Criminal Law @ Moritz College of Law

Background on infamous Menendez case and links to less famous recent cases

I briefly mentioned in class the Menendez case, involving an infamous double murder followed by questionable claims of self-defense, which led to a high-profile televised trial in the early 1990s.  Realizing that many of you were born long after that case captured the headlines, I figured I would provide a few links to the juicy story:

Short version of story from History.com: "The Menendez brothers murder their parents"

Long version of story from Biography.com: "Why the Menendez Brothers Killed Their Parents – a Look Inside Their Murder Case"

Of course, one need not go back three decades to find interesting real-world defensive force cases.  A quick Google search turned up these notable stories from around the country from just the past few weeks:

From California, "‘I hate myself for what I did’: Teen accused of killing mom claims self-defense"

From Colorado, "Semi driver who admitted to fatally shooting woman in Aurora from truck cab claims self-defense and is charged with murder"

From Florida, "He saw a rival on a motor bike and opened fire. Miami jury acquitted him of murder."

From Minnesota, "Man charged in deadly Minneapolis mass shooting takes stand; argues self-defense"

From Missouri, "Here’s why ‘stand your ground’ law protected woman who shot KC firefighter from charges"

From New York, "Lawyer claims 73-year-old killer was acting in self defense when he shot brother at mom’s Queens home"

Draft "Aggravated Rape Statute" for consideration before scheduled (in-class) hearing

I am please to report having just received a completed "Draft Aggravated Rape Statute" from the drafting group of Olivia, Ryan, and Greyson.  The proposal runs three pages, and can be downloaded here:

Download 2022 Completed Draft Aggravated Rape Statute from OGR

Draft "OSU Sexual Misconduct Policy" for consideration before scheduled (in-class) hearing

I have received the first detailed proposal for class consideration of an OSU Sexual Misconduct policy from Luke, Ian, Michael and Nick Wead.  The proposal runs four pages, and can be downloaded here:

Download 2022 OSU Sexual Misconduct Policy from LIMN

 

UPDATE:  This blogging software seems to finally be operational again, as so I can now post here the second piece of draft legislation sent my way.  This "draft Campus Sexual Misconduct Policy" has been provided by the drafting committee of Isabella, Lili, Marie, Reema, and Izzy.

Download Campus Policy Draft from RMIIL

 

LAST MINUTE ADDITIONAL UPDATE:  While I was at a student lunch, I received a final "Proposed Campus Sexual Misconduct Policy" from Sarah, Zarah, Patrick, Stephen, Nick, AJ and Mehek Sheikh:

Download Campus Sexual Misconduct Draft from SZPSNAM

Raw scores and scoresheet/grading grid for 2022 midterm exam now posted on Carmen under Files

I have now posted, to the Files folder on our Carmen class site, the raw scores for the midterm exam administered earlier this month (in a single page PDF).  I have also posted, as a separate pdf, my scoresheet/grading grid that I used for calculating raw scores.

I have already discussed a bit whet these raw scores mean during our class this week, but I am happy to answer any additional general questions in class and I will also plan to have time after class for conferences for any and all students who may want to meet to discuss their performance or who may have specific questions about this midterm and/or law school exams more generally.

As I have been seeking to stress in class, this midterm is quite intentionally designed as a learning experience and the raw score results are part of the learning process.  I will be eager to continue to advance that learning via one-on-one or group discussions in the weeks ahead.

Ohio's major (and intricate) sex offense provisions

As I mentioned in class, I do not test on (or expect you to know thoroughly) modern sex offense doctrines in part because they are quite intricate thanks to modern efforts to properly categorize and criminalize a range of sexual misconduct.  (And we will not look closely at the Model Penal Code's sex offense provisions because the original ones are widely seen as dated and recent revisions are quite extended.) 

As for Ohio, the Sex Offenses Chapter of the Ohio Revised Code has more than 40 distinct provisions criminalizing everything from "Rape" to "Sexual Battery" to "Voyeurism" to "Compelling prostitution" to "Pandering obscenity" and all sorts of stuff in between.  Here are just some portions of Ohio's "Rape" statute, with a few provisions emphasized for potential in-class discussion:

Ohio Revised Code Section 2907.02 Rape:

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

(a) For the purpose of preventing resistance, the offender substantially impairs the other person's judgment or control by administering any drug, intoxicant, or controlled substance to the other person surreptitiously or by force, threat of force, or deception.

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

(c) The other person's ability to resist or consent is substantially impaired because of a mental or physical condition or because of advanced age, and the offender knows or has reasonable cause to believe that the other person's ability to resist or consent is substantially impaired because of a mental or physical condition or because of advanced age.

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

(B) Whoever violates this section is guilty of rape, a felony of the first degree....  Except as otherwise provided in this division, notwithstanding sections 2929.11 to 2929.14 of the Revised Code, an offender under division (A)(1)(b) of this section shall be sentenced to a prison term or term of life imprisonment.... 

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

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

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

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

Here are links to the other major Ohio sex offense provisions:

ORC 2907.03 Sexual battery.

ORC 2907.04 Unlawful sexual conduct with minor

ORC 2907.05 Gross sexual imposition

ORC 2907.06 Sexual imposition

If you click through to all of these provisions, you will see what looks like a "spouse" exception throughout.  That reality has recently prompted a bill to eliminate such an exception, but it has been stalled in the Ohio General Assembly.  This effective press article, headlined "Bill to criminalize spousal rape in Ohio has no opponents, so why can’t it pass?," discusses these matters.

Links to some prior examples of legislative drafts from prior role plays

I will seek to explain in class, perhaps a bit more clearly, the logistics for the legislative drafting role play that is tentatively scheduled to take place in class on Friday, October 28. For now, folks (especially folks who have not yet been involved in a role play) should be thinking about possibly assembling a drafting committee with fellow students.

I am grateful for all those who have already expressed an eagerness to participate, and I will discuss more of particulars of the exercise in the coming days.  In the meantime, you can and should feel free to peruse some of the efforts from prior years captured in the archives of this blog.  Here is an abridged accounting:

From 2013:

Oliwood rape reform proposals from four drafting subcommittees

 

From 2014:

Sexual offense code reform proposals from our drafting subcommittees (bonus trivia: one of the drafters from 2014 is a 538 favorite to win a 2022 seat in Congress)

 

From 2016:

Submitted draft proposals for revised MPC rape provision and for elaborate campus sexual behavior code

 

From 2018:

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

 

From 2021:

Draft Aggravated Rape statutes for legislative consideration before scheduled (in-class) legislative hearing 

Draft "Campus Sexual Misconduct Policy" for consideration before scheduled (in-class) hearing

Reminders and updates about Friday lunches

The first lunch will take place this coming Friday (Oct 21), and MANY thanks for those who have already signed up for lunches.  I am tracking plans via this Google document.  Folks signed up for the lunches should come by Drinko Room 313 so we can all walk together to the lunch locale.

There are still open slots for:

November 11

November 18

Since I cannot seem to work Google docs well, sign up by using the comments below claiming certain dates, feeling free to list multiple names if you have coordinated a group.

Full text of the Simpsons hypo — RIP Rod and Todd — for reviewing variations in unintended homicides

I quickly read in Monday's class a Simpsons hypo for your consideration as a fact pattern to explore the various ways that various jurisdictions approach unintended homicide charges.  I will likely seek to discuss this case's application at least in Ohio and Oliwood to get us started next week.  Here is the full text (with links to the Simpson's wiki):

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

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

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

Sadly, it turns out that Rod Flanders and Todd Flanders, devout children of the Simpsons' devout neighbor, were in the tree house praying because they thought being high off the ground brought them closer to their lord.  (The Flanders sincerely thought that praying, rather than playing, in the tree house was perfectly fine.  The kids had heard Smithers call out each time, but they thought it was the lord speaking to them.)  Tragically, the third shot from the antique flare-gun fired off line and into the tree house. 

The third flare shot by Smithers which entered the tree house struck Rod Flanders directly in the chest.  Todd Flanders discovered that his older brother Rod has been killed instantly by the flare; distraught, he jumps out the tree house window to his death.

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

If you are interested in more of the ugly Welansky backstory...

Here is a documentary with a partial recreation of the events that lead to the prosecution of Barnett Welansky.  The introduction is a bit much, but the 20 minutes that follow give you a flavor of the story behind an historic and horrific event: 

In addition, if you think this could not happen again, consider that it roughly did (though with a smaller body count) in The Station nightclub fire in Rhode Island in 2003.  Here are the basic facts of that sad case and the legal aftermath (drawn from this Wikipedia entry):

The Station Nightclub fire was the fourth-deadliest nightclub fire in U.S. history, killing 100 people. The fire began at 11:07 PM EST, on Thursday, February 20, 2003, at The Station, a glam metal and rock and roll themed nightclub located at 211 Cowesett Avenue in West Warwick, Rhode Island.

The fire was caused by pyrotechnics set off by the tour manager of the evening's headlining band, Jack Russell's Great White, which ignited flammable sound insulation foam in the walls and ceilings surrounding the stage. A fast-moving fire engulfed the club in 5½ minutes. In addition to the 100 fatalities, some 230 people were injured and another 132 escaped uninjured....

In the days after the fire, there were considerable efforts to assign and avoid blame on the part of the band, the nightclub owners, the manufacturers and distributors of the foam material and pyrotechnics, and the concert promoters. Through attorneys, club owners said they did not give permission to the band to use pyrotechnics. Band members claimed they had permission....

On December 9, 2003, brothers Jeffrey A. and Michael A. Derderian, the two owners of The Station nightclub, and Daniel M. Biechele, Great White's former road manager, were charged with 200 counts of involuntary manslaughter — two per death, because they were indicted under two separate theories of the crime: criminal-negligence manslaughter (resulting from a legal act in which the accused ignores the risks to others and someone is killed) and misdemeanor manslaughter (resulting from a petty crime that causes a death)....

The first criminal trial was against Great White's tour manager at the time, Daniel Michel Biechele, 29, from Orlando, Florida. This trial was scheduled to start May 1, 2006, but Biechele, against his lawyers' advice, pled guilty to 100 counts of involuntary manslaughter on February 7, 2006, in what he said was an effort to "bring peace, I want this to be over with."... Superior Court Judge Francis J. Darigan sentenced Biechele to 15 years in prison, with four to serve and 11 years suspended, plus three years' probation, for his role in the fire....

Following Biechele's trial, the Station's owners, Michael and Jeffrey Derderian, were scheduled to receive separate trials. However, on September 21, 2006, Superior Court Judge Francis J. Darigan announced that the brothers had changed their pleas from "not guilty" to "no contest," thereby avoiding a trial. Michael Derderian received 15 years in prison, with four to serve and 11 years suspended, plus three years' probation — the same sentence as Biechele. Jeffrey Derderian received a 10-year suspended sentence, three years' probation, and 500 hours of community service.

In a letter to the victims' families, Judge Darigan said that a trial "would only serve to further traumatize and victimize not only the loved ones of the deceased and the survivors of this fire, but the general public as well." He added that the difference in the brothers' sentences reflected their respective involvement with the purchase and installation of the flammable foam.

Rhode Island Attorney General Patrick C. Lynch objected strenuously to the plea bargain, saying that both brothers should have received jail time and that Michael Derderian should have received more time than Biechele.

Noting that an Ohio version of the Berry case comes out a bit differently

A case with facts reasonably similar to those in the Berry murder/manslaughter case in our text was litigated all the way up to the Ohio Supreme Court in State v. Shane, 63 Ohio St.3d 630, 590 N.E.2d 272 (1992).  Here are the facts in the Shane case:

At approximately 6:00 a.m. on October 13, 1989, appellant, Robert Shane II, made a telephone call to the New Philadelphia Police Department to report the death of his fiancee, Tina Wagner.  Shane told the police officer who answered the phone, "I'm the one who did it ... she just drove me crazy and I choked her."  Police officers soon responded to the scene, which was an apartment shared by Shane, Wagner, and the couple's infant child.  When the officers entered the apartment, they discovered Wagner's nearly nude body lying on a bed; a red shirt was wrapped tightly around the victim's throat.  An autopsy revealed that Wagner had died of asphyxiation by strangulation.  Tests done on the victim's body revealed a urine alcohol content of 0.27 grams per deciliter.

Shane was indicted on one count of murder, a violation of R.C. 2903.02, to which he entered a plea of not guilty.  Testifying in his own defense at the trial, Shane again admitted that he had killed Wagner, but told the jury of statements Wagner had made to him immediately prior to the incident, which upset him greatly.  Shane stated that Wagner told him she had been sleeping with other men and that she no longer cared for him.  Shane testified, "I have never felt more upset and more mad with anyone [in] my entire life."  Shane further testified that after he became so upset, the next thing he remembered was "coming to" after having passed out and finding himself lying on the bed with Wagner underneath him.

How do you think the Ohio Supreme Court applied Ohio's particular version of voluntary manslaughter rule on these facts?  The Shane case provides a helpful account of how Ohio courts look at the issue of provocation, and here are snippets from the Shane ruling: 

An inquiry into the mitigating circumstances of provocation must be broken down into both objective and subjective components.  In determining whether the provocation is reasonably sufficient to bring on sudden passion or a sudden fit of rage, an objective standard must be applied.  Then, if that standard is met, the inquiry shifts to the subjective component of whether this actor, in this particular case, actually was under the influence of sudden passion or in a sudden fit of rage.  It is only at that point that the emotional and mental state of the defendant and the conditions and circumstances that surrounded him at the time must be considered.  If insufficient evidence of provocation is presented, so that no reasonable jury would decide that an actor was reasonably provoked by the victim, the trial judge must, as a matter of law, refuse to give a voluntary manslaughter instruction....

We hold that words alone will not constitute reasonably sufficient provocation to incite the use of deadly force in most situations.  Rather, in each case, the trial judge must determine whether evidence of reasonably sufficient provocation occasioned by the victim has been presented to warrant a voluntary manslaughter instruction.  The trial judge is required to decide this issue as a matter of law, in view of the specific facts of the individual case.... 

Provocation, to be reasonably sufficient, must be serious. But it was only Wagner's statements to Shane that caused him to become enraged.... Shane alleges that it was only mere words that provoked him.  Considering this fact, together with the surrounding circumstances of the case, we conclude that no reasonable jury could have decided that Shane was sufficiently provoked by the victim so that a conviction on the inferior-degree offense of voluntary manslaughter could have been forthcoming.

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

The Shane court is the last major Ohio Supreme Court discussion of voluntary manslaughter in the context of a domestic dispute, but this issue continues to arise in lower courts.  And for an interesting debate over how Shane should be applied on a slightly different set of facts, you might consider the work of the Ohio Eleventh District Court of Appeals in State v. Wagner, 2007 Ohio 3016 (Ohio Ct. App. 2007), in which the appellate panel divided over the appropriateness of a voluntary manslaughter instruction in another case involving a husband killing his wife amid heated discussions of infidelity.

Notable efforts to preclude LGBTQ+ "panic" as adequate provocation to mitigate an killing

I briefly mentioned as we started discussing the historic common-law doctrine of provocation that one modern development concerns legislative efforts to categorically preclude "panic" about gender and sexual orientation from being deemed legally adequate provocation.  The American Bar Association played a leading role here when in 2013 it unanimously approved this resolution:

RESOLVED, That the American Bar Association urges federal, tribal, state, local and territorial governments to take legislative action to curtail the availability and effectiveness of the “gay panic” and “trans panic” defenses, which seek to partially or completely excuse crimes such as murder and assault on the grounds that the victim’s sexual orientation or gender identity is to blame for the defendant’s violent reaction. Such legislative action should include:

(a) Requiring courts in any criminal trial or proceeding, upon the request of a party, to instruct the jury not to let bias, sympathy, prejudice, or public opinion influence its decision about the victims, witnesses, or defendants based upon sexual orientation or gender identity; and

(b) Specifying that neither a non-violent sexual advance, nor the discovery of a person’s sex or gender identity, constitutes legally adequate provocation to mitigate the crime of murder to manslaughter, or to mitigate the severity of any non-capital crime.

This LGBTQ+ Bar webpage notes that, since the ABA's resolution, "the District of Columbia and the states of California, Illinois, Rhode Island, Nevada, Connecticut, Maine, Hawaii, New York, New Jersey, Washington, Colorado, Virginia, Vermont, Oregon, Maryland, and New Mexico have banned such defenses. Legislation is pending federally as well as in multiple states."

Professor Cynthia Lee is one of the nation's leading scholars concerning provocation issues. She recently authored this notable (and lengthy) article titled "The Trans Panic Defense Revisited."  Among other virtues, this article provides a example of how an academic's views on important issues can evolve. Here is part of the article's abstract:

When a man is charged with murdering a transgender woman, a common defense strategy is to assert what is called the trans panic defense. The trans panic defense is not a traditional criminal law defense. Nor, despite its name, is it recognized as a stand- alone defense. Rather, trans panic is a defense strategy associated with the provocation or heat of passion defense....

This Article offers several reasons why the trans panic defense strategy is deeply problematic.  First, the trans panic defense appeals to negative stereotypes about transgender individuals.  Second, it legitimizes the enforcement of norms of masculinity and heterosexuality through violence.  Third, it inappropriately validates bias against transgender individuals when we live in a pluralistic society that should be tolerant and accepting of all individuals.

The Article then addresses the normative question of what should be done to rectify the harms rendered when a defendant charged with murder asserts a trans panic defense.  In the past, the Author was reluctant to support proposals to legislatively ban the trans panic defense.  She felt that the best way to defeat the trans panic defense was not to ban it, but to allow it to be aired and then have a strong prosecutor explain to the jury why it should be rejected.  She also argued that it was critically important to eradicate the underlying structures of masculinity that encourage violence against transgender women to reduce the risk of such violence taking place and to undermine the effectiveness of the trans panic defense.  She opined that the best way to achieve these goals was to educate both the public and the jury about the difficulties transgender individuals face just trying to exist in society and make the existence of bias against transgender individuals salient to the jury.

While the Author still believes in the importance of education, she now feels education alone is insufficient to ensure that juries reject the trans panic defense.  The Article explains the Author’s shift in position and concludes by examining recently enacted legislative bans on the trans panic defense and offering concrete suggestions on how legislative reform in this arena could be strengthened.

A working list of lunch dates (with comments available for signing up) .. and now a Google Doc

Rather than devise another website for arranging lunch dates, I figure I will use this space and explain again the basics if you are interested.

The basics: up to 5 students can meet at my office (Room 313) at 11:30am on the designated date so we have time to walk to the Wexner Center to grab a bite (Going Dutch) and chat about life or law or whatever else before our class or other activities.

Viable (initial) dates:

October 7

October 21

October 28

November 4

November 11

November 18

Sign up: by using the comments below claiming certain dates, feeling free to list multiple names if you have coordinated a group.

UPDATE:  MANY thanks for those who have already signed up for lunches.  I finally had the good sense to make an open Google Doc to do this in a more orderly fashion, so I gave moved names from the comments to this Google document which can now be accessed by all who want to sign up (or change plans).

Also, I have adjusted some of the available dates and added a few later in November.

ANOTHER UPDATE:  MANY thanks for those additional signed ups for lunches.  It looks like we are now full on October 28 and November 4.  There is still room on other dates AND I can and will make additional dates if there is interest.

For your review and preparation (and enjoyment?): prior mid-terms and exam prep materials

To help you prepare for the coming mid-term (on Wednesday, Oct 12), I am happy to provide prior exams and other exam prep materials.  To start, I will post here the mid-term exam I gave students in this class last Fall, as well as a "practice" mid-term that I typically offer when I teach a large-section class (and associated follow-up materials).

Download Berman Crim Law midterm for 2021

Download practice_exam.rtf

Download key_issues_on_practice_exam.rtf

Download exam_tips_memo.rtf

I think this is (more than) enough material for helping you prepare for the mid-term (which is supposed to be a relatively low-key event).  But you can find more old exams in the archives if you are a glutton for exam punishment.