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September 28, 2017

Thoughts on, reactions to, and results from Shooter role-play

In addition to thanking again our terrific state homicide lawyers, I also want to provide this space for any pressing questions or other thoughts on the Shooter exercise.  The primary point of the role-play was to preview homicide issues we will be working through in October.  But the exercise may also prompt thoughts about matters of procedure and practice that I would be happy to field here or elsewhere. 

Some questions and reactions might also be triggered by the document linked below showing the voting results in the Shooter role play in the three different jurisdictions we examined (California, Kansas and Ohio).  Consider whether the pattern of outcomes tells us more about the unique law in the three different jurisdictions or about the unique choices made by the lawyers who presented the case in these jurisdictions.

Finally, and as a preview of the start of our discussions next week, think about (and perhaps comment upon) the ideal number of different types of homicide.  As mentioned in class, the drafters of the Model Penal Code decided there should only be three different types of homicide.  To my knowledge, not a single US jurisdiction has only three types of homicide crimes.  In Ohio, if you include aggravated vehicular homicide and vehicular homicide, the Revised Code has nine different types of homicide.   Do you think it better for a modern criminal code to have fewer or to have more types of homicide?  What are some consequences of one general criminal harm being subdivided into so many different offenses?

Download 2017 shooter results

September 28, 2017 in Class reflections, Course materials and schedule | Permalink | Comments (0)

A terrific review of the modern realities of the insanity defense and its consequences

Though we will not get to what I call "traditional defenses" for a few weeks and will not get into the insanity defense until the very end of the defenses unit, we have already indirectly encountered some of the challenging issues that mental illness can create for criminal law in cases like Grant and Wetmore.   When we do get to the insanity defense, we will talk about why a good defense lawyer might not even want her client to pursue this defense. This new New York Times Magazine article explains why better than I will be able to in class. 

The full headline and sub-headline provides a helpful summary of the long article: "When ‘Not Guilty’ Is a Life Sentence: What happens after a defendant is found not guilty by reason of insanity? Often the answer is involuntary confinement in a state psychiatric hospital — with no end in sight."  This long article is not required reading, but it is recommended for anyone interested in the important connections between mental health issues and the criminal justice system.

September 28, 2017 in Notable real cases | Permalink | Comments (0)

September 26, 2017

A couple Ohio cases with contested causation circumstances

As I mentioned in class, Ohio tends to adopt a more "common law" approach to causation doctrines than an MPC approach, but this is a distinction that does not really make much of a difference in all but the rarest of cases.  In this post on this blog last year, I flagged four of the rare Ohio criminal cases in which causation doctrines are discussed.  Here are two of those cases I consider the most interesting, and I will here just provide the cites and facts.  You will have to look up the cases if you want to see how they were worked out:

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 essential 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.

September 26, 2017 in Notable real cases | Permalink | Comments (0)

September 21, 2017

Looking back at omissions and forward to causation

I just came across this recent article, headlined "Why It’s Hard to Punish ‘Bad Samaritans’," that starts with a report on a recent real case from Florida that, sadly, sounds like my drowning Josephine hypo.  Here is how the article starts and a bit of a review of laws that you all now know a bit about:

In the video, Jamel Dunn can be seen flailing in the middle of a Florida pond, his head sinking deeper in the water with every gasping breath.  In the background, teenagers are laughing and mocking him.  “Ain’t nobody’s gonna help you,” one yells.  Seconds later, Dunn, 31, drowns.

Months after the July episode, which was posted online and seen by millions, the teens have faced public outrage, but no legal action. While many agree that what they did was immoral, it wasn’t illegal.... There is no law in Florida — or in most states — that requires someone to act when they see someone else in grave danger.  There is no duty to attempt a rescue, or even to call for help.

That’s unconscionable for many who watched Dunn’s drowning, including lawmakers in Arizona and Florida who are now drafting proposals that would make it illegal to sit idly by if you see someone in grave danger. The laws would impose either a duty to rescue or duty to call 911 or otherwise alert authorities during emergencies. Only a handful of states have similar, broad “bad Samaritan laws,” which apply to any bystander who witnesses an emergency or crime.....

Three states — Minnesota, Rhode Island and Vermont — impose a broad duty to rescue others in an emergency, and three others — Hawaii, Washington and Wisconsin — impose a broad duty to report crimes to authorities. Other states have similar laws, but they’re more specific, and apply only to medical professionals or people who witness certain criminal acts such as child abuse. People are rarely, if ever, prosecuted or sued for breaking these laws, said Christopher Roberts, an associate law professor at the University of Minnesota.

In addition to highlighting for you how some issues we have previously discussed are in the news, I also wanted to flag for you some recent Supreme Court cases dealing with some causation issues we will be discussing.  You are NOT required or even expected to read these cases, but you might still find it interesting to see the settings in which SCOTUS can confront issues that we are reviewing.  Here are links to the rulings, along with the start of the Court's opinion in each case:

Burrage v. United States:  "The Controlled Substances Act imposes a 20-year mandatory minimum sentence on a defendant who unlawfully distributes a Schedule I or II drug, when 'death or serious bodily injury results from the use of such substance.' 21 U.S.C. §841(a)(1), (b)(1)(A)–(C) (2012 ed.).  We consider whether the mandatory-minimum provision applies when use of a covered drug supplied by the defendant contributes to, but is not a but-for cause of, the victim’s death or injury."

Paroline v. United States: "This case presents the question of how to determine the amount of restitution a possessor of child pornography must pay to the victim whose childhood abuse appears in the pornographic materials possessed.  The relevant statutory provisions are set forth at 18 U.S.C. §2259.  Enacted as a component of the Violence Against Women Act of 1994, §2259 requires district courts to award restitution for certain federal criminal offenses, including child-pornography possession.

"Petitioner Doyle Randall Paroline pleaded guilty to such an offense.  He admitted to possessing between 150 and 300 images of child pornography, which included two that depicted the sexual exploitation of a young girl, now a young woman, who goes by the pseudonym “Amy” for this litigation.  The question is what causal relationship must be established between the defendant’s conduct and a victim’s losses for purposes of determining the right to, and the amount of, restitution under §2259."

September 21, 2017 in Notable real cases | Permalink | Comments (0)

September 15, 2017

How Rhode Island changed its child abuse law after Lima

Though our casebook mentions how New York amended its drug statutes after Ryan, I think it also notable how the Rhode Island legislature responded to the Lima case.  Here is the story via a subsequent Rhode Island ruling, State v. Sivo, 925 A.2d 901 (R.I. 2007):

In Lima, the defendant was convicted of first-degree child abuse for lowering a small child into a bathtub of scalding water, causing him to suffer permanent disfigurement or disability.  The child abuse statute implicated in Lima, § 11-9-5.3(a), provided, in pertinent part, that "[w]henever any * * * [caretaker] * * * abuses [a] child by inflicting upon said child a physical injury, to the extent the child is permanently disfigured or disabled, he or she shall be guilty of child abuse in the first degree * * *." General Laws 1956 (1981 Reenactment) § 11-9-5.3, as amended by P.L.1983, ch. 179, § 1.   Evidence introduced at trial showed that the defendant told the child's father that she had intentionally put the child in the bathtub to wash him, but had not first checked the water temperature, which, unbeknownst to the defendant, was far too hot.  Lima, 546 A.2d at 771.  The trial justice instructed the jury on the elements of the child abuse statute, but did not instruct the jury that intent was a necessary element of the crime charged. Id.   The defendant appealed, alleging that the trial justice committed error when he refused to instruct the jury that an intentional act was required. Id. This Court held that the trial justice's refusal to so instruct the jury constituted reversible error. Id. at 772.  Because the child abuse statute in place at the time was entirely devoid of words of intent, we adopted a standard similar to that set forth in the Model Penal Code (MPC), requiring that "[w]hen the culpability sufficient to establish a material element of an offense is not prescribed by law, such element is established if a person acts purposely, knowingly or recklessly with respect thereto." Lima, 546 A.2d at 772 (quoting Model Penal Code, § 2.02(3) at 226 (A.L.I.1985)).  Pursuant to this standard, we directed the trial justice on remand to instruct the jury accordingly, to "protect [][the] defendant from a conviction predicated upon an act devoid of mens rea while at the same time protecting a class of defenseless victims from physical abuse." Id. 

In the years after Lima, the General Assembly enacted numerous amendments to the first-degree child abuse statute.  What is most significant to the instant litigation is that, in 1995, the General Assembly added words of intent, prescribing punishment only for those individuals who “knowingly or intentionally” inflict a serious bodily injury upon a child.  These statutory words of intent effectively superseded the MPC-inspired words of intent we adopted in Lima..... [where] our concern was the possibility that the jury convicted the defendant without finding that she had acted with a mens rea.

September 15, 2017 in Class reflections, Notable real cases | Permalink | Comments (0)

September 4, 2017

Highlighting why we need to pass the proposed "Driving in the Rain" criminal law in Oliwood

As you may know, the great state of Oliwood borders Ohio, and the headline of this weekend article from an Ohio newspaper provides a reminder for why proposed "Driving in the Rain" legislation seems so important for community protection and safety: "Saturday rain caused several crashes, highway closures."  Here is the article's lead: "Columbus-areas highways were shut down at least four times on Saturday by crashes on rain-soaked roads that frustrated drivers and clogged traffic until mid-afternoon."

Of course, this Ohio article about the local impact of harmful and costly driving during rainy conditions is hardly a surprise given well-known data on the extent of the rain-driving problem.  As explained in this government website drawing on a decade of crash data (with emphasis added):

On average, nearly 6,000 people are killed and over 445,000 people are injured in weather-related crashes each year.  The vast majority of most weather-related crashes happen on wet pavement and during rainfall: 73% on wet pavement and 46% during rainfall. A much smaller percentage of weather-related crashes occur during winter conditions: 17% during snow or sleet, 13% occur on icy pavement and 14% of weather-related crashes take place on snowy or slushy pavement. Only 3% happen in the presence of fog.

In other words, nearly 1000 people in the US are injured every single day thanks to folks crashing while driving in the rain.  And, as this government paper states not only that "wet weather is far more dangerous than winter weather," but also that "weather-related crashes cause between 94 million and 272 million hours of delay each year [with the] annual cost of weather-related crashes estimated to be between $22 billion and $51 billion."

Of course, any proposed driving-in-the-rain criminal law will not prevent all or even most weather-related crashes (just like existing drunk-driving and texting-while-driving criminal laws do not prevent all other dangerous-driving crashes).  But if a proposed new criminal law can reduce the number of weather-related crashes by even just 10%, that could save dozens of innocent lives, reduce by hundreds the number of Oliwood citizens injured on the roadways, and save millions of dollars each and every year.

The simple proposed draft text for a "Driving in the Rain" criminal liability statute appears below, and it is important to note that it does not call for punishing people for driving in the rain, but really only for crashing in the rain.  I look forward to hearing whether and why Oliwood legislators support or oppose this use of the criminal law in our great state.

PROPOSED OPC Section 55.55: Criminal Damaging While Driving in the Rain:  No person shall cause any physical harm to any other person or to the property of another while driving in the rain.  Punishment for a violation of this section shall depend upon the amount of harm caused and other relevant factors in the discretion of the sentencing judge.

September 4, 2017 in Course materials and schedule | Permalink | Comments (0)

High-profile case that might hinge on voluntary/involuntary act arguments

This weekend a fellow law professor highlighted on the CrimLawProf list-serve — yes, old lawprofs still use list-serves — this CNN article reporting on a high-profile criminal case in which a defendant might seek to claim that her alleged criminal conduct was not voluntary.  Here are the details:

The Department of Justice will retry a woman whom prosecutors say disrupted Jeff Sessions' confirmation hearing for attorney general by laughing.

After rejecting a plea deal, Desiree Fairooz will again face charges of unlawful conduct for disrupting Sessions' hearing in January. According to court records, Fairooz rejected a deal offered by prosecutors that would have required her to plead guilty in exchange for a recommended sentence of time served.

Fairooz was detained after audibly laughing after Sen. Richard Shelby told senators at Sessions' confirmation hearing that the then-Alabama senator had a record of "treating all Americans equally under the law." Her laughter lasted seconds and Shelby continued with his speech without acknowledging the disturbance.

In a statement, Fairooz said she let out a spontaneous "reflexive noise" because Shelby's description was not true. "It was an immediate rejection of what I considered an outright lie or pure ignorance," she said.

Fairooz was previously convicted of a misdemeanor connected to disrupting the hearing, but a judge threw out the guilty verdict in July and ordered a new trial. The new trial is scheduled to begin on November 13.

This HuffPost article about the judge's decision to reject a prior jury verdict suggests (but does not make entirely clear) that the judge was troubled by the idea that laughter alone could serve as the basis for the charges here.

This case provides a useful real-world example of how there can be, in some unusual types of cases, opportunities for defendants to question whether the prosecution can satisfy the act requirement component of a proper prosecution. But it should also provide a reminder that these kinds of act issues will typically arise only in unusual types of cases.

September 4, 2017 in Current Affairs, Notable real cases | Permalink | Comments (0)