Criminal Law @ Moritz College of Law

Many, many thanks for (too) many, many sentencing role-play volunteers

I was so pleased to get back to my desk and already hear from so many of you about your interest in volunteering for our sentencing role-play planned for Monday afternoon.  As I mentioned, I tried to fill spots in a first-come, first-serve way, and I am sincerely sorry we had more volunteers than slots.   Here is who have been plugged into these coveted early lawyering slots based on the emails I received:

 

Oliwood v. Rachel Foster

Prosecutors: Angad Chopra & Alex Maxwell

Defense Attorneys: Caitlin Langfitt & Helen Sudhoff

 

Oliwood v. Dan Schayes

Prosecutors: Cole Hassey & Evan Lewis

Defense Attorneys: Anders Miller & Silvia Francis-Bongue

 

UPDATE:  Below is an electronic copy of the sentencing form I handed out in class on Friday.  And remembers that for our exercise we will be using the first two subsections of  US Code, Title 18, Section 3553(a) ("Factors To Be Considered in Imposing a Sentence") as a guide for our judges and counsel.

Download 2018-judges-sentencing-form

Sage words on prosecutorial discretion and the right to counsel from the Deputy Attorney General

Back when we were preparing for the Joe Shooter role play, I mentioned a speech by Deputy Attorney General Rod Rosenstein discussing prosecutorial discretion, but I failed to here provide a link to the text.  I am now finally remedying this failing by linking here to the speech and quoting this snippet from it:

The ideal prosecutor is dogged, but not an automaton who proceeds at all costs.  Nor is the ideal prosecutor a zealot who demands criminal punishment for every arguable violation of the law.

Robert Jackson, another of our nation’s great Attorneys General, observed: “If the Department of Justice were to make even a pretense of reaching every probable violation of federal law, ten times its present staff would be inadequate.”  Driving the point home, Jackson explained that “no local police force can strictly enforce the traffic laws, or it would arrest half the driving population on any given morning.”

With an ever-growing criminal code, those observations are more accurate today than when Jackson made them in 1940.  Jackson’s point was simple.  Violations of the law abound.  “What every prosecutor is practically required to do,” he said, “is to select the cases for prosecution and to select those in which the offense is the most flagrant, the public harm the greatest, and the proof the most certain.”  As Jackson recognized, the prosecutor necessarily chooses which cases to pursue.

The ability to choose which cases to prosecute is an extraordinary power.  Courts exercise the ultimate authority to rule on the strength of the evidence and the meaning of the law.  But the decision whether or not to prosecute, as the Supreme Court has ruled, is “ill-suited to judicial review.”  Such unreviewable power calls for the exercise of judgment, and the wise use of discretion.

When asked, “Why did you prosecute that case?” it will not do for the prosecutor to respond with, “Because I can,” or “Because I must.”  The only right answer is, “Because I should.”

Of course, our next role play does not engage the issues that surround prosecutorial decision-making and discretion, but rather defense representation.  Conveniently, just today, Deputy Attorney General Rod Rosenstein gave this new speech on the topic of the right to counsel. Here is an excerpt that might help inspire those soon to play the role of defending Thomas Dudley:

The right to counsel is enshrined in our Constitution for a reason. The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right to . . . have the assistance of counsel for his defense.”

Our Founders understood the necessity of protecting individual liberty from government overreach.  And no clearer overreach exists than the power to take someone’s liberty without due process of law.

Protecting the right to counsel is a fundamental component of preserving the rule of law and ensuring equal access to justice....

Defense attorneys work alongside their clients, at every stage of the proceedings, to advocate on their clients’ behalf. And through that advocacy, they play a critical role, a role that is essential to our concept of liberty and due process.

A defense attorney’s work is not just about the individual client represented in any given case.  Rather, the work is an integral part of our constitutional system.

The right to counsel is both substantive and procedural: a lawyer represents a client’s interests substantively, while simultaneously ensuring that the client’s procedural rights are protected.  A defense lawyer is the ultimate check on a prosecutor’s discretion, and a bulwark against the wrongful incarceration of innocent persons.

Starting homicide doctrines starting with Joe Shooter role play

Next week we will begin our in-depth discussions of homicide laws and we get started with another role-play.  To get off to a running start, here is a link to the Joe Shooter facts (which I am also handing out in class), along with an encouragement for folks to sign up (in the comments and/or via an e-mail) to play the role of either prosecutor or defense attorney on Joe Shooter's behalf in California (a common-law-influenced jurisdiction) or Kansas (an MPC-influenced jurisdiction) or Ohio (a little of everything).

This time around, we only really need one lawyer for each side -- so 6 total volunteers, a single prosecutor and a single defense attorney for each state.  In addition to the usual offer of future happy hour celebration, volunteers this time around can know that they will be rewarded for their efforts by being assured they get a really good running start at tackling homicide doctrines

So, review the Shooter facts and sign on up in the comments or via an e-mail to me.

UPDATE:  We have our Ohio lawyers, Claudia Cash has volunteered to prosecute and Erica Duff volunteered to be the defense attorney in Ohio.  Thanks, and know now that I think, after having had too much fun in class today, that I am pushing back the role play to Wednesday (10/19).  Watch this space (i.e., this new post) with more details.

And Elizabeth Hartman has now signed up to be the Kansas defense attorney, and now Chance Johnson is to be the California prosecutor.  Two spots left.

Congrats, Crim Law extra credit, and (paid) research break opportunities and topics

Kudos to putting the final exam of the first semester of law school in your rear-view mirror.  Now do whatever you can to forget about exams and enjoy the holiday season with family and friends.

If you have done some of the extra credit tasks (and/or hope to get one last one in), I have two pieces of advice: (1) make sure you send me any not-yet-submitted work ASAP and not later than 5pm on Dec 19, AND (2) before the end of the year, send me an e-mail "reminder" of how many EC documents you completed.  (I think I have good records on who submitted what, but it is valuable to confirm matters, especially if there is some chance a submission ended up in my spam filter.)

Last but not least, I think you are now officially permitted to do paid research for me from now until Jan. 8 when classes start again.  If you are interested in such an opportunity, here are a few tasks that I am eager to have explored over the next few weeks:

1.  Significant lower-court state or federal rulings in the last 3 years in which adult offenders sought a ruling that the Eighth Amendment precluded an extreme prison sentence.

2.  Detailed analysis/summary of the nature and background of the offenders and offenses that have resulted in the 3000+ LWOP sentences discussed in this recent ACLU report.

3.  Significant recent lower-court state or federal rulings in which non-prison sentences imposed on sex offenders were found unconstitutional or unlawful (which special attention to cases in which female sex offenders were bringing the legal challenge).

4.  Any and all lower-court state or federal rulings in which a court justified a lesser or reduced prison sentence at least in part based on the imposition of a significant fine or economic sentence.

If any of these topics interest you, please (a) send me an e-mail indicating your interest in doing research on this topic, and (b) figure out what you need to do to get on my "research payroll," which involves filling out a form with the right person(s) in the Deans' suite of offices.

An essay competition to consider (perhaps for extra credit)

Via e-mail, I just learned of this notable competition for law students sponsored by the National Association of Criminal Defense Lawyers.  I urge all student to consider submitting an essay (after exams!) on the important topic selected by NACDL for this competition.  Here are the details:

NACDL Essay Competition Call For Entries: In keeping with its goal to promote diversity within the criminal defense bar, NACDL invites law students from accredited law schools in the United States to submit essays for a chance to be published in The Champion magazine.

Topic: It has been reported that from 1993 to 2008, the entering enrollment in law schools dropped by 7.5 percent for African-Americans and 11.7 percent for Mexican Americans (see AmLaw Daily article from January 2010, Study: Minority Law Student Numbers Dip as Law School Capacity Rises). With the numbers of historically underrepresented minorities seeking a law degree either stagnant or dropping in recent years, what steps would you recommend for increasing diversity in the profession and, in particular, on the bench? And why?

Eligibility: The contest is open to all current law students who are in good academic standing at accredited law schools in the United States.

Prizes: There will be one first prize winner, one second prize winner, and one honorable mention.

1.The first prize winner will have his or her winning essay published in a forthcoming edition of NACDL's magazine, The Champion; receive a $200 cash prize; receive a free one-year student membership; and receive a certificate of recognition.

2.The second prize winner will have his or her winning essay published in a forthcoming edition of NACDL's magazine, The Champion; receive a $100 cash prize; receive a free one-year student membership; and receive a certificate of recognition.

3.The entrant who receives an honorable mention will have his or her winning essay published in a forthcoming edition of NACDL's magazine, The Champion; and will receive a certificate of recognition.

Entries must be received by 5:00 pm on December 31, 2010.  Please email entries to Terrica Redfield at [email protected]; subject line NACDL Essay Contest.  [Complete contest rules can be downloaded here.]

Award Date: Winning entrants will be notified on February 1, 2011.

As the title to this post hints, I will be inclined to give a smidgen of extra credit to any student who sends me a copy of any essay produced for this NACDL competition.

Happy to have more review/advice meetings ... and eager for more law school commentary

In addition to thanking everyone who stopped by recently, I wanted to express my willingness to continue meeting with students individually (or in groups) through the semester. 

In the next few weeks, law school life really starts to speed up for 1Ls at Moritz.  In addition to having legal writing papers due, you need to start thinking about journals and other possible major activities during your next two years in law school.  Also, course selection materials come out and require you to start thinking about how you want to plan your upper-level program.  And, of course, you have your Contracts final before Spring Break and all your other finals not too long thereafter.

I am always happy to talk with students about any or all of these realities (and also about exam performance and job hunting and related concerns).  And, I am also eager to have students use the comments to this post to comment on their latest feeling and concerns as the 1L year at Moritz heads into the home stretch.

Congrats and now start working on deep reflections, suggestions and looking ahead

Congrats to everyone for finishing the first semester of law school.  It is all downhill from now, and law school (both inside and outside the classroom) will start feeling very different from here on out. 

Before you have too much holiday cheer (and egg nog), I would be grateful for comments reflecting on the first semester law school experience and/or suggestions for how Moritz could improve the experience and/or thoughts about what you are expecting and hoping to learn next semester and through the rest of your time at law school.

Please be as broad or as narrow as you wish in your reflections and suggestions: you can and should feel free to discuss broadly how law school has changed how you look at politics or society or your own professional plans; you can and should feel free to discuss narrowly how legal research or traditional classes or career services or Lou's Cafe could be improved.

You should also feel free to post anonymously and to talk candidly about Moritz faculty or staff or students or alums.  Are there ways that faculty or upper-level students or alums could do a better job helping 1Ls in the Fall or activities you hope these persons will sponsor this coming Spring? 

Thanks in advance for your continued engagement.  Have a great break!

Phrase of the day: "Productive aimlessness"

I attended much of Thursday morning's orientation lectures, and one phrase used by the very first speaker, OSU President E. Gordon Gee, provides a useful mantra for some of my goals for the class blog: "productive aimlessness."  Arguably, the phrase is an oxymoron, but in my mind it nicely captures my hope that engaging with this blog should be a productive enterprise and experience for everyone (including its creator), but also the idea that there is not one obvious goal or set of goals that I will seek to achieve through this medium.

Indeed, I think "enjoyable productive aimlessness" provides a good mantra for how you should try to spend some of your free time as a 1L.  You will burn-out quickly if all of your activities are very goal-orietned throughout law school.  But, because most attorneys have many personal and professional goals and lots to do to achieve those goals, time-management is a very important skill for all successful lawyers.  Consider exploring and embracing activities that you find enjoyable and that might seem aimless at first, but may also prove to be productive in some way personal or professional way.