Criminal Law Course @ Moritz College of Law

Grades likely to be distributed this week... and...

I hope you all realize that neither your personal worth nor your professional future is determined by how you did on your first set of law school exams.  For a whole bunch of reasons, I encourage all of you not to worry too much about your grades either before or after they get distributed.

I will set up a few specific times for one-on-one exam review in LATE February and LATE March, in part because I think you should review your specific exam performance only when you are in serious gear-up mode for another set of exams.  But before that time I will be available and eager to meet with folks one-on-one to discuss exam performance in general and to explain more fully why your first set of grades have so little to say about either your personal worth or your professional future.

In addition, even for those of you who did not do as well as you hoped or planned, remember that you still have an open invitation to do research work for me this summer if such an opportunity appeals to you.   Further, in these final few days before grades get distributed, I encourage you to use the comments to this post to express your views on the whole exam/grading experience and/or early thoughts about your second semester experiences.

Welcome back (and feel free to come by)

Hey folks.  Long time no see.  I have been thinking of you all not only as I try to wrap up my grading, but also as I worry if you are in the "right" frame of mind for returning to law school.  I am not really sure what the "right" frame of mind is, but I am sure that the Spring Semester of the 1L year can be even tougher socially and emotionally than the Fall Semester (in part because the "newness" factors and virtues are gone and the stress realities and annoying factors remain).

If you want or need a pep talk, feel free to stop by for a chat in the days and weeks ahead.  Indeed, feel free to vent on this blog, as you no longer need to try to impress me and can thus be even more candid about how Moritz and your professors are treating you.  In addition, I remain willing/eager to provide feedback on any writing samples or job hunts or any other professional (or personal) concerns you have these days.

Congrats on finishing the semester...

and feel free to use the comments to this post as a place to reflect (and/or bitch and moan) about the experience of your first semester at The Ohio State University Moritz College of Law.

I urge you to take some time to relax, and to completely put out of you mind your exam performance and the classes you face in the spring.  But I also urge you to use this "down time" to start thinking seriously and dynamically about just what kind of lawyer you might want to be and how you would like to make the best use of the rest of your time at Moritz.

Another law student essay competition to consider (for bigger bucks but no extra credit )

Via this post last month, I strongly urged all students to consider submitting an essay (after exams!) on an important topic selected by the National Association of Criminal Defense Lawyers for a law student writing competition.  As exam season winds down, I continue to encourage students to consider submitting an essay for this NACDL before the Dec. 31 deadline and I continue to be willing to give students extra class participation credit if/when they send me a copy of the essay they submit.

Excitingly, if writing an essay on a topic chosen by others during the cold winter days after exam does not thrill you, I have another law student essay competition for your consideration.  Specifically, as detailed at this link, the William W. Greenhalgh Student Writing Competition sponsored by the ABA's Criminal Justice Section is seeking essays on "any timely and important issue of American criminal constitutional procedure of interest to practitioners of criminal law."  The entry cannot be more than 4000 words and is not due until April.

I think that any topic that piqued your interest from the research assignment (or from some of our blog discussions) would be a great fit for this competition.  Also, the broad topic and the strict word limit for this competition ensures that any essay produced for it could serve as a useful writing sample for all sorts of purposes.  And here is the best part: "The winner will receive a $2,000 cash prize and free airfare and accommodations to attend a Section meeting at which the award will be presented. In addition, the winner’s law school will receive a plaque from the ABA’s Criminal Justice Section."

I really want one of my students to win a cool plaque for the law school, which I can then use to make all future 1L Crim Law classes feel inferior if they do not win anything for the College.  Also, if we get a winner, I will be expecting to be treated to a drink from the winnings.

Prior posts with links to writing competitions:

• An essay competition to consider (perhaps for extra credit)

Congrats and some advice for moving on...

Congratulations on formally finishing the exam for this course AND don't give another thought to the substance of the exam or your substantive performance for (at least) the next few days.  After ALL your exams are complete, I will have an open thread for comments on the whole exam season, but right now you should keep in mind the reality that your most important exam is your next one. 

Given that your next exam is not until Friday, I also have a few recommendations for moving on:

1.  Catch up on sleep and/or time with family ASAP before going back into deep exam mode

2.  Go out to see or rent a movie that is either a good comedy that helps you forget serious stuff or a moving drama that helps you remember your current worries are pretty minor.   Since I mentioned the The Blues Brothers in one review session, that's a good possibility for the comedy.  The last few winners of the Oscar for best picture, The Hurt Locker and Slumdog Millionaire, should fit the bill on the drama front.  And, if you want a great movie that will make you think really hard about something other that law, I always love to recommend Momento.

3.  Please let me know either through comments here or via e-mail or in person whether and how you would like me to keep this blog going in the weeks and months ahead.  I would be happy to keep providing snippets of interesting real substantive criminal law cases, though I would also be happy and eager to use this space for student support as well (e.g., posting notices/links about job opportunities and advice columns like this one).

Congrats again and good luck finishing your last two exams (which I hope will both seem easy after you have no survived mine)!

"Pa. couple who only prayed for dying tot convicted"

The title of this post is the headline of this notable local article about a real case that reminds me a bit of the Williams case from our casebook.  Here is how the article starts:

A fundamentalist Christian couple who relied on prayer, not medicine, to cure their dying toddler son was convicted Friday of involuntary manslaughter and child endangerment. Herbert and Catherine Schaible of Philadelphia face more than a decade in prison for the January 2009 pneumonia death of 2-year-old Kent.

"We were careful to make sure we didn't have their religion on trial but were holding them responsible for their conduct," jury foreman Vince Bertolini, 49, told The Associated Press. "At the least, they were guilty of gross negligence, and (therefore) of involuntary manslaughter."

The Schaibles, who have six other children, declined to comment as they left the courthouse to await sentencing Feb. 2.

Experts say about a dozen U.S. children die in faith-healing cases each year.  An Oregon couple were sentenced this year to 16 months in prison for negligent homicide in the death of their teenage son, who had an undiagnosed urinary blockage.

Assistant District Attorney Joanne Pescatore will ask the judge at sentencing to put the couple's other children under a doctor's care.  She was not yet sure if she would seek prison terms for the two felonies.

Kent Schaible's symptoms had included coughing, congestion, crankiness and a loss of appetite, although his parents said he was eating and drinking until the last day, and they had thought he was getting better.  The lone defense witness, high-profile coroner Cyril Wecht, testified that a deadly bacterium could have killed him in hours.

Herbert Schaible, 42, teaches at a school affiliated with their church, First Century Gospel Church.  His wife, 41, previously taught there, but now stays at home with the couple's children, from an infant to teenagers.

The Schaibles grew up in the church and have never received medical care themselves, not counting the help of the 84-year-old lay midwife who attends home births, according to pastor Nelson A. Clark.

Open thread concerning research assignment, memo comments and grading concerns

As I promised in class this past week, I am creating this post in order to enable and encourage everyone to share comments on the research assignment.  I would be especially eager to hear:

(1) if you learned useful stuff (and liked learning useful stuff) from doing the assignment,

(2) if you liked (and learned useful stuff from) getting a chance to see how your classmates completed the assignment,

(3) if you are especially grumpy that I have not (yet) given any set of memos a check-minus or a check-plus,

(4) if you genuinely believe that any set of memos should have been given a check-minus or a check-plus.

As a matter of improving your educational experience, I care most about your response to matters (1) and (2).  But if the whole grading thing really drives you crazy, please feel free to tell me this via comments to matters (3) and (4).

Electronic versions of the two key Ohio revised code handouts...

can be downloaded here:

Download 2010 Ohio liability-MR statutes

Download 2010 version of Ohio homicide statutes

Please use the comments to this post to report any problems accessing these documents or indicating if you want/need me to post any other materials.

"Trial to begin in boy's death at Mass. gun expo"

The title of this post is the headline of this AP article reporting on a sad case about to become a headline-making criminal trial in Boston.  Here are the basics:

Eight-year-old Christopher Bizilj -- 4-foot-3 and 66 pounds -- stepped up to the firing range to shoot an Uzi as his father and 11-year-old brother watched from a few feet away. As Christopher fired the 9mm micro submachine gun at a pumpkin, the weapon flipped backward and shot him in the head.  He was pronounced dead at the hospital.

Prosecutors brought manslaughter charges against the gun club where the machine gun shoot took place, two men who supplied the weapons and a small-town police chief who owns a company that sponsored the gun fair.  On Monday, the first trial begins in what is expected to be a heart-wrenching recounting of Christopher's death on Oct. 26, 2008.

Edward Fleury, the former police chief in the tiny western Massachusetts town of Pelham, has pleaded not guilty to involuntary manslaughter as well as four counts of furnishing a machine gun to a minor.  Fleury was charged because he owned COPS Firearms & Training, which co-sponsored the gun fair at the Westfield Sportsman's Club.  He also hired the two men who supplied the guns and ran the shooting range portion of the event.

Fleury's lawyer, Rosemary Curran Scapicchio, says there is no way Fleury could have anticipated that a child would die when he co-sponsored the event.  The two men who supplied the guns -- Carl Giuffre and Domenico Spano -- had conducted the same gun shoot at the Westfield club for seven years without incident.

Fleury's lawyer also argues that prosecutors should have called Christopher's father, Dr. Charles Bizilj, to testify before the grand jury that indicted Fleury.  Charles Bizilj brought his two sons to the machine gun shoot and gave them permission to fire the Uzi.

"The prosecutor urged the grand jury to find that Chief Fleury disregarded a probable risk of death of a child.  However, the child's father did not believe that allowing his son to fire the machine gun would create a probable risk of death," Scapicchio wrote.  "The truth is that death was not a probable consequence. Instead, it was a tragic pure accident."

Hampden District Attorney William Bennett did not return calls from The Associated Press seeking comment.

Bennett has said Charles Bizilj chose the compact Uzi for his son after he was assured it was safer than a larger weapon.  He said the small size of the gun, along with its rapid rate of fire, actually made it more likely that the third-grader from Ashford, Conn., would lose control of the weapon and the muzzle would come close to his face.

Bennett said Charles Bizilj was not charged because he was a layman and based his decision to allow his sons to fire the gun on information from others who should have known it was too dangerous....

Charles Bizilj said Christopher had fired handguns and rifles previously but had never shot an automatic weapon such as an Uzi.  "I watched several other children and adults use it. It's a small weapon, and Christopher was comfortable with guns.  There were larger machine guns with much more recoil, and we avoided those," he told The Boston Globe the day after his son's death.

Bennett said Christopher was one of at least four children who fired automatic weapons at the fair.  He said Fleury had wrongly assured Giuffre and Spano that it was legal for children to use the Uzi.

Charles Bizilj was filming his son and captured the shooting on video.  Fleury's lawyer has asked the judge to exclude the graphic video from the trial.

The Bizilj family has been devastated by Christopher's death, said Bruce Melikian, an attorney who represents the family in a wrongful death lawsuit against Fleury, Spano and Giuffre. "I'm not sure what this trial will accomplish," Melikian said.  "I think their main concern is that no one else ever has to go through this again."

Fleury faces a maximum of 20 years in prison if convicted on the manslaughter charge.  He faces a maximum of 10 years if convicted of furnishing the weapon to a minor.

This sad real case almost sounds like a hypo from a criminal law exam, and thus it might present a good opportunity to test your knowledge of various doctrines.

Attempt actus reus hypo for consideration and reflection

To facilitate our discussion of the actus reus of attempt liability, below is a list of actions by a (troubled?) young man to get you thinking about where a line should be drawn between "mere preparation" and attempt liability:

Joe McAngryTechieNerd of Columbus truly believes Microsoft (MS) is the root of all evil and he often tells his techie friends that computers and the whole world would be better off with MS and Bill Gates.  After watching a documentary about Oklahoma City Bombing, Joe McAngryTechieNerd does the following:

1. E-mails techie friend saying he wished Bill Gates was dead and MS was bankrupt

2. Posts blog comment that he would love to see MS headquarters blown up

3. Does internet research on location of MS headquarters in Redmond, Washington

4. Does internet research about how often and when Gates still goes to his MS office

5. Does internet research on homemade explosives

6. Rents hotel room for two nights in Seattle

7. Rents Ryder truck for driving to Seattle

8. Drives rented truck to Seattle, checks into hotel, sleeps

9. Drives in morning to Redmond and drives around the MS headquarters repeatedly

10. Parks at MS headquarters, walks around asking employees when Gates is there

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

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

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

14. Parks in strategic location on MS headquarters

15. Starts building homemade bomb insider rental truck

16. Waits, watches for Gates to arrive at work

17. Drives past security guard following Gates' car

18. Parks truck right next to Gates car as he pulls into spot

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

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

 

LIABILITY QUESTIONS

When SHOULD Joe McAngryTechieNerd be deemed guilty of attempted murder?

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

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

 

POLICING QUESTIONS

When do you want police to intervene?

When do you think the police legally can intervene?

When do you think the police will intervene?

"Was FBI grooming Portland suspect for terror?"

The title of this post is the headline of this article in the Seattle Times, which stuck me as blog-worthy in light of our class discussions today.  Here is how the piece starts:

FBI undercover operatives helped fund Mohamed Osman Mohamud's would-be terrorism plot to detonate a car bomb during a Christmas tree-lighting ceremony on Friday at a crowded public square in the heart of the city.

Operatives helped him find components needed to create a bomb and schooled the 19-year-old Somali-born man in how to set off the explosives. The sting operation enabled the FBI to amass a formidable amount of details about what a grand-jury indictment Monday charged was Mohamud's attempt to use a car bomb as a "weapon of mass destruction."

But Mohamud's attorneys and some local Muslims are raising questions about whether the operatives who posed as co-conspirators played their role too well. Defense attorney Steve Sady questioned whether the operatives were "basically grooming" Mohamud to try to commit a terrorist attack.

"The information released by the government raises serious concerns about the government manufacturing a crime," according to a statement released by Sady and Steven Wax, public defenders assigned to represent Mohamud.

Mohamud, through his attorneys, pleaded not guilty on Monday.

Law-enforcement officials say that they gave Mohamud plenty of opportunities to opt out of the bomb plan and that he was committed to carrying out the crime at the time, place and location of his choosing.

"I am confident there is no entrapment here," Attorney General Eric Holder said Monday in Washington, D.C. "There were ... a number of opportunities ... that the defendant in this matter was given to retreat, to take a different path. He chose at every step to continue."

Working plans for exam review sessions

As of this writing, and as discussed in class, I am planning to have (at least) two general review sessions:

• Monday, Dec. 6 at 2pm 
• Friday, Dec. 10 at 2pm

Please let me know ASAP in comment or via e-mail if additional such sessions are desired (or whether alternative times the week of Dec 6 would be preferred).

An essay competition to consider (perhaps for extra credit)

Via e-mail, I just learned of this notable competition for law students sponsored by the National Association of Criminal Defense Lawyers.  I urge all student to consider submitting an essay (after exams!) on the important topic selected by NACDL for this competition.  Here are the details:

NACDL Essay Competition Call For Entries: In keeping with its goal to promote diversity within the criminal defense bar, NACDL invites law students from accredited law schools in the United States to submit essays for a chance to be published in The Champion magazine.

Topic: It has been reported that from 1993 to 2008, the entering enrollment in law schools dropped by 7.5 percent for African-Americans and 11.7 percent for Mexican Americans (see AmLaw Daily article from January 2010, Study: Minority Law Student Numbers Dip as Law School Capacity Rises). With the numbers of historically underrepresented minorities seeking a law degree either stagnant or dropping in recent years, what steps would you recommend for increasing diversity in the profession and, in particular, on the bench? And why?

Eligibility: The contest is open to all current law students who are in good academic standing at accredited law schools in the United States.

Prizes: There will be one first prize winner, one second prize winner, and one honorable mention.

1.The first prize winner will have his or her winning essay published in a forthcoming edition of NACDL's magazine, The Champion; receive a $200 cash prize; receive a free one-year student membership; and receive a certificate of recognition.

2.The second prize winner will have his or her winning essay published in a forthcoming edition of NACDL's magazine, The Champion; receive a $100 cash prize; receive a free one-year student membership; and receive a certificate of recognition.

3.The entrant who receives an honorable mention will have his or her winning essay published in a forthcoming edition of NACDL's magazine, The Champion; and will receive a certificate of recognition.

Entries must be received by 5:00 pm on December 31, 2010.  Please email entries to Terrica Redfield at tredfield@schr.org; subject line NACDL Essay Contest.  [Complete contest rules can be downloaded here.]

Award Date: Winning entrants will be notified on February 1, 2011.

As the title to this post hints, I will be inclined to give a smidgen of extra credit to any student who sends me a copy of any essay produced for this NACDL competition.

Movie recommendations and reviews for the long holiday weekend

Partially to provide a reminder that you should be doing a lot more than just studying over the long holiday weekend, I though it might be fun to have this post to provide a forum for movie recommendation and reviews.  I urge every student to see at least two movies while on break (with the help of a DVD player or DVR if not via the local theater. 

Having already seen the Harry Potter movie this past weekend (which I would give 3 out of 4 stars), I hope to get a chance to take the whole family to see Megamind and/or Tangled sometime over the weekend.  In addition, I hope before too long to get to rent/see The Kids Are Alright, though family travel and other plans might make that hard.

For anyone looking to combine law and entertainment, here are a few suggestions for a Netflix cue:

• Anatomy of a Murder (1959)
• The Fortune Cookie (1966)
• A Few Good Men (1992)
• My Counsin Vinny (1992)
• Primal Fear (1996)
• The Devil's Advocate (1997)

Crim Law exam prep open thread for the long holiday weekend

Congrats to all for getting one exam behind you, and be sure to take some special time for review and reflection on what you did right (and wrong) in the exam preparation and taking process.  Also, be sure to take some deserved time off during the holiday weekend.

On the sad (but reasonable?) assumption that you will not be able to put all future exams out of your mind during the long weekend, I have created this post to provide a forum for questions (and answers?) about our upcoming Crim Law exam.  I expect our exam to be quite similar in style and structure to those I have given in prior years (many of which can be found here and here and here), so you can/should check out past my exams to get a sense of what is on the horizon for you on December 13.

Feel free to ask any and all questions you might have about our final exam in the comments here.  (I will bring any especially important answers into the text of this post or create a new post, if needed).

Real case involving an honest/genuine(?) --- but seemingly crazy/unreasonable(!) --- killer who might claim necessity (or duress)

I was struggling in class yesterday to come up with a plausible hypo that would effectively portray the possibility of somebody having an honest but unreasonable belief that they needed to kill an innocent person to prevent a greater harm or when subject to under a coercive force. Today I just learned about a spooky case via this AP story from Illinois that perhaps provides a real setting for testing these possibilities. The story is headlined "Prosecutor: Mom says she killed girl as protection," and here is how it begins:

A woman charged with first-degree murder in the slaying of her 4-year-old daughter in suburban Chicago told police she killed her child to prevent her from being raped and sold as a sex slave online, prosecutors said.

Marci Webber of East Nassau, N.Y., was being held Monday at DuPage County Jail on $5 million bond in the death of Magdalene "Maggie" Webber.  Her body was found last week in an upstairs bathroom of a Bloomingdale town house.  The child's throat was slashed and the words "divine mercy" were scrawled in blood on a nearby wall, according to DuPage County prosecutors.

The 43-year-old mother told police she gave her daughter sleeping pills and Benadryl, some of which were found next to the girl's body along with a 4-inch folding knife, prosecutors said.     "She said she wanted to keep her daughter from being an Internet sex slave," Assistant State's Attorney Joseph Lindt said in court Sunday.

Prosecutors later said they did not believe the girl ever faced such a threat.  They planned to seek a mental health evaluation in anticipation of an insanity defense, Paul Darrah, a spokesman for the DuPage County state's attorney, said Monday.

"'Castle doctrine' coming under fire; Critics: Right to kill intruder is being used to defend criminals"

The title of this post is the headline of this timely article appearing in today's Columbus Dispatch.  Here is how the article gets started:

Ohio prosecutors warned two years ago that the "castle doctrine" would add an unwelcome page to the playbook of criminal-defense lawyers.

The 2008 law, designed to protect the grandmother who shoots an intruder in her home in the middle of the night, increasingly is being used to defend murder suspects as not legally responsible for their deeds.

The castle doctrine states that people are presumed to be acting in self-defense when they use deadly force and injure or kill someone who illegally enters their occupied home or vehicle.

But critics say the law is silent about the appropriate level of force in response to threats, as well as the fault or criminal conduct of people who create situations that imperil themselves. "It was not made to protect drug dealers from drug dealers, but that's how it's being used," Pike County Prosecutor Rob Junk said.

In rural Pike County, a man who ripped off a drug dealer's wares shot the dealer through the heart after he broke a window in an attempt to enter the defendant's car. Defense attorneys contended that the man acted lawfully. A jury convicted him of reckless homicide rather than murder.

In Franklin County, a man fatally stabbed an acquaintance who pushed his way into the defendant's home during an argument. His attorneys said the law granted him an absolute right to defend himself with deadly force. The prosecution countered that the law "is not a license to commit murder."

Class plans for defenses through November

The junior lawyers from the Oliwood firm of Douglas, Aaron, Ber, Man and Associates LLC have made arrangements with potential client Tom Dudley to meet at 1:45pm on Friday, November 12.  That means we will be focused on self-defense doctrines during Tuesday's class (and, as you all surely recall, we do not have class on Thursday, Nov. 11).

For our initial self-defense discussions, be sure to read (and re-read) La Voie and especially Leidholm very carefully.  In addition, to get a running start on Ohio's approach to self-defense, also read ASAP the 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).)

In addition, for a timely recent story about self-defense issues in Ohio, check out this new piece from today's Columbus Dispatch, which is headlined "Judge says killing wasn't self-defense: Man to appeal over 'castle doctrine'."

We likely will wrap up our self defense discussions on Tuesday, Nov. 16 and cover necessity and duress doctrines in our last two pre-Thanksgiving classes.  Be sure to read accordingly.

A place to get the R&W assignment instructions (and to ask questions)

A helpful student reminded me that I have not yet posted the Small Section Research and Writing Assignment instructions in this space. Thus, I have done so via this post. In addition, I both welcome and encourage student to ask any and all questions about the assignment in the comments to this post. I will try to respond to all question either via this blog on live in class.

Download 2010 R&W Assignment Instructions

Proposed Oliwood rape statute from Senators Coleman, Pullen and Silverblatt (and now ... others)

Reprinted below is the full text of a proposed new rape law drafted by Senators Coleman, Pullen and Silverblatt.  This is the first (and so far only) proposal that has been submitted to me in advance of the Oliwood legislative session scheduled to take place this afternoon at 1:30pm.

Oliwood Rape Statute

213.0 Definitions

1. “Sexual conduct” means vaginal intercourse, anal intercourse, fellatio, and cunnilingus between persons regardless of sex; and, without privilege to do so, the insertion, however slight, of any part of the body into the vaginal, anal, or oral opening of another; or the insertion, however slight, of any instrument, apparatus, or other object into the vaginal or anal opening of the other.
2. “Non-consent” means any verbal or nonverbal indication given by the victim that would lead a reasonable person to believe that the victim does not consent to the engagement of sexual conduct with the offender.

 213.1 Rape

 A person who engages in sexual conduct with any other person is guilty of rape if:

1. the other person expresses non-consent at any time during or immediately prior to the sexual conduct; or
2. the other person is under 11 years old, and the offender is more than 3 years older than the      other person, whether or not the offender knows the age of the other person; or
3. the offender knows or has reasonable cause to believe that the other person’s ability to resist or consent is substantially impaired because of a mental or physical condition, age, or level of consciousness; or
4. for the purpose of preventing resistance, the offender purposefully and substantially impairs the other person’s judgment or control by administering any drug, intoxicant, or controlled substance to the other person surreptitiously or by force, threat of force, or deception; or
5. the actor knowingly compels the other person by force or threat of force, including but not limited to: threat of death, bodily injury, pain or kidnapping, to be inflicted on anyone

Whoever violates this section is guilty of rape, a felony in the first degree. The prison term to be imposed upon the offender under this section shall be one of the prison terms prescribed in the Model Penal Code Section 6.06(1)

6.06 Sentence of Imprisonment for Felony; Ordinary Terms: A person who has been convicted of a felony may be sentenced to imprisonment, as follows: (1) in the case of a felony of the first degree, for a term the minimum of which shall be fixed by the Court at not less than one year nor more than ten years, and the maximum at not more than twenty years or at life imprisonment...

UPDATE:  As the Speaker soundly suggested, all of the drafters of proposed legislation are urged to add the text of their proposals to the comments (as it appears one group already has done). 

Open thread for Election Day (and Oliwood legislators)

Exciting times today with contested elections all over the place, and with the Oliwood legislature in session to consider proposals to reform the state's rape law.  This post provides an open thread for anyone and everyone eager to raise questions or make comments about any part of today's activities.

Here is one key question for collective consideration that merges today's events:  Have any major contested races in Ohio or elsewhere focused on criminal justice issues and need Oliwood legislators worry about what future political opponents might say about how they respond to proposals to reform the state's rape law?

UPDATE:  Kudos to all the members of the Oliwood legislature for a job well done, especially all of the drafters of proposed legislation. 

As a follow-up to the prior inquiry, I wonder if any of the legislators would have acted/spoken differently if he/she knew that our legislative session was being recorded and streamed/archived on the internet.  That is what all Ohio legislators now know.

Clarification on plans/goals for rape unit and reform role-play

Much to my pleasure, I have heard a number of folks expressing interest in our rape law reform role play, and here I want to provide a little clarification for how we will approach this topic and the role play:

1.  For this Thursday's class, I will provide some common-law background on the history of rape law and modern statutory reforms.  We will conclude with a survey on what we think should comprise the actus reus of the crime of rape.

2.  For this Friday's class, I will report the results of the survey on what we think should comprise the actus reus of the crime of rape.  We will then discuss what we think ought to be the mens rea of rape.

3.  For next Tuesday's class, we will have a legislative session in Oliwood with the goal of enacting a reformed rape provision to improve on the now dated terms of MPC § 213.1 (Rape and Related Offenses).  Given our limited legislative time, our goal is to pass by majority class vote a (simple?) new Oliwood Revised Code § 213.1 provision, which should defines the elements of the worst kind (and only the worst kind) of sexual offense(s) in Oliwood.

To participate effectively, everyone must read pp. 863-871 in our text and be familiar with ORC § 2907.  In addition, it is recommend (but not required) that folks check out other sections of the Rape chapter in the text and this Ohio Journal of Criminal Law article (which is titled "Why the Model Penal Code’s Sexual Offense Provisions Should Be Pulled and ReplacedWhy the Model Penal Code’s Sexual Offense Provisions Should Be Pulled and Replaced").

Those folks volunteering for "role play" credit this time around can/should form committees in order to draft a new Oliwood Revised Code  § 213.1 provision to define the crime of Rape for Oliwood.  Perhaps aided by the provisions of ORC § 2907.2 (Rape), the new Oliwood Rape provision should cover only those offenses that should qualify as a felony of the first degree and thus be eligible for a maximum sentence of life imprisonment under the terms of MPC § 6.06(1).

The rape reform drafts developed by the committee(s) will be the basis for discussion during our Tuesday legislative session.

What do you like and/or dislike most about the MPC and Ohio approaches to homicide?

A number of top-notch students have started a top-notch discussion of felony murder and other homicide issues in this prior comment thread.  In addition to wanting to praise those students for their efforts, I wanted to provide this new post to urge additional class discussion and debate over these homicide topics (especially in the context of discussing/debating some key difference between how homicides are treated in Ohio and Oliwood).

Especially because the Model Penal Code lacks any true form of felony murder (or its JV version, misdemeanor-manslaughter), perhaps I can jump-start a discussion and debate by asserting that the MPC's drafters made a mistake in not including a traditional FM provision.  Alternatively, because the Ohio Revised Code lacks any true form "extreme recklessness" murder, perhaps I should focus discussion and debate by urging our class to urge the Ohio General Assembly to amend its murder provisions to enable extremely reckless killers like Mayes and Malone to be branded (and sentenced) as murderers.

On the first issue, consider the fact that some modern commentators have suggested that a key reason the MPC's approach to homicide has been rejected by most states is the absence of any true form of felony murder.  With the benefit of hindsight, do others agree with my supposition that MPC drafters could have been more effective by drafting a very limited and targeted form of felony murder to cover, for example, causing the death of an innocent person in the commission of a rape or with deadly weapon during the commission of serious violent felony?  In other words, should the MPC have included an FM provision akin to the one to be found in the Ohio Revised Code?

UPDATE:  It dawns on me that folks might also be interested in how the federal criminal code approaches these issues, so here are links to the federal homicide basics, including:

• 18 U.S.C. sec. 1111 (Murder)
• 18 U.S.C. sec. 1112 (Manslaughter)

For a variety of reasons, federal homicide prosecutions are relatively rare.  But, as evidenced by this Ninth Circuit ruling handed down just today, they are not that uncommon in response to killing on Native American lands.

ANOTHER UPDATE:  Kudos to Luke for spotlighting the first-degree murder charges that have been brought against the "Hiccup Girl" in Florida as a result of her role in a botched robbery.  Here is a link to Florida's murder provisions, which are elaborate to a fault and showcase how some states approach the codification of felony murder in modern times.  In addition, as this local news article about the case highlights, there may be a lot of interesting aspects to the "Hiccup Girl" case as it moves forward.  The article is headlined "Tourette's syndrome may play into Jennifer Mee's defense, attorney says."

Specifics for (last?) administration of practice exam(s)

I have reserved Room 354  on Tuesday, October 19 starting at 11:00am for another administration of the practice exam. 

I will plan to give to all those students who show up just the "original" practice exam (the one for which there is a memo reviewing the substance).  But anyone who has already taken the original and now would like to take on a different question should let me know ASAP.  I will happily bring an alternative practice question for those who are gluttons for this kind of practice punishment.

More information and a place to share thoughts/findings on the Ohio Pudelski case

I previously provided basic background fact to John Pudelski Ohio case in class.  I can here provide additional links that provide a lot more details about the case.  Students interesting in helping with this case should check out this website (and the documents linked there) and also should review this Sixth Circuit ruling rejecting John's effort to obtain relief via habeas corpus.

Everyone is welcome and encouraged to share thoughts about this case in the comments to this post.  In addition, as I mentioned in class, I am interested in finding reports/details on similar Ohio cases in which a defendant has been held responsible for the death of a child and gotten lighter sentences.  Such findings can/should be placed in the comments, too.