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November 26, 2023

Mapping out final class plans (and tentative review session plans)

I hope everyone has been having a relaxing holiday weekend, and I am eager to try to avoid adding to the stresses of the end of classes and the start of exam period.  To that end, I want to remind everyone what to expect in the coming weeks:

Class plans:

We finish our official class sessions in this coming week, and we will finish up our substantive review of attribution doctrines with a quick tour of complicity and conspiracy on Monday and Tuesday.  If you have read, thoroughly and carefully, the Ochoa case in our text, you will be well prepared for our class discussions.

We will not have class on Wednesday.

Our final class on Thursday will involve completing evaluations as well as discussing some broad themes of the class and what you should expect on the final exam.  If time permits, I am also happy to conduct an "open" review sessions to answer any questions you might have about course materials.


Review session plans:

I am tentatively planning to have (entirely optional) review sessions in the days leading up to our exam.  Specifically, I will plan to be in our classroom to answer questions during the early afternoons (say 2pm) Tuesday to Thursday (December 12 to 14).  These dates and times and the location are entirely flexible, and I am eager to hear any suggestions for other times that will be helpful to you in the coming weeks.

November 26, 2023 in Course materials and schedule, Preparing for the final | Permalink | Comments (0)

November 20, 2023

Prior posts with older law movie recommendations (and some old exams)

I am planning to use the Thanksgiving break to eat too much and catch up on rest (and watch football) and spend time with family (and watch football) and play some board games and watch some movies (and football).  In some prior pre-turkey day posts, I have flagged some of my favorite law-related movies:

Though most of these movies were made before most of you were born (and a couple are even before I was born), these all still hold up pretty well.  (I have left out law school classics like the The Paper Chase (1973) and Legally Blonde (2001) because you all have plenty of law school without needing to watch movies about it.)

Though I think rest and movie watching should take priority over work during the break, I figure I should elevate here some links to some of my old exams for those starting to focus on post-break realities.   This old post from almost exactly a decade ago has links to seven old exams.  That's way more than anyone should review anytime soon, but be sure to let me know if you have any problem accessing any of these old materials. 

November 20, 2023 in Preparing for the final | Permalink | Comments (0)

November 15, 2023

A political 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 recent political developments, I have revised my hypo (and hope it is not too triggering).  Here goes:

1. Joe McAngry calls his parents to say he was excited by Nikki Haley's campaign for President and wishes old folks like Joe Biden and Donald Trump would get out of way

2. Joe emails a friend to say is very depressed and angry that his choices for President in 2024 might again be Biden and Trump

3. Joe texts a co-worker that he wished Biden and Trump would "just die already" so someone else could be president 

4. Joe posts anonymously on X that "someone should kill Donald Trump" to spare the country the spectacle of his trials and 2024 campaign 

5. Joe researches online where Trump is scheduled to give speeches in coming weeks

6. Joe researches online about Mar-a-Lago and contacts persons about events at the property

7. Joe posts anonymously on Facebook that "some day harm would come to Trump and those who defend 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 South Carolina to Mar-a-Lago

12. Joe creates a fake document that states he is a member of the Fox News advancement team

13. Joe begins a drive to Mar-a-Lago, with his guns and ammo and vest, staying overnight at a motel in Daytona Beach, Florida 

14. Joe completes his drive to Palm Beach, staying overnight in a motel a few miles from Mar-a-Lago

15. Joe, wearing his a bulletproof vest, drives in morning to Mar-a-Lago and circles grounds 

16. Joe drives to security checkpoint and convinces guard using fake document that he has permission to access the Donald Trump Grand Ballroom

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

18. Joe waits, watching for workers to arrive at location while monitoring Trump's Truth Social 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 Mar-a-Lago, pointing his guns at persons nearby yelling "Where's Trump?"

21. Joe begins to squeeze trigger as he sees someone he thinks is Trump emerge from a door at Mar-a-Lago....



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?



When do you want police to intervene?

When do you think the police legally can intervene?

When do you think the police will intervene?

November 15, 2023 in Course materials and schedule | Permalink | Comments (0)

November 13, 2023

Ohio case like Crawford with a similar (common law) result

A couple years ago, an Ohio intermediate appellate court resolved an appeal in a criminal case with a duress claim based on a set of facts somewhat similar to the Crawford case in our text. The Ohio 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 a number of legal issues, but the discussion of duress from paragraphs 46 to 56 is a pretty good account of the basics of Ohio law.  The duress discussion 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.

November 13, 2023 in Notable real cases | Permalink | Comments (0)

November 8, 2023

Is it insane to ask lawyers "Is Eating People Wrong?"

71qBsT35J5L._SY522_I hope everyone is excited for Thursday's role play, which is intended to focus on defenses (and especially necessity and duress) in Oliwood under the unique provisions of 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 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,  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.

November 8, 2023 in Course materials and schedule | Permalink | Comments (0)

November 6, 2023

Professor Paul Butler's forceful arguments for race-based jury nullification (nearly 30 years ago)

I mentioned in Monday's class Professor Paul Butler's provocative arguments for race-based jury nullification, which first appeared in a law review article published as Racially Based Jury Nullification: Black Power in the Criminal Justice System, 105 Yale L.J. 677 (1995).  The full argument is available at this link, and 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 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 herepart 2 herepart 3 here...) with Professor Butler and other guests.

November 6, 2023 in Recommended scholarship | Permalink | Comments (0)

November 4, 2023

Ohio's common law necessity doctrines (aided by a decade-old, inspired student analysis of D&S in Ohio)

As we will discuss in the coming weeks, Ohio's common-law approach to defenses extends to the classic defenses of necessity and duress.  Though the modern common-law cases we will review in the casebook are not from Ohio, they provide a generally effective accounting of how Ohio courts will be inclined to review claims of duress and necessity.  For example, the Ohio Supreme Court decades ago had a case, State v. Cross, 58 Ohio St.2d 482 (Ohio 1979), somewhat similar to the Unger case in its legal holding (though involving somewhat different facts).

And, helpfully, one member of my criminal law class ten years ago had the great initiative to imagine how a modern-day variation on the Dudley and Stephens case  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 Brooks, 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 & Stephens in Ohio

November 4, 2023 in Course materials and schedule, Notable real cases | Permalink | Comments (0)