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September 25, 2013

Basics of two pending SCOTUS cases dealing with causation issues

As I mentioned in class today, two of cases on the docket of the Supreme Court for its upcoming term involve interesting causation issues.  Thanks to SCOTUSblog (which should be a regular read for all lawyers-in-training), here are the questions presented and a link to all of the Supreme Court developments for these two pending cases (both of which will be argued this fall and likely decide in early spring 2014):

Burrage v. United States: (1) Whether the crime of distribution of drugs causing death under 21 U.S.C. § 841 is a strict liability crime, without a foreseeability or proximate cause requirement; and (2) whether a person can be convicted for distribution of heroin causing death utilizing jury instructions which allow a conviction when the heroin that was distributed “contributed to,” death by “mixed drug intoxication,” but was not the sole cause of death of a person.

Paroline v. United States: What, if any, causal relationship or nexus between the defendant's conduct and the victim's harm or damages must the government or the victim establish in order to recover restitution under 18 U.S.C. § 2259?

As I mentioned in class, earlier this year, the New York Times magazine ran this lengthy cover story concerning the backstory of the Paroline case.  I highly recommend reading this article (and not only because I get quoted toward the end).

September 25, 2013 in Notable real cases | Permalink | Comments (1) | TrackBack

September 23, 2013

Gearing up for transition to homicide discussions (and Joe Shooter role play)

It dawned on me after I kept you all a little late (again) in class on Monday that I am going slower than I should because I have not lately been using the blog to ensure we get a sufficient running start on key topics.  In an effort to avoid these problems in the near future, I am here posting the Joe Shooter facts along with an encouragement for folks to sign up here to play the role of either prosecutor or defense attorney on Joe Shooter's behalf this Friday in California (a common-law-influenced jurisdiction) or Kansas (an MPC-influenced jurisdiction) or Ohio (a little of everything).

This time around, I seek only one lawyer for each side (so I need 6 total voulneers, a single prosecutor and a single defense attorney for each state).  In addition to the usual offer of happy hour celebration, volunteers this time around can know that they will be rewarded for their efforts by being assured they do get called upon in class until (well) after the midterm.  In addition, I think serving as a lawyer in this role play probably provides a really good pre-mid-term preparation experience.

So, review the Shooter facts again and sign on up in the comments or via an e-mail to me.

Download 2013 Shooter facts


UPDATEWE STILL NEED THREE MORE VOLUNTEER LAWYERS.  There are lots of formal and informal benefits that come from being willing to be a prosecutor or defense attorney in California or a defense attorney in Ohio.  I will assign students to these roles if necessary, but I hope this will not be necessary.

ANOTHER UPDATE:  The verdict form for the three relevant jurisdictions for our role play is now here for downloading:

Download 2013 shooter verdict form

September 23, 2013 in Course materials and schedule | Permalink | Comments (4) | TrackBack

September 16, 2013

Can anyone figure out the mens rea in Florida's (or Ohio's) cyberbullying law?

I mentioned in class today that lots of legislatures draft lots of statutes with lots and lots of verbiage, which makes it especially hard for lawyers to subsequently know exactly what acts and mental states are covered by the statute.  A great example of this reality just happens to be Florida's recent revision of its bullying statutes to cover cyberbullying, a revision that is highlighted in this document.  Good luck reading (let alone understanding) all the words the Florida's legislature added to its code to try to deal with the problem of cyberbullying.  And, as the question in the title of this post suggests, I am not sure it is even possible to figure out just what mens rea attaches to each element under this statute.

Perhaps rather than try to puzzle through Florida law, check out Ohio Revised Code section 2903.211, which is titled "Menacing by stalking" and includes these provisions:

(A)(1) No person by engaging in a pattern of conduct shall knowingly cause another person to believe that the offender will cause physical harm to the other person or cause mental distress to the other person.

(2) No person, through the use of any electronic method of remotely transferring information, including, but not limited to, any computer, computer network, computer program, or computer system, shall post a message with purpose to urge or incite another to commit a violation of division (A)(1) of this section....

(B) Whoever violates this section is guilty of menacing by stalking.

(1) Except as otherwise provided in divisions (B)(2) and (3) of this section, menacing by stalking is a misdemeanor of the first degree.

Do I have any reason to worry that an Ohio prosecutor (perhaps a former student eager to give me some grief) might conclude that my posts here with hard question to 1L students amounts to a "engaging in a pattern of conduct" that I know will cause mental distresses?

September 16, 2013 in Notable real cases | Permalink | Comments (5) | TrackBack

September 15, 2013

Some serious real-world cases for debating a killer's mens rea

The Joe Izuzu hypo provided a relatively silly and relatively simple setting for getting comfortable with the mens rea concepts and definitions in the Model Penal Code and the Ohio Revised Code.  But there are plenty of real-world cases that make headlines every day that provide more serious and more challenging settings for working through these critical concepts. 

Here are two recent headline-grabbing stories which provide real-world opportunities to think about what mens rea a criminal defendant may have when acting in a manner that contributed to a person's death:

Both of these high-profile potential homicie cases involve lots of legal and policy issues besides just mens rea.  But think about whether you can try to ignore other concerns and issues, at least at the outset, and just think about what level of mens rea an Oliwood prosecutor might think she might be able to prove for the killer newlywed or the cyberbullies in these two real cases.

September 15, 2013 in Current Affairs | Permalink | Comments (7) | TrackBack

September 9, 2013

Effective discussion of strict liability issue in play in Shelton v. Sec’y, Dep’t of Corrections

We will wrap up our focused discussion of strict criminal liability issues on Wednesday, and the (still on-going) litigation over Florida's drug possession laws at issue in Shelton v. Sec’y, Dep’t of Corrections will provide a good setting for developing a few final thoughts on this front.  Fortunately, though the textbook provides an already dated (and somewhat confusing) account of the Shelton case, there is a terrific (and brief) primer on the case available at this link from The Heritage Foundation.

I highly recommend that everyone at all interested by these debates read this discussion of the Shelton case and its importance.  To whet your appetite, here is how document linked above is titled and its abstract:

Guilty Until Proven Innocent: Undermining the Criminal Intent Requirement

Abstract: Developed over the course of hundreds of years, the Anglo–American legal system contains several key provisions that, when used properly, guard against wrongful criminal convictions.  These provisions, however, are under attack by America’s legislators and their desire to eliminate mens rea (“guilty mind”) requirements from U.S. criminal law.  The loss of this guilty mind requirement would destroy Americans’ primary defense against false accusations and Kafka-esque legal proceedings.  How the Supreme Court of the United States rules (if the Court does choose to rule) on Shelton v. Sec’y, Dep’t of Corrections will have a tremendous impact on one of America’s primary core liberties.

September 9, 2013 in Recommended scholarship, Reflections on class readings | Permalink | Comments (8) | TrackBack

September 7, 2013

Working draft of bill for new ORC provision to criminalize "Damaging while driving in rain"

In order to facilitate the consideration by students/legislators concerning a new bill I have proposed in the hope of reducing the harms that too often result from driving in the rain, I have formally drafted some bill language:
PROPOSED ORC Section 2999.99: Criminal Damaging While Driving in the Rain
(A) No person shall cause any physical harm to any other person or to the property of another person while driving in the rain.
(B) Whoever violates this section is guilty of criminal damaging while driving in the rain, a misdemeanor of the second degree.  If a violation harms property valued in excess of $5000, this offense is a misdemeanor of the first degree.  If a violation harms a person or property valued in excess of $50,000, this offense is a felony of the third degree.  If a violation causes serious harm to multiple persons or the death of any person, this offense is a felony of the second degree.

This 2008 report from Science Daily, headlined "Bad Weather: Bad Drivers" highlights the impetus and importance of this kind of proposed legislation.  Here excerpts (with key points highlighted in bold):

Researchers and statisticians found that 24% of all crashes occur during adverse weather conditions, including ice, snow, and rain.  The research showed that most drivers do not account for adverse conditions created by rainy weather.  They suggest slowing down and increasing the distance between traveling cars as a way to decrease the number of accidents in bad weather.

Each year, nearly 7,400 people are killed and over 670,000 are injured in crashes.  But not all wrecks are because of driver error.....  Rainy weather can wreak havoc on highways. When a big storm rolls in, drivers tend to either slow down too much or not enough. Drivers need to be wary of driving in any change in the weather.  A new study by transportation engineers reveals that nearly one-quarter of all crashes occur in bad weather conditions.  Most happen on wet pavement....

Unlike snow and ice covered roads that scare drivers into staying home or driving more carefully.  Many drivers don't consider rain as 'bad' weather, so more cars end up on wet roads, and drivers don't slow down enough to avoid serious accidents.

For more research on this front (which further supports the need to do whatever is necessary to try to make our roads safer during inclement whether), check out this related story headlined "Rain Is More Lethal For Drivers After A Long Dry Spell."  Here is a key fact  based on a review of many years of roadway accident data:  "For any given day in the state, on average, each centimeter of precipitation increases the risk of fatal crashes by about 1 percent, [and] for nonfatal crashes, the increased risk is 11 percent."

September 7, 2013 in Class reflections, Course materials and schedule | Permalink | Comments (13) | TrackBack

September 3, 2013

Reading/discussion/class-time scheduling issues and clarifications for start of September

I hope everyone enjoyed a long weekend and recharged batteries for all the intense criminal law fun we have on tap for the next few weeks.  (I watched a lot of college football and baseball and tennis, while also getting a chance to see on Sunday the Cirque Du Soleil show in town.  Did else get a chance to do anything especially notable or exciting?)

I wanted to clarify where I think we will be going (quite quickly) the next few classes:

Wednesday (9/4): We will start to wind down our discussion of the act requirement with the Jones case (and the notes in the casebook after the case) getting lots of attention, and then with the Martin and Grant cases starting to get attention.

Friday (9/6):  We will finish our discussion of the act requirement with Grant and Decina and start on the (very challenging) topic of strict criminal liability.  Timing NOTE:  The absence of a Monday class means we will likely go until 2:45pm on this Friday.

Monday (9/9):  We will (try to) finish our discussion of strict criminal liability and then get into a discussion of the fascinating (old-world) Faulkner case.  Timing NOTE:  Class may not start until 2pm because I will be driving back from a morning event in Cleveland. 

In addition, I am planning after Friday's class to show the last part of the PBS documentary Prohibition, followed by another round of happy-hour activities around 5pm.

All of these plans are, of course, subject to adjustment as this coming week unfolds.  But I am hopeful many of you used the weekend to re-read Jones and Martin and Grant so that we can be sure to have an especially productive class session on Wednesday.  (And folks should be able to find me in my office after 3pm most days this week even though I do not have any formal office hours.)

September 3, 2013 in Course materials and schedule | Permalink | Comments (2) | TrackBack