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October 29, 2017

A couple of notable "castle doctrine" tweaks for Ohio's approach to self-defense

We will review this week the theoretical justifications and doctrinal nuances of the "duty to retreat" before using deadly force in self defense, as well as the so-called "castle doctrine" exception to the duty to retreat.  These refinements on self defense can get intricate and complicated both at common law and under the modern MPC formula.  As the Thomas case highlights, Ohio generally relies on a common-law approach to self defense (and other defense), but the Ohio General Assembly in 2008 decided to enact these (important?) statutory nuances to the application of self defense in "castle" situations:

2901.09 No duty to retreat in residence or vehicle.

(A) As used in this section, "residence" and "vehicle" have the same meanings as in section 2901.05 of the Revised Code.

(B) For purposes of any section of the Revised Code that sets forth a criminal offense, a person who lawfully is in that person's residence has no duty to retreat before using force in self-defense, defense of another, or defense of that person's residence, and a person who lawfully is an occupant of that person's vehicle or who lawfully is an occupant in a vehicle owned by an immediate family member of the person has no duty to retreat before using force in self-defense or defense of another.

2901.05 Burden of proof - reasonable doubt - self-defense....

(B) (1) Subject to division (B)(2) of this section, a person is presumed to have acted in self defense or defense of another when using defensive force that is intended or likely to cause death or great bodily harm to another if the person against whom the defensive force is used is in the process of unlawfully and without privilege to do so entering, or has unlawfully and without privilege to do so entered, the residence or vehicle occupied by the person using the defensive force.

(2) (a) The presumption set forth in division (B)(1) of this section does not apply if the person against whom the defensive force is used has a right to be in, or is a lawful resident of, the residence or vehicle.

(b) The presumption set forth in division (B)(1) of this section does not apply if the person who uses the defensive force uses it while in a residence or vehicle and the person is unlawfully, and without privilege to be, in that residence or vehicle.

(3) The presumption set forth in division (B)(1) of this section is a rebuttable presumption and may be rebutted by a preponderance of the evidence....

(D) As used in this section.... "Residence" means a dwelling in which a person resides either temporarily or permanently or is visiting as a guest [and] "Vehicle" means a conveyance of any kind, whether or not motorized, that is designed to transport people or property.

UPDATE: As I was gearing up for our discussion of Thomas, I realized I had not provided for you the statutory language the Ohio General Assembly passed in 1990 to address one of the issues raised in this case:

2901.06 Battered woman syndrome evidence.

(A) The general assembly hereby declares that it recognizes both of the following, in relation to the "battered woman syndrome:"

(1) That the syndrome currently is a matter of commonly accepted scientific knowledge;

(2) That the subject matter and details of the syndrome are not within the general understanding or experience of a person who is a member of the general populace and are not within the field of common knowledge.

(B) If a person is charged with an offense involving the use of force against another and the person, as a defense to the offense charged, raises the affirmative defense of self-defense, the person may introduce expert testimony of the "battered woman syndrome" and expert testimony that the person suffered from that syndrome as evidence to establish the requisite belief of an imminent danger of death or great bodily harm that is necessary, as an element of the affirmative defense, to justify the person's use of the force in question.  The introduction of any expert testimony under this division shall be in accordance with the Ohio Rules of Evidence.

October 29, 2017 in Course materials and schedule | Permalink | Comments (0)

October 23, 2017

A timely commentary providing another (final?) thought for our legislative drafting exercise

At the risk of continuing a dialogue about aggravated rape when we need to be moving on, I urge everyone to read this new commentary this powerful personal article authored by Amber Rose Carlson under the headline "Is There a ‘Rational’ Punishment for My Rapist?". 

I suspect that, had someone read this article to the legislative body during our debates, the motion to increase the maximum possible sentence might have gotten a few more votes.  But maybe not, and I welcome student comments on this or related topics flowing from our legislative exercise.

UPDATE:  I just saw this new Columbus Dispatch article headlined "Man sentenced to 35 years in prison for molesting children," which includes these details that might further impact/inform how we reflect on our legislative debate:

A 50-year-old man who raped children being cared for by a woman he lived with on the Hilltop was sentenced Monday to 35 years in prison. Kenneth E. Kilgore, of the West Side, pleaded guilty in August to three counts of rape, two counts of importuning and two counts of disseminating matter harmful to juveniles.

He admitted to engaging in sex acts with three children, as well as soliciting two children by offering them money or beer if they engaged in sex acts with him and showing pornography to two other children. Kilgore rented a room on South Richardson Avenue from a grandmother who watched her grandchildren and other children, sometimes overnight. The crimes took place between August 2012 and July 2016 and involved children ranging in age from 6 to 12.

Two mothers tearfully addressed the court, asking Franklin County Common Pleas Judge Michael J. Holbrook for the maximum sentence, which would have been 42 years. “They’re no longer allowed to be normal kids,” she said. “He took their innocence away. I’m asking for the max, because they have to live with this for the rest of their lives.”...

Assistant Prosecutor Kara Keating said Kilgore has shown no remorse and blamed his actions on alcoholism, telling police he didn’t remember some of the incidents because he was so drunk at the time. “This is not a one-time offense,” she told the judge. “This was multiple times on multiple dates and in multiple ways ... The victims have suffered serious psychological harm. They will likely never fully recover from what the defendant did to them.”

Defense attorney Mark Hunt said his client deserved some credit for pleading guilty and sparing the children from testifying during a trial.

October 23, 2017 in Class reflections, Notable real cases | Permalink | Comments (1)

October 20, 2017

Providing link to proctice exam and outline of key issues and exam tips

As of this writing, everyone has had a number of chance to do the practice exam under simulated exam conditions.  For those who have not yet done the practice exam (or want to relive the experience), I am making it available here on-line (and continue to encourage folks to use it as for an exam-taking simulation):

Download practice_exam.rtf

And with everyone having now had a good chance to work on the practice exam, I am now also reposting general feedback in the form of an outline of key issues on the exam and basic law school test-taking tips:

Download key_issues_on_practice_exam.rtf

Download exam_tips_memo.rtf

October 20, 2017 in Preparing for the final | Permalink | Comments (0)

GREAT WORK Oliwood legislators!

Today was a proud day for Oliwood democracy as we made terrific progress on potentially passing an aggravated rape statute for the great state of Oliwood.  I am hopeful that the Oliwood media — despite it recent affinity for "fake news" — will not falsely portray the reasons why we did not get a statute passed today or in any way misrepresent any of the comments from members of our legislative body. 

In the comments below, I welcome recommendations as to whether and how we should continue to seek to get an aggravated rape bill passed.  And in the meantime for your consideration, here is Ohio's Rape statute here (with also links to other Ohio sex offense provisions) to show you how Ohio (indirectly) sets forth some aggravated rape provisions and defines other sex offenses:

Ohio Revised Code Section 2907.02 Rape.

(A)(1) No person shall engage in sexual conduct with another who is not the spouse of the offender or who is the spouse of the offender but is living separate and apart from the offender, when any of the following applies:

(a) For the purpose of preventing resistance, the offender substantially impairs the other person's judgment or control by administering any drug, intoxicant, or controlled substance to the other person surreptitiously or by force, threat of force, or deception.

(b) The other person is less than thirteen years of age, whether or not the offender knows the age of the other person.

(c) 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.

(2) No person shall engage in sexual conduct with another when the offender purposely compels the other person to submit by force or threat of force.

(B) Whoever violates this section is guilty of rape, a felony of the first degree.  If the offender under division (A)(1)(a) of this section substantially impairs the other person's judgment or control by administering any controlled substance described in section 3719.41 of the Revised Code to the other person surreptitiously or by force, threat of force, or deception, the prison term imposed upon the offender shall be one of the prison terms prescribed for a felony of the first degree in section 2929.14 of the Revised Code that is not less than five years.  Except as otherwise provided in this division, notwithstanding sections 2929.11 to 2929.14 of the Revised Code, an offender under division (A)(1)(b) of this section shall be sentenced to a prison term or term of life imprisonment pursuant to section 2971.03 of the Revised Code.  If an offender is convicted of or pleads guilty to a violation of division (A)(1)(b) of this section, if the offender was less than sixteen years of age at the time the offender committed the violation of that division, and if the offender during or immediately after the commission of the offense did not cause serious physical harm to the victim, the victim was ten years of age or older at the time of the commission of the violation, and the offender has not previously been convicted of or pleaded guilty to a violation of this section or a substantially similar existing or former law of this state, another state, or the United States, the court shall not sentence the offender to a prison term or term of life imprisonment pursuant to section 2971.03 of the Revised Code, and instead the court shall sentence the offender as otherwise provided in this division.

If an offender under division (A)(1)(b) of this section previously has been convicted of or pleaded guilty to violating division (A)(1)(b) of this section or to violating an existing or former law of this state, another state, or the United States that is substantially similar to division (A)(1)(b) of this section, if the offender during or immediately after the commission of the offense caused serious physical harm to the victim, or if the victim under division (A)(1)(b) of this section is less than ten years of age, in lieu of sentencing the offender to a prison term or term of life imprisonment pursuant to section 2971.03 of the Revised Code, the court may impose upon the offender a term of life without parole.  If the court imposes a term of life without parole pursuant to this division, division (F) of section 2971.03 of the Revised Code applies, and the offender automatically is classified a tier III sex offender/child-victim offender, as described in that division.

(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 2945.59 of the Revised 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 a defense to a charge under division (A)(2) of this section that the offender and the victim were married or were cohabiting at the time of the commission of the offense.

Other major Ohio sex offense provisions:

2907.03 Sexual battery.

2907.04 Unlawful sexual conduct with minor.

2907.05 Gross sexual imposition.

2907.06 Sexual imposition.

2907.07 Importuning.

2907.08 Voyeurism.

 

October 20, 2017 in Class reflections, Course materials and schedule | Permalink | Comments (0)

October 18, 2017

Proposals for Aggravated Rape statute in the great state of Oliwood

I have received the first submitted draft statute.  It comes from these sponsors: Carl T. Crow, Ruben C. Garza, Nataliya Merkoulova, Jacob L. Nathan and Kevin L. Scott. It reads as follows:

Aggravated Rape

(1) A person at least 18 years old commits ‘Aggravated Rape’ where, without consent for oral, anal, or vaginal penetration, that person purposefully or knowingly executes said non-consensual penetration by any of the following means or under any of the following circumstances:

(A) the assailant purposely uses, threatens to use, or displays a deadly weapon in order to facilitate the commission of the assault;

(B) the offender threatens to cause or causes serious or severe physical injury or disfigurement;

(C) the assailant attempts to kill the victim or another person during the commission of the assault;

(D) the assailant purposely or knowingly receives aid from or commits the assault with one or more other persons;

(E) the assailant knows the victim to be unable to consent due to the victim’s physical or mental disability;

(F) the assailant purposely holds the victim captive against their will in order to perpetrate further nonconsensual penetration;

(G) the assailant knows the victim to be under the age of 18 and creates sexually explicit audio, photographic, or video material of the assault, regardless of whether the material created is intended for personal use or for distribution; or

(H) the assailant purposely or knowingly provides or administers to the victim a substance intended to incapacitate the victim.

(I) the assailant is the parent or legal guardian and the victim is under the age of 18.

(2) Any person at least 18 years old engages in oral, anal, or vaginal penetration with a person under the age of 13 is guilty of ‘Aggravated Rape’ regardless of the offender’s knowledge of the victim’s age.

(3) Aggravated Rape Penalties: A person found guilty of Aggravated Rape shall be incarcerated for 15-25 years with the possibility of parole after 10 years.  Any person convicted of Aggravated Rape must register as a sex offender with both the state and national sex offender registries.  A person convicted of Aggravated Rape may never purchase or otherwise possess a firearm.

-----

Here is the second submitted draft statute, coming from the Committee for Free Beer:

Aggravated Rape

1.) A person is guilty of aggravated rape when they engage in the activity of unwanted sexual intercourse or intrusion either vaginally, anally, or orally

(A) with a person age 10 years old or younger whether or not the offender knows the age of the other person, these persons shall be held strictly liable;

(B) purposefully or knowingly using extreme force or threat of extreme force to facilitate the activity;

(C) purposefully or knowingly with a mentally handicapped person who possesses a sufficiently diminished capacity to be able to consent to sex;

(D) while in the commission of or immediately preceding the commission of a violent crime;

(E) purposefully or knowingly with a person who is unconscious;

(F) while purposefully or knowingly using a position of authority or trust to facilitate the activity;

(G) after using drugs administered to the victim without the victim’s knowledge to facilitate the activity;

(H) while purposefully or knowingly acting in concert with another to facilitate the activity or;

(I) if the offender has already been convicted of a previous charge of rape or aggravated rape.

(J) Any person guilty of any provision under this section is guilty of a first-degree felony.

A person convicted of Aggravated Rape will be sentenced to a minimum of 10 years in prison with a maximum of life imprisonment with the chance of parole.

-----

Here is the third submitted draft statute, coming from the Committee of Olli-garchs (updated because "the Committee of Olli-garchs realized there was a formatting error on the draft we sent you."):

1) A person who purposely, knowingly, or recklessly engages in sexual activity with another without the other’s affirmative consent is guilty of aggravated rape

a. Sexual activity that can constitute rape shall not be limited to intercourse. Rape can also be engagement in oral sex, anal sex, sexual touching of the genitalia of either the actor, victim or both, forced masturbation, any type of sexual penetration with a body part or with another object so manipulated by the offender, no matter how slight the touching is.

     i. Rape can be committed against or by any individual regardless of gender or gender identity.

b. These sexual acts are considered aggravated rape when they are done actor purposely, knowingly, or recklessly by an actor and in the absence of affirmative consent or when the victim revokes affirmative consent.

     i. Affirmative consent is purposeful, voluntary, non-intoxicated, non-impaired, non-coerced verbal or nonverbal consent.

2) A person commits an aggravated rape when any of the following apply:

a. The actor engages in sexual activity with a victim who is less than 12 years old regardless of the actor’s mental culpability

     i. Children under the age of of 12 cannot affirmatively consent

b. The actor uses or threatens to use physical strength, force, or other kinds of violence to encourage the victim to submit to sexual activities

     i. The threat is sufficiently made with or without a dangerous weapon

     ii. The actor’s intent to follow through with a threat is immaterial

c. A victim is mentally disabled such that their mental disability renders the victim

     i. Unable to understand the implications of a sexual act

     ii. Unable to affirmatively consent a sexual act

d. The victim is intoxicated and cannot purposely or knowingly consent to sexual activity

     i. An intoxicated victim is one whose mental capacity is impaired or who has become unconscious due to any type of intoxicating substance including but not limited to alcohol and date rape drugs such as rohypnol, ketamine, and gamma-hydroxybutyrate.

e. The victim is unconscious at any point during the sexual activity and the actor continues with the sexual activity.

f. The actor purposely targets a victim due to actor’s hate for a community of which the victim is a member, and it is the actor’s conscious object to inflict harm on the victim because of the victim’s identity with that community.

     i. Community identities include but are not limited to race, religion, gender, gender identity, sexual orientation, nationality, age, disability, and socioeconomic status.

g. Where an actor commits multiple rape offense of any mental culpability, the actor is guilty of aggravated rape even where the individual instances of rape are not aggravated.

3) In instances where there are multiple actors, each actor is equally culpable for the rape of the victim or victims.

4) A dangerous weapon is any object so designed or so used for the purpose of inflicting harm upon another (including body parts of the offender).

a. An actor using a dangerous weapon need not know that the object would or could be classified as dangerous.

b. So long as an actor implies or suggests that there is a weapon, a threat of a dangerous weapon is established. Visual confirmation that there is a dangerous weapon on the part of the victim need not have occurred to establish threat of a dangerous weapon.

5) Punishments

a. For anyone who violates §§ 2(a) and 2(g) the prison term shall be 25 years to life in prison without parole

b. For anyone who violates § 2(b), the prison term shall be 20 years to life in prison

c. For anyone who all other sections of this statute, the prison term shall be at least 15 years in prison

d. Regular police check-ins with a frequency contingent on prison counselor’s recommendation upon release

e. After release, aggravated rape offenders cannot petition for release from community supervision as other sex offenders have the opportunity to do

October 18, 2017 in Course materials and schedule | Permalink | Comments (0)

October 17, 2017

Some notable recent examples of involuntary manslaughter charges in Ohio

As noted (too) briefly in class, Ohio has a somewhat unique set of involuntary manslaughter provisions because they do not address reckless killing, but do cover deaths caused as a proximate result of other criminal activities.  Of late, one can find lots of different local stories of involuntary manslaughter charges being filed after a person dies from an opioid overdose.  Some examples of these stories, along with a few other recent cases in which Ohio prosecutors brought involuntary manslaughter charges, are linked below:

Woman Charged After 12-Year-Old Boy Dies From Fentanyl Overdose During Sleepover

Ohio Man Charged with Involuntary Manslaughter for Fentanyl Overdose Death

Woman gets 8 years in prison in fatal drug overdose

Akron man sentenced to 10 years in prison for overdose deaths of two Stow women; victim’s mother forgives, ‘will never forget’

Cleveland dinner-party host indicted in unintentional fatal shooting of guest

Trucker pleads no contest in 2016 death: Maumee woman, 20, killed in U.S. 24 crash

New Franklin woman charged in crash that killed two Coventry students

Though nobody should feel compelled to review all these stories, it might be useful to review some of the facts in these cases in order to imagine how a prosecutor in Oliwood might consider possible homicide charges under the Model Penal Code.

October 17, 2017 in Notable real cases | Permalink | Comments (0)

October 15, 2017

How does (and how should) homicide law respond to the drunk driver who kills?

As we wrap up the homicide unit, we will a look at how the law deals with drunk (and drugged) driving that results in an unintended death.  As a matter of "raw" numbers, this is arguably the most consequential aspect of our homicide unit: data from 2015 indicate that there were more drunk/drugged driving deaths than all types of intentional homicides throughout the US in that year.  As we will discuss, in many jurisdictions drunk driving cases can possibly be prosecuted under many possible forms of homicide ranging from vehicular homicide to negligent homicide to manslaughter to murder.

As time permits, I plan to have an extended in-class discussion of how you think homicide law should treat the "standard" drunk driver (first offense, relatively low BAC) who causes a single death, as well as the "extreme" drunk driver (repeat offense, high BAC) who causes multiple deaths.  The first part of that discussion will explore what level of homicide liability is available under current laws (particularly, of course, in Oliwood and Ohio), and then we will turn to a discussion of what kinds of liability and kinds of punishments you think ought to be applied in these cases.

I would welcome this discussion getting a running start in the comments here, and perhaps a case out of Florida discussed on my sentencing blog provides an interesting starting point.  This case involves Daniel Phillips who, with methamphetamine in his system, fell asleep at the wheel of his truck and slammed into another car killing two women on a rural Florida road.  Interestingly, though the defendant was convicted only of "DUI manslaughter" under Florida law, he was eligible for and did receive a life without parole sentence for his crimes.

Also, for various perspectives on these enduring issues, here is a national and a local article discussing these crimes and punishments:

Drunken driving homicide: Is it an accident or murder?

Vehicular homicide sentences not harsh enough, say victims' families

October 15, 2017 in Course materials and schedule, Notable real cases | Permalink | Comments (0)

October 11, 2017

What do you think of the sentence given to Robert Richie, the dad convicted of involuntary manslaughter in Ohio's uglier version of Williams?

As reported in this local article, headlined "Robert Ritchie sentenced for his role in son's scalding death," there was a sentencing just yesterday in an Ohio manslaughter case that reminded me  of the Williams case (and also the Lima case and even the Josephine pool hypo). Here are the sad details:

A judge sentenced a father who neglected to get his four-year old son help after his wife held the boy down in scalding water, to seven years in prison.  Robert Ritchie could have been sentenced to 11 years.  Anna Ritchie put her stepson, Austin, in 124-degree water for 20 minutes as a punishment, then put him to bed.  By the next morning, Austin had died.

A jury found Robert Ritchie guilty of involuntary manslaughter and child endangering for not checking on his son or getting him help.

Austin's maternal grandmother says while wife Anna Ritchie did the damage, Robert did nothing.  She said Robert is destined for hell.  Robert's aunt defended Robert.  She told the court he is not the monster he is being portrayed.

Robert's attorney Frank Schiavone III asked for probation for his client, saying he's under a life sentence for his role in Austin's death.  Robert Ritchie’s attorneys said there was no punishment that could top what their client has already received.  He could have received eleven years behind bars, with time served, he will spend a little over six years in prison....

Ritchie was convicted for his role in the 2016 scalding death of his 4-year-old son Austin Cooper.  While his wife, Anna Ritchie, admitted to holding the child down in scalding bath water, prosecutors claimed Ritchie did nothing to help his son.  A point the child's maternal grandmother made to the judge prior to sentencing.

Ritchie himself asked Judge Robert Peeler to "show mercy on me" before Judge Peeler sentenced him.  "I want to do good in this world for my son.  Something good has to come from all this tragedy, something good has to come.  I want to share my faith and my love with the youth and eventually become a full-on pastor, if you deem fit to give me mercy."

Judge Robert Peeler concurred that Ritchie did not cause his son's injuries, but wondered why he did nothing to help his child.

Ritchie's defense team took issue with the fairness in prosecuting some child death cases and not others. Frank Schiavone IV pointed to the recent hot car death of a child where no charges were filed while his client is going to prison.  Prosecutor David Fornshell said that the difference was one parent had knowledge while the other did not....

Anna Ritchie is already in prison. She is serving 18 years to life for causing the injuries that killed the child.

This local article describing testimony from one of the trials in this case (there were two prior mistrials) provides some of the horrible details of the crime and concerning what the parents did and knew.

UPDATE:  Ohio's statute on child endangerment is ORC Section 2919.22, and it is hardly a model of clear statutory drafting.  And folks who have become familiar with Ohio's unique homicide provisions should understand why a charge/conviction under that statute was important for the Robert Richie to be subject to an involuntary manslaughter charge in this case.

October 11, 2017 in Current Affairs, Notable real cases | Permalink | Comments (0)

October 9, 2017

Here is the Simpson's hypo (aka RIP Rod and Todd Flanders):

Waylon_SmithersThanks to the suggestion of a class member, I realized I could and should provide the Simpson's hypo here for consideration before our next class.  So here it is, with helpful links to the Simpson's wiki:

Mr. Burns, that rich old codger, is having a problem with birds on his country estate.  Bart Simpson built a tree house on the property when he was ward of Mr. Burns, and Bart recently left open a huge vat or Marge’s home-made peanut butter.  (Bart had to take it to the tree house to keep Homer from eating all of it himself.)  Smelling the peanut butter, birds from all over Springfield have invaded Burns’ property.

Burns tells his willing servant Waylon Smithers to get one of his antique flare guns and start firing shots into the tree around the tree house to scare birds away.  Burns warns Smithers to check whether anyone is in the area; Burns knows kids still like to use the tree house, even though he had put up a sign stating that kids playing in the tree house would be prosecuted for trespassing.

Eager to do Burns' bidding and shoo the birds away quickly, Smithers only calls out "Hello, can anyone hear me?" to see if anyone is in the tree house.  Smithers does not personally check to make sure no kids are in the house.  After calling out a few times, he gets no response (though the woods are noisy).  Smithers decides that he has done enough given than he does not plan to shoot at the tree house.  He then takes aim at branches nearby the tree house and starts firing.

Sadly, it turns out that Rod Flanders and Todd Flanders, devout children of The Simpson’s devout neighbor, were in the tree house praying because they thought being off the ground brought them closer to their lord.  (The Flanders thought praying, rather than playing, in the tree house was fine, and they heard Smithers call out, but though it was their lord speaking to them.)  Tragically, the antique flare-gun fired off line and  into the treehouse. 

The flare shot by Smithers struck Rod directly in the chest.  Todd discovers his older brother Rod has been killed instantly, and distraught, he jumps out the treehouse window to his death.

Smithers turns himself in, and now you are the prosecutor trying to decide whether he might be guilty of a form of homicide in Washington (at the time of Williams); in Massachusetts (at the time of Welansky), in Oliwood under the MPC; and in Ohio now.

October 9, 2017 in Course materials and schedule | Permalink | Comments (0)

October 4, 2017

Plans for lunch this week and beyond

I was so very pleased to discover significant interesting in lunch plans, which I thought it now useful to review here:

1.  I will try to remind folks before their scheduled day (e.g., this week we have Adam K., Margaret H., Alison R., Bekah T. and Jacob S.). 

2.  Folks should make their way to my office (Room 313) by 11:30am, dressed/ready to take a walk outside to a location to be determined (influenced by weather and other factors).   I usually work at home in the mornings, so I may not be in my office until just around our scheduled meeting time.

3.  It is no big deal if you need to cancel/change plans even at the last minute, but please try to let me know in advance and/or encourage someone else to take your slot.

With nearly all slots already filled through Nov 3, I am eager to create some more days/times for lunch.   Are there other good lunch days for interested folks other than Fridays?  Please use the comments to suggest other possible good days for lunches.   I will have sign ups for additional Fridays forthcoming, and I am happy/eager to schedule lunches on other days, if possible, to ensure we have plenty of available slots.

October 4, 2017 in Food and Drink | Permalink | Comments (0)

More on Ohio's unique history and application of "prior calculation and design"

In case anyone wishes to dig even deeper into the unique phrasing of Ohio Revised Code Section 2903.01(A), the provision was the subject of an Ohio Supreme Court ruling late last year. In State v. Walker, 2016-Ohio-8295 (Ohio Dec. 23, 2016) (available here), the Court split over whether the trial evidence was sufficient to sustain a jury finding of "prior calculation and design." In so doing, the Walker Court provides this bit of legal history:

When the Revised Code was adopted in 1953, the crime of murder in the first degree — the precursor to aggravated murder — prohibited purposeful killing with “deliberate and premeditated malice.” Former R.C. 2901.01.  Under this earlier standard, “a killing could be premeditated even though conceived and executed on the spur of the moment. The only requirement was that the malicious purpose be formed before the homicidal act, however short in time.” State v. Cotton, 56 Ohio St.2d 8, 11, 381 N.E.2d 190 (1978).

When it amended the aggravated-murder statute, R.C. 2903.01(A), to provide that “[n]o person shall purposely, and with prior calculation and design, cause the death of another,” the General Assembly explicitly rejected the notion that brief premeditation prior to a murder could establish prior calculation and design:

[R.C. 2903.01(A) employs] the phrase, “prior calculation and design,” to indicate an act of studied care in planning or analyzing the means of the crime, as well as a scheme compassing the death of the victim.  Neither the degree of care nor the length of time the offender takes to ponder the crime beforehand are critical factors in themselves, but they must be sufficient to meet the proposed test of “prior calculation and design.”  In this context, momentary deliberation is considered insufficient to constitute a studied scheme to kill.

(Emphasis added.) Ohio Legislative Service Commission, Proposed Ohio Criminal Code: Final Report of the Technical Committee to Study Ohio Criminal Laws and Procedures, at 71 (1971).

October 4, 2017 in Notable real cases, Reflections on class readings | Permalink | Comments (0)