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October 31, 2018

Class may not start today (10/31) until 1:20pm or a little later

As mentioned in class, at lunchtime today in Saxbe, I am part of a panel discussing Issue 1. I just realized that we might not wrap up the panel discussion in time for me to start class at the usual time. So, with apologies for the late notice, feel free to migrate to class a little later than usual and do not expect us to get started until around 1:20pm today.

If so inclined, use the extra time to check out the amazing discussion in the comments that have emerged in the wake of our legislation role-play. Kudos to all for the continued respectful engagement.

October 31, 2018 in Course materials and schedule | Permalink | Comments (0)

October 24, 2018

Fall 2018 proposals for an Aggravated Rape statute in the great state of Oliwood

I am now receiving draft statute in preparation for our legislative exercise on Friday, and I will update this post as they come in.


This first one comes from a drafting team that calls itself Lucretia's Voice:

Download AR Statute - Lucretia's Voice


This next-received proposed legislation comes from a team adopting the deft name of Drafting Committee #1:

Download Rape Legislation_


The third (and I think final) proposed legislation comes from a team now called Willful and Wanton Bipartisan Ship: 

Download Aggravated Rape Statute


Procedural plans:  Absent an alternative suggestion from other members of the Oliwood Senate, I plan to allow the drafting groups to have 5 to 10 minutes each to present their drafts, followed immediately by (only a few) questions from the floor on that particular proposal.  After all the presentation, we will take a straw poll to decide which particular proposal(s) to discuss further for a possible vote to enact.  Oliwood President Opra Winfree has told the media that she is prepared to sign into law whatever bill the Oliwood legislature puts on her desk.

October 24, 2018 in Course materials and schedule | Permalink | Comments (16)

October 22, 2018

Some help(?) for Oliwood code drafting from Ohio

The people of the great state of Oliwood are excited to know that a new "Aggravated Rape" statute may be enacted in the coming days, and some are wondering if nearby Ohio's Rape statute might serve as a template in some way.  Here is (most of) that provision as currently written:

Ohio Revised Code Section 2907.02 Rape:

(A)(1) No person shall engage in sexual conduct with another who is not the spouse of the offender or who is the spouse of the offender but is living separate and apart from the offender, when any of the following applies:

(a) For the purpose of preventing resistance, the offender 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.

(b) The other person is less than thirteen years of age, whether or not the offender knows the age of the other person.

(c) The other person's ability to resist or consent is substantially impaired because of a mental or physical condition or because of advanced age, and 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 or because of advanced age.

(2) No person shall engage in sexual conduct with another when the offender purposely compels the other person to submit by force or threat of force.

(B) Whoever violates this section is guilty of rape, a felony of the first degree.  If the offender under division (A)(1)(a) of this section substantially impairs the other person's judgment or control by administering any controlled substance described in section 3719.41 of the Revised Code to the other person surreptitiously or by force, threat of force, or deception, the prison term imposed upon the offender shall be one of the prison terms prescribed for a felony of the first degree in section 2929.14 of the Revised Code that is not less than five years.  Except as otherwise provided in this division, notwithstanding sections 2929.11 to 2929.14 of the Revised Code, an offender under division (A)(1)(b) of this section shall be sentenced to a prison term or term of life imprisonment pursuant to section 2971.03 of the Revised Code....

If an offender under division (A)(1)(b) of this section previously has been convicted of or pleaded guilty to violating division (A)(1)(b) of this section or to violating an existing or former law of this state, another state, or the United States that is substantially similar to division (A)(1)(b) of this section, if the offender during or immediately after the commission of the offense caused serious physical harm to the victim, or if the victim under division (A)(1)(b) of this section is less than ten years of age, in lieu of sentencing the offender to a prison term or term of life imprisonment pursuant to section 2971.03 of the Revised Code, the court may impose upon the offender a term of life without parole....

(C) A victim need not prove physical resistance to the offender in prosecutions under this section.

(D) Evidence of specific instances of the victim's sexual activity, opinion evidence of the victim's sexual activity, and reputation evidence of the victim's sexual activity shall not be admitted under this section unless it involves evidence of the origin of semen, pregnancy, or disease, or the victim's past sexual activity with the offender, and only to the extent that the court finds that the evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value.  Evidence of specific instances of the defendant's sexual activity, opinion evidence of the defendant's sexual activity, and reputation evidence of the defendant's sexual activity shall not be admitted under this section unless it involves evidence of the origin of semen, pregnancy, or disease, the defendant's past sexual activity with the victim, or is admissible against the defendant under section 2945.59 of the Revised Code, and only to the extent that the court finds that the evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value.

(E) Prior to taking testimony or receiving evidence of any sexual activity of the victim or the defendant in a proceeding under this section, the court shall resolve the admissibility of the proposed evidence in a hearing in chambers, which shall be held at or before preliminary hearing and not less than three days before trial, or for good cause shown during the trial....

(G) It is not a defense to a charge under division (A)(2) of this section that the offender and the victim were married or were cohabiting at the time of the commission of the offense.

Other major Ohio sex offense provisions are:

ORC 2907.03 Sexual battery.

ORC 2907.04 Unlawful sexual conduct with minor.

ORC 2907.05 Gross sexual imposition.

ORC 2907.06 Sexual imposition.

ORC 2907.07 Importuning.

ORC 2907.08 Voyeurism.

October 22, 2018 in Course materials and schedule | Permalink | Comments (0)

October 18, 2018

California's notable recent retrenchment of its felony murder rules

Our final subject in the homicide unit will lead us to review the (in)famous doctrine of felony murder.  As is always the case, you will only eventually be expected to know about the MPC and Ohio approaches to this doctrine.  But you should be intrigued to learn that California, less than a month ago, significant amended its felony murder provisions.  Some details of the change are explained officially here and in this way:

Existing [California] law defines first degree murder, in part, as all murder that is committed in the perpetration of, or attempt to perpetrate, specified felonies, including arson, rape, carjacking, robbery, burglary, mayhem, and kidnapping. Existing law, as enacted by Proposition 7, approved by the voters at the November 7, 1978, statewide general election, prescribes a penalty for that crime of death, imprisonment in the state prison for life without the possibility of parole, or imprisonment in the state prison for a term of 25 years to life. Existing law defines 2nd degree murder as all murder that is not in the first degree and imposes a penalty of imprisonment in the state prison for a term of 15 years to life.

This bill would prohibit a participant in the perpetration or attempted perpetration of one of the specified first degree murder felonies in which a death occurs from being liable for murder, unless the person was the actual killer or the person was not the actual killer but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer, or the person was a major participant in the underlying felony and acted with reckless indifference to human life, unless the victim was a peace officer who was killed in the course of performing his or her duties where the defendant knew or should reasonably have known the victim was a peace officer engaged in the performance of his or her duties.

This recent local article about this legislative change highlights, in part, the impact of its retroactive provisions under the headline "Change in California law will set convicted killers free - because they didn't actually kill anyone." Here are excerpts:

Defense lawyers say the reform is long overdue and more fairly fits the punishment to the crime. Prosecutors worry that criminals won’t be held accountable when their actions cause a death. “California’s felony murder law was one of the harshest in the country,” said longtime criminal defense attorney Eugene Iredale.“This is a major step in making sure criminal justice is consistent with moral propriety. Punishment should be consistent with culpability, on the basis of crimes you actually commit, not of accident.”

The felony murder rule comes from centuries-old British common law. It says, in essence, if you took part in a felony and someone died, you could be convicted of murder. It didn’t matter whether you were the one who killed the person, or if you had no intention of harming anyone.

In California, a killing that is intentional and premeditated is first-degree murder, with a sentence ranging from 25 years to life in prison up to the death penalty in certain cases. But the state’s version of the felony murder rule sidesteps the question of intent to define other homicides as first-degree murder if they occurred during the commission of specific felony crimes including arson, rape, carjacking, robbery, burglary, mayhem, and kidnapping.

That rule underwent a major overhaul on Sept. 30, when Gov. Jerry Brown signed Senate Bill 1437, called “Accomplice liability for felony murder.” It goes into effect Jan. 1. Under the revision, only people who aided or were a “major participant” in a killing, or showed reckless disregard for human life, can be charged with felony murder. For instance, a robbery getaway driver, unaware that his accomplice just killed someone, might be charged only for having a role in the robbery.... The law goes further, with a retroactive aspect that allows inmates convicted under the current felony murder rule or the natural and probable consequences doctrine to petition the trial court to have their convictions vacated. “That, to me, is one of the biggest concerns,” said Chief Deputy District Attorney David Greenberg. “Our ability to hold people accountable for murder will be compromised.”

If a felony murder conviction is vacated, inmates could be re-sentenced for whatever felony they were committing when the killing happened. But they may well have already served the amount of time they would get for the lesser crime. If so, they would be released from prison. Greenberg said county prosecutors may have secured as many as 300 felony murder convictions going back to the 1980s and 1990s. Not all would result in petitions for release from prison — many of the convicts have already been been paroled, or could be deceased.

Greenberg prosecuted the trio convicted of murder in the killing of acting student John Lentz in Balboa Park in 1994. A 17-year-old girl shot Lentz several times from a pickup driven by a man who was looking for someone to rob. Ray Waldrop, in the backseat, was convicted of felony murder because he was in on the robbery plan. A jury found specifically that Waldrop was not a major participant in the killing. Because of that finding, he can ask the court next year to vacate his felony murder conviction. “I don’t have an argument about him being a major participant,” Greenberg said. “There is nothing for me to argue, nothing to fight.”

If Waldrop is re-sentenced on the remaining robbery charge, he could get a five-year term at most. He’s already served 23 years, so he would be eligible for release, Greenberg said....

The bill was co-authored across the political aisle by senators Nancy Skinner, D-Berkeley, and Joel Anderson, R-Alpine. Anderson, known as a political conservative, emailed a statement to The San Diego Union-Tribune, saying: “Victims don’t want vengeance, they want justice. It’s unjust to charge people with murder who had nothing to do with the actual murder.”...

Defense lawyer Robert Grimes said the felony murder rule was never fair. “Now, these matters will be evaluated on a case-by-case factual analysis by juries and judges,” Grimes said. “You get these impulsive young guys locked up for life because a robbery went bad and they didn’t really foresee someone would get killed,” he said. “In California, there has been a reassessment of the utility of certain mandatory (sentencing laws) and fairness. We are giving trial judges back discretion.”

UPDATE: Here is another notable new press piece about California notable new felony murder law headlined "Nearly a Decade Awaiting Trial, Now Freed: Neko Wilson to be released in the first test of California’s felony murder law." Here is how the piece gets started:

In the first test of a newly signed law that significantly narrows California’s felony murder rule, a judge [on Thursday] ordered the immediate release of a man who has spent nearly a decade awaiting trial in double murder. Neko Wilson, now 36, had initially faced the death penalty in connection with the July 2009 murders of Gary and Sandra DeBartolo, a couple killed during a robbery at their home in California’s Central Valley.

Prosecutors had accused Wilson of helping plan the robbery, not of killing the couple. He initially faced the death penalty under a legal doctrine known as the felony murder rule, which holds that anyone involved in certain types of serious felonies that result in death can be held as liable as the actual killer. But a new law signed by Gov. Jerry Brown in September significantly narrowed that doctrine and prompted prosecutors to drop the murder charges against Wilson.

“It’s overwhelming,” said Jacque Wilson, who is Neko Wilson’s brother and his lawyer, as he stood outside the courtroom immediately after hearing Judge John F. Vogt’s decision. “You go from being someone the state wanted to kill, to someone who’s coming home.” In court, Neko Wilson agreed to a plea deal on robbery charges, as well as charges in unrelated cases. The total sentence for those charges added up to nine years, the amount of time he’s already been jailed awaiting trial.

The prosecutor, William Lacy, senior deputy district attorney in Fresno, said the new law had left prosecutors little choice. “It’s a new world we live in,” Lacy said. “It certainly means that people who were charged with murder previously won’t be charged.”

October 18, 2018 in Current Affairs | Permalink | Comments (3)

October 15, 2018

Plans as we finish up homicide, debate new Oliwood rape legislation, and then head into defenses

Just a quick note to remind everyone that we should be wrapping up the homicide unit over our next few classes.  We can and will cover reckless murder pretty quickly on Wednesday (with Mayes our focal point), though I expect we might need a bit more than a class to discuss and debate felony murder.  In other words, I doubt we will finish homicide on Friday, but we will definitely complete the unit by next Monday.  (So, for your reading, at least try to start the felony murder materials by Wednesday, and have it wrapped by Friday.)

We should be able to start our (too brief) rape law discussion on Monday, and we will examine the evolution of the "modernization" of rape doctrine throughout next week.  I am planning to have our legislative debate over a new proposed aggravated rape law for Oliwood on Friday, October 26.  As of this writing, I already have four(!) groups of students volunteering to be drafting committees for this exercise.  I am grateful for all those eager to participate, and I will discuss the particulars of the exercise in class in the coming days.

By the last week of October, we should be ready to start our unit on "true defenses," starting with self-defense.

October 15, 2018 in Course materials and schedule | Permalink | Comments (0)

October 10, 2018

Sad tales (and criminal charges) involving dangerous business practices then and now

If you are interested in more of the sad particulars on the events that led to the Welansky case, here is a link to a 20-minute documentary with a partial recreation of the events at Coconut Grove.

Meanwhile, this news out of New York, headlined "Operator of limo in fatal upstate N.Y. crash charged with criminally negligent homicide," provides a high-profile example of one persistent lesson of the Welansky case: dangerous business decisions resulting in a pile of bodies will often lead to criminal charges. From the start of the article:

The operator of the limousine company whose vehicle was involved in the fatal crash that killed 20 people Saturday in upstate New York has been arrested and charged with criminally negligent homicide, state police told NBC News.

Nauman Hussain, the operator of Prestige Limousine, was taken into custody after a traffic stop on Wednesday, New York State Police said. He was charged with a single count of criminally negligent homicide, but the charge lists all 20 victims, police said.

October 10, 2018 in Notable real cases | Permalink | Comments (1)

October 9, 2018

Simpsons hypo (aka RIP Rod and Todd Flanders) for considering unintended homicides

HqdefaultI mentioned in class the the Simpson's hypo for consideration before our next class(es) discussing unintended homicide charges.  Here it is, with helpful links to the Simpson's wiki:

Mr. Burns, that rich old codger, is having a problem with birds on his country estate.  Bart Simpson built a tree house on the property when he was ward of Mr. Burns, and Bart recently left open a huge vat or Marge’s home-made peanut butter.  (Bart had to take it to the tree house to keep Homer from eating all of it himself.)  Smelling the peanut butter, birds from all over Springfield have invaded Burns’ property.

Burns tells his willing servant Waylon Smithers to get one of his antique flare guns and start firing shots into the tree around the tree house to scare birds away.  Burns warns Smithers to check whether anyone is in the area; Burns knows kids still like to use the tree house, even though he had put up a sign stating that kids playing in the tree house would be prosecuted for trespassing.

Eager to do Burns' bidding and shoo the birds away quickly, Smithers only calls out "Hello, can anyone hear me?" to see if anyone is in the tree house.  Smithers does not personally check to make sure no kids are in the house.  After calling out a few times, he gets no response (though the woods are noisy).  Smithers decides that he has done enough given than he does not plan to shoot at the tree house.  He then takes aim at branches nearby the tree house and starts firing.

Sadly, it turns out that Rod Flanders and Todd Flanders, devout children of The Simpson’s devout neighbor, were in the tree house praying because they thought being off the ground brought them closer to their lord.  (The Flanders thought praying, rather than playing, in the tree house was fine, and they heard Smithers call out, but though it was their lord speaking to them.)  Tragically, the antique flare-gun fired off line and  into the treehouse. 

The flare shot by Smithers struck Rod directly in the chest.  Todd discovers his older brother Rod has been killed instantly, and distraught, he jumps out the treehouse window to his death.

Smithers turns himself in, and now you are the prosecutor trying to decide whether he might be guilty of a form of homicide in Washington (at the time of Williams); in Massachusetts (at the time of Welansky), in Oliwood under the MPC; and in Ohio now.

October 9, 2018 in Course materials and schedule | Permalink | Comments (1)

October 8, 2018

Ohio's approach to provocation in its version of Berry case, Ohio v. Shane, 63 Ohio St. 3d 630 (1992)

As mentioned in class, Ohio has its own case somewhat similar to the Berry case from California in our casebook.  This case, Ohio v. Shane, 63 Ohio St. 3d 630 (1992), is worth a full read and it starts and ends this way:

The issue certified for our review is the proper allocation of the burden of proof when a judge gives an instruction on voluntary manslaughter in a murder prosecution. However, for the reasons which follow, we do not reach the certified issue, but affirm the judgment of the court of appeals on different grounds.

The trial judge instructed the jury on voluntary manslaughter prior to its deliberations. Because we determine that the evidence of provocation presented by Shane was insufficient, as a matter of law, to warrant an instruction on voluntary manslaughter, we find that the trial judge should have refused to give the jury an instruction on that offense.  The fact that the trial judge did give the instruction was harmless error....

When reasonably sufficient evidence of provocation has not been presented, no jury instruction on voluntary manslaughter should be given.  In this case, the provocation that allegedly caused Shane to act under the influence of sudden passion or in a sudden fit of rage was not reasonably sufficient, as a matter of law, to incite him to use deadly force.  We find that no reasonable jury could have found Shane not guilty of murder, but guilty of voluntary manslaughter.  Accordingly, the judgment of the court of appeals upholding defendant's murder conviction is affirmed.

October 8, 2018 in Notable real cases | Permalink | Comments (0)

October 7, 2018

High-profile, second-degree murder verdict in Illinois (which is actually comparable to voluntary manslaughter in Ohio)

At the risk of creating confusion by highlighting quirks in how Illinois approaches degrees of homicide, I thought it notable how a Chicago jury on Friday chose to convict police officer Jason Van Dyke of second-degree murder, rather than first-degree murder, in the 2014 shooting of 17-year-old Laquan McDonald (basics here from my main blog).  Notably, the prosecution was seeking a first-degree murder conviction, but the jury potentially used provocation-like doctrines (and/or what is sometimes know as "imperfect self-defense") to convict Van Dyke of a lesser charge, though in Illinois this lesser charge is called second-degree murder rather than manslaughter.

(Notably, the Illinois second-degree murder provocation language asks if "at the time of the killing he or she is acting under a sudden and intense passion resulting from serious provocation by the individual killed." This seems pretty similar to the Ohio voluntary manslaughter provocation language about an offender being "under the influence of sudden passion or in a sudden fit of rage, either of which is brought on by serious provocation occasioned by the victim that is reasonably sufficient to incite the person into using deadly forced.")

If you are at all troubled by the provocation doctrines used at common law (and still in the MPC and ORC) to call some killings manslaughter rather than murder, might you find these doctrines less worrisome if we adopted the Illinois approach of still calling partially mitigated killings another form of "murder"?  As you consider this issue, think about whether it is the label that matters most or the sentencing consequences that goes with the label. 

October 7, 2018 in Current Affairs, Notable real cases | Permalink | Comments (2)

October 2, 2018

"Meet a convicted felon who became a Georgetown law professor"

Images (15)The title of this post is the title of this 60 Minutes segment that started this way:

Jailhouse lawyers are prisoners who manage to learn enough about the law while incarcerated to help themselves and other inmates with legal problems.  We get letters from them every week.  Tonight we are going to reintroduce you to Shon Hopwood, who is arguably the most successful jailhouse lawyer ever, having had one of his cases argued before the U.S. Supreme court while serving a 12-year sentence for armed bank robbery. Since his release he's built up an extraordinary resume as a legal scholar, and has been published in top law journals.  We first met him last fall at one of the nation's premier law schools where he's become its newest professor. A tale of redemption as improbable as any you're likely to hear.

Excitingly, Shon Hopwood will be at Moritz for the next Issue 1 panel at noon in 352 Drinko. In addition, Shon and I will be hanging out in room 455 from about 10:30am until noon for anyone who would like a chance to talk with him about his experiences or his work for criminal justice reform.

A companion piece on the 60 Minutes story available here is titled "Kroft: Prison lawyer is "one of the best characters" in decades of reporting." And this Washington Post piece on Shon is headlined "He robbed banks and went to prison. His time there put him on track for a new job: Georgetown law professor." Here is how it starts:

During a break in a basketball game to raise money for charity, Shon Hopwood told some of his Georgetown law students it felt different than the last time he was on a court: When he played basketball in federal prison, he had to carry a shank in case his team started to lose. His students laughed. He ran back onto the law-school court — and sank the winning shot.

Hopwood’s new job as a tenure-track faculty member at the Georgetown University Law Center is only the latest improbable twist in a remarkable life: In the last 20 years, he has robbed banks in small towns in Nebraska, spent 11 years in federal prison, written a legal petition for a fellow inmate so incisive that the U.S. Supreme Court agreed to hear the case, done that again, earned undergraduate and law degrees and extremely competitive clerkships, written a book, married his hometown crush and started a family.

But this could be his most compelling role yet. His time in prison gave him an unusual perspective on the law that allows him to see things other lawyers overlook, and a searing understanding of the impact of sentencing and the dramatic growth in incarceration in the United States.

“It’s one of the big social-justice issues of our time,” he said. The United States has 5 percent of the world’s population but 25 percent of its prisoners. “Between prison, jail, home confinement, probation, parole, combined it’s about 10 million people. It’s a big number.” And almost three-quarters of released prisoners are back in custody five years later. He hopes to change some of that.

October 2, 2018 in Notable real cases | Permalink | Comments (0)

October 1, 2018

Any questions or reactions to Joe Shooter role-play? ... UPDATED WITH RESULTS

In addition to thanking again our terrific state homicide lawyers (and apologizing again for limited time), I wanted to provide a space for any 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 questions about matters of procedure and practice that I would be happy to field here or elsewhere.

As a preview to the start of our discussions next week, I urge everyone to think about (and perhaps comment upon) the ideal number of different types of homicide. You should notice that the drafters of the Model Penal Code decided there should only be three different types of homicide, but relatively few US jurisdictions 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 and implications of one general criminal harm being subdivided into so many different offenses?

UPDATE on 10/2I now had the chance to tabulate the results of the submitted evaluation forms.  The full votes/results appear in the document linked below, and a plurality voted for a different result in California (voluntary manslaughter), Kansas (involuntary manslaughter) and Ohio (Murder).  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.

Download 2018-shooter-results

October 1, 2018 in Course materials and schedule | Permalink | Comments (3)