Powered by TypePad

Wednesday, December 13, 2023

Most recent exams for practicing as we get close to finish line

You all will be done with exams in just a matter of hours now, but there is always time for more old exams for practice.  I promised to put up a couple more, and hear are my latest two:

From 2 years ago: Download Berman 2021 Crim final exam

From last year: Download Berman 2022 Crim final exam

December 13, 2023 in Preparing for the final | Permalink | Comments (0)

Tuesday, December 12, 2023

Review, review, review ... Tuesday, Wedensday, Thursday at 2pm

I have not heard any complaints about my review session plans, and so I am still planning to have (entirely optional) review sessions in the early afternoons this week, Tuesday to Thursday (December 12 to 14).

As I mentioned in class, I do not make any presentation during these sessions, I just make myself available to answer questions (often at great length).  We can plan to meet at 2pm in our usual classroom (though if there are exam-takers in our usual room, we should move to an open room nearby).


UPDATE And for those Zoom interested, there is a new Zoom link on Carmen for joining the review sessions remotely (in the Announcement section).  I am also recording these sessions and will have the videos on Carmen as well (located where the class recordings are, under Modules).



December 12, 2023 in Preparing for the final | Permalink | Comments (0)

Monday, December 4, 2023

Fifteen, Ten, Five ... so many years ago for these exams

You take a deep breath and think about taking a practice exam.  It's your 1L year and you're gonna do great since you have come to the right place for Berman's practice exams.  I previously blogged with a link to a (lucky?) seven past exams here.  Now, you can count to ten and take it in with links to three more past exams in a sequence of fives:

From 15 years ago: Download 2008 Final Crim Law exam

From 10 years ago: Download Berman 2013 Crim Law final

From 5 years ago: Download 2018 Final Crim Law Exam

December 4, 2023 in Preparing for the final | Permalink | Comments (0)

Sunday, November 26, 2023

Mapping out final class plans (and tentative review session plans)

I hope everyone has been having a relaxing holiday weekend, and I am eager to try to avoid adding to the stresses of the end of classes and the start of exam period.  To that end, I want to remind everyone what to expect in the coming weeks:

Class plans:

We finish our official class sessions in this coming week, and we will finish up our substantive review of attribution doctrines with a quick tour of complicity and conspiracy on Monday and Tuesday.  If you have read, thoroughly and carefully, the Ochoa case in our text, you will be well prepared for our class discussions.

We will not have class on Wednesday.

Our final class on Thursday will involve completing evaluations as well as discussing some broad themes of the class and what you should expect on the final exam.  If time permits, I am also happy to conduct an "open" review sessions to answer any questions you might have about course materials.


Review session plans:

I am tentatively planning to have (entirely optional) review sessions in the days leading up to our exam.  Specifically, I will plan to be in our classroom to answer questions during the early afternoons (say 2pm) Tuesday to Thursday (December 12 to 14).  These dates and times and the location are entirely flexible, and I am eager to hear any suggestions for other times that will be helpful to you in the coming weeks.

November 26, 2023 in Course materials and schedule, Preparing for the final | Permalink | Comments (0)

Monday, November 20, 2023

Prior posts with older law movie recommendations (and some old exams)

I am planning to use the Thanksgiving break to eat too much and catch up on rest (and watch football) and spend time with family (and watch football) and play some board games and watch some movies (and football).  In some prior pre-turkey day posts, I have flagged some of my favorite law-related movies:

Though most of these movies were made before most of you were born (and a couple are even before I was born), these all still hold up pretty well.  (I have left out law school classics like the The Paper Chase (1973) and Legally Blonde (2001) because you all have plenty of law school without needing to watch movies about it.)

Though I think rest and movie watching should take priority over work during the break, I figure I should elevate here some links to some of my old exams for those starting to focus on post-break realities.   This old post from almost exactly a decade ago has links to seven old exams.  That's way more than anyone should review anytime soon, but be sure to let me know if you have any problem accessing any of these old materials. 

November 20, 2023 in Preparing for the final | Permalink | Comments (0)

Wednesday, November 15, 2023

A political 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 recent political developments, I have revised my hypo (and hope it is not too triggering).  Here goes:

1. Joe McAngry calls his parents to say he was excited by Nikki Haley's campaign for President and wishes old folks like Joe Biden and Donald Trump would get out of way

2. Joe emails a friend to say is very depressed and angry that his choices for President in 2024 might again be Biden and Trump

3. Joe texts a co-worker that he wished Biden and Trump would "just die already" so someone else could be president 

4. Joe posts anonymously on X that "someone should kill Donald Trump" to spare the country the spectacle of his trials and 2024 campaign 

5. Joe researches online where Trump is scheduled to give speeches in coming weeks

6. Joe researches online about Mar-a-Lago and contacts persons about events at the property

7. Joe posts anonymously on Facebook that "some day harm would come to Trump and those who defend 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 South Carolina to Mar-a-Lago

12. Joe creates a fake document that states he is a member of the Fox News advancement team

13. Joe begins a drive to Mar-a-Lago, with his guns and ammo and vest, staying overnight at a motel in Daytona Beach, Florida 

14. Joe completes his drive to Palm Beach, staying overnight in a motel a few miles from Mar-a-Lago

15. Joe, wearing his a bulletproof vest, drives in morning to Mar-a-Lago and circles grounds 

16. Joe drives to security checkpoint and convinces guard using fake document that he has permission to access the Donald Trump Grand Ballroom

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

18. Joe waits, watching for workers to arrive at location while monitoring Trump's Truth Social 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 Mar-a-Lago, pointing his guns at persons nearby yelling "Where's Trump?"

21. Joe begins to squeeze trigger as he sees someone he thinks is Trump emerge from a door at Mar-a-Lago....



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?



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 15, 2023 in Course materials and schedule | Permalink | Comments (0)

Monday, November 13, 2023

Ohio case like Crawford with a similar (common law) result

A couple years ago, an Ohio intermediate appellate court resolved an appeal in a criminal case with a duress claim based on a set of facts somewhat similar to the Crawford case in our text. The Ohio court reached a similar result as in Crawford based on the common law's emphasis on the need for a threat being "imminent" for a duress claim to succeed.  The full opinion in State v. Womack, 2021-Ohio-1309 (Ohio App. 5th Dist. April 14, 2021), covers a number of legal issues, but the discussion of duress from paragraphs 46 to 56 is a pretty good account of the basics of Ohio law.  The duress discussion concludes this way:

Upon our review of the record, we agree with the trial court's conclusion that the evidence did not support Womack's contention that the affirmative defense of duress was applicable to the facts of the case.  We do not dispute that Womack subjectively believed he and his family were being threatened with imminent death or serious bodily injury. We note that the Sixth District Court of Appeals has recognized that duress may be found when the threat is made against the defendant's family.   State v. Cowan, 6th Dist. Wood No. WD-14-026, 2015-Ohio-2101, 2015 WL 3488289, ¶ 28; State v. Luff, 85 Ohio App.3d 785, 804, 621 N.E.2d 493 (6th Dist.1993) (stating that jury instruction on duress should have been given where defendant testified that someone threatened to destroy his family).  Our research indicates, however, that only the Sixth District Court of Appeals has extended the definition of duress to include the threat of imminent death or serious bodily injury to a defendant's family.  However, the force of harm threatened must be in the present; fear of future harm cannot be the basis for the threat of duress.  There was no evidence presented that Shot was a present threat to Womack's family, there was only a possible threat of future harm.

Womack's argument for application of the defense of duress fails because Womack had the ability to safely withdraw from the harm before committing the offenses of aggravated burglary and kidnapping.  He could have withdrawn or escaped after he arrived at M.B.'s home.  According to Womack's testimony, Shot and JT were on the side of the house while Womack was alone on the front porch.  Shot and JT were out of his view from the front porch.  There was no evidence that Shot was pointing his gun at Womack while Womack was on the front porch. M.B. testified that Womack entered her house alone and closed the front door.  In the home with only he and M.B. present, Womack could have asked M.B. for help or left the home through another door.  While on the front porch, Womack testified he tried to leave but he was pushed into the home by Shot and JT.  After Shot and JT entered the home, Womack testified he did in fact leave the home without expressing a fear of harm or even with the knowledge that any money was found, which would have released him from his debt to Shot.

The defense of duress is strictly and extremely limited in application.  Upon the facts of this case, we find the trial court did not abuse its discretion by not giving the jury instruction for duress.  We overrule Womack's third Assignment of Error.

November 13, 2023 in Notable real cases | Permalink | Comments (0)

Wednesday, November 8, 2023

Is it insane to ask lawyers "Is Eating People Wrong?"

71qBsT35J5L._SY522_I hope everyone is excited for Thursday's role play, which is intended to focus on defenses (and especially necessity and duress) in Oliwood under the unique provisions of 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 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,  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 8, 2023 in Course materials and schedule | Permalink | Comments (0)

Monday, November 6, 2023

Professor Paul Butler's forceful arguments for race-based jury nullification (nearly 30 years ago)

I mentioned in Monday's class Professor Paul Butler's provocative arguments for race-based jury nullification, which first appeared in a law review article published as Racially Based Jury Nullification: Black Power in the Criminal Justice System, 105 Yale L.J. 677 (1995).  The full argument is available at this link, and 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 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 herepart 2 herepart 3 here...) with Professor Butler and other guests.

November 6, 2023 in Recommended scholarship | Permalink | Comments (0)

Saturday, November 4, 2023

Ohio's common law necessity doctrines (aided by a decade-old, inspired student analysis of D&S in Ohio)

As we will discuss in the coming weeks, Ohio's common-law approach to defenses extends to the classic defenses of necessity and duress.  Though the modern common-law cases we will review in the casebook are not from Ohio, they provide a generally effective accounting of how Ohio courts will be inclined to review claims of duress and necessity.  For example, the Ohio Supreme Court decades ago had a case, State v. Cross, 58 Ohio St.2d 482 (Ohio 1979), somewhat similar to the Unger case in its legal holding (though involving somewhat different facts).

And, helpfully, one member of my criminal law class ten years ago had the great initiative to imagine how a modern-day variation on the Dudley and Stephens case  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 Brooks, 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

November 4, 2023 in Course materials and schedule, Notable real cases | Permalink | Comments (0)

Sunday, October 29, 2023

Highlighting some recent real cases raising self-defense claims

As we will discuss in class, defensive use of force claims — typically "self-defense" claims — are certainly the most common (and often the most controversial) form of a "true defense" actually raised in criminal cases.  Indeed, a quick google news search turns up lots and lots of local press stories about self-defense claims involving a variety of folks in a variety of settings.  Here is a recent sampling of some press stories (with no expectation that anyone checks out more than a few of these news accounts):

From Alabama, "Prosecutors Argue Timeline Disproves Darius Miles' Self-Defense Claim"

From Arizona, "A Machete Draws Blood. Was It Deadly Assault or Self-Defense?"

From Colorado, "I-25 double homicide suspect claims self-defense"

From Connecticut, "Stabbing at Dunkin' in Manchester was self-defense; man injured arrested for assault"

From Florida, "Gun fight in Palatka: Man claimed self defense, other shooter held without bond"

From Kentucky, "Murder suspect in apparent NKY road rage shooting claims it was self-defense"

From Minnesota, "Case dismissed against Amazon driver who punched St. Paul homeowner, claimed self-defense"

From Nevada, "Police rule deadly shooting at Verdi home an act of self defense"

From South Carolina, "Resident acts in self-defense, shoots man in Laurens Co., deputies say"

From Texas, "Does Takeoff’s Accused Killer Have a ‘Valid Self-Defense’ Argument?"

From Virginia, "A delivery driver who shot a YouTuber who was pranking him said it was justifiable self-defense — and a jury agreed"

Anyone who cannot get enough of these "real crime" tales can check out similar reviews of real cases from prior years here and here.  Again, nobody should feel any obligation to review all these stories; but a review of just the headlines should help highlight also the different contexts in which self-defense claims get raised and all the different legal players — police, prosecutors, judges, jurors — who are called upon to assess these claims.

October 29, 2023 in Notable real cases | Permalink | Comments (0)

Wednesday, October 25, 2023

Three draft aggravated rape proposal already submitted for legislative consideration

Here are the three proposals I have received (so far) for our legislative role play:


From Megan H. and Joshua L.:   Download H & L 2023 Aggravated Rape Statute


From Adam B. and Nathaniel H.:  Download B & H 2023 Aggravated Rape Statute Proposal


From Sabrina M., Megan S., Tianan Y., and Maggie M:  Download M & M & S & Y 2023 Aggravated Rape Proposal



October 25, 2023 in Course materials and schedule | Permalink | Comments (0)

Tuesday, October 24, 2023

Recent prior examples of legislative drafts from prior years' role plays

The folks who have kindly agreed to take on a drafting role for our legislative role play, which is scheduled to take place in class on Thursday, October 26, should know that they need not and ought not feel as though they need to start drafting from scratch.  As is well known by real legislators (and their staff), it is often quite sound and quite wise to seek to build new legislative proposals on prior effort.  To that end, everyone can and should feel free to peruse some of the drafting efforts from prior years captured in the archives of this blog.  Here is an abridged accounting:


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


From 2022:

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

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



October 24, 2023 in Course materials and schedule | Permalink | Comments (0)

Sunday, October 22, 2023

Raw scores for 2023 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 already discussed a bit what (little) these raw scores mean during our class last week, but I am happy to answer any additional general questions in class.  I will also plan to soon have official times for optional one-on-one 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.

October 22, 2023 in Preparing for the final | Permalink | Comments (0)

Thursday, October 19, 2023

Seeking to summarize and highlight 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 are still under revision.)

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 sexually transmitted disease or infection 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 sexually transmitted 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 prompted bills to eliminate such an exception, but these have always 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 as of last year.  And just earlier this week, there is continued news via this Statehouse News Bureau article headlined, "Bill ending Ohio's spousal rape 'loophole' makes it out of committee."

October 19, 2023 in Course materials and schedule | Permalink | Comments (0)

Saturday, October 14, 2023

Post-break schedule reminders AND help from The Simpsons as we get back into unintentional homicides

6a00d8341c8ccf53ef026bdef9b5ac200c-320wiI hope everyone had a Fall Break that was as restful and restorative as possible.  Though I suspect you are sad the break is winding down, I am excited to get back to our regular meetings.  And, I wanted to remind everyone that we do not have class on Oct 16 (Monday), but do have class on Oct 17-19 (Tuesday though Thursday).   

As for coverage, in our week back, I expect we will wrap up the homicide unit, which means you should finish reading all the unintentional homicide materials (which includes reckless murder and felony murder).  Before we turn to how "more serious" unintentional killings can be murder, though, I will want to quickly review the material we covered right before the break concerning the (diverse) ways "less serious" unintentional killings are labeled as homicides.  To that end, I have often used a Simpsons hypo to explore the how various jurisdictions approach unintended homicides.  I will likely use this hypo to review Ohio and Oliwood law to start out next class.  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 homemade peanut butter.  (Bart took it to the tree house to keep Homer from eating all of it.)  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 the birds away.  Burns urges Smithers 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 an 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.  Calling out a few times, he gets no response (though the woods are noisy).  Smithers decides he has done enough since 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  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 a prosecutor (or defense attorney) 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; and in Ohio.

October 14, 2023 in Course materials and schedule | Permalink | Comments (0)

Saturday, September 30, 2023

An old documentary about the old Welansky case

Here is a documentary with a partial recreation of the events that lead to the prosecution of Barnett Welansky (whose case we will review this coming week).  The introduction to this old show 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 want to believe that this kind of inferno 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, on Thursday, February 20, 2003, at The Station, a glam metal and rock and roll themed nightclub located ... 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.

September 30, 2023 in Course materials and schedule, Notable real cases | Permalink | Comments (0)

Thursday, September 28, 2023

Ohio version of the Berry case ... how do you think it comes out under Ohio law?

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 fiance, 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. 

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.

September 28, 2023 in Notable real cases, Reflections on class readings | Permalink | Comments (0)

Monday, September 25, 2023

Practice materials with old practice midterm and a could of real midterms

As I briefly mentioned in class, the midterm is really supposed to be almost like a practice test, and so I do not recommend that you spend too much time practicing for it. But, if you do want to experience a true practice exam, you can find it available here on-line via an old blog posting.

Whenever I have taught a section of Criminal Law that does not have an actual mid-term, I have encouraged students to review using this practice exam AND I have follow-up materials available here on-line via another old blog posting.

September 25, 2023 in Preparing for the final | Permalink | Comments (0)

Saturday, September 23, 2023

Some (interesting?) Ohio cases covering various proximate causation issues

As I mentioned in class, in 99% of criminal cases, causation is not an issue at all (because the charge involves a conduct crime) or is not an issue in dispute (because the result is obviously causally connected to the defendant's actions).  But in the (rare) criminal cases in which causation doctrines arise, the facts are often quite interesting.  I have set forth the cases of some of these cases below.  You are NOT required or even expected to read any of these cases, but I thought you might find it useful to see the settings in which courts sometimes confront the kinds of causation issues that we are discussing:

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 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-Ohio-541 (6th Dist. App. 2002), involves these 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.

In two of these three cases, the court affirmed criminal liability, but in one of these cases a court concluded that criminal causation could not be sustained.  Can you guess which one?

September 23, 2023 in Notable real cases | Permalink | Comments (0)

Tuesday, September 19, 2023

If you want to read Rehaif (or follow the Supreme Court in months and years ahead)...

The US Supreme Court's official website is pretty good and has lots worth checking out about the Supreme Court's work past and present.  It is also where the Court officially releases its opinions and orders and other information about its work, and it is where you can find the slip opinion in Rehaif v. United States and "official rulings" going back many decades.  And, if you are interested in listening to upcoming SCOTUS oral arguments, which get start for the coming Term on October 2, 2023, they will be available on this page (which the Court explains "audio recordings of all oral arguments heard by the Supreme Court of the United States are posted on this website on the same day an argument is heard by the Court").

The primary must-follow website for SCOTUS fans is SCOTUSblog.  Among all sorts of great resources, that blog has helpful "case pages" for upcoming cases --- including those I have mentioned in class such as Pulsifer v. United States (which concerns whether "and" means "or" in a federal sentencing statute) and United States v. Rahimi (which concerns whether one part of long-stating federal gun control law violates the Second Amendment).  These SCOTUSblog case pages not only have links to short discussions of these cases, but also provide links to the briefs filed in the Supreme Court by both the parties and any amici.  For anyone interested in specific cases, or in the many ways to approach legal writing, or in the work of the Supreme Court more generally, it can often be very interesting and educational to see who files amicus briefs with the Court.

In part because SCOTUSblog is such a great resource, there are not many competing Supreme Court websites or blogs that seek to comprehensively cover the Supreme Court's work.  But there are any number of other notable site commenting on the courts from various angles, and I especially get a kick out of High School SCOTUS and Empirical SCOTUS.  There are now a bunch of podcasts that cover the work of the Court in various, and I am happy to recommend all sort of additional materials if anyone really wants to geek out on SCOTUS. 

But, critically, all these SCOTUS suggestions are all for entirely optional "fun."  You can and should just explore this world if, and only when, your schedule (and any strange notion of "fun") permits.

September 19, 2023 in Current Affairs | Permalink | Comments (0)

Monday, September 18, 2023

Review mens rea issues with my very first exam question (given 26 years ago)!

This week we will wrap up our mens rea unit, and in a few weeks I will be giving you a (small and friendly) mid-term exam that will surely cover some mens rea issues.  As a tool for review and to reveal a common structure for my exam questions, below you can find the full text of a question I asked students on the very first final exam that I gave the very first time I taught Criminal Law at OSU (way back in 1997(!), before we were even the Moritz College of Law):

Oliwood Criminal Code § 555.21. No person shall sell beer or any other intoxicating liquor to any person under 21 years of age.  Violators of this statute, upon a first offense, shall be fined not more than $1000, and/or be required to do not more than 50 hours of community service.

Joseph Merchant, who operates a liquor store near the local university, has a reputation for selling alcohol to underage persons.  Beau Younger, a large and mature looking 19-year-old student at Oliwood State, enters Merchant’s store seeking a bottle of rum. Based on Younger’s appearance, Merchant believes that Younger is in his mid 20s. But, knowing that the police are watching his every move, Merchant asks Younger for some identification. Younger reacts by shouting, “Damn, I’m 25 years old, and I’m sick and tired of getting carded.  You just better give me the booze or else I may have to rough you and this joint up.”  Not wanting any trouble, Merchant sells Younger the rum.  The police find out Younger’s true age as he leaves the store, and they arrest Merchant for violating Oliwood Criminal Code § 555.21.

Joseph Merchant has retained you to defend him. Prepare a brief memorandum discussing and assessing the issues you expect to raise in your defense of Mr. Merchant.

I do not plan to discuss this question in class, though I will be happy to do so (next week) if there is student interest in using class time to go over this question.

September 18, 2023 in Course materials and schedule, Preparing for the final | Permalink | Comments (0)

Tuesday, September 12, 2023

A "missing mental state"?

As we start digging deeply into a variety of mens rea topics, I may sometimes use this space to highlight some materials that engage broader debates over these topics. Critically, you should feel no obligation to read more than these posts, which are just intended to give you a feel for the debates.

So, I mentioned in class the work of OSU Law's Alan Michaels on mental states titled "Acceptance: The Missing Mental State."  You can download the full 105-page(!) manuscript at this link, though I would recommend being content with this summary from the paper's abstract:

This article identifies a serious shortcoming in the traditional criminal law mental state hierarchy and proposes a new mental state -- called acceptance -- as a solution.  Acceptance exists where the actor acts recklessly and, in addition, would have acted even "had he known" that his conduct would "cause the harm."  The article establishes, through close analysis of the willful blindness and depraved-heart murder doctrines, that use of the mental state of acceptance is both practicable and necessary.

When liability lines are drawn at the level of knowledge, the criminal law has rarely been satisfied to restrict liability to actual knowledge, but instead has relied on ambiguously defined crimes (such as depraved-heart murder) or has stretched the definition of knowledge (for example, through the willful blindness doctrine) to push reckless conduct across the liability line to the knowledge side.  These "solutions" have failed.  When contemporary criminal law draws a significant liability line between knowledge and recklessness, doctrine governing cases near the margin is both particularly vague and distinctly lacking in consensus in comparison to most areas of the criminal law.

The article proposes that where the law requires knowledge, acceptance should be allowed to suffice.  After justifying such an approach from both retributive and utilitarian perspectives, the article establishes, by examining the willful blindness and depraved-heart murder doctrines, that using acceptance would yield a better fit between criminal law and culpability concepts and would substantially diminish vagueness problems.

September 12, 2023 in Class reflections, Recommended scholarship | Permalink | Comments (0)

Saturday, September 9, 2023

Theory, echoes of Jones, homicide preview, and lurking mens rea/strict liability issues in new AP piece

Especially in the wake of our crashing-in-the-rain discussion of possible aggressive use of criminal law to address public safety concerns, this notable new AP article caught my eye.  The piece is headlined "As more children die from fentanyl, some prosecutors are charging their parents with murder," and I recommend the full article.  For now, I will spotlight a few passages that (at least indirectly) hit on an array of issues we have already covered this semester (and others to come):

Madison Bernard climbed into bed before dawn with her toddler, Charlotte, who was asleep next to a nightstand strewn with straws, burned tinfoil and a white powder.  Hours later, the mother woke and found her daughter struggling to breathe, according to investigators who described the scene in court documents.

After being rushed in an ambulance to a hospital, the 15-month-old girl died from a fentanyl overdose. Her mother and father, whom authorities said brought the drugs into their California home, were charged with murder and are awaiting trial. The couple has pleaded not guilty but are part of a growing number of parents across the U.S. being charged amid an escalating opioid crisis that has claimed an increasing number of children as collateral victims.

Some 20 states have so-called “drug-induced homicide” laws, which allow prosecutors to press murder or manslaughter charges against anyone who supplies or exposes a person to drugs causing a fatal overdose.  The laws are intended to target drug dealers.

In California, where the Legislature has failed to pass such laws, prosecutors in at least three counties are turning to drunk driving laws to charge parents whose children die from fentanyl overdose.  It’s a unique approach that will soon be tested in court as the cases head to trial.

Supporters of the ramped-up enforcement say that by now those who use the synthetic opioid know the lethality of the drug and, like drunk drivers, they should know the consequences of exposing their children to their actions.  Critics say the parents didn’t intend to kill their children but instead made poor choices because of their addictions and are being further punished instead of being offered help....

“These are tragic cases because drug addiction has destroyed a precious life and the parents face the consequences of their reckless actions,” said Charlie Smith, the top prosecutor in Frederick County, Maryland, and president of the National District Attorneys Association.  Parents also can face charges if young children become seriously ill or die from crack, heroin and cocaine, but such cases are rare because a sizeable amount must be ingested, Smith said.  “This is really a first in the history of our country because we have a drug on the streets that can potentially kill you instantly with a minor amount of product,” Smith said.

Prosecutors have a difficult decision to make when determining whether to charge parents, but Smith said the goal is to deter others from doing the same.  He prosecuted a case in which parents in Maryland were convicted of involuntary manslaughter in the 2020 death of their 2-month-old son.  The Mount Airy couple had mixed fentanyl in the same bathroom where they prepared bottles for their infant.  Jeremy Whitney Frazier and Heather Marie Frazier were each sentenced in December to five years in prison and five years of supervised probation.

The National District Attorneys Association doesn’t track how many parents have been charged for exposing their children to fentanyl, but news reports and interviews with prosecutors show such cases have been on the rise since the onset of the pandemic. Last month, a Maine woman pleaded guilty to manslaughter after her 14-month-old son’s fentanyl overdose. Investigators found fentanyl on a blanket and sheet where Ashley Malloy’s son Karson had been sleeping.  States such as Maryland that don’t have “drug-induced homicide” laws often charge parents with manslaughter, Smith said....

“I’ve been a prosecutor 25 years now and I can’t recall any other drug that has led to this much destruction and death,” Riverside County Deputy District Attorney Daima Calhoun said.  Prosecutors [in California] say the parents, like drunk drivers, knew fentanyl can injure or kill people.  Among those awaiting a trial that will test the approach are Tehra Alexandra Waite and Collin Pascal Kittrell, both of Riverside.  The boyfriend and girlfriend were charged with murder after their toddler died of a fentanyl overdose in June 2020.  They pleaded not guilty....

Kittrell’s attorney, Graham Donath, said Allison’s father did not intend for his child to die and the charge should be one of child neglect, not murder.  But prosecutors don’t like to go that route because the maximum sentence for the offense is 12 years.

September 9, 2023 in Class reflections, Current Affairs, Notable real cases | Permalink | Comments (0)

Tuesday, September 5, 2023

Proposal for a new statute: "Criminal crashing while driving in rain"

To start our exploration of mens rea issues, and also to facilitate a focused conversation concerning a legislative proposal seeking to reduce roadway harms, here is some background information about dangerous realities on our roads and highways. First, from the Federal Highway Administration (data from 2007 to 2016, with emphasis added):

On average, nearly 5,000 people are killed and over 418,000 people are injured in weather-related crashes each year. The vast majority of most weather-related crashes happen on wet pavement and during rainfall: 70% on wet pavement and 46% during rainfall. A much smaller percentage of weather-related crashes occur during winter conditions.

And from the car press (in 2019), under the headline "Why Driving In The Rain Is Way More Dangerous Than You Think" (with emphasis added):

[A] new study has shown that even light rain can significantly raise the chances of a fatal car crash. Published in the Bulletin of the American Meteorological Society..., the study asserts that rain, snow, and ice increases the risk of fatal car crashes by a massive 34 percent.  Led by Scott Stevens, a data analyst and meteorologist at the North Carolina Institute for Climate Studies, he and his colleagues reviewed 125,012 deadly crashes in the Lower 48 states between 2006 and 2011, factoring in the number of cars on the road to calculate the risk of a fatal accident.

It turns out that even light rain, which Stevens refers to as a "a drizzle, just at the point where you might consider taking an umbrella out," raises the risk of a fatal crash by 27 percent.  While people tend to become cautious in heavy rain, Stevens believes that "they under-appreciate the risk of light rain," with the weather radar data showing an increase in fatal crashes even in rain of less than one-tenth of an inch per hour.  Moderate rain brings the risk of a deadly accident up to 75 percent greater than in clear weather, while in heavy rain the rate skyrockets to two-and-a-half times more likely.

And from the car website Jerry, under the headline "What’s More Dangerous to Drive In – Rain or Snow? A New Study Sheds Light":

While neither is without risk, most drivers assume that driving in snow is more dangerous than driving in rain.  After all, a build up of snow changes the composition of the road, falling snowflakes make it hard to see, and some cars don’t even start in cold weather. However, a study by Jerry has found that rain is the most dangerous condition ...

[S]tudies show that drivers perceive rain to be less dangerous than snow. This, “it’s just rain” attitude, causes many people to drive too fast, underestimating the risks associated with hydroplaning and reduced braking distances.

Senator JoJo Beesafer has been deeply concerned about traffic safety issues ever since her college days after one of her best friends was killed by a drunk driver who was speeding and swerving on a country road during a summer thunderstorm.  Senator Beesafer has sponsored a number of bills seeking to increase punishment and enforcement efforts for driving under the influence.  Senator Beesafer has now drafted a novel new bill responding to concerns for the many thousands of people economically and/or physically harmed by crashes from persons driving in the rain without being aware of the risks (and/or not being sufficiently cautious):

PROPOSED CODE Section 2999.99: Criminal Crashing While Driving in the Rain

(A) No person shall cause physical harm to another person or damage the property of another while driving in the rain.

(B) Whoever violates this section is guilty of criminal crashing while driving in the rain, a misdemeanor of the second degree.  If a violation causes any physical harm to any person or causes property damage in excess of $10,000, this offense is a misdemeanor of the first degree.  

We will discuss the potential pros and cons of this bill in class.  Everyone should feel free to use the comments to express any comments or concerns now; proposed amendments to this bill are welcome as well.

September 5, 2023 in Course materials and schedule, Crime data, Current Affairs | Permalink | Comments (0)