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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 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 13, 2016

Hung jury brings end to first trial of former officer in Cincy shooting

This AP story, headlined "Deadlocked Jurors Force Mistrial in Ohio Police Shooting," provides lots of interesting details after a jury was unable to resolve which homicide charges were most appropriate in a high-profile Cincinnati case. Here are some highlights:

Jurors failed to come up with a verdict against a white former police officer charged with murder in the fatal shooting of an unarmed black motorist and were leaning toward a lesser conviction, a prosecutor said Saturday after a mistrial was declared. The jury spent some 25 hours debating the outcome and indicated several times that they were deadlocked before a judge agreed.

Prosecutors will decide within the next two weeks whether to retry former University of Cincinnati police officer Ray Tensing. He was fired after shooting 43-year-old Sam DuBose in the head after pulling him over for a missing front license plate on July 19, 2015. Tensing, 26, testified he feared he was going to be killed. Prosecutors said repeatedly the evidence contradicted Tensing's story.

Hamilton County Prosecutor Joe Deters said jurors were leaning toward a conviction of voluntary manslaughter and acquittal on the murder charge. He later told media outlets the vote was deadlocked at 8-4 in favor of the lesser charge.

Judge Megan Shanahan said the jury of 10 whites and two blacks spent two hours deliberating Saturday morning after getting a night's sleep and still could not reach a decision. "It's obvious to me you have made a sincere and conscientious effort," the judge said before setting a new hearing date for Nov. 28 to determine whether the case will be brought back.

Attorney Al Gerhardstein, who represents the DuBose family, said they want another trial and can't understand why the jury couldn't reach a conclusion. "With the video evidence as clear as it is, they shouldn't have been so stuck," he said....

To convict Tensing of murder, jurors would have had to find he purposely killed DuBose. The charge carried a possible sentence of 15 years to life in prison. The voluntary manslaughter charge means killing during sudden fit of rage and carries a possible sentence of three to 11 years.

Legal experts say juries generally tend to give police officers the benefit of the doubt because of the inherent dangers of their jobs, but that they will convict if the police actions were clearly unwarranted.

In tearful testimony Tuesday, Tensing said his arm was stuck in DuBose's car after he tried to stop him from driving away by grabbing the car keys. "I remember thinking, 'Oh my God, he's going to run me over and he's going to kill me,'" Tensing said.

An expert hired by prosecutors said his analysis of the former officer's body camera video shows the officer was not being dragged by the car. A defense expert countered that the video shows Tensing was justified in fearing for his life because his body was "violently twisted" during the confrontation.

Deters suggested that Tensing had racial motives, saying a study found that eight of every 10 drivers Tensing pulled over for traffic stops were black, the highest rate of any University of Cincinnati officer. Tensing also made more traffic stops and citations than other UC officers. Deters also pointed to a T-shirt with Confederate flag on it that Tensing was wearing under his uniform the day of the shooting.

Tensing said he was often unaware of a driver's race, did not single people out unfairly and was not racist. He testified that the Confederate flag on his T-shirt had no meaning to him.

November 13, 2016 in Notable real cases | Permalink | Comments (0)

November 08, 2016

Remarkable new Ohio murder charge for old beating that brings up lots of "classic" issues

Though we are technically done with the homicide unit, I just saw this new local story of a notable new Ohio murder prosecution.  The story is headlined "Man charged with murder after beating son a decade ago," and here are the sad (and legally interesting) details:

Almost 10 years have passed since Michael Robinson beat his infant son nearly to death — the injuries to the child’s brain so profound that Dana Robinson lived a life filled with medical complications and chronic pain before he died in his bed at the age of 9 last year.

But now Michael Robinson has been charged with murder.

A Logan County grand jury indicted Robinson, 52, this morning. He’s in the Allen Correctional Institution in Lima, serving a 14-year prison sentence after pleading guilty in 2008 to charges of felonious assault, endangering children and domestic violence in connection with Dana’s beating at the family’s Bellefontaine home in February 2007. He now faces up to life in prison.

Eric Stewart, chief assistant prosecutor in Logan County, said that after Dana died in his sleep Nov. 13, 2015, detectives requested an autopsy. The Montgomery County coroner said that Dana, who had been left a paraplegic with cerebral palsy, died of complications from his severe brain trauma.

No date for Michael Robinson’s arraignment on this new charge in Logan County Common Pleas Court has yet been set.

Dana’s was a life that The Dispatch chronicled, first because local investigators said it was the worst case of child abuse they’d ever seen. Dana had been systematically tortured since birth: shaken, squeezed, smacked, pricked with pins and pinched. Michael Robinson had hurt his older sons before, and said in court that he was only trying to “toughen them up.” As doctors once testified about Dana’s injuries in court,  Michael rolled his eyes.

November 8, 2016 in Notable real cases | Permalink | Comments (1)

October 29, 2016

If you are eager to learn more about the sad particulars behind the Welanksy case...

here is a documentary with a partial recreation of the events at Coconut Grove: 

October 29, 2016 in Notable real cases | Permalink | Comments (1)

October 28, 2016

"Man sentenced to 13 years in fatal shooting"

Another interesting local story, available here, provides another window into how unclear facts and lawyers influence homicide outcome both in terms  of Ohio charges and ultimate sentencing.

October 28, 2016 in Notable real cases | Permalink | Comments (0)

October 26, 2016

Another local Ohio homicide (involving murder and voluntary manslaughter charges) worth thinking about...

which I believe made national news back in the summer and is in the papers again this afternoon:

October 26, 2016 in Current Affairs, Notable real cases | Permalink | Comments (0)

October 19, 2016

Some local Ohio homicide headlines

As we move into our "specific crimes" unit of our course, the laws we are reviewing are often going to be central to real cases that frequently generate news coverage. For example, just today's Columbus Dispatch includes these two new Ohio homicide stories:

October 19, 2016 in Current Affairs, Notable real cases | Permalink | Comments (0)

October 10, 2016

For a useful set of perspectives on the death penalty in Ohio and elsewhere...

check out this 50-minute local WOSU/NPR segment from last week.  Here is the overview of what you will hear:

Support for the death penalty has been on the decline and recently hit a a record, four decade low. Despite the decline, legislators in many states continue to back capital punishment. Today we discuss Ohio as it prepares to reinstate the death penalty after a two year hiatus, and look at how Nebraska ended the practice.

  • Jim Petro, Former Ohio Attorney General

  • Robert Blecker, Professor of Criminal law and Constitutional law, New York Law School; and Author, “The Death of Punishment: Searching for Justice among the Worst of the Worst”

  • Colby Coash, Nebraska State Senator

October 10, 2016 in Course materials and schedule, Current Affairs, Notable real cases | Permalink | Comments (1)

October 05, 2016

Four interesting examples of Ohio criminal cases in which causation was a debated issue

To finish our review of the "general part" of the criminal law, we will dig further into the law of causation.  In that review, I will note that Ohio tends to adopt a more "common law" approach to causation doctrines than an MPC approach, but I will also explain why this is a distinction that does not really make much of a difference in all but the rarest of cases.  Still, I thought it might be useful here to note the facts of a couple of the rarest of Ohio criminal cases in which causation doctrines were discussed.  So, if you want to take a deep dive into some notable Ohio causation cases, consider checking out:

1.  Ohio v Lovelace, 137 Ohio App. 3d 206 (1st Dist. App. 1999), gets started this way:

The issue in this appeal is whether a person who leads police on a high-speed car chase can be found guilty of involuntary manslaughter when one of the police cruisers in pursuit runs a stop sign and collides with another vehicle, killing the driver. The answer turns on whether the evidence was sufficient to support the jury's finding that the defendant-appellant, Paul Wayne Lovelace, should have foreseen the fatal accident as a consequence of his own reckless behavior. At the time of the accident, Lovelace was driving a stolen car and had already led Ohio and Kentucky police on a multi-car chase that reached speeds of one hundred miles per hour, crossed back and forth over the Ohio River, and caused several collisions and near collisions in both states.

Lovelace argues that he cannot be guilty of involuntary manslaughter because he could not possibly have foreseen that the officer would disregard the stop sign — although he had done so himself only moments before.  In his view, the police officer's failure to stop was an intervening cause of the accident, absolving him of criminal responsibility.  Lovelace also contends that his trial was unfair because the trial court's evidentiary rulings deprived him of the opportunity to present crucial evidence, and because the jury instructions misled the jury on the critical issue of proximate cause.

2.  Ohio v Voland, 716 N.E.2d 299 (Ohio Com. Pl. 1999), involves these essential facts:

[T]he defendant, while under administrative license suspension growing out of her arrest for driving under the influence of alcohol, drove her vehicle from the western side of Hamilton County to the Cincinnati Sand Volleyball Courts ... accompanied on that drive and at the courts by her daughter, Alexandria, age four, and a cousin, Ashley Weaver, age twelve.... At some point after her arrival at the Cincinnati Sand Volleyball Courts, Voland was approached by her cousin, Ashley Weaver, who complained that she was hot and bored. Ashley Weaver was watching Voland’s daughter, Alexandria.

At that time, the defendant gave her twelve-year-old cousin the keys to her car so that Ashley could get in and start the car to permit the air conditioning to work, allowing Ashley and Alexandria to cool off and wait while defendant played volleyball.  The two children got into the car, started the car, turned on the air conditioning, and listened to the radio. They played in the car while the engine was running, in excess of ninety minutes unattended, with the exception of one visit by defendant. During the one visit, defendant did not notice any attempts to move the vehicle.

At approximately 8:10 p.m., with the two girls playing in the automobile and the engine running, the car lurched forward, over a parking block six to eight inches in height, across a short, grassy area of four to six feet, where the auto struck a fence. The fence, approximately six to eight feet in height, had a four-by-four post nailed vertically to it, apparently to seam two sections of the fence together. This fence post cracked and fell to the ground on the inside of the fence, striking Steven Smith in the head, causing injuries that resulted in his death.

3. Ohio v Dixon, 2002 WL 191582 (6th Dist. App. 2002), involves these essential facts:

Defendant Christopher Dixon, appeals from his conviction and sentence for felony murder [resulting from] Dixon and his cousin Sherman Lightfoot [making] plans to rob the Jiffy Lube located at 3931 Salem Avenue in Dayton, Ohio. In preparation for the robbery, Dixon and Lightfoot obtained latex gloves and “Jason” masks, which were popularized in the movie, “Friday the 13th.” At approximately 6:15 p.m., the two men drove a blue Camaro to the Jiffy Lube, parking it across the street. Dixon was wearing an orange-colored hooded sweatshirt, while Lightfoot was wearing a white hooded sweatshirt.

Dixon and Lightfoot entered the Jiffy Lube and Dixon grabbed one of the employees, Gregory Anderson. Lightfoot pointed a gun in Anderson's face, and the two robbers demanded to know where the money was located. Anderson told them it was in the office. Dixon and Lightfoot then took Anderson to the office. Anderson told them that only the manager had the key to the drawer where the money was kept. Lightfoot instructed Anderson to call for the manager. Anderson complied and the store manager, Michael McDonald, came to the office. At that point Lightfoot pointed the gun in McDonald's face.

McDonald began struggling with Lightfoot over the gun. During the struggle, the gun fired once. When Lightfoot momentarily stumbled and fell backward during the struggle, McDonald gained control over the gun.  Lightfoot immediately regained his balance, and both he and Dixon ran out of the store. McDonald fired several shots in the direction of the fleeing suspects. Dixon ran back to the Camaro, got in and sped away.  Lightfoot fell to the ground in the parking lot as a result of a gunshot wound to the head. Lightfoot subsequently died at Good Samaritan Hospital.

4. Ohio v Wilson, 182 Ohio App. 3d 171 (1st Dist. App. 2009), gets started this way:

Defendant-appellant Eric Wilson ... was charged with murder [and other counts based on activities] on September 1, 2006, [when] Wilson, a drug trafficker, was in his car driving around the area of East 59th Street and Francis Avenue selling drugs.  He stopped his car to meet with some buyers when James Yhonquea walked up, pulled out his gun, and put it against Wilson's head.  Yhonquea took Wilson's drugs, money, and cell phone and started to run down East 59th Street. Wilson jumped out of his car and started to run after Yhonquea. Wilson began shooting at Yhonquea and fired off eight rounds, hitting a parked car and a house.  Yhonquea returned fire, hitting Wilson's car.

Asteve (“Cookie”) Thomas, a 12–year old girl who lived in the neighborhood, was walking home from the corner store with her friends when one of the bullets shot from Yhonquea's gun struck her in the chest. She managed to walk to a neighbor's house, collapsed, and died approximately 30 minutes later.

October 5, 2016 in Notable real cases | Permalink | Comments (0)