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January 31, 2017

Exam review in the afternoons the week of February 6

Students interested in reviewing their final exam performance can and should email me (1) an ideal afternoon time for Monday through Wednesday (2/6 to 2/8), and (2) their exam number.  I will email back a confirmation and you will have a formal time booked.

Students can and should use the comments to this post to indicate if they would like me to provide other exam review windows.

January 31, 2017 in Class reflections, Course materials and schedule | Permalink | Comments (0)

November 28, 2016

Starting our grinding over self-defense doctrines and midterm review

I had grand plans to get our review of the "classic" criminal law defense of self-defense off to a flying start during Monday afternoon's class, and I also had expected to start reviewing mid-term efforts with students right after class.  But, as you all likely now know, a troubled (and now deceased) young man decided to disrupt all OSU campus plans for this afternoon.

So I have taken to this space to get the grind going in the following ways:

1. Background/grinding on Ohio self-defense law:  Almost exactly 40 years ago, Ohio's procedures for applying self-defense doctrines were contested all the way up to the US Supreme Court. I have never made the SCOTUS ruling in Martin v. Ohio a required part of the course materials, but I think folks might now find it interesting to read and reflect on the ruling in Martin v. Ohio, 480 U.S. 228 (1987), available here and/or here and/or via Westlaw/Lexis.

2.  Background/grinding on mid-term review: I have now taken the time to divide up the mid-term data into what I consider helpful quartiles to produce this accounting:

                     Top 25%         Mid 50%            Bottom 25%

WORDS        > 1650          1001-1650          < 1000

PART A        46 or more          39-45         38 or less

PART B        18 or more          14-17         13 or less

Though much too crude, I think these quartiles provide a useful rough guide to how your first exam taking experience went.  If you are on the top 25% on a question, then generally speaking you are doing the kind of work needed to secure an A.  If you are in the mid 50%, then you are still doing well and need not worry about "bombing."  If you are in the bottom 25%, you should try to figure out "what went wrong" so that you can do better the next time.

I will readily/eagerly/happily be available from 12noon to 5pm on Tuesday and from 3pm to 5:30pm on Wednesday and from 2:30pm to 5pm on Thursday to go over the exam with individual students.  I would be grateful if a couple of folks or groups come to see me at the same time so I need not repeat my general advice/feedback over and over again (and I am pleased a pair of students have already "booked" an appointment for 12noon on Tuesday).

Please use the comments to sign up for meetings in 30 minute blocks in the windows of time indicated above.  Thanks!

November 28, 2016 in Class reflections, Notable real cases, Preparing for the final | Permalink | Comments (16)

November 18, 2016

I am doing great, and I am touched by all the well wishes

and your homework for the weekend --- and for the rest of your life --- is to be the best version of yourself and to share love and clarity and charity with all those who are part of your family, however defined.

Hope to be watching a movie with you all soon.  Use the comment thread to make recommendations!

November 18, 2016 in Class reflections, Film | Permalink | Comments (10)

November 15, 2016

"Jury finds Justin Ross Harris guilty of murder in son's hot car death"

Though I am lately doing a horrible job staying "on-task" in class since the election, I am going to continue to try to do a much better job of having this blog stay focused on real criminal law cases that implicate so many of the issues (both doctrinal and practical) that we have been discussing throughout the semester (and that I will be testing you all on next month).  So, with that background, check out this new CNN report that has the same headline as the title of this post.  Here are excerpts (with a few points bolded for possible further discussions and some follow-up questions below):

A jury in Georgia on Monday found Justin Ross Harris guilty of murder in the 2014 death of his 22-month-old son, Cooper. Harris, 35, was accused of intentionally locking Cooper inside a hot car for seven hours. On that same day, Harris was sexting with six women, including one minor, according to phone records.

In addition to three counts of murder, Harris was found guilty of two counts of cruelty to children for Cooper's death, and guilty of three counts relating to his electronic exchanges of lewd material with two underage girls.

"This is one of those occasions where actions speak louder than words," Cobb County Assistant District Attorney Chuck Boring said after the verdict. "He has malice in his heart, absolutely."

The trial, which spanned almost five weeks, was moved to the Georgia coastal town of Brunswick from Cobb County, outside Atlanta, after intense pretrial publicity. It was briefly interrupted by Hurricane Matthew. The Glynn County jury of six men and six women deliberated for 21 hours over four days. Jurors considered the testimony of 70 witnesses and 1,150 pieces of evidence, including the Hyundai Tucson in which Cooper died in a suburban Atlanta parking lot.

Justin Ross Harris waived his right to testify in his own defense. Cobb County prosecutors argued that Harris intentionally locked Cooper inside his car on a hot summer 2014 day because he wanted to be free of his family responsibilities. Harris' lawyers claimed the boy's death was a tragic accident brought about by a lapse in memory.

It was June 18, 2014, when Harris, then 33, strapped his son into a rear-facing car seat and drove from their Marietta, Georgia, home to Chick-fil-A for breakfast, then to The Home Depot corporate headquarters, where he worked. Instead of dropping Cooper off at day care, testimony revealed Harris left him in the car all day while he was at work.

Sometime after 4 p.m. that day, as Harris drove to a nearby theater to see a movie, he noticed his son was still in the car. He pulled into a shopping center parking lot and pulled Cooper's lifeless body from the SUV. Witnesses said he appeared distraught and was screaming. "'I love my son and all, but we both need escapes.' Those words were uttered 10 minutes before this defendant, with a selfish abandon and malignant heart, did exactly that," said Boring in his closing argument.

The prosecution argued that Harris could see his son sitting in his car seat in the SUV. "If this child was visible in that car that is not a failure in memory systems," Boring argued. "Cooper would have been visible to anyone inside that car. Flat out." If Cooper was visible, Boring said, "the defendant is guilty of all counts." After the verdict, jurors told the prosecution that the evidence weighed heavily in their decision, Boring said.

Digital evidence showed that on the day his son died, Harris exchanged sexual messages and photos with six women, including one minor. State witnesses testified that Harris lived what prosecutors described as a "double life." To his wife, family, friends and co-workers, Harris was seen as a loving father and husband. But unbeknownst to them, Harris engaged in online sexual communication with multiple women, including two underage girls, had extramarital sexual encounters in public places and paid for sex with a prostitute.

Harris' defense maintained that his sexual behavior had nothing to do with Cooper's death. "The state wants to bury him in this filth and dirt of his own making, so that you will believe he is so immoral, he is so reprehensible that he can do exactly this," said defense attorney H. Maddox Kilgore during his closing argument. Kilgore argued that Cobb County police investigators focused only on matters that fit the state's theory and ignored all the evidence that pointed to an accident. "You have been misled throughout this trial," Kilgore told jurors.

The defense lawyer continued to maintain his client's innocence after the verdict. He said he plans to appeal the verdict. "When an innocent person is convicted there's been some breakdowns in the system and that's what happened here," Kilgore told reporters outside the courthouse. "From the moment we met Ross Harris we've never, ever once wavered in our absolute belief that he is not guilty of what he's just been convicted of."

The defense's key witness was Harris' ex-wife and Cooper's mother, Leanna Taylor. "Cooper was the sweetest little boy. He had so much life in him. He was everything to me," Taylor recalled, as she seemed to fight through tears. For two days, Taylor told jurors private details of her married life with Harris, saying they had intimacy problems and recounting Harris' struggles with pornography.

Marital struggles aside, Taylor described Harris as a "very involved" parent who loved their son. In her mind, she said, the only possible explanation was that Harris "forgot" Cooper and accidentally left him in the car. Boring said it did not matter that Taylor declined to speak with the prosecutor's office and testified for the defense. "As far as proving the case we did not need her," he told CNN.

Harris is expected to be sentenced December 5. He could face life without parole, though Boring said the prosecution will speak with the family to determine what kind of sentence to ask for.

A few unique "Berman-esque" follow-up questions:

1. Does this sad case remind anyone, at least a little bit, of my omission hypo involving poor little Josephine who drowned in the pool?

2. Should we surprised (a) that the defendant father did not testify in an effort to support his claim that "he didn't mean to do it," and (b) that the victim's mother did testify in an effort to support her husband's claim that this was an accident?

3. Should we be troubled (a) that the local prosecutor did not pursue the death penalty in a case in which the defendant was apparently convicted of having essentially boiled his 22-month son to death (perhaps because the murderer was white?), and (b) that the local prosecutor is now going to have his sentencing recommendation influenced by the victim's mother?

For more potential background on this case and others potentially like it (and with information about the evidence that helped prosecutors secure a guilty verdicts and that help account for why the defendant was convicted of three counts of murder even though he only killed one person), check out this (now dated) local video about the case:

November 15, 2016 in Class reflections, Current Affairs, Notable real cases | Permalink | Comments (2)

November 07, 2016

Results of our in-class survey of what should (and should not) be covered by by modern rape provisions...

can be downloaded here:

Download 2016 rape offense survey results

As always, student reactions and feedback are welcome in the comments.  And those who have taken up the challenge of writing a new rape provision for Oliwood can/should perhaps learn a lot from the survey results about the views of your "constituency."

November 7, 2016 in Class reflections, Course materials and schedule | Permalink | Comments (4)

October 13, 2016

"Ballot Questions In Three States May Affect Death Penalty Nationwide"

The title of this post is the headline of this Nebraska NPR piece which talks reviews some of the issues we discussed in class on Wednesday and may prove helpful for anyone doing the death-penalty extra credit and/or making election predictions.

October 13, 2016 in Class reflections, Course materials and schedule, Research assignment | Permalink | Comments (1)

October 12, 2016

Class schedule and activities for week of October 17

Because I had way too much fun, and was disinclined to make you do any "real" work in your last class before the break (and also forgot to hand out the Joe Shooter facts in class), I think we now need to tweak my plans for the week of October 17.  Here is my new/latest thinking:

Monday, Oct 17:  Finally finish causation doctrines, preview rest of class (getting Part II of syllabus), introduce homicide unit, and explain context, value, roles for Joe Shooter role play.

Wednesday, Oct 19Do Joe Shooter role play and discuss its many lessons

Friday, Oct 21:  Celebrate my birthday ... by discussing intentional homicides (Watson and Walker, pp. 346-363 in text), and then watching 53-minute long documentary on American prisons, and then happy hour.

October 12, 2016 in Class reflections, Course materials and schedule | Permalink | Comments (0)

September 18, 2016

Making sure you fully understand what the US Constitution, the MPC and the ORC have to say about "strict criminal liability"

As I mentioned in class on Friday, your understanding of lots of future discussions over all sorts of mens rea issues the rest of the semester will be greatly enhanced if you appreciate all the theoretical and practical nuances of the the debate we had over my idea of using strict criminal liability to deal with the serious harms of car accidents on wet roads.  I will review those nuances briefly on Monday, and you should already have a feel for how these nuances found expression in the Dillard case and how they inform the classic old case of Faulkner.  

Of greatest importance as we move this week from Berman hypotheticals to real laws, you should appreciate that our debate over my "crashing in the rain" proposal was fundamentally a debate about why, when, whether and how a legislature might be eager to impose "strict criminal liability" -- that is, why and when lawmakers might what to subject some persons to criminal liability for certain risky conduct or harmful results regardless of whether they meant to (or knew or even could reasonably foresee) that they were involved in risky conduct or might cause harmful results.  But as Dillard highlighted, the issues of strict criminal liability arise in court only after a legislature has passed a statute and then a case arises in which the facts make it important to figure out if and how a legislature actually intended to write a statute that does in fact impose "strict criminal liability."

As the title of this post indicates, the Supreme Court cases mentioned in the text, as well as key provisions of the Model Penal Code and the Ohio Revised Code, provided some critical "rules of interpretation" for helping to resolve if/when a statute should be understood to impose "strict criminal liability."  I hope you have already figured this out, and this is what I will try to make sure everyone understands before we get into Faulkner and Handout #2 (which we will certainly get to no later than Wednesday).

September 18, 2016 in Advice, Class reflections, Course materials and schedule | Permalink | Comments (0)

September 14, 2016

Working draft of bill for new ORC provision to criminalize "Crashing while driving in rain"

In order to facilitate further discussion by students/legislators concerning the bill I have proposed in the hope of reducing the harms that too often result from driving in the rain or on wet roads, I have now formally drafted/revised this bill language:

PROPOSED ORC Section 2999.99: Criminal Damaging While Driving in the Rain or on Obviously Wet Neighborhood and Express Roads
(A) No person shall cause any physical harm to any other person or to the property of another person while driving in the rain or while the road are obviously wet.
(B) Whoever violates this section is guilty of criminal damaging while DROWNER, a misdemeanor of the second degree.  If a violation harms property valued in excess of $5000, this offense is a misdemeanor of the first degree.  If a violation harms a person or property valued in excess of $50,000, this offense is a felony of the third degree.  If a violation causes serious harm to multiple persons or the death of any person, this offense is a felony of the second degree.

For further support for this proposal, consider these excerpts from a Science Daily publication from 2008 headlined "Bad Weather: Bad Drivers":

Researchers and statisticians found that 24% of all crashes occur during adverse weather conditions, including ice, snow, and rain.  The research showed that most drivers do not account for adverse conditions created by rainy weather.  They suggest slowing down and increasing the distance between traveling cars as a way to decrease the number of accidents in bad weather.

Each year, nearly 7,400 people are killed and over 670,000 are injured in crashes.  But not all wrecks are because of driver error.....  Rainy weather can wreak havoc on highways.  When a big storm rolls in, drivers tend to either slow down too much or not enough.  Drivers need to be wary of driving in any change in the weather.  A new study by transportation engineers reveals that nearly one-quarter of all crashes occur in bad weather conditions.  Most happen on wet pavement....

Unlike snow and ice covered roads that scare drivers into staying home or driving more carefully.  Many drivers don't consider rain as 'bad' weather, so more cars end up on wet roads, and drivers don't slow down enough to avoid serious accidents.

For more research on this front (which further supports the need to do whatever is necessary to try to make our roads safer during inclement whether in order to save more innocent lives), check out this related story headlined "Rain Is More Lethal For Drivers After A Long Dry Spell."  Here is its key fact based on a review of many years of roadway accident data:  "For any given day in the state, on average, each centimeter of precipitation increases the risk of fatal crashes by about 1 percent, [and] for nonfatal crashes, the increased risk is 11 percent."

September 14, 2016 in Class reflections | Permalink | Comments (9)

August 29, 2016

Two "extra credit" answers noting provisions of Ohio law similar to the law struck down in Proctor

I am pleased to be able to report that two students have already sent me answer to my in-class question about Ohio criminal statutes structured very similarly to the statute deemed unconstitutional in Proctor:

  1. Ohio Revised Code Section 2923.241 Hidden compartments in vehicles, Sub-section (B): “No person shall knowingly design, build, construct, or fabricate a vehicle with a hidden compartment, or modify or alter any portion of a vehicle in order to create or add a hidden compartment, with the intent to facilitate the unlawful concealment or transportation of a controlled substance.”  (Added student note: This all works on the theory that modifying your car to have a “hidden compartment” and possessing a “hidden compartment” are the same thing. But with my neophyte knowledge of the law and common reasoning I would say they probably are.)

  2. Ohio Revised Code Section 2923.24 Possessing criminal tools, Sub-section (A): “No person shall possess or have under the person's control any substance, device, instrument, or article, with purpose to use it criminally.“

I was thinking/referencing the Ohio possessing criminal tools statute in class, but I am pleased a student also flagged the Ohio hidden compartment crime (which, if you look at the code sections, is really numbered as a kind of subsection/extrapolation on possessing criminal tools).

A few years ago, the Ohio Supreme Court issued a lengthy split opinion in Ohio v. Chappell, 127 Ohio St.3d 376, 2010-Ohio-5991 (December 15, 2010), on the meaning/reach of the term "criminally" in the Ohio possessing criminal tools statute.  (But, for lots of reasons, I think your time this week would likely be better spent re-reading Jones and Martin (or watching Dave Chappelle bits on YouTube) than reading Ohio v. Chappell.)

UPDATE: Another student just sent me another possible addition to the list of Proctor-like laws in Ohio:

Ohio Revised Code Section 2925.041 Sub-section (A):  "No person shall knowingly assemble or possess one or more chemicals that may be used to manufacture a controlled substance in schedule I or II with the intent to manufacture a controlled substance in schedule I or II in violation of section 2925.04 of the Revised Code."  (Added student note:  Thus, this statute is making it illegal to possess a chemical that otherwise would be legal to possess when the possession is coupled with the intent to use the chemical in the making of a controlled substance. This appears to be a nearly identical situation as was presented in Proctor. Then, right before prohibition when alcohol was viewed as extremely problematic, this coupling line of reason was used to aid the prevention of speakeasies. Today, ORC 2925.041 is using the coupling line of reason is being used to aid in the prevention of the manufacturing of what we consider problematic, drugs. Let me know if this was the answer you were looking for.)

August 29, 2016 in Class reflections, Course materials and schedule, Notable real cases, Reflections on class readings | Permalink | Comments (1)