Criminal Law @ Moritz College of Law

PLANS FOR EXAM REVIEW (or meetings for any other reason)

Now that we are a few weeks into the new semester, I wanted to start creating a regular schedule for students to "book" time to provide for one-on-one review of exam performace (or to talk about summer jobs or any other topic).  The times I am regularly available, at least for the next couple weeks, are:

Wednesdays between 12noon at 2pm

and

Fridays between 1pm at 2:30pm

If any 30-minute block in these times can work for you in the coming weeks, please feel free to send me an email to "book" that time for a one-on-one meeting at my office (Drinko Room 313).  If you want to talk about your exam, please be sure to send me your exam number.  I will try to swiftly confirm your appointment date/time by return email. 

If these times do not work for you, suggest a few alternative times in February.

NEW ZOOM LINK FOR ALL OUR REVIEW SESSIONS!!

I am still planning to conduct (entirely optional) review sessions in the days leading up to our exam.  Specifically, I plan to be on Zoom to answer questions in two weekend sessions: 

Saturday, December 17, starting at 1:30pm

Sunday, December 18, starting at 11:30am

In addition, I will plan to conduct an in-person review session in our usual classroom (which will also be Zoomed): 

Monday, December 19, starting at 11am.

I will also plan to record/post these review sessions, AND I have created a new zoom link for our review sessions in order to ensure I can make a recording and post it on Carmen after each of our planned review sessions.

I have posted the new Zoom link on under Announcements Carmen and will also plan to send it to the whole class via email on Saturday morning (I do not want to post it here and risk bombing).  Feel free to email me if you cannot find the new link.

Last year's final exam and links to many more

As I have suggested in various ways at various times, reviewing my old exams can be an effective way to prepare for my new final.  As some of you may now, the easiest way to find my old finals is by scrolling down posts at the Preparing for the final category archive.  (Or, perhaps even easier is to jumpt to the December 2021 archive.)  I am pretty sure you can find nearly all my old exams via links in prior posts via the archives.

The only prior final exam not already on this site is my Fall 2021 exam.  So here it is:

Download Berman 2021 Crim final exam

Please let me know, via the comments here or email, if you have any problems accessing this old exam or any of the older ones.  And if I can do anything more to help as your work through this finals Fall, please feel free to reach out.

A real-world German variation on attempt/conspiracy hypos

Though I do not know German conspiracy and attempt laws, I do know that this new story from the Washington Post, headlined "German police arrest 25 over far-right plot to overthrow government,"provides a useful reminder of the real-world risks that attempt/conspiracy laws seek to address.  Here are excerpts:

German authorities on Wednesday arrested 25 people suspected of plotting to use armed force to storm parliament and violently overthrow the state, marking one of the country’s largest ever raids targeting right-wing extremists.... The majority are accused of being part of a “terrorist organization,” according to the prosecutor’s statement.  The remaining three — including a Russian national — were detained on suspicion of being supporters.

In addition to the arrests, police searched the properties of a further 27 individuals who are being investigated on an “initial suspicion” of being a member or having supported the organization, the statement said.  More than 3,000 police officers were involved in the raids, which took place in 11 of Germany’s 16 states.

The accused subscribe to a variety of conspiracy theories, including QAnon, but draw most heavily from the Reichsbürger movement, which denies the existence of the modern German state, officials said. But they warned it would be naive to dismiss them as cranks.  “Of course there are many busybodies who tell confused stories after drinking alcohol,” Justice Minister Marco Buschmann tweeted. “Here, however, there were such strong suspicions that the group wanted to take violent action.”

The details of the suspected plot triggered comparisons to the Jan. 6 insurrection at the U.S. Capitol, as German politicians raised it as a reminder of what can happen when anti-constitutional plans are allowed to manifest....

The group was united in a belief that Germany is run by a members of a “deep state,” the prosecutor said, adding that it was prepared to use violence — including the murder of state representatives — to carry out its aim of replacing the existing order in Germany with its own form of government.  The group had planned out the structure of the state apparatus it planned to install once Germany’s government was overthrown, including departments of health, justice and foreign affairs....

“Since November 2021, the members of the ‘Council’ have regularly met in secret to plan the intended takeover of power in Germany and the establishment of their own state structures,” the statement said.  Members believed that “liberation” would be assisted by the intervention of the “Alliance” — a secret society of military and governments, including those of Russia and the United States.  Heinrich XIII had reached out to Russian representatives inside Germany, the prosecutor’s office said — although it added there were no indications of a positive response to his overtures....

According to Germany’s Die Zeit newspaper, one of the defendants posted on Telegram shortly before the raids that public prosecutors, judges and health authorities would “soon find themselves in the dock at Nuremberg 2.0,” in reference to the trials of Nazi war criminals held after World War II.

Without more particulars, of course, it would be hard to debate the particulars of actus reus and mens rea here. But this story from another nation, I thought, provided a useful reminder that the issues we discussed to wrap up the semester are not only of concern in US criminal law and practice.

Mapping out review session plans for days before our exam

As mentioned in class, I am tentatively planning to have (entirely optional) review sessions in the days leading up to our exam. Specifically, I plan to be on Zoom to answer questions in two weekend sessions: 

Saturday, December 17, starting at 1:30pm

Sunday, December 18, starting at 11:30am

In addition, I will plan to conduct an in-person review session in our regulat classroom on Monday, December 19, starting around 11am.

I will assume these times are workable unless and until otherwise from folks with suggestions for better times.

Discouragingly timely hypo for wrapping up attempt / complicity / conspiracy discussions

To facilitate discussion of various doctrines related to attempt (particularly the act requirement), I have in past years put up posts with a sequence of actions by a young man seemingly interested in committing an act of domestic terrorism.  Examples are here (planning to bomb Microsoft's headquarters) and here (planning to bomb Apple's headquarters) and here (planning to bomb the Ron Paul Institute).

Based on depressing recent events, and in an effort to highlight the discouragingly challenging realities surrounding mass shootings, I have revised the hypo (and hope it is not too triggering).  Here goes:

1. Joe McAngry calls his parents to say was fired from his job at Twitter and joked he might want to borrow his dad's rifle

2. Joe emails his friends to say he was very depressed and angry Elon Musk bought Twitter and fired so many people like him

3. Joe texts a former co-worker who was also fired to say he hoped someone "got back" at Musk

4. Joe posts anonymously on Twitter that Musk ought to be sure to "keep looking over his shoulder" 

5. Joe researches online about where Musk lives and works and can be found on most workdays

6. Joe researches online about the Tesla Gigafactory in Austin, Texas and contacts persons about arranging a tour 

7. Joe posts on Facebook that some day retribution would come to Musk and those who work with him

8. Joe orders a bulletproof vest from an online store for overnight delivery

9. Joe travels to his parents home and picks up his dad's rifle and a ski mask, telling his dad he had hunting plans

10. Joe visits a gun store and buys 60 rounds of ammunition for the rifle and also a handgun with 60 more rounds

11. Joe uses Waze to map out a route from his home in California to Tesla headquarters in Austin, Texas

12. Joe creates a fake document that states he has been invited for a special tour of the Tesla Gigafactory

13. Joe begins a drive to Texas, with his guns and ammo and vest, staying overnight at a motel in eastern Arizona 

14. Joe completes his drive to Austin, staying overnight in a motel a few miles from the Tesla Gigafactory

15. Joe, wearing his a bulletproof vest, drives in morning to Tesla headquarters and circles grounds 

16. Joe drives to security checkpoint and convinces guard using fake document that he has a tour scheduled at the factory

17. Joe parks near where he thinks Musk has his office and is working that morning 

18. Joe waits, watching for working to arrive at location while monitoring Musk's Twitter account

19. Joe emerges from his car with his rifle in one hand and his handgun in another

20. Joe starts running toward the entrance to the Tesla Gigafactory, pointing his guns at persons nearby yealling "Where's Elon?"

21. Joe begins to squeeze trigger as he sees someone he thinks is Musk emerge from the Tesla Gigafactory....

 

ATTEMPT LIABILITY QUESTIONS

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?

 

POLICING QUESTIONS

When do you want police to intervene?

When do you think the police legally can intervene?

When do you think the police will intervene?

A few law movies that I hope will not drive you insane (or to worry about insanity doctrines)

In our very quick review of insanity doctrines, I mentioned that insanity claims often get more attention in courtroom movies rather than in actual courtrooms.  I showed one clip from Anatomy of a Murder (1959), and I would recommend highly the full movie.  For a more recent movie with some insanity talk, check out Primal Fear (1996).  In addition, Nuts (1986) is an interesting movie addressing competency to stand trial.

Partially to provide a reminder that you should be doing a lot more than just studying even as exams approach, I though it might be fun to also post some other law-themes movie recommendations.  Of course, you may not find it relaxing to watch law movies, I cannot resist noting some of my favorites in this genre:

• 12 Angry Men (1957)
• The Fortune Cookie (1966)
• A Few Good Men (1992)
• My Cousin Vinny (1992)
• The Firm (1993)
• A Time to Kill (1996)
• The Devil's Advocate (1997)
• Michael Clayton (2007
• Just Mercy (2019)

I have intentionally left out law school movies, but at some point every law student should find time for the classics of The Paper Chase (1973) and Legally Blonde (2001).  

I am going to try to make sure the comments here stay open so everyone can share movie recommendations (law or otherwise).

How a variation of Dudley & Stephens might be resolved in Ohio under common law necessity doctrines

I hope everyone enjoyed Monday's role play, and kudos to the lawyers who did a great job under challenging circumstances. If folks remain engaged by the legal and/or philosophical issues raised by the Dudley & Stephens case, a "classic" law professor account of 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 the Wikipedia entry highlights why it is so engaging:

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.

For a wonderful, much shorter and more recent consideration of these issues, one member of my criminal law class nine years ago had the great initiative to imagine how a modern-day case of this nature might get resolved in Ohio under its common-law defenses scheme.  That student allowed me to post her analysis, and 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 & Stevens in Ohio

Might Thomas Dudley ask his potential lawyers "Is Eating People Wrong?"

I hope everyone is excited for next Monday's role play experience which is intended to focus on defenses (and especially necessity and duress) in Oliwood under the (unique) terms and structure used by the Model Penal Code. The lawyers (and the rest of the class) can prepare adequately by just reviewing the MPC doctrine and the facts of the Dudley & Stephens case.   But anyone deeply interesting in learning a lot more about Thomas Dudley and his travails should 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.

Professor Paul Butler's forceful arguments 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 Professor Butler's remarkable Essay, here is an effective (though dated, and yet also still timely) 60 Minutes video (under 10 minutes) discussing Professor 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 here, part 2 here, part 3 here...) with Professor Butler and other guests.

Background on infamous Menendez case and links to less famous recent cases

I briefly mentioned in class the Menendez case, involving an infamous double murder followed by questionable claims of self-defense, which led to a high-profile televised trial in the early 1990s.  Realizing that many of you were born long after that case captured the headlines, I figured I would provide a few links to the juicy story:

Short version of story from History.com: "The Menendez brothers murder their parents"

Long version of story from Biography.com: "Why the Menendez Brothers Killed Their Parents – a Look Inside Their Murder Case"

Of course, one need not go back three decades to find interesting real-world defensive force cases.  A quick Google search turned up these notable stories from around the country from just the past few weeks:

From California, "‘I hate myself for what I did’: Teen accused of killing mom claims self-defense"

From Colorado, "Semi driver who admitted to fatally shooting woman in Aurora from truck cab claims self-defense and is charged with murder"

From Florida, "He saw a rival on a motor bike and opened fire. Miami jury acquitted him of murder."

From Minnesota, "Man charged in deadly Minneapolis mass shooting takes stand; argues self-defense"

From Missouri, "Here’s why ‘stand your ground’ law protected woman who shot KC firefighter from charges"

From New York, "Lawyer claims 73-year-old killer was acting in self defense when he shot brother at mom’s Queens home"

Draft "Aggravated Rape Statute" for consideration before scheduled (in-class) hearing

I am please to report having just received a completed "Draft Aggravated Rape Statute" from the drafting group of Olivia, Ryan, and Greyson.  The proposal runs three pages, and can be downloaded here:

Download 2022 Completed Draft Aggravated Rape Statute from OGR

Draft "OSU Sexual Misconduct Policy" for consideration before scheduled (in-class) hearing

I have received the first detailed proposal for class consideration of an OSU Sexual Misconduct policy from Luke, Ian, Michael and Nick Wead.  The proposal runs four pages, and can be downloaded here:

Download 2022 OSU Sexual Misconduct Policy from LIMN

 

UPDATE:  This blogging software seems to finally be operational again, as so I can now post here the second piece of draft legislation sent my way.  This "draft Campus Sexual Misconduct Policy" has been provided by the drafting committee of Isabella, Lili, Marie, Reema, and Izzy.

Download Campus Policy Draft from RMIIL

 

LAST MINUTE ADDITIONAL UPDATE:  While I was at a student lunch, I received a final "Proposed Campus Sexual Misconduct Policy" from Sarah, Zarah, Patrick, Stephen, Nick, AJ and Mehek Sheikh:

Download Campus Sexual Misconduct Draft from SZPSNAM

Raw scores and scoresheet/grading grid for 2022 midterm exam now posted on Carmen under Files

I have now posted, to the Files folder on our Carmen class site, the raw scores for the midterm exam administered earlier this month (in a single page PDF).  I have also posted, as a separate pdf, my scoresheet/grading grid that I used for calculating raw scores.

I have already discussed a bit whet these raw scores mean during our class this week, but I am happy to answer any additional general questions in class and I will also plan to have time after class for conferences for any and all students who may want to meet to discuss their performance or who may have specific questions about this midterm and/or law school exams more generally.

As I have been seeking to stress in class, this midterm is quite intentionally designed as a learning experience and the raw score results are part of the learning process.  I will be eager to continue to advance that learning via one-on-one or group discussions in the weeks ahead.

Ohio's major (and intricate) sex offense provisions

As I mentioned in class, I do not test on (or expect you to know thoroughly) modern sex offense doctrines in part because they are quite intricate thanks to modern efforts to properly categorize and criminalize a range of sexual misconduct.  (And we will not look closely at the Model Penal Code's sex offense provisions because the original ones are widely seen as dated and recent revisions are quite extended.) 

As for Ohio, the Sex Offenses Chapter of the Ohio Revised Code has more than 40 distinct provisions criminalizing everything from "Rape" to "Sexual Battery" to "Voyeurism" to "Compelling prostitution" to "Pandering obscenity" and all sorts of stuff in between.  Here are just some portions of Ohio's "Rape" statute, with a few provisions emphasized for potential in-class discussion:

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....  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.... 

(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....

(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.

Here are links to the other major Ohio sex offense provisions:

ORC 2907.03 Sexual battery.

ORC 2907.04 Unlawful sexual conduct with minor

ORC 2907.05 Gross sexual imposition

ORC 2907.06 Sexual imposition

If you click through to all of these provisions, you will see what looks like a "spouse" exception throughout.  That reality has recently prompted a bill to eliminate such an exception, but it has been stalled in the Ohio General Assembly.  This effective press article, headlined "Bill to criminalize spousal rape in Ohio has no opponents, so why can’t it pass?," discusses these matters.

Links to some prior examples of legislative drafts from prior role plays

I will seek to explain in class, perhaps a bit more clearly, the logistics for the legislative drafting role play that is tentatively scheduled to take place in class on Friday, October 28. For now, folks (especially folks who have not yet been involved in a role play) should be thinking about possibly assembling a drafting committee with fellow students.

I am grateful for all those who have already expressed an eagerness to participate, and I will discuss more of particulars of the exercise in the coming days.  In the meantime, you can and should feel free to peruse some of the efforts from prior years captured in the archives of this blog.  Here is an abridged accounting:

From 2013:

Oliwood rape reform proposals from four drafting subcommittees

 

From 2014:

Sexual offense code reform proposals from our drafting subcommittees (bonus trivia: one of the drafters from 2014 is a 538 favorite to win a 2022 seat in Congress)

 

From 2016:

Submitted draft proposals for revised MPC rape provision and for elaborate campus sexual behavior code

 

From 2018:

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

 

From 2021:

Draft Aggravated Rape statutes for legislative consideration before scheduled (in-class) legislative hearing 

Draft "Campus Sexual Misconduct Policy" for consideration before scheduled (in-class) hearing

Reminders and updates about Friday lunches

The first lunch will take place this coming Friday (Oct 21), and MANY thanks for those who have already signed up for lunches.  I am tracking plans via this Google document.  Folks signed up for the lunches should come by Drinko Room 313 so we can all walk together to the lunch locale.

There are still open slots for:

November 11

November 18

Since I cannot seem to work Google docs well, sign up by using the comments below claiming certain dates, feeling free to list multiple names if you have coordinated a group.

Full text of the Simpsons hypo — RIP Rod and Todd — for reviewing variations in unintended homicides

I quickly read in Monday's class a Simpsons hypo for your consideration as a fact pattern to explore the various ways that various jurisdictions approach unintended homicide charges.  I will likely seek to discuss this case's application at least in Ohio and Oliwood to get us started next week.  Here is the full text (with 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 of 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 all the birds away.  Burns urges Smithers to be sure to check whether anyone is in the area; Burns knows kids still like to use the tree house, even though Burns had his staff put up a sign stating that kids playing in the tree house would be prosecuted for trespassing.

Eager to do Burns' bidding and to shoo the birds away quickly, Smithers only calls out -- "Hello, can anyone hear me?" -- in any effort to determine if anyone is in the tree house.  Smithers does not directly check to make sure no kids are in the tree house beyond repeatedly calling out.  After calling out a few times, he gets no response (though the woods are noisy).  Smithers decides that he has done enough given that he does not plan to shoot directly 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 Simpsons' devout neighbor, were in the tree house praying because they thought being high off the ground brought them closer to their lord.  (The Flanders sincerely thought that praying, rather than playing, in the tree house was perfectly fine.  The kids had heard Smithers call out each time, but they thought it was the lord speaking to them.)  Tragically, the third shot from the antique flare-gun fired off line and into the tree house. 

The third flare shot by Smithers which entered the tree house struck Rod Flanders directly in the chest.  Todd Flanders discovered that his older brother Rod has been killed instantly by the flare; distraught, he jumps out the tree house window to his death.

Smithers turns himself in, and now you are the prosecutor trying to decide whether he might be guilty of some 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.

If you are interested in more of the ugly Welansky backstory...

Here is a documentary with a partial recreation of the events that lead to the prosecution of Barnett Welansky.  The introduction is a bit much, but the 20 minutes that follow give you a flavor of the story behind an historic and horrific event: 

In addition, if you think this could not happen again, consider that it roughly did (though with a smaller body count) in The Station nightclub fire in Rhode Island in 2003.  Here are the basic facts of that sad case and the legal aftermath (drawn from this Wikipedia entry):

The Station Nightclub fire was the fourth-deadliest nightclub fire in U.S. history, killing 100 people. The fire began at 11:07 PM EST, on Thursday, February 20, 2003, at The Station, a glam metal and rock and roll themed nightclub located at 211 Cowesett Avenue in West Warwick, Rhode Island.

The fire was caused by pyrotechnics set off by the tour manager of the evening's headlining band, Jack Russell's Great White, which ignited flammable sound insulation foam in the walls and ceilings surrounding the stage. A fast-moving fire engulfed the club in 5½ minutes. In addition to the 100 fatalities, some 230 people were injured and another 132 escaped uninjured....

In the days after the fire, there were considerable efforts to assign and avoid blame on the part of the band, the nightclub owners, the manufacturers and distributors of the foam material and pyrotechnics, and the concert promoters. Through attorneys, club owners said they did not give permission to the band to use pyrotechnics. Band members claimed they had permission....

On December 9, 2003, brothers Jeffrey A. and Michael A. Derderian, the two owners of The Station nightclub, and Daniel M. Biechele, Great White's former road manager, were charged with 200 counts of involuntary manslaughter — two per death, because they were indicted under two separate theories of the crime: criminal-negligence manslaughter (resulting from a legal act in which the accused ignores the risks to others and someone is killed) and misdemeanor manslaughter (resulting from a petty crime that causes a death)....

The first criminal trial was against Great White's tour manager at the time, Daniel Michel Biechele, 29, from Orlando, Florida. This trial was scheduled to start May 1, 2006, but Biechele, against his lawyers' advice, pled guilty to 100 counts of involuntary manslaughter on February 7, 2006, in what he said was an effort to "bring peace, I want this to be over with."... Superior Court Judge Francis J. Darigan sentenced Biechele to 15 years in prison, with four to serve and 11 years suspended, plus three years' probation, for his role in the fire....

Following Biechele's trial, the Station's owners, Michael and Jeffrey Derderian, were scheduled to receive separate trials. However, on September 21, 2006, Superior Court Judge Francis J. Darigan announced that the brothers had changed their pleas from "not guilty" to "no contest," thereby avoiding a trial. Michael Derderian received 15 years in prison, with four to serve and 11 years suspended, plus three years' probation — the same sentence as Biechele. Jeffrey Derderian received a 10-year suspended sentence, three years' probation, and 500 hours of community service.

In a letter to the victims' families, Judge Darigan said that a trial "would only serve to further traumatize and victimize not only the loved ones of the deceased and the survivors of this fire, but the general public as well." He added that the difference in the brothers' sentences reflected their respective involvement with the purchase and installation of the flammable foam.

Rhode Island Attorney General Patrick C. Lynch objected strenuously to the plea bargain, saying that both brothers should have received jail time and that Michael Derderian should have received more time than Biechele.

Noting that an Ohio version of the Berry case comes out a bit differently

A case with facts reasonably similar to those in the Berry murder/manslaughter case in our text was litigated all the way up to the Ohio Supreme Court in State v. Shane, 63 Ohio St.3d 630, 590 N.E.2d 272 (1992).  Here are the facts in the Shane case:

At approximately 6:00 a.m. on October 13, 1989, appellant, Robert Shane II, made a telephone call to the New Philadelphia Police Department to report the death of his fiancee, Tina Wagner.  Shane told the police officer who answered the phone, "I'm the one who did it ... she just drove me crazy and I choked her."  Police officers soon responded to the scene, which was an apartment shared by Shane, Wagner, and the couple's infant child.  When the officers entered the apartment, they discovered Wagner's nearly nude body lying on a bed; a red shirt was wrapped tightly around the victim's throat.  An autopsy revealed that Wagner had died of asphyxiation by strangulation.  Tests done on the victim's body revealed a urine alcohol content of 0.27 grams per deciliter.

Shane was indicted on one count of murder, a violation of R.C. 2903.02, to which he entered a plea of not guilty.  Testifying in his own defense at the trial, Shane again admitted that he had killed Wagner, but told the jury of statements Wagner had made to him immediately prior to the incident, which upset him greatly.  Shane stated that Wagner told him she had been sleeping with other men and that she no longer cared for him.  Shane testified, "I have never felt more upset and more mad with anyone [in] my entire life."  Shane further testified that after he became so upset, the next thing he remembered was "coming to" after having passed out and finding himself lying on the bed with Wagner underneath him.

How do you think the Ohio Supreme Court applied Ohio's particular version of voluntary manslaughter rule on these facts?  The Shane case provides a helpful account of how Ohio courts look at the issue of provocation, and here are snippets from the Shane ruling: 

An inquiry into the mitigating circumstances of provocation must be broken down into both objective and subjective components.  In determining whether the provocation is reasonably sufficient to bring on sudden passion or a sudden fit of rage, an objective standard must be applied.  Then, if that standard is met, the inquiry shifts to the subjective component of whether this actor, in this particular case, actually was under the influence of sudden passion or in a sudden fit of rage.  It is only at that point that the emotional and mental state of the defendant and the conditions and circumstances that surrounded him at the time must be considered.  If insufficient evidence of provocation is presented, so that no reasonable jury would decide that an actor was reasonably provoked by the victim, the trial judge must, as a matter of law, refuse to give a voluntary manslaughter instruction....

We hold that words alone will not constitute reasonably sufficient provocation to incite the use of deadly force in most situations.  Rather, in each case, the trial judge must determine whether evidence of reasonably sufficient provocation occasioned by the victim has been presented to warrant a voluntary manslaughter instruction.  The trial judge is required to decide this issue as a matter of law, in view of the specific facts of the individual case.... 

Provocation, to be reasonably sufficient, must be serious. But it was only Wagner's statements to Shane that caused him to become enraged.... Shane alleges that it was only mere words that provoked him.  Considering this fact, together with the surrounding circumstances of the case, we conclude that no reasonable jury could have decided that Shane was sufficiently provoked by the victim so that a conviction on the inferior-degree offense of voluntary manslaughter could have been forthcoming.

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.

The Shane court is the last major Ohio Supreme Court discussion of voluntary manslaughter in the context of a domestic dispute, but this issue continues to arise in lower courts.  And for an interesting debate over how Shane should be applied on a slightly different set of facts, you might consider the work of the Ohio Eleventh District Court of Appeals in State v. Wagner, 2007 Ohio 3016 (Ohio Ct. App. 2007), in which the appellate panel divided over the appropriateness of a voluntary manslaughter instruction in another case involving a husband killing his wife amid heated discussions of infidelity.

Notable efforts to preclude LGBTQ+ "panic" as adequate provocation to mitigate an killing

I briefly mentioned as we started discussing the historic common-law doctrine of provocation that one modern development concerns legislative efforts to categorically preclude "panic" about gender and sexual orientation from being deemed legally adequate provocation.  The American Bar Association played a leading role here when in 2013 it unanimously approved this resolution:

RESOLVED, That the American Bar Association urges federal, tribal, state, local and territorial governments to take legislative action to curtail the availability and effectiveness of the “gay panic” and “trans panic” defenses, which seek to partially or completely excuse crimes such as murder and assault on the grounds that the victim’s sexual orientation or gender identity is to blame for the defendant’s violent reaction. Such legislative action should include:

(a) Requiring courts in any criminal trial or proceeding, upon the request of a party, to instruct the jury not to let bias, sympathy, prejudice, or public opinion influence its decision about the victims, witnesses, or defendants based upon sexual orientation or gender identity; and

(b) Specifying that neither a non-violent sexual advance, nor the discovery of a person’s sex or gender identity, constitutes legally adequate provocation to mitigate the crime of murder to manslaughter, or to mitigate the severity of any non-capital crime.

This LGBTQ+ Bar webpage notes that, since the ABA's resolution, "the District of Columbia and the states of California, Illinois, Rhode Island, Nevada, Connecticut, Maine, Hawaii, New York, New Jersey, Washington, Colorado, Virginia, Vermont, Oregon, Maryland, and New Mexico have banned such defenses. Legislation is pending federally as well as in multiple states."

Professor Cynthia Lee is one of the nation's leading scholars concerning provocation issues. She recently authored this notable (and lengthy) article titled "The Trans Panic Defense Revisited."  Among other virtues, this article provides a example of how an academic's views on important issues can evolve. Here is part of the article's abstract:

When a man is charged with murdering a transgender woman, a common defense strategy is to assert what is called the trans panic defense. The trans panic defense is not a traditional criminal law defense. Nor, despite its name, is it recognized as a stand- alone defense. Rather, trans panic is a defense strategy associated with the provocation or heat of passion defense....

This Article offers several reasons why the trans panic defense strategy is deeply problematic.  First, the trans panic defense appeals to negative stereotypes about transgender individuals.  Second, it legitimizes the enforcement of norms of masculinity and heterosexuality through violence.  Third, it inappropriately validates bias against transgender individuals when we live in a pluralistic society that should be tolerant and accepting of all individuals.

The Article then addresses the normative question of what should be done to rectify the harms rendered when a defendant charged with murder asserts a trans panic defense.  In the past, the Author was reluctant to support proposals to legislatively ban the trans panic defense.  She felt that the best way to defeat the trans panic defense was not to ban it, but to allow it to be aired and then have a strong prosecutor explain to the jury why it should be rejected.  She also argued that it was critically important to eradicate the underlying structures of masculinity that encourage violence against transgender women to reduce the risk of such violence taking place and to undermine the effectiveness of the trans panic defense.  She opined that the best way to achieve these goals was to educate both the public and the jury about the difficulties transgender individuals face just trying to exist in society and make the existence of bias against transgender individuals salient to the jury.

While the Author still believes in the importance of education, she now feels education alone is insufficient to ensure that juries reject the trans panic defense.  The Article explains the Author’s shift in position and concludes by examining recently enacted legislative bans on the trans panic defense and offering concrete suggestions on how legislative reform in this arena could be strengthened.

A working list of lunch dates (with comments available for signing up) .. and now a Google Doc

Rather than devise another website for arranging lunch dates, I figure I will use this space and explain again the basics if you are interested.

The basics: up to 5 students can meet at my office (Room 313) at 11:30am on the designated date so we have time to walk to the Wexner Center to grab a bite (Going Dutch) and chat about life or law or whatever else before our class or other activities.

Viable (initial) dates:

October 7

October 21

October 28

November 4

November 11

November 18

Sign up: by using the comments below claiming certain dates, feeling free to list multiple names if you have coordinated a group.

UPDATE:  MANY thanks for those who have already signed up for lunches.  I finally had the good sense to make an open Google Doc to do this in a more orderly fashion, so I gave moved names from the comments to this Google document which can now be accessed by all who want to sign up (or change plans).

Also, I have adjusted some of the available dates and added a few later in November.

ANOTHER UPDATE:  MANY thanks for those additional signed ups for lunches.  It looks like we are now full on October 28 and November 4.  There is still room on other dates AND I can and will make additional dates if there is interest.

For your review and preparation (and enjoyment?): prior mid-terms and exam prep materials

To help you prepare for the coming mid-term (on Wednesday, Oct 12), I am happy to provide prior exams and other exam prep materials.  To start, I will post here the mid-term exam I gave students in this class last Fall, as well as a "practice" mid-term that I typically offer when I teach a large-section class (and associated follow-up materials).

Download Berman Crim Law midterm for 2021

Download practice_exam.rtf

Download key_issues_on_practice_exam.rtf

Download exam_tips_memo.rtf

I think this is (more than) enough material for helping you prepare for the mid-term (which is supposed to be a relatively low-key event).  But you can find more old exams in the archives if you are a glutton for exam punishment.

Some intriguing examples of Ohio criminal cases in which causation was a debated issue

As I briefly mentioned in class, Ohio tends to adopt a more "common law" account and approach to causation doctrines (similar to California's approach in Rhoades).  But, because both actual and legal cause is readily proven in almost all cases, the legal specifics often do not really make much of a difference.  Still, I thought you might be intrigued by the facts of some of the (quite rare) 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 some of these sad cases (but feel absolutely NO obligation to do so):

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.

A few US Supreme Court and Ohio Supreme Court cases involving causation and deaths from drug dealing

Especially because I have given some attention to the (still-growing) problem of drug overdose deaths and possible criminal responsibility therefore, I wanted to flag for you a couple of relatively recent cases dealing with causation issues in this context.  You are NOT required or even expected to read these cases (especially because the Ohio ruling is more than a bit confusing), but I thought you might find it interesting to see the settings in which courts now most commonly confront the kinds of causation issues that we are discussing this week.  Here are links to these two  rulings, along with the start of the courts' opinions in each case:

From the US Supreme Court:

Burrage v. United States, 571 U.S. 204 (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."

From the Ohio Supreme Court:

State v. Price, 162 Ohio St.3d 609 (2020): "In this discretionary appeal from the Eighth District Court of Appeals, which also certified a conflict between its judgment and a judgment of the Fifth District Court of Appeals, we consider whether a trial court, when instructing a jury on the causation element of the offense of corrupting another with drugs, is required to inform the jury that it must find not only that the accused’s conduct was the 'but-for' cause of serious physical harm to the victim — i.e., that without the accused’s conduct, the injury would not have occurred — but also that it was an 'independently sufficient cause' of that harm."