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Monday, December 3, 2018

Some attempt stories (though note the defendants are not only charged with attempt)

Silvia flagged in the comments to the attempt post below this interesting story from HuffPost: "North Dakota Man Pleads Guilty To Stealing Forklift To ‘Kill’ Donald Trump"

On a related front, another story from down south that may hit a little too close to home in a variety of ways: "Florida student arrested for threatening to kill professor over 7 am exam"

For the record, I am not in charge of setting the time for our exam. ;-)

December 3, 2018 in Notable real cases | Permalink | Comments (0)

Friday, November 30, 2018

A few more (not-so-old) exams for your review

As promised, here are a few more of my old exams, and these are ones that are not so old.  As always, let me know if you have any difficulties accessing any of these materials:

Download Berman 2014 Crim Law Final

UPDATE:  I think I may have mistakenly posted only an incomplete draft version of the 2017 exam.  Here is the full exam:

Download Berman 2017 Final Exam full

And, if you are gluttons for punishment, here now also is my 2016 final:

Download 2016 Crim Law final

November 30, 2018 in Course materials and schedule, Preparing for the final | Permalink | Comments (0)

Monday, November 26, 2018

Attempt actus reus hypo for consideration and reflection

The most challenging and controversial issues surrounding attempt throughout history has concerned the required actus reus for the crime.  To facilitate our discussion of the actus reus of attempt liability, below is a list of hypothetical actions by a hypothetical troubled man to get you thinking about where a line should be drawn between "mere preparation" and attempt liability:

Joe McAngry of Columbus sincerely believes libertarian ideas and those who embrace such a political philosophy are the root of much evil in the world, and he often tells his friends that the whole world would be better off without any academics, policy advocate and politicians who advocate libertarian views.   After hearing someone on Fox News say that the United States would be a better place if more politicians would embrace the libertarian philosophy espoused , Cesar took the following steps:

1.  E-mails friend saying he wished all libertarians would just get sick and die because they were barred from government-supported hospitals

2.  Posts twitter comment that he would love to see someone like Cesar Sayoc go after libertarian politicians and pundits

3.  Places stickers on van saying "FOX NEWS SUCKS" and with target symbols next to images of Gary Johnson, Ron Paul and John Stossel

4.  Does internet research on prominent figures in the US who espouse libertarian views 

5.  Writes a "hit list" of Top 5 libertarians, with Gary Johnson, Ron Paul, Rand Paul, John Stossel and Peter Theil 

6.  Does internet research on where those on his "hit list" live

7.  Does internet research on homemade bombs and explosives

8.  Rents Ryder truck for driving to Texas town where Ron Paul Institute is located

9.  Drives rented truck to suburbs outside of Houston, Texas, checks into hotel, sleeps

10.  Drives in morning to Clive and drives around the grounds of The Ron Paul Institute for Peace and Prosperity

11.  Parks near Paul Institute, walks around asking employees when Paul is there

12.  Returns to hotel room in near Houston, does more internet research on bomb-making, sleeps

13.  In morning, buys fertilizer/gas/timer and other ingredients for making primitive bomb at hardware store

14.  Drives again to Clive, Texas now with bomb ingredients in truck

15.  Parks in strategic location near Paul Institute

16.  Starts building homemade bomb inside rental truck

17.  Waits, watches for Paul to arrive at work

18.  Drives past security guard following Paul's car as he arrives for work

19.  Parks truck right next to Paul's car as he pulls into spot

20.  Jumps out of truck with remote bomb trigger in hand

21.  Runs away planning to push trigger after hiding behind stone wall

22.  Pushes trigger and....



When SHOULD Joe McAngry be deemed guilty of attempted murder?

   -- When could he be deemed guilty at common law?

   -- When could he be deemed guilty under the MPC or Ohio law?



When do you want police to intervene?

When do you think the police legally can intervene?

When do you think the police will intervene?

November 26, 2018 in Course materials and schedule | Permalink | Comments (2)

Sunday, November 18, 2018

Rounding up old exams already on the blog, with more to come

I have mentioned that one can find a number of my old exams already posted in the archives of this blog.  But, to make everyone's life a bit easier, I have rounded up a bunch (but not all) of these old exams here.  Let me know if you have difficulty downloading what appears below (and in coming posts I will upload some newer exams)

Download Berman 2013 Crim Law final

Download 2010 Crim Law final

Download Final 2003 Crim Law exam

Download 2001 Final Exam

Download 1998 Final Exam

Download 97 Final Exam

November 18, 2018 in Preparing for the final | Permalink | Comments (0)

Tuesday, November 13, 2018

Interesting news on self-defense reform in Ohio during lame duck time

This local story, headlined "Ohio House set to approve stand-your-ground gun bill," caught my eye for obvious reasons. Here are excerpts:

The Ohio House on Wednesday is expected to approve a controversial stand-your-ground bill that eliminates a “duty to retreat” when facing a threat before utilizing deadly force.

Supporters say House Bill 228, which also includes a number of other firearm-related provisions, would put Ohio law in line with about half of other states by shifting the burden of proof in self-defense cases from the defendant to the prosecution.

House Speaker Ryan Smith, R-Bidwell, said last spring, prior to the legislature’s summer/election break, that the House had a veto-proof majority to pass the bill. However, a vote was delayed until after the election, though a veto from Gov. John Kasich remains a strong possibility. Kasich has been upset GOP lawmakers have refused to act on gun-violence reduction proposals he made, including a “red flag” provision to allow a judge to order the removal of guns from people deemed a danger.

The bill is opposed by the Fraternal Order of Police of Ohio and the Ohio Prosecuting Attorneys Association, plus other gun-control proponents.  Critics say it would give those involved in a conflict less incentive to try to de-escalate or escape before resorting to lethal force.

Prosecutors have argued that current law allows those who are truly being threatened with serious harm to use a weapon in self-defense, and it’s reasonable to require a defendant to prove self-defense by a preponderance of evidence — a lesser standard than “beyond reasonable doubt.”

But supporters, including Doug Deeken, director of Ohioans for Concealed Carry, say removing the “duty to retreat” is positive, common-sense reform.  “What a ‘duty to retreat’ functionally does is force law-abiding citizens into making tactically poor choices when confronted with a violent, criminal aggressor,” Deeken told a House committee.  “While retreating may sometimes, even often, be part of the proper course of action it is not always so.”...

If passed, the bill goes to the Senate.  Lawmakers are in session through mid-December.

As if too often the case with poor reporting on legal issues, I am not sure everything in this report is factually accurate.  But I am sure there is continued momentum for continued changes to the functionality of Ohio's law of self-defense.

November 13, 2018 in Current Affairs | Permalink | Comments (0)

Monday, November 12, 2018

Ohio perspective on Dudley & Stephens and (in)famous perspective on defense lawyering

I hope everyone enjoyed as much as I did Friday's role play experience, and I also hope it gave everyone a primer on the operation of necessity (and duress) doctrines in Oliwood under the (unique) terms and structure used by the Model Penal Code.  We will be wrapping up discussion of these doctrine in our remaining classes before the Thanksgiving break, but we will not be talking any more about Dudley & Stephens.  Fortunately, if folks remain engaged by the legal and/or philosophical issues raised by the Dudley & Stephens case, there are lots of wonderful additional readings I can recommend.

A "classic" law professor engagement with the issues raised in Dudley & Stephens appeared in a Harvard Law Review article published 65 years ago.  The Case of the Speluncean Explorers by Lon Fuller is one of the most famous law review articles ever written, and the start of this Wikipedia article highlights why it is worth your time and attention:

It largely takes the form of five separate judicial opinions attributed to judges sitting on the fictitious Supreme Court of Newgarth in the year 4300.  The hypothetical involves five cave explorers who are caved in following a landslide.  They learn via intermittent radio contact that they are likely to starve to death by the time they can be rescued. The cavers subsequently decide to kill and eat one of their number in order to survive.  After the four survivors are rescued, they are indicted for the murder of the fifth member.  The prescribed penalty is capital punishment. Fuller's article proceeds to examine the case from the perspectives of five different legal principles, with widely varying conclusions as to whether or not the spelunkers should be found guilty and thereby face the death penalty under the law of Newgarth.  

Joyfully, for a wonderful, shorter and more recent consideration of these issues, one member of my criminal law class five years ago had the great initiative to imagine how a modern-day case of this nature might get resolved in Ohio. That student allowed me to post her analysis five years ago and I believe she will be fine with my reporting again.  Here is how she sets up the factual context:

Let's imagine a scenario in which four avid hikers, all associated with Ohio’s State Parks, decide to go for a winter hike at Serpent Mound, located in idyllic Adams County, Ohio. The group consists of Hatlen Books, a veteran tour guide, Dursley Dudley and Richard Stephens, members of the Ohio State Parks administration, and Peter Parker, a trainee guide, though noted as a talented climber.  The hike was predicted to be an easy one and take no more than a few hours to complete; it was more-so an excursion to view the aforementioned idyllic landscape.  The hikers deviated from the path because of an intense and unpredicted snowstorm that caught the band off-guard and limited their ability to navigate.  The band happened upon a previously unknown sinkhole that had formed sometime after the last ranger appraisal of the land (which has been some-time ago with state budget cuts).  The group was stranded on a rocky, but stable, covered corner of the hole with only snow for hydration and a 2lb bag of vegan trail mix Stephens brought on the trip.  Despite the group’s reluctance to eat vegan, they subsisted off the mix and an unlucky rabbit for 18 days.

Download Prosecuting Dudley & Stephens in Ohio


Moving from the substance to the style of criminal defense work, it is time for another movie afternoon on Friday, Nov 14.  Specifically, I plan to show a documentary about a famous (or infamous) criminal defense attorney, the 86-minute long documentary William Kuntsler: Disturbing the UniverseI figure we can start the movie at 3pm, to be followed by a happy hour if there is student interest.

November 12, 2018 in Course materials and schedule | Permalink | Comments (0)

Friday, November 9, 2018

Readings (and videos) on Paul Butler's proposal for race-based jury nullification

I mentioned briefly in Wednesday's class Professor Paul Butler's (in)famous and provocative law review article in which he urged race-based jury nullification.  The article was published as Racially Based Jury Nullification: Black Power in the Criminal Justice System, 105 Yale L.J. 677 (1995), and is available at this link.  Here is a snippet from the piece's introduction:

My thesis is that, for pragmatic and political reasons, the black community is better off when some nonviolent lawbreakers remain in the community rather than go to prison.  The decision as to what kind of conduct by African-Americans ought to be punished is better made by African-Americans themselves, based on the costs and benefits to their community, than by the traditional criminal justice process, which is controlled by white lawmakers and white law enforcers.  Legally, the doctrine of jury nullification gives the power to make this decision to African-American jurors who sit in judgment of African-American defendants.  Considering the costs of law enforcement to the black community and the failure of white lawmakers to devise significant nonincarcerative responses to black antisocial conduct, it is the moral responsibility of black jurors to emancipate some guilty black outlaws....

My goal is the subversion of American criminal justice, at least as it now exists.  Through jury nullification, I want to dismantle the master's house with the master's tools.  My intent, however, is not purely destructive; this project is also constructive, because I hope that the destruction of the status quo will not lead to anarchy, but rather to the implementation of certain noncriminal ways of addressing antisocial conduct.  Criminal conduct among African-Americans is often a predictable reaction to oppression. Sometimes black crime is a symptom of internalized white supremacy; other times it is a reasonable response to the racial and economic subordination every African-American faces every day.  Punishing black people for the fruits of racism is wrong if that punishment is premised on the idea that it is the black criminal's "just deserts."  Hence, the new paradigm of justice that I suggest in Part III rejects punishment for the sake of retribution and endorses it, with qualifications, for the ends of deterrence and incapacitation.

In a sense, this Essay simply may argue for the return of rehabilitation as the purpose of American criminal justice, but a rehabilitation that begins with the white-supremacist beliefs that poison the minds of us all --- you, me, and the black criminal.  I wish that black people had the power to end racial oppression right now.  African-Americans can prevent the application of one particularly destructive instrument of white supremacy --- American criminal justice --- to some African-American people, and this they can do immediately.  I hope that this Essay makes the case for why and how they should.

For those who (understandably) do not have enough time to read all of Butler's remarkable Essay, here is an effective (though dated, and yet also still timely) 60 Minutes video (under 10 minutes) discussing Butler's ideas.  The discussion usefully touches on some of the broader issues that jury nullification always raises.


Anyone who is eager for even more video on this issue can also see a series of 1995 segments on the Phil Donahue show (part 1 herepart 2 herepart 3 here...) with Butler and other guests.

November 9, 2018 in Class reflections | Permalink | Comments (0)

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

I realized today that I have been remiss in not elevating to the top of the blog the practice exam offered in class a few weeks ago.  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

I am now also posting 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

November 9, 2018 in Preparing for the final | Permalink | Comments (0)

Wednesday, November 7, 2018

"Is Eating People Wrong?"

6a00d8341c8ccf53ef01bb09d3c651970d-320wiFor those interesting in learning more about Thomas Dudley and his travails, check out this Wikipedia page on the Dudley and Stephens case and some of the links therein.  That page provides this accounting of the activities that led to a criminal prosecution:

Drawing lots in order to choose a sacrificial victim who would die to feed the others was possibly first discussed on 16 or 17 July, and debate seems to have intensified on 21 July but without resolution.  On 23 or 24 July, with Parker probably in a coma, Dudley told the others that it was better that one of them die so that the others survive and that they should draw lots.  Brooks refused. That night, Dudley again raised the matter with Stephens pointing out that Parker was probably dying and that he and Stephens had wives and families.  They agreed to leave the matter until the morning.

The following day, with no prospect of rescue in sight, Dudley and Stephens silently signalled to each other that Parker would be killed.  Killing Parker before his natural death would better preserve his blood to drink.  Brooks, who had not been party to the earlier discussion, claimed to have signalled neither assent nor protest.  Dudley always insisted that Brooks had assented.  Dudley said a prayer and, with Stephens standing by to hold the youth's legs if he struggled, pushed his penknife into Parker's jugular vein, killing him.

In some of the varying and confused later accounts of the killing, Parker murmured, "What me?" as he was slain.  The three fed on Parker's body, with Dudley and Brooks consuming the most and Stephens very little.  The crew even finally managed to catch some rainwater.  Dudley later described the scene, "I can assure you I shall never forget the sight of my two unfortunate companions over that ghastly meal we all was like mad wolfs who should get the most and for men fathers of children to commit such a deed we could not have our right reason."  The crew sighted a sail on 29 July.

And if you really want to dig deep and get and even more thorough understanding of the context of the crime and the prosecution, check out Chapter 2 of this book, wonderfully titled "Is Eating People Wrong?".  Here is one of many notable passages to be found therein describing Captain Dudley's background and hiring:

Captain Tom Dudley ... was short of stature with reddish hair and beard.  A self-made man of thirty, he had earned himself quite a reputation as a dependable and intrepid mariner; he brought distinction to his home port of Tollesbury in Essex, on the southeast coast of England at the mouth of the river Blackwater.  He was a religious man, ran a tight ship, and insisted that his crew remain dry.  His wife, Philippa, was a local schoolteacher, and Tom was always on the lookout for ways to improve his financial condition for the benefit of his wife and three children.  Although he did not relish being away from his family for such a long time, the trip to Australia offered substantial remuneration and a chance to check out possible business opportunities on that burgeoning continent.  He seemed an ideal choice as captain for Want and the Mignonette’s sixteen-thousand-mile, 120-day voyage.

[Australian lawyer John Henry] Want engaged Dudley on a generous contract.  For £100 on signing up and a further £100 on delivery of the Mignonette to Sydney, Dudley was to hire and pay a crew, provide all provisions on the trip, and keep her in good repair.  It seemed a wonderful deal and one that would leave Dudley with a handsome profit. However, he had problems securing the crew he required.  The boat was considered light and small for such an arduous trip through some of the world’s most treacherous waters, especially around the Cape of Good Hope. After some initial failures, he recruited a three-man crew of Edwin “Ed” Stephens (as mate), Edmund “Ned” Brooks (as able seaman), and Richard “Dick” Parker (as cabin boy).

The sailing was delayed for a few weeks because the Mignonette was in far from shipshape condition.  Although many timbers were rotten and needed replacing, the parsimonious Dudley opted to make only minimal and makedo repairs.  After extended and agitated negotiations with the Board of Trade over acquiring the necessary documents to certify the ship’s seaworthiness, the Mignonette and her crew were finally cleared to leave (or, at least, not prevented from leaving).  Like most seamen, Dudley was of a superstitious temperament.  Although he was ready to sail on a Friday, he chose to wait until the following, less ill-starred Monday.  Consequently, the ship set sail for Australia from Southampton on May 19, 1884.

November 7, 2018 in Course materials and schedule | Permalink | Comments (0)

Saturday, November 3, 2018

Some links to some materials concerning Ohio self-defense referenced in class

With apologies for not posting some of these materials sooner, here are links to a couple of sources I have referenced at some point in the last week as we have been reviewing self-defense doctrines:

From the Buckeye Firearms Association, "The Problems of Ohio’s Current Laws on Burden Shifting in Self-Defense Cases," which starts this way:

Under Ohio Revised Code Section 2901.05, a defendant is required to prove all elements of self-defense by a preponderance of the evidence. Recent case law and the development of the status of self-defense strongly suggest that shifting the burden to a defendant in this manner is unconstitutional.  Ohio’s burden shifting rule effectively changes the standard of proof necessary for the government to secure a conviction in self-defense cases.  Furthermore, Ohio’s current rule severely curtails, if not eliminates, the protections provided by the Fifth Amendment.  Ohio Senate Bill No. 180 and House Bill No. 228 provide the necessary changes to ensure those accused of a crime in Ohio receive a fair and just trial.  Where there is evidence presented that tends to show a defendant acted in self-defense, these Bills would place the burden back on the prosecution, where it rightly belongs, by requiring the prosecution to disprove at least one element of Ohio’s version of self-defense, beyond a reasonable doubt.

From the folks at Serial, Episode 5 of Season 3, "Pleas, Baby, Pleas." I highly recommend all episodes of Season 3 of series, but here is part of the transcript from the middle of this particular episode that concerns matters we have been discussing:

Sarah Koenig: The meeting with detectives this morning is to figure out how they're going to handle it — what charges [the local Ohio prosecutor Brian Ratigan] should present to the grand jury. This is a tricky one, though. Because Brian can see how the whole thing unspooled, now he's not sure a crime even occurred.

The stories in the newspaper had quoted police as saying that the older guy, the shooter, had been harassing passengers on the bus. But the bus videos show the opposite — the older guy, the shooter, he was the one being provoked.  It's possible this was self-defense.

Brian Radigan: This is one of those rare cases where you see the whole story.  Ninety percent of our cases, we're not watching them unfold.  And if something is caught on camera or whatever, usually it's from a distance.  And you don't hear the dialogue.  And you don't get to see everybody's reaction. You don't have seven different angles, or nine different angles of it.  You know, this is like the outlier, crazy, I can't believe I have to watch this whole thing and see all the decisions that were made that led to this guy dying.

This cleveland.com article about this Serial episode includes some of the video footage of the shooting that may, or may not, be a good example of self defense.

As always, I welcome and encourage commentary on these materials as well as links or reference to other interesting matters relating to the doctrines we are discussing.

November 3, 2018 in Class reflections, Course materials and schedule, Notable real cases | Permalink | Comments (1)

Wednesday, October 31, 2018

Class may not start today (10/31) until 1:20pm or a little later

As mentioned in class, at lunchtime today in Saxbe, I am part of a panel discussing Issue 1. I just realized that we might not wrap up the panel discussion in time for me to start class at the usual time. So, with apologies for the late notice, feel free to migrate to class a little later than usual and do not expect us to get started until around 1:20pm today.

If so inclined, use the extra time to check out the amazing discussion in the comments that have emerged in the wake of our legislation role-play. Kudos to all for the continued respectful engagement.

October 31, 2018 in Course materials and schedule | Permalink | Comments (0)

Wednesday, October 24, 2018

Fall 2018 proposals for an Aggravated Rape statute in the great state of Oliwood

I am now receiving draft statute in preparation for our legislative exercise on Friday, and I will update this post as they come in.


This first one comes from a drafting team that calls itself Lucretia's Voice:

Download AR Statute - Lucretia's Voice


This next-received proposed legislation comes from a team adopting the deft name of Drafting Committee #1:

Download Rape Legislation_


The third (and I think final) proposed legislation comes from a team now called Willful and Wanton Bipartisan Ship: 

Download Aggravated Rape Statute


Procedural plans:  Absent an alternative suggestion from other members of the Oliwood Senate, I plan to allow the drafting groups to have 5 to 10 minutes each to present their drafts, followed immediately by (only a few) questions from the floor on that particular proposal.  After all the presentation, we will take a straw poll to decide which particular proposal(s) to discuss further for a possible vote to enact.  Oliwood President Opra Winfree has told the media that she is prepared to sign into law whatever bill the Oliwood legislature puts on her desk.

October 24, 2018 in Course materials and schedule | Permalink | Comments (16)

Monday, October 22, 2018

Some help(?) for Oliwood code drafting from Ohio

The people of the great state of Oliwood are excited to know that a new "Aggravated Rape" statute may be enacted in the coming days, and some are wondering if nearby Ohio's Rape statute might serve as a template in some way.  Here is (most of) that provision as currently written:

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 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....

(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....

(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 are:

ORC 2907.03 Sexual battery.

ORC 2907.04 Unlawful sexual conduct with minor.

ORC 2907.05 Gross sexual imposition.

ORC 2907.06 Sexual imposition.

ORC 2907.07 Importuning.

ORC 2907.08 Voyeurism.

October 22, 2018 in Course materials and schedule | Permalink | Comments (0)

Thursday, October 18, 2018

California's notable recent retrenchment of its felony murder rules

Our final subject in the homicide unit will lead us to review the (in)famous doctrine of felony murder.  As is always the case, you will only eventually be expected to know about the MPC and Ohio approaches to this doctrine.  But you should be intrigued to learn that California, less than a month ago, significant amended its felony murder provisions.  Some details of the change are explained officially here and in this way:

Existing [California] law defines first degree murder, in part, as all murder that is committed in the perpetration of, or attempt to perpetrate, specified felonies, including arson, rape, carjacking, robbery, burglary, mayhem, and kidnapping. Existing law, as enacted by Proposition 7, approved by the voters at the November 7, 1978, statewide general election, prescribes a penalty for that crime of death, imprisonment in the state prison for life without the possibility of parole, or imprisonment in the state prison for a term of 25 years to life. Existing law defines 2nd degree murder as all murder that is not in the first degree and imposes a penalty of imprisonment in the state prison for a term of 15 years to life.

This bill would prohibit a participant in the perpetration or attempted perpetration of one of the specified first degree murder felonies in which a death occurs from being liable for murder, unless the person was the actual killer or the person was not the actual killer but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer, or the person was a major participant in the underlying felony and acted with reckless indifference to human life, unless the victim was a peace officer who was killed in the course of performing his or her duties where the defendant knew or should reasonably have known the victim was a peace officer engaged in the performance of his or her duties.

This recent local article about this legislative change highlights, in part, the impact of its retroactive provisions under the headline "Change in California law will set convicted killers free - because they didn't actually kill anyone." Here are excerpts:

Defense lawyers say the reform is long overdue and more fairly fits the punishment to the crime. Prosecutors worry that criminals won’t be held accountable when their actions cause a death. “California’s felony murder law was one of the harshest in the country,” said longtime criminal defense attorney Eugene Iredale.“This is a major step in making sure criminal justice is consistent with moral propriety. Punishment should be consistent with culpability, on the basis of crimes you actually commit, not of accident.”

The felony murder rule comes from centuries-old British common law. It says, in essence, if you took part in a felony and someone died, you could be convicted of murder. It didn’t matter whether you were the one who killed the person, or if you had no intention of harming anyone.

In California, a killing that is intentional and premeditated is first-degree murder, with a sentence ranging from 25 years to life in prison up to the death penalty in certain cases. But the state’s version of the felony murder rule sidesteps the question of intent to define other homicides as first-degree murder if they occurred during the commission of specific felony crimes including arson, rape, carjacking, robbery, burglary, mayhem, and kidnapping.

That rule underwent a major overhaul on Sept. 30, when Gov. Jerry Brown signed Senate Bill 1437, called “Accomplice liability for felony murder.” It goes into effect Jan. 1. Under the revision, only people who aided or were a “major participant” in a killing, or showed reckless disregard for human life, can be charged with felony murder. For instance, a robbery getaway driver, unaware that his accomplice just killed someone, might be charged only for having a role in the robbery.... The law goes further, with a retroactive aspect that allows inmates convicted under the current felony murder rule or the natural and probable consequences doctrine to petition the trial court to have their convictions vacated. “That, to me, is one of the biggest concerns,” said Chief Deputy District Attorney David Greenberg. “Our ability to hold people accountable for murder will be compromised.”

If a felony murder conviction is vacated, inmates could be re-sentenced for whatever felony they were committing when the killing happened. But they may well have already served the amount of time they would get for the lesser crime. If so, they would be released from prison. Greenberg said county prosecutors may have secured as many as 300 felony murder convictions going back to the 1980s and 1990s. Not all would result in petitions for release from prison — many of the convicts have already been been paroled, or could be deceased.

Greenberg prosecuted the trio convicted of murder in the killing of acting student John Lentz in Balboa Park in 1994. A 17-year-old girl shot Lentz several times from a pickup driven by a man who was looking for someone to rob. Ray Waldrop, in the backseat, was convicted of felony murder because he was in on the robbery plan. A jury found specifically that Waldrop was not a major participant in the killing. Because of that finding, he can ask the court next year to vacate his felony murder conviction. “I don’t have an argument about him being a major participant,” Greenberg said. “There is nothing for me to argue, nothing to fight.”

If Waldrop is re-sentenced on the remaining robbery charge, he could get a five-year term at most. He’s already served 23 years, so he would be eligible for release, Greenberg said....

The bill was co-authored across the political aisle by senators Nancy Skinner, D-Berkeley, and Joel Anderson, R-Alpine. Anderson, known as a political conservative, emailed a statement to The San Diego Union-Tribune, saying: “Victims don’t want vengeance, they want justice. It’s unjust to charge people with murder who had nothing to do with the actual murder.”...

Defense lawyer Robert Grimes said the felony murder rule was never fair. “Now, these matters will be evaluated on a case-by-case factual analysis by juries and judges,” Grimes said. “You get these impulsive young guys locked up for life because a robbery went bad and they didn’t really foresee someone would get killed,” he said. “In California, there has been a reassessment of the utility of certain mandatory (sentencing laws) and fairness. We are giving trial judges back discretion.”

UPDATE: Here is another notable new press piece about California notable new felony murder law headlined "Nearly a Decade Awaiting Trial, Now Freed: Neko Wilson to be released in the first test of California’s felony murder law." Here is how the piece gets started:

In the first test of a newly signed law that significantly narrows California’s felony murder rule, a judge [on Thursday] ordered the immediate release of a man who has spent nearly a decade awaiting trial in double murder. Neko Wilson, now 36, had initially faced the death penalty in connection with the July 2009 murders of Gary and Sandra DeBartolo, a couple killed during a robbery at their home in California’s Central Valley.

Prosecutors had accused Wilson of helping plan the robbery, not of killing the couple. He initially faced the death penalty under a legal doctrine known as the felony murder rule, which holds that anyone involved in certain types of serious felonies that result in death can be held as liable as the actual killer. But a new law signed by Gov. Jerry Brown in September significantly narrowed that doctrine and prompted prosecutors to drop the murder charges against Wilson.

“It’s overwhelming,” said Jacque Wilson, who is Neko Wilson’s brother and his lawyer, as he stood outside the courtroom immediately after hearing Judge John F. Vogt’s decision. “You go from being someone the state wanted to kill, to someone who’s coming home.” In court, Neko Wilson agreed to a plea deal on robbery charges, as well as charges in unrelated cases. The total sentence for those charges added up to nine years, the amount of time he’s already been jailed awaiting trial.

The prosecutor, William Lacy, senior deputy district attorney in Fresno, said the new law had left prosecutors little choice. “It’s a new world we live in,” Lacy said. “It certainly means that people who were charged with murder previously won’t be charged.”

October 18, 2018 in Current Affairs | Permalink | Comments (3)

Monday, 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)

Wednesday, 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)

Tuesday, 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)

Monday, 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)

Sunday, 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)

Tuesday, 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)

Monday, 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)

Friday, September 28, 2018

Seeking just one more attorney for Joe Shooter role play....

As of this writing, I believe we have five (very special) students who have agreed to fill positions for Monday's homicide role play. Lawyers for both sides in Ohio are "booked" and three others have expressed an openness to be in other roles. But we still need one more person to be a lawyer in California or Kansas.

As mentioned before, if nobody volunteers for the last open role, I will have to assign the final Joe Shooter role today in class.  So, if you were thinking about this but were unsure, now is the chance to jump in AND use the comments (or send me an email) to do so. Thanks.

September 28, 2018 in Course materials and schedule | Permalink | Comments (0)

Wednesday, September 26, 2018

Ohio's primary homicide provisions (in full)

As mentioned in class, I will be providing a handy-dandy version of Ohio's homicide provisions in class on Friday.  But here are the provisions in all their original glory:

Thoughts?  Getting in the habit of identifying key similarities and differences to the MPC approach to homicide (and the approached of other states) would serve you well for much of October.

September 26, 2018 in Course materials and schedule | Permalink | Comments (1)

A few Ohio cases with contested causation

As I mentioned in class, Ohio tends to adopt "common law" approach to causation doctrines.  In this post on this blog a few years ago, I flagged four of the very rare Ohio criminal cases in which causation doctrines are discussed.  Here are two of those cases I consider the most interesting on the facts, and I will here just provide the cites and facts.  You will have to look up the cases if you want to see how they worked 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.

Any students eager to earn extra credit should feel free to use their new Lexis skills to look for, and report in the comments, more recent interesting causation cases from Ohio courts.

September 26, 2018 in Course materials and schedule, Notable real cases | Permalink | Comments (3)

Friday, September 21, 2018

Some "recent" SCOTUS cases on causation in federal law

As I mentioned in class, not too long ago the Supreme Court issued rulings in a couple of cases dealing with some causation issues we will be discussing.  You are NOT required or even expected to read these cases, but you might still find it interesting to see the settings in which SCOTUS can confront issues that we are reviewing.  Here are links to the rulings, along with the start of the Court's opinion in each case:

Burrage v. United States (January 2014):  "The Controlled Substances Act imposes a 20-year mandatory minimum sentence on a defendant who unlawfully distributes a Schedule I or II drug, when 'death or serious bodily injury results from the use of such substance.' 21 U.S.C. §841(a)(1), (b)(1)(A)–(C) (2012 ed.).  We consider whether the mandatory-minimum provision applies when use of a covered drug supplied by the defendant contributes to, but is not a but-for cause of, the victim’s death or injury."

Paroline v. United States (April 2014): "This case presents the question of how to determine the amount of restitution a possessor of child pornography must pay to the victim whose childhood abuse appears in the pornographic materials possessed.  The relevant statutory provisions are set forth at 18 U.S.C. §2259.  Enacted as a component of the Violence Against Women Act of 1994, §2259 requires district courts to award restitution for certain federal criminal offenses, including child-pornography possession.

"Petitioner Doyle Randall Paroline pleaded guilty to such an offense.  He admitted to possessing between 150 and 300 images of child pornography, which included two that depicted the sexual exploitation of a young girl, now a young woman, who goes by the pseudonym “Amy” for this litigation.  The question is what causal relationship must be established between the defendant’s conduct and a victim’s losses for purposes of determining the right to, and the amount of, restitution under §2259."

September 21, 2018 in Course materials and schedule, Notable real cases | Permalink | Comments (0)