Criminal Law @ Moritz College of Law

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.

Does the text or spirit of the Eighth Amendment (or other parts of the US Constitution) embrace any particular theory of punishment?

I have asked the question in the title of this post to many students in many classes, and I am still not sure of the answer.  The Supreme Court has sometimes spoken to these matters in a number of Eighth Amendment cases (some of which are discussed in our text).  I plan to discuss briefly some of the Eighth Amendment cases that appear in our reading, but let me start the conversation by highlighting some key text from the Constitution and from the caselaw:

Amendment VIII:  "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

Graham v. Florida, 560 U.S. 48 (2010), majority opinion: "The concept of proportionality is central to the Eighth Amendment.... A sentence lacking any legitimate penological justification is by its nature disproportionate to the offense."

Ewing v. California, 538 U.S. 11 (2003), majority opinion:  "Our traditional deference to legislative policy choices finds a corollary in the principle that the Constitution does not mandate adoption of any one penological theory....  Selecting the sentencing rationales is generally a policy choice to be made by state legislatures, not federal courts."

Ewing v. California, 538 U.S. 11 (2003), Justice Scalia opinion: "Proportionality — the notion that the punishment should fit the crime — is inherently a concept tied to the penological goal of retribution....  In the present case, the game is up once the plurality has acknowledged that 'the Constitution does not mandate adoption of any one penological theory,' and that a 'sentence can have a variety of justifications, such as incapacitation, deterrence, retribution, or rehabilitation'." 

PLANS FOR EXAM REVIEW (or meetings for any other reason)

Now that we are a few weeks into the new semester, I wanted to start creating a regular schedule for students to "book" time to provide for one-on-one review of exam performace (or to talk about summer jobs or any other topic).  The times I am regularly available, at least for the next couple weeks, are:

Wednesdays between 12noon at 2pm

and

Fridays between 1pm at 2:30pm

If any 30-minute block in these times can work for you in the coming weeks, please feel free to send me an email to "book" that time for a one-on-one meeting at my office (Drinko Room 313).  If you want to talk about your exam, please be sure to send me your exam number.  I will try to swiftly confirm your appointment date/time by return email. 

If these times do not work for you, suggest a few alternative times in February.

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

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.

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.

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.

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

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

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

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

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

For those who (understandably) do not have enough time to read all of Butler's remarkable Essay, here is an effective (though dated, and yet also still timely) 60 Minutes video (under 10 minutes) discussing Butler's ideas.  The discussion usefully touches on some of the broader issues that jury nullification always raises.

 

Anyone who is eager for even more video on this issue can also see a series of 1995 segments on the Phil Donahue show (part 1 here, part 2 here, part 3 here...) with Butler and other guests.

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

If anyone remains engaged by the legal and/or philosophical issues raised by the Dudley & Stephens case, there are lots of wonderful additional readings I can recommend.  A "classic" law professor engagement with the issues raised in Dudley & Stephens appeared in a Harvard Law Review article published 65 years ago.  The Case of the Speluncean Explorers by Lon Fuller is one of the most famous law review articles ever written, and the start of the Wikipedia entry highlights why it is so engaging:

It largely takes the form of five separate judicial opinions attributed to judges sitting on the fictitious Supreme Court of Newgarth in the year 4300.  The hypothetical involves five cave explorers who are caved in following a landslide.  They learn via intermittent radio contact that they are likely to starve to death by the time they can be rescued.  The cavers subsequently decide to kill and eat one of their number in order to survive.  After the four survivors are rescued, they are indicted for the murder of the fifth member. The prescribed penalty is capital punishment.  Fuller's article proceeds to examine the case from the perspectives of five different legal principles, with widely varying conclusions as to whether or not the spelunkers should be found guilty and thereby face the death penalty under the law of Newgarth.

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

Let's imagine a scenario in which four avid hikers, all associated with Ohio’s State Parks, decide to go for a winter hike at Serpent Mound, located in idyllic Adams County, Ohio. The group consists of Hatlen Books, a veteran tour guide, Dursley Dudley and Richard Stephens, members of the Ohio State Parks administration, and Peter Parker, a trainee guide, though noted as a talented climber.  The hike was predicted to be an easy one and take no more than a few hours to complete; it was more-so an excursion to view the aforementioned idyllic landscape.  The hikers deviated from the path because of an intense and unpredicted snowstorm that caught the band off-guard and limited their ability to navigate.  The band happened upon a previously unknown sinkhole that had formed sometime after the last ranger appraisal of the land (which has been some-time ago with state budget cuts).  The group was stranded on a rocky, but stable, covered corner of the hole with only snow for hydration and a 2lb bag of vegan trail mix Stephens brought on the trip.  Despite the group’s reluctance to eat vegan, they subsisted off the mix and an unlucky rabbit for 18 days.

Download Prosecuting Dudley & Stevens in Ohio

Readings (and videos) on Paul Butler's proposal 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 Butler's remarkable Essay, here is an effective (though dated, and yet also still timely) 60 Minutes video (under 10 minutes) discussing Butler's ideas.  The discussion usefully touches on some of the broader issues that jury nullification always raises.

 

Anyone who is eager for even more video on this issue can also see a series of 1995 segments on the Phil Donahue show (part 1 here, part 2 here, part 3 here...) with Butler and other guests.

Some links to some materials concerning Ohio self-defense referenced in class

With apologies for not posting some of these materials sooner, here are links to a couple of sources I have referenced at some point in the last week as we have been reviewing self-defense doctrines:

From the Buckeye Firearms Association, "The Problems of Ohio’s Current Laws on Burden Shifting in Self-Defense Cases," which starts this way:

Under Ohio Revised Code Section 2901.05, a defendant is required to prove all elements of self-defense by a preponderance of the evidence. Recent case law and the development of the status of self-defense strongly suggest that shifting the burden to a defendant in this manner is unconstitutional.  Ohio’s burden shifting rule effectively changes the standard of proof necessary for the government to secure a conviction in self-defense cases.  Furthermore, Ohio’s current rule severely curtails, if not eliminates, the protections provided by the Fifth Amendment.  Ohio Senate Bill No. 180 and House Bill No. 228 provide the necessary changes to ensure those accused of a crime in Ohio receive a fair and just trial.  Where there is evidence presented that tends to show a defendant acted in self-defense, these Bills would place the burden back on the prosecution, where it rightly belongs, by requiring the prosecution to disprove at least one element of Ohio’s version of self-defense, beyond a reasonable doubt.

From the folks at Serial, Episode 5 of Season 3, "Pleas, Baby, Pleas." I highly recommend all episodes of Season 3 of series, but here is part of the transcript from the middle of this particular episode that concerns matters we have been discussing:

Sarah Koenig: The meeting with detectives this morning is to figure out how they're going to handle it — what charges [the local Ohio prosecutor Brian Ratigan] should present to the grand jury. This is a tricky one, though. Because Brian can see how the whole thing unspooled, now he's not sure a crime even occurred.

The stories in the newspaper had quoted police as saying that the older guy, the shooter, had been harassing passengers on the bus. But the bus videos show the opposite — the older guy, the shooter, he was the one being provoked.  It's possible this was self-defense.

Brian Radigan: This is one of those rare cases where you see the whole story.  Ninety percent of our cases, we're not watching them unfold.  And if something is caught on camera or whatever, usually it's from a distance.  And you don't hear the dialogue.  And you don't get to see everybody's reaction. You don't have seven different angles, or nine different angles of it.  You know, this is like the outlier, crazy, I can't believe I have to watch this whole thing and see all the decisions that were made that led to this guy dying.

This cleveland.com article about this Serial episode includes some of the video footage of the shooting that may, or may not, be a good example of self defense.

As always, I welcome and encourage commentary on these materials as well as links or reference to other interesting matters relating to the doctrines we are discussing.

Some information and background on the debate over mens rea reform at the federal level

I mentioned in class that there is an on-going debate over proposals to revise the federal criminal code's messy approach to mens rea.  In an effort not to overload you with (distracting) information about this debate, I will be content here to spotlight one press release and one background article:

Press release (dated June 22, 2018): "Hatch, Grassley Introduce Bill to Strengthen and Clarify Intent Requirements in Federal Criminal Law":

Today, Senators Orrin Hatch (R-UT), the former Chairman of the Senate Judiciary Committee, and Chuck Grassley (R-IA), the current Chairman of the Judiciary Committee, introduced legislation to clarify and strengthen intent requirements in our federal criminal laws.  The problem of overcriminalization is complex, and it includes the lack of clear mens rea requirements in much of our criminal laws.

The Mens Rea Reform Act of 2018 would strengthen the intent requirements in our federal criminal laws. And it would make these changes in a responsible way by establishing an extended process for federal agencies and Congress, with the assistance of a National Criminal Justice Commission and input from the public, to clarify the mens rea requirements in our existing criminal laws. 

Atlantic article (dated Oct 26, 2017): "Could a Controversial Bill Sink Criminal-Justice Reform in Congress?: A debate over mens rea stalled the last push for reform. Now, a similar battle could be brewing."

A bill drafted by a group of Senate Republicans earlier this year would tweak the mens rea requirement in federal statutes, adding a default rule for juries to find criminal intent for federal offenses that don’t explicitly have an intent standard. (Mens rea is a legal term derived from the phrase “guilty mind” in Latin.) If enacted, federal prosecutors would need to prove a defendant’s state of mind to obtain a conviction for a host of existing crimes. Conservatives and criminal-defense organizations argue the measure is a necessary part of the congressional effort to reform sentencing and incarceration. But some Senate Democrats fear the measure is far too sweeping and could be a back-door attack on federal health and environmental regulations that police corporate behavior.

Examples of litigation involving Ohio Revised Code Section 2923.24

I noted in class the Ohio criminal statute structured similarly to the statute deemed unconstitutional in Proctor, Ohio Revised Code Section 2923.24 Possessing criminal tools: “No person shall possess or have under the person's control any substance, device, instrument, or article, with purpose to use it criminally.“

A few students asked about when this statute might be used, so I figured I might link to some litigation concerning this statutory provision:

Ohio v. Chappell, 127 Ohio St. 3d 376, 2010-Ohio-5991 (Ohio 2010).

Ohio v. Hicks, 186 Ohio App. 3d 528, 2009-Ohio-5302 (Ohio 2d App. Dist. 2009).

Ohio v. McDonald, 31 Ohio St. 3d 47 (Ohio 1987).

Though these cases all make for interesting reads, for lots of reasons, I think your time this weekend would likely be better much spent re-reading Jones and the voluntariness cases (or, better yet, watching football or being with family and friends).

Readings (and videos) on Paul Butler's proposal for race-based jury nullification

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

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

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

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

For those who (understandably) do not have enough time to read all of Butler's remarkable Essay, here is an effective (though dated, and yet also still timely) 60 Minutes video (under 10 minutes) discussing Butler's ideas.  The discussion usefully touches on some of the broader issues that jury nullification always raises.

 

 

Anyone who is eager for even more video on this issue can also see a series of 1995 segments on the Phil Donahue show (part 1 here, part 2 here, part 3 here...) with Butler and other guests.

A timely commentary providing another (final?) thought for our legislative drafting exercise

At the risk of continuing a dialogue about aggravated rape when we need to be moving on, I urge everyone to read this new commentary this powerful personal article authored by Amber Rose Carlson under the headline "Is There a ‘Rational’ Punishment for My Rapist?". 

I suspect that, had someone read this article to the legislative body during our debates, the motion to increase the maximum possible sentence might have gotten a few more votes.  But maybe not, and I welcome student comments on this or related topics flowing from our legislative exercise.

UPDATE:  I just saw this new Columbus Dispatch article headlined "Man sentenced to 35 years in prison for molesting children," which includes these details that might further impact/inform how we reflect on our legislative debate:

A 50-year-old man who raped children being cared for by a woman he lived with on the Hilltop was sentenced Monday to 35 years in prison. Kenneth E. Kilgore, of the West Side, pleaded guilty in August to three counts of rape, two counts of importuning and two counts of disseminating matter harmful to juveniles.

He admitted to engaging in sex acts with three children, as well as soliciting two children by offering them money or beer if they engaged in sex acts with him and showing pornography to two other children. Kilgore rented a room on South Richardson Avenue from a grandmother who watched her grandchildren and other children, sometimes overnight. The crimes took place between August 2012 and July 2016 and involved children ranging in age from 6 to 12.

Two mothers tearfully addressed the court, asking Franklin County Common Pleas Judge Michael J. Holbrook for the maximum sentence, which would have been 42 years. “They’re no longer allowed to be normal kids,” she said. “He took their innocence away. I’m asking for the max, because they have to live with this for the rest of their lives.”...

Assistant Prosecutor Kara Keating said Kilgore has shown no remorse and blamed his actions on alcoholism, telling police he didn’t remember some of the incidents because he was so drunk at the time. “This is not a one-time offense,” she told the judge. “This was multiple times on multiple dates and in multiple ways ... The victims have suffered serious psychological harm. They will likely never fully recover from what the defendant did to them.”

Defense attorney Mark Hunt said his client deserved some credit for pleading guilty and sparing the children from testifying during a trial.

GREAT WORK Oliwood legislators!

Today was a proud day for Oliwood democracy as we made terrific progress on potentially passing an aggravated rape statute for the great state of Oliwood.  I am hopeful that the Oliwood media — despite it recent affinity for "fake news" — will not falsely portray the reasons why we did not get a statute passed today or in any way misrepresent any of the comments from members of our legislative body. 

In the comments below, I welcome recommendations as to whether and how we should continue to seek to get an aggravated rape bill passed.  And in the meantime for your consideration, here is Ohio's Rape statute here (with also links to other Ohio sex offense provisions) to show you how Ohio (indirectly) sets forth some aggravated rape provisions and defines other sex offenses:

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.  If the offender under division (A)(1)(a) of this section substantially impairs the other person's judgment or control by administering any controlled substance described in section 3719.41 of the Revised Code to the other person surreptitiously or by force, threat of force, or deception, the prison term imposed upon the offender shall be one of the prison terms prescribed for a felony of the first degree in section 2929.14 of the Revised Code that is not less than five years.  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 pursuant to section 2971.03 of the Revised Code.  If an offender is convicted of or pleads guilty to a violation of division (A)(1)(b) of this section, if the offender was less than sixteen years of age at the time the offender committed the violation of that division, and if the offender during or immediately after the commission of the offense did not cause serious physical harm to the victim, the victim was ten years of age or older at the time of the commission of the violation, and the offender has not previously been convicted of or pleaded guilty to a violation of this section or a substantially similar existing or former law of this state, another state, or the United States, the court shall not sentence the offender to a prison term or term of life imprisonment pursuant to section 2971.03 of the Revised Code, and instead the court shall sentence the offender as otherwise provided in this division.

If an offender under division (A)(1)(b) of this section previously has been convicted of or pleaded guilty to violating division (A)(1)(b) of this section or to violating an existing or former law of this state, another state, or the United States that is substantially similar to division (A)(1)(b) of this section, if the offender during or immediately after the commission of the offense caused serious physical harm to the victim, or if the victim under division (A)(1)(b) of this section is less than ten years of age, in lieu of sentencing the offender to a prison term or term of life imprisonment pursuant to section 2971.03 of the Revised Code, the court may impose upon the offender a term of life without parole.  If the court imposes a term of life without parole pursuant to this division, division (F) of section 2971.03 of the Revised Code applies, and the offender automatically is classified a tier III sex offender/child-victim offender, as described in that division.

(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.

(E) Prior to taking testimony or receiving evidence of any sexual activity of the victim or the defendant in a proceeding under this section, the court shall resolve the admissibility of the proposed evidence in a hearing in chambers, which shall be held at or before preliminary hearing and not less than three days before trial, or for good cause shown during the trial.

(F) Upon approval by the court, the victim may be represented by counsel in any hearing in chambers or other proceeding to resolve the admissibility of evidence.  If the victim is indigent or otherwise is unable to obtain the services of counsel, the court, upon request, may appoint counsel to represent the victim without cost to the victim.

(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.

Other major Ohio sex offense provisions:

2907.03 Sexual battery.

2907.04 Unlawful sexual conduct with minor.

2907.05 Gross sexual imposition.

2907.06 Sexual imposition.

2907.07 Importuning.

2907.08 Voyeurism.

 

Thoughts on, reactions to, and results from Shooter role-play

In addition to thanking again our terrific state homicide lawyers, I also want to provide this space for any pressing questions or other thoughts on the Shooter exercise.  The primary point of the role-play was to preview homicide issues we will be working through in October.  But the exercise may also prompt thoughts about matters of procedure and practice that I would be happy to field here or elsewhere. 

Some questions and reactions might also be triggered by the document linked below showing the voting results in the Shooter role play in the three different jurisdictions we examined (California, Kansas and Ohio).  Consider whether the pattern of outcomes tells us more about the unique law in the three different jurisdictions or about the unique choices made by the lawyers who presented the case in these jurisdictions.

Finally, and as a preview of the start of our discussions next week, think about (and perhaps comment upon) the ideal number of different types of homicide.  As mentioned in class, the drafters of the Model Penal Code decided there should only be three different types of homicide.  To my knowledge, not a single US jurisdiction has only three types of homicide crimes.  In Ohio, if you include aggravated vehicular homicide and vehicular homicide, the Revised Code has nine different types of homicide.   Do you think it better for a modern criminal code to have fewer or to have more types of homicide?  What are some consequences of one general criminal harm being subdivided into so many different offenses?

Download 2017 shooter results

How Rhode Island changed its child abuse law after Lima

Though our casebook mentions how New York amended its drug statutes after Ryan, I think it also notable how the Rhode Island legislature responded to the Lima case.  Here is the story via a subsequent Rhode Island ruling, State v. Sivo, 925 A.2d 901 (R.I. 2007):

In Lima, the defendant was convicted of first-degree child abuse for lowering a small child into a bathtub of scalding water, causing him to suffer permanent disfigurement or disability.  The child abuse statute implicated in Lima, § 11-9-5.3(a), provided, in pertinent part, that "[w]henever any * * * [caretaker] * * * abuses [a] child by inflicting upon said child a physical injury, to the extent the child is permanently disfigured or disabled, he or she shall be guilty of child abuse in the first degree * * *." General Laws 1956 (1981 Reenactment) § 11-9-5.3, as amended by P.L.1983, ch. 179, § 1.   Evidence introduced at trial showed that the defendant told the child's father that she had intentionally put the child in the bathtub to wash him, but had not first checked the water temperature, which, unbeknownst to the defendant, was far too hot.  Lima, 546 A.2d at 771.  The trial justice instructed the jury on the elements of the child abuse statute, but did not instruct the jury that intent was a necessary element of the crime charged. Id.   The defendant appealed, alleging that the trial justice committed error when he refused to instruct the jury that an intentional act was required. Id. This Court held that the trial justice's refusal to so instruct the jury constituted reversible error. Id. at 772.  Because the child abuse statute in place at the time was entirely devoid of words of intent, we adopted a standard similar to that set forth in the Model Penal Code (MPC), requiring that "[w]hen the culpability sufficient to establish a material element of an offense is not prescribed by law, such element is established if a person acts purposely, knowingly or recklessly with respect thereto." Lima, 546 A.2d at 772 (quoting Model Penal Code, § 2.02(3) at 226 (A.L.I.1985)).  Pursuant to this standard, we directed the trial justice on remand to instruct the jury accordingly, to "protect [][the] defendant from a conviction predicated upon an act devoid of mens rea while at the same time protecting a class of defenseless victims from physical abuse." Id. 

In the years after Lima, the General Assembly enacted numerous amendments to the first-degree child abuse statute.  What is most significant to the instant litigation is that, in 1995, the General Assembly added words of intent, prescribing punishment only for those individuals who “knowingly or intentionally” inflict a serious bodily injury upon a child.  These statutory words of intent effectively superseded the MPC-inspired words of intent we adopted in Lima..... [where] our concern was the possibility that the jury convicted the defendant without finding that she had acted with a mens rea.

Exam review in the afternoons the week of February 6

Students interested in reviewing their final exam performance can and should email me (1) an ideal afternoon time for Monday through Wednesday (2/6 to 2/8), and (2) their exam number.  I will email back a confirmation and you will have a formal time booked.

Students can and should use the comments to this post to indicate if they would like me to provide other exam review windows.

Starting our grinding over self-defense doctrines and midterm review

I had grand plans to get our review of the "classic" criminal law defense of self-defense off to a flying start during Monday afternoon's class, and I also had expected to start reviewing mid-term efforts with students right after class.  But, as you all likely now know, a troubled (and now deceased) young man decided to disrupt all OSU campus plans for this afternoon.

So I have taken to this space to get the grind going in the following ways:

1. Background/grinding on Ohio self-defense law:  Almost exactly 40 years ago, Ohio's procedures for applying self-defense doctrines were contested all the way up to the US Supreme Court. I have never made the SCOTUS ruling in Martin v. Ohio a required part of the course materials, but I think folks might now find it interesting to read and reflect on the ruling in Martin v. Ohio, 480 U.S. 228 (1987), available here and/or here and/or via Westlaw/Lexis.

2.  Background/grinding on mid-term review: I have now taken the time to divide up the mid-term data into what I consider helpful quartiles to produce this accounting:

                     Top 25%         Mid 50%            Bottom 25%

WORDS        > 1650          1001-1650          < 1000

PART A        46 or more          39-45         38 or less

PART B        18 or more          14-17         13 or less

Though much too crude, I think these quartiles provide a useful rough guide to how your first exam taking experience went.  If you are on the top 25% on a question, then generally speaking you are doing the kind of work needed to secure an A.  If you are in the mid 50%, then you are still doing well and need not worry about "bombing."  If you are in the bottom 25%, you should try to figure out "what went wrong" so that you can do better the next time.

I will readily/eagerly/happily be available from 12noon to 5pm on Tuesday and from 3pm to 5:30pm on Wednesday and from 2:30pm to 5pm on Thursday to go over the exam with individual students.  I would be grateful if a couple of folks or groups come to see me at the same time so I need not repeat my general advice/feedback over and over again (and I am pleased a pair of students have already "booked" an appointment for 12noon on Tuesday).

Please use the comments to sign up for meetings in 30 minute blocks in the windows of time indicated above.  Thanks!

I am doing great, and I am touched by all the well wishes

and your homework for the weekend --- and for the rest of your life --- is to be the best version of yourself and to share love and clarity and charity with all those who are part of your family, however defined.

Hope to be watching a movie with you all soon.  Use the comment thread to make recommendations!

"Jury finds Justin Ross Harris guilty of murder in son's hot car death"

Though I am lately doing a horrible job staying "on-task" in class since the election, I am going to continue to try to do a much better job of having this blog stay focused on real criminal law cases that implicate so many of the issues (both doctrinal and practical) that we have been discussing throughout the semester (and that I will be testing you all on next month).  So, with that background, check out this new CNN report that has the same headline as the title of this post.  Here are excerpts (with a few points bolded for possible further discussions and some follow-up questions below):

A jury in Georgia on Monday found Justin Ross Harris guilty of murder in the 2014 death of his 22-month-old son, Cooper. Harris, 35, was accused of intentionally locking Cooper inside a hot car for seven hours. On that same day, Harris was sexting with six women, including one minor, according to phone records.

In addition to three counts of murder, Harris was found guilty of two counts of cruelty to children for Cooper's death, and guilty of three counts relating to his electronic exchanges of lewd material with two underage girls.

"This is one of those occasions where actions speak louder than words," Cobb County Assistant District Attorney Chuck Boring said after the verdict. "He has malice in his heart, absolutely."

The trial, which spanned almost five weeks, was moved to the Georgia coastal town of Brunswick from Cobb County, outside Atlanta, after intense pretrial publicity. It was briefly interrupted by Hurricane Matthew. The Glynn County jury of six men and six women deliberated for 21 hours over four days. Jurors considered the testimony of 70 witnesses and 1,150 pieces of evidence, including the Hyundai Tucson in which Cooper died in a suburban Atlanta parking lot.

Justin Ross Harris waived his right to testify in his own defense. Cobb County prosecutors argued that Harris intentionally locked Cooper inside his car on a hot summer 2014 day because he wanted to be free of his family responsibilities. Harris' lawyers claimed the boy's death was a tragic accident brought about by a lapse in memory.

It was June 18, 2014, when Harris, then 33, strapped his son into a rear-facing car seat and drove from their Marietta, Georgia, home to Chick-fil-A for breakfast, then to The Home Depot corporate headquarters, where he worked. Instead of dropping Cooper off at day care, testimony revealed Harris left him in the car all day while he was at work.

Sometime after 4 p.m. that day, as Harris drove to a nearby theater to see a movie, he noticed his son was still in the car. He pulled into a shopping center parking lot and pulled Cooper's lifeless body from the SUV. Witnesses said he appeared distraught and was screaming. "'I love my son and all, but we both need escapes.' Those words were uttered 10 minutes before this defendant, with a selfish abandon and malignant heart, did exactly that," said Boring in his closing argument.

The prosecution argued that Harris could see his son sitting in his car seat in the SUV. "If this child was visible in that car that is not a failure in memory systems," Boring argued. "Cooper would have been visible to anyone inside that car. Flat out." If Cooper was visible, Boring said, "the defendant is guilty of all counts." After the verdict, jurors told the prosecution that the evidence weighed heavily in their decision, Boring said.

Digital evidence showed that on the day his son died, Harris exchanged sexual messages and photos with six women, including one minor. State witnesses testified that Harris lived what prosecutors described as a "double life." To his wife, family, friends and co-workers, Harris was seen as a loving father and husband. But unbeknownst to them, Harris engaged in online sexual communication with multiple women, including two underage girls, had extramarital sexual encounters in public places and paid for sex with a prostitute.

Harris' defense maintained that his sexual behavior had nothing to do with Cooper's death. "The state wants to bury him in this filth and dirt of his own making, so that you will believe he is so immoral, he is so reprehensible that he can do exactly this," said defense attorney H. Maddox Kilgore during his closing argument. Kilgore argued that Cobb County police investigators focused only on matters that fit the state's theory and ignored all the evidence that pointed to an accident. "You have been misled throughout this trial," Kilgore told jurors.

The defense lawyer continued to maintain his client's innocence after the verdict. He said he plans to appeal the verdict. "When an innocent person is convicted there's been some breakdowns in the system and that's what happened here," Kilgore told reporters outside the courthouse. "From the moment we met Ross Harris we've never, ever once wavered in our absolute belief that he is not guilty of what he's just been convicted of."

The defense's key witness was Harris' ex-wife and Cooper's mother, Leanna Taylor. "Cooper was the sweetest little boy. He had so much life in him. He was everything to me," Taylor recalled, as she seemed to fight through tears. For two days, Taylor told jurors private details of her married life with Harris, saying they had intimacy problems and recounting Harris' struggles with pornography.

Marital struggles aside, Taylor described Harris as a "very involved" parent who loved their son. In her mind, she said, the only possible explanation was that Harris "forgot" Cooper and accidentally left him in the car. Boring said it did not matter that Taylor declined to speak with the prosecutor's office and testified for the defense. "As far as proving the case we did not need her," he told CNN.

Harris is expected to be sentenced December 5. He could face life without parole, though Boring said the prosecution will speak with the family to determine what kind of sentence to ask for.

A few unique "Berman-esque" follow-up questions:

1. Does this sad case remind anyone, at least a little bit, of my omission hypo involving poor little Josephine who drowned in the pool?

2. Should we surprised (a) that the defendant father did not testify in an effort to support his claim that "he didn't mean to do it," and (b) that the victim's mother did testify in an effort to support her husband's claim that this was an accident?

3. Should we be troubled (a) that the local prosecutor did not pursue the death penalty in a case in which the defendant was apparently convicted of having essentially boiled his 22-month son to death (perhaps because the murderer was white?), and (b) that the local prosecutor is now going to have his sentencing recommendation influenced by the victim's mother?

For more potential background on this case and others potentially like it (and with information about the evidence that helped prosecutors secure a guilty verdicts and that help account for why the defendant was convicted of three counts of murder even though he only killed one person), check out this (now dated) local video about the case:

Results of our in-class survey of what should (and should not) be covered by by modern rape provisions...

can be downloaded here:

Download 2016 rape offense survey results

As always, student reactions and feedback are welcome in the comments.  And those who have taken up the challenge of writing a new rape provision for Oliwood can/should perhaps learn a lot from the survey results about the views of your "constituency."

"Ballot Questions In Three States May Affect Death Penalty Nationwide"

The title of this post is the headline of this Nebraska NPR piece which talks reviews some of the issues we discussed in class on Wednesday and may prove helpful for anyone doing the death-penalty extra credit and/or making election predictions.

Class schedule and activities for week of October 17

Because I had way too much fun, and was disinclined to make you do any "real" work in your last class before the break (and also forgot to hand out the Joe Shooter facts in class), I think we now need to tweak my plans for the week of October 17.  Here is my new/latest thinking:

Monday, Oct 17:  Finally finish causation doctrines, preview rest of class (getting Part II of syllabus), introduce homicide unit, and explain context, value, roles for Joe Shooter role play.

Wednesday, Oct 19: Do Joe Shooter role play and discuss its many lessons

Friday, Oct 21:  Celebrate my birthday ... by discussing intentional homicides (Watson and Walker, pp. 346-363 in text), and then watching 53-minute long documentary on American prisons, and then happy hour.

Making sure you fully understand what the US Constitution, the MPC and the ORC have to say about "strict criminal liability"

As I mentioned in class on Friday, your understanding of lots of future discussions over all sorts of mens rea issues the rest of the semester will be greatly enhanced if you appreciate all the theoretical and practical nuances of the the debate we had over my idea of using strict criminal liability to deal with the serious harms of car accidents on wet roads.  I will review those nuances briefly on Monday, and you should already have a feel for how these nuances found expression in the Dillard case and how they inform the classic old case of Faulkner.  

Of greatest importance as we move this week from Berman hypotheticals to real laws, you should appreciate that our debate over my "crashing in the rain" proposal was fundamentally a debate about why, when, whether and how a legislature might be eager to impose "strict criminal liability" -- that is, why and when lawmakers might what to subject some persons to criminal liability for certain risky conduct or harmful results regardless of whether they meant to (or knew or even could reasonably foresee) that they were involved in risky conduct or might cause harmful results.  But as Dillard highlighted, the issues of strict criminal liability arise in court only after a legislature has passed a statute and then a case arises in which the facts make it important to figure out if and how a legislature actually intended to write a statute that does in fact impose "strict criminal liability."

As the title of this post indicates, the Supreme Court cases mentioned in the text, as well as key provisions of the Model Penal Code and the Ohio Revised Code, provided some critical "rules of interpretation" for helping to resolve if/when a statute should be understood to impose "strict criminal liability."  I hope you have already figured this out, and this is what I will try to make sure everyone understands before we get into Faulkner and Handout #2 (which we will certainly get to no later than Wednesday).

Working draft of bill for new ORC provision to criminalize "Crashing while driving in rain"

In order to facilitate further discussion by students/legislators concerning the bill I have proposed in the hope of reducing the harms that too often result from driving in the rain or on wet roads, I have now formally drafted/revised this bill language:

PROPOSED ORC Section 2999.99: Criminal Damaging While Driving in the Rain or on Obviously Wet Neighborhood and Express Roads

(A) No person shall cause any physical harm to any other person or to the property of another person while driving in the rain or while the road are obviously wet.

(B) Whoever violates this section is guilty of criminal damaging while DROWNER, a misdemeanor of the second degree.  If a violation harms property valued in excess of $5000, this offense is a misdemeanor of the first degree.  If a violation harms a person or property valued in excess of $50,000, this offense is a felony of the third degree.  If a violation causes serious harm to multiple persons or the death of any person, this offense is a felony of the second degree.

For further support for this proposal, consider these excerpts from a Science Daily publication from 2008 headlined "Bad Weather: Bad Drivers":

Researchers and statisticians found that 24% of all crashes occur during adverse weather conditions, including ice, snow, and rain.  The research showed that most drivers do not account for adverse conditions created by rainy weather.  They suggest slowing down and increasing the distance between traveling cars as a way to decrease the number of accidents in bad weather.

Each year, nearly 7,400 people are killed and over 670,000 are injured in crashes.  But not all wrecks are because of driver error.....  Rainy weather can wreak havoc on highways.  When a big storm rolls in, drivers tend to either slow down too much or not enough.  Drivers need to be wary of driving in any change in the weather.  A new study by transportation engineers reveals that nearly one-quarter of all crashes occur in bad weather conditions.  Most happen on wet pavement....

Unlike snow and ice covered roads that scare drivers into staying home or driving more carefully.  Many drivers don't consider rain as 'bad' weather, so more cars end up on wet roads, and drivers don't slow down enough to avoid serious accidents.

For more research on this front (which further supports the need to do whatever is necessary to try to make our roads safer during inclement whether in order to save more innocent lives), check out this related story headlined "Rain Is More Lethal For Drivers After A Long Dry Spell."  Here is its key fact based on a review of many years of roadway accident data:  "For any given day in the state, on average, each centimeter of precipitation increases the risk of fatal crashes by about 1 percent, [and] for nonfatal crashes, the increased risk is 11 percent."

Two "extra credit" answers noting provisions of Ohio law similar to the law struck down in Proctor

I am pleased to be able to report that two students have already sent me answer to my in-class question about Ohio criminal statutes structured very similarly to the statute deemed unconstitutional in Proctor:

1. Ohio Revised Code Section 2923.241 Hidden compartments in vehicles, Sub-section (B): “No person shall knowingly design, build, construct, or fabricate a vehicle with a hidden compartment, or modify or alter any portion of a vehicle in order to create or add a hidden compartment, with the intent to facilitate the unlawful concealment or transportation of a controlled substance.”  (Added student note: This all works on the theory that modifying your car to have a “hidden compartment” and possessing a “hidden compartment” are the same thing. But with my neophyte knowledge of the law and common reasoning I would say they probably are.)

2. Ohio Revised Code Section 2923.24 Possessing criminal tools, Sub-section (A): “No person shall possess or have under the person's control any substance, device, instrument, or article, with purpose to use it criminally.“

I was thinking/referencing the Ohio possessing criminal tools statute in class, but I am pleased a student also flagged the Ohio hidden compartment crime (which, if you look at the code sections, is really numbered as a kind of subsection/extrapolation on possessing criminal tools).

A few years ago, the Ohio Supreme Court issued a lengthy split opinion in Ohio v. Chappell, 127 Ohio St.3d 376, 2010-Ohio-5991 (December 15, 2010), on the meaning/reach of the term "criminally" in the Ohio possessing criminal tools statute.  (But, for lots of reasons, I think your time this week would likely be better spent re-reading Jones and Martin (or watching Dave Chappelle bits on YouTube) than reading Ohio v. Chappell.)

UPDATE: Another student just sent me another possible addition to the list of Proctor-like laws in Ohio:

Ohio Revised Code Section 2925.041 Sub-section (A):  "No person shall knowingly assemble or possess one or more chemicals that may be used to manufacture a controlled substance in schedule I or II with the intent to manufacture a controlled substance in schedule I or II in violation of section 2925.04 of the Revised Code."  (Added student note:  Thus, this statute is making it illegal to possess a chemical that otherwise would be legal to possess when the possession is coupled with the intent to use the chemical in the making of a controlled substance. This appears to be a nearly identical situation as was presented in Proctor. Then, right before prohibition when alcohol was viewed as extremely problematic, this coupling line of reason was used to aid the prevention of speakeasies. Today, ORC 2925.041 is using the coupling line of reason is being used to aid in the prevention of the manufacturing of what we consider problematic, drugs. Let me know if this was the answer you were looking for.)

Some background on drug dealers being criminally responsible for causing overdose deaths (and its possible theoretical justification)

Friday's in-class discussion and debate over the sentecing of (very fictional) Oliwood drug dealer Dan Schayes raised the interesting and controversial (very real) issue of whether persons involved in drug dealing can and should be held criminally liable for the death of a customer.  As the prosecution in the Schayes case noted, federal criminal law already speaks to this issue through a provision in 21 U.S.C. §841(b)(1)(C): it states that a convicted drug dealer involved with serious drug substances generally  "shall be sentenced to a term of imprisonment of not more than 20 years," but that such a drug dealer, "if death or serious bodily injury results from the use of such substance, shall be sentenced to a term of imprisonment of not less than twenty years or more than life."

Toward the end of September, we will looking at the basic substantive criminal law rules that generally apply for determining when and how a defendant can be held responsible for causing a result, and a few years ago this issue in federal law dealing with overdose deaths made it all the way up the US Supreme Court in the case of Burrage v. United States.  I would urge you all NOT to read the Burrage case closely (or at all) at least until we get to our causation discussions in class (though, at that time, you will be able to earn more extra credit for engaging with the Burrage SCOTUS ruling).

On the topic of earning credit, I am now pretty sure I have figured out how to get the comment section of this blog open, and that means every class member can earn some credit ASAP by using the comments here to share thoughts on what theory or theories of punishment might support holding drug dealers criminally liable for the deaths of their customers.  Notably, just a few weeks ago this lengthy and interesting AP article, headlined "Prosecution trend: After fatal OD, dealer charged with death," discussed this kind of criminal action as a growing trend.  And I stirred up some interesting commentary on the trend with this post about that AP article on my main blog titled "Should I be more troubled by drug dealers facing homicide charges after customers' overdose death?"

Results of Friday afternoon's survey....

can be found in the document for downloading below.  Perhaps it will help some of the drafting committees with their work this weekend.

Download 2014 sex offense survey results 

Clarifying my mistake(s) about Rhode Island laws

So today's class proved I should stick to focusing on Ohio and Oliwood (MPC) laws, because clearly I am out of my element when I suggest I know about Rhode Island law.  I wrongly asserted that Rhode Island had not changed its law since it was interpreted in Lima, but the text of the statute (and a little post class research) proved I was flat-out wrong. 

Here is the complete and correct story via a subsequent Rhode Island ruling, State v. Sivo, 925 A.2d 901 (R.I. 2007):

In Lima, the defendant was convicted of first-degree child abuse for lowering a small child into a bathtub of scalding water, causing him to suffer permanent disfigurement or disability....  Because the child abuse statute in place at the time was entirely devoid of words of intent, we adopted a standard similar to that set forth in the Model Penal Code (MPC), requiring that “[w]hen the culpability sufficient to establish a material element of an offense is not prescribed by law, such element is established if a person acts purposely, knowingly or recklessly with respect thereto.” Lima, 546 A.2d at 772 (quoting Model Penal Code, § 2.02(3) at 226 (A.L.I. 1985))....

In the years after Lima, the General Assembly enacted numerous amendments to the first-degree child abuse statute.  What is most significant to the instant litigation is that, in 1995, the General Assembly added words of intent, prescribing punishment only for those individuals who “knowingly or intentionally” inflict a serious bodily injury upon a child.  These statutory words of intent effectively superseded the MPC-inspired words of intent we adopted in Lima..... [O]ur concern in Lima was the possibility that the jury convicted the defendant without finding that she had acted with a mens rea.

Id. at 913-14.  My sincere apologies for messing this up so badly in class today, and thanks to you all (especially Jason) for making sure I now got this right.

Statistical support for the need to use criminal law to reduce rain-related traffic accidents

Because I surmised too little support for my proposed driving-in-the-rain criminal liability statute, I thought it would be useful to highlight some key statistics drawn from this webpage of the U.S. Department of Transportation (with my emphasis added):  

On average, there are over 5,870,000 vehicle crashes each year.  Twenty-three percent (23%) of these crashes — nearly 1,312,000 — are weather-related.  Weather-related crashes are defined as those crashes that occur in adverse weather (i.e., rain, sleet, snow, fog, severe crosswinds, or blowing snow/sand/debris) or on slick pavement (i.e., wet pavement, snowy/slushy pavement, or icy pavement).  On average, 6,250 people are killed and over 480,000 people are injured in weather-related crashes each year.

The vast majority of most weather-related crashes happen on wet pavement and during rainfall: Seventy-four percent (74%) on wet pavement and forty-six percent (46%) during rainfall.  A much smaller percentage of weather-related crashes occur during winter conditions: Seventeen percent (17%) of during snow or sleet, twelve percent (12%) occur on icy pavement and fourteen percent (14%) of weather-related crashes take place on snowy or slushy pavement.  Only three percent (3%) happen in the presence of fog.

I realize that my proposed driving-in-the-rain criminal law will not prevent most weather-related crashes (just like I know that existing drunk driving and texting-while-driving criminal laws do not prevent lots of other crashes). But if this proposed new criminal law just reduced the number of weather-related crashes by even just 10%, it would likely save dozen of innocent lives and reduce by hundreds the number of Oliwood citizens injured on the roadways each year.

If you remain disinclined to support my proposed driving-in-the-rain criminal liability statute — which, to be clear, does not call for punishing people for driving in the rain, but only for crashing in the rain — I hope you will be able to explain in some detail why you do not share my interest in using the criminal law this way to help achieving an important public safety mission.

Interesting prior posts from prior years discussing theories of punishment

To proidve still more proof that a lot of interesting materials (and interesting student commentary) can be found by mining the archives of this blog, I have mined the archives to provide these links to posts from prior years discussing the theories of punishment we are (too) quickly reviewing this week:

From 2010:

• Real criminal law "purposes" statutes and theories of punishment
• Does the text or spirit of the US Constitution favor any particular theory of punishment?

From 2013:

• Getting a running start on our discussion of punishment theory, pot prohibition and Parker consumption
• Any burning questions about general punishment theory (or desires to dig deeper)?

I realize that I have now already provided two links to the same post asking if the US Constitution favors any particular theory of punishment, but that perhaps is a fitting way to help us getting a running start on our coming discussion of Graham v. Florida.  

Relaxation, celebration and reasons to feel lucky Berman Crim Law 2013 is over

If memory serves, I believe 1Ls finish up their second exam today, and I want to encourage everyone to take a deep breath after the exam and enjoy a well-deserved afternoon of relaxation.  No matter how much you feel you need to do to study for your final exam next week, taking at least a few well-earned hours off to recharge your batteries is always a wise and sensible exam-time strategy.

I will be in my office at Moritz after about 3pm this afternoon, and I would be happy and eager to celebrate (and toast) your achievements so far.  In fact, because I have lots of (non-pressing) work to do, I could be readily lured away from my office to cover a round of celebratory drinks just about anytime late Friday afternoon.

Last but not least, and to have a little fun with a Daft Punk lyric, even if you have been up all night 'til the sun, and up all night to study some, you should feel you've gotten lucky that my exam is already over.  That is because, if my exam was still on tap, I would have a really hard time resisting adding a question concerning some of the amazing real-world crim law stories from this week covered on my other blog in these posts:

• Texas tough means probation for teen who killed four and injured more while drunk driving?

• Killer bride in Montana takes a plea deal to second-degree murder just before jury gets case

• How can and should Ohio's justice system deal with merciful elderly aggravated murderer?

Especially because I hear some students are eager to pursue the idea of a Cordle-inspired e-book, the first story linked above provides a sad and useful reminder that issues relating to the the appropriate prosecution and punishment for deadly drunk drivers are sure to be timely for many years to come.

Congrats again on finishing Crim Law version 2013 and keep watching this space...

for announcements about my willingness to continue to accept extra credit submissions (which extends at least until Dec. 18 and maybe longer), and for announcements about possible (poorly paid) research opportunities during the break (which will not start until Dec. 18, at the earliest), and for discussion of whatever other topics might still float my boat.

Thanks again for a wonderful semester (and good luck grabbing all the As in the other exams with the rest of your large section)!

"The Case of the Speluncean Explorers" ... as it might be resolved in Ohio

I hope everyone enjoyed Wednesday's role play experience and also learned a lot about the operation of duress and necessity doctrines in Oliwood under the (unique) terms and structure used by the Model Penal Code.  We will be wrapping up discussion of these doctrine in our remaining classes before the Thanksgiving break, but we will not be talking any more about Dudley & Stephens.  Fortunately, if folks remain engaged by the legal and/or philosophical issues raised by the Dudley & Stephens case, there are lots of wonderful additional readings I can recommend.

A "classic" law professor engagement with the issues raised in Dudley & Stephens appeared in a Harvard Law Review article published 65 years ago.  The Case of the Speluncean Explorers by Lon Fuller is one of the most famous law review articles ever written, and the start of this Wikipedia article highlights why it is worth your time and attention:

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.

Fuller's account has been described as "a classic in jurisprudence" and "a microcosm of [the 20th] century's debates" in legal philosophy, as it allowed a contrast to be drawn between different judicial approaches to resolving controversies of law, including natural law and legal positivism.

Joyfully, for a wonderful, shorter and more recent consideration of these issues, one member of the class had the great initiative to imagine how a modern-day case of this nature might get resolved in Ohio. That student has graciously 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

Sad example from Michigan of an honest but UNreasonable use of deadly force?

As we wrap up our discussion of self-defense doctrines this week, we will give particular attention to how the MPC and Ohio deal with uses of deadly force when a defendant may have honestly but unreasonably believed force was needed for self defense.  Sadly, there is a new case from Michigan involving the death of a young woman that provides a set of (still unclear) facts that may allow us to probe effectively modern doctrines and policy debates.  This USA Today article from last week, headlined "Family wants answers in shooting of woman seeking help," provides these sad details:

Police say a homeowner told investigators his shotgun accidentally discharged, shooting a 19-year-old Detroit woman to death as she stood on the porch of his home early Saturday.

Members of 19-year-old Renisha McBride's family said they believe the African-American woman was racially profiled by the homeowner.  They said McBride, whose cellphone had died, had gone up to the house on Outer Drive seeking help after she was involved in an auto accident early Saturday morning.

"This man's claiming — believed the girl was breaking into the home. And he's also saying the gun discharged accidentally," Lt. James Serwatowski, chief detective, said Thursday.

Police are also countering the family's account that McBride was shot in the back of the head with a shotgun as she turned to leave.  The family said she had gone to the house seeking help after being involved in a car accident several blocks away. "This girl was not shot in the back of the head while leaving the porch," Serwatowski said "I don't know where the family is getting this.  She was shot in the front of the face, near the mouth."

"I know the family is anxious to see this man (the alleged shooter) charged, but the prosecutor's office is telling us they want a lot more information before they make a decision," Serwatowski said.

The Wayne County Prosecutor's Office reiterated Thursday that it is awaiting further investigation by Dearborn Heights police before deciding whether any criminal charges will be authorized in the case.   "I'll confirm that she was in an accident in Detroit and that she left the accident scene, and then some hours transpired" before the shooting, Serwatowski said.

Serwatowski said the shooting occurred about 3:40 a.m. and the accident happened at about 1:30 a.m.  He declined to say what police believe McBride was doing before and after the accident. The homeowner's .12-gauge was seized by police and the Michigan State Police crime lab is analyzing it, Serwatowski said....

"Black life is not valued in America, not worthy, not respected," said Detroit activist Yusef Shaker.... "Here was a woman who was seeking help from potential danger and her life was taken. ... It's a Trayvon Martin case all over again."

"Why didn't he call 911?" asked Bernita Spinks, 48, an aunt of McBride. "That's what I want to know. ... It's racial profiling." In McBride's case, Spinks said: "He could have called the police. She wasn't in the backyard. She was at the front door knocking ... that man had the time to look out his window."

McBride's family said they were told the house was about four blocks away from where the accident occurred. Spinks said McBride had been driving her 2001 white Ford Taurus when she struck another car, parked and walked to find help. "She was disoriented. She was scared. And this is what she got, knocking on a door," Spinks said. "All I want is justice for Renisha. It makes me enraged." The area where the shooting took place is a mix of residential and business.

Grieving family members gathered Wednesday night at the house in northwest Detroit where McBride lived with her grandmother, mother and her 22-year-old sister. Her parents were overcome with grief and unable to speak to a reporter, Spinks said.  But all shared outrage over what happened.

A graduate of Southfield High School, McBride was known as a friendly person who worked hard, Spinks said. McBride recently got a job at the Ford Rouge plant in Dearborn on the inspection line, she said. "She was sweet," Spinks said. "She didn't get into trouble."

In part because of the suggestion that the shooting here was accidental, this case may end up being more about whether and what degree of homicide may be in play as much as it is about use of defense force. But, for class discussion purposes, I plan to try to work through how Ohio and the MPC would handle this case if the shooter/potential-defendant were to readily admit that he purposely shot through the door because he honestly believed that his life was threatened by the noises he heard on the porch in the middle of the night.

To the extent folks are eager to discuss this case before we get to class on Wednesday, perhaps we can/should start by debating in this space some questions that I already have:

1. Why has this case not (yet?) received media attention anywhere comparable to what happened in the Trayvon Martin shooting?

2. Should local prosecutors convene a grand jury to investigate this shooting rather than just rely on the police investigation?

3. Does this kind of cases make you more or less comfortable with the traditional "castle doctrine" which provides that there is never a duty to retreat before using deadly force when one is in his own home?

A fascinating judicial fight over federal rape provision's mens rea requirements

Though I want to put our rape discussion in the rear-view mirror so we can turn fully to defenses, a remarkable (and very lengthy) ruling by the full Eighth Circuit today in United States v. Bruguier, No. 11-3634 (8th Cir. Nov. 5, 2013) (available here), all but demands posting because it covers issues we have discussed throughout the semester.   Here is the unofficial summary of the 49-page ruling:

In order to establish a violation of 18 U.S.C. Sec. 2242(2), the government must show not only that the victim was incapacitated but that the defendant knew the victim was incapable of appraising the nature of the conduct or physically incapable of declining participation in or communicating unwillingness to engage in the sexual act; here the failure to give defendant's proposed instruction on this element deprived him of his defense that he did not know the victim was incapacitated or otherwise unable to deny consent; as a result, defendant's conviction under section 2242(2) must be reversed and the case remanded for a new trial.... Riley, Chief Judge, with Bright, Circuit Judge, concurring. Murphy,with Bye, Colloton, Gruender and Benton, Circuit Judges, dissenting.

Here is the rape provision of federal law that has the Eighth Circuit fighting over what mens rea is required for conviction:

Whoever, in the special maritime and territorial jurisdiction of the United States . . . knowingly— . . .

(2) engages in a sexual act with another person if that other person is—

    (A) incapable of appraising the nature of the conduct; or

    (B) physically incapable of declining participation in, or communicating unwillingness to engage in, that sexual act;

or attempts to do so, shall be fined under this title and imprisoned for any term of years or for life. § 2242.

I neither urge or expect students to read this whole ruling.  But the three distinct opinions are truly fascinating, and I hope they make a lot more sense to you than they would have just 3 months ago before being in our class.

Seeking (informed or uninformed) thoughts on upper-level criminal courses at Moritz

As we shift in to the final weeks our time together, I am eager to hear thoughts from 1L students about what upper-level courses in the criminal law and procedure arena might be of interest to you. 

As you may know (and may be very glad to hear), you are not required to take any more criminal law courses after our class together.  Because I think it wise and useful to give law students considerable freedom to create their own professional paths ASAP, I am glad no additional criminal law coverage is required at Moritz for graduation.  (I believe there are at least a few law schools that require a basic course in criminal procedure as well as a course in the basics of substantive criminal law.)  That said, because I think it wise and useful to give law students considerable freedom to create their own professional paths, I am eager to try to ensure that the Moritz upper-level curriculum includes a broad array of criminal courses that might be of interest and/or useful to students.

There are two upper-level criminal procedures courses that will always get offered every year at Moritz, in part because they are important and valuable course even for law students largely disinterested in ever practicing criminal law: the CP-Investigations course covers police practices/constitutional privacy issues; the CP-Adjudication course covers prosecutorial practices/trial rights.  But what else gets offered often depends on the interests and availability of the Moritz crim law faculty (e.g., when I first came to Moritz, I used to teach sentencing and/or death penalty courses or seminars every year, but more recently I have been more regularly teaching various skills courses and/or developing "hot topics" seminars on matters like the Second Amendment and marijuana laws and reforms).

Believe it or not, it is almost time for the faculty to start indicating what courses they would like to teach next year.  Thus this post, as I am distinctly interested in hearing from you all (and lots of others) concerning what kinds of criminal law, procedure and policy issues you may not be eager to study further in the years ahead.  There are soooooo many issues that merit in-depth study --- including ones other Moritz faculty know especially well ranging from white-collar crime to race and the criminal law to theories/doctrines of defenses to the war on drugs to all sort of other stuff I just barely get a chance to mention in class --- and I have been wondering this morning if folks in our class have started developing a real sense of what criminal topics have really come to pique your interests.

"Rape acquittals spur calls for law change: Nelson Bernard Clifford has been cleared by four juries since 2011"

The title of this post is the headline of this notable Baltimore Sun article which gets to the heart of some of the issues we have been reviewing this week.  Here are excerpts:

A string of acquittals for a man accused of raping several Baltimore women has renewed a debate over whether the law should be changed to help prosecutors secure sex offense convictions.

Nelson Bernard Clifford, 35, has been cleared in four trials in Baltimore City Circuit Court since 2011. Each time his accusers have testified, but Clifford has said in court that all his encounters were consensual.

Prosecutors have attempted in various ways to show juries a pattern, but have been stymied by city judges, who have rejected attempts by prosecutors to join separate cases together, or to call witnesses to testify about assaults other than the one being tried. State law protects defendants from having to face evidence about their character or any previous crimes in which they were implicated.

Congress changed the federal rules for rape cases two decades ago in an attempt to make it easier to secure convictions. Several states have followed suit. Maryland is not among them.

Marilyn Mosby, who plans to challenge Baltimore State's Attorney Gregg L. Bernstein in next year's Democratic primary, has raised the Clifford cases as an issue. She said Tuesday morning that there is a "glaring need" for the General Assembly to change the rules. "Once a jury is blocked from hearing about somebody like Clifford's past convictions, people like him are free to claim that the sexual assault was consensual, which significantly diminishes the prosecutorial impact of DNA evidence," Mosby said.

A spokesman for the state's attorney said Bernstein would support a change in the law. Spokesman Mark Cheshire pointed out that in the most recent case against Clifford, prosecutors sought to tell jurors about other allegations against him. Prosecutors attempted to discuss eight other incidents in which they say Clifford broke into a home and sexually assaulted a woman, according to court filings. They wrote that the evidence would show Clifford had a plan that he executed repeatedly. "Under the existing evidentiary rules other criminal evidence is admissible in certain circumstances," Cheshire said. "We believe other crime evidence was admissible in the Clifford case but we were ultimately denied."...

Russell A. Neverdon Sr., a private defense attorney who also has said he plans to run against Bernstein, said the existing rules, which allow other allegations to be raised under limited circumstances, are sufficient. "As a prosecutor you have an arsenal that's already there," Neverdon said. "You've just got to make sure it's a solid argument."

But Lisae C. Jordan, the executive director of Maryland Coalition Against Sexual Assault, said Maryland's judges err on the side of protecting defendants. She said they do not give rape victims a fair chance at winning justice in the courts. "It's all a question of balance, and unfortunately, right now we don't have balance at all," Jordan said. "We completely favor the defendant."

Congress rewrote the federal rules on evidence in rape cases in 1994, over the objections of judges and defense attorneys. The General Assembly has considered several bills that would make it easier to introduce evidence of other attacks in sexual abuse cases, but only those in which the victim was a child. None have passed.

State Sen. Lisa A. Gladden, the vice chairwoman of the Senate Judicial Proceedings Committee, said that the legislature should not make changes to the rules on the basis of a single "bad case." The Baltimore Democrat, who is a defense attorney, warned that such changes could spill over into other types of offenses and undermine defendants' rights. "I don't like messing around with the rules of evidence," Gladden said. "If you can't get a conviction, fix your case."

Could Matthew Cordle and his video have actually saved lots of lives in Ohio?

The question in the title of this post was my class-specific reaction to this report in today's Columbus Dispatch headlined "Ohio traffic deaths could hit record low." The article begins this way:

With some luck, Ohio could dip below 1,000 traffic fatalities this year for the first time since the state began keeping records.  The State Highway Patrol says there were 823 traffic deaths through Monday, the lowest number since 2011, when the year-end toll was 1,016.

Any lingering/burning questions about homicide (e.g., how would Joe Shooter be prosecuted)?

Especially because lots of additional doctrines and ideas are going to come at you fast over the next few weeks, right now would be an especially good time to review the doctrines and lessons of the homicide unit that has occupied our energies over the last few weeks.  Folks with any burning questions or concerns can bring them up in the comments to this post (or, of course, contact me in person).

Among the ways students might very usefully review this until would be to go back to the Joe Shooter facts and imagine how they would respond to those facts on an exam if I were to ask what possible charges might be brought against Shooter by an Ohio and/or Oliwood prosecutor and what challenges would such a prosecutor face in making various charges "stick."

Matthew Cordle to learn his Ohio sentencing fate today ... and student research provides nationwide perspectives

This new AP article, headlined "Victim's daughter to speak at sentencing for Ohio man who confessed in video after fatal crash," reports on some of what can be expected in today's high-profile state sentencing case:

The daughter of a man killed by a drunken driver who later confessed his crime in an online video was expected to offer her first in-depth comments about the impact of the accident on her and her family. Angela Canzani was scheduled to appear Wednesday in Franklin County Court at the sentencing for Matthew Cordle. In a brief TV interview last month, she said Cordle's YouTube confession, viewed more than 2.2 million times, has taken the focus off her father, 61-year-old Vincent Canzani.

Cordle, 22, faces eight years in prison, a $15,000 fine and loss of driving privileges for life. He pleaded guilty last month to aggravated vehicular homicide and driving a vehicle under the influence of alcohol. His blood-alcohol level was more than twice the legal limit of 0.08.

Franklin County Prosecutor Ron O'Brien is pushing for the maximum, saying Cordle drove that night despite knowing he had a history of blackouts after heavy drinking. O'Brien also says the average sentence for similar crimes in the central Ohio county is about eight years. O'Brien also cites Cordle's refusal to submit to a blood-alcohol test after the accident as justifying the maximum. Prosecutors had to obtain a court order to do the test.

Cordle's attorneys have asked Judge David Fais for a sentence well below the maximum. They say that would send a message about the importance of taking responsibility for a tragedy.... As prosecutors waited for lab results for alcohol and drugs, Cordle decided to forego the usual court process and plead guilty as soon as he was charged. His attorneys agreed with his plan, but against their advice, he also made an online video confessing to the accident.

Meanwhile, as everyone prepares for this real sentencing, nearly 20 students completed research on how they believe the Cordle case could and would be handled in a variety of states around the country.  Three students focused specifically on Ohio, while lots of other states got covered in submissions, too.  I have combined all the submissions in one big (24-page!) Word document for downloading here: 

Download Updated Cordle Multi-State Compilation for Class Blog

UPDATE:  As I think I had roughly predicted, at sentencing today Matthew Cordle got neither the maximum nor the minimum sentence provided by law, but he still got a stiff state prison term closer to the max than the min.  Here is a CBS News report:

Matthew Cordle, the Ohio man who videotaped himself confessing to killing a man while he was driving drunk has been sentenced to 6 1/2 years in prison and a lifetime loss of driving privileges.

Cordle, 22, had pleaded guilty to killing Vincent Canzani of suburban Columbus in a wrong-way crash on June 22. In his video, which has drawn more than 2 million hits on YouTube, Cordle says that although he may have been able to "get off" or "get a reduced sentence," he didn't want to "dishonor Vincent's memory by lying about what happened."...

However, last week Cordle's attorneys asked Judge Davie Fais to sentence Cordle to less than the eight-and-a-half year maximum allowable for the crime. Fais sentenced Cordle to six months for driving under the influence of alcohol and six years for aggravated vehicular homicide. The judge revoked his driving privileges for life, which the Associates Press reports is required by state law.

At the sentencing, the judge read from letters he received from people whose lives were affected by drunk driving and at one point said he would like to see Matthew's face on a billboard about the dangers of drunk driving. One of Cordle's attorneys asked the judge to consider that "a lot of people could learn a lesson from the message Matthew has sent," and that his video's message of responsibility would have wide-ranging positive effect on others.

Angela Canzani, the victim's daughter, spoke at the sentencing, saying she hoped Cordle got the maximum amount of time in prison for killing her father. "My father got a death sentence and did nothing wrong," said Canzani. "After eight and half years, Matthew Cordle will still have his whole life ahead of him, my father is never coming back." She also said that she did not want the court to send the message that you can "hit and kill someone," then apologize and "get leniency."...

Matthew Cordle was the last person to speak before the judge pronounced his sentence. He read his statement from a yellow piece of paper that had been folded into a pocket on his khaki prison uniform shirt. "The true punishment is simpy living, living with the knowledge that I took an innocent life," said Cordle. "That pain and weight will never go away."

ANOTHER UPDATE: Elizabeth has been having a hard time getting her comments to post, and she sent me this comment that I thought should be placed up here:

After reading all the student contributions here are the *rough* recommendations/predictions coming from the states:

• Arizona: Manslaughter 3-10 years

• California: Gross Vehicular Manslaughter

• Guam: No Consensus

• Indiana: Vehicular Homicide

• Kansas: Second-Degree Murder

• Kentucky: Second-Degree Murder

• Michigan: More severe than Ohio

• Nevada: DUI Causing Injury or Death, 2-20 years

• New York: More severe than Ohio

• North Carolina: Felony Death by Vehicle, Less than 64 months

• Oliwood: Murder/Manslaughter, Manslaughter, 10 years

• South Carolina: Felony DUI - 6-10 Years

• Texas: Intoxication Manslaughter, 2-20 years

• Wisconsin: Homicide by intoxicated Use of a Vehicle, Class D Felony

An interesting note was repeated throughout discussion of whether the act of drunk driving actually constitutes extreme indifference to the value of human life, replicated throughout many state statutes, including Kansas, Kentucky and Arizona, in order to brand Cordle a murderer. From the viewpoint of the victim and the prosecution, it seems far easier to say yes. From the viewpoint of a perpetrator, I highly doubt they would admit, to themselves or otherwise, that that "indifference" is what consciously went through their mind. This caveat could be open to endless debate, and the ability to prove this beyond a reasonable doubt to a jury being highly dependent on the "likeability" of the perpetrator.

Comments seem to be working again, so let's start felony murder (repeal?) discussion

I am pleased to report that, at least on my laptop, the comment function appears to be operational for this blog again.  Inspired by that great reality, I thought it would be useful to begin here a discussion of the always controversial topic of felony murder (and its JV version, misdemeanor manslaugher). 

Specifically, drawing on an amusing little editorial complaining about an Illinois decision about the doctrine from a few years ago, I wonder if I could build support among students to seek to abolish both felony murder and misdemeanor manslaugher doctrines in Ohio.  To begin, I urge everyone to read this commentary, headlined "It's a Bird, it's a Plane, it's Felony Murder." Then, based on the points made therein, I wonder if anyone would support a proposal to repeal Ohio Revised Code Subsection 2903.02(B) and all of Ohio Revised Code Section 2903.04.

Legal highlights (via Wikipedia) after The Station nightclub fire, a variation on the Cocoanut Grove fire

Wikipedia has this decent entry on the fire that led to Welasky's trial and conviction, although real historians can and should take the time to do more research on the story if so interested.  And I mention the most recent modern variation on these sad facts, which happened in Rhode Island in 2003 at The Station nightclub.  Here are the basic facts of that 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....

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.

Working draft of bill for new ORC provision to criminalize "Damaging while driving in rain"

In order to facilitate the consideration by students/legislators concerning a new bill I have proposed in the hope of reducing the harms that too often result from driving in the rain, I have formally drafted some bill language:

PROPOSED ORC Section 2999.99: Criminal Damaging While Driving in the Rain

(A) No person shall cause any physical harm to any other person or to the property of another person while driving in the rain.

(B) Whoever violates this section is guilty of criminal damaging while driving in the rain, a misdemeanor of the second degree.  If a violation harms property valued in excess of $5000, this offense is a misdemeanor of the first degree.  If a violation harms a person or property valued in excess of $50,000, this offense is a felony of the third degree.  If a violation causes serious harm to multiple persons or the death of any person, this offense is a felony of the second degree.

This 2008 report from Science Daily, headlined "Bad Weather: Bad Drivers" highlights the impetus and importance of this kind of proposed legislation.  Here excerpts (with key points highlighted in bold):

Researchers and statisticians found that 24% of all crashes occur during adverse weather conditions, including ice, snow, and rain.  The research showed that most drivers do not account for adverse conditions created by rainy weather.  They suggest slowing down and increasing the distance between traveling cars as a way to decrease the number of accidents in bad weather.

Each year, nearly 7,400 people are killed and over 670,000 are injured in crashes.  But not all wrecks are because of driver error.....  Rainy weather can wreak havoc on highways. When a big storm rolls in, drivers tend to either slow down too much or not enough. Drivers need to be wary of driving in any change in the weather.  A new study by transportation engineers reveals that nearly one-quarter of all crashes occur in bad weather conditions.  Most happen on wet pavement....

Unlike snow and ice covered roads that scare drivers into staying home or driving more carefully.  Many drivers don't consider rain as 'bad' weather, so more cars end up on wet roads, and drivers don't slow down enough to avoid serious accidents.

For more research on this front (which further supports the need to do whatever is necessary to try to make our roads safer during inclement whether), check out this related story headlined "Rain Is More Lethal For Drivers After A Long Dry Spell."  Here is a key fact  based on a review of many years of roadway accident data:  "For any given day in the state, on average, each centimeter of precipitation increases the risk of fatal crashes by about 1 percent, [and] for nonfatal crashes, the increased risk is 11 percent."

Any burning questions about general punishment theory (or desires to dig deeper)?

Though we will keep talking about general punishment theories this week and next, I felt pretty good that everyone (or at least everyone who spoke up in class) is feeling okay about the basic features, and also the basic pros and cons, of classic utilitarian and retributive theories of punishment.  But if folks have burning questions and/or worries about these important basics, feel free to use the comments to raise them.

Relatedly, if any philosopher-type folks want to read more about so-called "mixed" or "hybrid" theories that try to figure out ways to embrace the "best" parts of both classic utilitarian and retributive theories of punishment, here are links to two notable papers that give it a shot:

• Paul H. Robinson & John M. Darley, The Utility of Desert
• Richard S. Frase, Limiting Retributivism: The Consensus Model of Criminal Punishment

I highly encourage students NOT to read these linked papers unless and until they have done evrything else they want/need to do first (for classes and for themselves).  But I thought it would be useful to showcase that smart professors have spent a lot of time writing lots of pages with lots of words to explain how they think they have figured all this out.  And I could link to, literally, hundreds of additional examples.

Getting a running start on our discussion of punishment theory, pot prohibition and Parker consumption

Though I was grateful to hear everyone in our class speak (and report their favorite law-related movies), I was disappointed my own excessive blathering meant we did not start talking about how theories of punishment can and should inform debate over (1) whether and why the criminal law should condemn and harm persons who grow marijuana, and (2) whether and why the criminal law should condemn and harm the persons who murdered Richard Parker.   Though we will take these issues up at lengthy in our class on Wednesday, I would love to get a running start on these topics via comments to this post.

In order to connect this debate with key punishment theory concepts and terms, I would be especially excited is student comments focused at least somewhat on which theories of punishment seem to provide the best (or perhaps the worst) justifications for condemning/harmimg persons who grow marijuana and/or the for persons who murdered Richard Parker.

And, to provide a little Ohio criminal law context for your extra engagement, let me quote the first part (and link to the full text) of Ohio's basic criminal statutes covering these offenses:

Ohio Revised Code Section 2903.01: Aggravated murder.

(A) No person shall purposely, and with prior calculation and design, cause the death of another...

Ohio Revised Code Section 2925.04: Illegal manufacture of drugs - illegal cultivation of marihuana - methamphetamine offenses.

(A) No person shall knowingly cultivate marihuana....

In addition, if you are looking for some more "current events" which can allow you to think about theories of punishment, check out this notable New York Times op-ed from today's paper headlined "Graying Prisoners."  See if you can identify how theories of punishment are (indirectly?) used by the author of this commentary in the main argument of the commentary.

What can/should the US learn about criminal procedure from three of its historic overseas allies?

Other than the UK, the three most important and historic overseas allies of the United States have been France, Spain and Israel.  These also happen to be the countries discussed in the last three student papers to be posted, which come courtesy of Ren, Blaise and Alex, respectively.

Below I have uploaded the mid-term papers of Ren, Blaise and Alex, and I highly encourage everyone to read these papers closely and then share comments concerning the question in the title of this post.

Download Hirsch on Israel

Download Katter on Spain

Download Unnithan on France