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October 15, 2018

Plans as we finish up homicide, debate new Oliwood rape legislation, and then head into defenses

Just a quick note to remind everyone that we should be wrapping up the homicide unit over our next few classes.  We can and will cover reckless murder pretty quickly on Wednesday (with Mayes our focal point), though I expect we might need a bit more than a class to discuss and debate felony murder.  In other words, I doubt we will finish homicide on Friday, but we will definitely complete the unit by next Monday.  (So, for your reading, at least try to start the felony murder materials by Wednesday, and have it wrapped by Friday.)

We should be able to start our (too brief) rape law discussion on Monday, and we will examine the evolution of the "modernization" of rape doctrine throughout next week.  I am planning to have our legislative debate over a new proposed aggravated rape law for Oliwood on Friday, October 26.  As of this writing, I already have four(!) groups of students volunteering to be drafting committees for this exercise.  I am grateful for all those eager to participate, and I will discuss the particulars of the exercise in class in the coming days.

By the last week of October, we should be ready to start our unit on "true defenses," starting with self-defense.

October 15, 2018 in Course materials and schedule | Permalink | Comments (0)

October 10, 2018

Sad tales (and criminal charges) involving dangerous business practices then and now

If you are interested in more of the sad particulars on the events that led to the Welansky case, here is a link to a 20-minute documentary with a partial recreation of the events at Coconut Grove.

Meanwhile, this news out of New York, headlined "Operator of limo in fatal upstate N.Y. crash charged with criminally negligent homicide," provides a high-profile example of one persistent lesson of the Welansky case: dangerous business decisions resulting in a pile of bodies will often lead to criminal charges. From the start of the article:

The operator of the limousine company whose vehicle was involved in the fatal crash that killed 20 people Saturday in upstate New York has been arrested and charged with criminally negligent homicide, state police told NBC News.

Nauman Hussain, the operator of Prestige Limousine, was taken into custody after a traffic stop on Wednesday, New York State Police said. He was charged with a single count of criminally negligent homicide, but the charge lists all 20 victims, police said.

October 10, 2018 in Notable real cases | Permalink | Comments (1)

October 9, 2018

Simpsons hypo (aka RIP Rod and Todd Flanders) for considering unintended homicides

HqdefaultI mentioned in class the the Simpson's hypo for consideration before our next class(es) discussing unintended homicide charges.  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, 2018 in Course materials and schedule | Permalink | Comments (1)

October 8, 2018

Ohio's approach to provocation in its version of Berry case, Ohio v. Shane, 63 Ohio St. 3d 630 (1992)

As mentioned in class, Ohio has its own case somewhat similar to the Berry case from California in our casebook.  This case, Ohio v. Shane, 63 Ohio St. 3d 630 (1992), is worth a full read and it starts and ends this way:

The issue certified for our review is the proper allocation of the burden of proof when a judge gives an instruction on voluntary manslaughter in a murder prosecution. However, for the reasons which follow, we do not reach the certified issue, but affirm the judgment of the court of appeals on different grounds.

The trial judge instructed the jury on voluntary manslaughter prior to its deliberations. Because we determine that the evidence of provocation presented by Shane was insufficient, as a matter of law, to warrant an instruction on voluntary manslaughter, we find that the trial judge should have refused to give the jury an instruction on that offense.  The fact that the trial judge did give the instruction was harmless error....

When reasonably sufficient evidence of provocation has not been presented, no jury instruction on voluntary manslaughter should be given.  In this case, the provocation that allegedly caused Shane to act under the influence of sudden passion or in a sudden fit of rage was not reasonably sufficient, as a matter of law, to incite him to use deadly force.  We find that no reasonable jury could have found Shane not guilty of murder, but guilty of voluntary manslaughter.  Accordingly, the judgment of the court of appeals upholding defendant's murder conviction is affirmed.

October 8, 2018 in Notable real cases | Permalink | Comments (0)

October 7, 2018

High-profile, second-degree murder verdict in Illinois (which is actually comparable to voluntary manslaughter in Ohio)

At the risk of creating confusion by highlighting quirks in how Illinois approaches degrees of homicide, I thought it notable how a Chicago jury on Friday chose to convict police officer Jason Van Dyke of second-degree murder, rather than first-degree murder, in the 2014 shooting of 17-year-old Laquan McDonald (basics here from my main blog).  Notably, the prosecution was seeking a first-degree murder conviction, but the jury potentially used provocation-like doctrines (and/or what is sometimes know as "imperfect self-defense") to convict Van Dyke of a lesser charge, though in Illinois this lesser charge is called second-degree murder rather than manslaughter.

(Notably, the Illinois second-degree murder provocation language asks if "at the time of the killing he or she is acting under a sudden and intense passion resulting from serious provocation by the individual killed." This seems pretty similar to the Ohio voluntary manslaughter provocation language about an offender being "under the influence of sudden passion or in a sudden fit of rage, either of which is brought on by serious provocation occasioned by the victim that is reasonably sufficient to incite the person into using deadly forced.")

If you are at all troubled by the provocation doctrines used at common law (and still in the MPC and ORC) to call some killings manslaughter rather than murder, might you find these doctrines less worrisome if we adopted the Illinois approach of still calling partially mitigated killings another form of "murder"?  As you consider this issue, think about whether it is the label that matters most or the sentencing consequences that goes with the label. 

October 7, 2018 in Current Affairs, Notable real cases | Permalink | Comments (2)

October 2, 2018

"Meet a convicted felon who became a Georgetown law professor"

Images (15)The title of this post is the title of this 60 Minutes segment that started this way:

Jailhouse lawyers are prisoners who manage to learn enough about the law while incarcerated to help themselves and other inmates with legal problems.  We get letters from them every week.  Tonight we are going to reintroduce you to Shon Hopwood, who is arguably the most successful jailhouse lawyer ever, having had one of his cases argued before the U.S. Supreme court while serving a 12-year sentence for armed bank robbery. Since his release he's built up an extraordinary resume as a legal scholar, and has been published in top law journals.  We first met him last fall at one of the nation's premier law schools where he's become its newest professor. A tale of redemption as improbable as any you're likely to hear.

Excitingly, Shon Hopwood will be at Moritz for the next Issue 1 panel at noon in 352 Drinko. In addition, Shon and I will be hanging out in room 455 from about 10:30am until noon for anyone who would like a chance to talk with him about his experiences or his work for criminal justice reform.

A companion piece on the 60 Minutes story available here is titled "Kroft: Prison lawyer is "one of the best characters" in decades of reporting." And this Washington Post piece on Shon is headlined "He robbed banks and went to prison. His time there put him on track for a new job: Georgetown law professor." Here is how it starts:

During a break in a basketball game to raise money for charity, Shon Hopwood told some of his Georgetown law students it felt different than the last time he was on a court: When he played basketball in federal prison, he had to carry a shank in case his team started to lose. His students laughed. He ran back onto the law-school court — and sank the winning shot.

Hopwood’s new job as a tenure-track faculty member at the Georgetown University Law Center is only the latest improbable twist in a remarkable life: In the last 20 years, he has robbed banks in small towns in Nebraska, spent 11 years in federal prison, written a legal petition for a fellow inmate so incisive that the U.S. Supreme Court agreed to hear the case, done that again, earned undergraduate and law degrees and extremely competitive clerkships, written a book, married his hometown crush and started a family.

But this could be his most compelling role yet. His time in prison gave him an unusual perspective on the law that allows him to see things other lawyers overlook, and a searing understanding of the impact of sentencing and the dramatic growth in incarceration in the United States.

“It’s one of the big social-justice issues of our time,” he said. The United States has 5 percent of the world’s population but 25 percent of its prisoners. “Between prison, jail, home confinement, probation, parole, combined it’s about 10 million people. It’s a big number.” And almost three-quarters of released prisoners are back in custody five years later. He hopes to change some of that.

October 2, 2018 in Notable real cases | Permalink | Comments (0)

October 1, 2018

Any questions or reactions to Joe Shooter role-play? ... UPDATED WITH RESULTS

In addition to thanking again our terrific state homicide lawyers (and apologizing again for limited time), I wanted to provide a space for any questions or other thoughts on the Shooter exercise. The primary point of the role-play was to preview homicide issues we will be working through in October. But the exercise may also prompt questions about matters of procedure and practice that I would be happy to field here or elsewhere.

As a preview to the start of our discussions next week, I urge everyone to think about (and perhaps comment upon) the ideal number of different types of homicide. You should notice that the drafters of the Model Penal Code decided there should only be three different types of homicide, but relatively few US jurisdictions has only three types of homicide crimes. In Ohio, if you include aggravated vehicular homicide and vehicular homicide, the Revised Code has nine different types of homicide.

Do you think it better for a modern criminal code to have fewer or to have more types of homicide?

What are some consequences and implications of one general criminal harm being subdivided into so many different offenses?

UPDATE on 10/2I now had the chance to tabulate the results of the submitted evaluation forms.  The full votes/results appear in the document linked below, and a plurality voted for a different result in California (voluntary manslaughter), Kansas (involuntary manslaughter) and Ohio (Murder).  Consider whether the pattern of outcomes tells us more about the unique law in the three different jurisdictions or about the unique choices made by the lawyers who presented the case in these jurisdictions.

Download 2018-shooter-results

October 1, 2018 in Course materials and schedule | Permalink | Comments (3)