the gun in McDonald's face.
McDonald began struggling with Lightfoot over the gun. During the struggle, the gun fired once. When Lightfoot momentarily stumbled and fell backward during the struggle, McDonald gained control over the gun. Lightfoot immediately regained his balance, and both he and Dixon ran out of the store. McDonald fired several shots in the direction of the fleeing suspects. Dixon ran back to the Camaro, got in and sped away. Lightfoot fell to the ground in the parking lot as a result of a gunshot wound to the head. Lightfoot subsequently died at Good Samaritan Hospital.
4. Ohio v Wilson, 182 Ohio App. 3d 171 (1st Dist. App. 2009), gets started this way:
Defendant-appellant Eric Wilson ... was charged with murder [and other counts based on activities] on September 1, 2006, [when] Wilson, a drug trafficker, was in his car driving around the area of East 59th Street and Francis Avenue selling drugs. He stopped his car to meet with some buyers when James Yhonquea walked up, pulled out his gun, and put it against Wilson's head. Yhonquea took Wilson's drugs, money, and cell phone and started to run down East 59th Street. Wilson jumped out of his car and started to run after Yhonquea. Wilson began shooting at Yhonquea and fired off eight rounds, hitting a parked car and a house. Yhonquea returned fire, hitting Wilson's car.
Asteve (“Cookie”) Thomas, a 12–year old girl who lived in the neighborhood, was walking home from the corner store with her friends when one of the bullets shot from Yhonquea's gun struck her in the chest. She managed to walk to a neighbor's house, collapsed, and died approximately 30 minutes later.
Monday, October 3, 2016
Prior posts with prior real and practice mid-term exams
Happy exciting October ... which is made even more exciting because a week from today you will all get the opportunity to get your first law school exam behind you. Though I suspect many may fall prey to the common tendency to prepare too much rather than too little for the (not-all-that-important) mid-term, I also suspect my tendency to write exam questions that are crazy hard will tend to aggravate that common student tendency.
These concerns aside, and with the prior warning that all the prior exams you find are crazy hard, here are links to prior posts in which you can find links to prior mid-term exams. Specifically, the first two links below are to the "practice" mid-term that I still offer when teaching a large-section class (and associated follow-up materials), and the other links provide through prior posts access to the actual mid-terms that I administered in 2013 and 2014:
Wednesday, September 28, 2016
Another real-world follow-up to prior punishment theory discussions and preview of coming homicide discussions thanks to H.R.6158, the HELP Act
I really enjoyed our prior on-line discussions here concerning whether and why drug dealers ought to be criminally responsible for causing overdose deaths. And, if you are working on the next extra credit assignment focused on the Burrage Supreme Court case, you know how causation doctrines can intersection with these matters.
But, thanks to a few member of Congress, a new bill in Congress also makes this issue on that is worth discussing as we wind down our basic mens rea conversations and start to gear up for talking about homicide crimes and punishments. I discuss this new bill (which I have not yet seen in full), in a new post over at my sentencing blog: NY member of Congress puts forward federal bill with "Death Penalty Proposal for Heroin Dealers".
UPDATE: This Columbus Dispatch headline/story awaited me in my e-mail in-box after I returned from our class: "Columbus hit by 27 heroin overdoses in 24-hour span"
Wednesday, September 21, 2016
"Acceptance: The Missing Mental State"
The title of this post is the title of now-Dean (then-Prof) Alan Michaels' very first major law review article. You can download the full 105-page(!) manuscript at this link, where you will also find this abstract:
This article identifies a serious shortcoming in the traditional criminal law mental state hierarchy and proposes a new mental state-- called acceptance -- as a solution. Acceptance exists where the actor acts recklessly and, in addition, would have acted even "had he known" that his conduct would "cause the harm." The article establishes, through close analysis of the wilful blindness and depraved-heart murder doctrines, that use of the mental state of acceptance is both practicable and necessary.
When liability lines are drawn at the level of knowledge, the criminal law has rarely been satisfied to restrict liability to actual knowledge, but instead has relied on ambiguously defined crimes (such as depraved-heart murder) or has stretched the definition of knowledge (for example, through the wilful blindness doctrine) to push reckless conduct across the liability line to the knowledge side. These "solutions" have failed. When contemporary criminal law draws a significant liability line between knowledge and recklessness, doctrine governing cases near the margin is both particularly vague and distinctly lacking in consensus in comparison to most areas of the criminal law.
The article proposes that where the law requires knowledge, acceptance should be allowed to suffice. After justifying such an approach from both retributive and utilitarian perspectives, the article establishes, by examining the willful blindness and depraved-heart murder doctrines, that using acceptance would yield a better fit between criminal law and culpability concepts and would substantially diminish vagueness problems. The need for acceptance is also demonstrated in briefer examinations of three other criminal law areas: "knowledge of the law," attempt and battery. In support of the practicability of acceptance as a measure of culpability, the article also surveys the criminal law's use of hypothetical questions to determine culpability in several other areas. These include the doctrines of recklessness, entrapment, and the German concept of bedingter vorsatz.
Sunday, September 18, 2016
Making sure you fully understand what the US Constitution, the MPC and the ORC have to say about "strict criminal liability"
As I mentioned in class on Friday, your understanding of lots of future discussions over all sorts of mens rea issues the rest of the semester will be greatly enhanced if you appreciate all the theoretical and practical nuances of the the debate we had over my idea of using strict criminal liability to deal with the serious harms of car accidents on wet roads. I will review those nuances briefly on Monday, and you should already have a feel for how these nuances found expression in the Dillard case and how they inform the classic old case of Faulkner.
Of greatest importance as we move this week from Berman hypotheticals to real laws, you should appreciate that our debate over my "crashing in the rain" proposal was fundamentally a debate about why, when, whether and how a legislature might be eager to impose "strict criminal liability" -- that is, why and when lawmakers might what to subject some persons to criminal liability for certain risky conduct or harmful results regardless of whether they meant to (or knew or even could reasonably foresee) that they were involved in risky conduct or might cause harmful results. But as Dillard highlighted, the issues of strict criminal liability arise in court only after a legislature has passed a statute and then a case arises in which the facts make it important to figure out if and how a legislature actually intended to write a statute that does in fact impose "strict criminal liability."
As the title of this post indicates, the Supreme Court cases mentioned in the text, as well as key provisions of the Model Penal Code and the Ohio Revised Code, provided some critical "rules of interpretation" for helping to resolve if/when a statute should be understood to impose "strict criminal liability." I hope you have already figured this out, and this is what I will try to make sure everyone understands before we get into Faulkner and Handout #2 (which we will certainly get to no later than Wednesday).
Wednesday, September 14, 2016
Working draft of bill for new ORC provision to criminalize "Crashing while driving in rain"
In order to facilitate further discussion by students/legislators concerning the bill I have proposed in the hope of reducing the harms that too often result from driving in the rain or on wet roads, I have now formally drafted/revised this bill language:
PROPOSED ORC Section 2999.99: Criminal Damaging While Driving in the Rain or on Obviously Wet Neighborhood and Express Roads
(A) No person shall cause any physical harm to any other person or to the property of another person while driving in the rain or while the road are obviously wet.
(B) Whoever violates this section is guilty of criminal damaging while DROWNER, a misdemeanor of the second degree. If a violation harms property valued in excess of $5000, this offense is a misdemeanor of the first degree. If a violation harms a person or property valued in excess of $50,000, this offense is a felony of the third degree. If a violation causes serious harm to multiple persons or the death of any person, this offense is a felony of the second degree.
For further support for this proposal, consider these excerpts from a Science Daily publication from 2008 headlined "Bad Weather: Bad Drivers":
Researchers and statisticians found that 24% of all crashes occur during adverse weather conditions, including ice, snow, and rain. The research showed that most drivers do not account for adverse conditions created by rainy weather. They suggest slowing down and increasing the distance between traveling cars as a way to decrease the number of accidents in bad weather.
Each year, nearly 7,400 people are killed and over 670,000 are injured in crashes. But not all wrecks are because of driver error..... Rainy weather can wreak havoc on highways. When a big storm rolls in, drivers tend to either slow down too much or not enough. Drivers need to be wary of driving in any change in the weather. A new study by transportation engineers reveals that nearly one-quarter of all crashes occur in bad weather conditions. Most happen on wet pavement....
Unlike snow and ice covered roads that scare drivers into staying home or driving more carefully. Many drivers don't consider rain as 'bad' weather, so more cars end up on wet roads, and drivers don't slow down enough to avoid serious accidents.
For more research on this front (which further supports the need to do whatever is necessary to try to make our roads safer during inclement whether in order to save more innocent lives), check out this related story headlined "Rain Is More Lethal For Drivers After A Long Dry Spell." Here is its key fact based on a review of many years of roadway accident data: "For any given day in the state, on average, each centimeter of precipitation increases the risk of fatal crashes by about 1 percent, [and] for nonfatal crashes, the increased risk is 11 percent."
Friday, September 9, 2016
Gearing up for classes the week of Sept 12 (and thereafter)
I am writing this post on a plane over the Atlantic, and I am already getting excited about getting back to our conversations about the basics of substantive criminal law. (For the record, Scotland was an amazing experience AND among the souvenirs I am bringing home is a kilt. If asked by enough students in the comments, I will wear it to class one day.)
I expect that our first class back together, on Monday Sept 12, will have us wrapping up criminal law's so-called "act requirement" (i.e., actus reus), giving particular attention to the Martin and Grant cases. I look forward to asking you all a bunch of really hard questions about what purpose the "voluntariness" component of the act requirement serves.
We will thereafter start a multi-week discussion of criminal law's so-called "mental state requirement" (i.e., mens rea or culpability), and will begin exploring whether we really have to always require, and/or really should always require, a defendant to have a "bad mental state" before subjecting him to criminal responsibility. And discussion of that issue starts with my all-time-favorite class hypothetical (which I call the "driving in the rain" hypo). For those eager to get a running start on thinking about this hypo, you can (but need not feel any obligation to) check out these posts from prior years' classes:
- Working draft of bill for new ORC provision to criminalize "Damaging while driving in rain"
- Statistical support for the need to use criminal law to reduce rain-related traffic accidents
Wednesday, September 7, 2016
Another interesting real (local) case to consider in light of punishment theories
Even while on the road I have followed and been impressed by recent discussions regarding the AP article about charging drug dealers with homicide for overdose deaths. And, based on this reporting of a notable sentencing outcome emerging this week from a court just down the road from Moritz, I wonder if folks might refect on what punishment theories were in play. Here are lengthy excerpts from the story, which is headlined "Driver gets 13 years in prison for 2014 crash that killed two Downtown":
Terrance Trent wept and whimpered, clutching a tissue to his face in a Franklin County courtroom, as he listened to anguished statements about what was lost when his reckless driving caused a crash that killed two pedestrians at a Downtown intersection.
He continued weeping during the Tuesday hearing as he told the families of the dead that he was "so sorry" about what happened to Stephanie Fibelkorn, 21, and Bill Lewis, 58. "I've tried to understand what you're going through, I really have," he said. Looking upward with his hands seemingly clenched in prayer, he wailed, "If I could die right now to bring them back, I'd gladly do it."
Common Pleas Judge David Young said he saw no genuine remorse from Trent, who was convicted last month of two counts of aggravated vehicular homicide for the deaths and two counts of vehicular assault for injuring two others in the crash on Dec. 12, 2014. Young imposed the maximum sentence of 13 years in prison — five years for each death and 18 months for each of the injured — and suspended Trent's driver's license for life.
Fibelkorn's father was thankful for the maximum sentence and unmoved by Trent's tears. "I was disheartened to see Mr. Trent crying today," Stephen Fibelkorn said after the hearing. "I find that he cries for himself and no one else. I don’t believe there’s been an ounce of remorse shown, other than for his own situation."
Trent, 63, was speeding west on East Broad Street in a pickup truck with a flat tire, running red lights and weaving through traffic, finally slamming the truck into a school bus at the busy intersection with High Street. The impact knocked the bus over the curb, killing the pedestrians and injuring the bus driver and the passenger in Trent's truck. Trent testified during his trial that the passenger, his girlfriend, was to blame because she was striking him with a full can of soda as he drove, causing him to go into "panic mode" and not realize what he was doing.
Lewis was the chief mobility engineer for the city of Columbus, working to keep streets safe for drivers and pedestrians. Stephanie Fibelkorn was an Ohio State University engineering student working as an intern in his office. She dreamed of one day working as a Disney "imagineer," designing attractions for the company's amusement parks. The two were walking to a morning meeting when they were struck. She died at the scene, and he died two weeks later at OhioHealth Grant Medical Center.
Fibelkorn's parents told the judge that they have sold their Downtown home to escape the continual reminders of the crash. Mr. Fibelkorn called himself "a broken man, unable to contain my emotions."...
Rhonda Lewis spoke about what the loss of her husband, a loving father, meant to her and their two children. She told the judge that Trent deserved a life sentence "for the destruction in our lives."
Defense attorney Steve Dehnart said his client has mental-health issues and that a maximum sentence "would achieve nothing but revenge."
Assistant Prosecutor Dan Cable told the judge that Trent's actions and lack of remorse cried out for the maximum. "Mr. Trent still does not get it," he said.
Monday, August 29, 2016
Two "extra credit" answers noting provisions of Ohio law similar to the law struck down in Proctor
I am pleased to be able to report that two students have already sent me answer to my in-class question about Ohio criminal statutes structured very similarly to the statute deemed unconstitutional in Proctor:
Ohio Revised Code Section 2923.241 Hidden compartments in vehicles, Sub-section (B): “No person shall knowingly design, build, construct, or fabricate a vehicle with a hidden compartment, or modify or alter any portion of a vehicle in order to create or add a hidden compartment, with the intent to facilitate the unlawful concealment or transportation of a controlled substance.” (Added student note: This all works on the theory that modifying your car to have a “hidden compartment” and possessing a “hidden compartment” are the same thing. But with my neophyte knowledge of the law and common reasoning I would say they probably are.)
Ohio Revised Code Section 2923.24 Possessing criminal tools, Sub-section (A): “No person shall possess or have under the person's control any substance, device, instrument, or article, with purpose to use it criminally.“
I was thinking/referencing the Ohio possessing criminal tools statute in class, but I am pleased a student also flagged the Ohio hidden compartment crime (which, if you look at the code sections, is really numbered as a kind of subsection/extrapolation on possessing criminal tools).
A few years ago, the Ohio Supreme Court issued a lengthy split opinion in Ohio v. Chappell, 127 Ohio St.3d 376, 2010-Ohio-5991 (December 15, 2010), on the meaning/reach of the term "criminally" in the Ohio possessing criminal tools statute. (But, for lots of reasons, I think your time this week would likely be better spent re-reading Jones and Martin (or watching Dave Chappelle bits on YouTube) than reading Ohio v. Chappell.)
UPDATE: Another student just sent me another possible addition to the list of Proctor-like laws in Ohio:
Ohio Revised Code Section 2925.041 Sub-section (A): "No person shall knowingly assemble or possess one or more chemicals that may be used to manufacture a controlled substance in schedule I or II with the intent to manufacture a controlled substance in schedule I or II in violation of section 2925.04 of the Revised Code." (Added student note: Thus, this statute is making it illegal to possess a chemical that otherwise would be legal to possess when the possession is coupled with the intent to use the chemical in the making of a controlled substance. This appears to be a nearly identical situation as was presented in Proctor. Then, right before prohibition when alcohol was viewed as extremely problematic, this coupling line of reason was used to aid the prevention of speakeasies. Today, ORC 2925.041 is using the coupling line of reason is being used to aid in the prevention of the manufacturing of what we consider problematic, drugs. Let me know if this was the answer you were looking for.)
Sunday, August 28, 2016
Some background on drug dealers being criminally responsible for causing overdose deaths (and its possible theoretical justification)
Friday's in-class discussion and debate over the sentecing of (very fictional) Oliwood drug dealer Dan Schayes raised the interesting and controversial (very real) issue of whether persons involved in drug dealing can and should be held criminally liable for the death of a customer. As the prosecution in the Schayes case noted, federal criminal law already speaks to this issue through a provision in 21 U.S.C. §841(b)(1)(C): it states that a convicted drug dealer involved with serious drug substances generally "shall be sentenced to a term of imprisonment of not more than 20 years," but that such a drug dealer, "if death or serious bodily injury results from the use of such substance, shall be sentenced to a term of imprisonment of not less than twenty years or more than life."
Toward the end of September, we will looking at the basic substantive criminal law rules that generally apply for determining when and how a defendant can be held responsible for causing a result, and a few years ago this issue in federal law dealing with overdose deaths made it all the way up the US Supreme Court in the case of Burrage v. United States. I would urge you all NOT to read the Burrage case closely (or at all) at least until we get to our causation discussions in class (though, at that time, you will be able to earn more extra credit for engaging with the Burrage SCOTUS ruling).
On the topic of earning credit, I am now pretty sure I have figured out how to get the comment section of this blog open, and that means every class member can earn some credit ASAP by using the comments here to share thoughts on what theory or theories of punishment might support holding drug dealers criminally liable for the deaths of their customers. Notably, just a few weeks ago this lengthy and interesting AP article, headlined "Prosecution trend: After fatal OD, dealer charged with death," discussed this kind of criminal action as a growing trend. And I stirred up some interesting commentary on the trend with this post about that AP article on my main blog titled "Should I be more troubled by drug dealers facing homicide charges after customers' overdose death?"
Wednesday, August 24, 2016
Lawyers signed up for Friday afternoon's role-play
I am so please to have already heard from many of you as volunteers for our sentencing role-play planned for Friday afternoon. Here is the current run-down:
Oliwood v. Rachel Foster
Prosecutors: Emily Cashell & Sophie Daroff
Defense Attorneys: Ali Najaf & Alex Szaruga
Oliwood v. Dan Schayes
Prosecutors: Miki Someya & Kaiqin Huang
Defense Attorneys: Joe Barton & Matt Brinzo
For these lawyers, it is useful to try to be a bit cued into your respective roles: Prosecutors do not represent any individual party, but the state as a whole, and they thus tend to embrace the obligation to argue for whatever sentence they believe will be just and effective as a punishment. Defense attorneys, in contrast, have an individual client, and their role is typically understood to require them to seek and advocate for the most lenient/defendant-friendly sentence as seems possible under the circumstances.
The rest of you, as I mentioned in class, get to serve as sentencing judges. Available below is a form all judges should use for sentencing. There is no need (or place) to put a name on the form, but I will collect them after our sentencing hearings in class on Friday. As you will see when you download the form, judges are encouraged to develop tentative ideas about what sentence they might impose before coming to class to hear the advocates' presentations. By doing so, you all can get a better sense for whether and how advocacy can have an impact in this kind of setting.
Tuesday, August 23, 2016
Electronic copies of Handout #1 and materials for Friday afternoon's sentencing role-play
Available below for downloading are:
(1) Handout #1 (Excerpts of Remarks by President Obama at the July 2015 NAACP Conference), and
(2) Materials for our Friday afternoon sentencing role play (PreSentencing Reports (PSRs) for Rachel Foster and Dan Schayes).
These materials will also be available in hard-copy in class on Wednesday. In the meantime, think hard about whether you would like to volunteer to serve as a prosecutor or defense attorney in our afternoon role play (earning a free drink and immunity from being called upon in class for most of September). As will be explained in class on Wednesday, those not serving in a lawyer-advocacy role will serve as judges in the role play.
As I will explain in class, for purposes of our sentencing role-play exercise, both the lawyers and judges of Oliwood should assume that the great state of Oliwood has adopted the first two subsections of US Code, Title 18, Section 3553(a) as a guide for sentencing advocacy and sentencing decision-making by Oliwood judges. (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 the subsequent sections of 3553(a).)
Thursday, August 18, 2016
First day assignment and electronic copies of the course description and class syllabus
I have posted on the Moritz official website our first-day assignment, but I figured it would be useful to repost the details here, while also providing electronic copies of the basic course documents. So....
In preparation for our first class on Monday, August 22, you should:
1. Obtain a copy of Kaplan, Weisberg and Binder, Criminal Law (7th ed. 2012)
2. Obtain a copy of the course description and the course syllabus (part 1), which are available in boxes outside my office (Room 313) and below.
3. Read the casebook's Introduction quickly and pages 21-27, 31-34, and 573-79 closely. Because the next set of readings provide theoretical background, can be read quickly, and should enhance your appreciation of our initial discussions, I encourage you also to SKIM pages 34‑77 in the text as soon as possible.
Wednesday, August 10, 2016
Welcome to the Moritz College of Law, Criminal Law with Berman, and version 6.0 of this class blog
As some of you may already know, I am a big fan of law blogs and I make a regular habit of using blogs to support and supplement my instruction in law school classes. Sometimes class blogs serve my purposes and goals well; other times, not so much. Undaunted, I remain convinced (but not entirely confident) that the blog technology (rather than a propriety law-school-support technology like TWEN) provides the best on-line tool for supporting and supplement law school courses.
I will continue my bloggy ways in the Fall 2016 semester at the Moritz College of Law through this blog to supplement our first-semester 1L small-section Criminal Law course. And, as the version 6.0 label highlights, I have built this "new" blog directly atop the blog I used when teaching this very same course four times before (in Fall 2008, 2010, 2013 and 2014) and when teaching a Comparative Criminal Procedure course (in Summer 2012).
I am hopeful that some new 1Ls will benefit from (or at least find reassuring) seeing some of the posts (and comments) that were generated in this forum at other times. Current users might focus especially on the archives from Aug-Dec 2013 and Aug-Dec 2014 to see some of the "action" in this class from the last two times I taught it.
So, welcome to the latest re-launch of this 1L Crim Law blogging adventure. I am always pleased when this blog helps to promote a distinct type of student engagement, and it will certainly provides the means for me to share required and optional materials and ideas.
P.S.: To provide proof that mining the blog archives can be useful, here are some items from deep in this blog's archives you might already find interesting or useful. For example, two prior posts and the student comments thereto (one from Aug 2008 and the other from Aug 2010) might be worthwhile as you gear up for our first week of class discussions:
- Any pre-class thoughts on Dudley and Stephens?
- Does the text or spirit of the US Constitution favor any particular theory of punishment?
In addition, in the archives from 2008, one can find these links to another of my favorite law blogs providing lots and lots of (old but still timely) advice for incoming 1Ls:
Thursday, December 11, 2014
Reminder: Review session today (Thursday 12/11) ...
starting around 10:45am in our room and running until attendees run out of questions (or until I need to head to airport around 1pm)....
Tuesday, December 9, 2014
Extra credit accounting update (and final deadline for first three EC opportunities)
As of early afternoon on Tuesday, December 9, 2014, my records reflect that I have received all of the first three extra credit submissions from 19 of 28 students in the class. In addition, I have received two EC submissions from six other students, one EC submission from two students and one student has submitted no EC.
For various reasons, I am going to now provide that I must receive any final EC submissions for the class-related assignments — that is, the first three assignments on (1) two past SCOTUS causation cases, (2) Ohio defense cases and (3) Elonis briefing and arguments — no later than the end of the day this Friday (Dec. 12, 2014). For the record, I am happy to and probably even would prefer getting the final EC submission — about how to improve legal education and your ideal summer job — only after exams have been finished for the season.
Thursday, December 4, 2014
Review session plans for Thursday (12/11) and Saturday (12/13)
As mentioned in class, I will plan to conduct (entirely optional) review sessions in the days leading up to our exam. Specifically, I plan to be at the law school and will head to our usual room to answer questions for as long as possible/needed on:
- Thursday, December 11, starting at 10:30am
- Saturday, December 13, starting at 12:30pm
On Thursday, I will have to leave by around 12:45pm to catch a flight, and on Saturday I will have to leave by around 4:30pm to pick up my daughter from a rehearsal. But, save for those restrictions, my time is yours for any and all types of review students request.
Monday, December 1, 2014
"Crazy or Faking It? The impending execution of Scott Panetti and the search for a standard of sanity."
The title of this post is the headline of this effective new piece from The Marshall Project which highlights some of the mental health issues we have discussed in recent classes with a special focus on a controversial execution scheduled to take place in Texas later this week.