Criminal Law @ Moritz College of Law

Debating Ohio's prosecutorial practices for pursuing drug-induced homicide (as involuntary manslaughter)

As we start October and our homicide unit with the Joe Shooter role play, I hope you all are getting a sense for how prosecutorial discretion plays a huge role in just how criminal charges are brought and pursued (and bargained).  Broad prosecutorial discretion has all sorts of pros and cons, but the exercise of such discretion can often be hard to assess because prosecutor offices rarely assemble and almost never disseminate thorough data concerning discretionary decisions.  

A few years ago, driven by media reports of ever more drug-induced homicide prosecutions being brought in Ohio, I worked with some fellow academics to request that the Ohio Criminal Sentencing Commission collect data on these matters.  The document we sent, styled an Open Letter to the Ohio Criminal Sentencing Commission, included these passages:

According to data collected from online news sources, Ohio pursues more drug-induced homicide charges than all but one other state in the country.  These data show Ohio counties of Cuyahoga, Franklin, Summit, Clermont and Hamilton now rank among the most active counties in the United States for prosecutors charging people with homicide charges for accidental overdose deaths, and it seems quite possible that prosecutors in rural Ohio counties may also be bringing these charges, but that these cases do not get reported in online news sources. Notably, in a news report last month, Franklin County Prosecutor Ron O’Brien stated that in recent years he has brought prosecutions of 29 cases of involuntary manslaughter in relation to accidental overdose deaths.

Though newspaper reports sometimes suggest that these cases are brought only against “drug dealers,” it is clear that often the people who are being prosecuted are individuals who struggle with substance use themselves, individuals who sold to support their own use, or individuals who were co-using with the deceased.  One news account of the cases in Franklin County indicates that sentences of imprisonment in these cases have ranged from two to 15 years, raising concerns that limited state resources are going to lengthy periods of unproductive incarceration, instead of being used for helpful and necessary drug treatment.  We have never seen any evidence to support the claim that charging and sentencing persons for manslaughter for accidental drug overdoses helps in any way to curb large scale trafficking or helps reduce drug use or overdose deaths....

Based on news reports, we are deeply concerned that prosecutors’ use of this dangerous policy has grown and is continuing to expand in Ohio.  We are concerned that prosecutors are doing so without any statewide discussions among prosecutors and courts about this use of Ohio homicide provisions and without systematic examination of its likely ineffectiveness in reducing drug use and overdose deaths, or its possible adverse impact on public safety and the community as a whole.  To end Ohio’s opioid crisis, we need humane data-driven solutions.  We ask that the Ohio Criminal Sentencing Commission begin a public examination of the use of homicide charges in accidental overdose cases throughout the state and their impact on public safety and the opioid crisis. We ask that the Commission use the information and data it collects to propose evidence-based recommendations that can guide stakeholders and protect the community against the harms of this policy.

This initial letter prompted a notable response from Louis Tobin, Executive Director of the Ohio Prosecuting Attorneys Association, styled Letter from Ohio Prosecuting Attorneys Association, which provided some interesting data on overdose deaths and involuntary manslaughter cases for five counties and included these passages:

What the authors really want is a one-size-fits-all law to limit prosecutorial and/or judicial discretion under the guise of "evidence based recommendations."  They would prohibit involuntary manslaughter charges and/ or limit sentencing authority regardless of the individual facts of the case.  They would prohibit a prosecutor from charging a drug trafficker with involuntary manslaughter when he mixed fentanyl with his heroin or meth in order to attract more buyers by offering them a better high.  They would prohibit a judge from sentencing such a person to prison.  They would advance such a policy in the name of public safety.  Despite another baseless assertion in the letter that prosecutors have pursued these charges without any statewide discussion. Ohio prosecutors have discussed this topic in detail, our Association has offered several trainings for our own membership, and our members have trained others nationally on the topic. Best practices already exist and are in use....

We have, as the authors admit, one of the highest overdose death rates in the nation.  Drug abuse and drug trafficking are extensive here.  Yet the letter is intended to give the impression that Ohio prosecutors are using involuntary manslaughter charges overzealously.... Ohio is hardly alone in its efforts to combat drug trafficking through the use of overdose death homicide charges. As the attached document shows, prosecutors use these charges selectively based on individual facts and circumstances.  Placing arbitrary limits on the use of this tool and the discretion of our elected officials is neither wise nor necessary.  It would be a step backward in the fight against drug trafficking and a detriment to public safety....

As criminal justice experts the authors of the letter know that the first two purposes of felony sentencing in Ohio are to protect the public from future crime by the offender and others and to punish the offender.  Their letter would have us ignore the first two purposes and focus solely on treatment and rehabilitation.  Their letter would have us pretend like there is not a deceased victim who no longer has the opportunity to seek treatment and rehabilitation due to the actions of another.  They would have us believe that the only "directly impacted" person is the person being prosecuted, and ignore the directly impacted family and friends of the deceased.  They would have us ignore the direct impact on the communities to which many F4/FS drug traffickers are returned after being placed on community control as a result of other recently enacted one-size-fits-all policies. While punishment and incarceration might be distasteful to academics, there is a victim who lost his or her life, most likely family and friends who lost a loved one, and a community that deserves to prevent the offender from causing more death.

In a final written submission put forward by academic group, styled Response to Ohio Prosecuting Attorneys Association Letter, finished with this point:

[T]he Tobin letter tellingly omitted two recent amendments to the “Purposes of felony sentencing” set forth in Ohio law. Through new laws passed in 2011 and 2018, the Ohio General Assembly made very clear that it does not want prosecutors and courts to focus only on deterrence and retributive punishment.  Now, Section 2929.11 of the Ohio Revised Code states:  "The overriding purposes of felony sentencing are to protect the public from future crime by the offender and others, to punish the offender, and to promote the effective rehabilitation of the offender using the minimum sanctions that the court determines accomplish those purposes without imposing an unnecessary burden on state or local government resources."

As I mentioned in class, the original request from the academics led to a debate within the Ohio Criminal Sentencing Commission about possibly collecting data concerning drug-induced homicide cases.  In a close vote, a motion to collect data on this topic failed in December 2019.  To my knowledge, no official effort to collect data on theses issues in Ohio has ever gone forward.

Four interesting examples of Ohio criminal cases in which causation was a debated issue

I noted in class that Ohio tends to adopt a more "common law" account and approach to causation doctrines than the MPC approach, but this is a distinction that does not really make much of a difference in all but the rarest of cases.  Still, to follow up a few referenced in class, I thought I should cite and note the facts of a couple of the rare Ohio criminal cases in which causation doctrines were discussed.  So, if you want to take a deep dive into some notable Ohio causation cases, consider checking out some of these sad cases (but feel NO obligation to do so):

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.

3. Ohio v Dixon, 2002 WL 191582 (6th Dist. App. 2002), involves these essential facts:

Defendant Christopher Dixon, appeals from his conviction and sentence for felony murder [resulting from] Dixon and his cousin Sherman Lightfoot [making] plans to rob the Jiffy Lube located at 3931 Salem Avenue in Dayton, Ohio. In preparation for the robbery, Dixon and Lightfoot obtained latex gloves and “Jason” masks, which were popularized in the movie, “Friday the 13th.”  At approximately 6:15 p.m., the two men drove a blue Camaro to the Jiffy Lube, parking it across the street.  Dixon was wearing an orange-colored hooded sweatshirt, while Lightfoot was wearing a white hooded sweatshirt.

Dixon and Lightfoot entered the Jiffy Lube and Dixon grabbed one of the employees, Gregory Anderson.  Lightfoot pointed a gun in Anderson's face, and the two robbers demanded to know where the money was located.  Anderson told them it was in the office. Dixon and Lightfoot then took Anderson to the office. Anderson told them that only the manager had the key to the drawer where the money was kept.  Lightfoot instructed Anderson to call for the manager.  Anderson complied and the store manager, Michael McDonald, came to the office.  At that point Lightfoot pointed the gun in McDonald's face.

McDonald began struggling with Lightfoot over the gun. During the struggle, the gun fired once.  When Lightfoot momentarily stumbled and fell backward during the struggle, McDonald gained control over the gun.  Lightfoot immediately regained his balance, and both he and Dixon ran out of the store. McDonald fired several shots in the direction of the fleeing suspects. Dixon ran back to the Camaro, got in and sped away.  Lightfoot fell to the ground in the parking lot as a result of a gunshot wound to the head.  Lightfoot subsequently died at Good Samaritan Hospital.

4. Ohio v Wilson, 182 Ohio App. 3d 171 (1st Dist. App. 2009), gets started this way:

Defendant-appellant Eric Wilson ... was charged with murder [and other counts based on activities] on September 1, 2006, [when] Wilson, a drug trafficker, was in his car driving around the area of East 59th Street and Francis Avenue selling drugs.  He stopped his car to meet with some buyers when James Yhonquea walked up, pulled out his gun, and put it against Wilson's head.  Yhonquea took Wilson's drugs, money, and cell phone and started to run down East 59th Street.  Wilson jumped out of his car and started to run after Yhonquea. Wilson began shooting at Yhonquea and fired off eight rounds, hitting a parked car and a house.  Yhonquea returned fire, hitting Wilson's car.

Asteve (“Cookie”) Thomas, a 12–year old girl who lived in the neighborhood, was walking home from the corner store with her friends when one of the bullets shot from Yhonquea's gun struck her in the chest.  She managed to walk to a neighbor's house, collapsed, and died approximately 30 minutes later.

A few SCOTUS cases highlighting a few distinctive causation issues under federal law

Especially because I have given some attention to the (still-growing) problem of drug overdose deaths and possible criminal responsibility therefore, I wanted to flag for you one relatively recent Supreme Court case dealing with causation issues in this context.  In addition, around the same time, SCOTUS also had to address another kind of causation issue in another high-profile and controversial context.  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 the kinds of causation issues that we are discussing this week.  Here are links to these two 2014 rulings, along with the start of the Court's opinion in each case:

Burrage v. United States, 571 U.S. 204 (2014):  "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, 572 U.S. 434 (2014): "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."

Test yourself on mens rea issues with the help of a question from my first exam (given 24 years ago)!

Below you will find the full text of one of the questions I asked students on the very first exam I gave the very first time I taught our class (way back in 1997):

Oliwood Criminal Code § 555.21. No person shall sell beer or any other intoxicating liquor to any person under 21 years of age.  Violators of this statute, upon a first offense, shall be fined not more than $1000, and/or be required to do not more than 50 hours of community service.

Joseph Merchant, who operates a liquor store near the local university, has a reputation for selling alcohol to underage persons.  Beau Younger, a large and mature looking 19-year-old student at Oliwood State, enters Merchant’s store seeking a bottle of rum.  Based on Younger’s appearance, Merchant believes that Younger is in his mid 20s.  But, knowing that the police are watching his every move, Merchant asks Younger for some identification.  Younger reacts by shouting, “Damn, I’m 25 years old, and I’m sick and tired of getting carded.  You just better give me the booze or else I may have to rough you and this joint up.”  Not wanting any trouble, Merchant sells Younger the rum.  The police find out Younger’s true age as he leaves the store, and they arrest Merchant for violating Oliwood Criminal Code § 555.21.

Joseph Merchant has retained you to defend him.  Prepare a brief memorandum discussing and assessing the issues you expect to raise in your defense of Mr. Merchant.

I do not plan to discuss this question in class, though I will be happy to do so if there is student interest in using class time to go over this question.

A federal version and variation on the Bray case

As we wrap up our mens rea unit with a discussion of "mistakes of law," we will seek to sort through what kinds of mistakes about law can and cannot enable a defendant to potentially avoid criminal liability.  One key case we will soon discuss is the Bray case from California.  Though Bray is an older case focused on state law decided by a state court, quite recently the U.S. Supreme Court considered a similar issue in Rehaif v. United States, 139 S. Ct. 2191 (2019).  Here is how Justice Breyer's opinion for the Court in Rehaif gets started:

A federal statute, 18 U.S.C. § 922(g), provides that “[i]t shall be unlawful” for certain individuals to possess firearms. The provision lists nine categories of individuals subject to the prohibition, including felons and aliens who are “illegally or unlawfully in the United States.” Ibid.  A separate provision, §924(a)(2), adds that anyone who “knowingly violates” the first provision shall be fined or imprisoned for up to 10 years. (Emphasis added.)

The question here concerns the scope of the word “knowingly.” Does it mean that the Government must prove that a defendant knew both that he engaged in the relevant conduct (that he possessed a firearm) and also that he fell within the relevant status (that he was a felon, an alien unlawfully in this country, or the like)?  We hold that the word “knowingly” applies both to the defendant’s conduct and to the defendant’s status.  To convict a defendant, the Government therefore must show that the defendant knew he possessed a firearm and also that he knew he had the relevant status when he possessed it.

Can folks see how this case is quite similar to Bray?

The "missing mental state" and a federal law that holds drug dealers strictly liable for any resulting deaths

Two follow-up materials from our recent class that may help us round out our discussion of Ryan and subsequent cases.

1. I mentioned in class the work of OSU Law's former Dean Alan Michaels on mental states titled "Acceptance: The Missing Mental State."  You can download the full 105-page(!) manuscript at this link, though I would recommend being content with this summary from the paper's abstract:

This article identifies a serious shortcoming in the traditional criminal law mental state hierarchy and proposes a new mental state -- called acceptance -- as a solution.  Acceptance exists where the actor acts recklessly and, in addition, would have acted even "had he known" that his conduct would "cause the harm."  The article establishes, through close analysis of the willful blindness and depraved-heart murder doctrines, that use of the mental state of acceptance is both practicable and necessary.

When liability lines are drawn at the level of knowledge, the criminal law has rarely been satisfied to restrict liability to actual knowledge, but instead has relied on ambiguously defined crimes (such as depraved-heart murder) or has stretched the definition of knowledge (for example, through the willful blindness doctrine) to push reckless conduct across the liability line to the knowledge side.  These "solutions" have failed.  When contemporary criminal law draws a significant liability line between knowledge and recklessness, doctrine governing cases near the margin is both particularly vague and distinctly lacking in consensus in comparison to most areas of the criminal law.

The article proposes that where the law requires knowledge, acceptance should be allowed to suffice. After justifying such an approach from both retributive and utilitarian perspectives, the article establishes, by examining the willful blindness and depraved-heart murder doctrines, that using acceptance would yield a better fit between criminal law and culpability concepts and would substantially diminish vagueness problems.

2. An important "hot" topic in the arena of prosecuting and sentencing drug offenders in recent years, especially with the opioid crisis and increases in overdose deaths, has been the growth in  what are know as "drug-induced homicide" (DIH) cases or "death resulting" cases.  This short 2018 article, "Prosecuting Drug Overdose Cases: A Paradigm Shift," provides an overview of the trend and highlights "the variety of approaches available within existing statutory schemes and case law" for state prosecutors who seek to treat a drug overdose as a criminal homicide.  There is some variety as to the mens rea a drug defendant must have for a resulting death to be charged under a variety of state DIH statutes, though the article notes that "New Hampshire and New Jersey both define the offense as being one of strict liability."

In federal law, there is a special statutory provision that addresses this issue, but technically a person is not charged under federal law with homicide for causing a drug overdose death.  Rather, the federal statute prohibiting drug distribution, 21 U.S.C. § 841(b)(1), has provisions requiring significant sentencing enhancements if and when a person distributes a "controlled substance" and then "death or serious bodily injury results from the use of such substance."   For one of many example of the application of this statute, consider United States v. Harden, 893 F.3d 434 (7th Cir. 2018).  This is a long opinion that you should not feel any obligation to read at all, but I find the facts notable and a passage from the case instructive for our discussion.  First, the basic facts:

A jury convicted defendant-appellant Donald S. Harden of conspiring to distribute heroin, the use of which resulted in the death of Fred Schnettler.  Harden was sentenced to life in prison under 21 U.S.C. § 841(b)(1)(B)....

At 9:39 AM on September 5, 2014, Fred Schnettler, a twenty-five-year-old male, was found dead in his bedroom at his parents' home in Neenah, Wisconsin.  When the sheriff’s deputy arrived on the scene, he found Schnettler’s father performing CPR and observed a needle and spoon on the floor just below Schnettler’s bed.  The deputy believed that Schnettler had been dead for quite some time because his body was cold to the touch and rigor mortis had set in.

Donald Harden was subsequently charged with distributing the heroin that resulted in Schnettler’s death.  At trial, the prosecution’s case focused on Schnettler’s purchase of 0.1 grams of heroin from Kyle Peterson the night before Schnettler was found dead.  Peterson testified that he purchased the heroin from Brandi Kniebes-Larsen, who in turn testified that she received the heroin from Harden.

And now the basic trial process as described on appeal:

Harden was charged with conspiracy to distribute controlled substances in violation of 21 U.S.C. § 841(a)(1).  The jury instructions included two special verdict questions: (1) "whether the United States has established, beyond a reasonable doubt, that Frederick J. Schnettler died as a result of the use of a controlled substance, to wit: heroin, distributed by the defendant"; and (2) "whether the conspiracy involved 100 grams or more of a mixture and substance containing heroin."

With respect to the first special verdict question, the jury instructions said: "The United States does not have the burden of establishing that the defendant intended that death resulted from the distribution or the use of the controlled substance.  Nor does the United States have the burden of establishing that the defendant knew, or should have known, that death would result from the distribution of the controlled substance by the defendant."

Senator Besafer: "How much roadway carnage will we accept?"

Senator Jo Besafer heard from her staffer that he did a very poor job encouraging members of the legislature to consider her PROPOSED ORC Section 2999.99: Criminal Damaging While Driving in the Rain.  But she continues to wonder how much roadway carnage society will accept after seeing this new report headlined "COVID-19 Road Death Surge Continues":

The empty roads of the quarantine era may be a thing of the past, but the roadway death surge of the COVID era isn’t done with America yet.

According to shocking new estimates from the National Highway Traffic Safety Administration, traffic fatalities jumped 10.5 percent in the first quarter of 2021 compared to the same period in 2020 — a tragedy that represents the avoidable loss of 8,730 human lives in just three months.  The rate of fatal crashes also increased 12.5 percent to 1.26 deaths per million vehicle miles travelled, up from 1.12 deaths per million VMT in the months before the pandemic upended American life....

Whatever the explanation, advocates say that NHTSA’s new stats should motivate transportation leaders to act quickly to stop anymore bloodshed — especially with a transportation safety currently under debate in Washington.  “The surge in motor vehicle crash fatalities must serve as an urgent call to action for Congress and the Biden Administration,” said Cathy Chase, president of the Advocates for Highway and Auto Safety.  “Requirements and performance standards for proven vehicle safety technology could be saving tens of thousands of lives each year.  The needless deaths on our roads must — and can — be stopped.”

Imagining a provision to criminalize "Damaging while driving in rain"

To start our exploration of mens rea issues, and also to facilitate a focused conversation concerning a timely legislative proposal seeking to reduce roadway harms, here is some background information about dangerous realities on our roads and highways. First from the Federal Highway Administration (with emphasis added):

On average, nearly 5,000 people are killed and over 418,000 people are injured in weather-related crashes each year. The vast majority of most weather-related crashes happen on wet pavement and during rainfall: 70% on wet pavement and 46% during rainfall. A much smaller percentage of weather-related crashes occur during winter conditions.

And from the car press, under the headline "Why Driving In The Rain Is Way More Dangerous Than You Think" (with emphasis added):

[A] new study has shown that even light rain can significantly raise the chances of a fatal car crash. Published in the Bulletin of the American Meteorological Society..., the study asserts that rain, snow, and ice increases the risk of fatal car crashes by a massive 34 percent. Led by Scott Stevens, a data analyst and meteorologist at the North Carolina Institute for Climate Studies, he and his colleagues reviewed 125,012 deadly crashes in the Lower 48 states between 2006 and 2011, factoring in the number of cars on the road to calculate the risk of a fatal accident.

It turns out that even light rain, which Stevens refers to as a "a drizzle, just at the point where you might consider taking an umbrella out," raises the risk of a fatal crash by 27 percent.  While people tend to become cautious in heavy rain, Stevens believes that "they under-appreciate the risk of light rain," with the weather radar data showing an increase in fatal crashes even in rain of less than one-tenth of an inch per hour.  Moderate rain brings the risk of a deadly accident up to 75 percent greater than in clear weather, while in heavy rain the rate skyrockets to two-and-a-half times more likely.

Based on a concern for the many thousands economically and/or physically harmed by crashes from persons driving in the rain without being aware of the risks (and/or not being sufficiently cautious while driving), Senator Jo Besafer has drafted this bill:

PROPOSED ORC Section 2999.99: Criminal Damaging While Driving in the Rain

(A) No person shall cause physical harm to another person or damage the property of another 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 causes any physical harm to any person or causes property damage in excess of $10,000, this offense is a misdemeanor of the first degree.  If a violation causes serious physical harm to any person or causes property damage in excess of $50,000, this offense is a felony of the third degree.

We will discuss the potential pros and cons of this bill in class this coming week.  Everyone should feel free to use the comments to express any comments or concerns now; proposed amendments to this bill are welcome as well.

A real-life example of immoral photographer (not having duty to aid)

Ben Hooks reported to me after class on Friday that there is a recent real-life example of an immoral photographer — kind of like the photo-journalist in my baby-drowning-at-pool hypo — who was subject to a creative prosecution in Australia.  This press story, headlined "Richard Pusey: Australian jailed for filming dying officers," provides these details:

An Australian man has received a 10-month jail sentence for filming and mocking police officers as they lay dying at a crash scene.  Last month Richard Pusey pleaded guilty to the rare charge of outraging public decency, as well as other offences.

The 42-year-old has already been in custody for nearly 300 days, so he will probably complete his sentence within days. The sentencing judge called his actions "heartless, cruel and disgraceful".

Still, families of the victims were disappointed with the length of the sentence in a case that has stirred huge public anger.  Last month, Judge Trevor Wraight said the media had demonised Pusey to the point where he was "probably the most hated man in Australia".

The mortgage broker had been speeding in his car on a Melbourne freeway last year when he was pulled over by four officers. While they were making his arrest, all four were struck by a lorry that had veered out of its lane.

Senior Constables Lynette Taylor and Kevin King, and Constables Glen Humphris and Josh Prestney died at the scene. Pusey had been standing a few metres away and avoided the crash, but afterwards pulled out his phone and began filming numerous videos, some of which ran for more than three minutes.  The court had heard that Pusey stood over and taunted Senior Constable Taylor as she remained pinned under the lorry. Experts said she was most likely still alive at the time....

He fled the scene on Melbourne's Eastern Freeway shortly after.  The next day he was arrested at his home and initially charged with speeding, drug possession and reckless conduct offences.  However, police then also discovered Pusey's video and that he had shared it among friends.

The lorry driver, Mohinder Singh, was jailed earlier this month to 22 years for the deaths.  A court found that the truck driver had been high on drugs, suffering delusions and hallucinations, and driving erratically when he ploughed his truck into the officers.

Judge Wraight condemned Pusey's behaviour while noting he was only being sentenced for his actions.  Pusey hadn't caused the deaths of the officers, contrary to some public opinion, the judge said.  "Your conduct in recording the police officers in their dying moments, together with the words you used as you recorded, was not only derogatory and horrible... but it was also callous and reprehensible conduct," Judge Wraight said.

He noted that Pusey had a history of mental health problems, including a complex personality disorder "which may go some way to explaining your behaviour". But he said it did not excuse his actions....

Families and supporters of the police officers criticised the sentence after it was handed down in Victoria's County Court. Stuart Schulze, the husband of Constable Taylor, said he felt "almost unbearable" pain every time he remembered how his wife was treated in her final moments.  "This sentence is totally inappropriate of this offending," Mr Schulze told reporters outside court.  He argued it was the court's duty to "set the appropriate standard" in penalising such behaviour.

The offence of outraging public decency has rarely been prosecuted in Australia, and the charge carries no set penalty. The head of Victoria state's police union also criticised the sentence. "Four upstanding heroes died on that day and… one soulless coward lived," Wayne Gatt said.

For anyone so interested, here is a link to the sentencing opinion in DPP v. Pusey.  Relatedly, law professor Jonathan Turley discusses this case in this blog post and highlights that, in the United States, Richard Pusey could not have been prosecuted for failing to aid the officers (though it is not clear he was prosecuted for this in Australia, either).

Many, many thanks to Ben for bringing this case to my attention!

Electronic copy of first ORC handout ... an another example of legal scholarship

As promised, I am providing here (and will also put on Carmen) an electronic copy of the edited provisions of the Ohio Revised Code that I today handed out in class:

Download 2021 Ohio liability-MR statutes.wpd

In addition, as part of my eagerness to document that law professors have a lot to say on every possible topic, I thought I might usefully showcase a relatively criminalizing bad thought alone, is explored in a recent law review article on a topic we reviewed today:

• "Why Is It Wrong To Punish Thought?"

Please know you are NOT required or expected or even encouraged to read any of the law review materials linked here or at any of my other blogs.  Rather, as I have discussed in class, I am  ever eager to showcase how much is available to research, read and consider on all the topics we will encounter in our review of the basics of substantive criminal law.  Let your interests and energy determine whether to check out any of these materials.