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November 13, 2017

Attempt actus reus hypo for consideration and reflection

Though we will start our review of attempt law by unpacking the required mens rea for attempt liability, the most challenging and controversial issues surrounding attempt throughout history has concerned the required actus reus for the crime.  To facilitate our discussion of the actus reus of attempt liability, below is a list of hypothetical actions by a hypothetical troubled young man to get you thinking about where a line should be drawn between "mere preparation" and attempt liability:

Joe McAngry of Columbus truly believes modern technology is the root of much evil in the world, and he often tells his friends that the whole world would be better off without the likes of Apple and Google and Microsoft and their leaders. After watching a documentary about the Oklahoma City bombing and the Unibomber, Joe McAngry does the following:

1. E-mails friend saying he wished Tim Cook was dead and Apple and Google and Microsoft were bankrupt

2. Posts blog comment that he would love to see Apple and Google and Microsoft headquarters blown up

3. Does internet research on location of Apple headquarters in Cupertino, California

4. Does internet research about how often and when Tim Cook goes to his Apple office

5. Does internet research on homemade explosives

6. Rents hotel room for two nights in San Jose, California

7. Rents Ryder truck for driving to San Jose, California

8. Drives rented truck to San Jose, California, checks into hotel, sleeps

9. Drives in morning to Cupertino and drives around the Apple headquarters repeatedly

10. Parks near Apple headquarters, walks around asking employees when Cook is there

11. Returns to hotel room in San Jose, California, does more internet research on bomb-making, sleeps

12. In morning, buys fertilizer/gas/timer and other ingredients for making primitive bomb at hardware store

13. Drives again to Cupertino, now with bomb ingredients in truck

14. Parks in strategic location near Apple headquarters

15. Starts building homemade bomb insider rental truck

16. Waits, watches for Cook to arrive at work

17. Drives past security guard following Cook's car

18. Parks truck right next to Cook's car as he pulls into spot

19. Jumps out of truck with remote bomb trigger in hand

20. Runs away planning to push trigger after hiding behind stone wall



When SHOULD Joe McAngry be deemed guilty of attempted murder?

-- When could he be deemed guilty at common law?

-- When could he be deemed guilty under the MPC?



When do you want police to intervene?

When do you think the police legally can intervene?

When do you think the police will intervene?

November 13, 2017 in Course materials and schedule | Permalink | Comments (0)

November 7, 2017

Interesting local verdict in case that reads like an exam question

Though we are moving on from our self-defense discussions to other defenses, I think it useful to know and notice that defensive use of force is the most widely invoked and widely litigated of all the classic basic criminal law.  As but one example of its importance, today on the CrimLaw professor list-serve there has been an (academic?) accounting of whether and how, under Texas law, it would be defensible for citizens in Texas to have been trying to kill the mass church shooter once he was in his car and fleeing the scene.

As another more local example of self-defense doctrines in action, consider this Columbus Dispatch article in today's paper.  The article is headlined "Jury acquits man in fatal shooting during street brawl," and here are the details:

Earl M. Lindsey testified that he feared for his life when an unarmed man threw a punch at him and a large group of people, some with guns, surrounded him in a South Side intersection.

So, Lindsey said, he pulled a handgun and fired a single shot into Rashawn M. Wilson’s chest. Wilson, 18, died six days later. “I didn’t have any other option,” Lindsey told a Franklin County jury last week.

On Monday, the jury acquitted him of murder, determining that he acted in self-defense.

Wilson’s mother responded to the verdict by cursing at Lindsey after the jurors had been excused. “You put a bullet in my son,” she shouted as deputies hustled her from the courtroom.

Lindsey testified last week that he saw at least three people with guns and heard two gunshots as a crowd converged on him during a street brawl at the intersection of East Gates and Ann streets on May 23, 2016. Wilson “swung on me,” Lindsey said, but he never saw a gun in Wilson’s hands.

To shoot Wilson under those circumstances was “extreme, unnecessary and unjustified,” Assistant Prosecutor Mark Wodarcyk told the jury Monday in his closing argument. “At most, Rashawn was going to engage in a fist fight.”

Seconds after Lindsey shot Wilson, a neighbor fired at Lindsey from a nearby front porch, striking Lindsey in the side of the neck. The bullet remains lodged near Lindsey’s spine and left him with some paralysis. He wasn’t able to fully lift his right hand when he was sworn in before testifying.

The neighbor, Aaron Mahan, wasn’t part of the confrontation in the street. He testified that he fired when Lindsey pointed the gun in his direction after shooting Wilson. “I shot the guy who shot the kid,” he said.

Mahan, who said he is a concealed-carry instructor, was not charged in the case.

Testimony established that the fatal encounter began with a fist fight among several young women. Lindsey said he was trying to separate the combatants when a large group of people, some with guns, began to close in on him. Wodarcyk called it “a simple neighborhood fight” and said Lindsey “decided to put himself in the middle of it with a loaded handgun.”

Defense attorney Byron Potts argued to the jury that Lindsey was justified in using deadly force because he was surrounded by a large crowd that included “multiple people with guns.”

Based on this description of the case, is anyone surprised that Earl Lindsey was acquitted here in Ohio. If the case was tried in Oliwood, do you think the outcome might have possibly been different?

Also, is anyone surprised or troubled that neighbor Aaron Mahan was not charged with any crime?

November 7, 2017 in Notable real cases, Preparing for the final | Permalink | Comments (1)

November 6, 2017

Readings (and videos) on Paul Butler's proposal for race-based jury nullification

I mentioned briefly in class Professor Paul Butler's (in)famous and provocative law review article in which he urged race-based jury nullification.  The article was published as Racially Based Jury Nullification: Black Power in the Criminal Justice System, 105 Yale L.J. 677 (1995), and is available at this link.  Here is a snippet from the piece's introduction:

My thesis is that, for pragmatic and political reasons, the black community is better off when some nonviolent lawbreakers remain in the community rather than go to prison.  The decision as to what kind of conduct by African-Americans ought to be punished is better made by African-Americans themselves, based on the costs and benefits to their community, than by the traditional criminal justice process, which is controlled by white lawmakers and white law enforcers.  Legally, the doctrine of jury nullification gives the power to make this decision to African-American jurors who sit in judgment of African-American defendants.  Considering the costs of law enforcement to the black community and the failure of white lawmakers to devise significant nonincarcerative responses to black antisocial conduct, it is the moral responsibility of black jurors to emancipate some guilty black outlaws....

My goal is the subversion of American criminal justice, at least as it now exists.  Through jury nullification, I want to dismantle the master's house with the master's tools.  My intent, however, is not purely destructive; this project is also constructive, because I hope that the destruction of the status quo will not lead to anarchy, but rather to the implementation of certain noncriminal ways of addressing antisocial conduct.  Criminal conduct among African-Americans is often a predictable reaction to oppression. Sometimes black crime is a symptom of internalized white supremacy; other times it is a reasonable response to the racial and economic subordination every African-American faces every day.  Punishing black people for the fruits of racism is wrong if that punishment is premised on the idea that it is the black criminal's "just deserts."  Hence, the new paradigm of justice that I suggest in Part III rejects punishment for the sake of retribution and endorses it, with qualifications, for the ends of deterrence and incapacitation.

In a sense, this Essay simply may argue for the return of rehabilitation as the purpose of American criminal justice, but a rehabilitation that begins with the white-supremacist beliefs that poison the minds of us all --- you, me, and the black criminal.  I wish that black people had the power to end racial oppression right now.  African-Americans can prevent the application of one particularly destructive instrument of white supremacy --- American criminal justice --- to some African-American people, and this they can do immediately.  I hope that this Essay makes the case for why and how they should.

For those who (understandably) do not have enough time to read all of Butler's remarkable Essay, here is an effective (though dated, and yet also still timely) 60 Minutes video (under 10 minutes) discussing Butler's ideas.  The discussion usefully touches on some of the broader issues that jury nullification always raises.



Anyone who is eager for even more video on this issue can also see a series of 1995 segments on the Phil Donahue show (part 1 herepart 2 herepart 3 here...) with Butler and other guests.

November 6, 2017 in Class reflections | Permalink | Comments (0)

November 4, 2017

For those interesting in learning more about Thomas Dudley and his travails....

9780521188517check out this Wikipedia page on the Dudley and Stephens case and some of the links therein.  That page provides this accounting of the activities that led to a criminal prosecution:

Drawing lots in order to choose a sacrificial victim who would die to feed the others was possibly first discussed on 16 or 17 July, and debate seems to have intensified on 21 July but without resolution.  On 23 or 24 July, with Parker probably in a coma, Dudley told the others that it was better that one of them die so that the others survive and that they should draw lots.  Brooks refused. That night, Dudley again raised the matter with Stephens pointing out that Parker was probably dying and that he and Stephens had wives and families.  They agreed to leave the matter until the morning.

The following day, with no prospect of rescue in sight, Dudley and Stephens silently signalled to each other that Parker would be killed.  Killing Parker before his natural death would better preserve his blood to drink.  Brooks, who had not been party to the earlier discussion, claimed to have signalled neither assent nor protest.  Dudley always insisted that Brooks had assented.  Dudley said a prayer and, with Stephens standing by to hold the youth's legs if he struggled, pushed his penknife into Parker's jugular vein, killing him.

In some of the varying and confused later accounts of the killing, Parker murmured, "What me?" as he was slain.  The three fed on Parker's body, with Dudley and Brooks consuming the most and Stephens very little.  The crew even finally managed to catch some rainwater.  Dudley later described the scene, "I can assure you I shall never forget the sight of my two unfortunate companions over that ghastly meal we all was like mad wolfs who should get the most and for men fathers of children to commit such a deed we could not have our right reason."  The crew sighted a sail on 29 July.

And if you really want to dig deep and get and even more thorough understanding of the context of the crime and the prosecution, check out Chapter 2 of this book, wonderfully titled "Is Eating People Wrong?".  Here is one of many notable passages to be found therein describing Captain Dudley's background and hiring:

Captain Tom Dudley ... was short of stature with reddish hair and beard.  A self-made man of thirty, he had earned himself quite a reputation as a dependable and intrepid mariner; he brought distinction to his home port of Tollesbury in Essex, on the southeast coast of England at the mouth of the river Blackwater.  He was a religious man, ran a tight ship, and insisted that his crew remain dry.  His wife, Philippa, was a local schoolteacher, and Tom was always on the lookout for ways to improve his financial condition for the benefit of his wife and three children.  Although he did not relish being away from his family for such a long time, the trip to Australia offered substantial remuneration and a chance to check out possible business opportunities on that burgeoning continent.  He seemed an ideal choice as captain for Want and the Mignonette’s sixteen-thousand-mile, 120-day voyage.

[ Australian lawyer John Henry] Want engaged Dudley on a generous contract.  For £100 on signing up and a further £100 on delivery of the Mignonette to Sydney, Dudley was to hire and pay a crew, provide all provisions on the trip, and keep her in good repair.  It seemed a wonderful deal and one that would leave Dudley with a handsome profit. However, he had problems securing the crew he required.  The boat was considered light and small for such an arduous trip through some of the world’s most treacherous waters, especially around the Cape of Good Hope. After some initial failures, he recruited a three-man crew of Edwin “Ed” Stephens (as mate), Edmund “Ned” Brooks (as able seaman), and Richard “Dick” Parker (as cabin boy).

The sailing was delayed for a few weeks because the Mignonette was in far from shipshape condition.  Although many timbers were rotten and needed replacing, the parsimonious Dudley opted to make only minimal and makedo repairs.  After extended and agitated negotiations with the Board of Trade over acquiring the necessary documents to certify the ship’s seaworthiness, the Mignonette and her crew were finally cleared to leave (or, at least, not prevented from leaving).  Like most seamen, Dudley was of a superstitious temperament.  Although he was ready to sail on a Friday, he chose to wait until the following, less ill-starred Monday.  Consequently, the ship set sail for Australia from Southampton on May 19, 1884.

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

November 2, 2017

Sage words on prosecutorial discretion and the right to counsel from the Deputy Attorney General

Back when we were preparing for the Joe Shooter role play, I mentioned a speech by Deputy Attorney General Rod Rosenstein discussing prosecutorial discretion, but I failed to here provide a link to the text.  I am now finally remedying this failing by linking here to the speech and quoting this snippet from it:

The ideal prosecutor is dogged, but not an automaton who proceeds at all costs.  Nor is the ideal prosecutor a zealot who demands criminal punishment for every arguable violation of the law.

Robert Jackson, another of our nation’s great Attorneys General, observed: “If the Department of Justice were to make even a pretense of reaching every probable violation of federal law, ten times its present staff would be inadequate.”  Driving the point home, Jackson explained that “no local police force can strictly enforce the traffic laws, or it would arrest half the driving population on any given morning.”

With an ever-growing criminal code, those observations are more accurate today than when Jackson made them in 1940.  Jackson’s point was simple.  Violations of the law abound.  “What every prosecutor is practically required to do,” he said, “is to select the cases for prosecution and to select those in which the offense is the most flagrant, the public harm the greatest, and the proof the most certain.”  As Jackson recognized, the prosecutor necessarily chooses which cases to pursue.

The ability to choose which cases to prosecute is an extraordinary power.  Courts exercise the ultimate authority to rule on the strength of the evidence and the meaning of the law.  But the decision whether or not to prosecute, as the Supreme Court has ruled, is “ill-suited to judicial review.”  Such unreviewable power calls for the exercise of judgment, and the wise use of discretion.

When asked, “Why did you prosecute that case?” it will not do for the prosecutor to respond with, “Because I can,” or “Because I must.”  The only right answer is, “Because I should.”

Of course, our next role play does not engage the issues that surround prosecutorial decision-making and discretion, but rather defense representation.  Conveniently, just today, Deputy Attorney General Rod Rosenstein gave this new speech on the topic of the right to counsel. Here is an excerpt that might help inspire those soon to play the role of defending Thomas Dudley:

The right to counsel is enshrined in our Constitution for a reason. The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right to . . . have the assistance of counsel for his defense.”

Our Founders understood the necessity of protecting individual liberty from government overreach.  And no clearer overreach exists than the power to take someone’s liberty without due process of law.

Protecting the right to counsel is a fundamental component of preserving the rule of law and ensuring equal access to justice....

Defense attorneys work alongside their clients, at every stage of the proceedings, to advocate on their clients’ behalf. And through that advocacy, they play a critical role, a role that is essential to our concept of liberty and due process.

A defense attorney’s work is not just about the individual client represented in any given case.  Rather, the work is an integral part of our constitutional system.

The right to counsel is both substantive and procedural: a lawyer represents a client’s interests substantively, while simultaneously ensuring that the client’s procedural rights are protected.  A defense lawyer is the ultimate check on a prosecutor’s discretion, and a bulwark against the wrongful incarceration of innocent persons.

November 2, 2017 in Course materials and schedule, Reading about law and law school, Starting a career as a lawyer | Permalink | Comments (0)