Criminal Law @ Moritz College of Law

"Was FBI grooming Portland suspect for terror?"

The title of this post is the headline of this article in the Seattle Times, which stuck me as blog-worthy in light of our class discussions today.  Here is how the piece starts:

FBI undercover operatives helped fund Mohamed Osman Mohamud's would-be terrorism plot to detonate a car bomb during a Christmas tree-lighting ceremony on Friday at a crowded public square in the heart of the city.

Operatives helped him find components needed to create a bomb and schooled the 19-year-old Somali-born man in how to set off the explosives. The sting operation enabled the FBI to amass a formidable amount of details about what a grand-jury indictment Monday charged was Mohamud's attempt to use a car bomb as a "weapon of mass destruction."

But Mohamud's attorneys and some local Muslims are raising questions about whether the operatives who posed as co-conspirators played their role too well. Defense attorney Steve Sady questioned whether the operatives were "basically grooming" Mohamud to try to commit a terrorist attack.

"The information released by the government raises serious concerns about the government manufacturing a crime," according to a statement released by Sady and Steven Wax, public defenders assigned to represent Mohamud.

Mohamud, through his attorneys, pleaded not guilty on Monday.

Law-enforcement officials say that they gave Mohamud plenty of opportunities to opt out of the bomb plan and that he was committed to carrying out the crime at the time, place and location of his choosing.

"I am confident there is no entrapment here," Attorney General Eric Holder said Monday in Washington, D.C. "There were ... a number of opportunities ... that the defendant in this matter was given to retreat, to take a different path. He chose at every step to continue."

Working plans for exam review sessions

As of this writing, and as discussed in class, I am planning to have (at least) two general review sessions:

• Monday, Dec. 6 at 2pm 
• Friday, Dec. 10 at 2pm

Please let me know ASAP in comment or via e-mail if additional such sessions are desired (or whether alternative times the week of Dec 6 would be preferred).

An essay competition to consider (perhaps for extra credit)

Via e-mail, I just learned of this notable competition for law students sponsored by the National Association of Criminal Defense Lawyers.  I urge all student to consider submitting an essay (after exams!) on the important topic selected by NACDL for this competition.  Here are the details:

NACDL Essay Competition Call For Entries: In keeping with its goal to promote diversity within the criminal defense bar, NACDL invites law students from accredited law schools in the United States to submit essays for a chance to be published in The Champion magazine.

Topic: It has been reported that from 1993 to 2008, the entering enrollment in law schools dropped by 7.5 percent for African-Americans and 11.7 percent for Mexican Americans (see AmLaw Daily article from January 2010, Study: Minority Law Student Numbers Dip as Law School Capacity Rises). With the numbers of historically underrepresented minorities seeking a law degree either stagnant or dropping in recent years, what steps would you recommend for increasing diversity in the profession and, in particular, on the bench? And why?

Eligibility: The contest is open to all current law students who are in good academic standing at accredited law schools in the United States.

Prizes: There will be one first prize winner, one second prize winner, and one honorable mention.

1.The first prize winner will have his or her winning essay published in a forthcoming edition of NACDL's magazine, The Champion; receive a $200 cash prize; receive a free one-year student membership; and receive a certificate of recognition.

2.The second prize winner will have his or her winning essay published in a forthcoming edition of NACDL's magazine, The Champion; receive a $100 cash prize; receive a free one-year student membership; and receive a certificate of recognition.

3.The entrant who receives an honorable mention will have his or her winning essay published in a forthcoming edition of NACDL's magazine, The Champion; and will receive a certificate of recognition.

Entries must be received by 5:00 pm on December 31, 2010.  Please email entries to Terrica Redfield at [email protected]; subject line NACDL Essay Contest.  [Complete contest rules can be downloaded here.]

Award Date: Winning entrants will be notified on February 1, 2011.

As the title to this post hints, I will be inclined to give a smidgen of extra credit to any student who sends me a copy of any essay produced for this NACDL competition.

Movie recommendations and reviews for the long holiday weekend

Partially to provide a reminder that you should be doing a lot more than just studying over the long holiday weekend, I though it might be fun to have this post to provide a forum for movie recommendation and reviews.  I urge every student to see at least two movies while on break (with the help of a DVD player or DVR if not via the local theater. 

Having already seen the Harry Potter movie this past weekend (which I would give 3 out of 4 stars), I hope to get a chance to take the whole family to see Megamind and/or Tangled sometime over the weekend.  In addition, I hope before too long to get to rent/see The Kids Are Alright, though family travel and other plans might make that hard.

For anyone looking to combine law and entertainment, here are a few suggestions for a Netflix cue:

• Anatomy of a Murder (1959)
• The Fortune Cookie (1966)
• A Few Good Men (1992)
• My Counsin Vinny (1992)
• Primal Fear (1996)
• The Devil's Advocate (1997)

Crim Law exam prep open thread for the long holiday weekend

Congrats to all for getting one exam behind you, and be sure to take some special time for review and reflection on what you did right (and wrong) in the exam preparation and taking process.  Also, be sure to take some deserved time off during the holiday weekend.

On the sad (but reasonable?) assumption that you will not be able to put all future exams out of your mind during the long weekend, I have created this post to provide a forum for questions (and answers?) about our upcoming Crim Law exam.  I expect our exam to be quite similar in style and structure to those I have given in prior years (many of which can be found here and here and here), so you can/should check out past my exams to get a sense of what is on the horizon for you on December 13.

Feel free to ask any and all questions you might have about our final exam in the comments here.  (I will bring any especially important answers into the text of this post or create a new post, if needed).

Real case involving an honest/genuine(?) --- but seemingly crazy/unreasonable(!) --- killer who might claim necessity (or duress)

I was struggling in class yesterday to come up with a plausible hypo that would effectively portray the possibility of somebody having an honest but unreasonable belief that they needed to kill an innocent person to prevent a greater harm or when subject to under a coercive force. Today I just learned about a spooky case via this AP story from Illinois that perhaps provides a real setting for testing these possibilities. The story is headlined "Prosecutor: Mom says she killed girl as protection," and here is how it begins:

A woman charged with first-degree murder in the slaying of her 4-year-old daughter in suburban Chicago told police she killed her child to prevent her from being raped and sold as a sex slave online, prosecutors said.

Marci Webber of East Nassau, N.Y., was being held Monday at DuPage County Jail on $5 million bond in the death of Magdalene "Maggie" Webber.  Her body was found last week in an upstairs bathroom of a Bloomingdale town house.  The child's throat was slashed and the words "divine mercy" were scrawled in blood on a nearby wall, according to DuPage County prosecutors.

The 43-year-old mother told police she gave her daughter sleeping pills and Benadryl, some of which were found next to the girl's body along with a 4-inch folding knife, prosecutors said.     "She said she wanted to keep her daughter from being an Internet sex slave," Assistant State's Attorney Joseph Lindt said in court Sunday.

Prosecutors later said they did not believe the girl ever faced such a threat.  They planned to seek a mental health evaluation in anticipation of an insanity defense, Paul Darrah, a spokesman for the DuPage County state's attorney, said Monday.

"'Castle doctrine' coming under fire; Critics: Right to kill intruder is being used to defend criminals"

The title of this post is the headline of this timely article appearing in today's Columbus Dispatch.  Here is how the article gets started:

Ohio prosecutors warned two years ago that the "castle doctrine" would add an unwelcome page to the playbook of criminal-defense lawyers.

The 2008 law, designed to protect the grandmother who shoots an intruder in her home in the middle of the night, increasingly is being used to defend murder suspects as not legally responsible for their deeds.

The castle doctrine states that people are presumed to be acting in self-defense when they use deadly force and injure or kill someone who illegally enters their occupied home or vehicle.

But critics say the law is silent about the appropriate level of force in response to threats, as well as the fault or criminal conduct of people who create situations that imperil themselves. "It was not made to protect drug dealers from drug dealers, but that's how it's being used," Pike County Prosecutor Rob Junk said.

In rural Pike County, a man who ripped off a drug dealer's wares shot the dealer through the heart after he broke a window in an attempt to enter the defendant's car. Defense attorneys contended that the man acted lawfully. A jury convicted him of reckless homicide rather than murder.

In Franklin County, a man fatally stabbed an acquaintance who pushed his way into the defendant's home during an argument. His attorneys said the law granted him an absolute right to defend himself with deadly force. The prosecution countered that the law "is not a license to commit murder."

Class plans for defenses through November

The junior lawyers from the Oliwood firm of Douglas, Aaron, Ber, Man and Associates LLC have made arrangements with potential client Tom Dudley to meet at 1:45pm on Friday, November 12.  That means we will be focused on self-defense doctrines during Tuesday's class (and, as you all surely recall, we do not have class on Thursday, Nov. 11).

For our initial self-defense discussions, be sure to read (and re-read) La Voie and especially Leidholm very carefully.  In addition, to get a running start on Ohio's approach to self-defense, also read ASAP the Ohio Supreme Court's decision in State v. Thomas, which is available in pdf form at this link. (The official cite is State v. Thomas, 77 Ohio St.3d 323, 673 N.E.2d 1339 (1997).)

In addition, for a timely recent story about self-defense issues in Ohio, check out this new piece from today's Columbus Dispatch, which is headlined "Judge says killing wasn't self-defense: Man to appeal over 'castle doctrine'."

We likely will wrap up our self defense discussions on Tuesday, Nov. 16 and cover necessity and duress doctrines in our last two pre-Thanksgiving classes.  Be sure to read accordingly.

A place to get the R&W assignment instructions (and to ask questions)

A helpful student reminded me that I have not yet posted the Small Section Research and Writing Assignment instructions in this space. Thus, I have done so via this post. In addition, I both welcome and encourage student to ask any and all questions about the assignment in the comments to this post. I will try to respond to all question either via this blog on live in class.

Download 2010 R&W Assignment Instructions

Proposed Oliwood rape statute from Senators Coleman, Pullen and Silverblatt (and now ... others)

Reprinted below is the full text of a proposed new rape law drafted by Senators Coleman, Pullen and Silverblatt.  This is the first (and so far only) proposal that has been submitted to me in advance of the Oliwood legislative session scheduled to take place this afternoon at 1:30pm.

Oliwood Rape Statute

213.0 Definitions

1. “Sexual conduct” means vaginal intercourse, anal intercourse, fellatio, and cunnilingus between persons regardless of sex; and, without privilege to do so, the insertion, however slight, of any part of the body into the vaginal, anal, or oral opening of another; or the insertion, however slight, of any instrument, apparatus, or other object into the vaginal or anal opening of the other.
2. “Non-consent” means any verbal or nonverbal indication given by the victim that would lead a reasonable person to believe that the victim does not consent to the engagement of sexual conduct with the offender.

 213.1 Rape

 A person who engages in sexual conduct with any other person is guilty of rape if:

1. the other person expresses non-consent at any time during or immediately prior to the sexual conduct; or
2. the other person is under 11 years old, and the offender is more than 3 years older than the      other person, whether or not the offender knows the age of the other person; or
3. 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, age, or level of consciousness; or
4. for the purpose of preventing resistance, the offender purposefully and 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; or
5. the actor knowingly compels the other person by force or threat of force, including but not limited to: threat of death, bodily injury, pain or kidnapping, to be inflicted on anyone

Whoever violates this section is guilty of rape, a felony in the first degree. The prison term to be imposed upon the offender under this section shall be one of the prison terms prescribed in the Model Penal Code Section 6.06(1)

6.06 Sentence of Imprisonment for Felony; Ordinary Terms: A person who has been convicted of a felony may be sentenced to imprisonment, as follows: (1) in the case of a felony of the first degree, for a term the minimum of which shall be fixed by the Court at not less than one year nor more than ten years, and the maximum at not more than twenty years or at life imprisonment...

UPDATE:  As the Speaker soundly suggested, all of the drafters of proposed legislation are urged to add the text of their proposals to the comments (as it appears one group already has done). 

Open thread for Election Day (and Oliwood legislators)

Exciting times today with contested elections all over the place, and with the Oliwood legislature in session to consider proposals to reform the state's rape law.  This post provides an open thread for anyone and everyone eager to raise questions or make comments about any part of today's activities.

Here is one key question for collective consideration that merges today's events:  Have any major contested races in Ohio or elsewhere focused on criminal justice issues and need Oliwood legislators worry about what future political opponents might say about how they respond to proposals to reform the state's rape law?

UPDATE:  Kudos to all the members of the Oliwood legislature for a job well done, especially all of the drafters of proposed legislation. 

As a follow-up to the prior inquiry, I wonder if any of the legislators would have acted/spoken differently if he/she knew that our legislative session was being recorded and streamed/archived on the internet.  That is what all Ohio legislators now know.