Criminal Law Course @ Moritz College of Law

Happy to have more review/advice meetings ... and eager for more law school commentary

In addition to thanking everyone who stopped by recently, I wanted to express my willingness to continue meeting with students individually (or in groups) through the semester. 

In the next few weeks, law school life really starts to speed up for 1Ls at Moritz.  In addition to having legal writing papers due, you need to start thinking about journals and other possible major activities during your next two years in law school.  Also, course selection materials come out and require you to start thinking about how you want to plan your upper-level program.  And, of course, you have your Contracts final before Spring Break and all your other finals not too long thereafter.

I am always happy to talk with students about any or all of these realities (and also about exam performance and job hunting and related concerns).  And, I am also eager to have students use the comments to this post to comment on their latest feeling and concerns as the 1L year at Moritz heads into the home stretch.

A way (and a week) for reviewing class activities and performance

I am pleased to have heard from a lot of students expressing interest in reviewing their research assignments and/or their exams.  And I am pleased to make time for doing such review.  But I need to schedule review plans systematically, and I figure this blog space is the idea way to go about scheduling review periods.

Specifically, I am going to block off every afternoon next week(Feb 9 to Feb 13) between 3pm and 5pm for paper/exam review.  Everyone should feel free to use e-mail and/or the blog comments to "book" a time in periods for a 30-minute review session.  (Folks who sign up for times via comments get first priority because doing so will enable others to see when times have already been taken.)

I will update this post with times taken as needed.  And, the morning before a scheduled meeting time, it is essential that a student let me know his/her assignment and/or exam number so I can retrieve and mark-up the work to be reviewed.

I hope this plan makes sense (and works), and I also hope  everyone is able to book a convenient time for next week.  I will schedule an additional week for review later in the semester if there is interest.

A new blog for the Moritz class of 2011

I just learned of this new blog, titled "12th and High," that appears designed to solicit comments on the law school world situated at our favorite intersection.  Here is part of one post that seems to set the tone and terms of blog coverage:

We want to hear what people have to say about their moritz experience and legal education.

We will start with issues addressed to the moritz ’11 class. We will expand to posts aimed at all moritz students and whatever else we feel like talking about. Our ideas will be posted along with posts from guest bloggers: – classmates, recent grads, and non-legal-types.

If you want to post a guest topic or have any suggestions, shoot us an email 12thandhigh@gmail.com and we might throw it on the wall. If we do not post it, we promise to read the title of your email.

No names (unless you want to disclose), just raw, honest thoughts. We will attempt to remain anonymous as authors, but after a few beers at bar review you never know what will happen.

Check it out.

Any thoughts, reactions, comments about second semester classes?

I am curious to hear via comments (either signed or anon) what you think about your second semester classes.  Are they good things, bad things, interesting things?

It has been a while since we revised the 1L curriculum, and I continue to want to hear from my favorite 1Ls what they think about the programming they are required to complete.

Any special predictions and/or resolutions for 2009?

A new year, a new President, a new semester of law school, a new set of classes and professors, a new set of grades for courses completed last year ... law students have so many interesting things to look forward to as we start 2009.

In addition to wanting folks to share their (law-related?) predictions and/or resolutions for 2009, I also encourage everyone to take a few minutes to look back on all the great 2008 reflections to be found in the comments to these recent posts:

• Eager for student thoughts (or venting) about law school grading systems
• Congrats and now start working on deep reflections, suggestions and looking ahead
• Any advice or suggestions for President-elect Barack Obama?

Congrats and now start working on deep reflections, suggestions and looking ahead

Congrats to everyone for finishing the first semester of law school.  It is all downhill from now, and law school (both inside and outside the classroom) will start feeling very different from here on out. 

Before you have too much holiday cheer (and egg nog), I would be grateful for comments reflecting on the first semester law school experience and/or suggestions for how Moritz could improve the experience and/or thoughts about what you are expecting and hoping to learn next semester and through the rest of your time at law school.

Please be as broad or as narrow as you wish in your reflections and suggestions: you can and should feel free to discuss broadly how law school has changed how you look at politics or society or your own professional plans; you can and should feel free to discuss narrowly how legal research or traditional classes or career services or Lou's Cafe could be improved.

You should also feel free to post anonymously and to talk candidly about Moritz faculty or staff or students or alums.  Are there ways that faculty or upper-level students or alums could do a better job helping 1Ls in the Fall or activities you hope these persons will sponsor this coming Spring? 

Thanks in advance for your continued engagement.  Have a great break!

A chance to complain about finals or anything else

I hope you will all keep visiting this blog even though all of our official time together is officially over.  I likely will make announcements in this space about my grading progress, and I may also keep blogging about interesting cases or notable criminal justice events even into the Spring.

I also hope you will now feel even more free to comment about the overall class experience and/or the exam and/or any other aspect of your 1L experiences.  I recall having some of my deepest insights about the best and worst aspects of certain law school classes right before taking the final, but the needs of the exam rarely provided a means to note my last-minute discoveries.

You all deserve multiple chances to vent and otherwise blow of steam, and I am happy for this blog to be a place for such justified and excused expressions of passion or rage as the first semester of your law school experience winds down.  (Also, I have heard rumors of an Oliwood T-shirt and I want to be sure to place my order for one (XL) before I miss the chance.)

Two really long (and especially difficult?) past exams

By popular demand, here are two more of my old exams for your reviewing pleasure.  My first reaction when looking over these particular exams is that they are really long and perhaps especially difficult, though I think everyone (or at least nearly everyone) who took these exams survived to tell future tales.  Enjoy.

Download 2000 Final Exam

Download 2001 Final Exam

Our review sessions and more old exams

As previously mentioned, I am planning to conduct review sessions this Friday afternoon (December 12 at say 2pm) and next Monday morning (December 15 at say 11am).  Because I think upper-level exams may be taking place in our usual classroom, let's plan to have these review sessions in Room 354 (which is the weird little classroom at the very end of the third floor near the steps to the fourth floor.

To review: I will be available to answer questions Friday at 2pm and Monday at 11am in Room 354.  I will stay both days to answer as many questions as folks have for as long as needed.  I have no plans to present any material other then to report on the exact exam format (which is likely to be a 3-hour exam with 3 questions).

As I have suggested before and will suggest again, a great way to prepare for the final is by taking old exams under "real" conditions.  I have previously posted two old exams in this prior post, and now here are two more for your practicing fun:

Download 1999 Final Exam

Download Final 2003 Crim Law exam

Eager for student thoughts (or venting) about law school grading systems

We spent a little time during our casual moments talking about law school grading realities.  And, with finals coming soon, I suspect grades and grading systems may be especially on your mind this time of year. 

Of course, as fall semester 1Ls, you do not yet know how law school grading realities are directly likely to impact you because you've not yet even gotten a first set of grades.  But the very fact that you've not personally and directly experienced the Moritz grading system is why I would be grateful for some opining in the comments here about law school grading and curves and nerves and whatever other grading-related thoughts (or kvetching) you would like to share.

In addition to wanting our class members to talk about grading issues and concerns, I encourage everyone to share this link with other Moritz students and/or students at other law school.  Though lots of people worrying and talking about law school grades (including faculty members), I am often disappointed that few spend much time worrying and talking about how law school grading systems can be improved.

For some useful background reading and for another setting to share thoughts, check out this new post at the Law School Innovation blog.  You will see over there my own (crazy?) ideas for how I might create a law school grading system from scratch.

Thanks in advance for your thoughts and kvetches!

Eager for final(?) class reflections, including MPC debate(?)

Thanks again for a great classroom experience (did I forget to say thanks in class?).  With this post (and likely others to come), I hope to keep our collective experiences alive and on-going on-line.  In particular, right now, I wanted to provide an opportunity for more comments about the classroom experiences we had together (which can be signed or anonymous, as you all see fit).

In addition, I wanted to link here to the pieces by Professor Dressler and me about whether the MPC should be revised:

• Joshua Dressler
, The Model Penal Code: Is It Like a Classic Movie in Need of a Remake?, 1 Ohio St. J. Crim. L. 157 (2003).

• Douglas A. Berman, The Model Penal Code Second: Might "Film Schools" Be in Need of a Remake?, 1 Ohio St. J. Crim. L. 163 (2003).

You need not read either of these pieces to comment on our class or on the MPC's role in our class.  But, I would be especially grateful (and maybe especially likely to award bunches of Berman bonus points) to anyone who reads these pieces and comments on my (now dated?) musings about the problems the old MPC creates for modern classroom teaching.

Trouble for Plaxico even without attempt charges

I have a new post at my sentencing blog that provides something of follow-up to my (far-fetched?) efforts in class on Monday to turn the Plaxico Burress case into an attempt hypo.  Though not required reading, anyone interested in guns crime and/or sentencing issues might want to check out this post:

NYC Mayor Bloomberg pushing for Plaxico Burress to get at least 3½ years in state prison, leading me to many questions

Also, if you'd rather focus on theories of punishment, this distinct post might intrigue you:

An understandable (but debatable?) child porn declination decision by federal prosecutors

Attempt actus reus hypo for consideration and reflection

Here is the list of actions I posted in class to get you thinking about the actus reus of attempt:

Joe McAngry believes Microsoft monopoly is root of all evil, and here’s what he does....

1. E-mails friend saying he wish Gates was not running MS

2. E-mails Gates that saying something bad is going to happen to him because MS is evil

3. Blogs that he wants to blow up Gates at work

4. Does internet research of location of Gates home/work

5. Does internet research of homemade explosives

6. Buys timer/electronics for homemade explosive

7. Rents truck for drive to Seattle

8. Drives to Seattle

9. Buys fertilizer/gas other ingredients for making bomb

10. Drives to perimeter of MS compound, sleeps in van with supplies

11. Early next morning, starts building explosives

12. Watches for Gates to arrive at work

13. Drives past security guard following Gates

14. Parks truck next to Gates car

15. Runs away, remote in hand, planning to push button once clear

WHEN SHOULD HE BE CONSIDERED GUILTY OF ATTEMPTED MURDER OF GATES?

WHEN COULD HE AT COMMON LAW?   WHEN WOULD HE UNDER THE MPC?

WHEN DO YOU WANT THE POLICE TO INTERVENE?

WHEN CAN THE POLICE LEGALLY INTERVENE?

WHEN WILL THE POLICE LIKELY INTERVENE?

Our plans for the final few days of class

A reasonable request for clarifying our final few days together brings this accounting:

1.  We meet Monday and Tuesday as normal (Dec. 1 and 2), and we will be discussing the mens rea and actus reus of attempt liability.  Upon the end of Tuesday's class we will have covered all the material on which your final exam will be based.

2.  We do not meet on Wednsesday ((Dec. 3) because it is a "Constructive Friday."

3.  What was supposed to be our final class (Monday, Dec. 8) is rescheduled for Thursday (Dec. 4).  During that class, I will very quickly discuss complicity and conspiracy and the substantive themes/lesson I hope you take away from the class.  In addition, during that last class I will discuss the specifics of the final exam and set up times for group review sessions.

I hope this clarifies what we have left to do together and what reading you need to complete (i.e., if you have done the attempt reading (but nothing more), you are all set).  Please feel free to use the comments to express question or concerns about our collective plans.

Old exams for practice purposes

As promised, I am not making available in this space some of my old exams that would provide a great means for doing more Berman exam-taking practice.  Uploaded here are the exams I gave to the 1997 and 1998 versions of this class, and both exams are crazy hard (like yours will be).  As I have suggested before, forcing yourself to take these exams under real-exam-taking conditions should help maximize the benefits you get from the review experience.

Download 97 Final Exam

Download 1998 Final Exam

I will happily discuss the specifics of these exams (and provide more exams for your review) after we all enjoy a well-deserved Turkey break.  Have a great holiday and congrats on finishing your Contracts mid-term.

Good luck and good times...

Just a quick note from your crim prof wishing you good luck on your contracts mid-term. 

Also, I wanted to report that I will be in town on Monday and will happily treat for the first round of liquid refreshment for any class members who join me at Eddie George Grill after 1:30pm on Monday afternoon.

An up-to-date version of Ohio Revised Code section 2901.05

A wise student wisely noted that I was referencing an outdated version of ORC 2901.05 in our class discussion last week.  The latest, greatest version of that important provision is available at this link.

Notable new Sixth Circuit opinion on federal necessity/justification defense

Rather than talk about Dudley and Stevens again, I suggest we consider this new decision handed down Friday by the Sixth Circuit (after we discuss the amazing Unger case).  This new ruling deals with a modern attempt to invoke the defense of necessity in a federal prosecution.  The decision in US v. Billy Ed Kemp starts this way:

Kemp was arrested in May 2005 with a .32 caliber derringer pistol in his pocket.... Kemp was charged with being a felon in possession of a firearm that had traveled in interstate commerce, in violation of 18 U.S.C. § 922(g)(1). Kemp did not contest any of the elements of this offense at trial.

Kemp did not contest any of the elements of this offense at trial.... Kemp’s sole defense, instead, was that his possession of the gun was justified because he had taken it from an intoxicated friend who might harm herself or others.

A (clear?) self-defense case for a law student jury

Thanks to a fellow law prof blogger, I saw this local news story involving a notable case of self defense.  Here are the basics:

Arizona State University student Alex Botsios said he had no problem giving a nighttime intruder his wallet and guitars.

When the man asked for Botsios' laptop, however, the first-year law student drew the line. "I was like, 'Dude, no -- please, no!" Botsios said. "I have all my case notes…that's four months of work!"

Police said Gabriel Saucedo entered Botsios' apartment through an open window early Thursday morning.  When Botsios woke up, Saucedo threatened him with a baseball bat, police said. He was just like, 'I'm going to smash your head in,'" Botsios said.

At that point, the law student wrestled the bat away and began punching Saucedo, Botsios said. "I basically grabbed him and threw him this way, and he held onto the bat so it threw him to the ground," he said.

Police said they took Saucedo to the hospital for stitches before they arrested him on charges of armed robbery and kidnapping.  Other than a bruised knuckle and a few scratches, Botsios was unharmed.

So the "victim" in this case was unharmed, while the perpetrator had to go to the hospital for stitches.  Hmmm....  Would you say that Alex Botsios' act of punching Gabriel Saucedo to the point of him needing stitches was entirely justified or just merely excused?  

Suppose Botsios had punched Saucedo so hard that he eventually died from his wounds.  Do you think a state prosecutor should at least consider possible homicide charges under such circumstances.  Might a defense attorney develop expert testimony concerning "battered 1L syndrome" in an effort to explain why Botsios might have become so violent in response to an effort to steal his laptop? 

How would we assess a self-defense claim if raised by the 8-year-old Arizona killer?

I mentioned in class the stunning case out of Arizona involving an 8-year-old boy who killed his father and his father's friend.  Since the 8-year-old's basic guilt does not seem to be in dispute, this real case provides an effective setting for us to consider a variety of possible defenses.  This new article from ABC News provides some background on this new case out of Arizona and also describes a notable old case in which a young killer escaped prosecution for killing his dad:

Investigators are still piecing together exactly what took place in an eastern Arizona home, where an 8-year-old boy allegedly shot and killed his father and another man, systematically reloading a rifle and firing at close range. Details from the St. Johns crime scene are scant, and with a court-imposed gag order, little new information is likely to come out unless the boy is tried for the two counts of murder on which he has been charged.

Police initially suspected the boy had been physically or sexually abused, but before the gag order was imposed Monday, investigators said they had found no evidence of trauma. "That's what makes this so troubling," Roy Melnick, chief of police in St. Johns, told the New York Times Tuesday.

Experts familiar with parental murders by young children, but not involved in this case, said abuse is almost always a factor in such crimes.

According to FBI statistics, there were 62 cases between 1976 and 2005 in which children, aged 7 or 8 were arrested on murder charges.  Of those, parents were the victims in just two cases. "The number of homicides committed by children under 11 is infinitesimal.  These are very rare events," said Paul Mones, the only lawyer in the country whose clients consist exclusively of children accused of killing their parents.

"The vast majority of parricides -- the murder of a parent -- committed by minors involve physical abuse and generally involve teenagers.  Seventy-five percent of such murders involve boys who kill their fathers and 15 percent involve boys who kill their mothers," said Mones, who has defended hundreds of minors in 25 years of practice, though none younger than 10.

The most recent previous case of an 8-year-old killing his parent occurred in August 1990, when a Pennsylvania boy found his father beating his mother.  The boy repeatedly plunged an 8-inch kitchen knife into the back of his father William Jones, 59.  A coroner's jury cleared the boy in the stabbing after authorities urged a finding of justifiable homicide.

Psychologists said that besides abuse, mental illness or even simple feelings of frustration could set off a child and lead him to kill.  "We don't yet know what was going on in that house, so it is hard to know exactly why this child reacted the way he did," said Naftali Berrill, a forensic psychologist who specializes in juvenile perpetrators.  "Was he molested? Was he being beaten? Did he shoot his father because his father frustrated him, because he wouldn't let him play a video game?" Berrill asked.

Deep thoughts about self-defense

Though NOT required or even suggested reading, students really interested in self defense issues might be intrigued (and likely confused) by this new paper by a law & psychology professor titled, "An Attack on Self-Defense."  Here is the paper's abstract:

Debate about the distinction between justification and excuse in criminal law theory has been lively during the last thirty years. Questions as to the nature and structure of various affirmative defenses continue to be raised, and the doctrine of self-defense has been at the center of much discussion.  Three main articulations have been advanced: a purely objective theory, a purely subjective theory, and an objective/subjective hybrid.  In the present Article, I support a hybrid model and propose a three-requirement framework that delineates the criteria that must be met to satisfy self-defense as a legitimate justification.  Because this three-requirement framework raises the floor of justification, it rejects numerous types of defense-related conduct that may qualify as justifiable by other theories.  I believe that although these related forms of conduct are not necessarily justifiable, they may be excusable.  As such, I outline and discuss a six-tier hierarchy by which self-defense and defense-related instances of reactive violence may be classified according to the degree (complete or partial) to which they are justifiable or excusable. In these ways, I address and attempt to resolve several critical questions about the nature of self-defense that have remained open in the literature.

Any advice or suggestions for President-elect Barack Obama?

Various purported legal experts (myself included) will likely give President-elect Barack Obama advice on various legal topics.  Though 1L students are not quite experts, you have a unique and fresh perspective on legal topics.  Thus, I'd really like to hear what kind of law-related advice or suggestions you might have for President-elect Obama.

Though you should feel free to opine on any legal topic in the comments here, students will earn extra class participation points for any and all thoughtful suggestions that involve criminal law topics OR law school and legal eduction topics.

A message from Tom O'Dudley to his Oliwood lawyers

I was very encouraged to learn today that under Oliwood law I might not have to even face a trial, even though I am an admitted purposeful killer of Richard O'Parker, because you think that I may satisfy the necessity defense as a matter of law.  If this is accurate, I will happily pay a large sum to your law firm if and when you succeed in getting my indictment dismissed as a matter of law.

If we are not successful with a motion to dismiss, I think I would be eager to present both necessity and insanity defenses to the jury.  Especially if our defense team is going to have the burden of proof on these matters, I am fearful that an Oliwood jury will not be convinced beyond a reasonable doubt that I was justified in murdering Richard O'Parker without fairly selecting lots on the lifeboat.  But I do think we may be able to convince a jury that my criminal behavior was excusable because of my temporary insanity driven by extreme hunger and thirst and exposure.

But perhaps I do not fully understand how all this will work at trial, and I would be grateful for more information (or further feedback) through the comments here or in some other form of communication.

A message from Vice-Governor Berman for Oliwood legislators

I just heard from my brother that the Oliwood legislature (finally) passed a new rape provision.  Congrats on the achievement.  Based on the lively legislative debate from the previous session debating various bills, I am confident I will be able to recommend that the Governor sign the new rape provision into law.

I also heard from my brother that the vote in support of the new Oliwood rape provision was not strong enough to overcome a possible executive veto.  Though I doubt the Governor will have reason to veto the bill, I would be eager to hear from anyone unhappy with the legislative outcome (or the intriguing legislative process) to comment on whether they might be inclined to publicly or privately encourage the Governor to veto the bill that was passed earlier today.

The consequence of not passing a new rape provision in Oliwood

I realized after class that there is a status quo rape provision in Oliwood: MPC Section 213.1(1).  With both of the proposed alternatives going down to defeat in Tuesday's legislative session, it would seem that rape is now still defined and governed in Oliwood by the provisions of MPC 213.1(1). 

Because the proposal from the You Betcha party received more votes than any other proposal, I will entertain a motion at the start of Wednesday's class to vote again on that proposal (and I will happily post any revision of that proposal which might be offered in an effort to secure additional votes for passage).  

Absolutely no later than 10:15am, however, Thomas O'Dudley, the captain of the O'Mignonette yacth that recently sunk off Gilligan Bay in the South Oliwood Sea, will be coming to talk to his lawyers about whether he has any defenses to the charge of murder in Oliwood after he was forced to kill Richard O'Parker while trying to survive on a lifeboat onto which he and other sailors were stranded for nearly three weeks this past summer.