Criminal Law Course @ Moritz College of Law

"Pa. couple who only prayed for dying tot convicted"

The title of this post is the headline of this notable local article about a real case that reminds me a bit of the Williams case from our casebook.  Here is how the article starts:

A fundamentalist Christian couple who relied on prayer, not medicine, to cure their dying toddler son was convicted Friday of involuntary manslaughter and child endangerment. Herbert and Catherine Schaible of Philadelphia face more than a decade in prison for the January 2009 pneumonia death of 2-year-old Kent.

"We were careful to make sure we didn't have their religion on trial but were holding them responsible for their conduct," jury foreman Vince Bertolini, 49, told The Associated Press. "At the least, they were guilty of gross negligence, and (therefore) of involuntary manslaughter."

The Schaibles, who have six other children, declined to comment as they left the courthouse to await sentencing Feb. 2.

Experts say about a dozen U.S. children die in faith-healing cases each year.  An Oregon couple were sentenced this year to 16 months in prison for negligent homicide in the death of their teenage son, who had an undiagnosed urinary blockage.

Assistant District Attorney Joanne Pescatore will ask the judge at sentencing to put the couple's other children under a doctor's care.  She was not yet sure if she would seek prison terms for the two felonies.

Kent Schaible's symptoms had included coughing, congestion, crankiness and a loss of appetite, although his parents said he was eating and drinking until the last day, and they had thought he was getting better.  The lone defense witness, high-profile coroner Cyril Wecht, testified that a deadly bacterium could have killed him in hours.

Herbert Schaible, 42, teaches at a school affiliated with their church, First Century Gospel Church.  His wife, 41, previously taught there, but now stays at home with the couple's children, from an infant to teenagers.

The Schaibles grew up in the church and have never received medical care themselves, not counting the help of the 84-year-old lay midwife who attends home births, according to pastor Nelson A. Clark.

"Trial to begin in boy's death at Mass. gun expo"

The title of this post is the headline of this AP article reporting on a sad case about to become a headline-making criminal trial in Boston.  Here are the basics:

Eight-year-old Christopher Bizilj -- 4-foot-3 and 66 pounds -- stepped up to the firing range to shoot an Uzi as his father and 11-year-old brother watched from a few feet away. As Christopher fired the 9mm micro submachine gun at a pumpkin, the weapon flipped backward and shot him in the head.  He was pronounced dead at the hospital.

Prosecutors brought manslaughter charges against the gun club where the machine gun shoot took place, two men who supplied the weapons and a small-town police chief who owns a company that sponsored the gun fair.  On Monday, the first trial begins in what is expected to be a heart-wrenching recounting of Christopher's death on Oct. 26, 2008.

Edward Fleury, the former police chief in the tiny western Massachusetts town of Pelham, has pleaded not guilty to involuntary manslaughter as well as four counts of furnishing a machine gun to a minor.  Fleury was charged because he owned COPS Firearms & Training, which co-sponsored the gun fair at the Westfield Sportsman's Club.  He also hired the two men who supplied the guns and ran the shooting range portion of the event.

Fleury's lawyer, Rosemary Curran Scapicchio, says there is no way Fleury could have anticipated that a child would die when he co-sponsored the event.  The two men who supplied the guns -- Carl Giuffre and Domenico Spano -- had conducted the same gun shoot at the Westfield club for seven years without incident.

Fleury's lawyer also argues that prosecutors should have called Christopher's father, Dr. Charles Bizilj, to testify before the grand jury that indicted Fleury.  Charles Bizilj brought his two sons to the machine gun shoot and gave them permission to fire the Uzi.

"The prosecutor urged the grand jury to find that Chief Fleury disregarded a probable risk of death of a child.  However, the child's father did not believe that allowing his son to fire the machine gun would create a probable risk of death," Scapicchio wrote.  "The truth is that death was not a probable consequence. Instead, it was a tragic pure accident."

Hampden District Attorney William Bennett did not return calls from The Associated Press seeking comment.

Bennett has said Charles Bizilj chose the compact Uzi for his son after he was assured it was safer than a larger weapon.  He said the small size of the gun, along with its rapid rate of fire, actually made it more likely that the third-grader from Ashford, Conn., would lose control of the weapon and the muzzle would come close to his face.

Bennett said Charles Bizilj was not charged because he was a layman and based his decision to allow his sons to fire the gun on information from others who should have known it was too dangerous....

Charles Bizilj said Christopher had fired handguns and rifles previously but had never shot an automatic weapon such as an Uzi.  "I watched several other children and adults use it. It's a small weapon, and Christopher was comfortable with guns.  There were larger machine guns with much more recoil, and we avoided those," he told The Boston Globe the day after his son's death.

Bennett said Christopher was one of at least four children who fired automatic weapons at the fair.  He said Fleury had wrongly assured Giuffre and Spano that it was legal for children to use the Uzi.

Charles Bizilj was filming his son and captured the shooting on video.  Fleury's lawyer has asked the judge to exclude the graphic video from the trial.

The Bizilj family has been devastated by Christopher's death, said Bruce Melikian, an attorney who represents the family in a wrongful death lawsuit against Fleury, Spano and Giuffre. "I'm not sure what this trial will accomplish," Melikian said.  "I think their main concern is that no one else ever has to go through this again."

Fleury faces a maximum of 20 years in prison if convicted on the manslaughter charge.  He faces a maximum of 10 years if convicted of furnishing the weapon to a minor.

This sad real case almost sounds like a hypo from a criminal law exam, and thus it might present a good opportunity to test your knowledge of various doctrines.

"Was FBI grooming Portland suspect for terror?"

The title of this post is the headline of this article in the Seattle Times, which stuck me as blog-worthy in light of our class discussions today.  Here is how the piece starts:

FBI undercover operatives helped fund Mohamed Osman Mohamud's would-be terrorism plot to detonate a car bomb during a Christmas tree-lighting ceremony on Friday at a crowded public square in the heart of the city.

Operatives helped him find components needed to create a bomb and schooled the 19-year-old Somali-born man in how to set off the explosives. The sting operation enabled the FBI to amass a formidable amount of details about what a grand-jury indictment Monday charged was Mohamud's attempt to use a car bomb as a "weapon of mass destruction."

But Mohamud's attorneys and some local Muslims are raising questions about whether the operatives who posed as co-conspirators played their role too well. Defense attorney Steve Sady questioned whether the operatives were "basically grooming" Mohamud to try to commit a terrorist attack.

"The information released by the government raises serious concerns about the government manufacturing a crime," according to a statement released by Sady and Steven Wax, public defenders assigned to represent Mohamud.

Mohamud, through his attorneys, pleaded not guilty on Monday.

Law-enforcement officials say that they gave Mohamud plenty of opportunities to opt out of the bomb plan and that he was committed to carrying out the crime at the time, place and location of his choosing.

"I am confident there is no entrapment here," Attorney General Eric Holder said Monday in Washington, D.C. "There were ... a number of opportunities ... that the defendant in this matter was given to retreat, to take a different path. He chose at every step to continue."

Real case involving an honest/genuine(?) --- but seemingly crazy/unreasonable(!) --- killer who might claim necessity (or duress)

I was struggling in class yesterday to come up with a plausible hypo that would effectively portray the possibility of somebody having an honest but unreasonable belief that they needed to kill an innocent person to prevent a greater harm or when subject to under a coercive force. Today I just learned about a spooky case via this AP story from Illinois that perhaps provides a real setting for testing these possibilities. The story is headlined "Prosecutor: Mom says she killed girl as protection," and here is how it begins:

A woman charged with first-degree murder in the slaying of her 4-year-old daughter in suburban Chicago told police she killed her child to prevent her from being raped and sold as a sex slave online, prosecutors said.

Marci Webber of East Nassau, N.Y., was being held Monday at DuPage County Jail on $5 million bond in the death of Magdalene "Maggie" Webber.  Her body was found last week in an upstairs bathroom of a Bloomingdale town house.  The child's throat was slashed and the words "divine mercy" were scrawled in blood on a nearby wall, according to DuPage County prosecutors.

The 43-year-old mother told police she gave her daughter sleeping pills and Benadryl, some of which were found next to the girl's body along with a 4-inch folding knife, prosecutors said.     "She said she wanted to keep her daughter from being an Internet sex slave," Assistant State's Attorney Joseph Lindt said in court Sunday.

Prosecutors later said they did not believe the girl ever faced such a threat.  They planned to seek a mental health evaluation in anticipation of an insanity defense, Paul Darrah, a spokesman for the DuPage County state's attorney, said Monday.

"'Castle doctrine' coming under fire; Critics: Right to kill intruder is being used to defend criminals"

The title of this post is the headline of this timely article appearing in today's Columbus Dispatch.  Here is how the article gets started:

Ohio prosecutors warned two years ago that the "castle doctrine" would add an unwelcome page to the playbook of criminal-defense lawyers.

The 2008 law, designed to protect the grandmother who shoots an intruder in her home in the middle of the night, increasingly is being used to defend murder suspects as not legally responsible for their deeds.

The castle doctrine states that people are presumed to be acting in self-defense when they use deadly force and injure or kill someone who illegally enters their occupied home or vehicle.

But critics say the law is silent about the appropriate level of force in response to threats, as well as the fault or criminal conduct of people who create situations that imperil themselves. "It was not made to protect drug dealers from drug dealers, but that's how it's being used," Pike County Prosecutor Rob Junk said.

In rural Pike County, a man who ripped off a drug dealer's wares shot the dealer through the heart after he broke a window in an attempt to enter the defendant's car. Defense attorneys contended that the man acted lawfully. A jury convicted him of reckless homicide rather than murder.

In Franklin County, a man fatally stabbed an acquaintance who pushed his way into the defendant's home during an argument. His attorneys said the law granted him an absolute right to defend himself with deadly force. The prosecution countered that the law "is not a license to commit murder."

Class plans for defenses through November

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).

For our initial self-defense discussions, be sure to read (and re-read) La Voie and especially Leidholm very carefully.  In addition, to get a running start on Ohio's approach to self-defense, also 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).)

In addition, for a timely recent story about self-defense issues in Ohio, check out this new piece from today's Columbus Dispatch, which is headlined "Judge says killing wasn't self-defense: Man to appeal over 'castle doctrine'."

We likely will wrap up our self defense discussions on Tuesday, Nov. 16 and cover necessity and duress doctrines in our last two pre-Thanksgiving classes.  Be sure to read accordingly.

Looking at the sad Rutgers case through the lens of criminal law doctrine

The media is starting to buzz a lot about a sad back-to-school story coming from Rutgers.  This link gets you to a segment about the case from the Today show, and here are the basics via MSNBC:

The suicide of a university student — after a recording of him having a sexual encounter with a man was broadcast online — has stirred outrage and remorse on campus from classmates....

A lawyer for Clementi's family confirmed Wednesday that he had jumped off the George Washington Bridge last week....

Clementi's roommate, Dharun Ravi, and fellow Rutgers student Molly Wei, both 18, have been charged with invading Clementi's privacy.  Middlesex County prosecutors say the pair used a webcam to surreptitiously transmit a live image of Clementi having sex on Sept. 19 and that Ravi tried to webcast a second encounter on Sept. 21, the day before Clementi's suicide.

Collecting or viewing sexual images without consent is a fourth-degree crime. Transmitting them is a third-degree crime with a maximum prison term of five years.

Ravi wrote Sept. 19 on what is believed to be his Twitter page, which has since been deleted, but is still accessible though Google's cache system: "Roommate asked for the room till midnight. I went into molly's room and turned on my webcam.  I saw him making out with a dude. Yay."

Two days later, Ravi apparently posted another entry referring to iChat, an internet messaging service with a live video feed.  "Anyone with iChat, I dare you to video chat me between the hours of 9:30 and 12. Yes it's happening again," Ravi wrote in the Sept. 21 post.

The website Gawker reported that a user called cit2mo who posted messages on a website called JustUsBoys may have been Clementi.  In a thread called "college roommate spying," the post from cit2mo on Sept. 21 at 7:22 a.m. said: "so the other night i had a guy over. I had talked to my roommate that afternoon and he had said it would be fine w/him. I checked his twitter today. he tweeted that I was using the room (which is obnoxious enough), AND that he went into somebody else’s room and remotely turned on his webcam and saw me making out with a guy. given the angle of the webcam I can be confident that that was all he could have seen," cit2mo wrote.

"I’m kinda pissed at him (rightfully so I think, no?) ... I feel like the only thing the school might do is find me another roommate, probably with me moving out … and i’d probably just end up with somebody worse than him ... I mean aside from being an asshole from time to time, he’s a pretty decent roommate," he added.

He added at 9:28 a.m. that day, that "I feel like it was 'look at what a fag my roommate is' ... and the fact that the people he was with saw my making out with a guy as a scandal whereas i mean come on ... he was SPYING ON ME ... do they see nothing wrong with this? unsettling to say the least."

ABC News and The Star-Ledger of Newark reported that on Sept. 22 Clementi left a note on his Facebook page that read: "Jumping off the gw bridge sorry." On Wednesday, his Facebook page was accessible only to friends. 

In addition to being eager to hear student responses to this sad story, I want to know whether and how you think criminal law doctrines will play out in this kind of case. And the first students to provide links to the New Jersey criminal law statutes referenced in this story get extra Berman brownie points.

Trouble for Plaxico even without attempt charges

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

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

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

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

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

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

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

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

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

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

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

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

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

The real story (and crimes?) of "Ken the Shooter" from Ohio

CNN has this effective report on the real Ohio shooting I mentioned in class on Wednesday.  Here are the specifics:

A Warren Township, Ohio, man faces charges of felonious assault after authorities say he fired his rifle at two teens who were attempting to deface his McCain presidential campaign yard sign. Kenneth Rowles, 50, pleaded not guilty to the charge Monday, according to CNN affiliate WBNS.  Bail was set at $10,000.

Rowles told police he was sitting on his porch Saturday when a tan SUV pulled up and a black youth jumped out and ran toward his house, screaming, "This is for Obama."  He said another male was hanging out of the passenger window screaming the same thing.  Rowles said he went inside, got his rifle and fired three shots to scare the youths away, according to a Warren Township police report.

He told officers he believes that the men "were the same two that have been destroying his McCain sign."  Just hours before the shooting, Rowles called police and said that a car had stopped in front of his house and that a black male "ran up and said something about Obama," according to the report, and "damaged his sign again." 

One of the youths, 17-year-old Kyree Flowers, was shot in the arm, according to a police report.  He and the second youth, Patrick Wise Jr., 16, told police they were in the car attempting to leave when Rowles fired at them. "Kyree stated that he witnessed the homeowner trying to shoot Patrick but he was having trouble chambering a round," the police report said.

The teens admitted that they had defaced the McCain sign several times, Warren Township police Lt. Don Bishop told CNN.... Bishop said the teenagers probably will not be charged -- and are unlikely to damage campaign signs again, as the incident scared them.  Warren Township is in Trumbull County not far from Cleveland, Ohio.

As we wrap up our discussion of homicide offenses, give some thought as to what charges an Ohio prosecutor might have brought in this case had Kyree Flowers been killed rather than just shot in the arm as a result of this encounter.  Also, as we prepare to discuss defenses next week, think about whether Kenneth Rowles will be able to avoid conviction through claiming defensive use of force.