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November 30, 2018

A few more (not-so-old) exams for your review

As promised, here are a few more of my old exams, and these are ones that are not so old.  As always, let me know if you have any difficulties accessing any of these materials:

Download Berman 2014 Crim Law Final

UPDATE:  I think I may have mistakenly posted only an incomplete draft version of the 2017 exam.  Here is the full exam:

Download Berman 2017 Final Exam full

And, if you are gluttons for punishment, here now also is my 2016 final:

Download 2016 Crim Law final

November 30, 2018 in Course materials and schedule, Preparing for the final | Permalink | Comments (0)

November 26, 2018

Attempt actus reus hypo for consideration and reflection

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 man to get you thinking about where a line should be drawn between "mere preparation" and attempt liability:

Joe McAngry of Columbus sincerely believes libertarian ideas and those who embrace such a political philosophy are the root of much evil in the world, and he often tells his friends that the whole world would be better off without any academics, policy advocate and politicians who advocate libertarian views.   After hearing someone on Fox News say that the United States would be a better place if more politicians would embrace the libertarian philosophy espoused , Cesar took the following steps:

1.  E-mails friend saying he wished all libertarians would just get sick and die because they were barred from government-supported hospitals

2.  Posts twitter comment that he would love to see someone like Cesar Sayoc go after libertarian politicians and pundits

3.  Places stickers on van saying "FOX NEWS SUCKS" and with target symbols next to images of Gary Johnson, Ron Paul and John Stossel

4.  Does internet research on prominent figures in the US who espouse libertarian views 

5.  Writes a "hit list" of Top 5 libertarians, with Gary Johnson, Ron Paul, Rand Paul, John Stossel and Peter Theil 

6.  Does internet research on where those on his "hit list" live

7.  Does internet research on homemade bombs and explosives

8.  Rents Ryder truck for driving to Texas town where Ron Paul Institute is located

9.  Drives rented truck to suburbs outside of Houston, Texas, checks into hotel, sleeps

10.  Drives in morning to Clive and drives around the grounds of The Ron Paul Institute for Peace and Prosperity

11.  Parks near Paul Institute, walks around asking employees when Paul is there

12.  Returns to hotel room in near Houston, does more internet research on bomb-making, sleeps

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

14.  Drives again to Clive, Texas now with bomb ingredients in truck

15.  Parks in strategic location near Paul Institute

16.  Starts building homemade bomb inside rental truck

17.  Waits, watches for Paul to arrive at work

18.  Drives past security guard following Paul's car as he arrives for work

19.  Parks truck right next to Paul's car as he pulls into spot

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

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

22.  Pushes trigger and....



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 or Ohio law?



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 26, 2018 in Course materials and schedule | Permalink | Comments (2)

November 18, 2018

Rounding up old exams already on the blog, with more to come

I have mentioned that one can find a number of my old exams already posted in the archives of this blog.  But, to make everyone's life a bit easier, I have rounded up a bunch (but not all) of these old exams here.  Let me know if you have difficulty downloading what appears below (and in coming posts I will upload some newer exams)

Download Berman 2013 Crim Law final

Download 2010 Crim Law final

Download Final 2003 Crim Law exam

Download 2001 Final Exam

Download 1998 Final Exam

Download 97 Final Exam

November 18, 2018 in Preparing for the final | Permalink | Comments (0)

November 13, 2018

Interesting news on self-defense reform in Ohio during lame duck time

This local story, headlined "Ohio House set to approve stand-your-ground gun bill," caught my eye for obvious reasons. Here are excerpts:

The Ohio House on Wednesday is expected to approve a controversial stand-your-ground bill that eliminates a “duty to retreat” when facing a threat before utilizing deadly force.

Supporters say House Bill 228, which also includes a number of other firearm-related provisions, would put Ohio law in line with about half of other states by shifting the burden of proof in self-defense cases from the defendant to the prosecution.

House Speaker Ryan Smith, R-Bidwell, said last spring, prior to the legislature’s summer/election break, that the House had a veto-proof majority to pass the bill. However, a vote was delayed until after the election, though a veto from Gov. John Kasich remains a strong possibility. Kasich has been upset GOP lawmakers have refused to act on gun-violence reduction proposals he made, including a “red flag” provision to allow a judge to order the removal of guns from people deemed a danger.

The bill is opposed by the Fraternal Order of Police of Ohio and the Ohio Prosecuting Attorneys Association, plus other gun-control proponents.  Critics say it would give those involved in a conflict less incentive to try to de-escalate or escape before resorting to lethal force.

Prosecutors have argued that current law allows those who are truly being threatened with serious harm to use a weapon in self-defense, and it’s reasonable to require a defendant to prove self-defense by a preponderance of evidence — a lesser standard than “beyond reasonable doubt.”

But supporters, including Doug Deeken, director of Ohioans for Concealed Carry, say removing the “duty to retreat” is positive, common-sense reform.  “What a ‘duty to retreat’ functionally does is force law-abiding citizens into making tactically poor choices when confronted with a violent, criminal aggressor,” Deeken told a House committee.  “While retreating may sometimes, even often, be part of the proper course of action it is not always so.”...

If passed, the bill goes to the Senate.  Lawmakers are in session through mid-December.

As if too often the case with poor reporting on legal issues, I am not sure everything in this report is factually accurate.  But I am sure there is continued momentum for continued changes to the functionality of Ohio's law of self-defense.

November 13, 2018 in Current Affairs | Permalink | Comments (0)

November 12, 2018

Ohio perspective on Dudley & Stephens and (in)famous perspective on defense lawyering

I hope everyone enjoyed as much as I did Friday's role play experience, and I also hope it gave everyone a primer on the operation of necessity (and duress) doctrines in Oliwood under the (unique) terms and structure used by the Model Penal Code.  We will be wrapping up discussion of these doctrine in our remaining classes before the Thanksgiving break, but we will not be talking any more about Dudley & Stephens.  Fortunately, if folks remain engaged by the legal and/or philosophical issues raised by the Dudley & Stephens case, there are lots of wonderful additional readings I can recommend.

A "classic" law professor engagement with the issues raised in Dudley & Stephens appeared in a Harvard Law Review article published 65 years ago.  The Case of the Speluncean Explorers by Lon Fuller is one of the most famous law review articles ever written, and the start of this Wikipedia article highlights why it is worth your time and attention:

It largely takes the form of five separate judicial opinions attributed to judges sitting on the fictitious Supreme Court of Newgarth in the year 4300.  The hypothetical involves five cave explorers who are caved in following a landslide.  They learn via intermittent radio contact that they are likely to starve to death by the time they can be rescued. The cavers subsequently decide to kill and eat one of their number in order to survive.  After the four survivors are rescued, they are indicted for the murder of the fifth member.  The prescribed penalty is capital punishment. Fuller's article proceeds to examine the case from the perspectives of five different legal principles, with widely varying conclusions as to whether or not the spelunkers should be found guilty and thereby face the death penalty under the law of Newgarth.  

Joyfully, for a wonderful, shorter and more recent consideration of these issues, one member of my criminal law class five years ago had the great initiative to imagine how a modern-day case of this nature might get resolved in Ohio. That student allowed me to post her analysis five years ago and I believe she will be fine with my reporting again.  Here is how she sets up the factual context:

Let's imagine a scenario in which four avid hikers, all associated with Ohio’s State Parks, decide to go for a winter hike at Serpent Mound, located in idyllic Adams County, Ohio. The group consists of Hatlen Books, a veteran tour guide, Dursley Dudley and Richard Stephens, members of the Ohio State Parks administration, and Peter Parker, a trainee guide, though noted as a talented climber.  The hike was predicted to be an easy one and take no more than a few hours to complete; it was more-so an excursion to view the aforementioned idyllic landscape.  The hikers deviated from the path because of an intense and unpredicted snowstorm that caught the band off-guard and limited their ability to navigate.  The band happened upon a previously unknown sinkhole that had formed sometime after the last ranger appraisal of the land (which has been some-time ago with state budget cuts).  The group was stranded on a rocky, but stable, covered corner of the hole with only snow for hydration and a 2lb bag of vegan trail mix Stephens brought on the trip.  Despite the group’s reluctance to eat vegan, they subsisted off the mix and an unlucky rabbit for 18 days.

Download Prosecuting Dudley & Stephens in Ohio


Moving from the substance to the style of criminal defense work, it is time for another movie afternoon on Friday, Nov 14.  Specifically, I plan to show a documentary about a famous (or infamous) criminal defense attorney, the 86-minute long documentary William Kuntsler: Disturbing the UniverseI figure we can start the movie at 3pm, to be followed by a happy hour if there is student interest.

November 12, 2018 in Course materials and schedule | Permalink | Comments (0)

November 9, 2018

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

I mentioned briefly in Wednesday's 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 9, 2018 in Class reflections | Permalink | Comments (0)

Providing link to practice exam and outline of key issues and exam tips

I realized today that I have been remiss in not elevating to the top of the blog the practice exam offered in class a few weeks ago.  For those who have not yet done the practice exam (or want to relive the experience), I am making it available here on-line (and continue to encourage folks to use it as for an exam-taking simulation):

Download practice_exam.rtf

I am now also posting general feedback in the form of an outline of key issues on the exam and basic law school test-taking tips:

Download key_issues_on_practice_exam.rtf

Download exam_tips_memo.rtf

November 9, 2018 in Preparing for the final | Permalink | Comments (0)

November 7, 2018

"Is Eating People Wrong?"

6a00d8341c8ccf53ef01bb09d3c651970d-320wiFor those interesting in learning more about Thomas Dudley and his travails, check 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 7, 2018 in Course materials and schedule | Permalink | Comments (0)

November 3, 2018

Some links to some materials concerning Ohio self-defense referenced in class

With apologies for not posting some of these materials sooner, here are links to a couple of sources I have referenced at some point in the last week as we have been reviewing self-defense doctrines:

From the Buckeye Firearms Association, "The Problems of Ohio’s Current Laws on Burden Shifting in Self-Defense Cases," which starts this way:

Under Ohio Revised Code Section 2901.05, a defendant is required to prove all elements of self-defense by a preponderance of the evidence. Recent case law and the development of the status of self-defense strongly suggest that shifting the burden to a defendant in this manner is unconstitutional.  Ohio’s burden shifting rule effectively changes the standard of proof necessary for the government to secure a conviction in self-defense cases.  Furthermore, Ohio’s current rule severely curtails, if not eliminates, the protections provided by the Fifth Amendment.  Ohio Senate Bill No. 180 and House Bill No. 228 provide the necessary changes to ensure those accused of a crime in Ohio receive a fair and just trial.  Where there is evidence presented that tends to show a defendant acted in self-defense, these Bills would place the burden back on the prosecution, where it rightly belongs, by requiring the prosecution to disprove at least one element of Ohio’s version of self-defense, beyond a reasonable doubt.

From the folks at Serial, Episode 5 of Season 3, "Pleas, Baby, Pleas." I highly recommend all episodes of Season 3 of series, but here is part of the transcript from the middle of this particular episode that concerns matters we have been discussing:

Sarah Koenig: The meeting with detectives this morning is to figure out how they're going to handle it — what charges [the local Ohio prosecutor Brian Ratigan] should present to the grand jury. This is a tricky one, though. Because Brian can see how the whole thing unspooled, now he's not sure a crime even occurred.

The stories in the newspaper had quoted police as saying that the older guy, the shooter, had been harassing passengers on the bus. But the bus videos show the opposite — the older guy, the shooter, he was the one being provoked.  It's possible this was self-defense.

Brian Radigan: This is one of those rare cases where you see the whole story.  Ninety percent of our cases, we're not watching them unfold.  And if something is caught on camera or whatever, usually it's from a distance.  And you don't hear the dialogue.  And you don't get to see everybody's reaction. You don't have seven different angles, or nine different angles of it.  You know, this is like the outlier, crazy, I can't believe I have to watch this whole thing and see all the decisions that were made that led to this guy dying.

This cleveland.com article about this Serial episode includes some of the video footage of the shooting that may, or may not, be a good example of self defense.

As always, I welcome and encourage commentary on these materials as well as links or reference to other interesting matters relating to the doctrines we are discussing.

November 3, 2018 in Class reflections, Course materials and schedule, Notable real cases | Permalink | Comments (1)