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November 30, 2008

Our plans for the final few days of class

A reasonable request for clarifying our final few days together brings this accounting:

1.  We meet Monday and Tuesday as normal (Dec. 1 and 2), and we will be discussing the mens rea and actus reus of attempt liability.  Upon the end of Tuesday's class we will have covered all the material on which your final exam will be based.

2.  We do not meet on Wednsesday ((Dec. 3) because it is a "Constructive Friday."

3.  What was supposed to be our final class (Monday, Dec. 8) is rescheduled for Thursday (Dec. 4).  During that class, I will very quickly discuss complicity and conspiracy and the substantive themes/lesson I hope you take away from the class.  In addition, during that last class I will discuss the specifics of the final exam and set up times for group review sessions.

I hope this clarifies what we have left to do together and what reading you need to complete (i.e., if you have done the attempt reading (but nothing more), you are all set).  Please feel free to use the comments to express question or concerns about our collective plans.

November 30, 2008 in Course materials and schedule | Permalink | Comments (0) | TrackBack

November 24, 2008

Old exams for practice purposes

As promised, I am not making available in this space some of my old exams that would provide a great means for doing more Berman exam-taking practice.  Uploaded here are the exams I gave to the 1997 and 1998 versions of this class, and both exams are crazy hard (like yours will be).  As I have suggested before, forcing yourself to take these exams under real-exam-taking conditions should help maximize the benefits you get from the review experience.

Download 97 Final Exam

Download 1998 Final Exam

I will happily discuss the specifics of these exams (and provide more exams for your review) after we all enjoy a well-deserved Turkey break.  Have a great holiday and congrats on finishing your Contracts mid-term.

November 24, 2008 | Permalink | Comments (1) | TrackBack

November 23, 2008

Good luck and good times...

Just a quick note from your crim prof wishing you good luck on your contracts mid-term. 

Also, I wanted to report that I will be in town on Monday and will happily treat for the first round of liquid refreshment for any class members who join me at Eddie George Grill after 1:30pm on Monday afternoon.

November 23, 2008 in Preparing for the final | Permalink | Comments (0) | TrackBack

November 17, 2008

An up-to-date version of Ohio Revised Code section 2901.05

A wise student wisely noted that I was referencing an outdated version of ORC 2901.05 in our class discussion last week.  The latest, greatest version of that important provision is available at this link.

November 17, 2008 | Permalink | Comments (0) | TrackBack

Notable new Sixth Circuit opinion on federal necessity/justification defense

Rather than talk about Dudley and Stevens again, I suggest we consider this new decision handed down Friday by the Sixth Circuit (after we discuss the amazing Unger case).  This new ruling deals with a modern attempt to invoke the defense of necessity in a federal prosecution.  The decision in US v. Billy Ed Kemp starts this way:

Kemp was arrested in May 2005 with a .32 caliber derringer pistol in his pocket.... Kemp was charged with being a felon in possession of a firearm that had traveled in interstate commerce, in violation of 18 U.S.C. § 922(g)(1). Kemp did not contest any of the elements of this offense at trial.

Kemp did not contest any of the elements of this offense at trial.... Kemp’s sole defense, instead, was that his possession of the gun was justified because he had taken it from an intoxicated friend who might harm herself or others.

November 17, 2008 in Course materials and schedule | Permalink | Comments (3) | TrackBack

November 12, 2008

A (clear?) self-defense case for a law student jury

Thanks to a fellow law prof blogger, I saw this local news story involving a notable case of self defense.  Here are the basics:

Arizona State University student Alex Botsios said he had no problem giving a nighttime intruder his wallet and guitars.

When the man asked for Botsios' laptop, however, the first-year law student drew the line. "I was like, 'Dude, no -- please, no!" Botsios said. "I have all my case notes…that's four months of work!"

Police said Gabriel Saucedo entered Botsios' apartment through an open window early Thursday morning.  When Botsios woke up, Saucedo threatened him with a baseball bat, police said. He was just like, 'I'm going to smash your head in,'" Botsios said.

At that point, the law student wrestled the bat away and began punching Saucedo, Botsios said. "I basically grabbed him and threw him this way, and he held onto the bat so it threw him to the ground," he said.

Police said they took Saucedo to the hospital for stitches before they arrested him on charges of armed robbery and kidnapping.  Other than a bruised knuckle and a few scratches, Botsios was unharmed.

So the "victim" in this case was unharmed, while the perpetrator had to go to the hospital for stitches.  Hmmm....  Would you say that Alex Botsios' act of punching Gabriel Saucedo to the point of him needing stitches was entirely justified or just merely excused?  

Suppose Botsios had punched Saucedo so hard that he eventually died from his wounds.  Do you think a state prosecutor should at least consider possible homicide charges under such circumstances.  Might a defense attorney develop expert testimony concerning "battered 1L syndrome" in an effort to explain why Botsios might have become so violent in response to an effort to steal his laptop? 

November 12, 2008 | Permalink | Comments (14) | TrackBack

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

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

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

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

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

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

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

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

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

November 12, 2008 in Notable real cases | Permalink | Comments (0) | TrackBack

November 10, 2008

Deep thoughts about self-defense

Though NOT required or even suggested reading, students really interested in self defense issues might be intrigued (and likely confused) by this new paper by a law & psychology professor titled, "An Attack on Self-Defense."  Here is the paper's abstract:

Debate about the distinction between justification and excuse in criminal law theory has been lively during the last thirty years. Questions as to the nature and structure of various affirmative defenses continue to be raised, and the doctrine of self-defense has been at the center of much discussion.  Three main articulations have been advanced: a purely objective theory, a purely subjective theory, and an objective/subjective hybrid.  In the present Article, I support a hybrid model and propose a three-requirement framework that delineates the criteria that must be met to satisfy self-defense as a legitimate justification.  Because this three-requirement framework raises the floor of justification, it rejects numerous types of defense-related conduct that may qualify as justifiable by other theories.  I believe that although these related forms of conduct are not necessarily justifiable, they may be excusable.  As such, I outline and discuss a six-tier hierarchy by which self-defense and defense-related instances of reactive violence may be classified according to the degree (complete or partial) to which they are justifiable or excusable. In these ways, I address and attempt to resolve several critical questions about the nature of self-defense that have remained open in the literature.

November 10, 2008 | Permalink | Comments (3) | TrackBack

November 9, 2008

Any advice or suggestions for President-elect Barack Obama?

Various purported legal experts (myself included) will likely give President-elect Barack Obama advice on various legal topics.  Though 1L students are not quite experts, you have a unique and fresh perspective on legal topics.  Thus, I'd really like to hear what kind of law-related advice or suggestions you might have for President-elect Obama.

Though you should feel free to opine on any legal topic in the comments here, students will earn extra class participation points for any and all thoughtful suggestions that involve criminal law topics OR law school and legal eduction topics.

November 9, 2008 | Permalink | Comments (10) | TrackBack

November 5, 2008

A message from Tom O'Dudley to his Oliwood lawyers

I was very encouraged to learn today that under Oliwood law I might not have to even face a trial, even though I am an admitted purposeful killer of Richard O'Parker, because you think that I may satisfy the necessity defense as a matter of law.  If this is accurate, I will happily pay a large sum to your law firm if and when you succeed in getting my indictment dismissed as a matter of law.

If we are not successful with a motion to dismiss, I think I would be eager to present both necessity and insanity defenses to the jury.  Especially if our defense team is going to have the burden of proof on these matters, I am fearful that an Oliwood jury will not be convinced beyond a reasonable doubt that I was justified in murdering Richard O'Parker without fairly selecting lots on the lifeboat.  But I do think we may be able to convince a jury that my criminal behavior was excusable because of my temporary insanity driven by extreme hunger and thirst and exposure.

But perhaps I do not fully understand how all this will work at trial, and I would be grateful for more information (or further feedback) through the comments here or in some other form of communication.

November 5, 2008 | Permalink | Comments (2) | TrackBack

A message from Vice-Governor Berman for Oliwood legislators

I just heard from my brother that the Oliwood legislature (finally) passed a new rape provision.  Congrats on the achievement.  Based on the lively legislative debate from the previous session debating various bills, I am confident I will be able to recommend that the Governor sign the new rape provision into law.

I also heard from my brother that the vote in support of the new Oliwood rape provision was not strong enough to overcome a possible executive veto.  Though I doubt the Governor will have reason to veto the bill, I would be eager to hear from anyone unhappy with the legislative outcome (or the intriguing legislative process) to comment on whether they might be inclined to publicly or privately encourage the Governor to veto the bill that was passed earlier today.

November 5, 2008 | Permalink | Comments (1) | TrackBack

November 4, 2008

The consequence of not passing a new rape provision in Oliwood

I realized after class that there is a status quo rape provision in Oliwood: MPC Section 213.1(1).  With both of the proposed alternatives going down to defeat in Tuesday's legislative session, it would seem that rape is now still defined and governed in Oliwood by the provisions of MPC 213.1(1). 

Because the proposal from the You Betcha party received more votes than any other proposal, I will entertain a motion at the start of Wednesday's class to vote again on that proposal (and I will happily post any revision of that proposal which might be offered in an effort to secure additional votes for passage).  

Absolutely no later than 10:15am, however, Thomas O'Dudley, the captain of the O'Mignonette yacth that recently sunk off Gilligan Bay in the South Oliwood Sea, will be coming to talk to his lawyers about whether he has any defenses to the charge of murder in Oliwood after he was forced to kill Richard O'Parker while trying to survive on a lifeboat onto which he and other sailors were stranded for nearly three weeks this past summer.

November 4, 2008 in Course materials and schedule | Permalink | Comments (5) | TrackBack

November 3, 2008

Draft Oliwood Rape provisions for continued consideration...

during Tuesday's (and perhaps even Wednesday's) class.....

Download latest_proposed_oliwood_rape_code.doc

Everyone should feel free to use the comments for comments (and I might add a few under my real name or perhaps with a fake name)....

UPDATE: I have received a copy of the proposal now put forward by the minority party.  Here it is:

Download You_Betcha_Rape_Provisions.doc

November 3, 2008 in Course materials and schedule | Permalink | Comments (4) | TrackBack