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November 03, 2018

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

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

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

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

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

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

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

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

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

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

November 3, 2018 in Class reflections, Course materials and schedule, Notable real cases | Permalink | Comments (1)

October 10, 2018

Sad tales (and criminal charges) involving dangerous business practices then and now

If you are interested in more of the sad particulars on the events that led to the Welansky case, here is a link to a 20-minute documentary with a partial recreation of the events at Coconut Grove.

Meanwhile, this news out of New York, headlined "Operator of limo in fatal upstate N.Y. crash charged with criminally negligent homicide," provides a high-profile example of one persistent lesson of the Welansky case: dangerous business decisions resulting in a pile of bodies will often lead to criminal charges. From the start of the article:

The operator of the limousine company whose vehicle was involved in the fatal crash that killed 20 people Saturday in upstate New York has been arrested and charged with criminally negligent homicide, state police told NBC News.

Nauman Hussain, the operator of Prestige Limousine, was taken into custody after a traffic stop on Wednesday, New York State Police said. He was charged with a single count of criminally negligent homicide, but the charge lists all 20 victims, police said.

October 10, 2018 in Notable real cases | Permalink | Comments (1)

October 08, 2018

Ohio's approach to provocation in its version of Berry case, Ohio v. Shane, 63 Ohio St. 3d 630 (1992)

As mentioned in class, Ohio has its own case somewhat similar to the Berry case from California in our casebook.  This case, Ohio v. Shane, 63 Ohio St. 3d 630 (1992), is worth a full read and it starts and ends this way:

The issue certified for our review is the proper allocation of the burden of proof when a judge gives an instruction on voluntary manslaughter in a murder prosecution. However, for the reasons which follow, we do not reach the certified issue, but affirm the judgment of the court of appeals on different grounds.

The trial judge instructed the jury on voluntary manslaughter prior to its deliberations. Because we determine that the evidence of provocation presented by Shane was insufficient, as a matter of law, to warrant an instruction on voluntary manslaughter, we find that the trial judge should have refused to give the jury an instruction on that offense.  The fact that the trial judge did give the instruction was harmless error....

When reasonably sufficient evidence of provocation has not been presented, no jury instruction on voluntary manslaughter should be given.  In this case, the provocation that allegedly caused Shane to act under the influence of sudden passion or in a sudden fit of rage was not reasonably sufficient, as a matter of law, to incite him to use deadly force.  We find that no reasonable jury could have found Shane not guilty of murder, but guilty of voluntary manslaughter.  Accordingly, the judgment of the court of appeals upholding defendant's murder conviction is affirmed.

October 8, 2018 in Notable real cases | Permalink | Comments (0)

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)

October 02, 2018

"Meet a convicted felon who became a Georgetown law professor"

Images (15)The title of this post is the title of this 60 Minutes segment that started this way:

Jailhouse lawyers are prisoners who manage to learn enough about the law while incarcerated to help themselves and other inmates with legal problems.  We get letters from them every week.  Tonight we are going to reintroduce you to Shon Hopwood, who is arguably the most successful jailhouse lawyer ever, having had one of his cases argued before the U.S. Supreme court while serving a 12-year sentence for armed bank robbery. Since his release he's built up an extraordinary resume as a legal scholar, and has been published in top law journals.  We first met him last fall at one of the nation's premier law schools where he's become its newest professor. A tale of redemption as improbable as any you're likely to hear.

Excitingly, Shon Hopwood will be at Moritz for the next Issue 1 panel at noon in 352 Drinko. In addition, Shon and I will be hanging out in room 455 from about 10:30am until noon for anyone who would like a chance to talk with him about his experiences or his work for criminal justice reform.

A companion piece on the 60 Minutes story available here is titled "Kroft: Prison lawyer is "one of the best characters" in decades of reporting." And this Washington Post piece on Shon is headlined "He robbed banks and went to prison. His time there put him on track for a new job: Georgetown law professor." Here is how it starts:

During a break in a basketball game to raise money for charity, Shon Hopwood told some of his Georgetown law students it felt different than the last time he was on a court: When he played basketball in federal prison, he had to carry a shank in case his team started to lose. His students laughed. He ran back onto the law-school court — and sank the winning shot.

Hopwood’s new job as a tenure-track faculty member at the Georgetown University Law Center is only the latest improbable twist in a remarkable life: In the last 20 years, he has robbed banks in small towns in Nebraska, spent 11 years in federal prison, written a legal petition for a fellow inmate so incisive that the U.S. Supreme Court agreed to hear the case, done that again, earned undergraduate and law degrees and extremely competitive clerkships, written a book, married his hometown crush and started a family.

But this could be his most compelling role yet. His time in prison gave him an unusual perspective on the law that allows him to see things other lawyers overlook, and a searing understanding of the impact of sentencing and the dramatic growth in incarceration in the United States.

“It’s one of the big social-justice issues of our time,” he said. The United States has 5 percent of the world’s population but 25 percent of its prisoners. “Between prison, jail, home confinement, probation, parole, combined it’s about 10 million people. It’s a big number.” And almost three-quarters of released prisoners are back in custody five years later. He hopes to change some of that.

October 2, 2018 in Notable real cases | Permalink | Comments (0)

September 26, 2018

A few Ohio cases with contested causation

As I mentioned in class, Ohio tends to adopt "common law" approach to causation doctrines.  In this post on this blog a few years ago, I flagged four of the very rare Ohio criminal cases in which causation doctrines are discussed.  Here are two of those cases I consider the most interesting on the facts, and I will here just provide the cites and facts.  You will have to look up the cases if you want to see how they worked out:

1.  Ohio v Lovelace, 137 Ohio App. 3d 206 (1st Dist. App. 1999), gets started this way:

The issue in this appeal is whether a person who leads police on a high-speed car chase can be found guilty of involuntary manslaughter when one of the police cruisers in pursuit runs a stop sign and collides with another vehicle, killing the driver. The answer turns on whether the evidence was sufficient to support the jury's finding that the defendant-appellant, Paul Wayne Lovelace, should have foreseen the fatal accident as a consequence of his own reckless behavior. At the time of the accident, Lovelace was driving a stolen car and had already led Ohio and Kentucky police on a multi-car chase that reached speeds of one hundred miles per hour, crossed back and forth over the Ohio River, and caused several collisions and near collisions in both states.

Lovelace argues that he cannot be guilty of involuntary manslaughter because he could not possibly have foreseen that the officer would disregard the stop sign — although he had done so himself only moments before.  In his view, the police officer's failure to stop was an intervening cause of the accident, absolving him of criminal responsibility.  Lovelace also contends that his trial was unfair because the trial court's evidentiary rulings deprived him of the opportunity to present crucial evidence, and because the jury instructions misled the jury on the critical issue of proximate cause.

2.  Ohio v Voland, 716 N.E.2d 299 (Ohio Com. Pl. 1999), involves these essential facts:

[T]he defendant, while under administrative license suspension growing out of her arrest for driving under the influence of alcohol, drove her vehicle from the western side of Hamilton County to the Cincinnati Sand Volleyball Courts ... accompanied on that drive and at the courts by her daughter, Alexandria, age four, and a cousin, Ashley Weaver, age twelve.... At some point after her arrival at the Cincinnati Sand Volleyball Courts, Voland was approached by her cousin, Ashley Weaver, who complained that she was hot and bored. Ashley Weaver was watching Voland’s daughter, Alexandria.

At that time, the defendant gave her twelve-year-old cousin the keys to her car so that Ashley could get in and start the car to permit the air conditioning to work, allowing Ashley and Alexandria to cool off and wait while defendant played volleyball.  The two children got into the car, started the car, turned on the air conditioning, and listened to the radio. They played in the car while the engine was running, in excess of ninety minutes unattended, with the exception of one visit by defendant. During the one visit, defendant did not notice any attempts to move the vehicle.

At approximately 8:10 p.m., with the two girls playing in the automobile and the engine running, the car lurched forward, over a parking block six to eight inches in height, across a short, grassy area of four to six feet, where the auto struck a fence.  The fence, approximately six to eight feet in height, had a four-by-four post nailed vertically to it, apparently to seam two sections of the fence together. This fence post cracked and fell to the ground on the inside of the fence, striking Steven Smith in the head, causing injuries that resulted in his death.

Any students eager to earn extra credit should feel free to use their new Lexis skills to look for, and report in the comments, more recent interesting causation cases from Ohio courts.

September 26, 2018 in Course materials and schedule, Notable real cases | Permalink | Comments (3)

September 21, 2018

Some "recent" SCOTUS cases on causation in federal law

As I mentioned in class, not too long ago the Supreme Court issued rulings in a couple of cases dealing with some causation issues we will be discussing.  You are NOT required or even expected to read these cases, but you might still find it interesting to see the settings in which SCOTUS can confront issues that we are reviewing.  Here are links to the rulings, along with the start of the Court's opinion in each case:

Burrage v. United States (January 2014):  "The Controlled Substances Act imposes a 20-year mandatory minimum sentence on a defendant who unlawfully distributes a Schedule I or II drug, when 'death or serious bodily injury results from the use of such substance.' 21 U.S.C. §841(a)(1), (b)(1)(A)–(C) (2012 ed.).  We consider whether the mandatory-minimum provision applies when use of a covered drug supplied by the defendant contributes to, but is not a but-for cause of, the victim’s death or injury."

Paroline v. United States (April 2014): "This case presents the question of how to determine the amount of restitution a possessor of child pornography must pay to the victim whose childhood abuse appears in the pornographic materials possessed.  The relevant statutory provisions are set forth at 18 U.S.C. §2259.  Enacted as a component of the Violence Against Women Act of 1994, §2259 requires district courts to award restitution for certain federal criminal offenses, including child-pornography possession.

"Petitioner Doyle Randall Paroline pleaded guilty to such an offense.  He admitted to possessing between 150 and 300 images of child pornography, which included two that depicted the sexual exploitation of a young girl, now a young woman, who goes by the pseudonym “Amy” for this litigation.  The question is what causal relationship must be established between the defendant’s conduct and a victim’s losses for purposes of determining the right to, and the amount of, restitution under §2259."

September 21, 2018 in Course materials and schedule, Notable real cases | Permalink | Comments (0)

September 17, 2018

How Rhode Island changed its child abuse law after Lima

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

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

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

As I mentioned in class, I will be eager to start our next class by hearing comments on why we think New York's legislature amended one statute to eliminate a mens rea requirement, but Rhode Island's legislature amended a distinct statute to add/enhance a required mens rea.   Or, better yet, start the discussion in the comments.

September 17, 2018 in Course materials and schedule, Notable real cases | Permalink | Comments (2)

September 10, 2018

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

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

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

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

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

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

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

September 10, 2018 in Class reflections, Notable real cases | Permalink | Comments (1)

August 31, 2018

Examples of litigation involving Ohio Revised Code Section 2923.24

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

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

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

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

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

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

August 31, 2018 in Class reflections, Notable real cases | Permalink | Comments (0)

August 29, 2018

Hot topics from another blog ... and a research question

Though only this blog is required reading for this course, my other blogs, Sentencing Law & Policy and Marijuana Law, Policy & Reform, may often have posts of interest to you that may relate in various ways to topics we have covered in class.  For example, the Eighth Amendment Supreme Court cases we discussed briefly in class last week have led to lots of litigation in lower state and federal courts, and here are a few recent posts reporting on some of that litigation:

And a topic we will be discussing further on Friday, namely the criminal law's refusal to allow criminalizing bad thought alone, is explored in a recent law review article blogged here:

Please know you are NOT required or expected or even encouraged to read all the material linked here or at any of my blogs.  Rather, as I discussed in class, I am just ever eager to showcase how much is available to research, read and consider on all the topics we will encounter in our review of the basics of substantive criminal law.  Let your interests and energy determine whether to check out any of these materials.

Speaking of having interest or energy to research matters discussed in class, I have an (entirely optional) research challenge based somewhat on our on-going discussion of the Proctor case.  As we will discuss on Friday, the ruling in Proctor is somewhat unusual in that courts are often willing to uphold and apply statutes that criminalize seemingly "innocent" acts coupled with nefarious intent.  In fact, there are more than a few Ohio criminal statutes structured similarly to the statute deemed unconstitutional in Proctor.  I will showcase one of these Ohio criminal statutes in class on Friday as we wrap up our discussion of Proctor, but perhaps folks can do their own research to find Ohio examples and provide a cite in the comments.

August 29, 2018 in Course materials and schedule, Notable real cases | Permalink | Comments (1)

August 22, 2018

What theories of punishment will be (and should be) paramount in the upcoming sentencings for Michael Cohen and Paul Manafort?

We have not yet even had our second class and there are real-world developments that we can and should work into our discussions.  Specifically, as you likely heard, Michael Cohen pleaded guilty to multiple federal felonies in New York yesterday (a few details here), and Paul Manafort was found guilty by a jury of multiple federal felonies in DC yesterday (a few details here).  Though a white-collar crime course is needed to understand the ins and outs of their prosecution, your readings this week should already given you an ability to understand and critically assess the federal sentencing law's reference to classic theories of punishment.

Specifically, US Code, Title 18, Section 3553(a) sets forth a detailed list of "Factors To Be Considered in Imposing a Sentence" for federal judges, and in class we may talk about about the different punishment theories referenced in various ways in subsection (a)(2) of 18 USC 3553.  I do expect to talk in class about how you think these factors ought to be applied to Cohen and Manafort, but I would welcome commentary on this question in the comments to this post or on my main blog.

August 22, 2018 in Notable real cases | Permalink | Comments (0)

November 07, 2017

Interesting local verdict in case that reads like an exam question

Though we are moving on from our self-defense discussions to other defenses, I think it useful to know and notice that defensive use of force is the most widely invoked and widely litigated of all the classic basic criminal law.  As but one example of its importance, today on the CrimLaw professor list-serve there has been an (academic?) accounting of whether and how, under Texas law, it would be defensible for citizens in Texas to have been trying to kill the mass church shooter once he was in his car and fleeing the scene.

As another more local example of self-defense doctrines in action, consider this Columbus Dispatch article in today's paper.  The article is headlined "Jury acquits man in fatal shooting during street brawl," and here are the details:

Earl M. Lindsey testified that he feared for his life when an unarmed man threw a punch at him and a large group of people, some with guns, surrounded him in a South Side intersection.

So, Lindsey said, he pulled a handgun and fired a single shot into Rashawn M. Wilson’s chest. Wilson, 18, died six days later. “I didn’t have any other option,” Lindsey told a Franklin County jury last week.

On Monday, the jury acquitted him of murder, determining that he acted in self-defense.

Wilson’s mother responded to the verdict by cursing at Lindsey after the jurors had been excused. “You put a bullet in my son,” she shouted as deputies hustled her from the courtroom.

Lindsey testified last week that he saw at least three people with guns and heard two gunshots as a crowd converged on him during a street brawl at the intersection of East Gates and Ann streets on May 23, 2016. Wilson “swung on me,” Lindsey said, but he never saw a gun in Wilson’s hands.

To shoot Wilson under those circumstances was “extreme, unnecessary and unjustified,” Assistant Prosecutor Mark Wodarcyk told the jury Monday in his closing argument. “At most, Rashawn was going to engage in a fist fight.”

Seconds after Lindsey shot Wilson, a neighbor fired at Lindsey from a nearby front porch, striking Lindsey in the side of the neck. The bullet remains lodged near Lindsey’s spine and left him with some paralysis. He wasn’t able to fully lift his right hand when he was sworn in before testifying.

The neighbor, Aaron Mahan, wasn’t part of the confrontation in the street. He testified that he fired when Lindsey pointed the gun in his direction after shooting Wilson. “I shot the guy who shot the kid,” he said.

Mahan, who said he is a concealed-carry instructor, was not charged in the case.

Testimony established that the fatal encounter began with a fist fight among several young women. Lindsey said he was trying to separate the combatants when a large group of people, some with guns, began to close in on him. Wodarcyk called it “a simple neighborhood fight” and said Lindsey “decided to put himself in the middle of it with a loaded handgun.”

Defense attorney Byron Potts argued to the jury that Lindsey was justified in using deadly force because he was surrounded by a large crowd that included “multiple people with guns.”

Based on this description of the case, is anyone surprised that Earl Lindsey was acquitted here in Ohio. If the case was tried in Oliwood, do you think the outcome might have possibly been different?

Also, is anyone surprised or troubled that neighbor Aaron Mahan was not charged with any crime?

November 7, 2017 in Notable real cases, Preparing for the final | Permalink | Comments (1)

October 23, 2017

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

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

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

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

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

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

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

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

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

October 23, 2017 in Class reflections, Notable real cases | Permalink | Comments (1)

October 17, 2017

Some notable recent examples of involuntary manslaughter charges in Ohio

As noted (too) briefly in class, Ohio has a somewhat unique set of involuntary manslaughter provisions because they do not address reckless killing, but do cover deaths caused as a proximate result of other criminal activities.  Of late, one can find lots of different local stories of involuntary manslaughter charges being filed after a person dies from an opioid overdose.  Some examples of these stories, along with a few other recent cases in which Ohio prosecutors brought involuntary manslaughter charges, are linked below:

Woman Charged After 12-Year-Old Boy Dies From Fentanyl Overdose During Sleepover

Ohio Man Charged with Involuntary Manslaughter for Fentanyl Overdose Death

Woman gets 8 years in prison in fatal drug overdose

Akron man sentenced to 10 years in prison for overdose deaths of two Stow women; victim’s mother forgives, ‘will never forget’

Cleveland dinner-party host indicted in unintentional fatal shooting of guest

Trucker pleads no contest in 2016 death: Maumee woman, 20, killed in U.S. 24 crash

New Franklin woman charged in crash that killed two Coventry students

Though nobody should feel compelled to review all these stories, it might be useful to review some of the facts in these cases in order to imagine how a prosecutor in Oliwood might consider possible homicide charges under the Model Penal Code.

October 17, 2017 in Notable real cases | Permalink | Comments (0)

October 15, 2017

How does (and how should) homicide law respond to the drunk driver who kills?

As we wrap up the homicide unit, we will a look at how the law deals with drunk (and drugged) driving that results in an unintended death.  As a matter of "raw" numbers, this is arguably the most consequential aspect of our homicide unit: data from 2015 indicate that there were more drunk/drugged driving deaths than all types of intentional homicides throughout the US in that year.  As we will discuss, in many jurisdictions drunk driving cases can possibly be prosecuted under many possible forms of homicide ranging from vehicular homicide to negligent homicide to manslaughter to murder.

As time permits, I plan to have an extended in-class discussion of how you think homicide law should treat the "standard" drunk driver (first offense, relatively low BAC) who causes a single death, as well as the "extreme" drunk driver (repeat offense, high BAC) who causes multiple deaths.  The first part of that discussion will explore what level of homicide liability is available under current laws (particularly, of course, in Oliwood and Ohio), and then we will turn to a discussion of what kinds of liability and kinds of punishments you think ought to be applied in these cases.

I would welcome this discussion getting a running start in the comments here, and perhaps a case out of Florida discussed on my sentencing blog provides an interesting starting point.  This case involves Daniel Phillips who, with methamphetamine in his system, fell asleep at the wheel of his truck and slammed into another car killing two women on a rural Florida road.  Interestingly, though the defendant was convicted only of "DUI manslaughter" under Florida law, he was eligible for and did receive a life without parole sentence for his crimes.

Also, for various perspectives on these enduring issues, here is a national and a local article discussing these crimes and punishments:

Drunken driving homicide: Is it an accident or murder?

Vehicular homicide sentences not harsh enough, say victims' families

October 15, 2017 in Course materials and schedule, Notable real cases | 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)

October 04, 2017

More on Ohio's unique history and application of "prior calculation and design"

In case anyone wishes to dig even deeper into the unique phrasing of Ohio Revised Code Section 2903.01(A), the provision was the subject of an Ohio Supreme Court ruling late last year. In State v. Walker, 2016-Ohio-8295 (Ohio Dec. 23, 2016) (available here), the Court split over whether the trial evidence was sufficient to sustain a jury finding of "prior calculation and design." In so doing, the Walker Court provides this bit of legal history:

When the Revised Code was adopted in 1953, the crime of murder in the first degree — the precursor to aggravated murder — prohibited purposeful killing with “deliberate and premeditated malice.” Former R.C. 2901.01.  Under this earlier standard, “a killing could be premeditated even though conceived and executed on the spur of the moment. The only requirement was that the malicious purpose be formed before the homicidal act, however short in time.” State v. Cotton, 56 Ohio St.2d 8, 11, 381 N.E.2d 190 (1978).

When it amended the aggravated-murder statute, R.C. 2903.01(A), to provide that “[n]o person shall purposely, and with prior calculation and design, cause the death of another,” the General Assembly explicitly rejected the notion that brief premeditation prior to a murder could establish prior calculation and design:

[R.C. 2903.01(A) employs] the phrase, “prior calculation and design,” to indicate an act of studied care in planning or analyzing the means of the crime, as well as a scheme compassing the death of the victim.  Neither the degree of care nor the length of time the offender takes to ponder the crime beforehand are critical factors in themselves, but they must be sufficient to meet the proposed test of “prior calculation and design.”  In this context, momentary deliberation is considered insufficient to constitute a studied scheme to kill.

(Emphasis added.) Ohio Legislative Service Commission, Proposed Ohio Criminal Code: Final Report of the Technical Committee to Study Ohio Criminal Laws and Procedures, at 71 (1971).

October 4, 2017 in Notable real cases, Reflections on class readings | Permalink | Comments (0)

September 28, 2017

A terrific review of the modern realities of the insanity defense and its consequences

Though we will not get to what I call "traditional defenses" for a few weeks and will not get into the insanity defense until the very end of the defenses unit, we have already indirectly encountered some of the challenging issues that mental illness can create for criminal law in cases like Grant and Wetmore.   When we do get to the insanity defense, we will talk about why a good defense lawyer might not even want her client to pursue this defense. This new New York Times Magazine article explains why better than I will be able to in class. 

The full headline and sub-headline provides a helpful summary of the long article: "When ‘Not Guilty’ Is a Life Sentence: What happens after a defendant is found not guilty by reason of insanity? Often the answer is involuntary confinement in a state psychiatric hospital — with no end in sight."  This long article is not required reading, but it is recommended for anyone interested in the important connections between mental health issues and the criminal justice system.

September 28, 2017 in Notable real cases | Permalink | Comments (0)

September 26, 2017

A couple Ohio cases with contested causation circumstances

As I mentioned in class, Ohio tends to adopt a more "common law" approach to causation doctrines than an MPC approach, but this is a distinction that does not really make much of a difference in all but the rarest of cases.  In this post on this blog last year, I flagged four of the rare Ohio criminal cases in which causation doctrines are discussed.  Here are two of those cases I consider the most interesting, and I will here just provide the cites and facts.  You will have to look up the cases if you want to see how they were worked out:

1.  Ohio v Lovelace, 137 Ohio App. 3d 206 (1st Dist. App. 1999), gets started this way:

The issue in this appeal is whether a person who leads police on a high-speed car chase can be found guilty of involuntary manslaughter when one of the police cruisers in pursuit runs a stop sign and collides with another vehicle, killing the driver. The answer turns on whether the evidence was sufficient to support the jury's finding that the defendant-appellant, Paul Wayne Lovelace, should have foreseen the fatal accident as a consequence of his own reckless behavior. At the time of the accident, Lovelace was driving a stolen car and had already led Ohio and Kentucky police on a multi-car chase that reached speeds of one hundred miles per hour, crossed back and forth over the Ohio River, and caused several collisions and near collisions in both states.

Lovelace argues that he cannot be guilty of involuntary manslaughter because he could not possibly have foreseen that the officer would disregard the stop sign — although he had done so himself only moments before.  In his view, the police officer's failure to stop was an intervening cause of the accident, absolving him of criminal responsibility.  Lovelace also contends that his trial was unfair because the trial court's evidentiary rulings deprived him of the opportunity to present crucial evidence, and because the jury instructions misled the jury on the critical issue of proximate cause.

2.  Ohio v Voland, 716 N.E.2d 299 (Ohio Com. Pl. 1999), involves these essential facts:

[T]he defendant, while under administrative license suspension growing out of her arrest for driving under the influence of alcohol, drove her vehicle from the western side of Hamilton County to the Cincinnati Sand Volleyball Courts ... accompanied on that drive and at the courts by her daughter, Alexandria, age four, and a cousin, Ashley Weaver, age twelve.... At some point after her arrival at the Cincinnati Sand Volleyball Courts, Voland was approached by her cousin, Ashley Weaver, who complained that she was hot and bored. Ashley Weaver was watching Voland’s daughter, Alexandria.

At that time, the defendant gave her twelve-year-old cousin the keys to her car so that Ashley could get in and start the car to permit the air conditioning to work, allowing Ashley and Alexandria to cool off and wait while defendant played volleyball.  The two children got into the car, started the car, turned on the air conditioning, and listened to the radio. They played in the car while the engine was running, in excess of ninety minutes unattended, with the exception of one visit by defendant. During the one visit, defendant did not notice any attempts to move the vehicle.

At approximately 8:10 p.m., with the two girls playing in the automobile and the engine running, the car lurched forward, over a parking block six to eight inches in height, across a short, grassy area of four to six feet, where the auto struck a fence. The fence, approximately six to eight feet in height, had a four-by-four post nailed vertically to it, apparently to seam two sections of the fence together. This fence post cracked and fell to the ground on the inside of the fence, striking Steven Smith in the head, causing injuries that resulted in his death.

September 26, 2017 in Notable real cases | Permalink | Comments (0)

September 21, 2017

Looking back at omissions and forward to causation

I just came across this recent article, headlined "Why It’s Hard to Punish ‘Bad Samaritans’," that starts with a report on a recent real case from Florida that, sadly, sounds like my drowning Josephine hypo.  Here is how the article starts and a bit of a review of laws that you all now know a bit about:

In the video, Jamel Dunn can be seen flailing in the middle of a Florida pond, his head sinking deeper in the water with every gasping breath.  In the background, teenagers are laughing and mocking him.  “Ain’t nobody’s gonna help you,” one yells.  Seconds later, Dunn, 31, drowns.

Months after the July episode, which was posted online and seen by millions, the teens have faced public outrage, but no legal action. While many agree that what they did was immoral, it wasn’t illegal.... There is no law in Florida — or in most states — that requires someone to act when they see someone else in grave danger.  There is no duty to attempt a rescue, or even to call for help.

That’s unconscionable for many who watched Dunn’s drowning, including lawmakers in Arizona and Florida who are now drafting proposals that would make it illegal to sit idly by if you see someone in grave danger. The laws would impose either a duty to rescue or duty to call 911 or otherwise alert authorities during emergencies. Only a handful of states have similar, broad “bad Samaritan laws,” which apply to any bystander who witnesses an emergency or crime.....

Three states — Minnesota, Rhode Island and Vermont — impose a broad duty to rescue others in an emergency, and three others — Hawaii, Washington and Wisconsin — impose a broad duty to report crimes to authorities. Other states have similar laws, but they’re more specific, and apply only to medical professionals or people who witness certain criminal acts such as child abuse. People are rarely, if ever, prosecuted or sued for breaking these laws, said Christopher Roberts, an associate law professor at the University of Minnesota.

In addition to highlighting for you how some issues we have previously discussed are in the news, I also wanted to flag for you some recent Supreme Court cases dealing with some causation issues we will be discussing.  You are NOT required or even expected to read these cases, but you might still find it interesting to see the settings in which SCOTUS can confront issues that we are reviewing.  Here are links to the rulings, along with the start of the Court's opinion in each case:

Burrage v. United States:  "The Controlled Substances Act imposes a 20-year mandatory minimum sentence on a defendant who unlawfully distributes a Schedule I or II drug, when 'death or serious bodily injury results from the use of such substance.' 21 U.S.C. §841(a)(1), (b)(1)(A)–(C) (2012 ed.).  We consider whether the mandatory-minimum provision applies when use of a covered drug supplied by the defendant contributes to, but is not a but-for cause of, the victim’s death or injury."

Paroline v. United States: "This case presents the question of how to determine the amount of restitution a possessor of child pornography must pay to the victim whose childhood abuse appears in the pornographic materials possessed.  The relevant statutory provisions are set forth at 18 U.S.C. §2259.  Enacted as a component of the Violence Against Women Act of 1994, §2259 requires district courts to award restitution for certain federal criminal offenses, including child-pornography possession.

"Petitioner Doyle Randall Paroline pleaded guilty to such an offense.  He admitted to possessing between 150 and 300 images of child pornography, which included two that depicted the sexual exploitation of a young girl, now a young woman, who goes by the pseudonym “Amy” for this litigation.  The question is what causal relationship must be established between the defendant’s conduct and a victim’s losses for purposes of determining the right to, and the amount of, restitution under §2259."

September 21, 2017 in Notable real cases | Permalink | Comments (0)

September 15, 2017

How Rhode Island changed its child abuse law after Lima

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

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

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

September 15, 2017 in Class reflections, 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 28, 2016

Starting our grinding over self-defense doctrines and midterm review

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

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

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

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

                     Top 25%         Mid 50%            Bottom 25%

WORDS        > 1650          1001-1650          < 1000

PART A        46 or more          39-45         38 or less

PART B        18 or more          14-17         13 or less

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

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

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

November 28, 2016 in Class reflections, Notable real cases, Preparing for the final | Permalink | Comments (16)

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)

November 13, 2016

Hung jury brings end to first trial of former officer in Cincy shooting

This AP story, headlined "Deadlocked Jurors Force Mistrial in Ohio Police Shooting," provides lots of interesting details after a jury was unable to resolve which homicide charges were most appropriate in a high-profile Cincinnati case. Here are some highlights:

Jurors failed to come up with a verdict against a white former police officer charged with murder in the fatal shooting of an unarmed black motorist and were leaning toward a lesser conviction, a prosecutor said Saturday after a mistrial was declared. The jury spent some 25 hours debating the outcome and indicated several times that they were deadlocked before a judge agreed.

Prosecutors will decide within the next two weeks whether to retry former University of Cincinnati police officer Ray Tensing. He was fired after shooting 43-year-old Sam DuBose in the head after pulling him over for a missing front license plate on July 19, 2015. Tensing, 26, testified he feared he was going to be killed. Prosecutors said repeatedly the evidence contradicted Tensing's story.

Hamilton County Prosecutor Joe Deters said jurors were leaning toward a conviction of voluntary manslaughter and acquittal on the murder charge. He later told media outlets the vote was deadlocked at 8-4 in favor of the lesser charge.

Judge Megan Shanahan said the jury of 10 whites and two blacks spent two hours deliberating Saturday morning after getting a night's sleep and still could not reach a decision. "It's obvious to me you have made a sincere and conscientious effort," the judge said before setting a new hearing date for Nov. 28 to determine whether the case will be brought back.

Attorney Al Gerhardstein, who represents the DuBose family, said they want another trial and can't understand why the jury couldn't reach a conclusion. "With the video evidence as clear as it is, they shouldn't have been so stuck," he said....

To convict Tensing of murder, jurors would have had to find he purposely killed DuBose. The charge carried a possible sentence of 15 years to life in prison. The voluntary manslaughter charge means killing during sudden fit of rage and carries a possible sentence of three to 11 years.

Legal experts say juries generally tend to give police officers the benefit of the doubt because of the inherent dangers of their jobs, but that they will convict if the police actions were clearly unwarranted.

In tearful testimony Tuesday, Tensing said his arm was stuck in DuBose's car after he tried to stop him from driving away by grabbing the car keys. "I remember thinking, 'Oh my God, he's going to run me over and he's going to kill me,'" Tensing said.

An expert hired by prosecutors said his analysis of the former officer's body camera video shows the officer was not being dragged by the car. A defense expert countered that the video shows Tensing was justified in fearing for his life because his body was "violently twisted" during the confrontation.

Deters suggested that Tensing had racial motives, saying a study found that eight of every 10 drivers Tensing pulled over for traffic stops were black, the highest rate of any University of Cincinnati officer. Tensing also made more traffic stops and citations than other UC officers. Deters also pointed to a T-shirt with Confederate flag on it that Tensing was wearing under his uniform the day of the shooting.

Tensing said he was often unaware of a driver's race, did not single people out unfairly and was not racist. He testified that the Confederate flag on his T-shirt had no meaning to him.

November 13, 2016 in Notable real cases | Permalink | Comments (0)

November 08, 2016

Remarkable new Ohio murder charge for old beating that brings up lots of "classic" issues

Though we are technically done with the homicide unit, I just saw this new local story of a notable new Ohio murder prosecution.  The story is headlined "Man charged with murder after beating son a decade ago," and here are the sad (and legally interesting) details:

Almost 10 years have passed since Michael Robinson beat his infant son nearly to death — the injuries to the child’s brain so profound that Dana Robinson lived a life filled with medical complications and chronic pain before he died in his bed at the age of 9 last year.

But now Michael Robinson has been charged with murder.

A Logan County grand jury indicted Robinson, 52, this morning. He’s in the Allen Correctional Institution in Lima, serving a 14-year prison sentence after pleading guilty in 2008 to charges of felonious assault, endangering children and domestic violence in connection with Dana’s beating at the family’s Bellefontaine home in February 2007. He now faces up to life in prison.

Eric Stewart, chief assistant prosecutor in Logan County, said that after Dana died in his sleep Nov. 13, 2015, detectives requested an autopsy. The Montgomery County coroner said that Dana, who had been left a paraplegic with cerebral palsy, died of complications from his severe brain trauma.

No date for Michael Robinson’s arraignment on this new charge in Logan County Common Pleas Court has yet been set.

Dana’s was a life that The Dispatch chronicled, first because local investigators said it was the worst case of child abuse they’d ever seen. Dana had been systematically tortured since birth: shaken, squeezed, smacked, pricked with pins and pinched. Michael Robinson had hurt his older sons before, and said in court that he was only trying to “toughen them up.” As doctors once testified about Dana’s injuries in court,  Michael rolled his eyes.

November 8, 2016 in Notable real cases | Permalink | Comments (1)

October 29, 2016

If you are eager to learn more about the sad particulars behind the Welanksy case...

here is a documentary with a partial recreation of the events at Coconut Grove: 

October 29, 2016 in Notable real cases | Permalink | Comments (1)

October 28, 2016

"Man sentenced to 13 years in fatal shooting"

Another interesting local story, available here, provides another window into how unclear facts and lawyers influence homicide outcome both in terms  of Ohio charges and ultimate sentencing.

October 28, 2016 in Notable real cases | Permalink | Comments (0)

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)

October 05, 2016

Four interesting examples of Ohio criminal cases in which causation was a debated issue

To finish our review of the "general part" of the criminal law, we will dig further into the law of causation.  In that review, I will note that Ohio tends to adopt a more "common law" approach to causation doctrines than an MPC approach, but I will also explain why this is a distinction that does not really make much of a difference in all but the rarest of cases.  Still, I thought it might be useful here to note the facts of a couple of the rarest of Ohio criminal cases in which causation doctrines were discussed.  So, if you want to take a deep dive into some notable Ohio causation cases, consider checking out:

1.  Ohio v Lovelace, 137 Ohio App. 3d 206 (1st Dist. App. 1999), gets started this way:

The issue in this appeal is whether a person who leads police on a high-speed car chase can be found guilty of involuntary manslaughter when one of the police cruisers in pursuit runs a stop sign and collides with another vehicle, killing the driver. The answer turns on whether the evidence was sufficient to support the jury's finding that the defendant-appellant, Paul Wayne Lovelace, should have foreseen the fatal accident as a consequence of his own reckless behavior. At the time of the accident, Lovelace was driving a stolen car and had already led Ohio and Kentucky police on a multi-car chase that reached speeds of one hundred miles per hour, crossed back and forth over the Ohio River, and caused several collisions and near collisions in both states.

Lovelace argues that he cannot be guilty of involuntary manslaughter because he could not possibly have foreseen that the officer would disregard the stop sign — although he had done so himself only moments before.  In his view, the police officer's failure to stop was an intervening cause of the accident, absolving him of criminal responsibility.  Lovelace also contends that his trial was unfair because the trial court's evidentiary rulings deprived him of the opportunity to present crucial evidence, and because the jury instructions misled the jury on the critical issue of proximate cause.

2.  Ohio v Voland, 716 N.E.2d 299 (Ohio Com. Pl. 1999), involves these essential facts:

[T]he defendant, while under administrative license suspension growing out of her arrest for driving under the influence of alcohol, drove her vehicle from the western side of Hamilton County to the Cincinnati Sand Volleyball Courts ... accompanied on that drive and at the courts by her daughter, Alexandria, age four, and a cousin, Ashley Weaver, age twelve.... At some point after her arrival at the Cincinnati Sand Volleyball Courts, Voland was approached by her cousin, Ashley Weaver, who complained that she was hot and bored. Ashley Weaver was watching Voland’s daughter, Alexandria.

At that time, the defendant gave her twelve-year-old cousin the keys to her car so that Ashley could get in and start the car to permit the air conditioning to work, allowing Ashley and Alexandria to cool off and wait while defendant played volleyball.  The two children got into the car, started the car, turned on the air conditioning, and listened to the radio. They played in the car while the engine was running, in excess of ninety minutes unattended, with the exception of one visit by defendant. During the one visit, defendant did not notice any attempts to move the vehicle.

At approximately 8:10 p.m., with the two girls playing in the automobile and the engine running, the car lurched forward, over a parking block six to eight inches in height, across a short, grassy area of four to six feet, where the auto struck a fence. The fence, approximately six to eight feet in height, had a four-by-four post nailed vertically to it, apparently to seam two sections of the fence together. This fence post cracked and fell to the ground on the inside of the fence, striking Steven Smith in the head, causing injuries that resulted in his death.

3. Ohio v Dixon, 2002 WL 191582 (6th Dist. App. 2002), involves these essential facts:

Defendant Christopher Dixon, appeals from his conviction and sentence for felony murder [resulting from] Dixon and his cousin Sherman Lightfoot [making] plans to rob the Jiffy Lube located at 3931 Salem Avenue in Dayton, Ohio. In preparation for the robbery, Dixon and Lightfoot obtained latex gloves and “Jason” masks, which were popularized in the movie, “Friday the 13th.” At approximately 6:15 p.m., the two men drove a blue Camaro to the Jiffy Lube, parking it across the street. Dixon was wearing an orange-colored hooded sweatshirt, while Lightfoot was wearing a white hooded sweatshirt.

Dixon and Lightfoot entered the Jiffy Lube and Dixon grabbed one of the employees, Gregory Anderson. Lightfoot pointed a gun in Anderson's face, and the two robbers demanded to know where the money was located. Anderson told them it was in the office. Dixon and Lightfoot then took Anderson to the office. Anderson told them that only the manager had the key to the drawer where the money was kept. Lightfoot instructed Anderson to call for the manager. Anderson complied and the store manager, Michael McDonald, came to the office. At that point Lightfoot pointed the gun in McDonald's face.

McDonald began struggling with Lightfoot over the gun. During the struggle, the gun fired once. When Lightfoot momentarily stumbled and fell backward during the struggle, McDonald gained control over the gun.  Lightfoot immediately regained his balance, and both he and Dixon ran out of the store. McDonald fired several shots in the direction of the fleeing suspects. Dixon ran back to the Camaro, got in and sped away.  Lightfoot fell to the ground in the parking lot as a result of a gunshot wound to the head. Lightfoot subsequently died at Good Samaritan Hospital.

4. Ohio v Wilson, 182 Ohio App. 3d 171 (1st Dist. App. 2009), gets started this way:

Defendant-appellant Eric Wilson ... was charged with murder [and other counts based on activities] on September 1, 2006, [when] Wilson, a drug trafficker, was in his car driving around the area of East 59th Street and Francis Avenue selling drugs.  He stopped his car to meet with some buyers when James Yhonquea walked up, pulled out his gun, and put it against Wilson's head.  Yhonquea took Wilson's drugs, money, and cell phone and started to run down East 59th Street. Wilson jumped out of his car and started to run after Yhonquea. Wilson began shooting at Yhonquea and fired off eight rounds, hitting a parked car and a house.  Yhonquea returned fire, hitting Wilson's car.

Asteve (“Cookie”) Thomas, a 12–year old girl who lived in the neighborhood, was walking home from the corner store with her friends when one of the bullets shot from Yhonquea's gun struck her in the chest. She managed to walk to a neighbor's house, collapsed, and died approximately 30 minutes later.

October 5, 2016 in Notable real cases | Permalink | Comments (0)

September 07, 2016

Another interesting real (local) case to consider in light of punishment theories

Even while on the road I have followed and been impressed by recent discussions regarding the AP article about charging drug dealers with homicide for overdose deaths.  And, based on this reporting of a notable sentencing outcome emerging this week from a court just down the road from Moritz, I wonder if folks might refect on what punishment theories were in play.  Here are lengthy excerpts from the story, which is headlined "Driver gets 13 years in prison for 2014 crash that killed two Downtown":

Terrance Trent wept and whimpered, clutching a tissue to his face in a Franklin County courtroom, as he listened to anguished statements about what was lost when his reckless driving caused a crash that killed two pedestrians at a Downtown intersection.

He continued weeping during the Tuesday hearing as he told the families of the dead that he was "so sorry" about what happened to Stephanie Fibelkorn, 21, and Bill Lewis, 58. "I've tried to understand what you're going through, I really have," he said. Looking upward with his hands seemingly clenched in prayer, he wailed, "If I could die right now to bring them back, I'd gladly do it."

Common Pleas Judge David Young said he saw no genuine remorse from Trent, who was convicted last month of two counts of aggravated vehicular homicide for the deaths and two counts of vehicular assault for injuring two others in the crash on Dec. 12, 2014. Young imposed the maximum sentence of 13 years in prison — five years for each death and 18 months for each of the injured — and suspended Trent's driver's license for life.

Fibelkorn's father was thankful for the maximum sentence and unmoved by Trent's tears. "I was disheartened to see Mr. Trent crying today," Stephen Fibelkorn said after the hearing. "I find that he cries for himself and no one else. I don’t believe there’s been an ounce of remorse shown, other than for his own situation."

Trent, 63, was speeding west on East Broad Street in a pickup truck with a flat tire, running red lights and weaving through traffic, finally slamming the truck into a school bus at the busy intersection with High Street. The impact knocked the bus over the curb, killing the pedestrians and injuring the bus driver and the passenger in Trent's truck. Trent testified during his trial that the passenger, his girlfriend, was to blame because she was striking him with a full can of soda as he drove, causing him to go into "panic mode" and not realize what he was doing.

Lewis was the chief mobility engineer for the city of Columbus, working to keep streets safe for drivers and pedestrians. Stephanie Fibelkorn was an Ohio State University engineering student working as an intern in his office. She dreamed of one day working as a Disney "imagineer," designing attractions for the company's amusement parks. The two were walking to a morning meeting when they were struck. She died at the scene, and he died two weeks later at OhioHealth Grant Medical Center.

Fibelkorn's parents told the judge that they have sold their Downtown home to escape the continual reminders of the crash. Mr. Fibelkorn called himself "a broken man, unable to contain my emotions."...

Rhonda Lewis spoke about what the loss of her husband, a loving father, meant to her and their two children. She told the judge that Trent deserved a life sentence "for the destruction in our lives."

Defense attorney Steve Dehnart said his client has mental-health issues and that a maximum sentence "would achieve nothing but revenge."

Assistant Prosecutor Dan Cable told the judge that Trent's actions and lack of remorse cried out for the maximum. "Mr. Trent still does not get it," he said.

September 7, 2016 in Notable real cases | Permalink | Comments (13)

August 29, 2016

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

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

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

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

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

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

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

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

August 29, 2016 in Class reflections, Course materials and schedule, Notable real cases, Reflections on class readings | 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 09, 2014

Extra credit accounting update (and final deadline for first three EC opportunities)

As of early afternoon on Tuesday, December 9, 2014, my records reflect that I have received all of the first three extra credit submissions from 19 of 28 students in the class.  In addition, I have received two EC submissions from six other students, one EC submission from two students and one student has submitted no EC.

For various reasons, I am going to now provide that I must receive any final EC submissions for the class-related assignments — that is, the first three assignments on (1) two past SCOTUS causation cases, (2) Ohio defense cases and (3) Elonis briefing and arguments — no later than the end of the day this Friday (Dec. 12, 2014).  For the record, I am happy to and probably even would prefer getting the final EC submission — about how to improve legal education and your ideal summer job — only after exams have been finished for the season.

December 9, 2014 in Course materials and schedule, Notable real cases, Research assignment | Permalink | Comments (0) | TrackBack

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

November 26, 2014

Some effective overview/previews of SCOTUS case Elonis v. United States

I hope everyone has/had a great holiday break and that perhaps a few folks are interested in reading up more about the interesting Supreme Court criminal case to be argued next week. As students should recall, I briefly discussed Elonis v. United States in class, and the last extra credit opportunity involves discussing critically one of the many amicus briefs submitted in the case.

Not surprisingly, the upcoming oral argument is generating discussion about the case, and these two recent media accounts seemed worth noting in this space:

The SCOTUSblog posting provide this helpful summary of the case and its legal basics:

[Anthony] Elonis’s legal troubles date back to 2010, when his wife left him, taking their two young children with her.  He began to post lyrics from popular songs on Facebook, and he soon moved on to post his own, sometimes violent, rap lyrics.  As part of his posts, Elonis included disclaimers about how his lyrics were merely fictitious, and that he was just “exercising his constitutional right to freedom of speech.”  He also sometimes included links to the Wikipedia entry on the First Amendment and even the text of the First Amendment itself.

In the fall of 2010, Elonis’s Facebook posts included several that discussed harming his ex-wife.  One post was a take-off on a comedy routine available on YouTube: Elonis asked his Facebook friends whether they knew that it was illegal for him to say that he wanted to kill his ex-wife, and he added that it would be “incredibly illegal” to suggest that someone could kill his ex-wife by firing a mortar launcher from the cornfield behind her house. A day later, Elonis put up a post about shooting a kindergarten class.

These posts earned Elonis a visit from an FBI agent.  After the visit, he posted about that encounter too, suggesting in rap lyrics that he had strapped a bomb to his body and would have detonated it if he had been arrested.  This post was apparently the last straw for the FBI: a few weeks later, Elonis was arrested and charged with violating 18 U.S.C. § 875(c), which makes it a crime to communicate threats in interstate commerce — for example, over the Internet.

Elonis claimed that the charges against him should be dismissed because you can only violate the law if you intend to harm someone.  And he didn’t have any plans to hurt his ex-wife, the FBI agent, or anyone else: his rap lyrics and “venting” about his problems on Facebook just made him feel better.  But if he can be convicted without any intent to hurt anyone, he added, that would violate the First Amendment.  A federal trial court rejected both of his arguments.  Instead, it instructed the jury, it could find Elonis guilty if the average person, looking at a statement objectively, would believe that it was intended to be a threat.  The jury convicted Elonis, and he was sentenced to nearly four years in prison....

In his briefs at the Supreme Court, Elonis argues that a “threat” by its very nature requires an intent to cause fear.  Because the whole point of a crime, he says, is that the defendant meant to do something wrong, the Court has interpreted criminal laws as requiring a wrongful intent even when they did not explicitly do so.  Making it a crime to threaten someone even if you didn’t intend to hurt them, he contends, would cause people not to speak at all, because they would be worried about whether they could go to jail based on a jury’s possible misinterpretation of their comments.  This is particularly true, he concludes, when you are talking about alleged threats on social media and email, where nuance and tone matter so much and it’s so easy to misconstrue what someone says.

The federal government counters that, as the trial court in this case instructed the jury, courts should determine whether something is a “true threat” by looking at whether an average person would interpret the statement as reflecting a serious intent to harm someone. The government emphasizes that courts and juries can and should look at the context in which the alleged threat was made, and at the reactions of the people who heard the alleged threat, but they should not consider whether the defendant himself actually intended to carry out the threat.  This, the government explains, is because even if Elonis didn’t intend to harm his ex-wife or the FBI agent, they were still afraid and their lives were still disrupted: the First Amendment doesn’t protect him even if he knew that he didn’t mean to carry out the threats.

November 26, 2014 in Notable real cases | Permalink | Comments (1) | TrackBack

November 24, 2014

Another sad police shooting surely not "justified," but will it get excused in Ohio?

Especially as the news media continues to await a grand jury outcome in Ferguson, this new sad story out of Cleveland of a seemingly mistaken use of defensive force is likely to become the next national story about police use of excessive force.  This New York Times report, headlined "12-Year-Old Boy Dies After Police in Cleveland Shoot Him," provides these basics:

Officials in Cleveland were investigating the police shooting of a 12-year-old boy who died on Sunday, a day after an officer shot him outside a recreation center when he reached for a weapon that turned out to be a fake pistol.

The boy, Tamir E. Rice, died on Sunday at MetroHealth Medical Center in Cleveland, the Cuyahoga County medical examiner’s office said. He was shot in the torso at a park on Saturday after witnesses reported that he was waving a gun around and pointing it at people, the police said.

Two police officers responded to the scene and ordered the boy to raise his hands, the police said, but he refused and reached for a gun in his waistband. An officer fired two shots, striking the boy once, the police said.

In a 911 call released by the police, a man said that “a guy” who appeared to be a juvenile was pointing a pistol at people and scaring them. The caller said twice that the gun was “probably fake.”

“There is a guy with a pistol,” the caller said. “It’s probably fake, but he’s pointing it at everybody.” The police were investigating what information from the call was relayed to the officers, said Jennifer Ciaccia, a police spokeswoman. The Cuyahoga County prosecutor’s office was also investigating the shooting....

The shooting happened about 3:30 p.m. at the Cudell Recreation Center on the city’s west side, the police said.  Deputy Chief Ed Tomba of the Cleveland police said on Saturday that the boy had not threatened the officers or pointed the weapon at them.

The police learned that the gun was fake after the shooting, Ms. Ciaccia said.  The weapon was an “airsoft” replica gun resembling a semiautomatic pistol, with the orange safety tip removed, the police said.  “It looks really, really real, and it’s huge,” Ms. Ciaccia said

November 24, 2014 in Notable real cases | Permalink | Comments (2) | TrackBack

October 25, 2014

Intriguing Kansas Supreme Court ruling about (full and partial) defenses in high-profile murder case

Though not precisely on-point with topics we discussed concerning intentional homicides this past week, a ruling yesterday by the Kansas Supreme Court in Kansas v. Roeder, No. 104,520 (Kan. Oct. 24, 2014) (available here), provides an interesting and high-profile example of an appeals court upholding a trial court's decision to preclude an intentional killer from having various full and partial defenses presented to a jury at his trial.  Here are the first two paragraphs from the start of this notable Roeder ruling to perhaps whet your appettite for reviewing the full opinion (which convers some concerpts will will be exploring is some depth come November):

On May 31, 2009, Scott Roeder executed his years-old plan to kill Dr. George Tiller to prevent the Wichita, Kansas, doctor from performing any further abortions.  After fatally shooting the doctor from point blank range during church services while the doctor served as an usher, Roeder hastily fled the premises. During his getaway,  Roeder threatened to shoot two other ushers who had pursued him outside the church. Roeder did not deny committing the physical acts underlying a premeditated first-degree murder charge and two counts of aggravated assault, and the jury convicted him of those offenses.

On appeal, Roeder challenges both his convictions and his hard 50 life sentence. With respect to his convictions, Roeder raised numerous issues, some of which overlap, to-wit: (1) The district court erroneously denied his requested instruction on voluntary manslaughter based upon an imperfect defense-of-others; (2) the district court violated his due process right to present a defense of voluntary manslaughter based upon an imperfect defense of another; (3) the district court erroneously denied the defense motion for a change of venue; (4) the prosecutor committed reversible misconduct during closing argument; (5) the district court violated his due process right by excluding evidence to support a necessity defense and by failing to instruct on the necessity defense; (6) the district court erroneously denied his requested second-degree murder instruction; (7) the district court erroneously denied his requested defense-of-others instruction; and (8) the cumulative effect of trial errors denied him a fair trial.  Finding that Roeder was not denied a fair trial, we affirm his convictions.

October 25, 2014 in Notable real cases | Permalink | Comments (2) | TrackBack

October 06, 2014

Details of extreme ACCA federal felon-in-possession case, US v. Young

I mentioned in class the remarkable federal case of US v. Young, in which I filed an amicus brief on behalf of the defendant in support of his Eighth Amendment claim (and had the chance to participate in oral argument as well).  Roughly a month ago, a panel of the Sixth Circuit rejected the defendant's arguments on appeal in US v. Young, No. 13-5714 (6th Cir. Sept. 11, 2014) (available here); the Sixth Circuit panel's per curiam ruling starts this way: 

Edward Young received a mandatory fifteen-year prison sentence for the crime of possessing seven shotgun shells in a drawer.  He came into possession of the shells while helping a neighbor sell her late husband’s possessions.  When he eventually discovered them, he did not realize that his legal disability against possessing firearms — resulting from felonies committed some twenty years earlier — extended to ammunition.  See 18 U.S.C. § 922(g)(1).  Under the Armed Career Criminal Act (ACCA), Young received a mandatory fifteen-year sentence.

Young now asks this court to conclude that the ACCA, as applied to him, is unconstitutional under the Eighth Amendment because the gravity of his offense is so low as compared to the harshness of his sentence, and unconstitutional under the Fifth Amendment because he lacked notice.  Our precedent compels us to reject these claims and to affirm Young’s sentence.

There is now a pending petition for en banc review by the full Sixth Circuit, but I will be surprised if that gets grant.  Thereafter, the defendant is likely to appeal to the Supreme Court, and I will be eager to write another amicus brief in support of that appeal when the time comes (and would be eager for any and all student help at that time).   

A lot more information about this case can be found in my various posts about it on my main blog, which I have listed and linked below:

October 6, 2014 in Notable real cases | Permalink | Comments (2) | TrackBack

September 04, 2014

An interesting real indictment in a sad high-profile (omission?) homicide case

Though probably not of central concern to our in-class discussions until we reach the homicide materials next month, I could not resist posting via this link here an indictment issued today in Georgia v. Justin Ross Harris, No. 143124 (Cobb Superior Court, Georgia).  This CNN report, headlined "Dad indicted on murder charges in son's hot car death," provides these details about this high-profile case:

Whether the prosecution will seek the death penalty in Justin Ross Harris hot-car death case will be decided in two to three weeks, Cobb County District Attorney Vic Reynolds said Thursday. Reynolds' statement came hours after the Georgia father was indicted by a grand jury on eight counts, including malice murder and two counts of felony murder.

"We're pleased with the pace and thoroughness of this investigation, which continues on today," Reynolds said. "The evidence in this case has led us to this point today. Whether it leads us to anyone else remains to be answered."

The next step will be to put Harris' case on Superior Court Judge Mary Staley's arraignment calendar, which should happen within three weeks, the prosecutor said. Motions will then be filed before the case goes to a trial calendar. Reynolds declined to take questions or comment further, saying, "This case will be tried in a court of law," and not in the media.

If Reynolds seeks the death penalty, it will be for the malice murder charge, which alleges that Harris, who has claimed his son's death was an accident, premeditated the child's killing....

The other five charges are: first-degree cruelty to children, second-degree cruelty to children, criminal attempt to commit a felony (sexual exploitation of a minor) and two counts of dissemination of harmful material to minors.

According to the indictment, the grand jury found that on June 18, Harris "did unlawfully, and with malice aforethought, cause the death of Cooper Harris ... by placing said Cooper Harris into a child car seat and leaving him alone in a hot motor vehicle."

The two felony murder charges allege that Harris killed his 22-month-old son while committing the felonies of first- and second-degree cruelty to children. One count states he killed Cooper "maliciously," while the other felony murder count says Harris killed him "with criminal negligence."

Harris faces a mandatory sentence of life in prison if convicted on any of the murder charges. By leaving Cooper in the car, Harris caused the boy "cruel and excessive physical pain," the cruelty to children charges allege.

The criminal attempt to commit a felony and dissemination of harmful materials charges are not related directly to Cooper's death. They involve allegations that Harris requested a nude photo of a minor's genitalia and sent the same minor descriptions of "sexual excitement and sexual conduct," according to the indictment.

A Cobb County detective testified at an earlier probable cause hearing that while Cooper was in the car at his father's workplace, Harris was sexting with numerous women and sent one of them, who was underage, a photo of his erect penis....

Harris pleaded not guilty to murder and child cruelty charges in June. Cobb County Chief Magistrate Frank Cox signed off on the charges, stating Harris would've had to notice that "the stench in the car was overwhelming" when he got in it as he left work and "drove it for some instance" before stopping to check on the boy. Charges filed in an indictment supersede the previous charges. Harris has been held without bond since Cooper's death this summer.

Authorities have painted Harris as a terrible father who, after admittedly looking up online how hot a car needed to be to kill a child, purposely strapped his son into his sweltering SUV to die. His motivation? The prosecutor has characterized Harris as an unfaithful husband who wanted a childless life.

[Harris' attorney, H. Maddox] Kilgore has argued his client tragically forgot his child in the car. Friends described Harris as a doting dad, not a malicious one, who loved to show off his blond, bright-eyed boy and talked about him incessantly.

September 4, 2014 in Notable real cases | Permalink | Comments (0) | TrackBack

September 03, 2014

Details/follow-up on some of the real cases discussed in class today...

via links from my Sentencing Law & Policy Blog:

 

 

 

I would be eager to discuss any of these sentencing issues with anyone at any time, via comments here or during happy hour or anywhere else we can find the time/place. 

September 3, 2014 in Notable real cases | Permalink | Comments (1) | TrackBack

December 01, 2013

Yet another sad case of a (reasonable? unreasonable?) use of deadly force in self defense

With the Michigan case involving Renisha McBride's death now the basis for homicde charges, there is now yet another similarly sad case, now from Georgia, involving a lost person getting shot for showing up on the wrong doorstep.  This local story, headlined "Wandering man with Alzheimer's shot, killed in Walker County," provides these details:

An Ooltewah man who shot and killed what he thought was a middle-of-the-night prowler -- actually a 72-year-old man with advanced Alzheimer's disease -- Wednesday in Walker County, Ga., hasn't been charged but he might be later, authorities said.

The slain man, Ronald Westbrook, had walked about 3 miles to the shooting scene from his home on Carlock Circle, Sheriff Steve Wilson said at a Wednesday afternoon news conference. When Westbrook was shot, he was clutching letters he had taken from a mailbox on Marbletop Road, where he had lived previously, the sheriff said. A deputy had stopped and questioned Westbrook at about 2:30 a.m. at the mailbox, Wilson said, but Westbrook said he was getting his mail and lived up the hill.

Westbrook then rang the doorbell and turned the doorknob of a home at 188 Cottage Crest Court at 3:54 a.m., awakening Joe Hendrix, 34, of Ooltewah, and his fiancee. They had rented the home in the new subdivision about two weeks ago, next-door neighbor Brandi Wallace said.

Wilson said Westbrook was lost, confused and possibly exhausted. He had wandered for about four hours in the night with his two dogs, wearing a light jacket and straw hat as the wind-chill temperature hovered around 20 degrees. "This one house at the end of the cul-de-sac had a porch light on," Wilson said. "I tend to think [Westbrook] was drawn to that light."

Hendrix's fiancee, whose name Wilson declined to give, called 911 and stayed on the phone with an emergency dispatcher who sent two sheriff's office patrol cars en route. After a nine- to 10-minute wait -- and before deputies arrived -- Hendrix went outside armed with a .40-caliber handgun and saw the elderly man in silhouette behind the house, the sheriff said....

"[Hendrix] gave several what he described as verbal commands," Wilson said. "[Westbrook] continued walking toward him after he told him to stop." Westbrook was slow to talk, Wilson said, because of his advanced Alzheimer's disease. Fearing for his safety, Hendrix fired four shots, the sheriff said. One bullet hit Westbrook in the chest, killing him....

No charges were filed Wednesday against Hendrix, who drove himself away from the shooting scene around 10:30 a.m. as investigators were wrapping up their evidence gathering. Hendrix and his fiancee were fully cooperative, Wilson said. "Both [their] stories matched completely," the sheriff said.

However, Wilson said that Lookout Mountain Judicial Circuit District Attorney Herbert "Buzz" Franklin, whom Wilson called to the shooting scene, might bring charges after reviewing all the evidence. The Georgia Bureau of Investigation helped the sheriff's department on-scene with its investigation. "We reserve our options and rights to file charges once the investigation is complete, if we feel like Georgia law warrants charges being filed," Wilson said.

Georgia's 2006 "stand-your-ground" law that allows people to use deadly force to protect themselves "may apply to this case," Wilson said.

The dispatcher who stayed on the phone with Hendrix's fiancee wasn't aware Hendrix went outside the house with a handgun, the sheriff said. "In my personal opinion, I believe that he should have stayed inside the house," Wilson said. "Did he violate any laws by exiting the house? No."

December 1, 2013 in Notable real cases | Permalink | Comments (5) | TrackBack

November 17, 2013

Renisha, race and reasonableness: wrapping up defensive use of force and defense strategies

As noted in the comments to prior posts, on Friday local Michigan prosecutors announced criminal charged against Theodore Paul Wafer for causing the death of Renisha McBride.  This lengthy new AP story, astutely headlined "Renisha McBride Shooting: Homeowner's Legal Case Could Hinge On One Word," provides a reasonable account of how standards and judgments about reasonableness will be at the heart of this case:

The way Renisha Marie McBride's young life ended Nov. 2 is not in dispute: A homeowner in suburban Detroit fatally shot the 19-year-old in the face as she stood on his porch before the sun came up. Almost every other aspect of the case is not as clear-cut.

Did race play a role in the shooting? What exactly happened on that doorstep? Did the homeowner reasonably believe he was acting in self-defense?

Police and prosecutors say Theodore Paul Wafer fired once with a 12-gauge shotgun through his screen door at McBride. The 54-year-old airport maintenance employee, who faces murder and manslaughter charges, is free on bail awaiting a Dec. 18 hearing that will determine if the case should go to trial.

Ron Bretz, a Cooley Law School professor and former criminal defense attorney, says the case may boil down to a single word. "It's got to be reasonable," he said. "The question is: What would a reasonable person do in these circumstances?" That may be the key question in determining Wafer's guilt or innocence, but much else is left unknown about a case that features legal and societal implications.

Under a 2006 Michigan self-defense law, a homeowner has the right to use force during a break-in. Otherwise, a person must show that his or her life was in danger.

Defense lawyers are expected to argue that Wafer feared for his life when a drunken McBride — toxicology reports put her blood-alcohol content at well above the legal limit for driving — came to his door in the middle of the night hours after crashing her car blocks away in Detroit. Those factors contribute to Wafer's "very strong defense," said his lawyer, Mack Carpenter.

Prosecutors and McBride's family, meanwhile, see no justification for the slaying of the recent high school graduate. She was unarmed, they note. Plus, the screen door Wafer fired through was locked. "Where's his reasonable belief that his life was in jeopardy or that he was in jeopardy of great bodily harm?" said lawyer Gerald Thurswell, who represents McBride's family.

It all comes down to what a jury thinks, Bretz said. "You've got a gun. There's an unarmed young woman on your front porch," he said. "Is it reasonable to think that she's a threat to you? That's going to be a toughie. "Is it fair to feel scared when a stranger is pounding on your door at 4 or 5 in the morning? Hell, yeah. ... Don't answer the door," Bretz said....

Bretz said both sides would be wise to stick to a "race-neutral" strategy. "Don't go there. Keep it on the facts," he said. "Who wants to bring race into it? Everybody else. ... The defense doesn't want that. And the prosecution doesn't want to bring it in. I don't think they need to."

Wayne County Prosecutor Kym Worthy didn't appear to completely rule it out Friday. "In this case, the charging decision has nothing whatever to do with the race of the parties," she said. "Whether it becomes relevant later on in the case, I don't know. I'm not clairvoyant."...

Bretz said a potential defense argument is that McBride's extreme drunkenness posed a threat. "Was she acting crazy? If so ... this gave (Wafer) a greater right to be afraid," Bretz said.

The toxicology report also indicated McBride's blood tested positive for the active ingredients in marijuana. McBride's family said it doesn't matter, but Bretz said he could see the defense focusing attention on McBride's behavior. "It makes her out not to be an angel. She got drunk and stoned and drove and crashed her car. But that's not a death-penalty offense," he said.

McBride's father, Walter Ray Simmons, referred to the defendant as "Mr. Wafer" when he talked to reporters Friday. He then stopped: "I don't even know why I'm saying 'Mr. Wafer.' This monster who killed my daughter."

Earlier Friday, at his arraignment, Wafer stood in a Dearborn Heights courtroom and listened as Carpenter argued for a lesser bail amount. Carpenter described Wafer as a steadily employed high school graduate who spent a year at Northern Michigan University and whose only run-ins with the law involved a couple of decades-old drunken driving cases. Wafer cares for his 81-year-old mother, Carpenter said.

Fellow defense lawyer Cheryl Carpenter said her client has been affected by the case. "You could see it is weighing on him, and he realizes the extent of what happened that night," she said outside of court. "This is part of the problem with this case. There's been so much prejudgment and so much speculation," Cheryl Carpenter said. "Until we get all the facts out, and we don't even have all of the facts yet."

In addition to encouraging comments about the charges brought in this high-profile case, I suggest students think about what additional "facts" the defense team may be especially eager to get out. (I put "facts" in quotes here because of I think/fear/expect all future "facts" we learn to be interpretations/perceptions as much as pure facts.)  I especially encourage students to consider what "facts" learned by the defense team might lead Wafer's lawyers to consider encouraging Wafer to plead guilty rather than assert his innocence at a trial.

Right away from reading this story, I want to know a lot more about the type of "locked screen door" that Wafer shot through.  I also want to know more about what other door was in the entrance way and the configuration of the porch.  I also want to know when and from where Wafer accessed his shotgun and whether it had already been loaded.  I am not at all sure these "facts" are likely to help the defense's case, but they certainly seem key parts of figuring out whether a jury is likely or unlikely to view Wafer's behavior as reasonable. 

November 17, 2013 in Notable real cases | Permalink | Comments (4) | TrackBack

November 11, 2013

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

November 11, 2013 in Class reflections, Course materials and schedule, Notable real cases | Permalink | Comments (9) | TrackBack

November 05, 2013

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

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

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

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

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

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

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

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

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

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

November 5, 2013 in Class reflections, Notable real cases | Permalink | Comments (5) | TrackBack

October 31, 2013

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

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

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

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

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

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

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

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

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

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

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

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

October 31, 2013 in Class reflections, Course materials and schedule, Notable real cases | Permalink | Comments (1) | TrackBack

October 24, 2013

If you were an Ohio prosecutor ... would you have accepted a plea deal to involuntary manslaught for Ali Salim?

The question in the title of this post is my effort to suggest that you consider whether, were you an Ohio prosecutor, you would have signed off on the plea deal discussed in this Columbus Dispatch article under the headlined "Doctor takes plea deal, avoids trial in pregnant woman’s death."  Here are the details:

The Columbus doctor accused of killing and raping a pregnant Pataskala mother took a plea deal with prosecutors this morning, pleading guilty to reduced charges of involuntary manslaughter.

Ali Salim, 44, of the North East Side, had been charged with two counts of murder for the deaths of 23-year-old Deanna Ballman and her unborn daughter. Salim was also charged with kidnapping, drugging and raping Ballman before he killed her, with abusing her corpse and with tampering with evidence.

Under the plea agreement reached with prosecutors, he pleaded guilty to tampering with evidence and with abusing Ballman's corpse. He entered an Alford plea to the charge that he raped Ballman. An Alford plea means that Salim maintains his innocence, but concedes that the prosecution has enough evidence to convict him.

Sentencing is set for Dec. 20.  Salim faces up to 37 years in prison. His trial was set to begin on Tuesday.

As Salim acknowledged his guilty pleas to each charge, Ballman's mother sat in the courtroom and brushed tears from her eyes.

Ballman’s body was found in the backseat of her car in August 2012, a day after she told her mother she was answering a Craigslist ad to clean a house.  Ballman left her two young children, then 1 and 3, with her mother.  She was nine months pregnant when she died.

Investigators say Salim injected heroin into Ballman’s leg, then raped her. An autopsy showed she died of a heroin overdose. Salim’s medical license has been suspended, but until his arrest, he was an emergency-department psychiatrist at Knox Community Hospital in Mount Vernon.  He had been on house arrest at his home near New Albany and was being monitored by a GPS tracking device.

In addition to encouraging folks to consider whether they would have taken this deal if they were prosecutors, think also about why the real prosecutors here did take this deal. Think also, of course, about what sentence might be recommended by the parties come sentencing in a few months.  (This AP article about the case provides some more details you might want also to review/consider.)

October 24, 2013 in Notable real cases | Permalink | Comments (3) | TrackBack