Criminal Law @ Moritz College of Law

Timely hypo for wrapping up attempt / complicity / conspiracy discussions

To facilitate discussion of various doctrines related to attempt (particularly the act requirement), I have in past years put up posts with a sequence of actions by a young man seemingly interested in committing an act of domestic terrorism.  Examples are here (planning to bomb MIcrosoft's headquarters) and here (planning to bomb the 2014 Boston Marathon) and here (planning to bomb Apple's headquarters) and here (planning to bomb the Ron Paul Institute).

Based on recent events, and in an effort to bring in some complicity and conspiracy concepts, I have revised the hypo and sequence of events to now involve a few people.  So here goes:

Peter Pour and Paul Pour, bothers who both work as Uber drivers and often tweet about the injustice of income inequality, have told many friends and family that they viewed the recent rash of smash-and-grab thefts of luxury stores to be a kind of justified economic reparations.  In an email to their parents prior to the Thanksgiving weekend, Mary and Michael, Peter said he and Paul were hoping to get the courage to "do some justice at the Oliwood Easton Tiffany store."  Michael wrote back "Be safe"; Mary said "I would like my justice in the form of a bracelet.  And remember your ski masks and maybe other useful supplies are in our garage."  Thereafter:

1.  Both Peter and Paul e-mailed friends asking for persons to join their new "Smash-And-Grab Justice League" via google form

2.  Paul researched online various recent "smash and grab" events and created spreadsheet about number of persons involved 

3.  Peter researched online operating times for the Oliwood Easton Tiffany store in December 2021

4.  Paul traveled to his parents house, picking up ski masks and gloves and large bags

5.  Peter traveled to Home Depot and purchased a dozen large hammers and large bags

6.  Paul and Peter traveled together by car to the Oliwood Easton Tiffany store on the day after Thanksgiving

7.  Peter and Paul take turns entering and walking around the Oliwood Easton Tiffany store; Peter took notes in a notebook when inside, Paul took pictures all around the store with his phone

8.  Two days after Thanksgiving, Peter emails everyone who filled out the google form to explain they were looking at the early morning of December 4 as "justice day" 

9.  Paul, the next day, emails the group saying there would be a meeting on December 3 for all serious "justice warriors" at their apartment 

10. During week after Thanksgiving, Peter and Paul send daily reminders of the meeting planned for the evening of December 3 

11. On December 3, Andrew, James, John, Philip, Bartholomew and Matthew all meet with Peter and Paul at their apartment 

12. At 5:10am on December 4, Paul and Peter in their separate cars each head out from their apartment and pick up three of their friends

13. Around 5:30am on December 4, Paul and Peter in their separate cars each head to Oliwood Easton

14. Around 5:50am on December 4, Paul and Peter in their separate cars each park near Oliwood Easton Tiffany store

15. Around 6:15am, Paul and Peter and their friends emerge from the cars all wearing masks and gloves and carrying hammers and bags

16. Paul and Peter (but not their friends) start running directly toward the Oliwood Easton Tiffany store with hammers raised....

 

LIABILITY QUESTIONS

When do you think, under common law tests or the MPC, the brothers (or others) are guilty of attempted theft/burglary?

When do you think the brothers (or others) are involved in a formal conspiracy to commit theft/burglary?

Do you think the parents of the brothers (or others) are accomplices in an attempted theft/burglary?

 

POLICING QUESTIONS

When do you want police to intervene?

When do you think the police legally can intervene?

When do you think the police likely will intervene?

Insane movie recommendations for relaxing and reloading through the holiday weekend

We have now too quickly reviewed insanity doctrine, which often seems to get more attention in courtroom movies rather than in actual courtrooms.  A couple movies I recommend as good cinema (but not necessarily as good law) that incorporate insanity claims are Anatomy of a Murder (1959) and Primal Fear (1996).  In addition, Nuts (1986) is an interesting movie addressing competency to stand trial.

Partially to provide a reminder that you should be doing a lot more than just studying over the long holiday weekend, I though it might be fun to also use this post as a forum for movie recommendations.  I urge every student to see at least two movies while on break (streaming counts), ideally without multi-tasking on another screen.  (I need to follow this advice, too.)

Of course, you may not want to relax watching law movies, but for anyone interested in some of my favorites in this genre:

• 12 Angry Men (1957)
• The Fortune Cookie (1966)
• A Few Good Men (1992)
• My Cousin Vinny (1992)
• A Time to Kill (1996)
• The Devil's Advocate (1997)
• Michael Clayton (2007)
• Just Mercy (2019)

I have intentionally left out law school movies, though The Paper Chase (1973) and Legally Blonde (2001) are the classics here.  And I cannot help re-watching Rounders (1998), but more for the stars and the poker, not the law school parts.

Though I know I have failed to consistently keep the comments open because this blog technology is balky, I am going to try to make sure the comments here stay open so everyone can share movie recommendations (law or otherwise).

"The Dire Consequences of Pleading Not Guilty by Reason of Insanity in Colorado"

The title of this post is the headline of this interesting recent (and long) article about the realities of how the defense of insanity plays out in the Mile High state.  I recommend the full article, and here are excerpts:

Americans are familiar with — and often fascinated by — cases in which alleged perpetrators have pleaded not guilty by reason of insanity (NGRI).  People such as John Hinckley Jr., who attempted to assassinate President Ronald Reagan; Lorena Bobbitt, who cut off her husband’s penis after she says he sexually assaulted her; and the Aurora theater shooter, who unsuccessfully asserted insanity, have generated media frenzies.  They’ve also caused the public to question the fairness and necessity of laws that say not everyone is equally culpable for criminal acts.

For more than two centuries, state legislatures across the United States have generally supported the idea that individuals with certain degrees of mental illness cannot be held criminally responsible for their actions and should be directed toward medical support, not incarceration. Although people are constitutionally entitled to be found competent to stand trial, the U.S. Supreme Court upheld in March 2020 the notion that there is no constitutional right to an insanity defense.  Four states — Kansas, Utah, Idaho, and Montana — have done away with the NGRI defense entirely.  Today, about one percent of all felony cases in the nation contain an insanity plea; of those, only around a quarter are successful.

Colorado continues to allow individuals to plead NGRI based on a very strict legal definition..... Local attorneys and legal experts explain that the defense should only be considered in the most serious situations, because of the attendant repercussions: In the Centennial State, NGRI acquittees are automatically committed to the state psychiatric hospital for treatment.  Unlike convicted criminals, who are sentenced for a set period of time, those who are deemed insane remain at the Colorado Mental Health Institute at Pueblo (CMHIP) until doctors and the courts agree they are stable and safe enough to reintegrate into the community.  Under Colorado law, their sentences aren’t supposed to be influenced by the specifics of their alleged crimes, as they are in some other states.  The amount of time to be served is the same for everyone: one day to life....

Research by Michael Perlin, professor emeritus at New York Law School and founding director of the International Mental Disability Law Reform Project, shows NGRI acquittees across the country generally remain confined in state hospitals longer than they would have been imprisoned had they pleaded guilty and entered the traditional carceral system. “The less serious the crime, the greater the disparity is,” he says.

Data acquired from the Colorado Judicial Branch show that, since 2010, less than 40 percent of all NGRI court filings in the state involved at least one murder or attempted murder charge.  Nearly a quarter of the cases in which insanity was presented included only class 5 felonies or below.  (Most felonies are labeled from class 1 — the most serious crimes, punishable by life in prison — down to class 6.)  According to hospital data received via a CORA request, as of late August, 31 percent of NGRI patients at CMHIP had a maximum offense level of felony classes 4 to 6.  “You need to supervise these folks, but there’s no reason to keep them in as long as they would have been in prison had they been convicted,” says Chris Slobogin, a professor of law at Vanderbilt University who helped update the mental health standards for the American Bar Association in 2016.  “Most of the time, they could be let out a lot earlier, and they should be.”...

There are far more people — roughly 10 times as many — with serious mental illnesses being held in jails and prisons than in state hospitals, according to the Treatment Advocacy Center, a national nonprofit that works to reduce barriers to mental health care.  But mentally ill or not, when prisoners’ penal sentences end, they are released into the community. Neither the courts, nor the jails, nor the departments of corrections first assess the potential impact on public safety or their likelihood to commit other crimes.

That’s not the case with those declared insane by the courts in Colorado.  To be released from CMHIP, NGRI acquittees like Ownby and Hoffschneider must be found to have “no abnormal mental condition which would be likely to cause him or her to be dangerous either to himself or herself or to others or to the community in the reasonably foreseeable future.”  It’s all about probability, Slobogin, the law professor, says: “What if there’s a 50 percent chance this guy will do something?  Does that give us grounds for keeping the person in or not?  Some people would say one percent is too high.  If that were true, we would have to keep everybody who’s in prison, in prison forever.”

Around 50 percent of people released from prison recidivate.  National recidivism rates for NGRI acquittees are not tracked, but limited research suggests they’re lower than those of incarcerated individuals.  “People who are found not guilty by reason of insanity face a larger uphill battle [to get released] than people who are not, even if their dangerousness or risk for violence is far lower than a person who might have committed the same offense and been put in prison,” says Neil Gowensmith, director of the Denver Forensic Institute for Research, Service and Training at the University of Denver.  “It’s a totally different standard, and one that may be, at times, not just stigmatizing, but flat-out discriminatory.”

An Ohio variation on the Crawford case with a similar result

A few months ago, an Ohio court resolved an appeal in a criminal case with a set of facts and a duress claim that relatively similar to the Crawford case in our text; the appeals court reached a similar result as in Crawford based on the common law's emphasis on the need for a threat being "imminent" for a duress claim to succeed.  The full opinion in State v. Womack, 2021-Ohio-1309 (Ohio App. 5th Dist. April 14, 2021), covers various issues, but the discussion of duress from paragraphs 46 to 56 is a pretty good account of Ohio law and it concludes this way:

Upon our review of the record, we agree with the trial court's conclusion that the evidence did not support Womack's contention that the affirmative defense of duress was applicable to the facts of the case.  We do not dispute that Womack subjectively believed he and his family were being threatened with imminent death or serious bodily injury. We note that the Sixth District Court of Appeals has recognized that duress may be found when the threat is made against the defendant's family.  State v. Cowan, 6th Dist. Wood No. WD-14-026, 2015-Ohio-2101, 2015 WL 3488289, ¶ 28; State v. Luff, 85 Ohio App.3d 785, 804, 621 N.E.2d 493 (6th Dist.1993) (stating that jury instruction on duress should have been given where defendant testified that someone threatened to destroy his family).  Our research indicates, however, that only the Sixth District Court of Appeals has extended the definition of duress to include the threat of imminent death or serious bodily injury to a defendant's family.  However, the force of harm threatened must be in the present; fear of future harm cannot be the basis for the threat of duress.  There was no evidence presented that Shot was a present threat to Womack's family, there was only a possible threat of future harm.

Womack's argument for application of the defense of duress fails because Womack had the ability to safely withdraw from the harm before committing the offenses of aggravated burglary and kidnapping.  He could have withdrawn or escaped after he arrived at M.B.'s home.  According to Womack's testimony, Shot and JT were on the side of the house while Womack was alone on the front porch.  Shot and JT were out of his view from the front porch.  There was no evidence that Shot was pointing his gun at Womack while Womack was on the front porch.  M.B. testified that Womack entered her house alone and closed the front door.  In the home with only he and M.B. present, Womack could have asked M.B. for help or left the home through another door.  While on the front porch, Womack testified he tried to leave but he was pushed into the home by Shot and JT.  After Shot and JT entered the home, Womack testified he did in fact leave the home without expressing a fear of harm or even with the knowledge that any money was found, which would have released him from his debt to Shot.

The defense of duress is strictly and extremely limited in application.  Upon the facts of this case, we find the trial court did not abuse its discretion by not giving the jury instruction for duress.  We overrule Womack's third Assignment of Error.

More on Paul Butler's proposal for race-based jury nullification

I mentioned briefly in Monday'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 here, part 2 here, part 3 here...) with Butler and other guests.

How a variation of Dudley & Stephens might be resolved in Ohio under common law necessity

If anyone remains 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 the Wikipedia entry highlights why it is so engaging:

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.

For a wonderful, shorter and more recent consideration of these issues, one member of my criminal law class eight years ago had the great initiative to imagine how a modern-day case of this nature might get resolved in Ohio under its common-law defenses scheme.  That student allowed me to post her analysis, and 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 & Stevens in Ohio

Might Thomas Dudley ask his potential lawyers "Is Eating People Wrong?"

I hope everyone is excited for Friday's role play experience which is intended to focus on necessity and duress doctrines in Oliwood under the (unique) terms and structure for these defenses used by the Model Penal Code. The lawyers (and the rest of the class) can prepare adequately by just reviewing the MPC doctrine and the facts of the Dudley & Stephens case.   But anyone deeply interesting in learning a lot more about Thomas Dudley and his travails should 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.

Another reminder that some of my silly hypos can be all too real for some

Earlier this year, as noted in this post, I was alerted to a recent real-life example of an immoral photographer — kind of like the photo-journalist in my baby-drowning-at-pool hypo.  And today, another class member found this recent news report that sounds more than a bit like my Flintstones' hypothetical.  The report is headlined "Police say man shot dead in east El Paso after assaulting ex-girlfriend is justifiable killing," and here are the details in two parts:

ORIGINAL REPORT, Nov. 5: EL PASO, Texas -- A 23-year-old man was shot dead Friday evening by a homeowner on El Paso's eastside in a dispute involving a woman, police said.

The fatal shooting happened at a home in the 11800 block of Vere Leasure, a neighborhood located near Saul Kleinfeld and Pebble Hills Boulevard. Crimes Against Persons detectives were summoned to the scene around 7:30 p.m.

The woman involved in the dispute is the homeowner's current girlfriend and is the ex-girlfriend of the deceased, according to investigators.

The homeowner told police that he pulled out a gun and shot the man after coming home and finding him assaulting the girlfriend; she didn't have any serious injuries.

A police spokesman said the pair, who are each in their 20s, were cooperating with authorities; both claimed the deadly shooting was a case of self defense. Investigators were trying to determine if that was the case or whether murder charges may be warranted.

UPDATE, Nov. 8: Investigators on Monday said they were ruling last week's shooting death of a man by a homeowner on El Paso's east side as a case of justifiable homicide.

Police identified the man killed as Aram Sida, 23, of Horizon City, and said he was shot to death by 20-year-old Hunter Joseph at his home in the 11800 block of Vere Leasure on Friday evening. The shooting happened after Sida allegedly assaulted his ex-girlfriend.

In a report on the shooting released Monday, police wrote that the "investigation revealed Sida forced his way into the residence. Once inside the residence, Sida began assaulting the female victim. The homeowner told Sida to leave the residence and armed himself with a rifle. Sida charged toward the homeowner with a knife. The homeowner then discharged his rifle and shot Sida killing Sida at the scene."

Among other matters of note, this report highlights how certain legal defenses can be assessed and resolved even before any criminal charges are filed.

A few of many notable self-defense headlines and stories

As I mentioned in class, a quick news search on the internet turns up lots and lots and lots of stories about self defense claims by a variety of folks in a variety of settings.  Here is a recent sample (with no expectation that anyone checks out more than a few of these news accounts):

From Florida, "Prosecutors offer probation to Valrico man in deadly ‘Stand Your Ground’ shooting on basketball court"

From Georgia, "‘A fraught jury selection’: Impartial minds tough to find in Arbery case"

From Indiana, "Murder suspect testifies she killed Domino's Pizza deliveryman in self defense"

From Pennsylvania, "Pa. Mom Pleads Self-Defense to Charges That She Stabbed a Man in the Heart After Argument Over Food"

From Texas, "Texas homeowner mounts 'stand your ground' defense after killing Muslim man who pulled into his driveway"

From Vermont, "Self-defense or violent rage? Judge agrees to release murder suspect."

From Washington, "Murder suspect in McDonald’s parking lot shooting tells jurors it was self defense"

From Wisconsin, "Kyle Rittenhouse trial: When can you shoot as self-defense?"

From the not-so-friendly skies, "SoCal Man Charged In Assault on Flight Attendant Claims Brain Injury, Self-Defense"

The last of these articles provides an interesting variation on the legal and conceptual issues that we will discuss in the battered woman cases, namely how should the "objective reasonable person" standard used in assessing self defense claims incorporate the unique "subjective" features of an individual which might make that person more likely to feel threatened or fearful.  Here are the basics of this high-profile airline case along with the notable "subjective" details of the defendant:

The story of the October 27 assault on American Airlines Flight 976 made national news and it comes after a year of thousands of similar stories in which flight attendants have been made the victims of unruly passengers — most often stemming from pandemic-related mask mandates.  In the case of 20-year-old Brian Hsu, however, the conflict appears to have arose when a flight attendant asked Hsu to return to his seat because the fasten-seatbelt sign was on.

The flight was bound from New York's JFK Airport to John Wayne Airport in Orange County, and according to the injured flight attendant and passengers who witnessed the incident, Hsu was standing near an airplane lavatory when the flight attendant told him to step away and return to his seat.  As the New York Times reports via court filings, prosecutors say that Hsu then "punched her in the face with sufficient force to cause her to hit the lavatory door."

The flight attendant then reportedly exclaimed that her nose was broken, and another flight attendant instructed Hsu to return to his seat, where he was restrained with duct tape and zip ties with the help of passengers.  The plane then made an emergency landing, and Hsu was detained by authorities there before he was returned to Irvine and arrested at his family's home there....

Hsu has submitted his own account of the incident to the FBI, and his mother has provided corroborating statements about his condition.  Hsu has allegedly suffered from a traumatic head injury he received last year — something for which he says he was being treated in Rhode Island.  He reportedly underwent brain surgery in Rhode Island, which involved "reconstructing portions of his skull," and he's reportedly suffered "psychological damage."

According to a statement, Hsu was assaulted while in New York in 2020, which led to the brain injury.  Hsu also claimed that a recent "football injury" rendered him unable to make a fist.  Hsu apparently is a college student in New York City.

As the East Bay Times reports via the court filings, Hsu's mother told investigators that Hsu "seems to become more easily angered" lately after the injury, and she claimed that he had trouble sitting still and "frequently felt the need to stretch."  Also she claimed that her son had been "afraid of people touching his head."

Part of Hsu's account is that the flight attendant "became agitated" after he bumped into her and that she was wildly waving her arms near his head when he struck her in self-defense.  He further said he feared that "an impact to his head in its current state could cause him severe injury or death."

Notable real-world account of efforts to reform sexual offense laws in Pennsylvania

Especially in the wake of our wonderful legislative drafting role-play, I found this new Philadelphia Inquirer article quite interesting.  The piece's full headline highlights its coverage: "Bill Cosby is out of prison. But a juror who convicted him wants to help define consent in Pa.: Cheryl Carmel learned during jury deliberations that Pennsylvania has no legal definition of consent. Now she is seeking to change that."  I recommend the lengthy piece in full, and here are excerpts:

When Cheryl Carmel was summoned to the Montgomery County Courthouse as a potential juror for Bill Cosby’s 2018 trial, she worried about taking time off from her busy job in cybersecurity.  But her professional experience came into use in an unexpected way weeks later, as she and other jurors decided whether Cosby was guilty of drugging and sexually assaulting Andrea Constand.

Hours into deliberations, the jury asked for the legal definition of consent. There is no formal definition in Pennsylvania law, Judge Steven T. O’Neill told them, instructing the jury to “decide what that means to them.” Carmel, the jury’s foreperson, said she then shared with her fellow jurors the definition she had memorized from a new European data privacy law.  It describes consent as “freely given, specific, informed and unambiguous,” and “a clear affirmative action.”

They went on to convict Cosby.  Three years later, the Pennsylvania Supreme Court overturned the conviction — based not on the facts of the case but a non-prosecution deal made by a prior district attorney — and freed Cosby.  But Carmel, 62, of Pottstown, is still involved in pushing for a formal definition of consent in state law in Pennsylvania and elsewhere.  ”If we have so much work on defining consent on how a business can use our email address and we don’t have a definition on how consent affects a crime, then that seems like something we should be able to fix,” she said.

That issue is complex, however, and doesn’t yet have support from some key legal and advocacy groups in Pennsylvania.  Some worry that it could backfire because a specific definition may not fit every situation.

Consent is central to sexual assault cases, and has drawn increased attention as a result of the #MeToo movement, a social reckoning with sexual misconduct. Jurors also asked the judge for a definition of consent before convicting film producer Harvey Weinstein in New York last year. And although the #MeToo movement has played a role in shaping public understanding of consent in sexual assault cases, many states, including both Pennsylvania and New Jersey, still lack legal definitions of the word.

Joyce Short, founder and CEO of the Consent Awareness Network, advocates for states to pass laws clearly defining consent, which she said is “freely given, knowledgeable and informed agreement” — similar terminology to Carmel’s data privacy definition. Short said she’s focused on helping jurors understand that consent is more complicated than a simple yes or no. Victims who are forced or threatened, for example, aren’t consenting to sexual contact, she said. Victims are also unable to consent if they are unconscious or under the influence of alcohol or drugs, which is accounted for in Pennsylvania law. The Cosby jury ultimately found that Constand was unable to consent to sexual contact with Cosby because she was drugged.

Short has teamed up with accusers of Weinstein and Cosby — including Constand. After the Cosby trial, she reached out to Carmel. “I have a different perspective from the victims,” Carmel said.  Carmel and Short met with lawmakers in Harrisburg in 2019, but legislation has not yet been introduced.  Carmel is retiring this year and hopes to dedicate more time to lobbying for that change.  Legislation introduced in New York earlier this year would insert Short’s definition of consent into state law.  No bill has yet been introduced to make a similar change in Pennsylvania. 

Sen. Katie Muth (D., Montgomery) said she had planned to introduce a bill in 2019 but put the effort on hold after hearing concerns, including that the Republican-controlled legislature could make unfavorable changes to the definition. “You don’t want anything bad to come of it, sort of unintended consequences,” she said.  Muth said there now appears to be more support for the bill, after Cosby’s release from prison thrust the issue back into the spotlight. She said she hopes to draft a new version of the bill before the end of the year.

Donna Greco, policy director for the Pennsylvania Coalition Against Rape, said her group doesn’t have a stance on legislation that would define consent. She said there is concern that a definition of consent could unintentionally hurt victims of sex assault by placing more emphasis on their behavior — which is already probed by defense lawyers and jurors. And it’s a myth that all victims act in the same way, she said.  “Finding the exact words that are going to fit every situation will be difficult,” Greco said.  “There is worry that victims’ behaviors will be even more scrutinized.”

Meanwhile, in the same state just a few weeks ago, the Governor introduced reform bills that made this headline: "Wolf targets ‘corrosive’ sexual violence at colleges, universities with package of bills."  Here is how this article begins:

Gov. Tom Wolf is spearheading a package of legislation aimed at combatting sexual violence on college campuses.  The four bills would, among other things, require clearer policies about sexual consent and information on counseling and protective services for victimized students.  Middle and high schools would also have to provide anti-sexual violence education.  “We cannot accept a culture in our colleges or in our commonwealth that allows sexual violence to continue,” Wolf said Monday.

Wolf first signed off on rules changing how higher education institutions handle sexual assault in 2019. Pennsylvania college students can now anonymously report sexual assault and other violence — and they can’t be punished if they were drinking or using drugs at the time. Since 2016, his administration has offered schools millions of dollars in grants to enact plans to address the problem.

Data shows a broad swath of higher ed students have dealt with sexual violence. At Penn State’s University Park campus alone, nearly a fourth of its 40 thousand-strong student body said in 2018 they experienced some kind of sexual assault while studying there.

Mirroring laws already on the books in states like California and Illinois, the governor and Democratic lawmakers want to make affirmative consent policies standard practice at Pennsylvania colleges and universities. Under that kind of policy, both parties have to agree to a sexual encounter rather than one person being required to say “no” to that experience.