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September 30, 2010

Looking at the sad Rutgers case through the lens of criminal law doctrine

The media is starting to buzz a lot about a sad back-to-school story coming from Rutgers.  This link gets you to a segment about the case from the Today show, and here are the basics via MSNBC:

The suicide of a university student — after a recording of him having a sexual encounter with a man was broadcast online — has stirred outrage and remorse on campus from classmates....

A lawyer for Clementi's family confirmed Wednesday that he had jumped off the George Washington Bridge last week....

Clementi's roommate, Dharun Ravi, and fellow Rutgers student Molly Wei, both 18, have been charged with invading Clementi's privacy.  Middlesex County prosecutors say the pair used a webcam to surreptitiously transmit a live image of Clementi having sex on Sept. 19 and that Ravi tried to webcast a second encounter on Sept. 21, the day before Clementi's suicide.

Collecting or viewing sexual images without consent is a fourth-degree crime. Transmitting them is a third-degree crime with a maximum prison term of five years.

Ravi wrote Sept. 19 on what is believed to be his Twitter page, which has since been deleted, but is still accessible though Google's cache system: "Roommate asked for the room till midnight. I went into molly's room and turned on my webcam.  I saw him making out with a dude. Yay."

Two days later, Ravi apparently posted another entry referring to iChat, an internet messaging service with a live video feed.  "Anyone with iChat, I dare you to video chat me between the hours of 9:30 and 12. Yes it's happening again," Ravi wrote in the Sept. 21 post.

The website Gawker reported that a user called cit2mo who posted messages on a website called JustUsBoys may have been Clementi.  In a thread called "college roommate spying," the post from cit2mo on Sept. 21 at 7:22 a.m. said: "so the other night i had a guy over. I had talked to my roommate that afternoon and he had said it would be fine w/him. I checked his twitter today. he tweeted that I was using the room (which is obnoxious enough), AND that he went into somebody else’s room and remotely turned on his webcam and saw me making out with a guy. given the angle of the webcam I can be confident that that was all he could have seen," cit2mo wrote.

"I’m kinda pissed at him (rightfully so I think, no?) ... I feel like the only thing the school might do is find me another roommate, probably with me moving out … and i’d probably just end up with somebody worse than him ... I mean aside from being an asshole from time to time, he’s a pretty decent roommate," he added.

He added at 9:28 a.m. that day, that "I feel like it was 'look at what a fag my roommate is' ... and the fact that the people he was with saw my making out with a guy as a scandal whereas i mean come on ... he was SPYING ON ME ... do they see nothing wrong with this? unsettling to say the least."

ABC News and The Star-Ledger of Newark reported that on Sept. 22 Clementi left a note on his Facebook page that read: "Jumping off the gw bridge sorry." On Wednesday, his Facebook page was accessible only to friends. 

In addition to being eager to hear student responses to this sad story, I want to know whether and how you think criminal law doctrines will play out in this kind of case. And the first students to provide links to the New Jersey criminal law statutes referenced in this story get extra Berman brownie points.

September 30, 2010 in Current Affairs, Notable real cases | Permalink | Comments (6) | TrackBack

September 28, 2010

Eager for a running start on our discussion of the death penalty

As previewed in class, there are soooooo many topics on which our Friday death penalty discussion can focus.  For that reason (and others), I am eager to get a running start of the death penalty dialogue vie this blog.  Specifically, I hope students will use the flag specific issue concerning the modern administration of the death penalty that they want us to discuss during Friday's class.  

To provide some background, I encourage everyone to check out some of the materials at the Death Penalty Information Center's website.  Though the DPIC site is a bit biased because of the organization's disaffinity for capital punishment, the site provides a lot of fascinating basic information about executions and death row and death penalty history and lots of other topics.  And this DPIC fact sheet provides everything you need to know about the reality of the modern death penalty in four simple pages.

September 28, 2010 in Class reflections, Course materials and schedule | Permalink | Comments (1) | TrackBack

September 25, 2010

Joe Shooter role-play basics and sign-ups

As I mentioned in class on Friday, our Joe Shooter role-play exercise will take place on Thursday, and I will need (at least) six volunteer to make presentation to the grand jury about what form of homicide Joe Shooter should be charged with in each of three jurisdictions. Specifically, I need (at least) one student to serve as a prosecutor and to serve as a defense attorney in California, Kansas and Ohio.

As for procedure, the experience will be similar (but quicker) to what transpired in our sentencing role play. Prosecutors in each jurisdiction will have about 5 minutes in each jurisdiction to argue for a particular charge (or charges), followed by the defense having 5 minutes to make their legal pitch.

As of Saturday morning, one student as already volunteered to prosecute in Ohio, meaning that there are (at least) five remaining spots.

UPDATE: As of Monday night, we have all the lawyers needed for Kansas and Ohio, but we still need volunteers for both sides in California.

ANOTHER UPDATE:  Extra thanks to the volunteers for the Shooter role-play, all of whom should now use the comments to debate where our Friday mega happy hour will take place!

September 25, 2010 in Course materials and schedule | Permalink | Comments (2) | TrackBack

A web-link to Ohio's homicide provisions...

has been graciously provided by Keith in this comment to a prior post.  Consequently, I will post the links here AND encourage folks to use the comments to this post to note/discuss any specifics aspects of Ohio's homicide provisions that they find notable or interesting upon first review.  (In addition to thinking about the Joe Shooter case through the lens of Ohio law, see if you can identify all the different ways in which different mens rea terms are used in these parts of the Ohio Revised Code.)

September 25, 2010 in Course materials and schedule | Permalink | Comments (0) | TrackBack

September 17, 2010

Test yourself on mens rea issues using a question from my first exam

Below you will find the full text of one of the questions I asked students on the very first exam I gave the very first time I taught our class (way back in 1997):

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 leave 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 if there is student interest in using class time to go over this question.

September 17, 2010 in Class reflections, Course materials and schedule, Preparing for the final | Permalink | Comments (1) | TrackBack

September 9, 2010

Press Release: Oliwood legislator Berman says new data supports "Driving Under Rain" bill

(FICTIONAL) PRESS RELEASE from the Office of (Fictional) State Senator Doogie Berman

(Fictional) Oliwood State Senator Doogie Berman was pleased to see the latest (real) data released this week by the US Department of Transportation, which reinforced his strong belief that tough criminal laws help to prevent and punish dangerous drivers and help to make citizens.  State Senator Berman was especially pleased to see these data and comments from the USDOT (real) press release:

U.S. Transportation Secretary Ray LaHood today released updated 2009 fatality and injury data showing that highway deaths fell to 33,808 for the year, the lowest number since 1950. The record-breaking decline in traffic fatalities occurred even while estimated vehicle miles traveled in 2009 increased by 0.2 percent over 2008 levels.

In addition, 2009 saw the lowest fatality and injury rates ever recorded: 1.13 deaths per 100 million vehicle miles traveled in 2009, compared to 1.26 deaths for 2008....

“At the Department of Transportation, we are laser-focused on our top priority: safety,” said Secretary LaHood. “Today’s announcement shows that America’s roads are the safest they’ve ever been. But they must be safer. And we will not rest until they are.”...

According to a National Highway Traffic Safety Administration (NHTSA) study based on 2006 Centers for Disease Control (CDC) data, motor vehicle crashes are the leading cause of death for those between the ages of 3 and 34....

“Today’s numbers reflect the tangible benefits of record seat belt use and strong anti-drunk driving enforcement campaigns,” said NHTSA Administrator David Strickland. “But we are still losing more than 30,000 lives a year on our highways, and about a third of these involve drunk driving. We will continue to work with our state partners to strictly enforce both seat belt use and anti-drunk driving laws across this nation, every day and every night.”

State Senator Berman expressed great disappointment that Oliwood was not listed as one of the 41 states that had reductions in fatalities last year, and he reiterated his view that his new "Driving Under Rain" bill would make Oliwood citizens safer.  State Senator Berman indicated that he was going to step up his advocacy for his DUR bill when the Oliwood state legislature meets this week.

September 9, 2010 in Course materials and schedule, Crime data | Permalink | Comments (2) | TrackBack

September 8, 2010

Some surprising study tips via the New York Times

Especially as classes begin to speed up, all 1L students ought to be trying to figure out how develop efficient and effective law school study habits.  Helpfully, this recent article in the New York Times, which is headlined "Forget What You Know About Good Study Habits," reports on on what works well (and what may not work well) in study settings.  Here is an excerpt:

[T]here are effective approaches to learning, at least for those who are motivated.  In recent years, cognitive scientists have shown that a few simple techniques can reliably improve what matters most: how much a student learns from studying.

The findings can help anyone, from a fourth grader doing long division to a retiree taking on a new language.  But they directly contradict much of the common wisdom about good study habits, and they have not caught on.

For instance, instead of sticking to one study location, simply alternating the room where a person studies improves retention.  So does studying distinct but related skills or concepts in one sitting, rather than focusing intensely on a single thing....

[P]sychologists have discovered that some of the most hallowed advice on study habits is flat wrong. For instance, many study skills courses insist that students find a specific place, a study room or a quiet corner of the library, to take their work.  The research finds just the opposite.  In one classic 1978 experiment, psychologists found that college students who studied a list of 40 vocabulary words in two different rooms — one windowless and cluttered, the other modern, with a view on a courtyard — did far better on a test than students who studied the words twice, in the same room.  Later studies have confirmed the finding, for a variety of topics.

Varying the type of material studied in a single sitting — alternating, for example, among vocabulary, reading and speaking in a new language — seems to leave a deeper impression on the brain than does concentrating on just one skill at a time....

Cognitive scientists do not deny that honest-to-goodness cramming can lead to a better grade on a given exam.  But hurriedly jam-packing a brain is akin to speed-packing a cheap suitcase, as most students quickly learn — it holds its new load for a while, then most everything falls out....

When the neural suitcase is packed carefully and gradually, it holds its contents for far, far longer.  An hour of study tonight, an hour on the weekend, another session a week from now: such so-called spacing improves later recall, without requiring students to put in more overall study effort or pay more attention, dozens of studies have found.

No one knows for sure why.  It may be that the brain, when it revisits material at a later time, has to relearn some of what it has absorbed before adding new stuff — and that that process is itself self-reinforcing.  “The idea is that forgetting is the friend of learning,” said Dr. Kornell. “When you forget something, it allows you to relearn, and do so effectively, the next time you see it.”

So, it appears that there is some cognitive science to back up my advice that you re-read and re-read (and re-read some more) the cases and other materials we cover in class.  But now we all know that you ought to do your re-reading in a different room each time.  (I am now wondering if, in order to improve learning, we ought to meet in different classrooms on a regular basis.  At the very least, we definitely ought to start getting drinks at different watering holes on casual Fridays!)

September 8, 2010 in Advice, Reading about law and law school | Permalink | Comments (0) | TrackBack

September 7, 2010

Why should a legislator focused on public safety worry much about mental states?

As I will try to explain in class, the abstract question in the title of this post is lurking deep within many of the issues and debates we will be having in the next few weeks as we turn to an exploration of the critical and complicated concept of mens rea in the interpretation and application of criminal law. In addition to thinking about this question in public policy terms, you should also seek to connect this question with the punishment theory topics that occupied us during the first few weeks of class.

To provide some specificity as you begin reflecting on these issues, consider how legislators in Ohio and elsewhere ought to respond to this notable article from Monday's Columbus Dispatch, which is headlined "CDC: Beef up traffic laws," and starts this way:

Traffic deaths and injuries are a preventable scourge that cost the nation about $99 billion a year in medical bills and lost productivity, according to the U.S. Centers for Disease Control and Prevention.

That's about $500 for each licensed driver in America, according to a study by the CDC's National Center for Injury Prevention and Control.  Researchers tallied the costs nationally using hospital, insurance and other data from 2005, when there were 3.7 million deaths and injuries from crashes.

They hope the cost information will persuade states and communities to take action to prevent traffic crashes, said Rebecca Naumann, a CDC epidemiologist and lead researcher on the study.

September 7, 2010 in Class reflections, Reflections on class readings | Permalink | Comments (0) | TrackBack

September 6, 2010

Some background on my law blog affinity (and a request for feedback and recommendations)

For anyone interested in a little background on why I am such a fan of the medium of blogging, consider checking out this new piece appearing in The National Law Journal.  In addition, I wrote a law review article a few years ago on the topic of law professor blogging, which can be found at this link.

Relatedly, I am always eager for student feedback on this particular blogging forum --- e.g., would you like more posts, more optional reading, more links to other law blogs, more discussion of topics other than criminal law, or should I just leave good enough alone.  

Also, I would be curious to know if there are other blogs authored by lawyers or law students (or thoughtful non-law blogs) that you regularly read and/or especially enjoy.

September 6, 2010 in About this blog, Weblogs | Permalink | Comments (6) | TrackBack

September 3, 2010

Does (or should) Ohio have a "duty to aid" statute like Wisconsin?

Here is a research (or advocacy) assignment/question for the long weekend:

Does (or should) Ohio have a "duty to aid" statute like Wisconsin?

Here is a related question to consider: If you were to be tasked with drafting such a statute for a state's legislature to consider, what provisions of the Wisconsin approach would you preserve and what provisions might you want to tweak?

For anyone eager to do some more (totally optional) reading on this interesting topic, consider checking out an article in the Spring 2010 issue of the Georgia Law Review by Ken Levy, which is titled "Killing, Letting Die, and the Case for Mildly Punishing Bad Samaritanism."

UPDATE:  Here is a sad story via CNN about what sounds like a case like a New York version of the Jones case in 2010.  The piece is headlined "Girl, 4, weighed 15 pounds at death," and starts this way:

The mother of a 4-year-old girl found dead in her Brooklyn home Thursday morning was charged Friday with second-degree assault, reckless endangerment and endangering the welfare of a child, according to police.

Marchella Pierce weighed just 15 pounds and had marks on her hands and ankles when police found her unconscious in her family's apartment, according to CNN affiliate WABC-TV.

September 3, 2010 in Class reflections, Recommended scholarship, Reflections on class readings | Permalink | Comments (6) | TrackBack

September 1, 2010

Any concluding thoughts/reflections/ideas on punishment theories and types?

Though we will return to a discussion of real cases this Thursday (and remember we now start at 2pm at 2:30pm for the foreseeable future), I wanted to do a concluding post to provide a forum for concluding thoughts about punishment theories and punishment types in the wake of our first set of class discussions and the sentencing role-play. 

As always, students should feel free to comment on any issues, and perhaps these recent posts from my main blog (which have produced lots of comments there) on these topics will stimulate some commentary here:

 

 

September 1, 2010 in Class reflections | Permalink | Comments (5) | TrackBack