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Monday, September 1, 2014

Women, opioids, and Ohio problems with (hidden?) punishment theory at issue

With luck, our class discussion last week of recent Supreme Court cases and AG Eric Holder's speeches provided everyone with perspectives on how punishment theories, both expressly and implicitly, play a role in constitutional jurisprudence and national criminal justice policy conversations.  This weekend, I noticed this recent Toledo Blade editorial, headlined "Women in prison: A big increase in female inmates should prompt changes in how Ohio’s courts deal with addiction," which provides a more localize discussion of some recent criminal justice developments and concerns that implicate punishment theories in various ways.  

I encourage everyone to read the Blade editorial in full to see how, expressly and implicitly, one prominent paper is incorporating punishment theory into its call for reforms focused on a particular demographic.  Here is an excerpt from the editorial (which perhaps can stimulate some discussion of punishment theory or the fairness of a gendered call for reform in the comments):

A stunning rise in the number of women entering Ohio prisons should encourage elected officials to seek better ways of managing the state’s $1.5-billion-a-year prison system.

Driven largely by a growing number of drug-addicted offenders from rural counties, Ohio prisons now hold nearly 4,200 women.  From 2012 to 2013, the number of women coming to state prisons increased by 11 percent, from 2,580 to 2,854 ....  Ohio’s opioid and heroin epidemic is largely to blame for the increase, as more low-level female drug offenders are sent to prison. “That population is very much nonviolent and drug-addicted, often with male co-defendants leading the case,” state prisons Director Gary Mohr said recently.

At the Ohio Reformatory for Women in Marysville, which holds more than 2,600 prisoners, the top three offenses for women entering the prison are drug possession, theft, and trafficking, said public information officer Elizabeth Wright.  Moreover, the statewide share of women prisoners coming from rural counties — those with fewer than 100,000 residents — has nearly doubled in the past decade.  Altogether, Ohio’s 28 prisons hold more than 50,000 inmates.

In an interview with The Blade’s editorial page, a 28-year-old drug offender from Hardin County (population 32,000) said heroin and illicit prescription painkillers are easy to get in her rural community.  As with most other opioid addicts in Ohio, she started using prescription painkillers — in her case, Percocet.  She eventually graduated to heroin because of its lower cost and availability.   “The pills swept me off my feet,” she said at the Ohio Reformatory for Women. “It got to the point where I couldn’t even get out of bed without using a pill. I went straight from Percocet to heroin. Everyone was saying: ‘Why don’t you just do heroin? It’s so much cheaper.’”

Mr. Mohr has prudently called for diverting more low-level drug offenders from prison to community-based treatment programs.  To do that, Ohio will need more adult drug courts. Most counties, including Lucas County, still don’t have a drug court.  The state also needs more community programs to serve as effective alternatives to incarceration.

Ohio’s prosecutors and judges also must get better educated on addiction.  Too many of them still don’t understand that chemical addiction is a compulsive disease, not a moral choice. “A big part of the problem is that a number of people, including judges and prosecutors, see addiction as a state in which people have more control than they actually have,” Orman Hall, the director of Gov. John Kasich’s Opiate Action Team, told The Blade’s editorial page. “Opioid and heroin addiction is a compulsive disorder. In the early stages, people have very little ability not to relapse.”

September 1, 2014 in Crime data, Current Affairs | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 27, 2014

Materials for sentencing role play ... and seeking voluteers to represent the state and the defendants

Below for downloading is a copy of the PreSentencing Report (PSRs) for Rachel Foster and Dan Schayes.  I will also bring a few hard-copy versions for distribution in class on Friday.  

Please use the comments to this post (or send me an e-mail) to volunteer to be prosecutors or defense attorneys in this (fun) exercise.  First-come, first-serve for volunteers for particular positions, and I will assign persons to these roles on

Also available below is a form all judges should use for sentencing Rachel Foster and Dan Schayes (everyone who is not serving as a lawyer in this role play gets to be a judge).  There is no need (or place) to put a name on the form, but I will collect them after our sentencing hearings in class on Wednesday, Sept 3. 

As you will see when you download the form, I wish to encourage judges to develop tentative ideas about what sentence before coming to class to hear the advocates' presentations.  By doing so, judges can get a better sense for whether and how advocacy can have an impact in this kind of setting.

Download 2014 Role Play PSRs

Download 2014 Sentencing Form

UPDATE:  As I mentioned in class on Friday, for purposes of our sentencing role-play exercise on Thursday, both the lawyers and judges of Oliwood should assume that the great state of Oliwood has adopted the first two subsections of US Code, Title 18, Section 3553(a) as a guide for sentencing advocacy and decision-making by Oliwood judges.   (In other words, lawyers and judges should focus on the substantive provisions of 3553(a)(1) and 3553(a)(2), but should not worry about all the subsequent sections of 3553(a).)

August 27, 2014 | Permalink | Comments (6) | TrackBack (0)

Monday, August 25, 2014

Interesting prior posts from prior years discussing theories of punishment

To proidve still more proof that a lot of interesting materials (and interesting student commentary) can be found by mining the archives of this blog, I have mined the archives to provide these links to posts from prior years discussing the theories of punishment we are (too) quickly reviewing this week:

From 2010:

From 2013:

I realize that I have now already provided two links to the same post asking if the US Constitution favors any particular theory of punishment, but that perhaps is a fitting way to help us getting a running start on our coming discussion of Graham v. Florida.  

August 25, 2014 in Class reflections | Permalink | Comments (0) | TrackBack (0)

Friday, August 15, 2014

Welcome to the Moritz, Criminal Law with Berman, and version 5.0 of this class blog

As some of you may already know, I am a big fan of law blogs and I now make a pretty regular habit of use blogs to support and supplement my instruction in law school classes.  Sometimes class blogs serve my purposes and goals well; other times, not so much.  Undaunted, I remain convinced (but not entirely confident) that the blog technology (rather than a propriety law-school-support technology like TWEN) provides the best on-line tool for supporting and supplement law school courses.

I will continue my bloggy ways in the Fall 2014 semester at the Moritz College of Law through this blog to supplement our first-semester 1L small-section Crim Law course.  And, as the version 5.0 label highlights, I have built this "new" blog directly atop the blog I used when teaching this very same course thrice before (in Fall 2008, Fall 2010 and Fall 2013) and when teaching a Comparative Criminal Procedure course (in Summer 2012).  

I am hopeful that some new 1Ls will benefit from (or at least find reassuring) seeing some of the posts (and comments) that were generated in this forum at other times.   Current users might focus especially on the archives from Aug-Dec 2008, Aug-Dec 2010 and Aug-Dec 2013 to see some of the "action" in this class from the last three times I taught it.  

So, welcome to the latest re-launch of this 1L Crim Law blogging adventure. I am always pleased when this blog helps to promote a distinct type of student engagement, and it also provides an effective means for me to share both required and optional materials and ideas.

 

WELCOME! 

 

P.S.:  To provide proof that mining the blog archives can be useful, here are some items from deep in this blog's archives you might already find interesting or useful.  For example, two prior posts and the student comments thereto (one from Aug 2008 and the other from Aug 2010) might be worthwhile as you gear up for our first week of class discussions:

In addition, in the archives from 2008, one can find these links to another of my favorite law blogs providing lots and lots of (old but still timely) advice for incoming 1Ls:

 

 

 

 

 

 

 

 

 

 

 

 

August 15, 2014 in Course materials and schedule | Permalink | Comments (0) | TrackBack (0)

Friday, March 14, 2014

Basketball, baseball, brews and professional bonding in the weeks ahead....

Now that March Madness and baseball's spring training are finally in full swing (and golf season and The Masters are on the horizon), I am likely to be grumpy any and every Thursday and Friday afternoons for the next month if/whenever I am in my Moritz office working rather than over at Eddie's watching sports of some sort.  But I always feel guilty (and lame/lonely) if I go over to EG's alone, and thus I mean through this post to encourage/bribe students to rescue me so I can rationalize a trip out of my office as a form of work/professional bonding with whomever comes and gets me.

As some of you know, I always buy the first round for any/everyone who pulls me out of my Moritz office at a convenient/appropriate time on a Thursday or Friday.  Today, for example, in addition to being Pi Day (3.14), I am especially eager to watch the Big Ten tournament (at least when the Buckeyes are playing; tip at 2:30pm).  

In subsequent weeks, there will be the NCAA Tourney, the official start of baseball season, and then The Masters to distract me from other (more productive?) endeavors.  If (when?) I start feeling guilty about too much afternoon time watching sports, I may have to take back this open invitation for professional bonding; until that time; PLEASE feel free to take advantage of my open-door EGs migration policies.

March 14, 2014 in Advice | Permalink | Comments (0) | TrackBack (0)

Thursday, January 16, 2014

Sincere marijuana reform question: exactly what are DEA officials "scared" of?

The question in the title of this post, which I am now posting to all the blogs in which I now participate, is my sincere reaction to this new Washington Post article headlined "DEA operations chief decries legalization of marijuana at state level."  Here is the context:

The chief of operations at the Drug Enforcement Administration on Wednesday called the legalization of marijuana at the state level “reckless and irresponsible,” warning that the movement to decriminalize the sale of pot in the United States will have severe consequences.

“It scares us,” James L. Capra said, responding to a question from a senator during a hearing focused on drug cultivation in Afghanistan.  “Every part of the world where this has been tried, it has failed time and time again.”

Capra’s comments marked the DEA’s most public and pointed criticism of the movement toward decriminalization in several states, where local officials see it as an opportunity to generate tax revenue and boost tourism....

Capra said agents have watched the early days of legal marijuana sales in Colorado with dismay.  “There are more dispensaries in Denver than there are Starbucks,” he said.  “The idea somehow people in our country have that this is somehow good for us as a nation is wrong.  It’s a bad thing.”

Capra said that senior DEA officials have faced uncomfortable questions from law enforcement partners abroad. During a recent global summit on counter-narcotics in Moscow, he said, he and the head of the DEA were at a loss to explain the loosening drug laws. “Almost everyone looked at us and said: Why are you doing this [while] pointing a finger to us as a source state?” he said. “I don’t have an answer for them.”...

Capra said he worries about the long-term consequences of the national mood on marijuana, which law enforcement experts call a gateway to more dangerous drugs. “This is a bad experiment,” he said.  “It’s going to cost us in terms of social costs.”

Let me begin by saying I respect all those who work in the DEA and other law enforcement agencies dealing with illegal drug issues, and I am certain all those who do this work have much more first-hand knowledge of the myriad harmful social costs of drug use and abuse than I ever will.  But it is for that very reason that I ask this question about exactly what has DEA officials "scared": I sincerely want a much better understanding of what "social costs" of reform are being referenced here so that I can better assess for myself how I think these potential "social costs" of state-level marijuana reform stack up to the existing "social costs" I see due to current pot prohibition laws and norms.

That said, I think I might be able to help DEA officials avoid "being at a loss" to explain loosening drug laws in the US to their international friends in Moscow or elsewhere.  Here is what I suggest DEA officials say: "The United States of American is an exceptional nation that, in President Lincoln's words, was "conceived in Liberty" and its citizens recently have become ever more skeptical about the growth of government's coercive powers and ever more concerned about paying high taxes for government programming perceived to be ineffectual.  Thus, just as the people of America were the first to experiment seriously with a constitutional democracy (which has worked out pretty well), now some of the people of America are eager to experiment seriously with a regime of marijuana regulation rather than blanket prohibition."

This account of why polls show ever greater support for marijuana legalization is my sincere understanding of why so much drug reform activity is going on now in the United States.  The current "Obama era" is defined by a period of relatively tight budgets, relatively low crime, and yet still record-high taxing-and-spending in service to criminal justice programming.  These realities, especially in the wake of the Tea Party movement and other notable libertarian responses to the enormous modern growth of state and federal governments, have more and more Americans thinking we should be open to experimenting with a regime of marijuana legalization and regulation rather than blanket prohibition.

It is quite possible, as the DEA official suggests, that "this is a bad experiment."  But even if it is, the experiment does not "scare" me, in part because I have a hard time fully understanding what potential increased social costs should make me or others truly "scared."  More importantly, I have enormous confidence that, if the social costs of marijuana reform prove to be significant, the American people will realize pot reform is "a bad experiment" and will again change its laws accordingly. Indeed, this is precisely the experiences we have seen with our legal experiments with other drugs throughout American history:

I emphasize these historic examples of American drug experimentation because it is certainly possible to lament the harms produced along the way or the enduring "social costs" of having tobacco and/or alcohol still legal.  But it is also possible to conclude, as I do, that what makes America both great and special — dare I say exceptional — is that we persistently maintained our fundamental commitments to freedom, democratic self-rule and the rule of law throughout these experiments.  Consequently, this modern era's new round of American drug experimentation has me excited and intrigued to watch unfold the next chapter of the American experience, and I am not "scared" by the marijuana reform movement because they it strikes me as a further vindication of our people's fundamental commitments to freedom, democratic self-rule and the rule of law.

But maybe I am just way too high on the idea of American exceptionalism to have a sensible and sober understanding off all the potential harms and "social costs" that are apparently scaring DEA officials. And, as I said above, I readily acknowledge that all those who work on the front lines of the drug war have much more first-hand knowledge of the myriad harmful social costs of drug use and abuse than I ever will.  But, again, that it why the question in the title of this post is sincere: I genuinely and really want to have a much better understanding of what has DEA officials "scared" so that I can sensibly temper my excitement and optimism about modern marijuana reforms.

I fear that responses to this post could become snarky or ad hominen real quickly, but I hope all readers will tap into the spirit of my inquiry and really try to help me understand just what potential social costs of modern marijuana reform could lead those in the know to be "scared" as the quote above suggests. And I am posting this query in all five blogs I work on these days because I am eager to get wide input and as many diverse insights on this question as possible.

January 16, 2014 in Current Affairs | Permalink | Comments (1) | TrackBack (0)

Wednesday, December 18, 2013

Congrats, Crim Law extra credit, and (paid) research break opportunities and topics

Kudos to putting the final exam of the first semester of law school in your rear-view mirror.  Now do whatever you can to forget about exams and enjoy the holiday season with family and friends.

If you have done some of the extra credit tasks (and/or hope to get one last one in), I have two pieces of advice: (1) make sure you send me any not-yet-submitted work ASAP and not later than 5pm on Dec 19, AND (2) before the end of the year, send me an e-mail "reminder" of how many EC documents you completed.  (I think I have good records on who submitted what, but it is valuable to confirm matters, especially if there is some chance a submission ended up in my spam filter.)

Last but not least, I think you are now officially permitted to do paid research for me from now until Jan. 8 when classes start again.  If you are interested in such an opportunity, here are a few tasks that I am eager to have explored over the next few weeks:

1.  Significant lower-court state or federal rulings in the last 3 years in which adult offenders sought a ruling that the Eighth Amendment precluded an extreme prison sentence.

2.  Detailed analysis/summary of the nature and background of the offenders and offenses that have resulted in the 3000+ LWOP sentences discussed in this recent ACLU report.

3.  Significant recent lower-court state or federal rulings in which non-prison sentences imposed on sex offenders were found unconstitutional or unlawful (which special attention to cases in which female sex offenders were bringing the legal challenge).

4.  Any and all lower-court state or federal rulings in which a court justified a lesser or reduced prison sentence at least in part based on the imposition of a significant fine or economic sentence.

If any of these topics interest you, please (a) send me an e-mail indicating your interest in doing research on this topic, and (b) figure out what you need to do to get on my "research payroll," which involves filling out a form with the right person(s) in the Deans' suite of offices.

December 18, 2013 in Starting a career as a lawyer | Permalink | Comments (1) | TrackBack (0)

Friday, December 13, 2013

Relaxation, celebration and reasons to feel lucky Berman Crim Law 2013 is over

If memory serves, I believe 1Ls finish up their second exam today, and I want to encourage everyone to take a deep breath after the exam and enjoy a well-deserved afternoon of relaxation.  No matter how much you feel you need to do to study for your final exam next week, taking at least a few well-earned hours off to recharge your batteries is always a wise and sensible exam-time strategy.

I will be in my office at Moritz after about 3pm this afternoon, and I would be happy and eager to celebrate (and toast) your achievements so far.  In fact, because I have lots of (non-pressing) work to do, I could be readily lured away from my office to cover a round of celebratory drinks just about anytime late Friday afternoon.

Last but not least, and to have a little fun with a Daft Punk lyric, even if you have been up all night 'til the sun, and up all night to study some, you should feel you've gotten lucky that my exam is already over.  That is because, if my exam was still on tap, I would have a really hard time resisting adding a question concerning some of the amazing real-world crim law stories from this week covered on my other blog in these posts:

Especially because I hear some students are eager to pursue the idea of a Cordle-inspired e-book, the first story linked above provides a sad and useful reminder that issues relating to the the appropriate prosecution and punishment for deadly drunk drivers are sure to be timely for many years to come.

December 13, 2013 in Class reflections, Course materials and schedule, Preparing for the final | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 10, 2013

Congrats again on finishing Crim Law version 2013 and keep watching this space...

for announcements about my willingness to continue to accept extra credit submissions (which extends at least until Dec. 18 and maybe longer), and for announcements about possible (poorly paid) research opportunities during the break (which will not start until Dec. 18, at the earliest), and for discussion of whatever other topics might still float my boat.

Thanks again for a wonderful semester (and good luck grabbing all the As in the other exams with the rest of your large section)!

December 10, 2013 in Class reflections, Course materials and schedule | Permalink | Comments (1) | TrackBack (0)

Saturday, December 7, 2013

Final review session at 12 noon on Sunday ... UPDATE: I will now be in closer to 12:30pm or later...

By popular demand, I will come in to Moritz and be in our usual room at noon to go over whatever students want help going over.

UPDATE:  A wife with a bad cold is slowing me down this Sunday morning... I am sick from the OSU game last night, but she is truly sick.  As a result, I probably will not make it in to our usual locale until around 12:30pm or maybe even a bit later.  

Sorry for the slight delay....

December 7, 2013 in Course materials and schedule, Preparing for the final | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 4, 2013

My 2010 Crim law exam and links to some of those which came before

As promised, I am now posting here a copy of the last Crim Law exam I gave (from 2010). 

Download 2010 Crim Law final

And you can get all my other old exam via these prior posts:

If you all get through all (lucky?) seven of these prior exams, I can post a few more.  But remember, this is a marathon, not a sprint!

December 4, 2013 in Preparing for the final | Permalink | Comments (0) | TrackBack (0)

Hypo for wrapping up attempt/conspiracy/complicity discussions

Students interested in thinking  more about attempt liability and related issues should be sure to check out this post (and the toughtful student comments) from the last time I taught the class.  The post lists 20 actions as part of an attempted act of domestic terrorism that I set up this way:

Here 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.  The your man in question is Joe McAngryTechieNerd of Columbus, Ohio, who 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 ....

Especially given more recent events, and also in an effort to bring in some complicity and conspiracy concepts, I thought this simplified ten-step hypo could also provide you with a sense of the modern challenges modern attempt and conspiracy liability seeks to mediate:

Jerry McJihadi and Johnny McJihadi, bothers who both truly believe and has long blogged about the US people being responsible for more many deaths than all terrorists combined, have told all their friends that they are really proud of and impressed by the courage of the Boston bombers and that they wish they could someday have the courage to act so boldly based on their beliefs and convictions. And then they:

1.  E-mail family members saying they plans to go to Boston in early 2014 and does not ever expect to see again

2.  Do internet research on date of Boston Marathon and on homemade explosives

3.  Purchase legally all the supplies needed for making backpack explosives

4.  Rent van, drive to Boston in early March 2014 with supplies, rent room.

5.  Weeks before the 2014 Boston marathon, they take turns canvassing the marathon route using tablet computers to take note and to look at YouTube videos showing where and when the largest crowds are assembled.

6.  In week before marathon, they buy fertilizer/gas/timer and other ingredients for making car bomb to go along with the backpack bombs they are planning to build

7.  Day before marathon, start building homemade backpack bombs inside their rented room and the car bomb inside the rented truck

8.  Early morning of marathon, drive around Boston looking for idea parking spot

9.  Parks van, jump out with backpack bombs and car bomb trigger in hand

10.  Drop backpacks and hide in strategic location to watch timed/triggered explosions

 

LIABILITY QUESTIONS

When do you think, under common law or the MPC, the brothers are guilty of attempted murder?

When do you think the brothers are involved in a conspiracy to commit murder?

 

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?

December 4, 2013 in Course materials and schedule | Permalink | Comments (0) | TrackBack (0)

Sunday, December 1, 2013

Yet another sad case of a (reasonable? unreasonable?) use of deadly force in self defense

With the Michigan case involving Renisha McBride's death now the basis for homicde charges, there is now yet another similarly sad case, now from Georgia, involving a lost person getting shot for showing up on the wrong doorstep.  This local story, headlined "Wandering man with Alzheimer's shot, killed in Walker County," provides these details:

An Ooltewah man who shot and killed what he thought was a middle-of-the-night prowler -- actually a 72-year-old man with advanced Alzheimer's disease -- Wednesday in Walker County, Ga., hasn't been charged but he might be later, authorities said.

The slain man, Ronald Westbrook, had walked about 3 miles to the shooting scene from his home on Carlock Circle, Sheriff Steve Wilson said at a Wednesday afternoon news conference. When Westbrook was shot, he was clutching letters he had taken from a mailbox on Marbletop Road, where he had lived previously, the sheriff said. A deputy had stopped and questioned Westbrook at about 2:30 a.m. at the mailbox, Wilson said, but Westbrook said he was getting his mail and lived up the hill.

Westbrook then rang the doorbell and turned the doorknob of a home at 188 Cottage Crest Court at 3:54 a.m., awakening Joe Hendrix, 34, of Ooltewah, and his fiancee. They had rented the home in the new subdivision about two weeks ago, next-door neighbor Brandi Wallace said.

Wilson said Westbrook was lost, confused and possibly exhausted. He had wandered for about four hours in the night with his two dogs, wearing a light jacket and straw hat as the wind-chill temperature hovered around 20 degrees. "This one house at the end of the cul-de-sac had a porch light on," Wilson said. "I tend to think [Westbrook] was drawn to that light."

Hendrix's fiancee, whose name Wilson declined to give, called 911 and stayed on the phone with an emergency dispatcher who sent two sheriff's office patrol cars en route. After a nine- to 10-minute wait -- and before deputies arrived -- Hendrix went outside armed with a .40-caliber handgun and saw the elderly man in silhouette behind the house, the sheriff said....

"[Hendrix] gave several what he described as verbal commands," Wilson said. "[Westbrook] continued walking toward him after he told him to stop." Westbrook was slow to talk, Wilson said, because of his advanced Alzheimer's disease. Fearing for his safety, Hendrix fired four shots, the sheriff said. One bullet hit Westbrook in the chest, killing him....

No charges were filed Wednesday against Hendrix, who drove himself away from the shooting scene around 10:30 a.m. as investigators were wrapping up their evidence gathering. Hendrix and his fiancee were fully cooperative, Wilson said. "Both [their] stories matched completely," the sheriff said.

However, Wilson said that Lookout Mountain Judicial Circuit District Attorney Herbert "Buzz" Franklin, whom Wilson called to the shooting scene, might bring charges after reviewing all the evidence. The Georgia Bureau of Investigation helped the sheriff's department on-scene with its investigation. "We reserve our options and rights to file charges once the investigation is complete, if we feel like Georgia law warrants charges being filed," Wilson said.

Georgia's 2006 "stand-your-ground" law that allows people to use deadly force to protect themselves "may apply to this case," Wilson said.

The dispatcher who stayed on the phone with Hendrix's fiancee wasn't aware Hendrix went outside the house with a handgun, the sheriff said. "In my personal opinion, I believe that he should have stayed inside the house," Wilson said. "Did he violate any laws by exiting the house? No."

December 1, 2013 in Notable real cases | Permalink | Comments (5) | TrackBack (0)

Sunday, November 24, 2013

Notable discussion of the death penalty in Ohio

I have mentioned my willingness to discuss the death penalty in an extra optional session, and I am happy/eager to do so next week right after our classes and/or just about any other time next week or throughout December.  (Perhaps talking about executions might give you some healthy perspective on how relatively unimportant exam performance is in the grand scheme of things.)

The story of the death penalty in Ohio is especially interesting and dynamic, and could (but need not be) a focal point of any of our discussions.  And if this topic especially interests you, I recommend this new article from the Toledo Blade, which is headlined "Death penalty cases ebb in Lucas County and Ohio: Decline tied to more flexibility in sentencing." Here are a few excerpts:

When John Winfield was sentenced to life in prison last month for the robbery and shooting death of Toledoan Mark Ward in 2011, Lucas County’s last active capital murder case was closed. In what may be the first time since the death penalty was reinstated in Ohio in 1981, no such cases are pending before the court.  Not a single person was indicted in Lucas County on capital charges this year or last.

It’s a situation that reflects a statewide trend toward fewer death penalty prosecutions. Ohio Supreme Court records show that just nine individuals were indicted in the state on capital murder charges through July, and just 36 for all of last year.  That compares to 159 indictments in 1983, 109 in 1993, and 95 in 2003.

A key reason for the decline is that since 2005, judges have had the option of sentencing those convicted of aggravated murder to life in prison without the possibility of parole....

A 20-member task force appointed by Ohio Chief Justice Maureen O’Connor expects to make recommendations to the state’s top court for possible changes to the death penalty by March, said Lucas County Common Pleas Judge Linda Jennings, the only local member of the group.  “We’re looking at every single issue to make sure that the death penalty is administered fairly,” Judge Jennings said.

I am also a member of the task force appointed by Chief Justice O’Connor, and I could talk about the work of the task force or any other topics of interest to folks.

I urge anyone eager to have a special (entirely optional) session to talk about any death penalty topic to note their interest in the comments and perhaps suggest an ideal time for such a session.

November 24, 2013 in Current Affairs | Permalink | Comments (4) | TrackBack (0)

Saturday, November 23, 2013

"Duty to retreat is a safeguard"

The title of this post is the headline given to this letter to the editor in our own Columbus Dispatch authored by John Gilchrist, the legislative counsel to the Ohio Association of Chiefs of Police.  The whole letter is worth a read, and it starts and ends this way:

The Ohio Association of Chiefs of Police is opposed to the “stand your ground” provision of House Bill 203, which repeals a person's duty to attempt to retreat from danger, if possible, before resorting to deadly force against an attacker.  There is no problem with the current law.  Current law balances societal interests.  There are strong public policies for preserving the sanctity of life on one hand and, on the other hand, for allowing one to protect himself from harm....

[R]epealing the duty to retreat is a recipe for more violence, whereby killings currently considered to be criminal will become justifiable homicides.

Remove the duty to retreat and you remove a legal restraint that will allow pride, passion and ego to prevail over common sense.

November 23, 2013 in Current Affairs, Reflections on class readings | Permalink | Comments (8) | TrackBack (0)

Friday, November 22, 2013

"The Case of the Speluncean Explorers" ... as it might be resolved in Ohio

I hope everyone enjoyed Wednesday's role play experience and also learned a lot about the operation of duress and necessity doctrines in Oliwood under the (unique) terms and structure used by the Model Penal Code.  We will be wrapping up discussion of these doctrine in our remaining classes before the Thanksgiving break, but we will not be talking any more about Dudley & Stephens.  Fortunately, if folks remain engaged by the legal and/or philosophical issues raised by the Dudley & Stephens case, there are lots of wonderful additional readings I can recommend.

A "classic" law professor engagement with the issues raised in Dudley & Stephens appeared in a Harvard Law Review article published 65 years ago.  The Case of the Speluncean Explorers by Lon Fuller is one of the most famous law review articles ever written, and the start of this Wikipedia article highlights why it is worth your time and attention:

It largely takes the form of five separate judicial opinions attributed to judges sitting on the fictitious Supreme Court of Newgarth in the year 4300. The hypothetical involves five cave explorers who are caved in following a landslide. They learn via intermittent radio contact that they are likely to starve to death by the time they can be rescued. The cavers subsequently decide to kill and eat one of their number in order to survive. After the four survivors are rescued, they are indicted for the murder of the fifth member. The prescribed penalty is capital punishment. Fuller's article proceeds to examine the case from the perspectives of five different legal principles, with widely varying conclusions as to whether or not the spelunkers should be found guilty and thereby face the death penalty under the law of Newgarth.

Fuller's account has been described as "a classic in jurisprudence" and "a microcosm of [the 20th] century's debates" in legal philosophy, as it allowed a contrast to be drawn between different judicial approaches to resolving controversies of law, including natural law and legal positivism.

Joyfully, for a wonderful, shorter and more recent consideration of these issues, one member of the class had the great initiative to imagine how a modern-day case of this nature might get resolved in Ohio. That student has graciously allowed me to post her analysis, and here is how she sets up the factual context:

Let's imagine a scenario in which four avid hikers, all associated with Ohio’s State Parks, decide to go for a winter hike at Serpent Mound, located in idyllic Adams County, Ohio. The group consists of Hatlen Books, a veteran tour guide, Dursley Dudley and Richard Stephens, members of the Ohio State Parks administration, and Peter Parker, a trainee guide, though noted as a talented climber.  The hike was predicted to be an easy one and take no more than a few hours to complete; it was more-so an excursion to view the aforementioned idyllic landscape.  The hikers deviated from the path because of an intense and unpredicted snowstorm that caught the band off-guard and limited their ability to navigate.  The band happened upon a previously unknown sinkhole that had formed sometime after the last ranger appraisal of the land (which has been some-time ago with state budget cuts).  The group was stranded on a rocky, but stable, covered corner of the hole with only snow for hydration and a 2lb bag of vegan trail mix Stephens brought on the trip.  Despite the group’s reluctance to eat vegan, they subsisted off the mix and an unlucky rabbit for 18 days.

Download Prosecuting Dudley & Stevens in Ohio

November 22, 2013 in Class reflections, Course materials and schedule | Permalink | Comments (0) | TrackBack (0)

Sunday, November 17, 2013

Renisha, race and reasonableness: wrapping up defensive use of force and defense strategies

As noted in the comments to prior posts, on Friday local Michigan prosecutors announced criminal charged against Theodore Paul Wafer for causing the death of Renisha McBride.  This lengthy new AP story, astutely headlined "Renisha McBride Shooting: Homeowner's Legal Case Could Hinge On One Word," provides a reasonable account of how standards and judgments about reasonableness will be at the heart of this case:

The way Renisha Marie McBride's young life ended Nov. 2 is not in dispute: A homeowner in suburban Detroit fatally shot the 19-year-old in the face as she stood on his porch before the sun came up. Almost every other aspect of the case is not as clear-cut.

Did race play a role in the shooting? What exactly happened on that doorstep? Did the homeowner reasonably believe he was acting in self-defense?

Police and prosecutors say Theodore Paul Wafer fired once with a 12-gauge shotgun through his screen door at McBride. The 54-year-old airport maintenance employee, who faces murder and manslaughter charges, is free on bail awaiting a Dec. 18 hearing that will determine if the case should go to trial.

Ron Bretz, a Cooley Law School professor and former criminal defense attorney, says the case may boil down to a single word. "It's got to be reasonable," he said. "The question is: What would a reasonable person do in these circumstances?" That may be the key question in determining Wafer's guilt or innocence, but much else is left unknown about a case that features legal and societal implications.

Under a 2006 Michigan self-defense law, a homeowner has the right to use force during a break-in. Otherwise, a person must show that his or her life was in danger.

Defense lawyers are expected to argue that Wafer feared for his life when a drunken McBride — toxicology reports put her blood-alcohol content at well above the legal limit for driving — came to his door in the middle of the night hours after crashing her car blocks away in Detroit. Those factors contribute to Wafer's "very strong defense," said his lawyer, Mack Carpenter.

Prosecutors and McBride's family, meanwhile, see no justification for the slaying of the recent high school graduate. She was unarmed, they note. Plus, the screen door Wafer fired through was locked. "Where's his reasonable belief that his life was in jeopardy or that he was in jeopardy of great bodily harm?" said lawyer Gerald Thurswell, who represents McBride's family.

It all comes down to what a jury thinks, Bretz said. "You've got a gun. There's an unarmed young woman on your front porch," he said. "Is it reasonable to think that she's a threat to you? That's going to be a toughie. "Is it fair to feel scared when a stranger is pounding on your door at 4 or 5 in the morning? Hell, yeah. ... Don't answer the door," Bretz said....

Bretz said both sides would be wise to stick to a "race-neutral" strategy. "Don't go there. Keep it on the facts," he said. "Who wants to bring race into it? Everybody else. ... The defense doesn't want that. And the prosecution doesn't want to bring it in. I don't think they need to."

Wayne County Prosecutor Kym Worthy didn't appear to completely rule it out Friday. "In this case, the charging decision has nothing whatever to do with the race of the parties," she said. "Whether it becomes relevant later on in the case, I don't know. I'm not clairvoyant."...

Bretz said a potential defense argument is that McBride's extreme drunkenness posed a threat. "Was she acting crazy? If so ... this gave (Wafer) a greater right to be afraid," Bretz said.

The toxicology report also indicated McBride's blood tested positive for the active ingredients in marijuana. McBride's family said it doesn't matter, but Bretz said he could see the defense focusing attention on McBride's behavior. "It makes her out not to be an angel. She got drunk and stoned and drove and crashed her car. But that's not a death-penalty offense," he said.

McBride's father, Walter Ray Simmons, referred to the defendant as "Mr. Wafer" when he talked to reporters Friday. He then stopped: "I don't even know why I'm saying 'Mr. Wafer.' This monster who killed my daughter."

Earlier Friday, at his arraignment, Wafer stood in a Dearborn Heights courtroom and listened as Carpenter argued for a lesser bail amount. Carpenter described Wafer as a steadily employed high school graduate who spent a year at Northern Michigan University and whose only run-ins with the law involved a couple of decades-old drunken driving cases. Wafer cares for his 81-year-old mother, Carpenter said.

Fellow defense lawyer Cheryl Carpenter said her client has been affected by the case. "You could see it is weighing on him, and he realizes the extent of what happened that night," she said outside of court. "This is part of the problem with this case. There's been so much prejudgment and so much speculation," Cheryl Carpenter said. "Until we get all the facts out, and we don't even have all of the facts yet."

In addition to encouraging comments about the charges brought in this high-profile case, I suggest students think about what additional "facts" the defense team may be especially eager to get out. (I put "facts" in quotes here because of I think/fear/expect all future "facts" we learn to be interpretations/perceptions as much as pure facts.)  I especially encourage students to consider what "facts" learned by the defense team might lead Wafer's lawyers to consider encouraging Wafer to plead guilty rather than assert his innocence at a trial.

Right away from reading this story, I want to know a lot more about the type of "locked screen door" that Wafer shot through.  I also want to know more about what other door was in the entrance way and the configuration of the porch.  I also want to know when and from where Wafer accessed his shotgun and whether it had already been loaded.  I am not at all sure these "facts" are likely to help the defense's case, but they certainly seem key parts of figuring out whether a jury is likely or unlikely to view Wafer's behavior as reasonable. 

November 17, 2013 in Notable real cases | Permalink | Comments (4) | TrackBack (0)

Thursday, November 14, 2013

All the raw scores and data analysis from mid-terms in one spreadsheet

Thanks to the wonderful and efficient and spreadsheet savvy Mrs. Berman, I can now post (two days before promised) all the raws scores and other metrics following my review of all your mid-term efforts.  You should give all thanks to my better half for helping me make this information available ASAP in this form, you should give all curses and questions to me about the substantive or procedural particulars.

Download Berman Criminal Law mid-term metrics

November 14, 2013 in Course materials and schedule, Preparing for the final | Permalink | Comments (3) | TrackBack (0)

Monday, November 11, 2013

Sad example from Michigan of an honest but UNreasonable use of deadly force?

As we wrap up our discussion of self-defense doctrines this week, we will give particular attention to how the MPC and Ohio deal with uses of deadly force when a defendant may have honestly but unreasonably believed force was needed for self defense.  Sadly, there is a new case from Michigan involving the death of a young woman that provides a set of (still unclear) facts that may allow us to probe effectively modern doctrines and policy debates.  This USA Today article from last week, headlined "Family wants answers in shooting of woman seeking help," provides these sad details:

Police say a homeowner told investigators his shotgun accidentally discharged, shooting a 19-year-old Detroit woman to death as she stood on the porch of his home early Saturday.

Members of 19-year-old Renisha McBride's family said they believe the African-American woman was racially profiled by the homeowner.  They said McBride, whose cellphone had died, had gone up to the house on Outer Drive seeking help after she was involved in an auto accident early Saturday morning.

"This man's claiming — believed the girl was breaking into the home. And he's also saying the gun discharged accidentally," Lt. James Serwatowski, chief detective, said Thursday.

Police are also countering the family's account that McBride was shot in the back of the head with a shotgun as she turned to leave.  The family said she had gone to the house seeking help after being involved in a car accident several blocks away. "This girl was not shot in the back of the head while leaving the porch," Serwatowski said "I don't know where the family is getting this.  She was shot in the front of the face, near the mouth."

"I know the family is anxious to see this man (the alleged shooter) charged, but the prosecutor's office is telling us they want a lot more information before they make a decision," Serwatowski said.

The Wayne County Prosecutor's Office reiterated Thursday that it is awaiting further investigation by Dearborn Heights police before deciding whether any criminal charges will be authorized in the case.   "I'll confirm that she was in an accident in Detroit and that she left the accident scene, and then some hours transpired" before the shooting, Serwatowski said.

Serwatowski said the shooting occurred about 3:40 a.m. and the accident happened at about 1:30 a.m.  He declined to say what police believe McBride was doing before and after the accident. The homeowner's .12-gauge was seized by police and the Michigan State Police crime lab is analyzing it, Serwatowski said....

"Black life is not valued in America, not worthy, not respected," said Detroit activist Yusef Shaker.... "Here was a woman who was seeking help from potential danger and her life was taken. ... It's a Trayvon Martin case all over again."

"Why didn't he call 911?" asked Bernita Spinks, 48, an aunt of McBride. "That's what I want to know. ... It's racial profiling." In McBride's case, Spinks said: "He could have called the police. She wasn't in the backyard. She was at the front door knocking ... that man had the time to look out his window."

McBride's family said they were told the house was about four blocks away from where the accident occurred. Spinks said McBride had been driving her 2001 white Ford Taurus when she struck another car, parked and walked to find help. "She was disoriented. She was scared. And this is what she got, knocking on a door," Spinks said. "All I want is justice for Renisha. It makes me enraged." The area where the shooting took place is a mix of residential and business.

Grieving family members gathered Wednesday night at the house in northwest Detroit where McBride lived with her grandmother, mother and her 22-year-old sister. Her parents were overcome with grief and unable to speak to a reporter, Spinks said.  But all shared outrage over what happened.

A graduate of Southfield High School, McBride was known as a friendly person who worked hard, Spinks said. McBride recently got a job at the Ford Rouge plant in Dearborn on the inspection line, she said. "She was sweet," Spinks said. "She didn't get into trouble."

In part because of the suggestion that the shooting here was accidental, this case may end up being more about whether and what degree of homicide may be in play as much as it is about use of defense force. But, for class discussion purposes, I plan to try to work through how Ohio and the MPC would handle this case if the shooter/potential-defendant were to readily admit that he purposely shot through the door because he honestly believed that his life was threatened by the noises he heard on the porch in the middle of the night.

To the extent folks are eager to discuss this case before we get to class on Wednesday, perhaps we can/should start by debating in this space some questions that I already have:

1. Why has this case not (yet?) received media attention anywhere comparable to what happened in the Trayvon Martin shooting?

2. Should local prosecutors convene a grand jury to investigate this shooting rather than just rely on the police investigation?

3. Does this kind of cases make you more or less comfortable with the traditional "castle doctrine" which provides that there is never a duty to retreat before using deadly force when one is in his own home?

November 11, 2013 in Class reflections, Course materials and schedule, Notable real cases | Permalink | Comments (9) | TrackBack (0)

Readings on veterans and some modern criminal justice issues

Especially because the College of Law is taking the day off to celebrate Veterans Day, I thought it appropriate to urge students to check out two new posts of mine on other blogs discussing the challenges many vets face thanks to our modern criminal justice system:

November 11, 2013 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 5, 2013

A fascinating judicial fight over federal rape provision's mens rea requirements

Though I want to put our rape discussion in the rear-view mirror so we can turn fully to defenses, a remarkable (and very lengthy) ruling by the full Eighth Circuit today in United States v. Bruguier, No. 11-3634 (8th Cir. Nov. 5, 2013) (available here), all but demands posting because it covers issues we have discussed throughout the semester.   Here is the unofficial summary of the 49-page ruling:

In order to establish a violation of 18 U.S.C. Sec. 2242(2), the government must show not only that the victim was incapacitated but that the defendant knew the victim was incapable of appraising the nature of the conduct or physically incapable of declining participation in or communicating unwillingness to engage in the sexual act; here the failure to give defendant's proposed instruction on this element deprived him of his defense that he did not know the victim was incapacitated or otherwise unable to deny consent; as a result, defendant's conviction under section 2242(2) must be reversed and the case remanded for a new trial.... Riley, Chief Judge, with Bright, Circuit Judge, concurring. Murphy,with Bye, Colloton, Gruender and Benton, Circuit Judges, dissenting.

Here is the rape provision of federal law that has the Eighth Circuit fighting over what mens rea is required for conviction:

Whoever, in the special maritime and territorial jurisdiction of the United States . . . knowingly— . . .

(2) engages in a sexual act with another person if that other person is—

    (A) incapable of appraising the nature of the conduct; or

    (B) physically incapable of declining participation in, or communicating unwillingness to engage in, that sexual act;

or attempts to do so, shall be fined under this title and imprisoned for any term of years or for life. § 2242.

I neither urge or expect students to read this whole ruling.  But the three distinct opinions are truly fascinating, and I hope they make a lot more sense to you than they would have just 3 months ago before being in our class.

November 5, 2013 in Class reflections, Notable real cases | Permalink | Comments (5) | TrackBack (0)

Monday, November 4, 2013

Clarifying readings/plans for covering self-defense

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).

I just noticed a typo in the syllabus, and I want to make extra sure we are all "on the same page" for our self-defense discussions in the next few classes.  So:

1.  For WEDNESDAY's class, be sure to read (and re-read) La Voie and especially Leidholm very carefully.  In addition, 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).)  Hard-core socratic fun will be had by all, so read accordingly!

2.   For FRIDAY's class, be sure to read (in addition to re-reading La Voie and Leidholm and Thomas) the case of US v. Peterson, 483 F.2d 1222 (D.C. Cir. 1973).  I will pass out an edited version of Peterson in class on Wedensday, but everyone should feel free (but not required) to read the original in full.

November 4, 2013 in Course materials and schedule | Permalink | Comments (0) | TrackBack (0)

Seeking (informed or uninformed) thoughts on upper-level criminal courses at Moritz

As we shift in to the final weeks our time together, I am eager to hear thoughts from 1L students about what upper-level courses in the criminal law and procedure arena might be of interest to you. 

As you may know (and may be very glad to hear), you are not required to take any more criminal law courses after our class together.  Because I think it wise and useful to give law students considerable freedom to create their own professional paths ASAP, I am glad no additional criminal law coverage is required at Moritz for graduation.  (I believe there are at least a few law schools that require a basic course in criminal procedure as well as a course in the basics of substantive criminal law.)  That said, because I think it wise and useful to give law students considerable freedom to create their own professional paths, I am eager to try to ensure that the Moritz upper-level curriculum includes a broad array of criminal courses that might be of interest and/or useful to students.

There are two upper-level criminal procedures courses that will always get offered every year at Moritz, in part because they are important and valuable course even for law students largely disinterested in ever practicing criminal law: the CP-Investigations course covers police practices/constitutional privacy issues; the CP-Adjudication course covers prosecutorial practices/trial rights.  But what else gets offered often depends on the interests and availability of the Moritz crim law faculty (e.g., when I first came to Moritz, I used to teach sentencing and/or death penalty courses or seminars every year, but more recently I have been more regularly teaching various skills courses and/or developing "hot topics" seminars on matters like the Second Amendment and marijuana laws and reforms).

Believe it or not, it is almost time for the faculty to start indicating what courses they would like to teach next year.  Thus this post, as I am distinctly interested in hearing from you all (and lots of others) concerning what kinds of criminal law, procedure and policy issues you may not be eager to study further in the years ahead.  There are soooooo many issues that merit in-depth study --- including ones other Moritz faculty know especially well ranging from white-collar crime to race and the criminal law to theories/doctrines of defenses to the war on drugs to all sort of other stuff I just barely get a chance to mention in class --- and I have been wondering this morning if folks in our class have started developing a real sense of what criminal topics have really come to pique your interests.

November 4, 2013 in Class reflections | Permalink | Comments (5) | TrackBack (0)

Friday, November 1, 2013

Oliwood rape reform proposals from four drafting subcommittees

At the risk of losing something in translation or formatting, I am going to post here, in alphabetical order (which is also the order for presentation), the four subcomittee proposals for revising/reforming Oliwood's rape provisions.  (I urge everyone to put any needed corrections/clarifications/concerns in the comments AND I suggest each group consider bringing hard-copy versions of their proposals to our legislative session this afternoon to aid full committee review and consideration.)

BORR subcommittee proposal

1. Rape is the penetration of the vagina or anus with any body part or object; or
2. Oral penetration by a sex organ of another person.
3. Proof of the victim’s consent immediately prior to penetration is a defense; evidence for consent that the jury may consider includes but is not limited to:
    a) prior relationship;
    b) prior communication;
    c) third party witnesses.

 

CORR subcommittee proposal

1. Aggravated rape: A person is guilty of aggravated rape, a felony in the first degree, when he or she knowingly: sexually penetrates another person absent consent and uses actual force or threat of force.  First time offenders face a minimum of ten years with a maximum of twenty-five years. Second time offenders face life without the possibility of parole.

 2. RapeA person is guilty of rape, a felony in the second degree, when he or she recklessly sexually penetrates another person absent consent. a. A person is guilty of rape, a felony in the third degree, when he or she sexually penetrates the victim under the guise of consent due to intoxication.  A person guilty of second or third degree rape faces a minimum of five years with a maximum of fifteen years.

 3. Sexual AssaultA person is guilty of sexual assault, a misdemeanor, when he or she engages in unwanted sexual contact with another person.  A person guilty of sexual assault faces a minimum of six months to one year in jail and a $5,000 fine.

 Definitions

1.  Sexual penetration: means sexual intercourse, cunnilingus, fellatio, analingus, or anal intercourse. Emission need not be proved as an element of any sexual penetration. Any penetration, however slight, is sufficient to complete the crime.

2.  Consent: Consent" means cooperation in act or attitude pursuant to an exercise of free will and with knowledge of the nature of the act. A current or previous relationship shall not be sufficient to constitute consent under the provisions of this part 4. Submission under the influence of fear shall not constitute consent. Nothing in this definition shall be construed to affect the admissibility of evidence or the burden of proof in regard to the issue of consent under this part 4.

3.  Sexual contact: sexual touching without penetration


FORR subcommittee proposal

§213.0 Definitions: “Sexual Conduct” means intercourse between two persons or anal intercourse, fellatio and cunnilingus between persons regardless of sex and the insertion, however slight, of any part of body or instrument into a vaginal or anal opening.

 §213.1 Rape and Related Offenses

(A)1. Aggravated Rape. No person shall engage in sexual conduct when:  (a) perpetrator compels the person to submit by force or by threat of imminent death, serious bodily injury, extreme pain or kidnapping, to be inflicted on anyone; or (b) perpetrator has removed the person’s power to appraise or control the person’s conduct by administering or employing without the person’s knowledge drugs, intoxicants or other means for the purpose of preventing resistance; or (c) the person is unconscious and this is known to the perpetrator; or (d) the person is ten years or younger. Lack of knowledge of age is not a defense.  An offense under paragraph 1 would constitute a sentence no less than 15 years.

 2. Rape. No person shall engage in sexual conduct when: (a) the other person’s ability to resist or consent is substantially impaired because of a mental or physical condition or because of advanced age, and the offender knows or has reasonable cause to believe that the other person’s ability to resist or consent is substantially impaired because of a mental or physical condition or because of advanced age or  (b) a person is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused.  (c) the person is sixteen years or younger and the perpetrator should have reasonably known. When criminality depends on the child's being below a critical age other than 10, it is a defense for the actor to prove by a preponderance of the evidence that he reasonably believed the child to be above the critical age.  (d) the person does not express consent and the perpetrator acts recklessly in regard to determining whether consent has been given. Consent may be verbal or communicated through actions calculated to indicate consent in the mind of a reasonable person.  An offense under paragraph 2 would constitute a sentence no less than 10 years.

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

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

(D) Evidence of specific instances of the defendant's sexual activity, opinion evidence of the defendant's sexual activity, and reputation evidence of the defendant's sexual activity shall not be admitted under this section unless it involves evidence of the origin of semen, pregnancy, or disease, the defendant's past sexual activity with the victim, or is admissible against the defendant under section  §213.1, and only to the extent that the court finds that the evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value.

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

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

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

 

MORR subcommittee proposal

§213.1 Aggravated Rape:  (A) Whoever violates this section is guilty of aggravated rape, a felony of the first degree.  

(B) (1) No person shall engage in sexual conduct with another when any of the following applies: (a) The other person is less than thirteen years of age, whether or not the offender knows the age of the other person, provided the offender is over eighteen years of age, whether or not the offender knew or should have the age of the person. (b) the offender purposefully exploits or induces the person’s state of unconsciousness or other condition that prevents them from giving their free consent;  (c) the offender knowingly exploits the fact that the person is mentally ill or deficient, if –because of their illness or mental deficiency–their consent to intercourse did not constitute free consent.  (2) No person shall engage in sexual conduct with another when the offender purposely or knowingly  compels the other person to submit by force or threat of force.

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

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

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

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

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

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

(H) If any offense provided for in §213.2 results in substantial bodily harm or death to the victim, it shall constitute aggravated rape.

(I) If one is charged with an offense provided for in §213.2 and has previously been convicted of a charge in §213.2 the current offense will be treated as aggravated rape pursuant to §213.1.

(J) If any offense provided for in §213.2 is committed by multiple persons in cooperation the offense may be treated as aggravated rape pursuant to §213.1.

§213.2 - Rape - Oliwood

(A) Whoever violates this section is guilty of rape.

(B) No person shall knowingly engage in sexual conduct with another, when any of the following apply: (1) the other person does not express or imply consent.  (2) the offender exploits or induces the person’s state of unconsciousness or other condition that prevents them from giving their free consent; (3) The offender is the other person's natural or adoptive parent, or a stepparent, or guardian, custodian, or person in loco parentis of the other person who is under the age of consent.

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

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

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

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

(F) It is not an affirmative defense to a charge under division (B)(1) of this section that the offender and the victim were married or were cohabiting at the time of the commission of the offense.

November 1, 2013 in Course materials and schedule | Permalink | Comments (0) | TrackBack (0)

Thursday, October 31, 2013

"Rape acquittals spur calls for law change: Nelson Bernard Clifford has been cleared by four juries since 2011"

The title of this post is the headline of this notable Baltimore Sun article which gets to the heart of some of the issues we have been reviewing this week.  Here are excerpts:

A string of acquittals for a man accused of raping several Baltimore women has renewed a debate over whether the law should be changed to help prosecutors secure sex offense convictions.

Nelson Bernard Clifford, 35, has been cleared in four trials in Baltimore City Circuit Court since 2011. Each time his accusers have testified, but Clifford has said in court that all his encounters were consensual.

Prosecutors have attempted in various ways to show juries a pattern, but have been stymied by city judges, who have rejected attempts by prosecutors to join separate cases together, or to call witnesses to testify about assaults other than the one being tried. State law protects defendants from having to face evidence about their character or any previous crimes in which they were implicated.

Congress changed the federal rules for rape cases two decades ago in an attempt to make it easier to secure convictions. Several states have followed suit. Maryland is not among them.

Marilyn Mosby, who plans to challenge Baltimore State's Attorney Gregg L. Bernstein in next year's Democratic primary, has raised the Clifford cases as an issue. She said Tuesday morning that there is a "glaring need" for the General Assembly to change the rules. "Once a jury is blocked from hearing about somebody like Clifford's past convictions, people like him are free to claim that the sexual assault was consensual, which significantly diminishes the prosecutorial impact of DNA evidence," Mosby said.

A spokesman for the state's attorney said Bernstein would support a change in the law. Spokesman Mark Cheshire pointed out that in the most recent case against Clifford, prosecutors sought to tell jurors about other allegations against him. Prosecutors attempted to discuss eight other incidents in which they say Clifford broke into a home and sexually assaulted a woman, according to court filings. They wrote that the evidence would show Clifford had a plan that he executed repeatedly. "Under the existing evidentiary rules other criminal evidence is admissible in certain circumstances," Cheshire said. "We believe other crime evidence was admissible in the Clifford case but we were ultimately denied."...

Russell A. Neverdon Sr., a private defense attorney who also has said he plans to run against Bernstein, said the existing rules, which allow other allegations to be raised under limited circumstances, are sufficient. "As a prosecutor you have an arsenal that's already there," Neverdon said. "You've just got to make sure it's a solid argument."

But Lisae C. Jordan, the executive director of Maryland Coalition Against Sexual Assault, said Maryland's judges err on the side of protecting defendants. She said they do not give rape victims a fair chance at winning justice in the courts. "It's all a question of balance, and unfortunately, right now we don't have balance at all," Jordan said. "We completely favor the defendant."

Congress rewrote the federal rules on evidence in rape cases in 1994, over the objections of judges and defense attorneys. The General Assembly has considered several bills that would make it easier to introduce evidence of other attacks in sexual abuse cases, but only those in which the victim was a child. None have passed.

State Sen. Lisa A. Gladden, the vice chairwoman of the Senate Judicial Proceedings Committee, said that the legislature should not make changes to the rules on the basis of a single "bad case." The Baltimore Democrat, who is a defense attorney, warned that such changes could spill over into other types of offenses and undermine defendants' rights. "I don't like messing around with the rules of evidence," Gladden said. "If you can't get a conviction, fix your case."

October 31, 2013 in Class reflections, Course materials and schedule, Notable real cases | Permalink | Comments (1) | TrackBack (0)