Criminal Law @ Moritz College of Law

Discouragingly 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 Apple's headquarters) and here (planning to bomb the Ron Paul Institute).

Based on depressing recent events, and in an effort to highlight the discouragingly challenging realities surrounding mass shootings, I have revised the hypo (and hope it is not too triggering).  Here goes:

1. Joe McAngry calls his parents to say was fired from his job at Twitter and joked he might want to borrow his dad's rifle

2. Joe emails his friends to say he was very depressed and angry Elon Musk bought Twitter and fired so many people like him

3. Joe texts a former co-worker who was also fired to say he hoped someone "got back" at Musk

4. Joe posts anonymously on Twitter that Musk ought to be sure to "keep looking over his shoulder" 

5. Joe researches online about where Musk lives and works and can be found on most workdays

6. Joe researches online about the Tesla Gigafactory in Austin, Texas and contacts persons about arranging a tour 

7. Joe posts on Facebook that some day retribution would come to Musk and those who work with him

8. Joe orders a bulletproof vest from an online store for overnight delivery

9. Joe travels to his parents home and picks up his dad's rifle and a ski mask, telling his dad he had hunting plans

10. Joe visits a gun store and buys 60 rounds of ammunition for the rifle and also a handgun with 60 more rounds

11. Joe uses Waze to map out a route from his home in California to Tesla headquarters in Austin, Texas

12. Joe creates a fake document that states he has been invited for a special tour of the Tesla Gigafactory

13. Joe begins a drive to Texas, with his guns and ammo and vest, staying overnight at a motel in eastern Arizona 

14. Joe completes his drive to Austin, staying overnight in a motel a few miles from the Tesla Gigafactory

15. Joe, wearing his a bulletproof vest, drives in morning to Tesla headquarters and circles grounds 

16. Joe drives to security checkpoint and convinces guard using fake document that he has a tour scheduled at the factory

17. Joe parks near where he thinks Musk has his office and is working that morning 

18. Joe waits, watching for working to arrive at location while monitoring Musk's Twitter account

19. Joe emerges from his car with his rifle in one hand and his handgun in another

20. Joe starts running toward the entrance to the Tesla Gigafactory, pointing his guns at persons nearby yealling "Where's Elon?"

21. Joe begins to squeeze trigger as he sees someone he thinks is Musk emerge from the Tesla Gigafactory....

 

ATTEMPT LIABILITY QUESTIONS

When SHOULD Joe McAngry be deemed guilty of attempted murder?

   -- When could he be deemed guilty at common law?

   -- When could he be deemed guilty under the MPC?

 

POLICING QUESTIONS

When do you want police to intervene?

When do you think the police legally can intervene?

When do you think the police will intervene?

A few law movies that I hope will not drive you insane (or to worry about insanity doctrines)

In our very quick review of insanity doctrines, I mentioned that insanity claims often get more attention in courtroom movies rather than in actual courtrooms.  I showed one clip from Anatomy of a Murder (1959), and I would recommend highly the full movie.  For a more recent movie with some insanity talk, check out 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 even as exams approach, I though it might be fun to also post some other law-themes movie recommendations.  Of course, you may not find it relaxing to watch law movies, I cannot resist noting some of my favorites in this genre:

• 12 Angry Men (1957)
• The Fortune Cookie (1966)
• A Few Good Men (1992)
• My Cousin Vinny (1992)
• The Firm (1993)
• A Time to Kill (1996)
• The Devil's Advocate (1997)
• Michael Clayton (2007
• Just Mercy (2019)

I have intentionally left out law school movies, but at some point every law student should find time for the classics of The Paper Chase (1973) and Legally Blonde (2001).  

I am going to try to make sure the comments here stay open so everyone can share movie recommendations (law or otherwise).

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

I hope everyone enjoyed Monday's role play, and kudos to the lawyers who did a great job under challenging circumstances. If folks remain engaged by the legal and/or philosophical issues raised by the Dudley & Stephens case, a "classic" law professor account of 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, much shorter and more recent consideration of these issues, one member of my criminal law class nine 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 next Monday's role play experience which is intended to focus on defenses (and especially necessity and duress) in Oliwood under the (unique) terms and structure 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.

Professor Paul Butler's forceful arguments for race-based jury nullification

I mentioned briefly in Wednesday's class Professor Paul Butler's (in)famous and provocative law review article in which he urged race-based jury nullification.  The article was published as Racially Based Jury Nullification: Black Power in the Criminal Justice System, 105 Yale L.J. 677 (1995), and is available at this link.  Here is a snippet from the piece's introduction:

My thesis is that, for pragmatic and political reasons, the black community is better off when some nonviolent lawbreakers remain in the community rather than go to prison.  The decision as to what kind of conduct by African-Americans ought to be punished is better made by African-Americans themselves, based on the costs and benefits to their community, than by the traditional criminal justice process, which is controlled by white lawmakers and white law enforcers.  Legally, the doctrine of jury nullification gives the power to make this decision to African-American jurors who sit in judgment of African-American defendants.  Considering the costs of law enforcement to the black community and the failure of white lawmakers to devise significant nonincarcerative responses to black antisocial conduct, it is the moral responsibility of black jurors to emancipate some guilty black outlaws....

My goal is the subversion of American criminal justice, at least as it now exists.  Through jury nullification, I want to dismantle the master's house with the master's tools.  My intent, however, is not purely destructive; this project is also constructive, because I hope that the destruction of the status quo will not lead to anarchy, but rather to the implementation of certain noncriminal ways of addressing antisocial conduct.  Criminal conduct among African-Americans is often a predictable reaction to oppression.  Sometimes black crime is a symptom of internalized white supremacy; other times it is a reasonable response to the racial and economic subordination every African-American faces every day.  Punishing black people for the fruits of racism is wrong if that punishment is premised on the idea that it is the black criminal's "just deserts."  Hence, the new paradigm of justice that I suggest in Part III rejects punishment for the sake of retribution and endorses it, with qualifications, for the ends of deterrence and incapacitation.

In a sense, this Essay simply may argue for the return of rehabilitation as the purpose of American criminal justice, but a rehabilitation that begins with the white-supremacist beliefs that poison the minds of us all — you, me, and the black criminal.  I wish that black people had the power to end racial oppression right now.  African-Americans can prevent the application of one particularly destructive instrument of white supremacy — American criminal justice — to some African-American people, and this they can do immediately.  I hope that this Essay makes the case for why and how they should.

For those who (understandably) do not have enough time to read all of Professor Butler's remarkable Essay, here is an effective (though dated, and yet also still timely) 60 Minutes video (under 10 minutes) discussing Professor 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 Professor Butler and other guests.