Criminal Law @ Moritz College of Law

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

A couple years ago, an Ohio intermediate appellate court resolved an appeal in a criminal case with a duress claim based on a set of facts somewhat similar to the Crawford case in our text. The Ohio court reached a similar result as in Crawford based on the common law's emphasis on the need for a threat being "imminent" for a duress claim to succeed.  The full opinion in State v. Womack, 2021-Ohio-1309 (Ohio App. 5th Dist. April 14, 2021), covers a number of legal issues, but the discussion of duress from paragraphs 46 to 56 is a pretty good account of the basics of Ohio law.  The duress discussion concludes this way:

Upon our review of the record, we agree with the trial court's conclusion that the evidence did not support Womack's contention that the affirmative defense of duress was applicable to the facts of the case.  We do not dispute that Womack subjectively believed he and his family were being threatened with imminent death or serious bodily injury. We note that the Sixth District Court of Appeals has recognized that duress may be found when the threat is made against the defendant's family.   State v. Cowan, 6th Dist. Wood No. WD-14-026, 2015-Ohio-2101, 2015 WL 3488289, ¶ 28; State v. Luff, 85 Ohio App.3d 785, 804, 621 N.E.2d 493 (6th Dist.1993) (stating that jury instruction on duress should have been given where defendant testified that someone threatened to destroy his family).  Our research indicates, however, that only the Sixth District Court of Appeals has extended the definition of duress to include the threat of imminent death or serious bodily injury to a defendant's family.  However, the force of harm threatened must be in the present; fear of future harm cannot be the basis for the threat of duress.  There was no evidence presented that Shot was a present threat to Womack's family, there was only a possible threat of future harm.

Womack's argument for application of the defense of duress fails because Womack had the ability to safely withdraw from the harm before committing the offenses of aggravated burglary and kidnapping.  He could have withdrawn or escaped after he arrived at M.B.'s home.  According to Womack's testimony, Shot and JT were on the side of the house while Womack was alone on the front porch.  Shot and JT were out of his view from the front porch.  There was no evidence that Shot was pointing his gun at Womack while Womack was on the front porch. M.B. testified that Womack entered her house alone and closed the front door.  In the home with only he and M.B. present, Womack could have asked M.B. for help or left the home through another door.  While on the front porch, Womack testified he tried to leave but he was pushed into the home by Shot and JT.  After Shot and JT entered the home, Womack testified he did in fact leave the home without expressing a fear of harm or even with the knowledge that any money was found, which would have released him from his debt to Shot.

The defense of duress is strictly and extremely limited in application.  Upon the facts of this case, we find the trial court did not abuse its discretion by not giving the jury instruction for duress.  We overrule Womack's third Assignment of Error.

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

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

And, helpfully, one member of my criminal law class ten years ago had the great initiative to imagine how a modern-day variation on the Dudley and Stephens case  might get resolved in Ohio under its common-law defenses scheme.  That student allowed me to post her analysis, and here is how she sets up the factual context:

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

Download Prosecuting Dudley & Stephens in Ohio

Highlighting some recent real cases raising self-defense claims

As we will discuss in class, defensive use of force claims — typically "self-defense" claims — are certainly the most common (and often the most controversial) form of a "true defense" actually raised in criminal cases.  Indeed, a quick google news search turns up lots and lots of local press stories about self-defense claims involving a variety of folks in a variety of settings.  Here is a recent sampling of some press stories (with no expectation that anyone checks out more than a few of these news accounts):

From Alabama, "Prosecutors Argue Timeline Disproves Darius Miles' Self-Defense Claim"

From Arizona, "A Machete Draws Blood. Was It Deadly Assault or Self-Defense?"

From Colorado, "I-25 double homicide suspect claims self-defense"

From Connecticut, "Stabbing at Dunkin' in Manchester was self-defense; man injured arrested for assault"

From Florida, "Gun fight in Palatka: Man claimed self defense, other shooter held without bond"

From Kentucky, "Murder suspect in apparent NKY road rage shooting claims it was self-defense"

From Minnesota, "Case dismissed against Amazon driver who punched St. Paul homeowner, claimed self-defense"

From Nevada, "Police rule deadly shooting at Verdi home an act of self defense"

From South Carolina, "Resident acts in self-defense, shoots man in Laurens Co., deputies say"

From Texas, "Does Takeoff’s Accused Killer Have a ‘Valid Self-Defense’ Argument?"

From Virginia, "A delivery driver who shot a YouTuber who was pranking him said it was justifiable self-defense — and a jury agreed"

Anyone who cannot get enough of these "real crime" tales can check out similar reviews of real cases from prior years here and here.  Again, nobody should feel any obligation to review all these stories; but a review of just the headlines should help highlight also the different contexts in which self-defense claims get raised and all the different legal players — police, prosecutors, judges, jurors — who are called upon to assess these claims.

An old documentary about the old Welansky case

Here is a documentary with a partial recreation of the events that lead to the prosecution of Barnett Welansky (whose case we will review this coming week).  The introduction to this old show is a bit much, but the 20 minutes that follow give you a flavor of the story behind an historic and horrific event: 

In addition, if you want to believe that this kind of inferno could not happen again, consider that it roughly did (though with a smaller body count) in The Station nightclub fire in Rhode Island in 2003.  Here are the basic facts of that sad case and the legal aftermath (drawn from this Wikipedia entry):

The Station Nightclub fire was the fourth-deadliest nightclub fire in U.S. history, killing 100 people. The fire began at 11:07 pm, on Thursday, February 20, 2003, at The Station, a glam metal and rock and roll themed nightclub located ... in West Warwick, Rhode Island.

The fire was caused by pyrotechnics set off by the tour manager of the evening's headlining band, Jack Russell's Great White, which ignited flammable sound insulation foam in the walls and ceilings surrounding the stage. A fast-moving fire engulfed the club in 5½ minutes. In addition to the 100 fatalities, some 230 people were injured and another 132 escaped uninjured....

In the days after the fire, there were considerable efforts to assign and avoid blame on the part of the band, the nightclub owners, the manufacturers and distributors of the foam material and pyrotechnics, and the concert promoters.  Through attorneys, club owners said they did not give permission to the band to use pyrotechnics.  Band members claimed they had permission....

On December 9, 2003, brothers Jeffrey A. and Michael A. Derderian, the two owners of The Station nightclub, and Daniel M. Biechele, Great White's former road manager, were charged with 200 counts of involuntary manslaughter — two per death, because they were indicted under two separate theories of the crime: criminal-negligence manslaughter (resulting from a legal act in which the accused ignores the risks to others and someone is killed) and misdemeanor manslaughter (resulting from a petty crime that causes a death)....

The first criminal trial was against Great White's tour manager at the time, Daniel Michel Biechele, 29, from Orlando, Florida.  This trial was scheduled to start May 1, 2006, but Biechele, against his lawyers' advice, pled guilty to 100 counts of involuntary manslaughter on February 7, 2006, in what he said was an effort to "bring peace, I want this to be over with."... Superior Court Judge Francis J. Darigan sentenced Biechele to 15 years in prison, with four to serve and 11 years suspended, plus three years' probation, for his role in the fire....

Following Biechele's trial, the Station's owners, Michael and Jeffrey Derderian, were scheduled to receive separate trials. However, on September 21, 2006, Superior Court Judge Francis J. Darigan announced that the brothers had changed their pleas from "not guilty" to "no contest," thereby avoiding a trial.  Michael Derderian received 15 years in prison, with four to serve and 11 years suspended, plus three years' probation — the same sentence as Biechele. Jeffrey Derderian received a 10-year suspended sentence, three years' probation, and 500 hours of community service.

In a letter to the victims' families, Judge Darigan said that a trial "would only serve to further traumatize and victimize not only the loved ones of the deceased and the survivors of this fire, but the general public as well."  He added that the difference in the brothers' sentences reflected their respective involvement with the purchase and installation of the flammable foam.

Rhode Island Attorney General Patrick C. Lynch objected strenuously to the plea bargain, saying that both brothers should have received jail time and that Michael Derderian should have received more time than Biechele.

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

A case with facts reasonably similar to those in the Berry murder/manslaughter case in our text was litigated all the way up to the Ohio Supreme Court in State v. Shane, 63 Ohio St.3d 630, 590 N.E.2d 272 (1992).  Here are the facts in the Shane case:

At approximately 6:00 a.m. on October 13, 1989, appellant, Robert Shane II, made a telephone call to the New Philadelphia Police Department to report the death of his fiance, Tina Wagner.  Shane told the police officer who answered the phone, "I'm the one who did it ... she just drove me crazy and I choked her."  Police officers soon responded to the scene, which was an apartment shared by Shane, Wagner, and the couple's infant child.  When the officers entered the apartment, they discovered Wagner's nearly nude body lying on a bed; a red shirt was wrapped tightly around the victim's throat.  An autopsy revealed that Wagner had died of asphyxiation by strangulation.  Tests done on the victim's body revealed a urine alcohol content of 0.27 grams per deciliter.

Shane was indicted on one count of murder, a violation of R.C. 2903.02, to which he entered a plea of not guilty.  Testifying in his own defense at the trial, Shane again admitted that he had killed Wagner, but told the jury of statements Wagner had made to him immediately prior to the incident, which upset him greatly.  Shane stated that Wagner told him she had been sleeping with other men and that she no longer cared for him.  Shane testified, "I have never felt more upset and more mad with anyone [in] my entire life."  Shane further testified that after he became so upset, the next thing he remembered was "coming to" after having passed out and finding himself lying on the bed with Wagner underneath him.

How do you think the Ohio Supreme Court applied Ohio's particular version of voluntary manslaughter rule on these facts?  The Shane case provides a helpful account of how Ohio courts look at the issue of provocation, and here are snippets from the Shane ruling: 

An inquiry into the mitigating circumstances of provocation must be broken down into both objective and subjective components.  In determining whether the provocation is reasonably sufficient to bring on sudden passion or a sudden fit of rage, an objective standard must be applied.  Then, if that standard is met, the inquiry shifts to the subjective component of whether this actor, in this particular case, actually was under the influence of sudden passion or in a sudden fit of rage.  It is only at that point that the emotional and mental state of the defendant and the conditions and circumstances that surrounded him at the time must be considered.  If insufficient evidence of provocation is presented, so that no reasonable jury would decide that an actor was reasonably provoked by the victim, the trial judge must, as a matter of law, refuse to give a voluntary manslaughter instruction....

We hold that words alone will not constitute reasonably sufficient provocation to incite the use of deadly force in most situations.  Rather, in each case, the trial judge must determine whether evidence of reasonably sufficient provocation occasioned by the victim has been presented to warrant a voluntary manslaughter instruction.  The trial judge is required to decide this issue as a matter of law, in view of the specific facts of the individual case....  Provocation, to be reasonably sufficient, must be serious. 

The Shane court is the last major Ohio Supreme Court discussion of voluntary manslaughter in the context of a domestic dispute, but this issue continues to arise in lower courts.  And for an interesting debate over how Shane should be applied on a slightly different set of facts, you might consider the work of the Ohio Eleventh District Court of Appeals in State v. Wagner, 2007 Ohio 3016 (Ohio Ct. App. 2007), in which the appellate panel divided over the appropriateness of a voluntary manslaughter instruction in another case involving a husband killing his wife amid heated discussions of infidelity.

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

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

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

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

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

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

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

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

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

3. Ohio v Dixon, 2002-Ohio-541 (6th Dist. App. 2002), involves these facts:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A real-world German variation on attempt/conspiracy hypos

Though I do not know German conspiracy and attempt laws, I do know that this new story from the Washington Post, headlined "German police arrest 25 over far-right plot to overthrow government,"provides a useful reminder of the real-world risks that attempt/conspiracy laws seek to address.  Here are excerpts:

German authorities on Wednesday arrested 25 people suspected of plotting to use armed force to storm parliament and violently overthrow the state, marking one of the country’s largest ever raids targeting right-wing extremists.... The majority are accused of being part of a “terrorist organization,” according to the prosecutor’s statement.  The remaining three — including a Russian national — were detained on suspicion of being supporters.

In addition to the arrests, police searched the properties of a further 27 individuals who are being investigated on an “initial suspicion” of being a member or having supported the organization, the statement said.  More than 3,000 police officers were involved in the raids, which took place in 11 of Germany’s 16 states.

The accused subscribe to a variety of conspiracy theories, including QAnon, but draw most heavily from the Reichsbürger movement, which denies the existence of the modern German state, officials said. But they warned it would be naive to dismiss them as cranks.  “Of course there are many busybodies who tell confused stories after drinking alcohol,” Justice Minister Marco Buschmann tweeted. “Here, however, there were such strong suspicions that the group wanted to take violent action.”

The details of the suspected plot triggered comparisons to the Jan. 6 insurrection at the U.S. Capitol, as German politicians raised it as a reminder of what can happen when anti-constitutional plans are allowed to manifest....

The group was united in a belief that Germany is run by a members of a “deep state,” the prosecutor said, adding that it was prepared to use violence — including the murder of state representatives — to carry out its aim of replacing the existing order in Germany with its own form of government.  The group had planned out the structure of the state apparatus it planned to install once Germany’s government was overthrown, including departments of health, justice and foreign affairs....

“Since November 2021, the members of the ‘Council’ have regularly met in secret to plan the intended takeover of power in Germany and the establishment of their own state structures,” the statement said.  Members believed that “liberation” would be assisted by the intervention of the “Alliance” — a secret society of military and governments, including those of Russia and the United States.  Heinrich XIII had reached out to Russian representatives inside Germany, the prosecutor’s office said — although it added there were no indications of a positive response to his overtures....

According to Germany’s Die Zeit newspaper, one of the defendants posted on Telegram shortly before the raids that public prosecutors, judges and health authorities would “soon find themselves in the dock at Nuremberg 2.0,” in reference to the trials of Nazi war criminals held after World War II.

Without more particulars, of course, it would be hard to debate the particulars of actus reus and mens rea here. But this story from another nation, I thought, provided a useful reminder that the issues we discussed to wrap up the semester are not only of concern in US criminal law and practice.

Background on infamous Menendez case and links to less famous recent cases

I briefly mentioned in class the Menendez case, involving an infamous double murder followed by questionable claims of self-defense, which led to a high-profile televised trial in the early 1990s.  Realizing that many of you were born long after that case captured the headlines, I figured I would provide a few links to the juicy story:

Short version of story from History.com: "The Menendez brothers murder their parents"

Long version of story from Biography.com: "Why the Menendez Brothers Killed Their Parents – a Look Inside Their Murder Case"

Of course, one need not go back three decades to find interesting real-world defensive force cases.  A quick Google search turned up these notable stories from around the country from just the past few weeks:

From California, "‘I hate myself for what I did’: Teen accused of killing mom claims self-defense"

From Colorado, "Semi driver who admitted to fatally shooting woman in Aurora from truck cab claims self-defense and is charged with murder"

From Florida, "He saw a rival on a motor bike and opened fire. Miami jury acquitted him of murder."

From Minnesota, "Man charged in deadly Minneapolis mass shooting takes stand; argues self-defense"

From Missouri, "Here’s why ‘stand your ground’ law protected woman who shot KC firefighter from charges"

From New York, "Lawyer claims 73-year-old killer was acting in self defense when he shot brother at mom’s Queens home"

Noting that an Ohio version of the Berry case comes out a bit differently

A case with facts reasonably similar to those in the Berry murder/manslaughter case in our text was litigated all the way up to the Ohio Supreme Court in State v. Shane, 63 Ohio St.3d 630, 590 N.E.2d 272 (1992).  Here are the facts in the Shane case:

At approximately 6:00 a.m. on October 13, 1989, appellant, Robert Shane II, made a telephone call to the New Philadelphia Police Department to report the death of his fiancee, Tina Wagner.  Shane told the police officer who answered the phone, "I'm the one who did it ... she just drove me crazy and I choked her."  Police officers soon responded to the scene, which was an apartment shared by Shane, Wagner, and the couple's infant child.  When the officers entered the apartment, they discovered Wagner's nearly nude body lying on a bed; a red shirt was wrapped tightly around the victim's throat.  An autopsy revealed that Wagner had died of asphyxiation by strangulation.  Tests done on the victim's body revealed a urine alcohol content of 0.27 grams per deciliter.

Shane was indicted on one count of murder, a violation of R.C. 2903.02, to which he entered a plea of not guilty.  Testifying in his own defense at the trial, Shane again admitted that he had killed Wagner, but told the jury of statements Wagner had made to him immediately prior to the incident, which upset him greatly.  Shane stated that Wagner told him she had been sleeping with other men and that she no longer cared for him.  Shane testified, "I have never felt more upset and more mad with anyone [in] my entire life."  Shane further testified that after he became so upset, the next thing he remembered was "coming to" after having passed out and finding himself lying on the bed with Wagner underneath him.

How do you think the Ohio Supreme Court applied Ohio's particular version of voluntary manslaughter rule on these facts?  The Shane case provides a helpful account of how Ohio courts look at the issue of provocation, and here are snippets from the Shane ruling: 

An inquiry into the mitigating circumstances of provocation must be broken down into both objective and subjective components.  In determining whether the provocation is reasonably sufficient to bring on sudden passion or a sudden fit of rage, an objective standard must be applied.  Then, if that standard is met, the inquiry shifts to the subjective component of whether this actor, in this particular case, actually was under the influence of sudden passion or in a sudden fit of rage.  It is only at that point that the emotional and mental state of the defendant and the conditions and circumstances that surrounded him at the time must be considered.  If insufficient evidence of provocation is presented, so that no reasonable jury would decide that an actor was reasonably provoked by the victim, the trial judge must, as a matter of law, refuse to give a voluntary manslaughter instruction....

We hold that words alone will not constitute reasonably sufficient provocation to incite the use of deadly force in most situations.  Rather, in each case, the trial judge must determine whether evidence of reasonably sufficient provocation occasioned by the victim has been presented to warrant a voluntary manslaughter instruction.  The trial judge is required to decide this issue as a matter of law, in view of the specific facts of the individual case.... 

Provocation, to be reasonably sufficient, must be serious. But it was only Wagner's statements to Shane that caused him to become enraged.... Shane alleges that it was only mere words that provoked him.  Considering this fact, together with the surrounding circumstances of the case, we conclude that no reasonable jury could have decided that Shane was sufficiently provoked by the victim so that a conviction on the inferior-degree offense of voluntary manslaughter could have been forthcoming.

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.

The Shane court is the last major Ohio Supreme Court discussion of voluntary manslaughter in the context of a domestic dispute, but this issue continues to arise in lower courts.  And for an interesting debate over how Shane should be applied on a slightly different set of facts, you might consider the work of the Ohio Eleventh District Court of Appeals in State v. Wagner, 2007 Ohio 3016 (Ohio Ct. App. 2007), in which the appellate panel divided over the appropriateness of a voluntary manslaughter instruction in another case involving a husband killing his wife amid heated discussions of infidelity.

Some intriguing examples of Ohio criminal cases in which causation was a debated issue

As I briefly mentioned in class, Ohio tends to adopt a more "common law" account and approach to causation doctrines (similar to California's approach in Rhoades).  But, because both actual and legal cause is readily proven in almost all cases, the legal specifics often do not really make much of a difference.  Still, I thought you might be intrigued by the facts of some of the (quite rare) 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 some of these sad cases (but feel absolutely NO obligation to do so):

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.

A notable federal version/variation on the Bray case and its significant real-world impact

As we wrap up our mens rea unit with a discussion of "mistakes of law," the Bray case from California demonstrated that certain kinds of "mistakes" about legal issues (about an element of an offense that has a required mens rea) can still matter.  Though Bray is an older case focused on state law decided by a state court, recently the U.S. Supreme Court considered a similar issue in Rehaif v. United States, 139 S. Ct. 2191 (2019).  Here is how Justice Breyer's opinion for the Court in Rehaif gets started:

A federal statute, 18 U.S.C. § 922(g), provides that “[i]t shall be unlawful” for certain individuals to possess firearms. The provision lists nine categories of individuals subject to the prohibition, including felons and aliens who are “illegally or unlawfully in the United States.” Ibid.  A separate provision, §924(a)(2), adds that anyone who “knowingly violates” the first provision shall be fined or imprisoned for up to 10 years. (Emphasis added.)

The question here concerns the scope of the word “knowingly.” Does it mean that the Government must prove that a defendant knew both that he engaged in the relevant conduct (that he possessed a firearm) and also that he fell within the relevant status (that he was a felon, an alien unlawfully in this country, or the like)?  We hold that the word “knowingly” applies both to the defendant’s conduct and to the defendant’s status.  To convict a defendant, the Government therefore must show that the defendant knew he possessed a firearm and also that he knew he had the relevant status when he possessed it.

Can folks see how this federal case is quite similar to Bray?  Also, some might find interesting (but nobody needs to read) this recent law review article discussing Rehaif titled "Does Mens Rea Matter?."  Here is the article's abstract:

Does mens rea matter to the criminal legal system?  Our study addresses this question by performing the first-ever empirical analysis of a culpable mental state’s impact on administration of a criminal statute.  We focus on the U.S. Supreme Court’s 2019 decision in Rehaif v. United States, which applied a culpable knowledge requirement to the federal felon-in-possession statute, 18 U.S.C. § 922(g). 

Prior to Rehaif, federal courts uniformly treated the critical objective element under 922(g) — whether a firearm or ammunition possessor meets the conditions for one of nine prohibited legal categories — as a question of fact for which an actor could be held strictly liable.  Adding a knowledge requirement to this element resulted in a significant decline in the likelihood of a defendant being charged with 922(g), the number of 922(g) charges per defendant, the total number of defendants charged with 922(g), and the total number of 922(g) charges filed each month. 

We estimate that these charging reductions prevented 2,365.32 convictions and eliminated 8,419.06 years of prison sentences for 922(g) violations during the eight-month period following issuance of the Rehaif opinion.  At the same time, prosecutors were just as likely to secure convictions of those they charged with 922(g) after the Rehaif decision as they were before it.  All told, our study suggests that adding culpable mental states to criminal statutes can meaningfully constrain prosecutorial discretion, lower convictions, and reduce punishment without bringing criminal administration to a halt.

Reviewing how Rhode Island changed its child abuse law after Lima

As I discussed in class, though our casebook mentions how the New York legislature amended its drug statutes after Ryan, it fails to mention 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.

A "missing mental state" and a federal proposal for mens rea reform

As we start turning more deeply into mens rea issues, there are lots of topics we will cover (too) quickly that generate broad and deep academic and political debates.  I will sometimes use this space to highlight some of this broader debate, especially if I mention the debate in class in some way. (Critically, you should feel no obligation to read more than these posts, which are just intended to give you a feel for the debate.)  So, two items as follow up from our recent classes:

1. I mentioned in class the work of OSU Law's Alan Michaels on mental states titled "Acceptance: The Missing Mental State."  You can download the full 105-page(!) manuscript at this link, though I would recommend being content with this summary from the paper's abstract:

This article identifies a serious shortcoming in the traditional criminal law mental state hierarchy and proposes a new mental state -- called acceptance -- as a solution.  Acceptance exists where the actor acts recklessly and, in addition, would have acted even "had he known" that his conduct would "cause the harm."  The article establishes, through close analysis of the willful blindness and depraved-heart murder doctrines, that use of the mental state of acceptance is both practicable and necessary.

When liability lines are drawn at the level of knowledge, the criminal law has rarely been satisfied to restrict liability to actual knowledge, but instead has relied on ambiguously defined crimes (such as depraved-heart murder) or has stretched the definition of knowledge (for example, through the willful blindness doctrine) to push reckless conduct across the liability line to the knowledge side.  These "solutions" have failed.  When contemporary criminal law draws a significant liability line between knowledge and recklessness, doctrine governing cases near the margin is both particularly vague and distinctly lacking in consensus in comparison to most areas of the criminal law.

The article proposes that where the law requires knowledge, acceptance should be allowed to suffice.  After justifying such an approach from both retributive and utilitarian perspectives, the article establishes, by examining the willful blindness and depraved-heart murder doctrines, that using acceptance would yield a better fit between criminal law and culpability concepts and would substantially diminish vagueness problems.

2. I mentioned in class that federal criminal law has never been fully or formally revised since the Model Penal Code was developed.  But there are often proposals for all sorts of reviews, and here is the full text from a notable press release, "Sens. Lee, Tillis, and Paul Introduce Mens Rea Reform Act," from last year describing a federal criminal law reform proposal:

Sens. Mike Lee (R-Utah), Rand Paul (R-Ky.) and Thom Tillis (R-N.C.) yesterday introduced the Mens Rea Reform Act of 2021, a bill that aims to reduce overcriminalization, rein in excessive regulation, and curb overzealous prosecutions.

As the power of the federal government has grown in size and scope, regulators and prosecutors have found ways to penalize activities that most Americans would view as innocent or non-criminal.  As a result, ordinary Americans have found themselves facing jail time for supposedly “criminal” activities like abandoning a snowmobile on federal land, accidentally diverting sewage backups to the wrong drain, or unknowingly selling goods to the wrong person.  In each of these cases, the government did not have to prove that the person knew or intended to commit a crime; they simply had to prove that the person committed the action.

Current federal law criminalizes all kinds of activities that most people would not know were criminal.  For example, “[p]lacing a vehicle or other object in such a manner that it is an impediment . . . to the . . . convenience of any person” on federal property or writing a check for less than $1 could earn someone six months in prison.  These crimes do not require the government to demonstrate that someone intended to do something wrong — merely that they engaged in the prohibited conduct.

Additionally, many of these so-called “criminal” statutes were written by unelected bureaucrats.  Agency regulators and prosecutors have used laws like the Clean Water Act for decades to punish conduct most Americans would view as innocent, or at least not criminal.

“Prosecutors should have to show a suspect had a guilty mind, not just that they committed an illegal act, before an American citizen is put behind bars,” Sen. Lee said. “Unfortunately, our federal laws contain far too many provisions that do not require prosecutors to prove a defendant intended to commit a crime. The result is a criminal justice system that over-penalizes innocent acts, which only undermines the rule of law.”

“We’ve unfortunately seen too many instances of commonsense and restraint not being used in the prosecution of Americans for innocent acts with no criminal intent,” said Sen. Tillis. “Our legislation will help curb unfair overcriminalization by requiring prosecutors to demonstrate guilty intent.”

The Mens Rea Reform Act would end this wrongful government overreach by establishing a default intent standard for all criminal laws and regulations. In other words, if a law does not require proof that the defendant intended to commit a crime, prosecutors would still have to demonstrate that the defendant possessed a guilty mind in order to convict.

Read the full bill text here.

Real-life case from Australia involving an immoral photographer taking pictures rather than aiding

We will wrap up our quick discussion of omission liability on Wednesday by reviewing the Jones case closely and returning to the topic of who could and should be charged with a crime for letting little Josephine drown in my pool hypothetical.  (We will also get started on the topic of voluntariness with the Martin and Grant cases.)  I have been using the pool hypothetical in class for many years, and often students laugh when I describe the hard-to-believe character of a photojournalist student taking pictures of Josephine drowning rather than doing anything to help.  Indeed, I have long worried this part of my pool hypothetical was too outrageous to seem plausible.  

But last year, a student in this class told me about a recent real-life example of an immoral photographer — kind of like the photo-journalist in my baby-drowning-at-pool hypo — who was subject to a creative prosecution in Australia.  This 2021 press story, headlined "Richard Pusey: Australian jailed for filming dying officers," provides these details:

An Australian man has received a 10-month jail sentence for filming and mocking police officers as they lay dying at a crash scene.  Last month Richard Pusey pleaded guilty to the rare charge of outraging public decency, as well as other offences.

The 42-year-old has already been in custody for nearly 300 days, so he will probably complete his sentence within days. The sentencing judge called his actions "heartless, cruel and disgraceful".

Still, families of the victims were disappointed with the length of the sentence in a case that has stirred huge public anger.  Last month, Judge Trevor Wraight said the media had demonised Pusey to the point where he was "probably the most hated man in Australia".

The mortgage broker had been speeding in his car on a Melbourne freeway last year when he was pulled over by four officers. While they were making his arrest, all four were struck by a lorry that had veered out of its lane.

Senior Constables Lynette Taylor and Kevin King, and Constables Glen Humphris and Josh Prestney died at the scene. Pusey had been standing a few metres away and avoided the crash, but afterwards pulled out his phone and began filming numerous videos, some of which ran for more than three minutes.  The court had heard that Pusey stood over and taunted Senior Constable Taylor as she remained pinned under the lorry. Experts said she was most likely still alive at the time....

He fled the scene on Melbourne's Eastern Freeway shortly after.  The next day he was arrested at his home and initially charged with speeding, drug possession and reckless conduct offences.  However, police then also discovered Pusey's video and that he had shared it among friends.

The lorry driver, Mohinder Singh, was jailed earlier this month to 22 years for the deaths.  A court found that the truck driver had been high on drugs, suffering delusions and hallucinations, and driving erratically when he ploughed his truck into the officers.

Judge Wraight condemned Pusey's behaviour while noting he was only being sentenced for his actions.  Pusey hadn't caused the deaths of the officers, contrary to some public opinion, the judge said.  "Your conduct in recording the police officers in their dying moments, together with the words you used as you recorded, was not only derogatory and horrible... but it was also callous and reprehensible conduct," Judge Wraight said.

He noted that Pusey had a history of mental health problems, including a complex personality disorder "which may go some way to explaining your behaviour". But he said it did not excuse his actions....

Families and supporters of the police officers criticised the sentence after it was handed down in Victoria's County Court. Stuart Schulze, the husband of Constable Taylor, said he felt "almost unbearable" pain every time he remembered how his wife was treated in her final moments.  "This sentence is totally inappropriate of this offending," Mr Schulze told reporters outside court.  He argued it was the court's duty to "set the appropriate standard" in penalising such behaviour.

The offence of outraging public decency has rarely been prosecuted in Australia, and the charge carries no set penalty. The head of Victoria state's police union also criticised the sentence. "Four upstanding heroes died on that day and… one soulless coward lived," Wayne Gatt said.

For anyone so interested, here is a link to the sentencing opinion in DPP v. Pusey.  Relatedly, law professor Jonathan Turley discusses this case in this blog post and highlights that, in the United States, Richard Pusey could not have been prosecuted for failing to aid the officers (though it is not clear he was prosecuted for that crime in Australia, either).

"The Dire Consequences of Pleading Not Guilty by Reason of Insanity in Colorado"

The title of this post is the headline of this interesting recent (and long) article about the realities of how the defense of insanity plays out in the Mile High state.  I recommend the full article, and here are excerpts:

Americans are familiar with — and often fascinated by — cases in which alleged perpetrators have pleaded not guilty by reason of insanity (NGRI).  People such as John Hinckley Jr., who attempted to assassinate President Ronald Reagan; Lorena Bobbitt, who cut off her husband’s penis after she says he sexually assaulted her; and the Aurora theater shooter, who unsuccessfully asserted insanity, have generated media frenzies.  They’ve also caused the public to question the fairness and necessity of laws that say not everyone is equally culpable for criminal acts.

For more than two centuries, state legislatures across the United States have generally supported the idea that individuals with certain degrees of mental illness cannot be held criminally responsible for their actions and should be directed toward medical support, not incarceration. Although people are constitutionally entitled to be found competent to stand trial, the U.S. Supreme Court upheld in March 2020 the notion that there is no constitutional right to an insanity defense.  Four states — Kansas, Utah, Idaho, and Montana — have done away with the NGRI defense entirely.  Today, about one percent of all felony cases in the nation contain an insanity plea; of those, only around a quarter are successful.

Colorado continues to allow individuals to plead NGRI based on a very strict legal definition..... Local attorneys and legal experts explain that the defense should only be considered in the most serious situations, because of the attendant repercussions: In the Centennial State, NGRI acquittees are automatically committed to the state psychiatric hospital for treatment.  Unlike convicted criminals, who are sentenced for a set period of time, those who are deemed insane remain at the Colorado Mental Health Institute at Pueblo (CMHIP) until doctors and the courts agree they are stable and safe enough to reintegrate into the community.  Under Colorado law, their sentences aren’t supposed to be influenced by the specifics of their alleged crimes, as they are in some other states.  The amount of time to be served is the same for everyone: one day to life....

Research by Michael Perlin, professor emeritus at New York Law School and founding director of the International Mental Disability Law Reform Project, shows NGRI acquittees across the country generally remain confined in state hospitals longer than they would have been imprisoned had they pleaded guilty and entered the traditional carceral system. “The less serious the crime, the greater the disparity is,” he says.

Data acquired from the Colorado Judicial Branch show that, since 2010, less than 40 percent of all NGRI court filings in the state involved at least one murder or attempted murder charge.  Nearly a quarter of the cases in which insanity was presented included only class 5 felonies or below.  (Most felonies are labeled from class 1 — the most serious crimes, punishable by life in prison — down to class 6.)  According to hospital data received via a CORA request, as of late August, 31 percent of NGRI patients at CMHIP had a maximum offense level of felony classes 4 to 6.  “You need to supervise these folks, but there’s no reason to keep them in as long as they would have been in prison had they been convicted,” says Chris Slobogin, a professor of law at Vanderbilt University who helped update the mental health standards for the American Bar Association in 2016.  “Most of the time, they could be let out a lot earlier, and they should be.”...

There are far more people — roughly 10 times as many — with serious mental illnesses being held in jails and prisons than in state hospitals, according to the Treatment Advocacy Center, a national nonprofit that works to reduce barriers to mental health care.  But mentally ill or not, when prisoners’ penal sentences end, they are released into the community. Neither the courts, nor the jails, nor the departments of corrections first assess the potential impact on public safety or their likelihood to commit other crimes.

That’s not the case with those declared insane by the courts in Colorado.  To be released from CMHIP, NGRI acquittees like Ownby and Hoffschneider must be found to have “no abnormal mental condition which would be likely to cause him or her to be dangerous either to himself or herself or to others or to the community in the reasonably foreseeable future.”  It’s all about probability, Slobogin, the law professor, says: “What if there’s a 50 percent chance this guy will do something?  Does that give us grounds for keeping the person in or not?  Some people would say one percent is too high.  If that were true, we would have to keep everybody who’s in prison, in prison forever.”

Around 50 percent of people released from prison recidivate.  National recidivism rates for NGRI acquittees are not tracked, but limited research suggests they’re lower than those of incarcerated individuals.  “People who are found not guilty by reason of insanity face a larger uphill battle [to get released] than people who are not, even if their dangerousness or risk for violence is far lower than a person who might have committed the same offense and been put in prison,” says Neil Gowensmith, director of the Denver Forensic Institute for Research, Service and Training at the University of Denver.  “It’s a totally different standard, and one that may be, at times, not just stigmatizing, but flat-out discriminatory.”

An Ohio variation on the Crawford case with a similar result

A few months ago, an Ohio court resolved an appeal in a criminal case with a set of facts and a duress claim that relatively similar to the Crawford case in our text; the appeals court reached a similar result as in Crawford based on the common law's emphasis on the need for a threat being "imminent" for a duress claim to succeed.  The full opinion in State v. Womack, 2021-Ohio-1309 (Ohio App. 5th Dist. April 14, 2021), covers various issues, but the discussion of duress from paragraphs 46 to 56 is a pretty good account of Ohio law and it concludes this way:

Upon our review of the record, we agree with the trial court's conclusion that the evidence did not support Womack's contention that the affirmative defense of duress was applicable to the facts of the case.  We do not dispute that Womack subjectively believed he and his family were being threatened with imminent death or serious bodily injury. We note that the Sixth District Court of Appeals has recognized that duress may be found when the threat is made against the defendant's family.  State v. Cowan, 6th Dist. Wood No. WD-14-026, 2015-Ohio-2101, 2015 WL 3488289, ¶ 28; State v. Luff, 85 Ohio App.3d 785, 804, 621 N.E.2d 493 (6th Dist.1993) (stating that jury instruction on duress should have been given where defendant testified that someone threatened to destroy his family).  Our research indicates, however, that only the Sixth District Court of Appeals has extended the definition of duress to include the threat of imminent death or serious bodily injury to a defendant's family.  However, the force of harm threatened must be in the present; fear of future harm cannot be the basis for the threat of duress.  There was no evidence presented that Shot was a present threat to Womack's family, there was only a possible threat of future harm.

Womack's argument for application of the defense of duress fails because Womack had the ability to safely withdraw from the harm before committing the offenses of aggravated burglary and kidnapping.  He could have withdrawn or escaped after he arrived at M.B.'s home.  According to Womack's testimony, Shot and JT were on the side of the house while Womack was alone on the front porch.  Shot and JT were out of his view from the front porch.  There was no evidence that Shot was pointing his gun at Womack while Womack was on the front porch.  M.B. testified that Womack entered her house alone and closed the front door.  In the home with only he and M.B. present, Womack could have asked M.B. for help or left the home through another door.  While on the front porch, Womack testified he tried to leave but he was pushed into the home by Shot and JT.  After Shot and JT entered the home, Womack testified he did in fact leave the home without expressing a fear of harm or even with the knowledge that any money was found, which would have released him from his debt to Shot.

The defense of duress is strictly and extremely limited in application.  Upon the facts of this case, we find the trial court did not abuse its discretion by not giving the jury instruction for duress.  We overrule Womack's third Assignment of Error.

Another reminder that some of my silly hypos can be all too real for some

Earlier this year, as noted in this post, I was alerted to a recent real-life example of an immoral photographer — kind of like the photo-journalist in my baby-drowning-at-pool hypo.  And today, another class member found this recent news report that sounds more than a bit like my Flintstones' hypothetical.  The report is headlined "Police say man shot dead in east El Paso after assaulting ex-girlfriend is justifiable killing," and here are the details in two parts:

ORIGINAL REPORT, Nov. 5: EL PASO, Texas -- A 23-year-old man was shot dead Friday evening by a homeowner on El Paso's eastside in a dispute involving a woman, police said.

The fatal shooting happened at a home in the 11800 block of Vere Leasure, a neighborhood located near Saul Kleinfeld and Pebble Hills Boulevard. Crimes Against Persons detectives were summoned to the scene around 7:30 p.m.

The woman involved in the dispute is the homeowner's current girlfriend and is the ex-girlfriend of the deceased, according to investigators.

The homeowner told police that he pulled out a gun and shot the man after coming home and finding him assaulting the girlfriend; she didn't have any serious injuries.

A police spokesman said the pair, who are each in their 20s, were cooperating with authorities; both claimed the deadly shooting was a case of self defense. Investigators were trying to determine if that was the case or whether murder charges may be warranted.

UPDATE, Nov. 8: Investigators on Monday said they were ruling last week's shooting death of a man by a homeowner on El Paso's east side as a case of justifiable homicide.

Police identified the man killed as Aram Sida, 23, of Horizon City, and said he was shot to death by 20-year-old Hunter Joseph at his home in the 11800 block of Vere Leasure on Friday evening. The shooting happened after Sida allegedly assaulted his ex-girlfriend.

In a report on the shooting released Monday, police wrote that the "investigation revealed Sida forced his way into the residence. Once inside the residence, Sida began assaulting the female victim. The homeowner told Sida to leave the residence and armed himself with a rifle. Sida charged toward the homeowner with a knife. The homeowner then discharged his rifle and shot Sida killing Sida at the scene."

Among other matters of note, this report highlights how certain legal defenses can be assessed and resolved even before any criminal charges are filed.

A few of many notable self-defense headlines and stories

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Notable real-world account of efforts to reform sexual offense laws in Pennsylvania

Especially in the wake of our wonderful legislative drafting role-play, I found this new Philadelphia Inquirer article quite interesting.  The piece's full headline highlights its coverage: "Bill Cosby is out of prison. But a juror who convicted him wants to help define consent in Pa.: Cheryl Carmel learned during jury deliberations that Pennsylvania has no legal definition of consent. Now she is seeking to change that."  I recommend the lengthy piece in full, and here are excerpts:

When Cheryl Carmel was summoned to the Montgomery County Courthouse as a potential juror for Bill Cosby’s 2018 trial, she worried about taking time off from her busy job in cybersecurity.  But her professional experience came into use in an unexpected way weeks later, as she and other jurors decided whether Cosby was guilty of drugging and sexually assaulting Andrea Constand.

Hours into deliberations, the jury asked for the legal definition of consent. There is no formal definition in Pennsylvania law, Judge Steven T. O’Neill told them, instructing the jury to “decide what that means to them.” Carmel, the jury’s foreperson, said she then shared with her fellow jurors the definition she had memorized from a new European data privacy law.  It describes consent as “freely given, specific, informed and unambiguous,” and “a clear affirmative action.”

They went on to convict Cosby.  Three years later, the Pennsylvania Supreme Court overturned the conviction — based not on the facts of the case but a non-prosecution deal made by a prior district attorney — and freed Cosby.  But Carmel, 62, of Pottstown, is still involved in pushing for a formal definition of consent in state law in Pennsylvania and elsewhere.  ”If we have so much work on defining consent on how a business can use our email address and we don’t have a definition on how consent affects a crime, then that seems like something we should be able to fix,” she said.

That issue is complex, however, and doesn’t yet have support from some key legal and advocacy groups in Pennsylvania.  Some worry that it could backfire because a specific definition may not fit every situation.

Consent is central to sexual assault cases, and has drawn increased attention as a result of the #MeToo movement, a social reckoning with sexual misconduct. Jurors also asked the judge for a definition of consent before convicting film producer Harvey Weinstein in New York last year. And although the #MeToo movement has played a role in shaping public understanding of consent in sexual assault cases, many states, including both Pennsylvania and New Jersey, still lack legal definitions of the word.

Joyce Short, founder and CEO of the Consent Awareness Network, advocates for states to pass laws clearly defining consent, which she said is “freely given, knowledgeable and informed agreement” — similar terminology to Carmel’s data privacy definition. Short said she’s focused on helping jurors understand that consent is more complicated than a simple yes or no. Victims who are forced or threatened, for example, aren’t consenting to sexual contact, she said. Victims are also unable to consent if they are unconscious or under the influence of alcohol or drugs, which is accounted for in Pennsylvania law. The Cosby jury ultimately found that Constand was unable to consent to sexual contact with Cosby because she was drugged.

Short has teamed up with accusers of Weinstein and Cosby — including Constand. After the Cosby trial, she reached out to Carmel. “I have a different perspective from the victims,” Carmel said.  Carmel and Short met with lawmakers in Harrisburg in 2019, but legislation has not yet been introduced.  Carmel is retiring this year and hopes to dedicate more time to lobbying for that change.  Legislation introduced in New York earlier this year would insert Short’s definition of consent into state law.  No bill has yet been introduced to make a similar change in Pennsylvania. 

Sen. Katie Muth (D., Montgomery) said she had planned to introduce a bill in 2019 but put the effort on hold after hearing concerns, including that the Republican-controlled legislature could make unfavorable changes to the definition. “You don’t want anything bad to come of it, sort of unintended consequences,” she said.  Muth said there now appears to be more support for the bill, after Cosby’s release from prison thrust the issue back into the spotlight. She said she hopes to draft a new version of the bill before the end of the year.

Donna Greco, policy director for the Pennsylvania Coalition Against Rape, said her group doesn’t have a stance on legislation that would define consent. She said there is concern that a definition of consent could unintentionally hurt victims of sex assault by placing more emphasis on their behavior — which is already probed by defense lawyers and jurors. And it’s a myth that all victims act in the same way, she said.  “Finding the exact words that are going to fit every situation will be difficult,” Greco said.  “There is worry that victims’ behaviors will be even more scrutinized.”

Meanwhile, in the same state just a few weeks ago, the Governor introduced reform bills that made this headline: "Wolf targets ‘corrosive’ sexual violence at colleges, universities with package of bills."  Here is how this article begins:

Gov. Tom Wolf is spearheading a package of legislation aimed at combatting sexual violence on college campuses.  The four bills would, among other things, require clearer policies about sexual consent and information on counseling and protective services for victimized students.  Middle and high schools would also have to provide anti-sexual violence education.  “We cannot accept a culture in our colleges or in our commonwealth that allows sexual violence to continue,” Wolf said Monday.

Wolf first signed off on rules changing how higher education institutions handle sexual assault in 2019. Pennsylvania college students can now anonymously report sexual assault and other violence — and they can’t be punished if they were drinking or using drugs at the time. Since 2016, his administration has offered schools millions of dollars in grants to enact plans to address the problem.

Data shows a broad swath of higher ed students have dealt with sexual violence. At Penn State’s University Park campus alone, nearly a fourth of its 40 thousand-strong student body said in 2018 they experienced some kind of sexual assault while studying there.

Mirroring laws already on the books in states like California and Illinois, the governor and Democratic lawmakers want to make affirmative consent policies standard practice at Pennsylvania colleges and universities. Under that kind of policy, both parties have to agree to a sexual encounter rather than one person being required to say “no” to that experience.

Congrats on completing midterm, and now on to Welansky backstory

Here is a documentary with a partial recreation of the events that lead to the prosecution of Barnett Welansky.  The introduction is a bit much, but the 20 minutes that follow give you a flavor of the story behind an historic and horrific event: 

How would you expect an Ohio version of the Berry case to come out?

A case with facts reasonably similar to the facts in the Berry murder/manslaughter case in our text was litigated all the way up to the Supreme Court of Ohio in State v. Shane, 63 Ohio St.3d 630, 590 N.E.2d 272 (1992).  Here are the facts in the Shane case:

At approximately 6:00 a.m. on October 13, 1989, appellant, Robert Shane II, made a telephone call to the New Philadelphia Police Department to report the death of his fiancee, Tina Wagner.  Shane told the police officer who answered the phone, "I'm the one who did it ... she just drove me crazy and I choked her."  Police officers soon responded to the scene, which was an apartment shared by Shane, Wagner, and the couple's infant child.  When the officers entered the apartment, they discovered Wagner's nearly nude body lying on a bed; a red shirt was wrapped tightly around the victim's throat.  An autopsy revealed that Wagner had died of asphyxiation by strangulation.  Tests done on the victim's body revealed a urine alcohol content of 0.27 grams per deciliter.

Shane was indicted on one count of murder, a violation of R.C. 2903.02, to which he entered a plea of not guilty.  Testifying in his own defense at the trial, Shane again admitted that he had killed Wagner, but told the jury of statements Wagner had made to him immediately prior to the incident, which upset him greatly.  Shane stated that Wagner told him she had been sleeping with other men and that she no longer cared for him.  Shane testified, "I have never felt more upset and more mad with anyone [in] my entire life."  Shane further testified that after he became so upset, the next thing he remembered was "coming to" after having passed out and finding himself lying on the bed with Wagner underneath him.

How do you think the Supreme Court of Ohio applied Ohio's particular version of voluntary manslaughter rule on these facts?  The Shane case provides a helpful account of how Ohio courts look at the issue of provocation, and here some of the general discussion of the law from the Shane court: 

An inquiry into the mitigating circumstances of provocation must be broken down into both objective and subjective components.  In determining whether the provocation is reasonably sufficient to bring on sudden passion or a sudden fit of rage, an objective standard must be applied.  Then, if that standard is met, the inquiry shifts to the subjective component of whether this actor, in this particular case, actually was under the influence of sudden passion or in a sudden fit of rage.  It is only at that point that the emotional and mental state of the defendant and the conditions and circumstances that surrounded him at the time must be considered.  If insufficient evidence of provocation is presented, so that no reasonable jury would decide that an actor was reasonably provoked by the victim, the trial judge must, as a matter of law, refuse to give a voluntary manslaughter instruction.  In that event, the objective portion of the consideration is not met, and no subsequent inquiry into the subjective portion, when the defendant's own situation would be at issue, should be conducted.

The Shane court is the last major Ohio Supreme Court discussion of voluntary manslaughter in the context of a domestic dispute, but this issue continues to arise in lower courts.  And for an interesting debate over how Shane should be applied on a slightly different set of facts, you might consider the work of the Ohio Eleventh District Court of Appeals in State v. Wagner, 2007 Ohio 3016 (Ohio Ct. App. 2007), in which the appellate panel divided over the appropriateness of a voluntary manslaughter instruction in another case involving a husband killing his wife amid heated discussions of infidelity.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

I noted in class that Ohio tends to adopt a more "common law" account and approach to causation doctrines than the MPC approach, but this is a distinction that does not really make much of a difference in all but the rarest of cases.  Still, to follow up a few referenced in class, I thought I should cite and note the facts of a couple of the rare 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 some of these sad cases (but feel NO obligation to do so):

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.

A few SCOTUS cases highlighting a few distinctive causation issues under federal law

Especially because I have given some attention to the (still-growing) problem of drug overdose deaths and possible criminal responsibility therefore, I wanted to flag for you one relatively recent Supreme Court case dealing with causation issues in this context.  In addition, around the same time, SCOTUS also had to address another kind of causation issue in another high-profile and controversial context.  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 the kinds of causation issues that we are discussing this week.  Here are links to these two 2014 rulings, along with the start of the Court's opinion in each case:

Burrage v. United States, 571 U.S. 204 (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, 572 U.S. 434 (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."

A federal version and variation on the Bray case

As we wrap up our mens rea unit with a discussion of "mistakes of law," we will seek to sort through what kinds of mistakes about law can and cannot enable a defendant to potentially avoid criminal liability.  One key case we will soon discuss is the Bray case from California.  Though Bray is an older case focused on state law decided by a state court, quite recently the U.S. Supreme Court considered a similar issue in Rehaif v. United States, 139 S. Ct. 2191 (2019).  Here is how Justice Breyer's opinion for the Court in Rehaif gets started:

A federal statute, 18 U.S.C. § 922(g), provides that “[i]t shall be unlawful” for certain individuals to possess firearms. The provision lists nine categories of individuals subject to the prohibition, including felons and aliens who are “illegally or unlawfully in the United States.” Ibid.  A separate provision, §924(a)(2), adds that anyone who “knowingly violates” the first provision shall be fined or imprisoned for up to 10 years. (Emphasis added.)

The question here concerns the scope of the word “knowingly.” Does it mean that the Government must prove that a defendant knew both that he engaged in the relevant conduct (that he possessed a firearm) and also that he fell within the relevant status (that he was a felon, an alien unlawfully in this country, or the like)?  We hold that the word “knowingly” applies both to the defendant’s conduct and to the defendant’s status.  To convict a defendant, the Government therefore must show that the defendant knew he possessed a firearm and also that he knew he had the relevant status when he possessed it.

Can folks see how this case is quite similar to Bray?

The "missing mental state" and a federal law that holds drug dealers strictly liable for any resulting deaths

Two follow-up materials from our recent class that may help us round out our discussion of Ryan and subsequent cases.

1. I mentioned in class the work of OSU Law's former Dean Alan Michaels on mental states titled "Acceptance: The Missing Mental State."  You can download the full 105-page(!) manuscript at this link, though I would recommend being content with this summary from the paper's abstract:

This article identifies a serious shortcoming in the traditional criminal law mental state hierarchy and proposes a new mental state -- called acceptance -- as a solution.  Acceptance exists where the actor acts recklessly and, in addition, would have acted even "had he known" that his conduct would "cause the harm."  The article establishes, through close analysis of the willful blindness and depraved-heart murder doctrines, that use of the mental state of acceptance is both practicable and necessary.

When liability lines are drawn at the level of knowledge, the criminal law has rarely been satisfied to restrict liability to actual knowledge, but instead has relied on ambiguously defined crimes (such as depraved-heart murder) or has stretched the definition of knowledge (for example, through the willful blindness doctrine) to push reckless conduct across the liability line to the knowledge side.  These "solutions" have failed.  When contemporary criminal law draws a significant liability line between knowledge and recklessness, doctrine governing cases near the margin is both particularly vague and distinctly lacking in consensus in comparison to most areas of the criminal law.

The article proposes that where the law requires knowledge, acceptance should be allowed to suffice. After justifying such an approach from both retributive and utilitarian perspectives, the article establishes, by examining the willful blindness and depraved-heart murder doctrines, that using acceptance would yield a better fit between criminal law and culpability concepts and would substantially diminish vagueness problems.

2. An important "hot" topic in the arena of prosecuting and sentencing drug offenders in recent years, especially with the opioid crisis and increases in overdose deaths, has been the growth in  what are know as "drug-induced homicide" (DIH) cases or "death resulting" cases.  This short 2018 article, "Prosecuting Drug Overdose Cases: A Paradigm Shift," provides an overview of the trend and highlights "the variety of approaches available within existing statutory schemes and case law" for state prosecutors who seek to treat a drug overdose as a criminal homicide.  There is some variety as to the mens rea a drug defendant must have for a resulting death to be charged under a variety of state DIH statutes, though the article notes that "New Hampshire and New Jersey both define the offense as being one of strict liability."

In federal law, there is a special statutory provision that addresses this issue, but technically a person is not charged under federal law with homicide for causing a drug overdose death.  Rather, the federal statute prohibiting drug distribution, 21 U.S.C. § 841(b)(1), has provisions requiring significant sentencing enhancements if and when a person distributes a "controlled substance" and then "death or serious bodily injury results from the use of such substance."   For one of many example of the application of this statute, consider United States v. Harden, 893 F.3d 434 (7th Cir. 2018).  This is a long opinion that you should not feel any obligation to read at all, but I find the facts notable and a passage from the case instructive for our discussion.  First, the basic facts:

A jury convicted defendant-appellant Donald S. Harden of conspiring to distribute heroin, the use of which resulted in the death of Fred Schnettler.  Harden was sentenced to life in prison under 21 U.S.C. § 841(b)(1)(B)....

At 9:39 AM on September 5, 2014, Fred Schnettler, a twenty-five-year-old male, was found dead in his bedroom at his parents' home in Neenah, Wisconsin.  When the sheriff’s deputy arrived on the scene, he found Schnettler’s father performing CPR and observed a needle and spoon on the floor just below Schnettler’s bed.  The deputy believed that Schnettler had been dead for quite some time because his body was cold to the touch and rigor mortis had set in.

Donald Harden was subsequently charged with distributing the heroin that resulted in Schnettler’s death.  At trial, the prosecution’s case focused on Schnettler’s purchase of 0.1 grams of heroin from Kyle Peterson the night before Schnettler was found dead.  Peterson testified that he purchased the heroin from Brandi Kniebes-Larsen, who in turn testified that she received the heroin from Harden.

And now the basic trial process as described on appeal:

Harden was charged with conspiracy to distribute controlled substances in violation of 21 U.S.C. § 841(a)(1).  The jury instructions included two special verdict questions: (1) "whether the United States has established, beyond a reasonable doubt, that Frederick J. Schnettler died as a result of the use of a controlled substance, to wit: heroin, distributed by the defendant"; and (2) "whether the conspiracy involved 100 grams or more of a mixture and substance containing heroin."

With respect to the first special verdict question, the jury instructions said: "The United States does not have the burden of establishing that the defendant intended that death resulted from the distribution or the use of the controlled substance.  Nor does the United States have the burden of establishing that the defendant knew, or should have known, that death would result from the distribution of the controlled substance by the defendant."

A real-life example of immoral photographer (not having duty to aid)

Ben Hooks reported to me after class on Friday that there is a recent real-life example of an immoral photographer — kind of like the photo-journalist in my baby-drowning-at-pool hypo — who was subject to a creative prosecution in Australia.  This press story, headlined "Richard Pusey: Australian jailed for filming dying officers," provides these details:

An Australian man has received a 10-month jail sentence for filming and mocking police officers as they lay dying at a crash scene.  Last month Richard Pusey pleaded guilty to the rare charge of outraging public decency, as well as other offences.

The 42-year-old has already been in custody for nearly 300 days, so he will probably complete his sentence within days. The sentencing judge called his actions "heartless, cruel and disgraceful".

Still, families of the victims were disappointed with the length of the sentence in a case that has stirred huge public anger.  Last month, Judge Trevor Wraight said the media had demonised Pusey to the point where he was "probably the most hated man in Australia".

The mortgage broker had been speeding in his car on a Melbourne freeway last year when he was pulled over by four officers. While they were making his arrest, all four were struck by a lorry that had veered out of its lane.

Senior Constables Lynette Taylor and Kevin King, and Constables Glen Humphris and Josh Prestney died at the scene. Pusey had been standing a few metres away and avoided the crash, but afterwards pulled out his phone and began filming numerous videos, some of which ran for more than three minutes.  The court had heard that Pusey stood over and taunted Senior Constable Taylor as she remained pinned under the lorry. Experts said she was most likely still alive at the time....

He fled the scene on Melbourne's Eastern Freeway shortly after.  The next day he was arrested at his home and initially charged with speeding, drug possession and reckless conduct offences.  However, police then also discovered Pusey's video and that he had shared it among friends.

The lorry driver, Mohinder Singh, was jailed earlier this month to 22 years for the deaths.  A court found that the truck driver had been high on drugs, suffering delusions and hallucinations, and driving erratically when he ploughed his truck into the officers.

Judge Wraight condemned Pusey's behaviour while noting he was only being sentenced for his actions.  Pusey hadn't caused the deaths of the officers, contrary to some public opinion, the judge said.  "Your conduct in recording the police officers in their dying moments, together with the words you used as you recorded, was not only derogatory and horrible... but it was also callous and reprehensible conduct," Judge Wraight said.

He noted that Pusey had a history of mental health problems, including a complex personality disorder "which may go some way to explaining your behaviour". But he said it did not excuse his actions....

Families and supporters of the police officers criticised the sentence after it was handed down in Victoria's County Court. Stuart Schulze, the husband of Constable Taylor, said he felt "almost unbearable" pain every time he remembered how his wife was treated in her final moments.  "This sentence is totally inappropriate of this offending," Mr Schulze told reporters outside court.  He argued it was the court's duty to "set the appropriate standard" in penalising such behaviour.

The offence of outraging public decency has rarely been prosecuted in Australia, and the charge carries no set penalty. The head of Victoria state's police union also criticised the sentence. "Four upstanding heroes died on that day and… one soulless coward lived," Wayne Gatt said.

For anyone so interested, here is a link to the sentencing opinion in DPP v. Pusey.  Relatedly, law professor Jonathan Turley discusses this case in this blog post and highlights that, in the United States, Richard Pusey could not have been prosecuted for failing to aid the officers (though it is not clear he was prosecuted for this in Australia, either).

Many, many thanks to Ben for bringing this case to my attention!

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

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

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

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

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

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

Some attempt stories (though note the defendants are not only charged with attempt)

Silvia flagged in the comments to the attempt post below this interesting story from HuffPost: "North Dakota Man Pleads Guilty To Stealing Forklift To ‘Kill’ Donald Trump"

On a related front, another story from down south that may hit a little too close to home in a variety of ways: "Florida student arrested for threatening to kill professor over 7 am exam"

For the record, I am not in charge of setting the time for our exam. ;-)

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.

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.

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.

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. 

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

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.

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.

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."

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.

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

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

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

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

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

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

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

Examples of litigation involving Ohio Revised Code Section 2923.24

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

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

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

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

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

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

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:

• Maryland top court issues lengthy split opinions on application of Eighth Amendment limits on juve life sentences
• A friendly brief on the intersection of Eighth Amendment juvenile sentencing jurisprudence and the federal sentencing guidelines 

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:

• "Why Is It Wrong To Punish Thought?"

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.

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.

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?

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.

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.

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:

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.

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).

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.

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.