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September 19, 2023

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

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

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

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

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

September 19, 2023 in Current Affairs | Permalink | Comments (0)

September 09, 2023

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.

September 9, 2023 in Class reflections, Current Affairs, Notable real cases | Permalink | Comments (0)

September 05, 2023

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

To start our exploration of mens rea issues, and also to facilitate a focused conversation concerning a legislative proposal seeking to reduce roadway harms, here is some background information about dangerous realities on our roads and highways. First, from the Federal Highway Administration (data from 2007 to 2016, with emphasis added):

On average, nearly 5,000 people are killed and over 418,000 people are injured in weather-related crashes each year. The vast majority of most weather-related crashes happen on wet pavement and during rainfall: 70% on wet pavement and 46% during rainfall. A much smaller percentage of weather-related crashes occur during winter conditions.

And from the car press (in 2019), under the headline "Why Driving In The Rain Is Way More Dangerous Than You Think" (with emphasis added):

[A] new study has shown that even light rain can significantly raise the chances of a fatal car crash. Published in the Bulletin of the American Meteorological Society..., the study asserts that rain, snow, and ice increases the risk of fatal car crashes by a massive 34 percent.  Led by Scott Stevens, a data analyst and meteorologist at the North Carolina Institute for Climate Studies, he and his colleagues reviewed 125,012 deadly crashes in the Lower 48 states between 2006 and 2011, factoring in the number of cars on the road to calculate the risk of a fatal accident.

It turns out that even light rain, which Stevens refers to as a "a drizzle, just at the point where you might consider taking an umbrella out," raises the risk of a fatal crash by 27 percent.  While people tend to become cautious in heavy rain, Stevens believes that "they under-appreciate the risk of light rain," with the weather radar data showing an increase in fatal crashes even in rain of less than one-tenth of an inch per hour.  Moderate rain brings the risk of a deadly accident up to 75 percent greater than in clear weather, while in heavy rain the rate skyrockets to two-and-a-half times more likely.

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

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

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

Senator JoJo Beesafer has been deeply concerned about traffic safety issues ever since her college days after one of her best friends was killed by a drunk driver who was speeding and swerving on a country road during a summer thunderstorm.  Senator Beesafer has sponsored a number of bills seeking to increase punishment and enforcement efforts for driving under the influence.  Senator Beesafer has now drafted a novel new bill responding to concerns for the many thousands of people economically and/or physically harmed by crashes from persons driving in the rain without being aware of the risks (and/or not being sufficiently cautious):

PROPOSED CODE Section 2999.99: Criminal Crashing While Driving in the Rain

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

(B) Whoever violates this section is guilty of criminal crashing while driving in the rain, a misdemeanor of the second degree.  If a violation causes any physical harm to any person or causes property damage in excess of $10,000, this offense is a misdemeanor of the first degree.  

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

September 5, 2023 in Course materials and schedule, Crime data, Current Affairs | Permalink | Comments (0)

October 22, 2022

Ohio's major (and intricate) sex offense provisions

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

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

Ohio Revised Code Section 2907.02 Rape:

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

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

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

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

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

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

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

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

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

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

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

ORC 2907.03 Sexual battery.

ORC 2907.04 Unlawful sexual conduct with minor

ORC 2907.05 Gross sexual imposition

ORC 2907.06 Sexual imposition

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

October 22, 2022 in Course materials and schedule, Current Affairs | Permalink | Comments (0)

October 06, 2022

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.

October 6, 2022 in Class reflections, Current Affairs, Recommended scholarship | Permalink | Comments (0)

November 03, 2021

A few of many notable self-defense headlines and stories

As I mentioned in class, a quick news search on the internet turns up lots and lots and lots of stories about self defense claims by a variety of folks in a variety of settings.  Here is a recent sample (with no expectation that anyone checks out more than a few of these news accounts):

From Florida, "Prosecutors offer probation to Valrico man in deadly ‘Stand Your Ground’ shooting on basketball court"

From Georgia, "‘A fraught jury selection’: Impartial minds tough to find in Arbery case"

From Indiana, "Murder suspect testifies she killed Domino's Pizza deliveryman in self defense"

From Pennsylvania, "Pa. Mom Pleads Self-Defense to Charges That She Stabbed a Man in the Heart After Argument Over Food"

From Texas, "Texas homeowner mounts 'stand your ground' defense after killing Muslim man who pulled into his driveway"

From Vermont, "Self-defense or violent rage? Judge agrees to release murder suspect."

From Washington, "Murder suspect in McDonald’s parking lot shooting tells jurors it was self defense"

From Wisconsin, "Kyle Rittenhouse trial: When can you shoot as self-defense?"

From the not-so-friendly skies, "SoCal Man Charged In Assault on Flight Attendant Claims Brain Injury, Self-Defense"

The last of these articles provides an interesting variation on the legal and conceptual issues that we will discuss in the battered woman cases, namely how should the "objective reasonable person" standard used in assessing self defense claims incorporate the unique "subjective" features of an individual which might make that person more likely to feel threatened or fearful.  Here are the basics of this high-profile airline case along with the notable "subjective" details of the defendant:

The story of the October 27 assault on American Airlines Flight 976 made national news and it comes after a year of thousands of similar stories in which flight attendants have been made the victims of unruly passengers — most often stemming from pandemic-related mask mandates.  In the case of 20-year-old Brian Hsu, however, the conflict appears to have arose when a flight attendant asked Hsu to return to his seat because the fasten-seatbelt sign was on.

The flight was bound from New York's JFK Airport to John Wayne Airport in Orange County, and according to the injured flight attendant and passengers who witnessed the incident, Hsu was standing near an airplane lavatory when the flight attendant told him to step away and return to his seat.  As the New York Times reports via court filings, prosecutors say that Hsu then "punched her in the face with sufficient force to cause her to hit the lavatory door."

The flight attendant then reportedly exclaimed that her nose was broken, and another flight attendant instructed Hsu to return to his seat, where he was restrained with duct tape and zip ties with the help of passengers.  The plane then made an emergency landing, and Hsu was detained by authorities there before he was returned to Irvine and arrested at his family's home there....

Hsu has submitted his own account of the incident to the FBI, and his mother has provided corroborating statements about his condition.  Hsu has allegedly suffered from a traumatic head injury he received last year — something for which he says he was being treated in Rhode Island.  He reportedly underwent brain surgery in Rhode Island, which involved "reconstructing portions of his skull," and he's reportedly suffered "psychological damage."

According to a statement, Hsu was assaulted while in New York in 2020, which led to the brain injury.  Hsu also claimed that a recent "football injury" rendered him unable to make a fist.  Hsu apparently is a college student in New York City.

As the East Bay Times reports via the court filings, Hsu's mother told investigators that Hsu "seems to become more easily angered" lately after the injury, and she claimed that he had trouble sitting still and "frequently felt the need to stretch."  Also she claimed that her son had been "afraid of people touching his head."

Part of Hsu's account is that the flight attendant "became agitated" after he bumped into her and that she was wildly waving her arms near his head when he struck her in self-defense.  He further said he feared that "an impact to his head in its current state could cause him severe injury or death."

November 3, 2021 in Current Affairs, Notable real cases | Permalink | Comments (0)

September 30, 2021

Debating Ohio's prosecutorial practices for pursuing drug-induced homicide (as involuntary manslaughter)

As we start October and our homicide unit with the Joe Shooter role play, I hope you all are getting a sense for how prosecutorial discretion plays a huge role in just how criminal charges are brought and pursued (and bargained).  Broad prosecutorial discretion has all sorts of pros and cons, but the exercise of such discretion can often be hard to assess because prosecutor offices rarely assemble and almost never disseminate thorough data concerning discretionary decisions.  

A few years ago, driven by media reports of ever more drug-induced homicide prosecutions being brought in Ohio, I worked with some fellow academics to request that the Ohio Criminal Sentencing Commission collect data on these matters.  The document we sent, styled an Open Letter to the Ohio Criminal Sentencing Commission, included these passages:

According to data collected from online news sources, Ohio pursues more drug-induced homicide charges than all but one other state in the country.  These data show Ohio counties of Cuyahoga, Franklin, Summit, Clermont and Hamilton now rank among the most active counties in the United States for prosecutors charging people with homicide charges for accidental overdose deaths, and it seems quite possible that prosecutors in rural Ohio counties may also be bringing these charges, but that these cases do not get reported in online news sources. Notably, in a news report last month, Franklin County Prosecutor Ron O’Brien stated that in recent years he has brought prosecutions of 29 cases of involuntary manslaughter in relation to accidental overdose deaths.

Though newspaper reports sometimes suggest that these cases are brought only against “drug dealers,” it is clear that often the people who are being prosecuted are individuals who struggle with substance use themselves, individuals who sold to support their own use, or individuals who were co-using with the deceased.  One news account of the cases in Franklin County indicates that sentences of imprisonment in these cases have ranged from two to 15 years, raising concerns that limited state resources are going to lengthy periods of unproductive incarceration, instead of being used for helpful and necessary drug treatment.  We have never seen any evidence to support the claim that charging and sentencing persons for manslaughter for accidental drug overdoses helps in any way to curb large scale trafficking or helps reduce drug use or overdose deaths....

Based on news reports, we are deeply concerned that prosecutors’ use of this dangerous policy has grown and is continuing to expand in Ohio.  We are concerned that prosecutors are doing so without any statewide discussions among prosecutors and courts about this use of Ohio homicide provisions and without systematic examination of its likely ineffectiveness in reducing drug use and overdose deaths, or its possible adverse impact on public safety and the community as a whole.  To end Ohio’s opioid crisis, we need humane data-driven solutions.  We ask that the Ohio Criminal Sentencing Commission begin a public examination of the use of homicide charges in accidental overdose cases throughout the state and their impact on public safety and the opioid crisis. We ask that the Commission use the information and data it collects to propose evidence-based recommendations that can guide stakeholders and protect the community against the harms of this policy.

This initial letter prompted a notable response from Louis Tobin, Executive Director of the Ohio Prosecuting Attorneys Association, styled Letter from Ohio Prosecuting Attorneys Association, which provided some interesting data on overdose deaths and involuntary manslaughter cases for five counties and included these passages:

What the authors really want is a one-size-fits-all law to limit prosecutorial and/or judicial discretion under the guise of "evidence based recommendations."  They would prohibit involuntary manslaughter charges and/ or limit sentencing authority regardless of the individual facts of the case.  They would prohibit a prosecutor from charging a drug trafficker with involuntary manslaughter when he mixed fentanyl with his heroin or meth in order to attract more buyers by offering them a better high.  They would prohibit a judge from sentencing such a person to prison.  They would advance such a policy in the name of public safety.  Despite another baseless assertion in the letter that prosecutors have pursued these charges without any statewide discussion. Ohio prosecutors have discussed this topic in detail, our Association has offered several trainings for our own membership, and our members have trained others nationally on the topic. Best practices already exist and are in use....

We have, as the authors admit, one of the highest overdose death rates in the nation.  Drug abuse and drug trafficking are extensive here.  Yet the letter is intended to give the impression that Ohio prosecutors are using involuntary manslaughter charges overzealously.... Ohio is hardly alone in its efforts to combat drug trafficking through the use of overdose death homicide charges. As the attached document shows, prosecutors use these charges selectively based on individual facts and circumstances.  Placing arbitrary limits on the use of this tool and the discretion of our elected officials is neither wise nor necessary.  It would be a step backward in the fight against drug trafficking and a detriment to public safety....

As criminal justice experts the authors of the letter know that the first two purposes of felony sentencing in Ohio are to protect the public from future crime by the offender and others and to punish the offender.  Their letter would have us ignore the first two purposes and focus solely on treatment and rehabilitation.  Their letter would have us pretend like there is not a deceased victim who no longer has the opportunity to seek treatment and rehabilitation due to the actions of another.  They would have us believe that the only "directly impacted" person is the person being prosecuted, and ignore the directly impacted family and friends of the deceased.  They would have us ignore the direct impact on the communities to which many F4/FS drug traffickers are returned after being placed on community control as a result of other recently enacted one-size-fits-all policies. While punishment and incarceration might be distasteful to academics, there is a victim who lost his or her life, most likely family and friends who lost a loved one, and a community that deserves to prevent the offender from causing more death.

In a final written submission put forward by academic group, styled Response to Ohio Prosecuting Attorneys Association Letter, finished with this point:

[T]he Tobin letter tellingly omitted two recent amendments to the “Purposes of felony sentencing” set forth in Ohio law. Through new laws passed in 2011 and 2018, the Ohio General Assembly made very clear that it does not want prosecutors and courts to focus only on deterrence and retributive punishment.  Now, Section 2929.11 of the Ohio Revised Code states:  "The overriding purposes of felony sentencing are to protect the public from future crime by the offender and others, to punish the offender, and to promote the effective rehabilitation of the offender using the minimum sanctions that the court determines accomplish those purposes without imposing an unnecessary burden on state or local government resources."

As I mentioned in class, the original request from the academics led to a debate within the Ohio Criminal Sentencing Commission about possibly collecting data concerning drug-induced homicide cases.  In a close vote, a motion to collect data on this topic failed in December 2019.  To my knowledge, no official effort to collect data on theses issues in Ohio has ever gone forward.

September 30, 2021 in Current Affairs, Notable real cases | Permalink | Comments (1)

September 08, 2021

Senator Besafer: "How much roadway carnage will we accept?"

Senator Jo Besafer heard from her staffer that he did a very poor job encouraging members of the legislature to consider her PROPOSED ORC Section 2999.99: Criminal Damaging While Driving in the Rain.  But she continues to wonder how much roadway carnage society will accept after seeing this new report headlined "COVID-19 Road Death Surge Continues":

The empty roads of the quarantine era may be a thing of the past, but the roadway death surge of the COVID era isn’t done with America yet.

According to shocking new estimates from the National Highway Traffic Safety Administration, traffic fatalities jumped 10.5 percent in the first quarter of 2021 compared to the same period in 2020 — a tragedy that represents the avoidable loss of 8,730 human lives in just three months.  The rate of fatal crashes also increased 12.5 percent to 1.26 deaths per million vehicle miles travelled, up from 1.12 deaths per million VMT in the months before the pandemic upended American life....

Whatever the explanation, advocates say that NHTSA’s new stats should motivate transportation leaders to act quickly to stop anymore bloodshed — especially with a transportation safety currently under debate in Washington.  “The surge in motor vehicle crash fatalities must serve as an urgent call to action for Congress and the Biden Administration,” said Cathy Chase, president of the Advocates for Highway and Auto Safety.  “Requirements and performance standards for proven vehicle safety technology could be saving tens of thousands of lives each year.  The needless deaths on our roads must — and can — be stopped.”

September 8, 2021 in Current Affairs | Permalink | Comments (7)

August 24, 2021

What theories of punishment should be paramount in prosecution and sentencing of those who stormed US Capitol on January 6?

Judge HowellThough we have not yet even had our second class together, I am already eager to focus our general theory of punishment discussions on some controversial, real-world ("ripped from the headlines") cases.  Specifically, I find the federal prosecution of persons involved in the storming of the US Capitol on January 6 to be a fascinating setting for the consideration of punishment theories, and I would welcome your thoughts on this topic in the comments here and in our coming classroom discussions.

For starters, some recent Insider pieces provide an overview of the 615 individuals who have been charged with federal offenses and the 28 individuals who have already pleaded guilty for their activities in DC on January 6.  If you click on the names of the people in the Insider list of who has pleaded guilty, you can access a google drive site with official court documents.  Also, the US Justice Department has all the on-going cases and associated documents here DO NOT feel any obligation to click through to any of these links, though you might be interested to see what some of these official court documents look like.

In any criminal case with multiple defendants, one hard "theory" question from the very outset is whether the same theories of punishment should be paramount in all the prosecutions and sentencings.  Is it very important — or perhaps very problematic — to apply the exact same general theories of punishment to defendants like Jon Schaffer and Anna Morgan-Lloyd

Critically, these kinds of questions are not just for the judges tasked with sentencing defendants; they are first concerns for prosecutors who must make critical initial decisions about what charges to bring and whether to offer or accept plea deals to resolve these charges.  Notably, as discussed in this post, last month a federal judge asked federal prosecutors why they were allowing January 6 defendants to plea guilty only to a misdemeanor: US District Chief Judge Howell expressly asked, while accepting in a plea to a misdemeanor for one defendant, “Does the government, in agreeing to the petty offense in this case, have any concern about deterrence?”

While prosecutorial visions and choices are surely shaped by various punishment theories in various ways, sentences judges are tasked with deciding how theories ought to come to bear in the actual specific sentencing of individuals.  And, US Code, Title 18, Section 3553(a) is where Congress expressly sets forth in a statue a detailed list of "Factors To Be Considered in Imposing a Sentence."  You should click through to this provision to see if you can identify how Congress has set forth the classic theories of punishment for federal judges to consider, and in class we will explore how the different punishment theories referenced in various ways in subsection (a)(2) of 18 USC 3553 might be applied to January 6 defendants.

August 24, 2021 in Current Affairs, Notable real cases | Permalink | Comments (5)

November 13, 2018

Interesting news on self-defense reform in Ohio during lame duck time

This local story, headlined "Ohio House set to approve stand-your-ground gun bill," caught my eye for obvious reasons. Here are excerpts:

The Ohio House on Wednesday is expected to approve a controversial stand-your-ground bill that eliminates a “duty to retreat” when facing a threat before utilizing deadly force.

Supporters say House Bill 228, which also includes a number of other firearm-related provisions, would put Ohio law in line with about half of other states by shifting the burden of proof in self-defense cases from the defendant to the prosecution.

House Speaker Ryan Smith, R-Bidwell, said last spring, prior to the legislature’s summer/election break, that the House had a veto-proof majority to pass the bill. However, a vote was delayed until after the election, though a veto from Gov. John Kasich remains a strong possibility. Kasich has been upset GOP lawmakers have refused to act on gun-violence reduction proposals he made, including a “red flag” provision to allow a judge to order the removal of guns from people deemed a danger.

The bill is opposed by the Fraternal Order of Police of Ohio and the Ohio Prosecuting Attorneys Association, plus other gun-control proponents.  Critics say it would give those involved in a conflict less incentive to try to de-escalate or escape before resorting to lethal force.

Prosecutors have argued that current law allows those who are truly being threatened with serious harm to use a weapon in self-defense, and it’s reasonable to require a defendant to prove self-defense by a preponderance of evidence — a lesser standard than “beyond reasonable doubt.”

But supporters, including Doug Deeken, director of Ohioans for Concealed Carry, say removing the “duty to retreat” is positive, common-sense reform.  “What a ‘duty to retreat’ functionally does is force law-abiding citizens into making tactically poor choices when confronted with a violent, criminal aggressor,” Deeken told a House committee.  “While retreating may sometimes, even often, be part of the proper course of action it is not always so.”...

If passed, the bill goes to the Senate.  Lawmakers are in session through mid-December.

As if too often the case with poor reporting on legal issues, I am not sure everything in this report is factually accurate.  But I am sure there is continued momentum for continued changes to the functionality of Ohio's law of self-defense.

November 13, 2018 in Current Affairs | Permalink | Comments (0)

October 18, 2018

California's notable recent retrenchment of its felony murder rules

Our final subject in the homicide unit will lead us to review the (in)famous doctrine of felony murder.  As is always the case, you will only eventually be expected to know about the MPC and Ohio approaches to this doctrine.  But you should be intrigued to learn that California, less than a month ago, significant amended its felony murder provisions.  Some details of the change are explained officially here and in this way:

Existing [California] law defines first degree murder, in part, as all murder that is committed in the perpetration of, or attempt to perpetrate, specified felonies, including arson, rape, carjacking, robbery, burglary, mayhem, and kidnapping. Existing law, as enacted by Proposition 7, approved by the voters at the November 7, 1978, statewide general election, prescribes a penalty for that crime of death, imprisonment in the state prison for life without the possibility of parole, or imprisonment in the state prison for a term of 25 years to life. Existing law defines 2nd degree murder as all murder that is not in the first degree and imposes a penalty of imprisonment in the state prison for a term of 15 years to life.

This bill would prohibit a participant in the perpetration or attempted perpetration of one of the specified first degree murder felonies in which a death occurs from being liable for murder, unless the person was the actual killer or the person was not the actual killer but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer, or the person was a major participant in the underlying felony and acted with reckless indifference to human life, unless the victim was a peace officer who was killed in the course of performing his or her duties where the defendant knew or should reasonably have known the victim was a peace officer engaged in the performance of his or her duties.

This recent local article about this legislative change highlights, in part, the impact of its retroactive provisions under the headline "Change in California law will set convicted killers free - because they didn't actually kill anyone." Here are excerpts:

Defense lawyers say the reform is long overdue and more fairly fits the punishment to the crime. Prosecutors worry that criminals won’t be held accountable when their actions cause a death. “California’s felony murder law was one of the harshest in the country,” said longtime criminal defense attorney Eugene Iredale.“This is a major step in making sure criminal justice is consistent with moral propriety. Punishment should be consistent with culpability, on the basis of crimes you actually commit, not of accident.”

The felony murder rule comes from centuries-old British common law. It says, in essence, if you took part in a felony and someone died, you could be convicted of murder. It didn’t matter whether you were the one who killed the person, or if you had no intention of harming anyone.

In California, a killing that is intentional and premeditated is first-degree murder, with a sentence ranging from 25 years to life in prison up to the death penalty in certain cases. But the state’s version of the felony murder rule sidesteps the question of intent to define other homicides as first-degree murder if they occurred during the commission of specific felony crimes including arson, rape, carjacking, robbery, burglary, mayhem, and kidnapping.

That rule underwent a major overhaul on Sept. 30, when Gov. Jerry Brown signed Senate Bill 1437, called “Accomplice liability for felony murder.” It goes into effect Jan. 1. Under the revision, only people who aided or were a “major participant” in a killing, or showed reckless disregard for human life, can be charged with felony murder. For instance, a robbery getaway driver, unaware that his accomplice just killed someone, might be charged only for having a role in the robbery.... The law goes further, with a retroactive aspect that allows inmates convicted under the current felony murder rule or the natural and probable consequences doctrine to petition the trial court to have their convictions vacated. “That, to me, is one of the biggest concerns,” said Chief Deputy District Attorney David Greenberg. “Our ability to hold people accountable for murder will be compromised.”

If a felony murder conviction is vacated, inmates could be re-sentenced for whatever felony they were committing when the killing happened. But they may well have already served the amount of time they would get for the lesser crime. If so, they would be released from prison. Greenberg said county prosecutors may have secured as many as 300 felony murder convictions going back to the 1980s and 1990s. Not all would result in petitions for release from prison — many of the convicts have already been been paroled, or could be deceased.

Greenberg prosecuted the trio convicted of murder in the killing of acting student John Lentz in Balboa Park in 1994. A 17-year-old girl shot Lentz several times from a pickup driven by a man who was looking for someone to rob. Ray Waldrop, in the backseat, was convicted of felony murder because he was in on the robbery plan. A jury found specifically that Waldrop was not a major participant in the killing. Because of that finding, he can ask the court next year to vacate his felony murder conviction. “I don’t have an argument about him being a major participant,” Greenberg said. “There is nothing for me to argue, nothing to fight.”

If Waldrop is re-sentenced on the remaining robbery charge, he could get a five-year term at most. He’s already served 23 years, so he would be eligible for release, Greenberg said....

The bill was co-authored across the political aisle by senators Nancy Skinner, D-Berkeley, and Joel Anderson, R-Alpine. Anderson, known as a political conservative, emailed a statement to The San Diego Union-Tribune, saying: “Victims don’t want vengeance, they want justice. It’s unjust to charge people with murder who had nothing to do with the actual murder.”...

Defense lawyer Robert Grimes said the felony murder rule was never fair. “Now, these matters will be evaluated on a case-by-case factual analysis by juries and judges,” Grimes said. “You get these impulsive young guys locked up for life because a robbery went bad and they didn’t really foresee someone would get killed,” he said. “In California, there has been a reassessment of the utility of certain mandatory (sentencing laws) and fairness. We are giving trial judges back discretion.”

UPDATE: Here is another notable new press piece about California notable new felony murder law headlined "Nearly a Decade Awaiting Trial, Now Freed: Neko Wilson to be released in the first test of California’s felony murder law." Here is how the piece gets started:

In the first test of a newly signed law that significantly narrows California’s felony murder rule, a judge [on Thursday] ordered the immediate release of a man who has spent nearly a decade awaiting trial in double murder. Neko Wilson, now 36, had initially faced the death penalty in connection with the July 2009 murders of Gary and Sandra DeBartolo, a couple killed during a robbery at their home in California’s Central Valley.

Prosecutors had accused Wilson of helping plan the robbery, not of killing the couple. He initially faced the death penalty under a legal doctrine known as the felony murder rule, which holds that anyone involved in certain types of serious felonies that result in death can be held as liable as the actual killer. But a new law signed by Gov. Jerry Brown in September significantly narrowed that doctrine and prompted prosecutors to drop the murder charges against Wilson.

“It’s overwhelming,” said Jacque Wilson, who is Neko Wilson’s brother and his lawyer, as he stood outside the courtroom immediately after hearing Judge John F. Vogt’s decision. “You go from being someone the state wanted to kill, to someone who’s coming home.” In court, Neko Wilson agreed to a plea deal on robbery charges, as well as charges in unrelated cases. The total sentence for those charges added up to nine years, the amount of time he’s already been jailed awaiting trial.

The prosecutor, William Lacy, senior deputy district attorney in Fresno, said the new law had left prosecutors little choice. “It’s a new world we live in,” Lacy said. “It certainly means that people who were charged with murder previously won’t be charged.”

October 18, 2018 in Current Affairs | Permalink | Comments (3)

October 07, 2018

High-profile, second-degree murder verdict in Illinois (which is actually comparable to voluntary manslaughter in Ohio)

At the risk of creating confusion by highlighting quirks in how Illinois approaches degrees of homicide, I thought it notable how a Chicago jury on Friday chose to convict police officer Jason Van Dyke of second-degree murder, rather than first-degree murder, in the 2014 shooting of 17-year-old Laquan McDonald (basics here from my main blog).  Notably, the prosecution was seeking a first-degree murder conviction, but the jury potentially used provocation-like doctrines (and/or what is sometimes know as "imperfect self-defense") to convict Van Dyke of a lesser charge, though in Illinois this lesser charge is called second-degree murder rather than manslaughter.

(Notably, the Illinois second-degree murder provocation language asks if "at the time of the killing he or she is acting under a sudden and intense passion resulting from serious provocation by the individual killed." This seems pretty similar to the Ohio voluntary manslaughter provocation language about an offender being "under the influence of sudden passion or in a sudden fit of rage, either of which is brought on by serious provocation occasioned by the victim that is reasonably sufficient to incite the person into using deadly forced.")

If you are at all troubled by the provocation doctrines used at common law (and still in the MPC and ORC) to call some killings manslaughter rather than murder, might you find these doctrines less worrisome if we adopted the Illinois approach of still calling partially mitigated killings another form of "murder"?  As you consider this issue, think about whether it is the label that matters most or the sentencing consequences that goes with the label. 

October 7, 2018 in Current Affairs, Notable real cases | Permalink | Comments (2)

September 03, 2018

Register for upcoming panels on Issue 1 ... and consider authoring an original commentary

I have mentioned briefly in class that the Drug Enforcement and Policy Center (DEPC) here at the College of Law will be sponsoring a series of panels over the next three months to discuss Ohio Issue 1.  The sponsors of Ohio Issue 1 titled their initiative "The Neighborhood Safety, Drug Treatment and Rehabilitation Amendment," but on the ballot it will be officially described as "Issue 1 To Reduce Penalties for Crimes of Obtaining, Possessing, and Using Illegal Drugs."  As this different wording suggests, there is already much debate over just what this ballot initiative seeks to do and what its impact could be.

In short form, Issue 1 proposes to amend the Ohio Constitution to preclude prison terms for drug possession offenses and less serious probation violations, to expand sentence reductions for prisoners participating in rehabilitative programming, and to redirect funds saved from reduced incarceration to drug treatment and victims' services.  DEPC's series of panels on Issue 1, which we are calling Ballot Insights, aims to unpack the complicated issues and provide a venue for informed discussion of the policies and politics surrounding Ohio Issue 1. 

You can see details about each of the planned panels in this Ballot Insights Poster, and you can register for one or more of the panels at this link.  (As I mentioned at the outset of the course, we may have to cancel a few classes through the semester and then figure out how best to schedule make-up classes.  Because the Issue 1 panels will be covering topics directly relevant to our class, I might consider significant attendance at these panels to qualify as one make-up class.  You should register and attend these sessions for lots of reasons, but an extra incentive never hurt.)

In addition to planning to attend the Issue 1 panel discussions, you should consider checking out some of the Issue 1 resources assembled on the bottom of this webpage ranging from official position statements to media coverage.  DEPC is not only assembling these resources, but also is soliciting original commentaries on Issue 1 from a wide array of researchers, policymakers and advocates.  Check back in the next few weeks when some of these commentaries will start to appear on the DEPC website.

As the title of this post indicates, the invitation to submit short commentaries on Issue 1 (around 1000 words) extends to law students.  I sincerely believe that, even for folks just a few weeks into law school, law students might have a distinct and distinctly useful perspective on issues large and small surrounding the substance and style of Issue.  So, with all that extra time you have as a 1L, consider authoring a commentary this fall for publication through DEPC's website.

September 3, 2018 in Current Affairs | Permalink | Comments (3)

August 20, 2018

Do constitutional limits on punishment reflect the embrace of one theory of punishment or the rejection of another or ... ?

The poorly articulated question in the title of this post stems from my effort to connect our coming exploration of (A) the US Supreme Court's modern Eighth Amendment jurisprudence and (B) a ballot initiative (Issue 1) aiming to amend the Ohio Constitution this fall, the 2018 Ohio Neighborhood Safety, Drug Treatment, and Rehabilitation Amendment

Though I am happy to talk about any and all Eighth Amendment cases decided by the Supreme Court, I will want to give particular attention to the concepts of proportionality as they relate to theories of punishment as articulated by the Supreme Court in cases like Graham v. Florida and Ewing v. California.   (If anyone wants more detail concerning how Terrance Jamar Graham received a life without parole sentence, I recommend reading this unedited version of the start of Justice Anthony Kennedy's opinion in Graham.  I always find interesting how the sentencing judge justified his LWOP decision.)

At the federal level it is very hard to amend the Constitution (which is one reason we fight so much about SCOTUS appointments).  But constitutional amendments are much more common at the state level.  This fall, voters in Ohio are being asked to approve a propose Ohio  constitutional amendment that would impact drug sentencing and prison time in various ways and which includes this notable limitation on punishment:

With respect to state laws that make possessing, obtaining, or using a drug or drug paraphernalia a criminal offense, in no case shall any offense be classified higher than a misdemeanor.  The misdemeanor classification may be a general classification or a special classification for the offense.  The sanctions authorized may not exceed those of a first-degree misdemeanor, and, for an individual’s first or second conviction within a twenty-four month period, the sanctions shall not exceed probation.  If an individual has more than two convictions within a twenty-four month period, then sanctions may include jail time or probation in lieu of jail time.

When a limit is placed on available punishments, do you think this usually reflects the embrace or the rejection of a particular theory of punishment?  More generally, do you think there are political and social issues influencing constitutional jurisprudence and ballot initiatives that are entirely distinct from classic theories of punishment?

August 20, 2018 in Course materials and schedule, Current Affairs | Permalink | Comments (0)

October 11, 2017

What do you think of the sentence given to Robert Richie, the dad convicted of involuntary manslaughter in Ohio's uglier version of Williams?

As reported in this local article, headlined "Robert Ritchie sentenced for his role in son's scalding death," there was a sentencing just yesterday in an Ohio manslaughter case that reminded me  of the Williams case (and also the Lima case and even the Josephine pool hypo). Here are the sad details:

A judge sentenced a father who neglected to get his four-year old son help after his wife held the boy down in scalding water, to seven years in prison.  Robert Ritchie could have been sentenced to 11 years.  Anna Ritchie put her stepson, Austin, in 124-degree water for 20 minutes as a punishment, then put him to bed.  By the next morning, Austin had died.

A jury found Robert Ritchie guilty of involuntary manslaughter and child endangering for not checking on his son or getting him help.

Austin's maternal grandmother says while wife Anna Ritchie did the damage, Robert did nothing.  She said Robert is destined for hell.  Robert's aunt defended Robert.  She told the court he is not the monster he is being portrayed.

Robert's attorney Frank Schiavone III asked for probation for his client, saying he's under a life sentence for his role in Austin's death.  Robert Ritchie’s attorneys said there was no punishment that could top what their client has already received.  He could have received eleven years behind bars, with time served, he will spend a little over six years in prison....

Ritchie was convicted for his role in the 2016 scalding death of his 4-year-old son Austin Cooper.  While his wife, Anna Ritchie, admitted to holding the child down in scalding bath water, prosecutors claimed Ritchie did nothing to help his son.  A point the child's maternal grandmother made to the judge prior to sentencing.

Ritchie himself asked Judge Robert Peeler to "show mercy on me" before Judge Peeler sentenced him.  "I want to do good in this world for my son.  Something good has to come from all this tragedy, something good has to come.  I want to share my faith and my love with the youth and eventually become a full-on pastor, if you deem fit to give me mercy."

Judge Robert Peeler concurred that Ritchie did not cause his son's injuries, but wondered why he did nothing to help his child.

Ritchie's defense team took issue with the fairness in prosecuting some child death cases and not others. Frank Schiavone IV pointed to the recent hot car death of a child where no charges were filed while his client is going to prison.  Prosecutor David Fornshell said that the difference was one parent had knowledge while the other did not....

Anna Ritchie is already in prison. She is serving 18 years to life for causing the injuries that killed the child.

This local article describing testimony from one of the trials in this case (there were two prior mistrials) provides some of the horrible details of the crime and concerning what the parents did and knew.

UPDATE:  Ohio's statute on child endangerment is ORC Section 2919.22, and it is hardly a model of clear statutory drafting.  And folks who have become familiar with Ohio's unique homicide provisions should understand why a charge/conviction under that statute was important for the Robert Richie to be subject to an involuntary manslaughter charge in this case.

October 11, 2017 in Current Affairs, Notable real cases | Permalink | Comments (0)

September 04, 2017

High-profile case that might hinge on voluntary/involuntary act arguments

This weekend a fellow law professor highlighted on the CrimLawProf list-serve — yes, old lawprofs still use list-serves — this CNN article reporting on a high-profile criminal case in which a defendant might seek to claim that her alleged criminal conduct was not voluntary.  Here are the details:

The Department of Justice will retry a woman whom prosecutors say disrupted Jeff Sessions' confirmation hearing for attorney general by laughing.

After rejecting a plea deal, Desiree Fairooz will again face charges of unlawful conduct for disrupting Sessions' hearing in January. According to court records, Fairooz rejected a deal offered by prosecutors that would have required her to plead guilty in exchange for a recommended sentence of time served.

Fairooz was detained after audibly laughing after Sen. Richard Shelby told senators at Sessions' confirmation hearing that the then-Alabama senator had a record of "treating all Americans equally under the law." Her laughter lasted seconds and Shelby continued with his speech without acknowledging the disturbance.

In a statement, Fairooz said she let out a spontaneous "reflexive noise" because Shelby's description was not true. "It was an immediate rejection of what I considered an outright lie or pure ignorance," she said.

Fairooz was previously convicted of a misdemeanor connected to disrupting the hearing, but a judge threw out the guilty verdict in July and ordered a new trial. The new trial is scheduled to begin on November 13.

This HuffPost article about the judge's decision to reject a prior jury verdict suggests (but does not make entirely clear) that the judge was troubled by the idea that laughter alone could serve as the basis for the charges here.

This case provides a useful real-world example of how there can be, in some unusual types of cases, opportunities for defendants to question whether the prosecution can satisfy the act requirement component of a proper prosecution. But it should also provide a reminder that these kinds of act issues will typically arise only in unusual types of cases.

September 4, 2017 in Current Affairs, Notable real cases | Permalink | Comments (0)

November 15, 2016

"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:

November 15, 2016 in Class reflections, Current Affairs, Notable real cases | Permalink | Comments (2)

October 26, 2016

Another local Ohio homicide (involving murder and voluntary manslaughter charges) worth thinking about...

which I believe made national news back in the summer and is in the papers again this afternoon:

October 26, 2016 in Current Affairs, Notable real cases | Permalink | Comments (0)

October 19, 2016

Some local Ohio homicide headlines

As we move into our "specific crimes" unit of our course, the laws we are reviewing are often going to be central to real cases that frequently generate news coverage. For example, just today's Columbus Dispatch includes these two new Ohio homicide stories:

October 19, 2016 in Current Affairs, Notable real cases | Permalink | Comments (0)

October 10, 2016

For a useful set of perspectives on the death penalty in Ohio and elsewhere...

check out this 50-minute local WOSU/NPR segment from last week.  Here is the overview of what you will hear:

Support for the death penalty has been on the decline and recently hit a a record, four decade low. Despite the decline, legislators in many states continue to back capital punishment. Today we discuss Ohio as it prepares to reinstate the death penalty after a two year hiatus, and look at how Nebraska ended the practice.

  • Jim Petro, Former Ohio Attorney General

  • Robert Blecker, Professor of Criminal law and Constitutional law, New York Law School; and Author, “The Death of Punishment: Searching for Justice among the Worst of the Worst”

  • Colby Coash, Nebraska State Senator

October 10, 2016 in Course materials and schedule, Current Affairs, Notable real cases | Permalink | Comments (1)

September 28, 2016

Another real-world follow-up to prior punishment theory discussions and preview of coming homicide discussions thanks to H.R.6158, the HELP Act

I really enjoyed our prior on-line discussions here concerning whether and why drug dealers ought to be criminally responsible for causing overdose deaths.  And, if you are working on the next extra credit assignment focused on the Burrage Supreme Court case, you know how causation doctrines can intersection with these matters.

But, thanks to a few member of Congress, a new bill in Congress also makes this issue on that is worth discussing as we wind down our basic mens rea conversations and start to gear up for talking about homicide crimes and punishments.  I discuss this new bill (which I have not yet seen in full), in a new post over at my sentencing blog: NY member of Congress puts forward federal bill with "Death Penalty Proposal for Heroin Dealers".


UPDATE:  This Columbus Dispatch headline/story awaited me in my e-mail in-box after I returned from our class: "Columbus hit by 27 heroin overdoses in 24-hour span"

September 28, 2016 in Course materials and schedule, Current Affairs | Permalink | Comments (1)

August 28, 2016

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?"

August 28, 2016 in Class reflections, Current Affairs, Notable real cases | Permalink | Comments (11)

December 01, 2014

"Crazy or Faking It? The impending execution of Scott Panetti and the search for a standard of sanity."

The title of this post is the headline of this effective new piece from The Marshall Project which highlights some of the mental health issues we have discussed in recent classes with a special focus on a controversial execution scheduled to take place in Texas later this week.

December 1, 2014 in Current Affairs, Notable real cases | Permalink | Comments (1) | TrackBack

September 01, 2014

Women, opioids, and Ohio problems with (hidden?) punishment theory at issue

With luck, our class discussion last week of recent Supreme Court cases and AG Eric Holder's speeches provided everyone with perspectives on how punishment theories, both expressly and implicitly, play a role in constitutional jurisprudence and national criminal justice policy conversations.  This weekend, I noticed this recent Toledo Blade editorial, headlined "Women in prison: A big increase in female inmates should prompt changes in how Ohio’s courts deal with addiction," which provides a more localize discussion of some recent criminal justice developments and concerns that implicate punishment theories in various ways.  

I encourage everyone to read the Blade editorial in full to see how, expressly and implicitly, one prominent paper is incorporating punishment theory into its call for reforms focused on a particular demographic.  Here is an excerpt from the editorial (which perhaps can stimulate some discussion of punishment theory or the fairness of a gendered call for reform in the comments):

A stunning rise in the number of women entering Ohio prisons should encourage elected officials to seek better ways of managing the state’s $1.5-billion-a-year prison system.

Driven largely by a growing number of drug-addicted offenders from rural counties, Ohio prisons now hold nearly 4,200 women.  From 2012 to 2013, the number of women coming to state prisons increased by 11 percent, from 2,580 to 2,854 ....  Ohio’s opioid and heroin epidemic is largely to blame for the increase, as more low-level female drug offenders are sent to prison. “That population is very much nonviolent and drug-addicted, often with male co-defendants leading the case,” state prisons Director Gary Mohr said recently.

At the Ohio Reformatory for Women in Marysville, which holds more than 2,600 prisoners, the top three offenses for women entering the prison are drug possession, theft, and trafficking, said public information officer Elizabeth Wright.  Moreover, the statewide share of women prisoners coming from rural counties — those with fewer than 100,000 residents — has nearly doubled in the past decade.  Altogether, Ohio’s 28 prisons hold more than 50,000 inmates.

In an interview with The Blade’s editorial page, a 28-year-old drug offender from Hardin County (population 32,000) said heroin and illicit prescription painkillers are easy to get in her rural community.  As with most other opioid addicts in Ohio, she started using prescription painkillers — in her case, Percocet.  She eventually graduated to heroin because of its lower cost and availability.   “The pills swept me off my feet,” she said at the Ohio Reformatory for Women. “It got to the point where I couldn’t even get out of bed without using a pill. I went straight from Percocet to heroin. Everyone was saying: ‘Why don’t you just do heroin? It’s so much cheaper.’”

Mr. Mohr has prudently called for diverting more low-level drug offenders from prison to community-based treatment programs.  To do that, Ohio will need more adult drug courts. Most counties, including Lucas County, still don’t have a drug court.  The state also needs more community programs to serve as effective alternatives to incarceration.

Ohio’s prosecutors and judges also must get better educated on addiction.  Too many of them still don’t understand that chemical addiction is a compulsive disease, not a moral choice. “A big part of the problem is that a number of people, including judges and prosecutors, see addiction as a state in which people have more control than they actually have,” Orman Hall, the director of Gov. John Kasich’s Opiate Action Team, told The Blade’s editorial page. “Opioid and heroin addiction is a compulsive disorder. In the early stages, people have very little ability not to relapse.”

September 1, 2014 in Crime data, Current Affairs | Permalink | Comments (0) | TrackBack

January 16, 2014

Sincere marijuana reform question: exactly what are DEA officials "scared" of?

The question in the title of this post, which I am now posting to all the blogs in which I now participate, is my sincere reaction to this new Washington Post article headlined "DEA operations chief decries legalization of marijuana at state level."  Here is the context:

The chief of operations at the Drug Enforcement Administration on Wednesday called the legalization of marijuana at the state level “reckless and irresponsible,” warning that the movement to decriminalize the sale of pot in the United States will have severe consequences.

“It scares us,” James L. Capra said, responding to a question from a senator during a hearing focused on drug cultivation in Afghanistan.  “Every part of the world where this has been tried, it has failed time and time again.”

Capra’s comments marked the DEA’s most public and pointed criticism of the movement toward decriminalization in several states, where local officials see it as an opportunity to generate tax revenue and boost tourism....

Capra said agents have watched the early days of legal marijuana sales in Colorado with dismay.  “There are more dispensaries in Denver than there are Starbucks,” he said.  “The idea somehow people in our country have that this is somehow good for us as a nation is wrong.  It’s a bad thing.”

Capra said that senior DEA officials have faced uncomfortable questions from law enforcement partners abroad. During a recent global summit on counter-narcotics in Moscow, he said, he and the head of the DEA were at a loss to explain the loosening drug laws. “Almost everyone looked at us and said: Why are you doing this [while] pointing a finger to us as a source state?” he said. “I don’t have an answer for them.”...

Capra said he worries about the long-term consequences of the national mood on marijuana, which law enforcement experts call a gateway to more dangerous drugs. “This is a bad experiment,” he said.  “It’s going to cost us in terms of social costs.”

Let me begin by saying I respect all those who work in the DEA and other law enforcement agencies dealing with illegal drug issues, and I am certain all those who do this work have much more first-hand knowledge of the myriad harmful social costs of drug use and abuse than I ever will.  But it is for that very reason that I ask this question about exactly what has DEA officials "scared": I sincerely want a much better understanding of what "social costs" of reform are being referenced here so that I can better assess for myself how I think these potential "social costs" of state-level marijuana reform stack up to the existing "social costs" I see due to current pot prohibition laws and norms.

That said, I think I might be able to help DEA officials avoid "being at a loss" to explain loosening drug laws in the US to their international friends in Moscow or elsewhere.  Here is what I suggest DEA officials say: "The United States of American is an exceptional nation that, in President Lincoln's words, was "conceived in Liberty" and its citizens recently have become ever more skeptical about the growth of government's coercive powers and ever more concerned about paying high taxes for government programming perceived to be ineffectual.  Thus, just as the people of America were the first to experiment seriously with a constitutional democracy (which has worked out pretty well), now some of the people of America are eager to experiment seriously with a regime of marijuana regulation rather than blanket prohibition."

This account of why polls show ever greater support for marijuana legalization is my sincere understanding of why so much drug reform activity is going on now in the United States.  The current "Obama era" is defined by a period of relatively tight budgets, relatively low crime, and yet still record-high taxing-and-spending in service to criminal justice programming.  These realities, especially in the wake of the Tea Party movement and other notable libertarian responses to the enormous modern growth of state and federal governments, have more and more Americans thinking we should be open to experimenting with a regime of marijuana legalization and regulation rather than blanket prohibition.

It is quite possible, as the DEA official suggests, that "this is a bad experiment."  But even if it is, the experiment does not "scare" me, in part because I have a hard time fully understanding what potential increased social costs should make me or others truly "scared."  More importantly, I have enormous confidence that, if the social costs of marijuana reform prove to be significant, the American people will realize pot reform is "a bad experiment" and will again change its laws accordingly. Indeed, this is precisely the experiences we have seen with our legal experiments with other drugs throughout American history:

I emphasize these historic examples of American drug experimentation because it is certainly possible to lament the harms produced along the way or the enduring "social costs" of having tobacco and/or alcohol still legal.  But it is also possible to conclude, as I do, that what makes America both great and special — dare I say exceptional — is that we persistently maintained our fundamental commitments to freedom, democratic self-rule and the rule of law throughout these experiments.  Consequently, this modern era's new round of American drug experimentation has me excited and intrigued to watch unfold the next chapter of the American experience, and I am not "scared" by the marijuana reform movement because they it strikes me as a further vindication of our people's fundamental commitments to freedom, democratic self-rule and the rule of law.

But maybe I am just way too high on the idea of American exceptionalism to have a sensible and sober understanding off all the potential harms and "social costs" that are apparently scaring DEA officials. And, as I said above, I readily acknowledge that all those who work on the front lines of the drug war have much more first-hand knowledge of the myriad harmful social costs of drug use and abuse than I ever will.  But, again, that it why the question in the title of this post is sincere: I genuinely and really want to have a much better understanding of what has DEA officials "scared" so that I can sensibly temper my excitement and optimism about modern marijuana reforms.

I fear that responses to this post could become snarky or ad hominen real quickly, but I hope all readers will tap into the spirit of my inquiry and really try to help me understand just what potential social costs of modern marijuana reform could lead those in the know to be "scared" as the quote above suggests. And I am posting this query in all five blogs I work on these days because I am eager to get wide input and as many diverse insights on this question as possible.

January 16, 2014 in Current Affairs | Permalink | Comments (1) | TrackBack

November 24, 2013

Notable discussion of the death penalty in Ohio

I have mentioned my willingness to discuss the death penalty in an extra optional session, and I am happy/eager to do so next week right after our classes and/or just about any other time next week or throughout December.  (Perhaps talking about executions might give you some healthy perspective on how relatively unimportant exam performance is in the grand scheme of things.)

The story of the death penalty in Ohio is especially interesting and dynamic, and could (but need not be) a focal point of any of our discussions.  And if this topic especially interests you, I recommend this new article from the Toledo Blade, which is headlined "Death penalty cases ebb in Lucas County and Ohio: Decline tied to more flexibility in sentencing." Here are a few excerpts:

When John Winfield was sentenced to life in prison last month for the robbery and shooting death of Toledoan Mark Ward in 2011, Lucas County’s last active capital murder case was closed. In what may be the first time since the death penalty was reinstated in Ohio in 1981, no such cases are pending before the court.  Not a single person was indicted in Lucas County on capital charges this year or last.

It’s a situation that reflects a statewide trend toward fewer death penalty prosecutions. Ohio Supreme Court records show that just nine individuals were indicted in the state on capital murder charges through July, and just 36 for all of last year.  That compares to 159 indictments in 1983, 109 in 1993, and 95 in 2003.

A key reason for the decline is that since 2005, judges have had the option of sentencing those convicted of aggravated murder to life in prison without the possibility of parole....

A 20-member task force appointed by Ohio Chief Justice Maureen O’Connor expects to make recommendations to the state’s top court for possible changes to the death penalty by March, said Lucas County Common Pleas Judge Linda Jennings, the only local member of the group.  “We’re looking at every single issue to make sure that the death penalty is administered fairly,” Judge Jennings said.

I am also a member of the task force appointed by Chief Justice O’Connor, and I could talk about the work of the task force or any other topics of interest to folks.

I urge anyone eager to have a special (entirely optional) session to talk about any death penalty topic to note their interest in the comments and perhaps suggest an ideal time for such a session.

November 24, 2013 in Current Affairs | Permalink | Comments (4) | TrackBack

November 23, 2013

"Duty to retreat is a safeguard"

The title of this post is the headline given to this letter to the editor in our own Columbus Dispatch authored by John Gilchrist, the legislative counsel to the Ohio Association of Chiefs of Police.  The whole letter is worth a read, and it starts and ends this way:

The Ohio Association of Chiefs of Police is opposed to the “stand your ground” provision of House Bill 203, which repeals a person's duty to attempt to retreat from danger, if possible, before resorting to deadly force against an attacker.  There is no problem with the current law.  Current law balances societal interests.  There are strong public policies for preserving the sanctity of life on one hand and, on the other hand, for allowing one to protect himself from harm....

[R]epealing the duty to retreat is a recipe for more violence, whereby killings currently considered to be criminal will become justifiable homicides.

Remove the duty to retreat and you remove a legal restraint that will allow pride, passion and ego to prevail over common sense.

November 23, 2013 in Current Affairs, Reflections on class readings | Permalink | Comments (8) | TrackBack

November 11, 2013

Readings on veterans and some modern criminal justice issues

Especially because the College of Law is taking the day off to celebrate Veterans Day, I thought it appropriate to urge students to check out two new posts of mine on other blogs discussing the challenges many vets face thanks to our modern criminal justice system:

November 11, 2013 in Current Affairs | Permalink | Comments (0) | TrackBack

September 15, 2013

Some serious real-world cases for debating a killer's mens rea

The Joe Izuzu hypo provided a relatively silly and relatively simple setting for getting comfortable with the mens rea concepts and definitions in the Model Penal Code and the Ohio Revised Code.  But there are plenty of real-world cases that make headlines every day that provide more serious and more challenging settings for working through these critical concepts. 

Here are two recent headline-grabbing stories which provide real-world opportunities to think about what mens rea a criminal defendant may have when acting in a manner that contributed to a person's death:

Both of these high-profile potential homicie cases involve lots of legal and policy issues besides just mens rea.  But think about whether you can try to ignore other concerns and issues, at least at the outset, and just think about what level of mens rea an Oliwood prosecutor might think she might be able to prove for the killer newlywed or the cyberbullies in these two real cases.

September 15, 2013 in Current Affairs | Permalink | Comments (7) | TrackBack

August 02, 2012

"Former Akron police captain excluded by DNA test"



(Comparative Criminal Procedure)




The title of this post is the headline of this new breaking new story about criminal procedure out of Ohio.  Here are excerpts:

New lab-test results show that DNA recovered from a murder scene in Summit County didn't come from a former Akron police captain who was convicted of killing his ex-wife nearly 15 years ago in a case that received national attention.

Douglas Prade, 66, is currently serving a life sentence at the Madison Correctional Institution, but has always maintained his innocence after being convicted in September of 1998. Prade was found guilty of shooting his ex-wife, Margo, a prominent Akron doctor and the mother of his two daughters. Margo was shot six times following a struggle in her van in a parking lot outside of her office.

“They are not going to find my DNA because I didn’t do it,” said Prade in a prison interview with the Dispatch last year. “This has always been about seeking and revealing the truth.”...

The DNA testing, conducted by DNA Diagnostics Center of Fairfield, north of Cincinnati, focused on the lab coat Margo was wearing during the attack and specifically a bite mark left by her killer. Testing results released today found male DNA present within the bite mark but it didn’t match Prade. Further testing of the lab coat performed by the Ohio Bureau of Criminal Investigations during the past several months didn’t detect the presence of other male DNA. Fingernail scrapings from Margo Prade and other items collected from the crime scene were also tested and excluded Douglas Prade’s DNA.

Attorneys at the Ohio Innocence Project, based at the University of Cincinnati, say the testing results prove Prade’s innocence and he should be exonerated. They are asking Summit County Common Pleas Judge Judy L. Hunter to set Douglas Prade free or, at the very least, grant him a new trial. A hearing in Akron to determine the significance of the new testing results is scheduled for Aug. 21....

[I]n a brief responding to the DNA tests prosecutors say the results don’t prove Prade’s innocence and point to other evidence presented at trial that should uphold his conviction. “The state stands by the jurors’ verdict,” the brief states. “A fundamental premise of our criminal trial system is that the jury is the lie detector.”

In their brief, prosecutors focus on evidence they presented at trial showing that Douglas Prade was having financial problems following his divorce from Margo. Police discovered a bank deposit slip with a list of debts written on the back of it. The total of those debts was subtracted from $75,000, the amount of Margo’s Prade’s life insurance policy on which Douglas Prade was listed as the beneficiary. Prosecutors say the date on the deposit slip, Oct. 8, 1997, show that he was already plotting Margo’s murder at least seven weeks before the attack in the parking lot.

But Douglas Prade has argued that he didn’t compile the financial list until several weeks after her his ex-wife’s death. His attorneys also say in their legal brief that Prade used more than half of the $75,000 from the life insurance policy to pay off Margo’s tax bills and he still had $18,000 remaining from the policy at the time of his arrest.

Douglas and Margo, 41, were married for 17 years before divorcing about seven months before she was killed.

Needless to say, this case is just the latest of examples highlighting some (unavoidable?) uncertainty about the accuracy of our criminal justice system.  But it also raises difficult issues concerning how to address accuracy questions raised long after a conviction.  (Also, before clicking through to the newspaper link, think about what you think might be the race and/or nationality of Douglas Prade.)

August 2, 2012 in Current Affairs, Notable real cases | Permalink | Comments (0) | TrackBack

July 24, 2012

Crown prosecutors looking at new charging guidelines

Kyle sent along this notable new criminal procedure article from the The Telegraph, which carries this headline and subheadling: "Criminals could avoid court in legal shake-up: Criminals arrested for offences such as minor assaults, theft and fraud could escape prosecution in the biggest shake-up of charging guidelines for 20 years." Here are excerpts from an interesting article raising interesting policy questions faced by all modern, advanced criminal justice systems:

Prosecutors would take no further action on suspects if they do not believe it is “proportionate” to take them to court, under proposals published yesterday.

It would mean factors such as cost and the length of a likely trial being taken into consideration when deciding whether to charge an offender. Prosecutors would even be asked to weigh such issues against the likely punishment a criminal would get if convicted.

It is the second time in three years that Keir Starmer, the Director of Public Prosecutions, has suggested such a move to bring “common sense” to prosecutions. It would be a dramatic shake-up of the so-called prosecutor’s code, which has been in operation since the 1950s, and would restore a “proportionality test” for the first time since 1992.

John Fassenfelt, chairman of the Magistrate’s Association, warned it could encourage prosecutors not to proceed in “more and more cases”.

The Code for Crown Prosecutors already requires them to consider whether it is in the “public interest” to charge a suspect. That includes considering factors such as the impact and harm the offence causes, the age of the suspect and previous offending.

Mr Starmer now wants to add an additional factor where prosecutors should consider “whether prosecution is proportionate to the likely outcome”. It would mean considering the “cost” to the Crown Prosecution Service and justice system “especially where it could be regarded as excessive when weighed against any likely penalty”.

The code stressed that must not be the only reason for not proceeding, but adds: “Cost is a relevant factor when making an overall assessment of the public interest.” Mr Starmer suggested that could mean offences that are likely to end in an absolute discharge by the court. However, the CPS was last night unable to expand on other scenarios as each would have to be considered on its merits.

It raises the prospect of low-level crime, such as a very minor assault or theft, being kept out of the courts. Prosecutors would also need to consider “effective case management” to avoid “excessively, long and complex proceedings”. That could mean individuals on the edge of a complicated fraud case not being charged so prosecutors could concentrate on the key participants in a shorter trial....

The proposed changes to the code are now open to consultation until October. Max Hill QC, chairman of the Criminal Bar Association, said: “If the intended meaning of proportionality is that expensive cases are only 'worth it’ if they lead to long prison sentences, it would be wrong.

“The case of John Terry [the footballer cleared of racism last week] was expensive, by the time court time and defence costs were factored in, but there were very clear public interest reasons for bringing it. Fortunately, I do not interpret the consultation to be proposing that we refrain from prosecuting such cases.”

The proposed changes are part of an attempt to streamline the public interest test in charging decisions, which is now narrowed down to seven broad questions, covering the issues of harm, age and proportionality, rather than a long list of specific factors....

Mr Starmer said: “The CPS handles 900,000 defendants each year ... and I want to see a stronger, smarter CPS, continuing to prosecute robustly and bringing offenders to justice for the good of the public and victims. I think this new code will help us meet that aim.”

July 24, 2012 in Current Affairs | Permalink | Comments (4) | TrackBack

July 12, 2012

"Global Efforts Not Up to Combating Criminals"

The title of this post is the main entry of this notable new website/resource created by the International Institutions and Global Governance Program of the Council of Foreign Relations.  Here is more of the stated concern:

With transnational crime proliferating at unprecedented levels and costing by some estimates over $2 trillion annually, IIGG's new Global Governance Monitor: Transnational Crime reveals gaps in the international anticrime system.

July 12, 2012 in Crime data, Current Affairs, Recommended scholarship | Permalink | Comments (0) | TrackBack

July 11, 2012

"Courts Putting Stop-and-Frisk Policy on Trial"

The title of this post is the headline of this notable new front-page article in today's New York Times, which gets started this way:

New York City’s accelerating use of police stop-and-frisk tactics has brought a growing chorus of opponents who have been matched in intensity only by the officials who defend the policy. But recent rulings by federal and state courts have now cast judges as the most potent critics of the practice, raising sharp questions about whether the city has sidestepped the Constitution in the drive to keep crime rates low.

The inescapable conclusion is that the city will eventually have to redefine its stop-and-frisk policy, legal experts say, and that the changes — whether voluntary or forced — will fundamentally alter how the police interact with young minority men on the streets.

Some legal experts say the police could be pushed into reducing the numbers of street stops of New Yorkers by hundreds of thousands a year, and that the proportion of stop-and-frisk subjects who are black and Latino would be sharply reduced.

A settlement last year of a class-action case involving stop-and-frisk policies in Philadelphia laid out a model that, if followed in New York, could call for the courts to supervise an imposed system of police monitoring and accountability.

The courts have been energized to step in, some lawyers say, as the debate has intensified over police tactics that have brought legal challenges, academic analysis and news coverage. “The decisions show that the courts are suspicious of the current police practices,” said Michael C. Dorf, a constitutional law professor at Cornell.

Randolph M. McLaughlin, a law professor at Pace University, said the new judicial attention was a product of the numbers: More than 80 percent of those stopped in New York are black or Latino, and last year there were 686,000 stops, with this year’s numbers heading higher. “People are starting to wonder: ‘What’s really going on here? Is this a racial policy?’ And judges read the newspaper too,” Professor McLaughlin said.

UPDATE:  Here is a fascinating new follow-up article in the New York Times concerning the use (and misuse?) of stop-and-frisk techniques in Philadelphia, which gets started this way:

Mayor Michael R. Bloomberg of New York was dismissive when asked if his police department, under siege for the way it uses the stop-and-frisk tactic, might take a lesson from Philadelphia’s response to a similar challenge.  “Why would any rational person want to trade what we have here for the situation in Philadelphia — more murders, higher crime?”  Mr. Bloomberg said in May, referring to an epidemic of gun violence that in 2010 pushed Philadelphia’s homicide rate up for the first time since 2007, an increase that continued last year.

City leaders here see it differently.  A year after they settled litigation by agreeing to institute a host of safeguards to make sure police stops were conducted legally, they say they are simply doing what is needed to make sure that aggressive crime fighting is accompanied by a respect for civil rights.  As part of the agreement, the Police Department has set up an electronic database to track the legality of stops, adopted new training protocols and accepted oversight by an independent monitor.

Philadelphia’s willingness to put police procedures under the microscope has won praise even from the civil rights lawyers who in 2010 filed a class-action lawsuit, accusing police officers of disproportionately stopping African-American and Hispanic men without sufficient cause.  “The city agreed almost immediately after we filed suit to come to the table and discuss an amicable resolution,” said Paul Messing, one of the lawyers, adding that he thought Mayor Michael A. Nutter and other officials “understood that this presented serious constitutional concerns.”

Yet finding the right balance has not been easy.  City officials have watched in frustration as homicides have continued to climb.  As of late Tuesday, 189 people had been killed in the city this year, compared with 169 at the same time in 2011.

In most cases, Police Commissioner Charles H. Ramsey said, both the victims and the perpetrators have been black or Hispanic men.  “I think we have to face some realities,” said Commissioner Ramsey, who is black.  “We certainly do not want to be stopping people without the reasonable suspicion that we need to conduct a stop.  But just because someone is complaining and they want to play the race card doesn’t mean it’s an inappropriate stop.”  The total number of stops, he said, is not the issue. “The question is: Are you stopping the right people for the right reason?”

Philadelphia, like New York, increased the use of the stop-and-frisk tactic, arguing that it would help remove guns from the streets and serve as a deterrent.  In his 2007 mayoral campaign, Mr. Nutter promised to use the strategy to help combat a “crime emergency” in some neighborhoods.  That year, police officers made 136,711 pedestrian stops.  Two years after Mr. Nutter was elected, in 2009, the number nearly doubled to 253,276 — higher proportionally, in a city of 1.5 million, than the 685,724 stops made by police officers in New York last year.

Commissioner Ramsey said many factors could be driving the increase in homicides, including reductions in police department staffing and the fact that “we have an enormous problem with guns in Philadelphia”; the penalties for possession of an illegal firearm in New York are far tougher than in Pennsylvania, he noted.

But he also said that after Philadelphia increased the use of the stop-and-frisk tactic a few years ago, gun violence decreased. There was a 22 percent reduction in homicides from 2007, a year before the policy began, to 2009, “and our shootings went down.” he said.

Mr. Messing, the civil rights lawyer, said the problem was that as the number of stops escalated, the number of complaints he received grew even faster. “We were seeing huge numbers of stops being made without legal cause,” he said, adding that very few arrests were made and that guns were seized in about only 1 in 1,000 stops.

July 11, 2012 in Crime data, Current Affairs | Permalink | Comments (0) | TrackBack

July 10, 2012

"Londoners fight Olympic missiles at high court"

The title of this post is the headline of this notable article sent my way by Blaise (who has now earned extra credit for sending this my way).  Here is how the story starts:

London residents went to court on Monday to stop the government placing surface-to-air missiles on top of their apartment block during the Olympics, saying it could make them a target for attacks.

Britain's Ministry of Defence confirmed last week that the missile systems would be deployed at six sites across the capital during the Games to provide a "powerful deterrent" against a terror attack from the air.

Tenants of one of two blocks of flats near the Olympic Park in Stratford, east London, on which missiles will be based launched legal action last week, saying that the move would breach their human rights.

Lawyer Marc Willers, representing a group of residents from the Fred Wigg Tower in Leytonstone, east London, told a judge at London's high court the "unprecedented" move had caused them to fear for their safety.

"They have a fully justified fear that installation or deployment of the missile system on the roof of the Fred Wigg Tower gives rise to the additional risk that the tower itself may become the focus of a terrorist attack," he said.

Residents from the block of more than 100 local authority-owned homes are seeking an injunction to stop the systems being stationed there, claiming their rights have been breached because they were not consulted on the plans.

Defence Secretary Philip Hammond has said the MoD will defend the proceedings "vigorously" and is confident of defeating them.

Though not clarified in this article, I would guess that the residents here may be citing for their claims to one or both of two major modern international and regional human rights conventions: the International Covenant on Civil and Political Rights (“ICCPR”) and/or the European Convention for the Protection of Human Rights and Fundamental Freedoms (“ECHR”).

UPDATE:  Blaise has now sent along this follow-up AP story, which is headlined "Judge OKs rooftop missiles during London Olympics."

July 10, 2012 in Course materials and schedule, Current Affairs, Notable real cases | Permalink | Comments (3) | TrackBack

July 08, 2012

Recent Olympics security headlines (and food for police practices thought)

As we launch into a week of discussion about police practices, here are links to some recent stories about security issues surrounding the upcoming Olympics:

UPDATE:  This big front-page story from 9 July 2012 New York Times provides some more food for thought concerning police practices (and "consent-based" searching).  The piece is headlined "More Demands on Cell Carriers in Surveillance," and it begins this way:

In the first public accounting of its kind, cellphone carriers reported that they responded to a startling 1.3 million demands for subscriber information last year from law enforcement agencies seeking text messages, caller locations and other information in the course of investigations.

The cellphone carriers’ reports, which come in response to a Congressional inquiry, document an explosion in cellphone surveillance in the last five years, with the companies turning over records thousands of times a day in response to police emergencies, court orders, law enforcement subpoenas and other requests.

The reports also reveal a sometimes uneasy partnership with law enforcement agencies, with the carriers frequently rejecting demands that they considered legally questionable or unjustified. At least one carrier even referred some inappropriate requests to the F.B.I.

The information represents the first time data have been collected nationally on the frequency of cell surveillance by law enforcement.  The volume of the requests reported by the carriers — which most likely involve several million subscribers — surprised even some officials who have closely followed the growth of cell surveillance.

“I never expected it to be this massive,” said Representative Edward J. Markey, a Massachusetts Democrat who requested the reports from nine carriers, including AT&T, Sprint, T-Mobile and Verizon, in response to an article in April in The New York Times on law enforcement’s expanded use of cell tracking.  Mr. Markey, who is the co-chairman of the Bipartisan Congressional Privacy Caucus, made the carriers’ responses available to The Times.

While the cell companies did not break down the types of law enforcement agencies collecting the data, they made clear that the widened cell surveillance cut across all levels of government — from run-of-the-mill street crimes handled by local police departments to financial crimes and intelligence investigations at the state and federal levels.

July 8, 2012 in Course materials and schedule, Current Affairs | Permalink | Comments (5) | TrackBack

July 07, 2012

Headlines concerning big Oxford local crime news

Here are links to some recent reports and discussions of a notable on-going crime story here in Oxford:

July 7, 2012 in Current Affairs, Notable real cases | Permalink | Comments (3) | TrackBack

January 07, 2011

Welcome back (and feel free to come by)

Hey folks.  Long time no see.  I have been thinking of you all not only as I try to wrap up my grading, but also as I worry if you are in the "right" frame of mind for returning to law school.  I am not really sure what the "right" frame of mind is, but I am sure that the Spring Semester of the 1L year can be even tougher socially and emotionally than the Fall Semester (in part because the "newness" factors and virtues are gone and the stress realities and annoying factors remain).

If you want or need a pep talk, feel free to stop by for a chat in the days and weeks ahead.  Indeed, feel free to vent on this blog, as you no longer need to try to impress me and can thus be even more candid about how Moritz and your professors are treating you.  In addition, I remain willing/eager to provide feedback on any writing samples or job hunts or any other professional (or personal) concerns you have these days.

January 7, 2011 in Advice, Current Affairs | Permalink | Comments (3) | TrackBack

November 30, 2010

"Was FBI grooming Portland suspect for terror?"

The title of this post is the headline of this article in the Seattle Times, which stuck me as blog-worthy in light of our class discussions today.  Here is how the piece starts:

FBI undercover operatives helped fund Mohamed Osman Mohamud's would-be terrorism plot to detonate a car bomb during a Christmas tree-lighting ceremony on Friday at a crowded public square in the heart of the city.

Operatives helped him find components needed to create a bomb and schooled the 19-year-old Somali-born man in how to set off the explosives. The sting operation enabled the FBI to amass a formidable amount of details about what a grand-jury indictment Monday charged was Mohamud's attempt to use a car bomb as a "weapon of mass destruction."

But Mohamud's attorneys and some local Muslims are raising questions about whether the operatives who posed as co-conspirators played their role too well. Defense attorney Steve Sady questioned whether the operatives were "basically grooming" Mohamud to try to commit a terrorist attack.

"The information released by the government raises serious concerns about the government manufacturing a crime," according to a statement released by Sady and Steven Wax, public defenders assigned to represent Mohamud.

Mohamud, through his attorneys, pleaded not guilty on Monday.

Law-enforcement officials say that they gave Mohamud plenty of opportunities to opt out of the bomb plan and that he was committed to carrying out the crime at the time, place and location of his choosing.

"I am confident there is no entrapment here," Attorney General Eric Holder said Monday in Washington, D.C. "There were ... a number of opportunities ... that the defendant in this matter was given to retreat, to take a different path. He chose at every step to continue."

November 30, 2010 in Current Affairs, Notable real cases | Permalink | Comments (11) | TrackBack

November 14, 2010

"'Castle doctrine' coming under fire; Critics: Right to kill intruder is being used to defend criminals"

The title of this post is the headline of this timely article appearing in today's Columbus Dispatch.  Here is how the article gets started:

Ohio prosecutors warned two years ago that the "castle doctrine" would add an unwelcome page to the playbook of criminal-defense lawyers.

The 2008 law, designed to protect the grandmother who shoots an intruder in her home in the middle of the night, increasingly is being used to defend murder suspects as not legally responsible for their deeds.

The castle doctrine states that people are presumed to be acting in self-defense when they use deadly force and injure or kill someone who illegally enters their occupied home or vehicle.

But critics say the law is silent about the appropriate level of force in response to threats, as well as the fault or criminal conduct of people who create situations that imperil themselves. "It was not made to protect drug dealers from drug dealers, but that's how it's being used," Pike County Prosecutor Rob Junk said.

In rural Pike County, a man who ripped off a drug dealer's wares shot the dealer through the heart after he broke a window in an attempt to enter the defendant's car. Defense attorneys contended that the man acted lawfully. A jury convicted him of reckless homicide rather than murder.

In Franklin County, a man fatally stabbed an acquaintance who pushed his way into the defendant's home during an argument. His attorneys said the law granted him an absolute right to defend himself with deadly force. The prosecution countered that the law "is not a license to commit murder."

November 14, 2010 in Current Affairs, Notable real cases | Permalink | Comments (2) | TrackBack

November 02, 2010

Open thread for Election Day (and Oliwood legislators)

Exciting times today with contested elections all over the place, and with the Oliwood legislature in session to consider proposals to reform the state's rape law.  This post provides an open thread for anyone and everyone eager to raise questions or make comments about any part of today's activities.

Here is one key question for collective consideration that merges today's events:  Have any major contested races in Ohio or elsewhere focused on criminal justice issues and need Oliwood legislators worry about what future political opponents might say about how they respond to proposals to reform the state's rape law?

UPDATE:  Kudos to all the members of the Oliwood legislature for a job well done, especially all of the drafters of proposed legislation. 

As a follow-up to the prior inquiry, I wonder if any of the legislators would have acted/spoken differently if he/she knew that our legislative session was being recorded and streamed/archived on the internet.  That is what all Ohio legislators now know.

November 2, 2010 in Course materials and schedule, Current Affairs | Permalink | Comments (2) | TrackBack

September 30, 2010

Looking at the sad Rutgers case through the lens of criminal law doctrine

The media is starting to buzz a lot about a sad back-to-school story coming from Rutgers.  This link gets you to a segment about the case from the Today show, and here are the basics via MSNBC:

The suicide of a university student — after a recording of him having a sexual encounter with a man was broadcast online — has stirred outrage and remorse on campus from classmates....

A lawyer for Clementi's family confirmed Wednesday that he had jumped off the George Washington Bridge last week....

Clementi's roommate, Dharun Ravi, and fellow Rutgers student Molly Wei, both 18, have been charged with invading Clementi's privacy.  Middlesex County prosecutors say the pair used a webcam to surreptitiously transmit a live image of Clementi having sex on Sept. 19 and that Ravi tried to webcast a second encounter on Sept. 21, the day before Clementi's suicide.

Collecting or viewing sexual images without consent is a fourth-degree crime. Transmitting them is a third-degree crime with a maximum prison term of five years.

Ravi wrote Sept. 19 on what is believed to be his Twitter page, which has since been deleted, but is still accessible though Google's cache system: "Roommate asked for the room till midnight. I went into molly's room and turned on my webcam.  I saw him making out with a dude. Yay."

Two days later, Ravi apparently posted another entry referring to iChat, an internet messaging service with a live video feed.  "Anyone with iChat, I dare you to video chat me between the hours of 9:30 and 12. Yes it's happening again," Ravi wrote in the Sept. 21 post.

The website Gawker reported that a user called cit2mo who posted messages on a website called JustUsBoys may have been Clementi.  In a thread called "college roommate spying," the post from cit2mo on Sept. 21 at 7:22 a.m. said: "so the other night i had a guy over. I had talked to my roommate that afternoon and he had said it would be fine w/him. I checked his twitter today. he tweeted that I was using the room (which is obnoxious enough), AND that he went into somebody else’s room and remotely turned on his webcam and saw me making out with a guy. given the angle of the webcam I can be confident that that was all he could have seen," cit2mo wrote.

"I’m kinda pissed at him (rightfully so I think, no?) ... I feel like the only thing the school might do is find me another roommate, probably with me moving out … and i’d probably just end up with somebody worse than him ... I mean aside from being an asshole from time to time, he’s a pretty decent roommate," he added.

He added at 9:28 a.m. that day, that "I feel like it was 'look at what a fag my roommate is' ... and the fact that the people he was with saw my making out with a guy as a scandal whereas i mean come on ... he was SPYING ON ME ... do they see nothing wrong with this? unsettling to say the least."

ABC News and The Star-Ledger of Newark reported that on Sept. 22 Clementi left a note on his Facebook page that read: "Jumping off the gw bridge sorry." On Wednesday, his Facebook page was accessible only to friends. 

In addition to being eager to hear student responses to this sad story, I want to know whether and how you think criminal law doctrines will play out in this kind of case. And the first students to provide links to the New Jersey criminal law statutes referenced in this story get extra Berman brownie points.

September 30, 2010 in Current Affairs, Notable real cases | Permalink | Comments (6) | TrackBack

January 01, 2009

Any special predictions and/or resolutions for 2009?

A new year, a new President, a new semester of law school, a new set of classes and professors, a new set of grades for courses completed last year ... law students have so many interesting things to look forward to as we start 2009.

In addition to wanting folks to share their (law-related?) predictions and/or resolutions for 2009, I also encourage everyone to take a few minutes to look back on all the great 2008 reflections to be found in the comments to these recent posts:

January 1, 2009 in Current Affairs | Permalink | Comments (3) | TrackBack

September 25, 2008

New Sentencing Project report on felon disenfranchisement

In these comments to a prior post, a few class members talked about felon disenfranchisement.  Anyone interested in this important topic (which also highlights state law variations), should be sure to a new report from The Sentencing Project. The report, titled "Expanding the Vote: State Felony Disenfranchisement Reform, 1997-2008," is available at this link.

September 25, 2008 in Current Affairs | Permalink | Comments (1) | TrackBack

Terminator signs bill to terminate DWT (driving while texting)

In light of the recent railway tragedy, this story in the Los Angeles Times was not a big suprise, "Schwarzenegger outlaws text-messaging while driving."  Here are excerpts:

California drivers chafing at the ban on holding cellphones can soon forget about texting, too: Gov. Arnold Schwarzenegger has banned motorists from sending, writing or reading messages on electronic devices starting Jan. 1.  Schwarzenegger signed legislation Wednesday that imposes a $20 fine for a first offense of texting while driving and a $50 fine for any subsequent violation....

Schwarzenegger said in a statement that he was "happy to sign" the prohibition against text-messaging, which surveys show is widespread among drivers.  "Banning electronic text messaging while driving will keep drivers' hands on the wheel and their eyes on the road, making our roadways a safer place for all Californians," said Schwarzenegger....

Insurers, bicyclists and cellphone companies backed the measure that Schwarzenegger signed Wednesday, as they did the ban on holding a cellphone while driving, which took effect July 1. The earlier law allows drivers to use cellphones only with hands-free devices such as headsets; another law prohibits drivers younger than 18 from using any kind of phone or texting device while behind the wheel.

September 25, 2008 in Current Affairs | Permalink | Comments (5) | TrackBack