Thursday, December 1, 2016
Planning review sessions ... NOW including on Sunday afternoon
As I mentioned in class, my "scheduled" review sessions are designed only 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 via this link).
As of this writing, I am thinking about having one scheduled review session on Thursday Dec 8 at 4pm, and another one on Friday Dec 9 at 11am. I will also consider doing a session at sometime on Sunday Dec 11 if you clamor for such a session.
UPDATE: I have now officially wrangled the time on Sunday, Dec 11 from 4:30pm to 6pm (and only that time) for one final review session.
Monday, November 28, 2016
Starting our grinding over self-defense doctrines and midterm review
I had grand plans to get our review of the "classic" criminal law defense of self-defense off to a flying start during Monday afternoon's class, and I also had expected to start reviewing mid-term efforts with students right after class. But, as you all likely now know, a troubled (and now deceased) young man decided to disrupt all OSU campus plans for this afternoon.
So I have taken to this space to get the grind going in the following ways:
1. Background/grinding on Ohio self-defense law: Almost exactly 40 years ago, Ohio's procedures for applying self-defense doctrines were contested all the way up to the US Supreme Court. I have never made the SCOTUS ruling in Martin v. Ohio a required part of the course materials, but I think folks might now find it interesting to read and reflect on the ruling in Martin v. Ohio, 480 U.S. 228 (1987), available here and/or here and/or via Westlaw/Lexis.
2. Background/grinding on mid-term review: I have now taken the time to divide up the mid-term data into what I consider helpful quartiles to produce this accounting:
Top 25% Mid 50% Bottom 25%
WORDS > 1650 1001-1650 < 1000
PART A 46 or more 39-45 38 or less
PART B 18 or more 14-17 13 or less
Though much too crude, I think these quartiles provide a useful rough guide to how your first exam taking experience went. If you are on the top 25% on a question, then generally speaking you are doing the kind of work needed to secure an A. If you are in the mid 50%, then you are still doing well and need not worry about "bombing." If you are in the bottom 25%, you should try to figure out "what went wrong" so that you can do better the next time.
I will readily/eagerly/happily be available from 12noon to 5pm on Tuesday and from 3pm to 5:30pm on Wednesday and from 2:30pm to 5pm on Thursday to go over the exam with individual students. I would be grateful if a couple of folks or groups come to see me at the same time so I need not repeat my general advice/feedback over and over again (and I am pleased a pair of students have already "booked" an appointment for 12noon on Tuesday).
Please use the comments to sign up for meetings in 30 minute blocks in the windows of time indicated above. Thanks!
Friday, November 18, 2016
I am doing great, and I am touched by all the well wishes
and your homework for the weekend --- and for the rest of your life --- is to be the best version of yourself and to share love and clarity and charity with all those who are part of your family, however defined.
Hope to be watching a movie with you all soon. Use the comment thread to make recommendations!
Tuesday, November 15, 2016
"Jury finds Justin Ross Harris guilty of murder in son's hot car death"
Though I am lately doing a horrible job staying "on-task" in class since the election, I am going to continue to try to do a much better job of having this blog stay focused on real criminal law cases that implicate so many of the issues (both doctrinal and practical) that we have been discussing throughout the semester (and that I will be testing you all on next month). So, with that background, check out this new CNN report that has the same headline as the title of this post. Here are excerpts (with a few points bolded for possible further discussions and some follow-up questions below):
A jury in Georgia on Monday found Justin Ross Harris guilty of murder in the 2014 death of his 22-month-old son, Cooper. Harris, 35, was accused of intentionally locking Cooper inside a hot car for seven hours. On that same day, Harris was sexting with six women, including one minor, according to phone records.
In addition to three counts of murder, Harris was found guilty of two counts of cruelty to children for Cooper's death, and guilty of three counts relating to his electronic exchanges of lewd material with two underage girls.
"This is one of those occasions where actions speak louder than words," Cobb County Assistant District Attorney Chuck Boring said after the verdict. "He has malice in his heart, absolutely."
The trial, which spanned almost five weeks, was moved to the Georgia coastal town of Brunswick from Cobb County, outside Atlanta, after intense pretrial publicity. It was briefly interrupted by Hurricane Matthew. The Glynn County jury of six men and six women deliberated for 21 hours over four days. Jurors considered the testimony of 70 witnesses and 1,150 pieces of evidence, including the Hyundai Tucson in which Cooper died in a suburban Atlanta parking lot.
Justin Ross Harris waived his right to testify in his own defense. Cobb County prosecutors argued that Harris intentionally locked Cooper inside his car on a hot summer 2014 day because he wanted to be free of his family responsibilities. Harris' lawyers claimed the boy's death was a tragic accident brought about by a lapse in memory.
It was June 18, 2014, when Harris, then 33, strapped his son into a rear-facing car seat and drove from their Marietta, Georgia, home to Chick-fil-A for breakfast, then to The Home Depot corporate headquarters, where he worked. Instead of dropping Cooper off at day care, testimony revealed Harris left him in the car all day while he was at work.
Sometime after 4 p.m. that day, as Harris drove to a nearby theater to see a movie, he noticed his son was still in the car. He pulled into a shopping center parking lot and pulled Cooper's lifeless body from the SUV. Witnesses said he appeared distraught and was screaming. "'I love my son and all, but we both need escapes.' Those words were uttered 10 minutes before this defendant, with a selfish abandon and malignant heart, did exactly that," said Boring in his closing argument.
The prosecution argued that Harris could see his son sitting in his car seat in the SUV. "If this child was visible in that car that is not a failure in memory systems," Boring argued. "Cooper would have been visible to anyone inside that car. Flat out." If Cooper was visible, Boring said, "the defendant is guilty of all counts." After the verdict, jurors told the prosecution that the evidence weighed heavily in their decision, Boring said.
Digital evidence showed that on the day his son died, Harris exchanged sexual messages and photos with six women, including one minor. State witnesses testified that Harris lived what prosecutors described as a "double life." To his wife, family, friends and co-workers, Harris was seen as a loving father and husband. But unbeknownst to them, Harris engaged in online sexual communication with multiple women, including two underage girls, had extramarital sexual encounters in public places and paid for sex with a prostitute.
Harris' defense maintained that his sexual behavior had nothing to do with Cooper's death. "The state wants to bury him in this filth and dirt of his own making, so that you will believe he is so immoral, he is so reprehensible that he can do exactly this," said defense attorney H. Maddox Kilgore during his closing argument. Kilgore argued that Cobb County police investigators focused only on matters that fit the state's theory and ignored all the evidence that pointed to an accident. "You have been misled throughout this trial," Kilgore told jurors.
The defense lawyer continued to maintain his client's innocence after the verdict. He said he plans to appeal the verdict. "When an innocent person is convicted there's been some breakdowns in the system and that's what happened here," Kilgore told reporters outside the courthouse. "From the moment we met Ross Harris we've never, ever once wavered in our absolute belief that he is not guilty of what he's just been convicted of."
The defense's key witness was Harris' ex-wife and Cooper's mother, Leanna Taylor. "Cooper was the sweetest little boy. He had so much life in him. He was everything to me," Taylor recalled, as she seemed to fight through tears. For two days, Taylor told jurors private details of her married life with Harris, saying they had intimacy problems and recounting Harris' struggles with pornography.
Marital struggles aside, Taylor described Harris as a "very involved" parent who loved their son. In her mind, she said, the only possible explanation was that Harris "forgot" Cooper and accidentally left him in the car. Boring said it did not matter that Taylor declined to speak with the prosecutor's office and testified for the defense. "As far as proving the case we did not need her," he told CNN.
Harris is expected to be sentenced December 5. He could face life without parole, though Boring said the prosecution will speak with the family to determine what kind of sentence to ask for.
A few unique "Berman-esque" follow-up questions:
1. Does this sad case remind anyone, at least a little bit, of my omission hypo involving poor little Josephine who drowned in the pool?
2. Should we surprised (a) that the defendant father did not testify in an effort to support his claim that "he didn't mean to do it," and (b) that the victim's mother did testify in an effort to support her husband's claim that this was an accident?
3. Should we be troubled (a) that the local prosecutor did not pursue the death penalty in a case in which the defendant was apparently convicted of having essentially boiled his 22-month son to death (perhaps because the murderer was white?), and (b) that the local prosecutor is now going to have his sentencing recommendation influenced by the victim's mother?
For more potential background on this case and others potentially like it (and with information about the evidence that helped prosecutors secure a guilty verdicts and that help account for why the defendant was convicted of three counts of murder even though he only killed one person), check out this (now dated) local video about the case:
Sunday, November 13, 2016
Hung jury brings end to first trial of former officer in Cincy shooting
This AP story, headlined "Deadlocked Jurors Force Mistrial in Ohio Police Shooting," provides lots of interesting details after a jury was unable to resolve which homicide charges were most appropriate in a high-profile Cincinnati case. Here are some highlights:
Jurors failed to come up with a verdict against a white former police officer charged with murder in the fatal shooting of an unarmed black motorist and were leaning toward a lesser conviction, a prosecutor said Saturday after a mistrial was declared. The jury spent some 25 hours debating the outcome and indicated several times that they were deadlocked before a judge agreed.
Prosecutors will decide within the next two weeks whether to retry former University of Cincinnati police officer Ray Tensing. He was fired after shooting 43-year-old Sam DuBose in the head after pulling him over for a missing front license plate on July 19, 2015. Tensing, 26, testified he feared he was going to be killed. Prosecutors said repeatedly the evidence contradicted Tensing's story.
Hamilton County Prosecutor Joe Deters said jurors were leaning toward a conviction of voluntary manslaughter and acquittal on the murder charge. He later told media outlets the vote was deadlocked at 8-4 in favor of the lesser charge.
Judge Megan Shanahan said the jury of 10 whites and two blacks spent two hours deliberating Saturday morning after getting a night's sleep and still could not reach a decision. "It's obvious to me you have made a sincere and conscientious effort," the judge said before setting a new hearing date for Nov. 28 to determine whether the case will be brought back.
Attorney Al Gerhardstein, who represents the DuBose family, said they want another trial and can't understand why the jury couldn't reach a conclusion. "With the video evidence as clear as it is, they shouldn't have been so stuck," he said....
To convict Tensing of murder, jurors would have had to find he purposely killed DuBose. The charge carried a possible sentence of 15 years to life in prison. The voluntary manslaughter charge means killing during sudden fit of rage and carries a possible sentence of three to 11 years.
Legal experts say juries generally tend to give police officers the benefit of the doubt because of the inherent dangers of their jobs, but that they will convict if the police actions were clearly unwarranted.
In tearful testimony Tuesday, Tensing said his arm was stuck in DuBose's car after he tried to stop him from driving away by grabbing the car keys. "I remember thinking, 'Oh my God, he's going to run me over and he's going to kill me,'" Tensing said.
An expert hired by prosecutors said his analysis of the former officer's body camera video shows the officer was not being dragged by the car. A defense expert countered that the video shows Tensing was justified in fearing for his life because his body was "violently twisted" during the confrontation.
Deters suggested that Tensing had racial motives, saying a study found that eight of every 10 drivers Tensing pulled over for traffic stops were black, the highest rate of any University of Cincinnati officer. Tensing also made more traffic stops and citations than other UC officers. Deters also pointed to a T-shirt with Confederate flag on it that Tensing was wearing under his uniform the day of the shooting.
Tensing said he was often unaware of a driver's race, did not single people out unfairly and was not racist. He testified that the Confederate flag on his T-shirt had no meaning to him.
Class schedule and activities for classes before Thanksgiving break of November
I hope everyone had a relaxing and meaningful mini-break, and we return with lots to get to. Here is my vision for class plans/activities for the five classes we have before it is time to turn to turkey:
Monday Nov 14: Discussion of Rape Survey results and discussion and votes on various proposed new/improved rape provision for Oliwood/MPC to replace Section 213.1(1).
Wednesday Nov 16: Finish rape reform discussion and its lessons, begin overview of defenses (in theory and practice), starting with dive into intricacies of self-defense
Friday Nov 18: Deep dive into self-defense doctrines, which demands that you all have read (and re-read) La Voie and especially Leidholm and MPC defensive force provisions very carefully.
Monday, Nov 21: Deep dive into Ohio's common-law approach to self-defense, most fully defined by Ohio Supreme Court's decision in State v. Thomas, which is available in pdf form at this link. (The official cite is State v. Thomas, 77 Ohio St.3d 323, 673 N.E.2d 1339 (1997).) Legislative nuances to Ohio's common-law approach to self-defense appear in these Ohio Revised Code provisions: 2901.05. Burden of proof - reasonable doubt - self-defense.; 2901.06. Battered woman syndrome evidence.; 2901.09. No duty to retreat in residence or vehicle.
Tuesday, Nov 22 (a constructive Friday): Wrap up discussions of self-defense doctrines, start turn to other defenses of duress, necessity and insanity
Tuesday, November 8, 2016
Submitted draft proposals for revised MPC rape provision and for elaborate campus sexual behavior code
I am pleased to report that I have now received four proposals for a new MPC rape provision and also one proposal for a campus sexual behavior code.
The MPC rape provisions are short enough to reprint here for collective consideration before the Oliwood Senate convenes to debate its terms.
MPC § 213.1 – Proposed Revisions (proposed by Oliwood State Senator Tyler Aust)
(1) Rape. No person, irrespective of gender, shall perform sexual intercourse with another when any of the following applies:
(a) that person knowingly fails to obtain the other’s explicit or implicit consent;
(b) that person recklessly obtains the other’s consent under threat of substantial bodily injury;
(c) the other manifestly withholds consent from that person; or
(d) that person, through the stealthy or deceptive administration of an intoxicant, purposely impairs the other’s ability to manifestly withhold consent.
(2) Within the meaning of Division (1) of this Section, “sexual intercourse” refers to any erogenous activity, involving two or more persons, that causes bodily penetration in furtherance of sexual fulfillment.
(3) Inasmuch that Subdivision (1)(a) of this Section requires, the existence of implicit consent shall be determined upon a jury’s consideration of the totality of the circumstances.
(4) A violation under Division (1) of this Section constitutes a felony of the second degree, unless such a violation accompanies the death of the victim – in which cases the offense qualifies as a felony of the first degree.MPC Rape Provision Revision (proposed by Oliwood State Senator Abby Graves)
(a) Rape. — Any person who commits a sexual act upon another person by—
(1) Using unlawful force against that other person;
(2) Using force causing or likely to cause death or grievous bodily harm to any person;
(3) Threatening or placing that other person in fear that any person will be subjected to death, grievous bodily harm, substantial economic harm, kidnapping, or any detrimentally life-altering consequences;
(4) Using deceptive or fraudulent self-representation tied to fictitious offers of aid or economic gain;
(5) First rendering that other person unconscious; or
(6) Administering to that other person by force or threat of force, or without the knowledge or consent of that person, a drug, intoxicant, or other similar substance and thereby substantially impairing the ability of that other person to appraise or control conduct;
Is guilty of rape.
(g) Definitions. — In this section:
(1) Sexual act. —The term “sexual act” means—
(A) Contact between the penis and the vulva or anus or mouth, and for purposes of this subparagraph contact involving the penis occurs upon penetration, however slight; or
(B) The penetration, however slight, of the vulva or anus or mouth, of another by any part of the body or by any object, with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person.
(2) Sexual contact. —The term “sexual contact” means—
(A) Touching, or causing another person to touch, either directly or through the clothing, the genitalia, anus, groin, breast, inner thigh, or buttocks of any person, with an intent to abuse, humiliate, or degrade any person; or
(B) Any touching, or causing another person to touch, either directly or through the clothing, any body part of any person, if done with an intent to arouse or gratify the sexual desire of any person. Touching may be accomplished by any part of the body.
(3) Bodily harm. —The term “bodily harm” means any offensive touching of another, however slight, including any nonconsensual sexual act or nonconsensual sexual contact.
(4) Grievous bodily harm. — The term “grievous bodily harm” means serious bodily injury. It includes fractured or dislocated bones, deep cuts, torn members of the body, serious damage to internal organs, and other severe bodily injuries. It does not include minor injuries such as a black eye or a bloody nose.
(5) Force. — The term “force” means—
(A) The use of a weapon;
(B) The use of such physical strength or violence as is sufficient to overcome, restrain, or injure a person; or
(C) Inflicting physical harm sufficient to coerce or compel submission by the victim.
(6) Unlawful force. — The term “unlawful force” means an act of force done without legal justification or excuse.
(7) Threatening or placing that other person in fear. — The term “threatening or placing that other person in fear” means a communication or action that is of sufficient consequence to cause a reasonable fear that non-compliance will result in the victim or another person being subjected to the wrongful action contemplated by the communication or action.
(8) Consent. —
(A) The term “consent” means a freely given agreement to the conduct at issue by a competent person. An expression of lack of consent through words or conduct means there is no consent. Lack of verbal or physical resistance or submission resulting from the use of force, threat of force, or placing another person in fear does not constitute consent. A current or previous dating or social or sexual relationship by itself or the manner of dress of the person involved with the accused in the conduct at issue shall not constitute consent.
(B) A sleeping, unconscious, or incompetent person cannot consent. A person cannot consent to force causing or likely to cause death or grievous bodily harm or to being rendered unconscious. A person cannot consent while under threat or in fear or under the circumstances described in subparagraph (C) or (D) of subsection (b)(1).
(C) Lack of consent may be inferred based on the circumstances of the offense. All the surrounding circumstances are to be considered in determining whether a person gave consent, or whether a person did not resist or ceased to resist only because of another person’s actions.
UPDATE: Abby has revised here proposal and it is here for downloading: Download MPC Rape Provision Revision (1)
2016 MPC Rape Provision: 210.1 (proposed by Oliwood State Senator Matthew Carpenter)
1. Rape is defined as the penetration of any orifice without the express written consent of both parties.
2. Written consent is required before the commission of any sexual encounter, to acquire written consent the parties must: a. Write out a contract which clearly defines both parties consent to any and all of following:
i. Any sexual contact which involves the penetration of any orifice.
ii. Any sexual contact that a person makes upon themself by means of force, threat, or coercion exercised by another, which results in the penetration of their own orifice.
3. Parties must acquire written consent in the form of a contract before each act of sexual conduct referenced in section (2)(A), unless otherwise stipulated in the contract.
4. Consent contracts must be:
a. consented to by both parties, and
b. signed in the presence of a state marshal.
5. In writing the consent contract, parties may:
a. Be as specified as each party deems fit, or may utilize a state contract provided by the Attorney General’s office.
6. No person may acquire the express written consent of another by means of force, threat, or deception.
7. Once the act of rape is committed, the victim retains 30 days to report the incident to the appropriate authorities.
8. No rape may be falsely reported.
9. Persons 12 years and younger may be found guilty of rape, but they may be found guilty of some lesser sexual offense.
Sentencing: MPC Rape Provision 210.2
1. If any sexual conduct mentioned in section (2)(A) occurs and is not preceded by the signing of written consent, then the actor who perpetuated the sexual conduct is guilty of rape which is a felony of the 2nd degree.
2. Violation of section (4) of this provision is a felony of the 2nd degree.
3. Violation of section (6) of this provision is a felony of the 3rd degree.
Definitions: MPC Rape Provision 210.3
a. Force – is defined as any exertion of effort to enter into the orifice of another.
b. Threat – is defined as making the victim believe they may come into bodily harm in any attempt to refuse the perpetrators sexual advances.
c. Coercion – is defined as the altering of ones state of mind through any illicit means such as intoxication, persuasion, bartering, compensation, deprivation, manipulation, or any activity which may alter the conscious of the victim in any unusual way.
d. Touch – is defined as contact which is made upon a person by means of another’s body or by means of any agent which is explicitly under the other person’s control.
213. 1 Rape and Related Offenses ((proposed by Oliwood State Senator Ayesha Cotton)
(1) Rape- Any person who commits a sexual act with another is guilty of rape if:
a) The person uses unauthorized force against the other person
b) Threatening of bodily harm, death, kidnapping, or any harm to another whether through verbal or nonverbal means
c) Gained control of a person’s conduct without their knowledge by means of drugs, intoxicants or any other means to prevent resistance.
d) The person is unconscious
e) The person is less than 13 years old
f) The person did not give an affirmative consent
g) The person’s family, career, or personal interests were threatened
Rape is a felony of the second degree unless (a) in the course the actor inflicts serious bodily injury upon the person, or (b) the victim was had not previously permitted any sexual acts with the actor, in which case the offense is a felony of the first degree.
(2) Any person who knowingly falsely accuses a person of one of the acts stated in 213.1 (1) is guilty of making a false report which will result in a misdemeanor in the fourth degree.
(3) Definitions- For purposes 213. 1 the following terms are defined as:
(a) contact between the penis and the vulva or the penis and the anus, or the vulva and the vulva, or the penis and the penis and for purposes of this subparagraph contact involving the penis occurs upon penetration, however slight; the penetration, however slight, of the anal or genital opening of another by a hand or finger or by any object
(b) Contact between the mouth and the penis, the mouth and the vulva, or the mouth and the anus; with intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person
(a) That involves a substantial risk of death, unconsciousness, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty
(a) A verbal “yes” that has given through coercion or threats and maintains throughout the duration of the sexual act.
The campus sexual behavior provision is quite lengthy and is therefore attached in full. I am hopeful its authors will not object to this excerpt intended to capture key provisions:
Proposal to The Ohio State University Board of Directors (proposed by Matthew Harris and Maggie O’Shea)
Following a complete investigation, the board shall make a final decision based on the preponderance of evidence from the trial and recommendations of the sexual misconduct investigative team.
If the board finds that the accused committed an act of non-consensual intercourse against an individual, the accused shall be permanently expelled from The Ohio State University.
If the board finds the accused guilty of other forms of sexual misconduct, the board has discretion to levy proper sanctions against the accused at their discretion. Sanctions include but are not limited to: 1. Suspension; 2. Scholarship Revocation; 3. Appropriate Sexual Conduct Workshops, 4. Banishment from school activities, 5. Mandatory Community Service, 6. Counseling....
Non-Consensual Sexual Intercourse: Any sexual penetration, however slight, with any body part or object, by any individual upon another this is without consent and/or by force or coercion. Sexual Penetration includes but is not limited to: vaginal penetration by a penis, object, tongue, or finger; anal penetration by a penis, object, tongue, or finger; and oral copulation (mouth to genital contact or genital to mouth contact); no matter how slight the penetration or contact.
In addition to being grateful to the drafters for crafting these proposals for posting and pre-class and in-class discussion, I am hopeful that the drafter can be sure to address which of the acts discussed in the rape survey (results here) would qualify as "rape" or as "non-consensual intercourse" under the definitions here provided.
Remarkable new Ohio murder charge for old beating that brings up lots of "classic" issues
Though we are technically done with the homicide unit, I just saw this new local story of a notable new Ohio murder prosecution. The story is headlined "Man charged with murder after beating son a decade ago," and here are the sad (and legally interesting) details:
Almost 10 years have passed since Michael Robinson beat his infant son nearly to death — the injuries to the child’s brain so profound that Dana Robinson lived a life filled with medical complications and chronic pain before he died in his bed at the age of 9 last year.
But now Michael Robinson has been charged with murder.
A Logan County grand jury indicted Robinson, 52, this morning. He’s in the Allen Correctional Institution in Lima, serving a 14-year prison sentence after pleading guilty in 2008 to charges of felonious assault, endangering children and domestic violence in connection with Dana’s beating at the family’s Bellefontaine home in February 2007. He now faces up to life in prison.
Eric Stewart, chief assistant prosecutor in Logan County, said that after Dana died in his sleep Nov. 13, 2015, detectives requested an autopsy. The Montgomery County coroner said that Dana, who had been left a paraplegic with cerebral palsy, died of complications from his severe brain trauma.
No date for Michael Robinson’s arraignment on this new charge in Logan County Common Pleas Court has yet been set.
Dana’s was a life that The Dispatch chronicled, first because local investigators said it was the worst case of child abuse they’d ever seen. Dana had been systematically tortured since birth: shaken, squeezed, smacked, pricked with pins and pinched. Michael Robinson had hurt his older sons before, and said in court that he was only trying to “toughen them up.” As doctors once testified about Dana’s injuries in court, Michael rolled his eyes.
Monday, November 7, 2016
Results of our in-class survey of what should (and should not) be covered by by modern rape provisions...
can be downloaded here:
As always, student reactions and feedback are welcome in the comments. And those who have taken up the challenge of writing a new rape provision for Oliwood can/should perhaps learn a lot from the survey results about the views of your "constituency."
Wednesday, November 2, 2016
Class schedule and activities for first few weeks of November
Because I continue to have way too much fun in class answering all your good questions, I think I now need to put class plans/activities for the coming week in writing here so I make sure we keep moving forward (and so you all can know just what you need to read/do):
Wednesday, Nov 2: Set up next week's role play, review/recap Berry, Williams and Mayes
Friday, Nov 4: Finish up homicides doctrines (with felony murder and MM), including my (great but dated) Simpson's hypo if we have time, and then watching 86-minute long documentary William Kuntsler: Disturbing the Universe (starting at 3:30pm), and then happy-hour
Monday, Nov 7: Introduce rape/sexual offenses history and doctrines and enduring challenges
Wednesday, Nov 9: Legislative drafting role play in which two (or more) legislative subcommittees will present proposals for either:
1. Drafting a new/improved rape provision for Oliwood/MPC to replace Section 213.1(1),
2. Drafting a "most serious sex offense always requiring expulsion and prosecution" for a school campus behavior code?
Please indicate your preference in the comments. Thanks.
Saturday, October 29, 2016
If you are eager to learn more about the sad particulars behind the Welanksy case...
here is a documentary with a partial recreation of the events at Coconut Grove:
Friday, October 28, 2016
"Man sentenced to 13 years in fatal shooting"
Another interesting local story, available here, provides another window into how unclear facts and lawyers influence homicide outcome both in terms of Ohio charges and ultimate sentencing.
Wednesday, October 26, 2016
Another local Ohio homicide (involving murder and voluntary manslaughter charges) worth thinking about...
which I believe made national news back in the summer and is in the papers again this afternoon:
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).