Criminal Law @ Moritz College of Law

An old documentary about the old Welansky case

Here is a documentary with a partial recreation of the events that lead to the prosecution of Barnett Welansky (whose case we will review this coming week).  The introduction to this old show 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 want to believe that this kind of inferno 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, on Thursday, February 20, 2003, at The Station, a glam metal and rock and roll themed nightclub located ... 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.

Ohio version of the Berry case ... how do you think it comes out under Ohio law?

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 fiance, 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. 

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.

Practice materials with old practice midterm and a could of real midterms

As I briefly mentioned in class, the midterm is really supposed to be almost like a practice test, and so I do not recommend that you spend too much time practicing for it. But, if you do want to experience a true practice exam, you can find it available here on-line via an old blog posting.

Whenever I have taught a section of Criminal Law that does not have an actual mid-term, I have encouraged students to review using this practice exam AND I have follow-up materials available here on-line via another old blog posting.

Some (interesting?) Ohio cases covering various proximate causation issues

As I mentioned in class, in 99% of criminal cases, causation is not an issue at all (because the charge involves a conduct crime) or is not an issue in dispute (because the result is obviously causally connected to the defendant's actions).  But in the (rare) criminal cases in which causation doctrines arise, the facts are often quite interesting.  I have set forth the cases of some of these cases below.  You are NOT required or even expected to read any of these cases, but I thought you might find it useful to see the settings in which courts sometimes confront the kinds of causation issues that we are discussing:

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 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-Ohio-541 (6th Dist. App. 2002), involves these 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.

In two of these three cases, the court affirmed criminal liability, but in one of these cases a court concluded that criminal causation could not be sustained.  Can you guess which one?

If you want to read Rehaif (or follow the Supreme Court in months and years ahead)...

The US Supreme Court's official website is pretty good and has lots worth checking out about the Supreme Court's work past and present.  It is also where the Court officially releases its opinions and orders and other information about its work, and it is where you can find the slip opinion in Rehaif v. United States and "official rulings" going back many decades.  And, if you are interested in listening to upcoming SCOTUS oral arguments, which get start for the coming Term on October 2, 2023, they will be available on this page (which the Court explains "audio recordings of all oral arguments heard by the Supreme Court of the United States are posted on this website on the same day an argument is heard by the Court").

The primary must-follow website for SCOTUS fans is SCOTUSblog.  Among all sorts of great resources, that blog has helpful "case pages" for upcoming cases --- including those I have mentioned in class such as Pulsifer v. United States (which concerns whether "and" means "or" in a federal sentencing statute) and United States v. Rahimi (which concerns whether one part of long-stating federal gun control law violates the Second Amendment).  These SCOTUSblog case pages not only have links to short discussions of these cases, but also provide links to the briefs filed in the Supreme Court by both the parties and any amici.  For anyone interested in specific cases, or in the many ways to approach legal writing, or in the work of the Supreme Court more generally, it can often be very interesting and educational to see who files amicus briefs with the Court.

In part because SCOTUSblog is such a great resource, there are not many competing Supreme Court websites or blogs that seek to comprehensively cover the Supreme Court's work.  But there are any number of other notable site commenting on the courts from various angles, and I especially get a kick out of High School SCOTUS and Empirical SCOTUS.  There are now a bunch of podcasts that cover the work of the Court in various, and I am happy to recommend all sort of additional materials if anyone really wants to geek out on SCOTUS. 

But, critically, all these SCOTUS suggestions are all for entirely optional "fun."  You can and should just explore this world if, and only when, your schedule (and any strange notion of "fun") permits.

Review mens rea issues with my very first exam question (given 26 years ago)!

This week we will wrap up our mens rea unit, and in a few weeks I will be giving you a (small and friendly) mid-term exam that will surely cover some mens rea issues.  As a tool for review and to reveal a common structure for my exam questions, below you can find the full text of a question I asked students on the very first final exam that I gave the very first time I taught Criminal Law at OSU (way back in 1997(!), before we were even the Moritz College of Law):

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 (next week) if there is student interest in using class time to go over this question.

A "missing mental state"?

As we start digging deeply into a variety of mens rea topics, I may sometimes use this space to highlight some materials that engage broader debates over these topics. Critically, you should feel no obligation to read more than these posts, which are just intended to give you a feel for the debates.

So, I mentioned in class the work of OSU Law's 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.

Theory, echoes of Jones, homicide preview, and lurking mens rea/strict liability issues in new AP piece

Especially in the wake of our crashing-in-the-rain discussion of possible aggressive use of criminal law to address public safety concerns, this notable new AP article caught my eye.  The piece is headlined "As more children die from fentanyl, some prosecutors are charging their parents with murder," and I recommend the full article.  For now, I will spotlight a few passages that (at least indirectly) hit on an array of issues we have already covered this semester (and others to come):

Madison Bernard climbed into bed before dawn with her toddler, Charlotte, who was asleep next to a nightstand strewn with straws, burned tinfoil and a white powder.  Hours later, the mother woke and found her daughter struggling to breathe, according to investigators who described the scene in court documents.

After being rushed in an ambulance to a hospital, the 15-month-old girl died from a fentanyl overdose. Her mother and father, whom authorities said brought the drugs into their California home, were charged with murder and are awaiting trial. The couple has pleaded not guilty but are part of a growing number of parents across the U.S. being charged amid an escalating opioid crisis that has claimed an increasing number of children as collateral victims.

Some 20 states have so-called “drug-induced homicide” laws, which allow prosecutors to press murder or manslaughter charges against anyone who supplies or exposes a person to drugs causing a fatal overdose.  The laws are intended to target drug dealers.

In California, where the Legislature has failed to pass such laws, prosecutors in at least three counties are turning to drunk driving laws to charge parents whose children die from fentanyl overdose.  It’s a unique approach that will soon be tested in court as the cases head to trial.

Supporters of the ramped-up enforcement say that by now those who use the synthetic opioid know the lethality of the drug and, like drunk drivers, they should know the consequences of exposing their children to their actions.  Critics say the parents didn’t intend to kill their children but instead made poor choices because of their addictions and are being further punished instead of being offered help....

“These are tragic cases because drug addiction has destroyed a precious life and the parents face the consequences of their reckless actions,” said Charlie Smith, the top prosecutor in Frederick County, Maryland, and president of the National District Attorneys Association.  Parents also can face charges if young children become seriously ill or die from crack, heroin and cocaine, but such cases are rare because a sizeable amount must be ingested, Smith said.  “This is really a first in the history of our country because we have a drug on the streets that can potentially kill you instantly with a minor amount of product,” Smith said.

Prosecutors have a difficult decision to make when determining whether to charge parents, but Smith said the goal is to deter others from doing the same.  He prosecuted a case in which parents in Maryland were convicted of involuntary manslaughter in the 2020 death of their 2-month-old son.  The Mount Airy couple had mixed fentanyl in the same bathroom where they prepared bottles for their infant.  Jeremy Whitney Frazier and Heather Marie Frazier were each sentenced in December to five years in prison and five years of supervised probation.

The National District Attorneys Association doesn’t track how many parents have been charged for exposing their children to fentanyl, but news reports and interviews with prosecutors show such cases have been on the rise since the onset of the pandemic. Last month, a Maine woman pleaded guilty to manslaughter after her 14-month-old son’s fentanyl overdose. Investigators found fentanyl on a blanket and sheet where Ashley Malloy’s son Karson had been sleeping.  States such as Maryland that don’t have “drug-induced homicide” laws often charge parents with manslaughter, Smith said....

“I’ve been a prosecutor 25 years now and I can’t recall any other drug that has led to this much destruction and death,” Riverside County Deputy District Attorney Daima Calhoun said.  Prosecutors [in California] say the parents, like drunk drivers, knew fentanyl can injure or kill people.  Among those awaiting a trial that will test the approach are Tehra Alexandra Waite and Collin Pascal Kittrell, both of Riverside.  The boyfriend and girlfriend were charged with murder after their toddler died of a fentanyl overdose in June 2020.  They pleaded not guilty....

Kittrell’s attorney, Graham Donath, said Allison’s father did not intend for his child to die and the charge should be one of child neglect, not murder.  But prosecutors don’t like to go that route because the maximum sentence for the offense is 12 years.

Proposal for a new statute: "Criminal crashing while driving in rain"

To start our exploration of mens rea issues, and also to facilitate a focused conversation concerning a 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 (data from 2007 to 2016, 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 (in 2019), 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.

And from the car website Jerry, under the headline "What’s More Dangerous to Drive In – Rain or Snow? A New Study Sheds Light":

While neither is without risk, most drivers assume that driving in snow is more dangerous than driving in rain.  After all, a build up of snow changes the composition of the road, falling snowflakes make it hard to see, and some cars don’t even start in cold weather. However, a study by Jerry has found that rain is the most dangerous condition ...

[S]tudies show that drivers perceive rain to be less dangerous than snow. This, “it’s just rain” attitude, causes many people to drive too fast, underestimating the risks associated with hydroplaning and reduced braking distances.

Senator JoJo Beesafer has been deeply concerned about traffic safety issues ever since her college days after one of her best friends was killed by a drunk driver who was speeding and swerving on a country road during a summer thunderstorm.  Senator Beesafer has sponsored a number of bills seeking to increase punishment and enforcement efforts for driving under the influence.  Senator Beesafer has now drafted a novel new bill responding to concerns for the many thousands of people 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):

PROPOSED CODE Section 2999.99: Criminal Crashing 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 crashing 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.  

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