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CHAPTER 1

THE NATURE AND STRUCTURE OF


CRIMINAL LAW

A. THE CORE AND PERIPHERY OF CRIMINAL LAW


[3] THE CAPACITY TO OBEY

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Another interesting and detailed study of Dudley v. Stevens is The Custom of the Sea by Neil
Hanson (1999). Hanson discusses the trial in detail using personal letters and diaries, court
records, and first person narratives. Barry Collins= play, Judgement (1991), is a three-hour
monologue on the subject of cannibalism. It was hugely successful as a theater piece in Britain. It
explores cannibalism among Russian soldiers trapped by retreating foreign troops near the end of
World War II. See also Yann Martel, Life of Pi (2002) (allegorical story of boy trapped on a
lifeboat at sea with a 450-pound Bengal tiger for over 200 days).

[4] CONTROVERSIAL CRIMES


[a] Unprotected Sex as Assault

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5. By late 2003, twenty-four states had enacted HIV-specific laws criminalizing the
intentional or knowing transmission (or risk of transmission) of the HIV virus. Illinois, New
Jersey, and Florida were among these states. Texas and New York were the most populous states
without such laws. The laws vary widely in content and specificity. Florida, for example,
prohibits sexual intercourse by HIV-positive persons unless the partner gives informed consent
expressly. [Fla. Stat. Ann. ' 384.24.] Idaho criminalizes the intentional Atransfer of bodily fluid
which may contain the HIV virus.@ [Idaho Code ' 39-608.] Missouri simply criminalizes any
reckless conduct that exposes another person to the risk of HIV infection. [Mo. Ann. Stat. '
191.677.]
Needless to say, many of these provisions have been criticized as vague and of dubious
constitutionality. Critics sometimes cite the California law, which requires specific intent to
transmit the HIV virus, as imposing a desirably stringent standard. But others argue that it creates
a burden of proof that prosecutors will rarely be able to meet. Dee McAree, The Debate over
HIV Exposure Laws, National Law Journal, Sept. 29, 2003, at 4. To date, none of these laws have
been found unconstitutional.

6. In Lawrence v. Texas, 539 U.S. 558 (2003), the U.S. Supreme Court, by a vote of five to
four, struck down a Texas statute that criminalized Adeviate sexual intercourse with another
individual of the same sex.@ The Court concluded that the statute violated liberty and privacy
interests protected by the Due Process Clause. In so holding, the Court overturned its 1986
opinion in Bowers v. Hardwick, 478 U.S. 186 (1986), which had upheld the constitutionality of
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Georgia=s sodomy statute.

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[b] Prenatal Delivery of Drugs

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The correct citation to the Florida Supreme Court=s opinion is 602 So. 2d 1288.

[d] Insider Trading

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The Second Circuit=s opinion in Carpenter was affirmed by an equally divided Court, 484
U.S. 19 (1987). Ten years later, the Amisappropriation@ theory of securities fraud was fully
adopted by the Supreme Court in United States v. O=Hagan, 521 U.S. 642 (1997).

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4. On March 25, 2004, Martha Stewart, the entrepreneur of home design and good living
(and, not as well known, a former stockbroker), was convicted by a New York jury of conspiracy,
obstruction of justice, and two counts of making false statements to federal investigators. The
case grew out of an alleged insider trading scheme involving stock of the biotech company
ImClone. Stewart and Peter Bacanovic, her ex-broker, were found to have lied to investigators
about the sale of ImClone stock just before it dropped substantially in value. The alleged lies
involved denials that Stewart=s decision to sell the stock was based on a tip from Bacanovic that
ImClone=s CEO had decided to dump his stock. Ironically, the prosecution ultimately decided not
to even charge criminal Ainsider trading,@ because it is at least questionable whether the
knowledge that a different company=s CEO is selling stock is Ainside@ information. (The
Securities and Exchange Commission, however, pursued a civil insider trading case against
Stewart, which was settled in August 2006 for a $195,000 fine and a five-year ban on Stewart
serving in various capacities with publically-traded companies.See Associated Press, Stewartto
Pay $195,000 to Settle SEC Civil Suit, August 8, 2006.)
The case shows that cover-ups of misconduct are often easier to prove and more difficult to
rebut than the actual misconduct itself, and can even provide grounds for prosecution where the
underlying conduct is not criminal. It also shows a tendency for prosecutors to focus attention on
highly visible defendants, who arguably are treated more harshly because of their celebrity. (For
further discussion of this case, see the material below supplementing Page 683 of the casebook.)

B. THE FUNCTIONAL AND PROCEDURAL BASES OF CRIMINAL LAW


[2] PROCEDURAL ASPECTS OF CRIMINAL LAW
[a] The State as Plaintiff: Civil Versus Criminal Liability

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1. In recent years, products liability cases have given rise to legislative proposals to extend

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criminal procedures and sanctions to certain kinds of corporate malfeasance. Litigation in 2000
and 2001 over Firestone=s manufacture and marketing of defective tires for SUVs led to
proposals that would make it a felony to withhold information about dangerous products from
consumers and regulatory agencies, that would eliminate the cap on damages for defendants who
withhold such information, and that would prohibit settlement agreements with secrecy
provisions. Texas House Bill 3125 included the first two conditions, but it was not enacted.
Consider whether you would regard criminal penalties and criminal discovery rules as
appropriate for such cases.

2. The Sarbanes-Oxley Act of 2002, 15 U.S.C. ' 7201, signed into law on July 30, 2002, was
a response to corporate scandals involving significantly dubious transactions that led to some of
the largest bankruptcies in American history, notably those of Enron and WorldCom. Sarbanes-
Oxley imposes criminal penalties for (a) willful lapses by accountants of requirements to retain
and review work papers for at least seven years; (b) any attempts by corporate officers to
influence or coerce accountants to issue misleading financial statements; (c) any retaliatory acts
by corporate officers against whistle-blowers; and (d) any attempts to alter, destroy, or falsify
documents in certain cases before bankruptcy courts and other federal courts. The act
strengthened existing securities laws by enhancing criminal penalties, and it created new
corporate crimes.

[c] Standard of Proof

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The model California jury instruction defining reasonable doubt has been amended, and the
concept of Amoral certainty@ has been eliminated. The current model instruction (2.90) defines
reasonable doubt as follows:

. . . not a mere possible doubt; because everything relating to human affairs is open to
some possible or imaginary doubt. It is that state of the case which, after the entire
comparison and consideration of all the evidence, leaves the minds of the jurors in that
condition that they cannot say they feel an abiding conviction of the truth of the charge.

In People v. (Glen) Johnson, 119 Cal. App. 4th 976 (2004), the trial judge, while using this
instruction, also told jurors that reasonable doubt was the same as the basis for Aeveryday
decisionmaking.@ He also observed that anyone who believed that having Ano doubt@ was
possible was Abrain dead@ C they would always have Asome doubt.@ The appellate court reversed,
noting that well over a century ago, in People v. Brannan, 47 Cal. 96 (1873), the California
Supreme Court had rejected a standard of proof for criminal trials resting merely upon the
Ajudgment of a reasonable man in the ordinary affairs of life.@ The appellate court in Johnson
ruled that judges should not deviate from the model jury instruction, and also held that error in
defining Areasonable doubt@ is fundamental Astructural@ error, requiring reversal even if the
defendant did not object. The U.S. Supreme Court ruled similarly that a constitutionally-
deficient reasonable doubt instruction cannot be harmless error in Sullivan v. Louisiana, 508 U.S.

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275 (1993).

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4. Several scholars have recently examined the scope and adequacy of the notion of proof
beyond a reasonable doubt. Melissa Corwin, in Defining AProof Beyond a Reasonable Doubt@ for
the Criminal Jury, 46 Villanova L. Rev. 829 (2001), argues the Third Circuit Court of Appeals
has recently defined the standard so expansively that Acriminal defendants will have an extremely
difficult time establishing due process violations.@ Lawrence Solan, in Refocusing the Burden of
Proof in Criminal Cases: Some Doubt About Reasonable Doubt, 78 Texas L. Rev. 105 (1999),
proposes that the reasonable doubt standard may not be Athe best way to promote the values our
system of criminal law claims to venerate.@ Echoing suggestions by Justice Ruth Bader
Ginsburg, he gives several reasons for favoring an instruction that requires juries to be Afirmly
convinced@ of the defendant=s guilt. In a slightly different vein, Rory Little has pointed out that
definitions of “reasonable doubt” fail to explain whether jurors must apply an “objective” or
more individualistic subjective, perspective, when evaluating whether a doubt is “reasonable.”
Guilt, Reasonable Doubt, and the Reasonable Woman, 6 Hastings Women’s L.J. 275 (1995).
Finally, in his article, Reasonable Doubt: How in the World Is It Defined?, 12 Amer. U. J. Int=l L.
& Pol. 195 (1997), Thomas Mulrine addresses the vagueness of the idea of reasonable doubt. He
concludes that the criterion of being firmly convinced is too weak and too easily satisfied. He
recommends that the standard be explained as different from absolute certainty and as satisfied
when careful consideration of the evidence presented leaves no reasonable doubt of guilt.

5. Once In re Winship established Aproof beyond a reasonable doubt@ as a constitutional


requirement for valid criminal convictions, state court defendants could style claims of
evidentiary insufficiency as claims of constitutional error. This greatly expanded the number of
criminal convictions that, theoretically at least, could be pursued all the way to the United States
Supreme Court as presenting a Afederal question.@
In Jackson v. Virginia, 443 U.S. 307, 319 (1979), the Supreme Court established what the
constitutionally required standard of review for evidentiary sufficiency should be for criminal
convictions on appeal, in light of Winship: Athe relevant question is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.@ Note that this standard is in some
sense the reverse of the trial court perspective: on appeal, the evidence, and Aall reasonable
inferences therefrom,@ must be viewed in the light most favorable to the prosecution, not the
defendant. This means that on appeal, all of the defendant=s evidence, and argued inferences,
may be ignored (unless they actually help the government). It effectively makes an appellate
reversal for evidentiary insufficiency very difficult to achieve. This change in perspective is
important to keep in mind, as you read cases in this book that often represent appellate decisions
about criminal convictions.

6. In Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), the Supreme Court extended In re
Winship to require that the prosecution prove beyond a reasonable doubt any fact A[o]ther than
the fact of a prior conviction . . . that increases the penalty for a crime beyond the prescribed
statutory maximum.@ Such facts are equivalent, the Court held, to elements of the crime and thus

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must be proved by the government. However, in Washington v. ReCuenco, 126 S.Ct. 2546 (June
26, 2006), the U.S. Supreme Court ruled that a failure to submit an Apprendi “sentencing factor”
to the jury is not “structural error and is therefore subject to harmless error analysis. For further
information about Apprendi and the line of cases applying it, see the material below
supplementing Page 192 of the casebook.

[e] Due Process and Fair Warning

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8. One of the most detailed and exhaustive examinations of the concepts of vagueness and
fair warning as constitutional mandates is John Decker=s recent survey, Addressing Vagueness,
Ambiguity, and Other Uncertainty in American Criminal Laws, 80 Denver U. L. Rev. 241
(2002). Decker concludes unsurprisingly that there are no clear statutory guidelines and that no
wholly consistent rules of application emerge from the case law. The article is particularly useful
as an encyclopedic review of the recent cases.

9. Since the California Supreme Court=s decision in Keeler, a number of state legislatures
have amended their homicide statutes to include the killing of an unborn child. See, e.g., Cal.
Penal Code ' 187 (defining murder as Athe unlawful killing of a human being, or a fetus, with
malice aforethought@); N.Y. Penal Law ' 125.00 (defining homicide to include Athe death of a
person or an unborn child with which a female has been pregnant for more than twenty-four
weeks@).
In People v. Davis, 872 P.2d 591 (Cal. 1994), the California Supreme Court refused to require
proof of viability in order to sustain a fetal homicide conviction under the murder statute
amended in response to Keeler. The court did, however, require the prosecution to show that Athe
fetus has progressed beyond the embryonic stage of seven to eight weeks.@ Id. at 602. More
recently, in People v. Taylor, 86 P.3d 881 (Cal. 2004), the California Supreme Court held that a
defendant could be convicted of second-degree murder in connection with the death of an
approximately twelve-week-old fetus even though the defendant did not know that the woman he
shot was pregnant. The defendant Aacted with knowledge of the danger to and conscious
disregard for life in general,@ the court explained, and A[t]hat is all that is required for implied
malice murder.@ AHe did not need to be specifically aware how many potential victims his
conscious disregard for life endangered.@ Id. at 884-85.
In April of 2004, President Bush signed into law the Unborn Victims of Violence Act, 18
U.S.C. ' 1841, which makes it a separate federal offense for one who is committing a federal
crime of violence to kill or injure Aa child, who is in utero at the time the conduct takes place.@
The act does not require proof that the defendant Ahad knowledge or should have had knowledge
that the victim of the underlying offense was pregnant,@ and a crime committed under this statute
is punishable by the same penalty that would have been imposed had the Ainjury or death
occurred to the unborn child=s mother.@ Id. ' 1841(a)(2). Criticized by opponents as Aan attack on
abortion rights masquerading as law enforcement,@ A Misleading Fetal Violence Law, N.Y.
Times, March 29, 2004, at A20, the bill passed the Senate by a vote of 61 to 38 C but only after
Senators narrowly rejected (by a 50-49 vote) an amendment that Awould have allowed criminals

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to be charged with a second offense for harming a fetus or terminating a woman=s pregnancy
without granting new legal status to the fetus.@ Carl Hulse, Senate Outlaws Injury to Fetus
During a Crime, N.Y. Times, March 26, 2004, at A1.

C. SPECIFICITY AND DISCRETION IN CRIMINAL LAW


[2] POINTS OF DISCRETION
[c] Plea Bargaining

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1. In September 2003, John Ashcroft, then Attorney General of the United States, sought to
limit prosecutorial plea bargaining in federal criminal cases. He ordered federal prosecutors to
refrain from charging defendants with the prospect of negotiating the charges downward through
a plea bargain. He directed prosecutors to Acharge and pursue the most serious, readily provable
offense or offenses that are supported by the facts of the case except in limited, narrow
circumstances.@ Thus, in the name of consistency he aimed not only to limit plea bargaining but
also to limit the discretion of prosecutors to decide independently about charges. Commentators
generally saw the decision as an attempt to make the federal justice system more severe and
inflexible. See Susan Schmidt, Ashcroft Issues Tougher Prosecutorial Guidelines, Wash. Post,
Sept. 23, 2003, at A3.

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As discussed in greater detail below in the materials supplementing Page 573 of the
casebook, the Tenth Circuit en banc reversed the panel=s decision in Singleton. See United States
v. Singleton, 165 F.3d 1297 (10th Cir. 1999) (en banc).

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5. Many courts have disagreed with the reasoning and conclusions of the Scott case. For
example, the U.S. Court of Appeals for the District of Columbia Circuit, in United States v.
Jones, 973 F.2d 928, 936 (1992), aff=d on other grounds, 997 F.2d 1475 (D.C. Cir. 1993) (en
banc), challenged the reasoning behind Scott=s suggestion that Aalthough a prosecutor may
engage in plea bargaining, a trial judge may neither involve himself in the process nor even
express a policy of differential sentencing.@ Judge Stephen Williams, writing for the panel in
Jones, said that A[a]lthough clearly the prosecutor=s proper role is quite different from the judge=s,
Scott=s apparent ban on any judicial consideration of the defendant=s choice between plea and
trial is hard to reconcile with Blackledge [v. Perry, 417 U.S. 21 (1974)], which suggested that a
prosecutor is at least as likely a source of vindictiveness as a judge, or with Roberts v. United
States, 445 U.S. 552 (1980), which upheld judicial consideration of the defendant=s failure to
cooperate with the government, a failure that is typically (though not invariably) linked with the
decision to stand trial.@

6. Two recent law review articles examine the role of the judge in plea bargaining. The first is

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Plea Bargaining and Convicting the Innocent: The Role of the Prosecutor, the Defense Counsel,
and the Judge by F. Andrew Hessick III and Reshma Saujani, 16 BYU J. Pub. L. 189 (2002). The
authors argue, among other things, that the structural incentives on judges to allow plea
bargaining increase the possibility that innocent defendants will be incarcerated. They offer
suggestions to reduce that likelihood, including increased availability of discovery for the
defense. In Reconcilable Differences: The Supreme Court Should Allow the Marriage of Brady
and Plea Bargaining (78 Ind. L.J. 899 (2003)), Andrew P. O=Brien seeks to demonstrate that the
holding in Brady v. Maryland, 373 U.S. 83 (1963), that evidence favorable to the defendant and
material to guilt or punishment may not be withheld by the prosecution after the defense has
requested it, should be made relevant to the plea bargaining process as well as to trial
preparation. His main concern is also safeguarding the innocent from punishment.

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Chapter 3
PUNISHMENT

B. GENERAL JUSTIFICATIONS OF PUNISHMENT


[1] RETRIBUTION

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4. To what extent is retribution a relevant justification for punishing juvenile offenders? Does
it play the same role in juvenile justice as in adult justice? Or does youth present a special claim
on mercy and indulgence as well as a special problem for the attribution of responsibility?
Writers and scholars on criminal justice have increasingly focused on these issues as the media
have increasingly brought atrocious criminal conduct by juveniles to public attention. Jarod
Hofacker, in Justice or Vengeance: How Young Is Too Young for a Child to Be Tried as an
Adult?, 34 Tex. Tech. L. Rev. 159 (2002), argues for a continued focus on rehabilitation and on
the limited capacities of underage defendants.
Relevant here is the U.S. Supreme Court’s ruling Roper v. Simmons, 543 U.S. 551 (2005),
that the death penalty may not constitutionally be applied to defendants whose crimes were
committed wihen they were under the age of 18.
In Is Lowering the Age at Which Juveniles Can Be Transferred to Adult Criminal Court the
Answer to Juvenile Crime? A State-by-State Assessment, 37 San Diego L. Rev. 783 (2000), Lisa
Beresford concludes that A[t]he answer to juvenile crime is not as simple as getting tougher and
stricter. The best results in the long run will be through community involvement and treatment to
learn why younger children are committing such crimes.@ She recommends that the decisions of
judges and judicial officers be informed to a much greater degree by training in Achild
development, cultural factors, resources for families, . . . and research findings regarding
rehabilitative interventions.@ She urges juvenile court personnel to Aappreciate the stages of child
development, the educational needs of children at various stages in their development, and child
behavioral issues.@ And she argues that Adelinquency is . . . a symptom of more fundamental
problems C social, psychological, economic, educational, vocational, physical, and even
philosophical.@

C. METHODS OF PUNISHMENT
[1] INCARCERATION
[d] Realizing Deterrence

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1. In Habitual Offender Statutes and Criminal Deterrence, 34 Conn. L. Rev. 55 (2001),


Linda Beres and Thomas Griffith evaluate the deterrent effect of newly-popular habitual offender
statutes and cast doubt on their efficacy. They seek to show that A[s]entencing repeat offenders to
much longer sentences than first-time offenders . . . may provide less effective deterrence than
punishing all offenders equally.@ They reason that A[t]he deterrent effect of a sanction depends on
its perceived severity. While lengthening a sentence increases its perceived severity, doubling the
prison time is unlikely to double the perceived severity of the sanction because offenders are
likely to discount time to be served in the future. Potential first-time offenders, moreover, are
likely to be more numerous than potential repeat offenders, thus increasing the importance of
deterring them.@ (For a description of the Supreme Court=s opinion in Ewing v. California, which
discusses the constitutionality of Athree strikes@ laws, see the material below supplementing Page
152 of the casebook.)
The deterrent effect of the death penalty is the main concern of Allan Johnson, in his recent
article, The Illusory Death Penalty: Why America =s Death Penalty Process Fails to Support the
Economic Theories of Criminal Sanctions and Deterrence, 52 Hastings L.J. 1101 (2001). His
unusual argument for abolition of the death penalty is not its putative unfairness or the risk of
mistake, but rather its economic inefficiency and the unlikelihood of making it efficient.

[2] ALTERNATIVE SENTENCING

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6. One of the most widely discussed topics in recent academic criminal law is the revival and
refinement of shaming and educative punishments. In his influential article, What Do Alternative
Sanctions Mean?, 63 U. Chi. L. Rev. 591 (1996), Dan M. Kahan addresses the failure of such
alternative sanctions as fines and public service by observing that they do not satisfy the
expressive function of punishment, that they convey confusing and unsatisfactory public
messages, and that they are insufficiently condemnatory. Accordingly, they imply that one can
purchase exemption from punishment and that community service is an appropriate sanction.
Kahan instead proposes a menu of alternative sentences that stigmatize offenders by shaming
them C for example, requiring offenders to wear shirts or bracelets publicizing their convictions,
to post signs at their homes, or to issue public apologies C sentences that may be expected to
deter and perhaps rehabilitate, and that at the same time express blame.
A partial challenge to Kahan is offered by Steven Garvey in Can Shaming Punishments
Educate?, 65 U. Chi. L. Rev. 733 (1998). Garvey argues that Ashame . . . menaces certain ideals
that any morally respectable mode of punishment should honor, not the least of which is human
dignity.@ He looks closely at the likely effects of various Acreative@ punishments on offenders and
defends what he calls Athe educating model@ of punishment. He concludes that if we take
seriously the so-called talionic principle, which Arequires that the punishment an offender suffers
mirrors the harm he inflicted on his victim,@ we will emphasize guilt over shame. He suggests
that certain well-crafted apology rituals and restitution strategies may well serve this educative
and therefore reformist function.

[3] CAPITAL PUNISHMENT

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With the 2000 publication of the book Actual Innocence: Five Days to Execution and Other
Dispatches from the Wrongly Convicted by Barry Scheck, Peter Neufeld, and Jim Dwyer,
questions regarding the accuracy of death penalty conviction procedures have been raised across
the nation. Although advocates differ about the meaning of Aactually innocent@ (as opposed to
merely unconvicted after a remand or retrial), there appears to be no doubt that at least some
actually innocent defendants have been found on America=s death rows, some within days of
execution. The Death Penalty Information Center in Washington, D.C. reports the number at 114,
from 25 different states. See www.deathpenaltyinfo.org, AInnocence and the Death Penalty.@
Two subsequent, comprehensive studies have suggested that criminal convictions, not just in
the death penalty context but also in criminal cases more generally, are less reliable than many
have assumed. See James Liebman, A Broken System: Error Rates in Capital Cases, 1973-1995
(2000) (claiming an overall 68% reversible error rate); Sam Gross et al., Exonerations in the
United States, 1989-2003 (2004) (finding 328 exonerations for Aserious crimes@ in the 15-year
period, 145 of which were based on DNA evidence and 183 on other sorts of evidence, such as
other persons being found guilty of the crime).
In 2006, issues of “actual innocence” were debated by the United States Supreme Court in
two cases. First, in House v. Bell, 126 S.Ct. 2064 (June 12, 2006), a 5-4 majority granted relief
to a defendant who had procedurally defaulted his claims (i.e., he filed them too late), but who
subsequently produced DNA evidence not available at the time of his trial that severely undercut
the prosecution’s case. House is the first case in which the Supreme Court has confronted the
new, more accurate, scientific DNA testing that underlies many of the death penalty exonerations
in the past 10 years.
Then, in Kansas v. Marsh, 126 S.Ct. 2516 (June 26, 2006), Justice Souter wrote on behalf of
four Justices (while dissenting on a different point) that the recent spate of exonerations
constitutes a “new body of fact [that] must be accounted for in deciding what … the Eighth
Amendment … should tolerate.” This stimulated Justice Scalia to respond in a concurring
opinion that there is not (in his view) “a single case … in which it is clear that a person was
executed for a crime he did not commit.”. The debate about “actual innocence” and capital
punishment continues, as a number of States have now imposed “moratoria on executions
(whether formally declared or simply de facto) while their death penalty regimes are studied.
An accessible book discussing the current controversies about the death penalty, written by
Scott Turow, the well-known author, former prosecutor, and member of the Illinois Commission
to Study the Death Penalty, is Ultimate Punishment (2004). (For discussion of several state
moratoriums on the death penalty, which were declared in response to concerns about the
accuracy of the capital sentencing process, see the material below supplementing Page 350 of the
casebook.)

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The U.S. Supreme Court has ruled that various categories of murderous defendants are
nevertheless excluded from execution under the Eighth Amendment’s “cruel and unusual
punishment” prohibition. Thus the insane (Ford v Wainwright, 477 U.S. 399 (1986)), the
mentally retarded (Atkins v. Virginia, 536 U.S. 304 (2002)), and juveniles (Roper v. Simmons,
543 U.S. 551 (2005)), all are not subject to capital punishment.
D. SEVERITY OF PUNISHMENT
[1] ON SENTENCING

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5. A different kind of issue is raised by the sentencing of offenders who committed crimes in
the distant past and who, while evading capture and prosecution, led exemplary lives for twenty-
five years or longer. In the late 1960s and early 1970s, many self-styled social revolutionaries
from middle- and upper-class families joined such organizations as the Weather Underground,
the Symbionese Liberation Army (SLA), and the New World Liberation Front. Among other
activities of civil (and criminal) disobedience, they staged violent protests and carried out
bombings which cost lives. Many of these revolutionaries have only recently been identified and
charged with serious crimes committed decades earlier.
It can be argued that their unexceptionable conduct over more than twenty-five years shows
that they are no longer dangerous. The circumstances under which they acted were distinctive, a
period of unrest and social dislocation. Nonetheless, the retributive argument that the seriousness
of their crimes does not diminish over time and the argument from deterrence, that society must
continue to express its intolerance of such conduct, are powerful. How, on your view, are such
cases best resolved?
The recent case of Sara Jane Olson, who was charged with conspiring with members of the
SLA, illustrates this issue and current attitudes toward it. Early in 2001 she was charged with
having conspired with members of the SLA in the early 1970s. She planned to challenge the
charges, which were based on circumstantial evidence. But after the events of September 11,
2001, the changed national attitude toward all forms of terrorism convinced her to plead guilty to
conspiracy and possession of bombing materials. She was sentenced to ten years for these
offenses and two years later received a six-year sentence after pleading guilty to second-degree
murder for her role in the death of a bystander during a robbery committed by the SLA.

[2] SENTENCING DISCRETION

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Concerned by the increasing numbers of downward departures from the presumptive


sentences set out by the federal sentencing guidelines, Congress passed the PROTECT Act in
2003, Pub. L. No. 108-21, 117 Stat. 650 (2003) (codified in scattered sections of 18, 28, and 42
U.S.C.). Among other things, the statute Arequir[es] district courts to specify their reason for
departing from the Guidelines in a written order, replac[es] the abuse of discretion standard of
appellate review with a de novo standard, direct[s] the [U.S. Sentencing] Commission to
promulgate amendments to the Guidelines to reduce opportunities for downward departures, and
order[s] the Attorney General to send a report to the House and Senate Judiciary Committees that
outlines the policies adopted to ensure that Department of Justice attorneys >oppose sentencing
adjustments . . . that are not supported by the facts and the law.@= Recent Legislation, 117 Harv.
L. Rev. 751, 753-54 (2003). However, in its 2005 Booker decision (see material supplementing
Page 192, infra), the U.S. Supreme Court invalidated the section of the statute modified by the
PROTECT Act to impose a de novo standard of review, and announced that federal sentences
would henceforth be reviewed on appeal for “reasonableness.” United States v. Booker, 543 U.S.
220 (2005). In the 18 months since Booker was decided, lower federal Courts of Appeal have
diverged somewhat in their application of this standard. But, interestingly, the percentage of
downward “departures” has not changed perceptively, while the number of upward departures
has slightly increased. See generally Douglas Berman, Sentencing Law and Policy blog,
http://sentencing.typepad.com/.
For an excellent book on the federal sentencing guidelines, see Kate Stith & Jose A.
Cabranes, Fear of Judging: Sentencing Guidelines in the Federal Courts (1998). For a
description of the Supreme Court=s recent decision in United States v. Booker, which finds the
federal sentencing guidelines unconstitutional, see the material below supplementing Page 192 of
the casebook.

[4] PROPORTIONALITY

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4. AThree Strikes@ Laws and Ewing v. California. In Ewing v. California, 538 U.S.11 (2003),
the Supreme Court resolved a constitutional challenge to California=s so-called Athree strikes@
law. California=s law required that a defendant who is convicted of a felony and has previously
been convicted of two or more violent or otherwise serious felonies receive an indeterminate
sentence of life imprisonment. Eligibility for parole for such a defendant is determined by
referring to the minimum term, which in Ewing=s case was twenty-five years. The crime that
triggered the three-strikes law in this case was the theft of three golf clubs with a total value of
about $1200. Under California law, the judge had discretion to treat a crime of this particular
kind as a misdemeanor or a felony.
Ewing argued that under the circumstances his punishment was grossly disproportionate to
his offense under the standard set out in Solem and the reasoning laid out and applied in
Harmelin. The Court rejected his argument. There was no majority opinion.
Speaking for a plurality consisting of Chief Justice Rehnquist, Justice Kennedy, and herself,
Justice O=Connor observed that, according to previous law, Afederal courts should be reluctant to
review legislatively mandated terms of imprisonment, and that successful challenges to the
proportionality of particular sentences should be exceedingly rare.@ She distinguished Solem as a
case in which parole was not a possibility. She then found legislative sense in the California law,
quoting scholarship to the effect that Ait was intended to be a focused effort to create a sentencing
policy that would use the judicial system to reduce serious and violent crime.@ She noted,
furthermore, that the California legislature, in enacting the three-strikes law, Amade a judgment
that protecting public safety requires incapacitating criminals who have already been convicted
of at least one serious violent crime,@ and she concluded that ACalifornia=s justification is no
pretext.@ Accordingly, AEwing=s sentence is justified by the State=s public-safety interest in
incapacitating and deterring recidivist felons.@ The sentence Areflects a rational legislative
judgment, entitled to deference.@
Justices Scalia and Thomas concurred in the judgment and wrote separate opinions. Justice
Scalia reasserted his conviction that the constitutional prohibition against cruel and unusual
punishments was not intended as a guarantee against disproportionate sentences but was only
intended to exclude certain kinds of punishment. He accused the plurality of Anot applying law
but evaluating policy.@ Justice Thomas in his opinion asserted that the proportionality test in
Solem is Aincapable of judicial application,@ and he affirmed that the Eighth Amendment, in his
view, Acontains no proportionality principle.@
Justice Stevens and Justice Breyer wrote separate dissents, joining in each other=s views and
joined as well by Justices Souter and Ginsburg. Justice Stevens, noting the continuing viability
and usefulness of Solem, remarked that it would be Aanomalous indeed to suggest that the Eighth
Amendment makes proportionality review applicable in the context of bail and fines but not in
the context of other forms of punishment, such as imprisonment.@ Justice Breyer set forth an
elaborate scheme of analysis. Inferring from Harmelin and other cases, he described a threshold
test of gross disproportionality. Looking to the length of Ewing=s Areal time@ sentence, the
Asentence-triggering criminal conduct,@ and the offender=s criminal history, he concluded the case
could not be significantly distinguished from Solem. Having determined that Ewing=s claim
passed the threshold test, he then applied the three criteria announced in Solem to determine that
the constitutional mandate had been violated.
Ewing seems to be further evidence that the Court is still sharply divided on the underlying
issue of proportionality. Four Justices support the continued robustness and supposed good sense
of Solem, but five Justices apparently do not. Three of those five Justices would apply the test
very narrowly with great deference to state legislatures, while the remaining two believe that no
proportionality principle at all is appropriate in Eighth Amendment analysis.
Chapter 4
THE ACT REQUIREMENT

A. VOLUNTARY ACTS

Page 157: Add to Note 5:

A Abrainwashing@ defense was recently advanced on behalf of Lee Malvo, the seventeen-
year-old defendant convicted in the highly publicized 2002 Washington, D.C. area sniper
shootings. As in the Hearst case, the Malvo jury rejected the defense, although it did go on to
decline to impose the death penalty that the prosecution sought. See James Dao, Mental Health
Experts Call Sniper Defendant Brainwashed, N.Y. Times, Dec. 11, 2003, at A38. For further
discussion of Malvo=s defense, see the material below supplementing Page 807 of the casebook.

B. OMISSIONS

Page 168: Add to Note 8:

After the Court of Appeals remanded for reconsideration of Fortier=s sentence, the district
judge sentenced him to an identical twelve-year prison term (but reduced his fine from $200,000
to $75,000). It should be noted that this sentence was imposed not merely for misprision of
felony, but also for Fortier=s guilty pleas to transporting and conspiring to transport stolen
firearms with Timothy McVeigh, and making false statements to the FBI. The sentence was
affirmed on appeal. United States v. Fortier, 242 F.3d 1224 (10th Cir. 2001).
The federal misprision statute is not only actively employed today (albeit often in plea
bargain contexts), but it has been characterized as a Acrime of moral turpitude@ that can subject
an alien to deportation. Itani v. Ashcroft, 298 F.3d 1213 (11th Cir. 2002). The federal statute (18
U.S.C. ' 4) provides that AWhoever, having knowledge of the actual commission of a felony
cognizable by a court of the United States, conceals and does not as soon as possible make
known the same to some judge or other person in civil or military authority under the United
States, shall be fined . . . or imprisoned not more than three years, or both.@ As the Itani court
recognized, this Ahas been a federal crime since the First Congress [in 1790], for the common
law recognized a duty to raise the >hue and cry= and report felonies to the authorities.@ Id. at 1216
(citing Branzburg v. Hayes, 408 U.S. 665, 696-97 (1972)).
It is the word Aconceals@ in the federal statute that has been found to support the requirement
of Aaffirmative steps@ mentioned in the casebook. This requirement is not a particularly strong
one, however. In Fortier, the defendant=s simple failure to respond truthfully to questions
regarding his knowledge of the Oklahoma federal building bombing was viewed a sufficient
Aaffirmative act@ to support his guilt for misprision. Do you see the distinction between this and
criminal liability for a simple failure to report the crime?
C. POSSESSION

Page 174: Add to Note 2:

In United States v. Lindsey, 389 F.3d 1334 (10th Cir. 2004), defendant Victor Lindsey was
charged with carrying a firearm Aduring and in relation to@ a drug trafficking crime. Lindsey was
traveling in tandem with a U-Haul truck and tried to cross the border. Lindsey made it through
the checkpoint, but border agents pulled over and searched the U-Haul truck, which was driven
by Lindsey=s Aflunky,@ Randy Watson. After the agents found 13 handguns, 22 pounds of
marijuana, cocaine, and crack cocaine in the truck, Lindsey was apprehended. The evidence
showed that Lindsey bought the weapons in Arizona, paid for the U-Haul, and instructed Watson
to drive the truck. The court held that even though Lindsey was not physically in the U-Haul, he
exercised dominion and control over Watson and the truck and traveled with the truck, which
gave him the power and intention to exercise control over the weapons.
In State v. Fletcher, 870 A.2d 1191 (Del. 2005), defendant Marvin Fletcher was convicted of
possessing cocaine with the intent to deliver. Fletcher was the passenger in a car that was pulled
over. The driver saw Fletcher fumbling with something and heard the glove box open and close
before the police searched the car. The police found 18.8 grams of cocaine in the glove
compartment and a digital scale in the pocket of the passenger door. Fletcher claimed there was
insufficient evidence to show he possessed the drugs. However, the Delaware Supreme Court
held that the evidence was sufficient to allow the jury to find he controlled the drugs and scale,
and that the presence of the scale was sufficient to show an intent to deliver.

Page 174: Add to Note 3.

In addition, the Supreme Court of Florida has indicated that A>guilty knowledge= is an element
of the offense of possession and must be proven beyond a reasonable doubt.@ Garcia v. State, 901
So. 2d 788 (Fla. 2005). The defendant in that case, Jorge Garcia, was pulled over for erratic
driving. When his car was searched, the police found an item wrapped in electrical tape that
contained methamphetamine. Garcia testified that his truck had recently been stolen and he had
no knowledge of the item. Although the Florida Supreme Court noted that the jury can presume
knowledge, it held that the trial court must instruct the jury, when the defendant so requests, that
the guilty knowledge element includes Aboth knowledge of possession and knowledge of the
nature of the illegal substance.@

D. STATUS CRIMES

Page 176: Add following Robinson v. California:

It should be noted that the Robinson decision was not unanimous. Rather, the Court was
significantly split, with Justice Harlan concurring only in the judgment, and Justices White and
Clark dissenting.
Chapter 5
MENS REA

B. LEVELS OF CULPABILITY
[1] THE COMMON LAW: GENERAL VERSUS SPECIFIC INTENT

Page 191: Add to Note 1:

Consider State v. Beine, 162 S.W.3d 483 (2005 Mo. banc), in which an elementary-school
counselor was prosecuted for sexual misconduct involving a child, under the portion of the
statute that criminalizes A[k]nowingly expos[ing] the person=s genitals to a child less than
fourteen years of age in a manner that would cause a reasonable adult to believe that the conduct
is likely to cause affront or alarm to a child less than fourteen years of age.@ Mo. Rev. Stat. '
566.083.1(1). At trial, two students testified that Beine stood 3 to 4 feet from the urinal, which
enabled them to see his penis. On another occasion, the younger brother of one of those students
said Beine turned from the urinal he was using with his pants unzipped and penis exposed to tell
some students to Ashut up@ before turning back and zipping up his pants. A majority of the
Missouri Supreme Court found the statute Apatently unconstitutional@:

The Court may take judicial notice that all persons have to relieve themselves
regularly, that the need for such relief may arise suddenly, that public facilities are
regularly provided, and that males of all ages regularly use the facilities provided for
them, necessarily exposing their genitals in the process. Section 566.083.1(1) leaves
adults in a state of uncertainty about how they may take care of their biological needs
without danger of prosecution when a child is present in the same public restroom.
Because a person=s right to use public restrooms is about as fundamental a right as one
can imagine, probably equal to or more fundamental than speech rights, the overbreadth
doctrine should extend to this case and permit Mr. Beine to contest section 566.083.1(1)
even if he had no right to engage in the conduct he engaged in.
But it is not clear that Mr. Beine had no right to do what he did. The evidence that the
state introduced at trial essentially showed only that Mr. Beine used a public restroom
while boys were present and stood at a little further distance from the urinal than men
usually do, and that Mr. Beine accidentally turned around without zipping his pants
zipper up to discipline some boys that were causing a disturbance in the restroom. This is
constitutionally protected conduct, so even if the overbreadth doctrine did not apply to
this case, Mr. Beine can still contest the constitutionality of the statute by arguing that it
prohibits conduct . . . which he is constitutionally entitled to engage in.

The dissent, however, thought that there was no constitutional error because the mens rea
term Aknowingly@ applied to the entire provision, which Ainformed Mr. Beine that he cannot
expose himself in a manner that he knows is likely to cause deliberate offense or a feeling of
danger.@ The majority, however, declined to Arewrite@ the statute by Aadd[ing] a word that the
legislature did not see fit to include.@ Does the majority misinterpret the statute? Or does the
statute risk criminalizing innocent conduct?
Page 192: Add to Note 5:

In Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), however, the Supreme Court, by a five-
to-four margin, concluded that the New Jersey hate crime statute violated the constitutional
mandate of the Due Process Clause and Sixth Amendment right to jury trial, which require that
any fact A[o]ther than the fact of a prior conviction . . . that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt.@ The defendant in that case pleaded guilty to a weapons offense that carried a
maximum prison sentence of ten years, but he was sentenced to twelve years under the hate
crime statute, which allowed an A>extended term= of imprisonment@ if the sentencing judge found
by a preponderance of the evidence that the defendant A>acted with a purpose to intimidate an
individual or group of individuals because of race, color, gender, handicap, religion, sexual
orientation or ethnicity.@= Id. at 468-69 (quoting New Jersey statute).
The Court=s ruling in Apprendi has spawned a great deal of confusion and litigation, and its
full consequences remain unclear. For a description of Ring v. Arizona, 536 U.S. 584 (2002),
where the Court applied Apprendi in the context of a capital sentencing hearing, see the material
below supplementing Page 377 of the casebook. See also Harris v. United States, 536 U.S. 546
(2002) (distinguishing Apprendi where the judge=s finding that the defendant brandished a
firearm while committing his crime increased the mandatory minimum sentence but not beyond
the statutory maximum for the crime); United States v. Cotton, 535 U.S. 625, 628, 632-33 (2002)
(despite the government=s concession that Apprendi was violated where the defendants received
sentences higher than the statutory maximum for their drug charges based on the judge=s finding
that they were eligible for an enhanced penalty applicable to drug offenses Ainvolving at least 50
grams of cocaine base,@ the Court refuses to reverse because the defendants did not object at trial
and Athe error did not seriously affect the fairness, integrity, or public reputation of judicial
proceedings@).
In Blakely v. Washington, 542 U.S. 296 (2004), by the same five-to-four vote that decided
Apprendi, the Supreme Court interpreted Apprendi to bar a state judge from imposing an
Aexceptional sentence@ higher than the standard presumptive sentence range (49-53 months)
based on the judge=s conclusion that the defendant acted with Adeliberate cruelty@ C a factor
specified by the legislature as a permissible Aaggravating factor,@ but not found beyond a
reasonable doubt by a jury or admitted by the defendant as part of a guilty plea. Even though the
defendant=s 90-month sentence was well within the ten-year statutory maximum for his crime,
the Blakely majority concluded that Athe relevant statutory maximum@ for Apprendi purposes was
not ten years (Athe maximum sentence a judge may impose after finding additional facts@), but
instead 53 months (Athe maximum [the judge] may impose without any additional findings@).
Here, the majority explained, the judge Acould not have imposed the exceptional 90-month
sentence solely on the basis of the facts admitted in the guilty plea@ because the state=s sentencing
scheme required that an exceptional sentence be justified by A>factors other than those which are
used in computing the standard range sentence for the offense.=@
On the same day that Blakely was issued, a different 5-4 majority of the Supreme Court also
ruled that Ring v. Arizona (see above and the material supplementing Page 377 of the casebook)
is not to be applied retroactively to cases already final on direct review, thus leaving in place the
death sentences of over a hundred inmates who were sentenced under procedures declared
unconstitutional in Ring. See Schriro v. Summerlin, 542 U.S. 348 (2004).
To settle the impact of applying Blakely=s reasoning to the Federal Sentencing Guidelines, the
Solicitor General of the United States quickly petitioned for expedited review of two cases
during the summer of 2004: United States v. Booker and United States v. Fanfan. In an unusual
August conference, the Supreme Court granted certiorari in both cases, and set them for
expedited briefing and oral argument on the opening day of the October 2004 Term. In January
2005, the same 5-4 majority that had decided Blakely announced that the mandatory Federal
Guidelines sentencing regime was also unconstitutional, because it suffered from the same flaw:
sentences could be increased above the otherwise mandatory guidelines range based on facts not
found by the jury or proven beyond reasonable doubt. See United States v. Booker, 125 S. Ct.
738 (2005).
However, in a surprising turn of events, Justice Ginsburg (who first voted with the Booker
majority to hold the Federal Sentencing Guidelines unconstitutional) silently switched to form a
different majority (with the four Blakely dissenters) to address the remedy. Justice Breyer (who
prior to being appointed to the Supreme Court had been a Federal Sentencing Commissioner and
who has been credited with largely writing the federal guidelines themselves) wrote for this
remedial majority that the section of the Federal Sentencing Reform Act that makes the
guidelines mandatory should be Asevered@ from the rest of the statute, thereby leaving the
guidelines in place, but only in an Aadvisory@ capacity. Other statutory sections left standing
require that the guidelines calculations still be made, and that the appropriate guidelines Arange@
be determined C even though based on factual allegations that the jury may never hear, and
determined by the sentencing judge by a preponderance of the evidence rather than beyond a
reasonable doubt. Thus the effect of Booker/Fanfan on the federal guidelines is to leave them in
place, and require their calculation in every case, although whether or not to follow them in the
end is Adiscretionary@ with the sentencing judge.
Finally, Justice Breyer wrote for the remedial Booker majority, federal sentences are still
appealable, but they will now be reviewed for Areasonableness.@ The implications of that
standard are yet to be worked out, and lower federal courts have split on a number of subsidiary
issues. See material supplementing page 140, supra. There remains a great deal of lower court
litigation on multifarious Apprendi-Blakely issues. See, e.g., People v. Black, 35 Cal. 4th 1238
(Cal. June 20, 2005) (holding that California=s three-tier sentencing structure is not invalid under
Blakely), certiorari granted in successor case of People v. Cunningham (unpublished), No. 05-
6551 (Feb. 6, 2006).

Page 193: Add Note 7:

7. Mens Rea as a Critical Issue in Prominent Corporate Criminal Trials. Proof of criminal
intent is often the critical element in white-collar corporate corruption and fraud cases. For
example, in 2005 the Supreme Court unanimously reversed the criminal conviction of
accounting firm Arthur Andersen for destroying documents related to Enron because the trial
court=s jury instructions Asimply failed to convey the requisite consciousness of wrongdoing.@
Arthur Andersen v. United States, 544 U.S. 696 (2005).
The government prosecuted Andersen in 2002 under the Victim and Witness Protection Act,
18 U.S.C. ' 1512, which makes it a crime to Aknowingly . . . corruptly persuad[e] another
person . . . with intent to . . . cause or induce@ that person to withhold or alter documents for use
in an official proceeding. The case focused on memos from Andersen=s in-house counsel that
advised the firm to follow its document destruction policies regarding information related to
Enron, even as
investigations by the Securities and Exchange Commission loomed. The trial judge instructed the
jury that Andersen could be found guilty Aeven if [it] honestly and sincerely believed that its
conduct was lawful.@
The Supreme Court=s opinion, written by Chief Justice Rehnquist, strongly rejected that
approach, saying, AIndeed, it is striking how little culpability the instructions required.@ The
Court interpreted the requirement to Aknowingly . . . corruptly persuad[e]@ to require that
Andersen destroy the documents with Aconsciousness of wrongdoing.@ Just destroying
documents as part of a normal business practice which resulted in impeding an investigation
would not be enough. But the Court stopped short of endorsing Andersen=s conduct, and it did
not define Acorruptly,@ leaving unresolved what types of document destruction policies would fall
within the reach of the statute. The Court also held that the government must show a nexus
between the destruction of documents and an impending investigation.
The Supreme Court=s ruling does little to help the once high-flying Andersen, which all but
ceased to exist after it lost its licenses to practice amid the indictment and Enron fallout. But the
ruling could assist some of the former Andersen partners involved in related civil suits, as well as
others involved in white-collar criminal proceedings. The long-term impact of the decision will
be harder to measure. The Court was interpreting an earlier law that was substantially replaced in
2002 by the Sarbanes-Oxley corporate reform law, described above in the materials
supplementing Page 30 of the casebook, which expanded and clarified criminal penalties for
obstructing or interfering with investigations by destroying documents. See Jess Bravin, Justices
Overturn Criminal Verdict in Andersen Case, Wall Street Journal, June 1, 2005, at A1.

[a] Other High-Profile White Collar Prosecutions


Unquestionably the most prominent corporate criminal trial in recent history was the criminal
trial of Enron founder Kenneth Lay and its former Chief Executive Officer Jeffrey Skilling.
More than four years after Enron collapsed into bankruptcy, Lay and Skilling were found guilty
of several criminal charges in May, 2006. For such a complex case, the convictions were
surprisingly simpler than most people imagined. The two defendants were found guilty of lying
to investors, employees and government regulators in an effort to disguise the crumbling fortunes
of their energy empire. Alexei Barrionuevo, Enron Chiefs Guilty of Fraud and Conspiracy, May
26, 2006, nytimes.com . Lay was found guilty of one count of having a conspiracy to commit
securities and wire fraud. The prosecution contended that Lay perpetuated a conspiracy started
by Skilling to lie and misinform people about Enron’s financial health. Lay was also convicted
of two counts of wire fraud for making misleading statements to employees over the internet and
teleconferences regarding Enron’s financial health, and three counts of securities fraud for
misleading a credit agency, and analysts. Finally, in a related but separate trial, Lay was found
guilty of three counts of making false statements to banks and one count of bank fraud by
breaking promises not to use lines of credit to buy or carry margin stocks. Certainly, this was not
the outcome we expected," said Lay, who was flanked by his wife Linda. "I firmly believe I'm
innocent of the charges against me, as I have said from day one," he said.
Skilling was found guilty of one count of the conspiracy that Lay was charged with, a
conspiracy to commit securities and wire fraud. Skilling was additionally found guilty of twelve
counts of securities fraud. These convictions stemmed from his involvement with financial
structures that hide Enron’s debt, his knowledge of intentionally misleading reports filled with
the SEC, and also for omitting bad news or lying to market analysts during conferences or
conference calls. He was also found guilty of five counts of making false statements to auditors
about Enron’s financial statements, and one count of insider trading for selling stock that he
knew was overpriced in Sept. 2001, one month after his resignation.
While both men could have been sentenced to life in prison (sentencing is scheduled for
October 2006), in July 2006 Kenneth Lay died, allegedly of a heart attack, although autopsy
results are pending. Meanwhile, Skilling’s lawyer has promised a “vigorous” appeal. Sheila
McNulty and Ben White, Skilling and Lay convicted of Enron conspiracy, May 26, 2006,
msnbc.com; Shaheen Pasha, Enron Founder Ken Lay Dies, C NNmoney.com, July 5, 2006.

Similarly, in 2003, two former Tyco officers, CEO Dennis Kozlowski and Chief Financial
Officer Mark Swartz, were charged in New York with a form of corporate stealing C for, in the
words of the Wall Street Journal, Ain effect . . . using Tyco as their personal piggybank.@ Mark
Maremont, Finally, a CEO Faces a Jury: Kozlowski, Wall Street Journal, Sept. 25, 2003, at C1.
Spectacular allegations included Kozlowski=s purchase of a $6,000 gold-inlaid shower curtain
with corporate funds, and a $2 million birthday party for his wife, billed to the corporation as a
company-sponsored event. The criminal charges included conspiracy and grand larceny. Rather
than dispute many of the facts, the defense argued an absence of specific intent, claiming that the
defendants believed their high salaries and generous expenses were legally authorized by the
board of directors. In early 2004, after a lengthy trial, the jury=s deliberations were interrupted
and a mistrial declared when a 79-year-old juror=s identity was disclosed in the press and she
received an intimidating letter. The juror, a law school graduate, was reportedly reluctant to
convict based on her concerns that the defendants did not have the requisite intent to steal. On
retrial, however, after 11 days of deliberation, the jury convicted Kozlowski and Swartz on 22 of
the 23 counts they each faced. See Andrew Ross Sorkin, Ex- Chief and Aide Guilty of Looting
Millions at Tyco, N.Y. Times, June 18, 2005, at A1. The pair received imprisonment sentences of
8 1/3 to 25 years in the fall of 2005, and were ordered to pay fines and restitution totaling over
$235 million. Leon Lazaroff, Ex-Tyco Executives get up to 25 Years, Chicago Tribune, Sept.
2005. Their appeal is pending.

In another highly publicized corporate prosecution, Adelphia Cable Company founder John
Rigas and his son Timothy were convicted in 2004 of wrongfully borrowing $2.3 billion using
the corporation=s credit as security and then misleading investors by using the money to buy
Adelphia stock. Once again, the defense included arguments that the requisite mens rea was not
present, because the defendants intended to pay back the loan and therefore did not intend to
permanently deprive the company. See Peter Grant, Adelphia Ex-Officials= Defense Has Rocky
Start, Wall Street Journal, June 2, 2004, at C1. John Rigas, who is 80 years old, was sentenced to
15 years in prison, while Timothy Rigas was sentenced to 20 years. Another son, Michael Rigas,
faces a new trial after the jury deadlocked following the first trial; former Adelphia assistant
treasurer Michael Mulcahy was acquitted. See Roben Farzad, Jail Terms for 2 at Top of Adelphia,
N.Y. Times, June 21, 2005, at C1.

Finally, former WorldCom CEO Bernard Ebbers, who is 63 years old, was sentenced to a 25-
year imprisonment term for his corporate fraud convictions. “Although I recognize . . . this is
likely to be a life sentence for Mr. Ebbers, I find anything else would not reflect the seriousness
of the crime," the judge said. Carrie Johnson, Ebbers Gets 25-Year Sentence For Role in
WorldCom Fraud, Wash. Post, July 14, 2005, at A01; see also Ex-WorldCom CEO Ebbers’
Conviction Affirmed (CNNMoney.com July 28, 2006). Prior to sentencing, Ebbers also agreed to
surrender his entire personal fortune, some $40 million, as restitution. See Jonathan D. Galter,
Seeking Deterrent, U.S. Wants a Life Prison Term for Ebbers, N.Y. Times, June 29, 2005, at C5.
Such increasingly harsh sentences for white-collar offenders demonstrates that shifts in
sentencing philosophy have occurred since Judge Frankel=s 1976 sentencing opinion in United
States v. Bergman, excerpted at Page 132 of the casebook.

[2] THE MODEL PENAL CODE

Page 198: Add to Note 1 after the first paragraph:

In State v. Self, 155 S.W.3d 756 (Mo. 2005), Brenda Self was convicted of failing to cause
her child to attend school Aregularly@ in violation of Missouri=s compulsory school attendance
law. While the statute did set forth a culpable mental state, the Missouri Supreme Court
interpreted the statute to require that the prosecution prove Self acted either knowingly or
purposefully in causing her child to not attend school regularly. The court applied Missouri law
that requires a culpable mental state for all elements of a crime if no mens rea is given, unless the
legislature specifically intends to eliminate a mens rea requirement.
Similarly, the Supreme Court of Michigan in State v. Tombs, 472 Mich. 446 (2005), read a
mens rea requirement into a statute criminalizing the distribution or promotion of child
pornography. Russell Tombs was convicted of promoting child pornography when he returned a
work laptop that contained sexually abusive images of a child. The court held that to convict
under the statute the prosecution would have to show that the defendant distributed or promoted
the material with criminal intent, which the court found absent here because Tombs had no intent
to distribute the images via his computer, or reason to believe his computer would even be
searched.
Contrast State v. Barnes, 103 P.3d 1219 (Wash. 2005), where the Washington Supreme Court
held that a jury need not be instructed on a mental state for a firearm sentence-enhancement
provision. Erik Barnes apparently crashed his car into a guardrail, and the trooper who responded
to the scene arrested Barnes for driving under the influence. While searching the car, the trooper
found an unloaded handgun under the front seat, as well as drugs in the trunk. Barnes denied any
knowledge of the handgun. He was convicted of possession of a controlled substance with intent
to deliver, as well as unlawful possession of a firearm. In addition, his sentence was increased
based on the jury=s finding that he was Aarmed@ when he committed the drug possession offense.
The supreme court, affirming the court of appeals, held that while the weapons possession charge
required a knowledge mens rea, the firearm enhancement for being Aarmed@ while committing a
crime required only Aa nexus between the defendant, the crime, and the deadly weapon.@ The
court reasoned that while Barnes= knowledge of the weapon could be a factor for the jury to
weigh when analyzing whether the requisite nexus existed, and therefore Barnes was free to
argue that he could not have been Aarmed@ because he was unaware of the weapon, his
knowledge of the weapon=s presence was not Aa requirement that must be contained in the jury
instructions.@ (For further information about the act of possession, see the material above
supplementing Page 174 of the casebook.)
Does it make sense to require knowledge for the crime of illegally possessing a weapon but
not for a sentence enhancement when the defendant has already been convicted of a crime?
C. DEFENSES
[2] MISTAKE OF LAW

Page 210: Add to Note 3:

Courts have interpreted the Supreme Court=s Cheek decision narrowly, as Aread[ing] the
element of >actual knowledge of the law= [only] into complex statutes that punish[] >willful=
failures to perform statutory duties.@ United States v. Hancock, 231 F.3d 557 (9th Cir. 2000)
(finding that knowledge of the law is not required when Congress uses the mens rea term
Aknowingly@ as opposed to Awillfully@).
Nevertheless, Cheek is not entirely isolated. In United States v. Ratzlaf, 510 U.S. 135 (1994),
the Supreme Court similarly held that Awillfully@ requires actual knowledge of the law in the
federal money-laundering statutes. Citing Cheek, the 5-4 majority wrote that to convict under 31
U.S.C. '' 5122 & 5124, Athe jury had to find [that the defendant] knew the structuring in which
he was engaged was unlawful.@ (Just months after this decision, Congress amended ' 5122 to
remove the word Awillfully@ and thereby nullify the effect of the ruling, just as Justice Blackmun
had suggested in his Ratzlaf dissent.)
In 1998, the Supreme Court again construed the word Awillfully,@ this time in a federal
criminal statute prohibiting dealing in firearms without a license, 18 U.S.C. ' 924(a)(1)(D).
Parsing the concept of Aknowledge of the law@ more closely, the Court ruled that the government
must prove that defendants know that their conduct is Aunlawful@ in order to convict under this
statute, but need not prove that they know of the precise federal law that prohibits the conduct.
Bryan v. United States, 524 U.S. 184 (1998). See also Screws v. United States, 325 U.S. 91
(1945) (to be convicted of Awillfully@ violating someone=s constitutional rights, a defendant need
Anot have been thinking in constitutional terms,@ but must Aat least act in reckless disregard of
constitutional prohibitions or guarantees@). In addition, see the discussion of Arthur Andersen v.
United States, 125 S. Ct. 2129 (2005), in the material above supplementing Page 193 of the
casebook.
At least two general points emerge from these cases. First, as MPC ' 2.04(1) makes clear, the
language of a criminal statute can make Aignorance of the law@ a defense where it otherwise
might not be. The proper interpretation to be given to statutory mens rea terms can be a fertile
ground for litigation; the meaning, for example, of Awillfully@ is neither plain nor uniform.
Second (and perhaps just a corollary of the first point), the common law maxim that Aignorance
of the law is no defense@ is less universally true today C in the era of highly complex criminal
statutes and non-obvious Amalum prohibitum@ and Apublic welfare@ crimes C than it was 300, or
even 50, years ago. The opportunities for creative and effective criminal lawyering in this area
should not be ignored by students.

Page 211: Add to Note 5:

The U.S. Supreme Court has similarly ruled that suppression of evidence is not required
when law enforcement officials have relied on a statute authorizing their search, even though the
statute is later held unconstitutional under the Fourth Amendment. Krull v. Illinois, 480 U.S. 340
(1987).
Page 213: Add to Note 8:

Federal courts more commonly recognize Aadvice of counsel@ as a defense, at least with
regard to federal tax cases or other statutes where a Awillful@ violation is required. Nevertheless,
as Judge Posner recently explained, A[t]here is no such thing as an >advice of counsel= defense
[per se]. What is true . . . is that if a criminal statute requires proof that the defendant knew he
was violating the statute in order to be criminally liable for the violation, and it is unclear
whether the statute forbade his conduct, the fact that he was acting on the advice of counsel is
relevant because it bears on whether he knew that he was violating the statute.@ United States v.
Sprong, 287 F.3d 663 (7th Cir. 2002).

Page 227: Add to Note 2:

In McNeely v. United States, 874 A.2d 371 (D.C. 2005), Robert McNeely invoked Lambert as
a defense to his conviction for violating a law that criminalizes owning a pit bull that causes
injury to a person. Rejecting his argument, the D.C. Court of Appeals reasoned that the
dangerous temperament of pit bulls is well known, and so unlike Lambert, McNeely should have
been on notice that the law would impose heightened obligations on him. The court held that as
long as McNeely had knowledge that his animals were pit bulls, there was no constitutional
impediment to creating a strict liability crime:

We think that the Pit Bull Act falls within that class of statutes the purpose of which
would be obstructed by a requirement of proof of culpable intent. Once the legislature has
determined that a particular breed poses a heightened danger that justifies a special
regime, to require proof that a dog owner purposefully, recklessly, or negligently set his
dog upon another would undermine the balance struck by the legislature in the statute.

Other dog mauling cases have drawn considerable attention in the media and have led to
harsh punishments. For a description of murder charges brought against a San Francisco couple
whose two dogs attacked a neighbor, see the material below supplementing Page 305 of the
casebook. Moreover, in June 2005, a 12-year-old San Francisco boy was mauled to death by the
family=s two pit bulls after he was left alone with the dogs. His mother was charged with and has
pleaded not guilty to felony child endangerment See Jaxon Van Derbeken, S.F. Mother: Pleads
Not Guilty to Endangerment in Son=s Death, S.F. Chronicle, June 25, 2005, at B1. In the summer
of 2006, her first trial ended in a hung jury.
Although Lambert has not often been applied to invalidate criminal statutes, it has not laid
entirely Aderelict@ as Justice Frankfurter predicted. Consider the following decision recently
issued by a panel of the Ninth Circuit:

BARTLETT v. ALAMEIDA
366 F.3d 1020 (9th Cir. 2004)

PER CURIAM. William Louis Bartlett is a state prisoner serving a 25-year-to-life sentence for
failing to re-register as a sex offender pursuant to California=s sex offender registration statute,
Cal. Pen. Code ' 290(a)(1)(A). He contends, in his quest for a writ of habeas corpus, that his
conviction violates due process because the state was not required to prove that he had
knowledge of the lifelong duty to register. The district court denied Bartlett=s petition. We . . .
reverse and remand.
I.
William Bartlett was convicted of rape in California in 1983 and incarcerated. When paroled
in 1986, he signed a form acknowledging that he had a lifelong duty to register as a sex offender
in California. In the next four years, Bartlett repeatedly violated his parole and was returned to
prison five times. Bartlett registered as a sex offender when he was released from prison in 1987
and again in 1990 when he was released. By 1990, Bartlett had signed three forms, each
indicating that his duty to register as a sexual offender was a lifelong requirement, and he had
duly registered twice as a sex offender. After 1990, however, he never again registered as a sex-
offender.

Bartlett was convicted of robbery and commercial burglary in 1992 and sentenced to prison
for 11 years. While in prison and again when paroled in 1997, Bartlett signed forms
acknowledging that his Aresponsibility to register as a sexual offender is a lifetime requirement.@
When Bartlett once again violated his parole, he was returned to prison. When released in 1998,
Bartlett signed another notice of duty to register. He did not register as a sex offender after his
release. Rather, he was eventually discovered by authorities residing in a convalescent home
under an assumed name.

Bartlett was charged with a violation of ' 290(a)(1)(A), providing that Aevery person
[convicted of a sexual offense as] described in paragraph (2), for the rest of his or her life while
residing in . . . California, . . . shall be required to register with the chief of police of the city in
which he or she is residing . . . .@ Bartlett admitted at his trial that he signed the registration
requirement forms and registered as a sex offender while on parole for the sex offense, but
contended that he was unaware that his duty to register was lifelong. He testified that he believed
that his obligation to register as a sex offender ended when his parole for that offense expired.
Bartlett explained to the jury that he did not read any of the registration notices because they
were presented to him along with a number of other documents when he was being processed out
of custody. He further testified that he began living under an assumed name because he knew he
had violated his parole on the robbery and burglary convictions and was afraid to return to
prison.

The court instructed the jury that it is not an element of the offense that the convicted sex
offender have actual or probable knowledge of his duty to register. The convicted sex offender
Aneed only have been given actual notice of the requirement to register as a sex offender.@ During
deliberations, the jury became deadlocked and sent the court a note requesting that the court
elaborate on the meaning of Awillfully@ in the jury instructions. In response, the court reiterated
that Aactual knowledge is not an element of the crime. Actual notice is an element of the crime.
You must be given notice. Actual knowledge is not an element of the crime. The people don=t
have to prove actual knowledge beyond a reasonable doubt.@

Bartlett was convicted of failing to register as a sex offender in violation of ' 290. Because
this conviction was his Athird strike,@ Bartlett was sentenced to a term of 25 years to life in
prison. His conviction was upheld by the California Court of Appeal. That court reasoned that
Aactual knowledge is not an element of the offense of failing to register as a sexual offender.@ The
court also noted that even if federal due process requires proof of actual knowledge, Bartlett=s
Arepeated actual notice of the registration requirement supplies proof of the probability of actual
knowledge.@ The California Supreme Court denied Bartlett=s petition for review. A few months
later, however, the California Supreme Court held, in a different case, that the state must prove as
an element of the crime that a defendant had Aactual knowledge@ of the duty to register under '
290. People v. Garcia, 25 Cal. 4th 744, 752, 23 P.3d 590 (2001) (noting that making actual
knowledge of the duty to register an element of a ' 290 violation Aundoubtedly@ satisfies federal
due process).

Bartlett subsequently filed this petition for habeas corpus relief in the district court. The
district court denied relief, holding that any federal due process requirement is satisfied by Aproof
of the probability@ of actual knowledge C supplied in this instance by Bartlett=s Arepeated actual
notice of the registration requirement.@ Bartlett v. Duncan, 262 F. Supp. 2d 1053, 1060 (C.D. Cal.
2003).

II.
. . . [A] writ of habeas corpus cannot be granted unless the state court proceedings A(1)
resulted in a decision that was contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States; or (2) resulted
in a decision that was based on an unreasonable determination of the facts in light of the
evidence presented in the state court proceedings.@ 28 U.S.C. ' 2254(d). A state court=s decision
is contrary to federal law if it Aapplies a rule that contradicts the governing law set forth in
Supreme Court case authority@ or Aapplies controlling law to a set of facts that is materially
indistinguishable from a Supreme Court decision but nevertheless reaches a different result.@ A
state court=s decision is an Aunreasonable application of federal law if the state court identifies
the correct governing legal principle . . . but unreasonably applies that principle to the facts of the
prisoner=s case.@

III.
The California Court of Appeal=s opinion . . . identified and applied the relevant Supreme
Court authority C Lambert v. California. Thus, the only question remaining is Awhether the state
court did so unreasonably . . . .@

In Lambert, the Supreme Court considered whether a provision of the Los Angeles Municipal
Code, imposing criminal penalties upon convicted felons who remain in Los Angeles for more
than five days and who fail to register with the chief of police, was unconstitutional as applied to
a person who had Ano actual knowledge of his duty to register, and where no showing is made of
the probability of such knowledge.@ The court reasoned that when such Aa person did not know
of the duty to register and where there was no proof of the probability of such knowledge, he
may not be convicted consistently with due process.@ Here, the state court of appeal
acknowledged Lambert=s holding, but concluded the case was distinguishable because of the
Aoverwhelming evidence@ that Bartlett Awas given actual notice of his lifelong duty to register.@
We conclude that such an application of Lambert to this case is objectively unreasonable.
Lambert requires proof that a defendant knew of the duty to register. The state may, of course,
prove knowledge through circumstantial evidence such as signed registration forms and prior
registration. Such circumstantial evidence may constitute Aproof of the probability of such
knowledge.@ Lambert, 355 U.S. at 229. But Bartlett is also entitled to present evidence that he
did not read the forms, or did not comprehend them, or misinterpreted the requirements. If the
jurors believed Bartlett=s testimony that he was thus unaware that his duty to register was
lifelong, they were required, consistent with Lambert, to acquit him. The state judge, however,
specifically instructed the jurors that Bartlett=s actual knowledge was irrelevant and that they
could convict Bartlett solely based on evidence of actual notice.

. . . Both the state court of appeal and the federal district court reasoned that there was ample
evidence that Bartlett received actual notice, thereby supplying the requisite actual knowledge
sufficient to satisfy the due process requirements of Lambert. We disagree. As noted above, the
jurors, during deliberation, sent a note to the court declaring they were deadlocked. In an effort to
break the deadlock, the jury asked the court to elaborate on the meaning of Awillfully@ as it was
used in the jury instructions. In response to this inquiry and to an earlier request by the jury to
see Bartlett=s mandatory release card (apparently to see if the card Ahad any instructions on the
back@), the trial judge thrice instructed the jury that A[a]ctual knowledge is not an element of the
crime.@ The court then reiterated that the state did not have to prove actual knowledge. After this
elaboration, the jury returned a guilty verdict. We conclude that the court=s repeated misstatement
of an element of the crime Ahad substantial and injurious effect or influence in determining the
jury=s verdict@ because it was apparently the one factor that turned a deadlocked jury C
concerned in particular about the actual knowledge/actual notice distinction C into a convicting
jury. Therefore, the error was not harmless. . . .

IV.
Lambert required the state to prove that Bartlett knew or probably knew of his lifelong duty
to register as a sex offender. The trial court erroneously instructed the jury that actual knowledge
was not an element of the crime. Because this error was not harmless, and because the state court
of appeal unreasonably determined that no Lambert error occurred, the district court erred by not
granting Bartlett=s petition for writ of habeas corpus. We reverse that decision and remand to the
district court with instructions to grant the writ of habeas corpus unless the state grants Bartlett a
new trial within sixty days of the issuance of this Court=s mandate.

[3] INTOXICATION

Page 235: Add to Note 5:

In People v. Garcia, 2005 Colo. Lexis 562 (Colo. June 13, 2005), the Colorado Supreme
Court held as a matter of law that insulin-induced hypoglycemia could constitute the affirmative
defense of involuntary intoxication. The defendant maintained that his alleged hypoglycemic
condition excused his attack on his wife. The trial court did not allow for an involuntary
intoxication defense, and would allow the hypoglycemia evidence only if Garcia pled not guilty
by reason of insanity. The state supreme court rejected this assessment, holding that because
insulin is a drug that can cause intoxication, the defense of involuntary intoxication could be
available to a defendant in such circumstances. The court remanded the case to the trial court to
decide whether Garcia could present sufficient evidence to make out an involuntary intoxication
defense under the particular facts of the case.
Chapter 7
HOMICIDE

A. INTRODUCTION

Page 261: Add to New York Penal Law ' 125.27(1)(a):

Following the attacks on the World Trade Center on September 11, 2001, the New York
legislature added a thirteenth category of first-degree murder, which encompasses cases where a
Avictim was killed in furtherance of an act of terrorism.@

B. INTENTIONAL HOMICIDE
[1] DISTINGUISHING FIRST- AND SECOND-DEGREE MURDER:
PREMEDITATION

Page 271: Add to Note 1:

In Byford v. State, 994 P.2d 700, 713-14 (Nev. 2000), the Nevada Supreme Court disapproved
of its opinion in Powell v. State, concluding that willfulness, deliberation, and premeditation are
three separate elements of first-degree murder that each must be proven beyond a reasonable
doubt. In an effort to put an end to A>the modern tendency to muddle the line between first- and
second-degree murder,=@ the Byford court adopted new jury instructions for first-degree murder.
Id. at 713 (quoting State v. Brown, 836 S.W.2d 530, 543 (Tenn. 1992)). In those instructions, the
court defined willfulness as Aintent to kill,@ though noting that A[t]here need be no appreciable
space of time between formation of the intent to kill and the act of killing.@ Id. at 714. The court
then went on to define deliberation and premeditation as follows:

Deliberation is the process of determining upon a course of action to kill as a result of


thought, including weighing the reasons for and against the action and considering the
consequences of the action. A deliberate determination may be arrived at in a short period
of time. . . . A mere unconsidered and rash impulse is not deliberate, even though it
includes the intent to kill.
Premeditation is a design, a determination to kill, distinctly formed in the mind by the
time of the killing.
Premeditation need not be for a day, an hour, or even a minute. It may be as
instantaneous as successive thoughts of the mind. For if the jury believes from the
evidence that the act constituting the killing has been preceded by and has been the result
of premeditation, no matter how rapidly the act follows the premeditation, it is
premeditated.
The law does not undertake to measure in units of time the length of the period during
which the thought must be pondered before it can ripen into an intent to kill which is
truly deliberate and premeditated. . . . The true test is not the duration of time, but rather
the extent of the reflection. . . .
Id. at 714-15. For another recent opinion concerned with preserving a Ameaningful distinction@
between first- and second-degree murder, see State v. Thompson, 65 P.3d 420, 427-28 (Ariz.
2003) (discouraging use of the phrase Aas instantaneous as successive thoughts of the mind@ in
jury instructions, and instead requiring judges to inform juries that premeditation requires that
the defendant not only intended to kill, but Aafter forming that intent . . ., reflected on the
decision before killing . . ., regardless of the length of time in which [that reflection] occurs@).

C. UNINTENTIONAL HOMICIDE
[1] SECOND-DEGREE MURDER: DEPRAVED HEART/EXTREME
INDIFFERENCE

Page 305: Add to Note 1:

In a more recent California case that attracted a good deal of media attention, the trial judge
threw out a jury verdict finding a woman whose dog mauled a neighbor to death guilty of
second-degree murder. Although noting that the defendant, Marjorie Knoller, was Aon notice
[she] had wild, uncontrollable and dangerous dogs that were going to do something bad,@ the trial
judge concluded that he could not Asay as a matter of law that she subjectively knew that a
human being was going to die.@ John M. Glionna & Scott Gold, Mauling Murder Count Voided,
L.A. Times, June 18, 2002, at 1. The judge upheld involuntary manslaughter charges against
Knoller, the same charge on which the jury had convicted her husband, Robert Noel, see id., and
ultimately gave both defendants the maximum four-year sentence for involuntary manslaughter.
See John M. Glionna, Owner of Dogs Sentenced in Mauling Death, L.A. Times, July 16, 2002, at
1.
The California Court of Appeal reversed, however, concluding that the trial judge Aused the
incorrect standard for subjective awareness when considering implied malice.@ People v. Noel, 28
Cal. Rptr. 3d 369, 415 (Ct. App. 2005). AThe question was not whether Knoller knew her conduct
was likely to result in the death of someone but whether Knoller knew her conduct endangered
the life of another and acted in conscious disregard for life or in wanton disregard for life,@ the
appellate court explained. Id. at 413. Although the Court of Appeal=s Aindependent examination
of the record@ led it to believe that there Aappears to be ample evidence to support the jury=s
verdict@ of second-degree murder, the court felt Aconstrained to remand to the trial court for its
consideration of the new trial motion in light of the appropriate standard for implied malice.@ Id.
at 421. However, the California Supreme Court has agreed to review this appellate decision. 32
Cal. Rptr. 3d 1 (2005).
For an opinion that affirmed outright a second-degree murder conviction where a defendant=s
Rottweiler dogs killed an eleven-year-old boy, see State v. Davidson, 987 P.2d 335, 344-45 (Kan.
1999) (concluding that the defendant Acreated an unreasonable risk and then consciously
disregarded it in a manner and to the extent that it reasonably could be inferred that she was
extremely indifferent to the value of human life@ because she Aselected powerful dogs with a
potential for aggressive behavior,@ Aignored the advice from experts on how to properly train her
dogs and their warnings of the dire results which could occur from improper training,@ Afail[ed]
to properly secure the gate,@ and Aignored the aggressive behavior her dogs displayed toward her
neighbors and their children@).
[2] INVOLUNTARY MANSLAUGHTER: CRIMINAL
NEGLIGENCE/RECKLESSNESS

Page 309: Add following Commonwealth v. Welansky:

Involuntary manslaughter charges have been filed in recent yearsagainst the owners of
nightclubs that have beenthe scene of fatal accidents. See Jeff Coen, Four Indicted in E2
Tragedy, Chicago Tribune, Sept. 23, 2003, at 1 ( a stampede killed 21 people at an overcrowded
Chicago nightclub, which apparently had been ordered closed seven months earlier because of
safety code violations); Stephen Kurkjian & Jonathan Saltzman, Owners, Tour Manager Indicted
in R.I. Club Fire, Boston Globe, Dec. 10, 2003, at A1 (100 people died in a fire at a Rhode Island
nightclub that was sparked when fireworks were set off as part of a heavy metal band=s
performance). As of 2006, the Chicago case remains pending, and a proposed $1.5 million
settlement of related civil cases has been rejected. Claire Windsor, No Settlement Reached in E2
Nightclub Stampede Trial, Medill News Service, May 10, 2006. The Rhode Island case against
the owners is still pending, but the band manager who actually set off the pyrotechnics that
started the fire recently pled guilty and received a four-year imprisonment sentence. Associated
Press, Band Manager Gets Fourt Years in Fatal Club Fire, May 10, 2006.

Page 316: Add to Note 7(a):

The North Carolina Supreme Court ultimately reversed the first-degree felony murder
conviction in State v. Jones, concluding that first-degree murder requires Aa mens rea greater than
culpable or criminal negligence@ C i.e., Aan actual intent to undertake the conduct resulting in
death.@ State v. Jones, 538 S.E.2d 917, 924 (N.C. 2000). Jones subsequently pleaded guilty to
two counts of depraved-heart murder and received a prison sentence of 15 to 18: years. See
John Hinton, Guilty Plea Averts Verdict, Winston-Salem Journal, Jan. 23, 2003, at A1.

Page 318: Add to Note 7(d):

In State v. McKnight, 576 S.E.2d 168 (S.C.), cert. denied, 540 U.S. 819 (2003), a woman
whose stillborn baby girl was born with traces of cocaine in her body was convicted of homicide
by child abuse. The charge carries a prison sentence of twenty years to life and requires proof
that the defendant Acause[d] the death of a child under the age of eleven while committing child
abuse or neglect, . . . under circumstances manifesting an extreme indifference to human life.@
S.C. Code Ann. ' 16-3-85(A)(1). The state supreme court upheld the conviction, rejecting the
defendant=s argument that the statute was not meant to apply to unborn children and reasoning
that Athe fact that McKnight took cocaine knowing she was pregnant was sufficient evidence to
submit to the jury on whether she acted with extreme indifference to her child=s life.@ 576 S.E.2d
at 173.
D. FELONY MURDER
[1] THE POLICY ISSUES SURROUNDING THE FELONY MURDER RULE

Page 327: Add to Note 2:

For the view that states which have adopted default mens rea rules like those contained in ''
2.02(3) and 2.02(4) of the Model Penal Code cannot consistently adhere to the traditional strict-
liability approach to felony murder, see Guyora Binder, Felony Murder and Mens Rea Default
Rules: A Study in Statutory Interpretation, 4 Buff. Crim. L. Rev. 399 (2000).

[2] LIMITATIONS ON THE FELONY MURDER DOCTRINE


[b] The Merger Doctrine

Page 340: Add correction to Note 2:

Justice Kathryn Werdegar, who wrote the concurring opinion in Hansen, was inadvertently
referred to as Ahe@ in the text.

Page 340: Add to Note 2:

In People v. Robertson, 95 P.3d 872 (Cal. 2004), the California Supreme Court held that the
merger doctrine as applied in Hansen did not foreclose felony murder charges where the
underlying felony was a violation of California Penal Code ' 246.3, which criminalizes the
Awillful[] discharge[] [of] a firearm in a grossly negligent manner which could result in injury or
death.@
Note that in People v. Morgan, 758 N.E.2d 813 (Ill. 2001), the Illinois Supreme Court
decided that the felonies of aggravated discharge of a firearm and aggravated battery cannot
serve as the basis for a felony murder charge in that state. The Morgan court explained:

[A]ggravated battery and aggravated discharge of a firearm . . . were acts that were
inherent in, and arose out of, the fatal shootings of Keith and Lila. It is arguable that it
was not the predicate felonies which resulted in and caused the murders of Keith and
Lila, but rather it was the murders of Keith and Lila which gave rise to the predicate
felonies.
. . . [E]very shooting necessarily encompasses conduct constituting aggravated
battery, i.e., great bodily harm, as well as conduct constituting aggravated discharge of a
firearm, i.e., discharging a firearm in the direction of another. Potentially, then, all fatal
shootings could be charged as felony murder based upon aggravated battery and/or
aggravated discharge of a firearm.

Id. at 838. How would the Illinois Supreme Court have ruled on the facts of Hansen?
E. THE DEATH PENALTY
[1] THE HISTORY AND CONSTITUTIONALITY OF THE DEATH PENALTY

See also Materials supplementing page 130, supra.

Page 350: Add to Note 1:

Recent years have seen a decrease in the annual number of prisoners executed and death
sentences imposed. In 2003, only 144 defendants were sentenced to die, the lowest number since
1973. Likewise, although the 98 prisoners executed in 1999 represented the highest number since
1954, that number decreased to 85 in 2000, and then even further C to 66 in 2001 and 60 in
2005.. At the end of 2005, there were 3,314 prisoners on death row in this country, representing
the fourth year in a row that this number has decreased.. See Bureau of Justice Statistics Bulletin,
U.S. Dep=t of Justice, Capital Punishment 2005 (2006) (available at
www.ojp.usdoj.gov/bjs/cp.htm).
The declining number of executions mirrors recent political developments in several states.
In 2000, the New Hampshire legislature voted to repeal that state=s death penalty C a move no
state has taken since the death penalty was reinstated in 1976 C but the bill was ultimately
vetoed by the governor. See New Hampshire Veto Saves Death Penalty, N.Y. Times, May 20,
2000, at A16. In January of 2002, George Ryan, then Governor of Illinois, declared a moratorium
on all executions in that state and ordered a study of the state=s capital punishment system. Citing
statistics showing that twelve people had been executed in Illinois since 1977, whereas thirteen
death-row prisoners had been exonerated during that same period, the Governor described the
state=s death penalty system as Afraught with error and [one that] has come so close to the
ultimate nightmare.@ Ken Armstrong & Steve Mills, Ryan Suspends Death Penalty, Chicago
Tribune, Jan. 31, 2000, at A1. Then, shortly before leaving office in January of 2003, Governor
Ryan granted a blanket commutation of all 164 death sentences then in effect in Illinois. See
Maurice Possley & Steve Mills, Clemency for All, Chicago Tribune, Jan. 12, 2003, at A1; see
also People ex rel. Madigan v. Snyder, 804 N.E.2d 546 (Ill. 2004) (upholding the Governor=s
authority to issue this grant of blanket clemency). In May of 2002, a similar moratorium was
declared in Maryland by then-Governor Parris Glendening because of his concerns about racial
and geographic disparities in that state=s use of the death penalty. But the moratorium was lifted
in January 2003 by Glendening=s successor, Robert Ehrlich. See Lori Montgomery, Steele Seeks
New Study of Death Penalty Cases, Wash. Post, Jan. 26, 2003, at C1.

Page 355: Add to Note 8:

In Dawson v. State, 554 S.E.2d 137, 144 (Ga. 2001), the Georgia Supreme Court held, by a
vote of four to three, that use of the electric chair C Awith its specter of excruciating pain and its
certainty of cooked brains and blistered bodies@ C violated the state constitution=s prohibition of
cruel and unusual punishment. The majority explained that Adeath by electrocution involves more
than the >mere extinguishment of life,= and inflicts purposeless physical violence and needless
mutilation that makes no measurable contribution to accepted goals of punishment.@ Id. at 143
(quoting In re Kemmler, 136 U.S. 436, 447 (1890)).
In 2006, various challeneges to methods of lethal injection led to postponement of a number
of executions. Death Penalty Info Cntr., Lethal Injections: Some Cases Stayed, Others Proceed,
http://www.deathpenaltyinfo.org/article.php?did=1686&scid=64. In Hill v. McDonough, 126
S.Ct. 2096 (June 12, 2006), the U.S. Supreme Court ruled that inmates may challenge the
method of lethal injection executions under 42 U.S.C. 1983, rather than being relegated to a
procedurally more difficult habeas corpus challenge.

Page 366: Add to Note 3:

Despite the congressional response to McCleskey, a twelve-year study of the federal death
penalty issued by the Justice Department in 2000 revealed racial disparities that Asorely troubled@
then Attorney General Janet Reno. See Rory K. Little, Why a Federal Death Penalty
Moratorium?, 33 Conn. L. Rev. 791, 808 (2001).

Page 367: Add to Note 4:

Though agreeing with its earlier ruling in State v. Marshall that A[n]o reliable demonstration
has been made to date that racial discrimination improperly affects the administration of the
death penalty in this state,@ the New Jersey Supreme Court adopted procedures for using
proportionality review of sentences to test whether racial considerations were influencing death
penalty decisions. In re Proportionality Review Project (II), 757 A.2d 168, 179 (N.J. 2000).
Observing that Athe development of a sound methodology for the purpose of systemic
proportionality review has proved an elusive goal@ and that Awe cannot rely on the results of any
single methodology,@ the court approved of a multi-faceted approach, including bivariate analysis
considering only the variables of race and sentence as well as multiple regression analysis. Id. at
170, 178.

[2] DEATH PENALTY PROCEDURES

Page 372: Add to Note 2:

In Roper v. Simmons, 543 U.S. 551 (2005), the Supreme Court reversed its 1989 decision in
Stanford v. Kentucky, holding that the Eighth Amendment bars the execution of defendants who
were under eighteen years old at the time of their crime. Writing for the five Justices in the
majority, Justice Kennedy found Aevidence of national consensus against the death penalty for
juveniles.@ Id. at 1192. Specifically, the majority noted that A30 States prohibit the juvenile death
penalty@ (i.e., the 12 states that have no death penalty at all and 18 others that have a death
penalty but exempt juveniles), and that, even in the remaining 20 states, the execution of
juveniles is Ainfrequent@: A[s]ince Stanford, six States have executed prisoners for crimes
committed as juveniles. In the past 10 years, only three have done so: Oklahoma, Texas, and
Virginia.@ Id.
The majority also relied on Adifferences between juveniles and adults@ which it thought
Arender suspect any conclusion that a juvenile falls among the worst offenders@:
The susceptibility of juveniles to immature and irresponsible behavior means Atheir
irresponsible conduct is not as morally reprehensible as that of an adult.@ Their own
vulnerability and comparative lack of control over their immediate surroundings mean
juveniles have a greater claim than adults to be forgiven for failing to escape negative
influences in their whole environment. The reality that juveniles still struggle to define
their identity means it is less supportable to conclude that even a heinous crime
committed by a juvenile is evidence of irretrievably depraved character.

Id. at 1195 (quoting Thompson v. Oklahoma, 487 U.S. 815, 835 (1988)). Given Athe diminished
capacity of juveniles,@ the Court continued, Athe penological justifications for the death penalty
apply to them with lesser force than to adults@: A[r]etribution is not proportional if the law=s most
severe penalty is imposed on one whose culpability or blameworthiness is diminished, to a
substantial degree, by reason of youth and immaturity,@ and Athe same characteristics that render
juveniles less culpable than adults suggest as well that juveniles will be less susceptible to
deterrence.@ Id. at 1196. Finally, the majority noted that A[o]ur determination that the death
penalty is disproportionate punishment for offenders under 18 finds confirmation in the stark
reality that the United States is the only country in the world that continues to give official
sanction to the juvenile death penalty.@ Id. at 1198.
Justice O=Connor, who represented the critical fifth vote in Stanford v. Kentucky, dissented in
Simmons, concluding that Athe evidence before us fails to demonstrate conclusively that any such
[national] consensus has emerged in the brief period since . . . Stanford.@ Id. at 1206 (O=Connor,
J., dissenting). Moreover, Justice O=Connor argued that Athe Court has adduced no evidence
impeaching the seemingly reasonable conclusion reached by many state legislatures: that at least
some 17-year-old murderers are sufficiently mature to deserve the death penalty in an
appropriate case.@ Id. In a separate dissent written for himself, Chief Justice Rehnquist, and
Justice Thomas, Justice Scalia remarked, AToday=s opinion provides a perfect example of why
judges are ill equipped to make the type of legislative judgments the Court insists on making
here.@ Id. at 1222 (Scalia, J., dissenting).

Page 373: Add to Note 3:

In Singleton v. Norris, 319 F.3d 1018, 1027 (8th Cir.) (en banc), cert. denied, 540 U.S. 832
(2003), the Eighth Circuit held that the Eighth Amendment, as interpreted in Ford v. Wainwright,
does not bar the execution of Aa prisoner who became incompetent during his long stay on death
row but who subsequently regained competency through appropriate medical care@ C in that
case, by the administration of antipsychotic medication. By contrast, two state supreme courts,
interpreting their own state constitutions, have reached the opposite conclusion. See State v.
Perry, 610 So. 2d 746 (La. 1992); Singleton v. State, 437 S.E.2d 53 (S.C. 1993).

Page 373: Add to Note 3:

In Atkins v. Virginia, 536 U.S. 304 (2002), the Supreme Court overturned its decision in
Penry v. Lynaugh, holding that the Eighth Amendment forecloses the execution of mentally
retarded individuals. The Court found a Anational consensus@ supporting its decision, observing
that eighteen of the thirty-eight states that have a death penalty, as well as the federal
government, bar the execution of mentally retarded defendants. Id. at 316, 313-15. In addition,
the Court explained that A[t]his national consensus unquestionably reflects widespread judgment
about the relative culpability of mentally retarded offenders, and the relationship between mental
retardation and the penological purposes served by the death penalty@:

Mentally retarded persons frequently know the difference between right and wrong and
are competent to stand trial. Because of their impairments, however, by definition they
have diminished capacities to understand and process information, to communicate, to
abstract from mistakes and learn from experience, to engage in logical reasoning, to
control impulses, and to understand the reactions of others. There is no evidence that they
are more likely to engage in criminal conduct than others, but there is abundant evidence
that they often act on impulse rather than pursuant to a premeditated plan, and that in
group settings they are followers rather than leaders. Their deficiencies do not warrant an
exemption from criminal sanctions, but they do diminish their personal culpability.

Id. at 317, 318. Noting that the parties disagreed whether Atkins suffered from mental
retardation, the majority acknowledged that A[t]o the extent there is serious disagreement about
the execution of mentally retarded offenders, it is in determining which offenders are in fact
retarded.@ Id. at 317. The Court admonished that A[n]ot all people who claim to be mentally
retarded will be so impaired as to fall within the range of mentally retarded offenders about
whom there is a national consensus,@ but did not go on to decide whether Atkins fell within this
category, instead A>leav[ing] to the State[s] the task of developing appropriate ways to enforce the
constitutional restriction upon [their] execution of sentences.@= Id. (quoting Ford v. Wainwright,
477 U.S. 399, 416-17 (1986)).
Justice Scalia, joined by Chief Justice Rehnquist and Justice Thomas, dissented, accusing the
Atkins majority of Amiraculously extract[ing]@ a national consensus. Id. at 342 (Scalia, J.,
dissenting). AHow is it possible that agreement among 47% of the death penalty jurisdictions
amounts to >consensus=?,@ Justice Scalia wondered. Id. at 343. On the question of relative
culpability, Justice Scalia argued that A[s]urely culpability, and deservedness of the most severe
retribution, depends not merely (if at all) upon the mental capacity of the criminal (above the
level where he is able to distinguish right from wrong) but also upon the depravity of the crime.@
Id. at 350.
In the wake of Atkins, state courts have struggled with the procedures and standards for
complying with the Supreme Court=s decision. See, e.g., In re Hawthorne, 105 P.2d 552 (Cal.
2005) (requiring that defendants prove mental retardation by a preponderance of the evidence);
Head v. Hill, 587 S.E.2d 613 (Ga. 2003) (requiring that defendants prove mental retardation
beyond a reasonable doubt). In 2005, the Supreme Court ruled unanimously that federal courts
may not command state courts to hold full-blown trials on the issue of mental retardation, prior
to the States developing their own “appropriate” ways of resolving the question. Schriro v.
Smith, 126 S.Ct. 7 (Oct. 17, 2005) (per curiam).

Page 374: Add to Note 4:

In 2006, the Supreme Court ruled unanimously that, at least where evidence of innocence
was available at a defendant’s original trial and therefore could be reintroduced by transcript at
his sentencing proceeding, there is no constitutional right to introduce new, independent evidence
of “residual doubt” about guilt. Oregon v. Guzek, 126 S.Ct. 1226 (Feb. 22, 2006). Writing in
concurrence, Justice Scalia complained that the majority missed “the opportunity to put to rest,
once and for all, the mistaken notion that the Eighth Amendment requires” admission of residual
doubt evidence. The fact that only Justice Thomas joined this concurrence suggests, perhaps,
that a majority is not ready to embrace that broad proposition.

Also in 2006, the Supreme Court ruled favorably for a defendant who had procedurally
defaulted (i.e., waited to long to file) various constitutional claims, but then produced new
evidence suggesting he was “actually innocent” of murder. House v. Bell, 126 S.Ct. 2064 (June
12, 2006). The applicable standard for such actual innocence “gateway” claims “does not
require absolute certainty.” Rather, a federal court must “assess how reasonable jurors would
react” to the new evidence in light of the entire record. If it is “more likely than not” that “any
reasonable juror would have reasonable doubt” about the defendant’s guilt, then the defendant’s
claim must be heard. House met this standard, so his defaulted claims must now be heard.
However, the Court unanimously agreed that House’s new evidence did not meet the
“extraordinarily high” standard required to show “freestanding innocence” such that it might be
unconstitutional to execute him. Thus his case was remanded for further proceedings.

Page 374: Add to Note 5:

In Tennard v. Dretke, 542 U.S. 274 (2004), the Supreme Court rejected the Fifth Circuit
standard requiring that a capital defendant=s mitigating evidence be A>constitutionally relevant=@ C
that is, Aevidence of a >uniquely severe permanent handicap with which the defendant was
burdened through no fault of his own,= and evidence that >the criminal act was attributable to this
severe permanent condition.=@ Id. at 2568 (quoting Fifth Circuit opinion). Rather, the Supreme
Court noted that its opinion in McKoy v. North Carolina had adopted a Alow threshold for
relevance,@ defining relevant mitigating evidence as A>evidence which tends logically to prove or
disprove some fact or circumstance which a fact-finder could reasonably deem to have
mitigating value.=@ Id. at 2570.
In Brown v Payton, 544 U.S. 133 (2005), the Supreme Court held that a capital defendant=s
Apostcrime religious conversion@ was a relevant mitigating circumstance.

Page 376: Add to Note 6:

As noted above in the material supplementing Page 261 of the textbook, the New York
legislature made a killing Ain furtherance of an act of terrorism@ a capital offense in the wake of
the terrorist attacks of September 11, 2001. The Virginia legislature added a similar provision,
amending its definition of capital murder to include a Awillful, deliberate and premeditated
killing . . . in the commission of or attempted commission of an act of terrorism.@ Va. Code Ann.
' 18.2-31(13). An Aact of terrorism@ is defined as Aan act of violence . . . committed with the
intent to (i) intimidate the civilian population at large; or (ii) influence the conduct or activities of
the government of the United States, a state or locality through intimidation.@ Id. ' 18.2-46.4.
This provision was one of the counts of capital murder that led a Virginia jury to sentence John
A. Muhammad to death in connection with the 2002 D.C.-area sniper killings that killed ten
people. (The other capital murder count on which Muhammad was convicted charged that he
committed A[t]he willful, deliberate, and premeditated killing of more than one person within a
three-year period.@ Va. Code Ann. ' 18.2-31(8).) On appeal, the Virginia Supreme Court
unanimously rejected Muhammad=s constitutional challenges to the terrorism statute. See
Muhammad v. Commonwealth, 611 S.E.2d 537 (Va. 2005). (The court split four-to-three,
however, in upholding the other capital murder count, given that, as
even the majority conceded, Athe evidence more reasonably proves that [Muhammad=s
accomplice, seventeen-year-old Lee Malvo] was the shooter.@) For further discussion of the D.C.
sniper cases, see the material below supplementing Pages 665 and 807 of the casebook.

Page 377: Add to Note 8:

In Ring v. Arizona, 536 U.S. 584, 609 (2002), however, the Supreme Court held that the Sixth
Amendment right to jury trial does not permit Aa sentencing judge, sitting without a jury, to find
an aggravating circumstance necessary for imposition of the death penalty.@ Thus, the defendant
in that case C who had been convicted of felony murder C could not be sentenced to death based
on the trial judge=s finding of the statutory aggravating factor that the crime was committed for
pecuniary gain, a finding that was not part of the jury=s verdict. The Court=s decision in Ring built
on its earlier ruling in Apprendi v. New Jersey, 530 U.S. 466 (2000), that the Constitution
requires a jury determination of any fact (other than a prior conviction) that enhances a sentence
beyond the maximum the defendant would have received under the facts reflected in the jury=s
verdict. The Court concluded in Ring that statutory aggravating factors in capital cases Aoperate
as >the functional equivalent of an element of a greater offense,@= and thus must be found by a
jury beyond a reasonable doubt. 536 U.S. at 609 (quoting Apprendi, 530 U.S. at 494). (Apprendi
is described in greater detail above with the material supplementing Page 192 of the text.)
The Ring Court was careful to limit its holding, however, noting that the defendant
Acontend[ed] only that the Sixth Amendment required jury findings on the aggravating
circumstances asserted against him.@ Thus, the Court noted, the defendant made Ano Sixth
Amendment claim with respect to mitigating circumstances,@ he did not Aargue that the Sixth
Amendment required the jury to make the ultimate determination whether to impose the death
penalty,@ and he did not Aquestion the Arizona Supreme Court=s authority to reweigh the
aggravating and mitigating circumstances@ after striking down one of the aggravating factors
found by the jury. Id. at 597 n.4.

Page 378: Add to Note 10:

The plurality=s decision in Simmons was approved by a majority of the Supreme Court in
Shafer v. South Carolina, 532 U.S. 36 (2001). The following year, in Kelly v. South Carolina, 534
U.S. 246 (2002), the Court rejected efforts to distinguish Simmons and Shafer on the grounds that
the defendant=s future dangerousness was not at issue in that case. A[E]vidence of violent
behavior in prison can raise a strong implication of >generalized . . . future dangerousness,@= the
Court observed, and A[a] jury hearing evidence of a defendant=s demonstrated propensity for
violence reasonably will conclude that he presents a risk of violent behavior, whether locked up
or free, and whether free as a fugitive or as a parolee.@ Id. at 253-54 (quoting Simmons, 512 U.S.
at 171).

Page 380: Add to Note 12:

In Spears v. Stewart, 283 F.3d 992, 1019 (9th Cir.), cert. denied, 537 U.S. 995 (2002), the
Ninth Circuit concluded that Arizona had a system of appointing counsel in place as of July 17,
1998, which satisfied the Antiterrorism and Effective Death Penalty Act=s opt-in provisions. The
court ruled, however, that the state could not rely on the procedural advantages of the opt-in
system in that case because it had not appointed counsel for the defendant in a timely manner.
See id. Moreover, the Arizona system has since been amended so that it arguably no longer
satisfies the opt-in requirements. See id. at 1000 & n.7 (Reinhardt, J., dissenting from denial of
rehearing en banc).
Chapter 8
RAPE

B. FORCIBLE RAPE
[1] PERSPECTIVES

Page 399: Add following Kramer selection:

In response to findings that A[i]nsufficient research has been conducted and insufficient data
reported on the extent of prison rape,@ that A[t]he total number of inmates who have been
sexually assaulted in the past 20 years likely exceeds 1,000,000,@ that A[m]ost prison staff are not
adequately trained@ to deal with the problem and Ainmate victims often receive inadequate
treatment for the severe physical and psychological effects of sexual assault,@ and that
A[m]embers of the public and government officials are largely unaware of the epidemic character
of prison rape and the day-to-day horror experienced by victimized inmates,@ Congress passed
the Prison Rape Elimination Act of 2003, 42 U.S.C. ' 15601. The statute provides for the
collection of data on the incidence of prison rape, training of government officials Aresponsible
for the prevention, investigation, and punishment@ of prison rape, and issuance by the Attorney
General within approximately three years of Anational standards for the detection, prevention,
reduction, and punishment of prison rape.@ Id. '' 15604(a)(2), 15607(a)(1). A state that fails to
comply with those national standards will be punished by a reduction in the federal funds it
receives for prison purposes. See id. ' 15607(c).

[2] MENS REA

Page 410: Add Note 6A:

6A. Withdrawn Consent. In In re John Z., 60 P.3d 183, 184-85 (Cal. 2003), the California
Supreme Court held that the state=s rape statute encompasses cases where Athe female victim
consents to an initial penetration by her male companion, and then withdraws her consent during
an act of intercourse, but the male . . . forcibly continues despite the objection.@ A[A] withdrawal
of consent effectively nullifies any earlier consent and subjects the male to forcible rape charges
if he persists in what has become nonconsensual intercourse,@ the court reasoned. Id. at 184.
Likewise, the Illinois legislature added a provision to its sexual assault statutes providing that
A[a] person who initially consents to sexual penetration or sexual conduct is not deemed to have
consented to any sexual penetration or sexual conduct that occurs after he or she withdraws
consent during the course of that sexual penetration or sexual conduct.@ 720 Ill. Comp. Stat.
5/12-17(c). By contrast, other courts have previously held that a defendant cannot be convicted
on rape charges so long as the victim consented to the initial penetration. See Battle v. State, 414
A.2d 1266, 1270 (Md. 1980); State v. Way, 254 S.E.2d 760, 761-62 (N.C. 1979).
[3] ACTUS REUS

Page 438: Add to Note 11:

In August of 2003, a defendant was sentenced to death for the first time under the Louisiana
statute upheld in State v. Wilson, which makes the rape of a child under the age of twelve a
capital offense. The defendant in the case, Patrick O. Kennedy, was convicted of raping his eight-
year-old stepdaughter. The case is now on appeal. See Adam Liptak, Louisiana Sentence Renews
Debate on the Death Penalty, N.Y. Times, Aug. 31, 2003, at A20.
In addition to the Louisiana and Georgia statutes making the rape of a child a capital crime,
the Montana legislature allows a death sentence to be imposed in rape cases where the defendant
was over the age of eighteen at the time of the crime, had a prior rape conviction, and inflicted
serious bodily injury on the victim. See Mont. Code Ann. ' 45-5-503(3)(c).

Page 439: Add to Note 12:

For an article expressing the view that the Model Penal Code=s sexual assault provisions are
Aoutdated@ and Anow misrepresent the progressive thinking of the Code=s reporters,@ see Deborah
W. Denno, Why the Model Penal Code=s Sexual Assault Provisions Should Be Pulled and
Replaced, 1 Ohio St. J. Crim. L. 207, 207 (2003).

Page 439: Add to Note 13:

Colorado=s rape-shield law was the focus of national attention in connection with rape
charges filed against basketball star Kobe Bryant. Bryant admitted having sex in June 2003 with
a then-nineteen-year-old woman who was working at a Colorado resort hotel where he was
staying. Bryant contended that the woman consented, whereas she alleged that Bryant Abecame
violent, pushed her over a chair and raped her.@ Kirk Johnson, Besieged, Accuser and Family
Urge Quick Bryant Trial, N.Y. Times, March 26, 2004, at A1. Although Colorado law prohibited
the publication of the woman=s name, her identity was Awidely known,@ and, according to her
mother, she received Aliterally hundreds of death threats@ and Athousands of obscene messages@
and was Afollowed everywhere by the defense and the media.@ Id.
In late March 2004, a closed hearing was held during which Bryant=s attorneys, who claimed
that vaginal injuries found during a medical examination of the woman after the incident might
have been caused by other sexual partners, were allowed to question the woman about her sexual
history. See id. The trial judge ultimately ruled that evidence of the woman=s sexual conduct Ain
the 72 hours preceding her physical examination by doctors@ was Alegally relevant@ and
admissible at Bryant=s trial. Kirk Johnson, Judge Limiting Sex-Life Shield at Bryant Trial, N.Y.
Times, July 24, 2004, at A1. Just over a month later, the criminal charges were dismissed after
the woman told prosecutors she did not wish to proceed with the trial. See Kirk Johnson, Accuser
Balks, Prosecutors Drop Bryant Rape Case, N.Y. Times, Sept. 2, 2004, at A1. The woman filed a
separate civil suit against Bryant seeking Aunspecified monetary damages,@ which was recently
settled out of court on terms that were not disclosed. Kirk Johnson, Settlement Is Reached in
Bryant Case, N.Y. Times, Mar. 3, 2005, at A14.
Chapter 9
THEFT

B. LARCENY
[1] THE HISTORY AND ELEMENTS OF LARCENY AND THE TYPE OF
PROPERTY THAT CAN BE STOLEN

Page 458: Add to Note 6:

It is important to note that the absence of criminal charges does not mean that wrongful
conduct has no remedy. Police Chief Hongisto and the City of San Francisco were sued civilly
by the Bay Times= publishers, and damages were awarded after a jury trial. In addition, almost
$700,000 in legal fees were awarded against the City. See City Socked for $700,000 in Paper=s
Suit Against Hongisto, The Recorder, March 9, 1995; Coming Up, Inc. v. San Francisco, 857 F.
Supp. 711 (N.D. Cal. 1994) (denying qualified immunity).

Page 469: Add Note 5:

5. Altering Law School Transcripts. A provision of the California Education Code, ' 44360,
makes it a misdemeanor to alter or use an altered transcript Awith fraudulent intent.@ In 1999 a
law school graduate pled guilty to this crime, after having obtained a law firm=s job offer based
in part on his submission of another student=s transcript, which showed a Amore impressive . . .
GPA@ as his own. The student was sentenced to three years= probation along with 200 hours of
community service, was ordered to pay restitution to the law firm, and Aface[d] possible
disciplinary action by the State Bar.@ See Grad Pleads No Contest to Doctoring Transcript, The
Daily Journal, Nov. 1999.

[3] THE ASPORTATION AND CAPTION REQUIREMENTS

Page 474: Add to Note 1:

Asportation is very often an element of the crime of kidnapping. The amount of movement
required to sustain a kidnapping conviction, however, is sometimes held to be more substantial
than that required for simple larceny. See, e.g., People v. Dominguez, 118 Cal. App. 4th 651 (Cal.
App. 2004) (10 to 12 foot movement of victim down an embankment, which appeared to be
Aincidental@ to offenses of rape and murder, Anot substantial@ enough to support kidnapping
conviction). Nevertheless, in some jurisdictions, even an insubstantial movement may be held
sufficient to sustain a kidnapping charge if it Aincreased the risk of harm to a victim.@ People v.
Owens, 97 P.3d 227 (Colo. Ct. App. 2004). See also John L. Diamond, Kidnapping: A Modern
Definition, 13 Am. J. Crim. L. 1 (1985) (criticizing the use of Aasportation@ in defining
kidnapping).
[4] EXTENSIONS OF LARCENY
[a] Lost or Mislaid Property

Page 479: Add Note 1A:

1A. Cultural Differences. Consider the cultural differences between attitudes in the United
States regarding finding lost property, and those reported by the New York Times about Japan in
Norimitsu Onishi, Never Lost, But Found Daily: Japanese Honesty, N.Y. Times, Jan. 8, 2004, at
A1. Ever since a statute addressing lost property was adopted in 718, Japanese law has required
that finders of lost property turn it over to governmental authorities within five days. Since at
least the 18th century, finders have had the right to claim some value of such returned property
(Ausually 10 percent@) even if the true owner reclaims it. AFinders who did not hand in objects
were severely punished.@ In 2002, in Tokyo $23 million in found cash was turned in; 72 percent
was returned to its owners. The same year, 330,000 lost umbrellas were turned in (although only
0.3 percent were reclaimed). AChildren are taught from early on to hand in anything they find to
the police.@ One waitress who turned in $250 cash that she had found explained, AI always hand
in something I find. . . . I imagine that a person might be in trouble, losing money or a purse.@
Another man who turned in $120 cash said, AI feel uncomfortable holding another person=s
money.@

[c] Larceny by Trick

Page 491: Add to Note 2:

A woman who claimed she bit into a finger while eating chili at a Wendy=s restaurant in San
Jose, California, and her partner who actually obtained the finger after it was lost by one of his
co-workers, pled guilty to fraud and extortion charges and were sentenced to twelve and nine-
year imprisonment terms respectively. Jonathan D. Glater, Couple Sentence to Prison for
Wendy’s Chili Scheme, Jan. 19, 2006. The couple was also sentenced to pay $21 million in
restitution to Wendy’s. Id. See also Alan Gathright & Meredith May, Worker Gave His Finger
to Settle $50 Debt, S.F. Chronicle, May 18, 2005, at A1

[5] THE SPECIFIC INTENT TO PERMANENTLY DEPRIVE ANOTHER OF


PROPERTY

Page 498: Add to Note 4:

As noted above in the material supplementing Page 193 of the casebook, highly publicized
prosecutions of corporate CEOs and other executives often focus on whether a claim of right
negates the larceny, embezzlement, and other conduct characterized as corporate looting. Under
this theory, extraordinary bonuses and expense reimbursements cannot constitute theft if the
defendant believed, even incorrectly, that the corporation had legitimately (even if unwisely)
authorized such payments. Such arguments may be particularly strong when the corporate
board of directors is fully apprised of the disbursements, although prosecutors may then argue
that board members also betrayed the company=s trust. Furthermore, executives below the CEO
level can argue that they relied on the apparent authority of the CEO to authorize generous
payments on behalf of the corporation. Such arguments were made in the Tyco criminal case,
where over 600 million dollars was allegedly misspent by executives. After an initial mistrial due
to juror intimidation, two Tyco executives were convicted on retrial of grand larceny as well as
fraud and conspiracy. See Andrew Ross Sorkin, Ex- Chief and Aide Guilty of Looting Millions at
Tyco, N.Y. Times, June 18, 2005, at A1. (For further information about the Tyco case, see the
material above supplementing Page 193 of the casebook.) Is the line between excessive
generosity to CEOs and other corporate executives and criminal theft of corporate funds clear to
you? Do you think the distinction between bad corporate judgments regarding compensation and
criminality has been inappropriately blurred? Or is the distinction unimportant in the murky
world of high corporate finance?

C. EMBEZZLEMENT

Page 511: Add to Note 4:

In the highly publicized prosecution of Adelphia Cable Company founder John Rigas and his
sons, the defendants were accused of wrongfully borrowing $2.3 billion based on the
corporation=s credit, to personally purchase Adelphia stock (which later lost substantial value).
The defendants argued that they were only borrowing the company=s access to credit, and that
they intended and had the ability to repay. See Peter Grant, Adelphia Ex-Officials= Defense Has
Rocky Start, Wall Street Journal, June 2, 2004, at C1. Unlike the law of simple larceny, which
requires an intent to deprive permanently, the requisite mens rea for embezzlement is split among
different jurisdictions: some require only an intent to deprive, even temporarily.
Rigas and one of his sons were found guilty of conspiracy, securities fraud, and bank fraud,
but the jury deadlocked on the charges filed against another son and acquitted the former
assistant treasurer of Adelphia. (See the material above supplementing Page 193 of the casebook
for more on the Adelphia case and the criminal trials of other corporate executives.)

D. FALSE PRETENSES

Page 521: Add to Note 3:

The Arule@ stated in Chaplin (Page 514 of the casebook) may no longer be the majority rule.
The American Law Reports now indicate that Aan increasing number of jurisdictions, usually
stressing the opportunities for fraud with impunity under the traditional rule, have held that a
present intent not to comply with a promise or a statement as to a future act can be the basis of
the crime of obtaining money or property by false pretenses.@ Michael A. DiSabatino,
Annotation, Modern Status of Rule That Crime of False Pretenses Cannot Be Predicated upon
Present Intention Not to Comply with Promise or Statement as to Future Act, 19 A.L.R.4th 959,
964 (1983). (You may also want to consider this in conjunction with Note 3 on Page 491 of the
casebook.)
Page 525: Add Note 12:

12. Misrepresentations in Modern Fraud Prosecutions. Misrepresentations can provide the


basis for a variety of federal crimes, including mail and wire fraud (criminalizing material,
fraudulent misrepresentations made by mail or private interstate carriers, or over interstate
telephone, telegraph, and computer wires) and securities fraud (criminalizing material
misrepresentations made to potential investors in securities). Criminal prosecutions surrounding
the spectacular financial collapse of the Enron Corporation illustrate how complex it can be to
prove what constitutes a fraudulent Amisrepresentation.@
Much of the Enron scandal focuses on alleged efforts to mislead the investing public by
inaccurately inflating the corporation=s profits. For example, in one Enron-related prosecution
against the company=s former Merrill Lynch bankers, the alleged misrepresentation focused on
whether the investment bank was actually buying electricity-producing barges from Enron or
whether the transaction was a criminal sham creating false profits because Enron guaranteed that
it would repurchase the barges within six months at a specific profit to Merrill Lynch. If Enron
only suggested, rather than guaranteed, the possibility that it would repurchase the barges, then
the sale and its profits could be characterized as legitimate. (The profits from the claimed sale
allowed Enron to meet earnings expectations, which affected the company=s stock price.) On the
other hand, if Agenerally accepted accounting principles@ precluded characterizing the transaction
as a sale because an oral repurchase agreement was secretly in place, Enron would have
fraudulently misrepresented higher profits to the public from the false sale. See Ann Davis &
John R. Emshwiller, Enron=s in Court but Wall Street =s the One on Trial, Wall Street Journal,
June 8, 2004, at C1. In fact, in 2006 the Fifth Circuit reversed the fraud convictions of the four
“barge case” defendants. John C. Roper, Some Convictions in Enron Power-barge case
Reversed, Houston Chronicle, August 1, 2006; U.S. v. Brown, No. 05-20319 (5th Cir. Aug. 1,
2006).

E. THEFT: CONSOLIDATION OF THE PROPERTY ACQUISITION OFFENSES

Page 528: Add to Note 2:

While defendants have tried to raise a defense of lack of fair notice when they are charged
with one theft offense but convicted of another, the Nebraska Supreme Court, in State v. Jonusas,
694 N.W.2d 651 (Neb. 2005), held that the state=s consolidation of theft statute was sufficient to
give the defendant notice that he could be charged with one type of theft while being convicted
of another.
Chapter 10
AGGRAVATED PROPERTY CRIMES

A. ROBBERY

Page 538: Add to Note 12:

In late 1999, the California Supreme Court overruled Butler, holding that the common law
Aclaim of right@ defense may not be extended to Aforcible takings perpetrated to satisfy, settle or
otherwise collect on a debt.@ People v. Tufunga, 987 P.2d 168, 170 (Cal. 1999). The court
reaffirmed, however, that when the California legislature enacted the robbery statute in 1872, it
apparently intended to incorporate Aclaim of right@ as a defense to forcible takings of specific
property believed in good faith to be one=s own. Therefore, claim of right remains a defense to
such specific property takings, whether or not this Acontinues to reflect sound public policy as we
enter the 21st Century.@ Id.

Page 539: Add Note 13:

13. Unit of Prosecution for Robbery. In State v. Tvedt, 107 P.3d 728 (Wash. 2005), defendant
Ronald Tvedt challenged his conviction on four counts of first-degree robbery, arguing a
violation of the double jeopardy provisions in the state and federal constitutions. Tvedt
contended that he engaged in only two acts when he robbed two different gas stations. In the first
robbery, Tvedt forced two employees to the floor while brandishing a knife and demanded
money. The gas station owner told Tvedt the only money was in a deposit box, which Tvedt took.
Tvedt then ordered the owner to give him the keys to the owner=s truck, and Tvedt left in the
truck. In the second robbery, Tvedt again brandished a knife and forced two employees to lie on
the floor. One of the employees told Tvedt where the money was located. In addition to the
money, Tvedt took the cellphone of the other employee. In defending the four counts filed
against Tvedt, the State contended that the unit of prosecution is defined by the number of
persons placed in fear. Disagreeing with both parties, the Washington Supreme Court held that
the legislature had intended to make robbery both a property crime and a crime against the
person, and that Athe unit of prosecution for robbery is each separate forcible taking of property
from or from the presence of a person having an ownership, representative, or possessory interest
in the property, against that person=s will.@ Because Tvedt forcibly took property from two people
in each of the two incidents, the court upheld his conviction.

B. EXTORTION

Page 548: Add to Note 5:

Iowa football player Ryan Loftin ultimately pled guilty to a Aserious misdemeanor@ of
Atrespass causing damage,@ and was sentenced to two years= probation in addition to 120 hours of
community service, restitution, and court costs. He apparently had stolen team playbooks, in
addition to making the threats noted in the book. See Brian Sharp, Loftin Apologizes, Gets
Community Service, Iowa City Press-Citizen, Feb. 5, 2000.

C. BRIBERY

Page 573: Add Note 8:

8. Is Prosecutorial Leniency in Return for Testimony Bribery? In 1998, a panel of the U.S.
Court of Appeals for the Tenth Circuit sent shock waves through the federal criminal bar when it
held that federal prosecutors commit bribery when they enter into cooperation Adeals@ with
criminal informants, promising leniency in return for (truthful) testimony. A number of other
federal courts quickly rejected the panel=s holding, and the Tenth Circuit agreed to reconsider the
ruling en banc. The full twelve-judge court then reversed the panel=s ruling. United States v.
Singleton, 165 F.3d 1297 (10th Cir. 1999) (en banc). The majority held that the federal bribery
statute simply Adoes not apply to the United States or an Assistant United States Attorney
functioning within the official scope of the office.@ Two judges concurred more narrowly, finding
that although the longstanding practice of prosecutorial deal-making for truthful testimony fit the
language of the federal bribery statute, Congress never intended to implicate that practice when it
enacted the bribery statute (finding this confirmed by subsequent federal statutes that recognize
the practice). Interestingly, three judges still dissented, concluding that prosecutorial deal-making
for testimony falls within the plain language of the federal statute and is therefore bribery.
The federal bribery statute provides that Awhoever . . . directly or indirectly, gives, offers, or
promises anything of value to any person, for or because of the testimony . . . given or to be
given by such person as a witness upon a trial,@ may be imprisoned for up to two years. 18
U.S.C. ' 201(c)(2). Do you agree with the en banc decision that this language ought not apply to
federal prosecutors offering leniency for truthful testimony?

D. BURGLARY

Page 581: Add to Note 6:

The Ohio Supreme Court has ruled that A[b]ecause the purpose of burglary law is to protect
the dweller, . . . custody and control, rather than legal title, is dispositive.@ Thus a husband was
convicted of burglarizing the apartment that his estranged wife occupied, despite an unusual
Ohio statute providing that Aneither [husband nor wife] can be excluded from the other=s
dwelling, except by [court] decree.@ State v. Lilly, 717 N.E.2d 322 (Ohio 1999).

Page 582: Add to Note 8:

Consider also Auman v. People, 109 P.3d 647 (Colo. 2005), where the Colorado Supreme
Court reversed burglary and felony murder convictions entered against Lisa Auman, who, along
with several other people, broke into her ex-boyfriend=s room and removed some of her
belongings as well as his, ultimately leading to a high-speed chase and the death of a police
officer. The burglary charge was based on the theory that Auman broke into the room with the
intent to commit the felony of theft, a crime which can be negated by a claim of right. Auman
contended that she intended only to take back her own possessions when she broke into the
room. Because the jury instructions failed to require proof that Auman intended to take the
property of another without authorization when she entered the room, the court held that she did
not receive fair consideration of her defense that she lacked the requisite intent to commit a
felony.
Chapter 11
CAUSATION

B. DETERMINING THE LIMITS OF CAUSATION


[2] ACTS OF THIRD PARTIES
[b] Coincidental Acts of Third Parties

Page 602: Add Note 3:

3. The Rementer case is discussed and distinguished in a bizarre Montana case, State v.
Sherer, 60 P.3d 1010 (Mont. 2002). The defendant, practicing medicine under a false name and
impersonating a doctor, advised several Apatients@ to cut and mutilate themselves. Having pled
guilty to other charges, he appealed his conviction for aggravated assault on the grounds that the
victims chose to injure themselves, that they acted on his advice by their own will. The Montana
Supreme Court rejected the causal argument that the harmful results were too remote and
unforeseeable to bear on the offender=s liability.
Note that this case, which alludes to Rementer, refers to self-harming by victims, a topic that
is discussed in detail in the next section of the casebook.

[3] ACTS OF VICTIMS


[b] Other Self-Destructive Acts of Victims

Page 611: Add Note:

Note. State v. Wassil, 658 A.2d 548 (Conn. 1995), affirming a manslaughter conviction, is
typical of many cases in which a defendant sold or gave drugs to a friend who, in turn, consumed
or injected the drugs and died of an overdose. In most of these cases, the defense that there was a
supervening act by the deceased is rejected and the delivery of the drugs by the defendant is
determined to be a reckless act.

[4] COMPLEMENTARY AND CONCURRENT ACTS

Page 615: Add Note:

Note on suicide pacts. In a number of reported situations in which one participant to a


suicide pact survived and the other did not, the survivors have been charged with first-degree
murder or lesser homicide offenses (manslaughter on a mitigation by extreme emotional distress
theory). Because the death of one participant follows directly from the mutual agreement to end
lives and from joint acts carrying out that agreement, lack of causation defenses are rarely
effective.
C. CHANGING CONCEPTIONS OF RESPONSIBILITY

Page 622: Add Notes 3 and 4:

3. An interesting recent article, Murder by Gruma: Causation in Homicide Cases Under


Jewish Law, by Irene Merker Rosenberg, Yale L. Rosenberg, and Bentzion S. Turin, 80 B.U. L.
Rev. 1017 (2000), explores the significant differences between the Jewish law of homicide under
the Torah and the secular common law. The authors point out that, in the interest of avoiding all
mistakes, all possibility of convicting and punishing the innocent, Aa rabbinic court cannot
convict a person of murder unless that person caused the victim=s death directly and not by a
gruma or indirect cause. One consequence then of Jewish law=s focus on direct causation is that
solicitation of an offense cannot be criminally punished. Moreover, no matter how much
assistance a co-conspirator gives to a principal, accomplice liability is virtually nonexistent in
Jewish law.@ The authors conclude that because A[p]unishment of the innocent is antithetical to
the Jewish criminal justice system,@ the rules of (direct) causation in Jewish law Aeffectively
eliminate[] the possibility of erroneous conviction, leaving nothing to inference in the
determination of guilt.@

4. A complex and provocative discussion of the Ametaphysics@ of causation can be found in a


symposium on the morality of criminal law published in 2000 in the California Law Review.
Among the attempts to reconstruct and criticize the doctrine of causation in criminal law are
Michael Moore=s The Metaphysics of Causal Intervention, 88 Cal. L. Rev. 827 (2000), and
Stephen Morse=s The Moral Metaphysics of Causation and Results, 88 Cal. L. Rev. 879 (2000).
Chapter 13
SOLICITATION

Page 654: Add Note 9:

9. Solicitation, Crimes Committed by Talking, and the First Amendment. Solicitation, and
other crimes that are implemented by speech (for example, extortion or conspiracy), raise
constitutional issues under the First Amendment. But the First Amendment does not bar
prosecution for these crimes. The rationale can be found, for example, in a 2002 en banc Ninth
Circuit Court of Appeals decision in a civil case, Planned Parenthood v. American Coalition of
Life Activists, 290 F.3d 1058 (9th Cir. 2002) (en banc). The court upheld a jury verdict against
anti-abortion activists who had published AWANTED@ and AGUILTY@ posters showing the
photos, names, and addresses of doctors who performed abortions, and a website Ascorecard@
showing personal information with lines through the names of doctors who had been murdered
or wounded. The plaintiffs= theory was that these posters solicited acts of violence against the
doctors (three doctors were murdered after their information appeared on such posters), and that
the posters constituted a Atrue threat@ not protected by the First Amendment. Thus the case
involved analogies to the crimes of solicitation and extortion.
The Ninth Circuit agreed that these posters could reasonably be interpreted as a threat, citing
Brandenburg v. Ohio, 395 U.S. 444 (1969), which held that the First Amendment protects speech
that advocates violence only so long as it does not incite and is not likely to produce Aimminent@
criminal acts. The defendants were enjoined from further publication of their WANTED posters
and related websites, and damages were awarded. (Brandenburg is discussed in the Buttorff
decision in the textbook at Page 659.)
Five of the eleven judges who heard the Life Activists case dissented, pointing out that Anone
of the statements on which liability was premised were overtly threatening,@ and that none of the
defendants actually resorted to, advocated, or appeared to have the capacity or propensity to
cause or resort to, criminal violence. Thus, said the dissenters, there was not a Atrue threat@
unprotected by the First Amendment. A[A] statement does not become a[n unprotected] true
threat because it instills fear in the listener; . . . many statements generate fear in the listener
[such as AStop smoking or you=ll die of lung cancer@ or AIf you walk in that neighborhood late at
night, you=re going to get mugged@], yet are not true threats and therefore may not be punished or
enjoined consistent with the First Amendment.@ 290 F.3d at 1089-91 (Kozinski, J., dissenting).
Similarly, federal criminal law prohibits Aadvocating the overthrow of the government,@ 18
U.S.C. ' 2385, and the related offense of Aseditious conspiracy,@ 18 U.S.C. ' 2384, which
consists of a conspiracy to Aoverthrow, put down, or to destroy by force the Government of the
United States, or to levy war against them.@ In 1999, the Second Circuit Court of Appeals
affirmed the conviction of a blind Islamic scholar and cleric, Sheik Omar Abdel Rahman, and
others for their seditious roles in advocating and conspiring to Awage a war of urban terrorism@
that resulted in (among other things) the first World Trade Center bombing in 1993. United
States v. Rahman, 189 F.3d 88 (2d Cir. 1999). Again relying on Brandenburg, the court noted that
Ato be convicted under Section 2384, one must conspire to use force, not just to advocate the use
of force.@
How clear do you think these constitutional lines are? Are they appropriate? Would you
declare the criminal laws at issue invalid? Why, or why not?

Page 654, add Note 10:

Solicitation of Solicitation. State v. Grant-Chase, 150 N.H. 248 (2003). The


defendant was convicted for soliciting the crime of solicitation of murder, and that
conviction was affirmed on appeal. The defendant had an affair with her parole officer,
which he ended by returning to his wife of almost 30 years. Id. at 249. The defendant soon
violated her parole and was returned to prison, where she met Carol Carriola, an inmate
reputed to have Mafia connections. The two discussed hiring a "mob hit-man" to kill the
parole officer’s wife. At first Carriola thought it was a joke, but after the defendant provided
a description of and directions to Ciccone's home, Carriola realized the defendant was
serious. Although Carriola testified she never truly intended to attempt to hire a killer, after
some negotiation the two agreed upon a price for killing Ciccone'swife.

Unfortunately for the defendant, the Supreme Court of New Hampshire ruled that her actions
were clearly in violation of the state statute defining criminal solicitation. Id. at 250. The
defendant had the purpose that Carriola engage in conduct constituting a crime (specifically that
Carriola solicit someone to murder Ciccone's wife), and because the defendant had solicited
Carriola to "engage in such conduct,” she committed the crime of solicitation.
Chapter 14
ACCOMPLICE LIABILITY

B. THE EXTENT OF PARTICIPATION NECESSARY

Page 664, add to Note 5:

Can an accomplice be convicted of a crime greater than s/he intended, and


receive a harsher punishment than the principal? Grissom v. People, 115 P.3d 1280
(2005) (compare to Iago and Othello on pg. 664 in the Text) The defendant, Grissom,
helped the principal, Love, drive around and look for the victim, Shante Cannon, who owed
a gambling debt to Love. Id. at 1282. They finally found Cannon and Love shot him.
Grissom was convicted of premeditated first degree murder, while his alleged principal,
Love, was found guilty of only second degree murder. As a result, Grissom (the accomplice)
was sentenced to life in prison without the possibility of parole. By contrast, Love (the
principal) was sentenced only to eight to twelve years imprisonment.
Grissom argued that he had intended only to help collection of the debt, not a murder.
However, the Colorado Supreme Court found precedent holding that, in "common
enterprise" cases where both parties act in concert to commit a threshold crime, but the
principal ultimately commits a more serious crime than the complicitor initially intended, the
complicitor can be held liable for the greater crime committed by the principal. Under this
Colorado approach, the complicitor must only intend to aid or assist the principal to engage
in conduct that grossly deviates from the standard of reasonable care and poses a substantial
and unjustifiable risk of death to another.
Grissom nevertheless won a new trial, however, because the Court concluded that he was
entitled to a “lesser offense instruction” because there was some evidence, however slight, that
Grissom intended only to help Love drive around and collect the alleged debt short of murder.
He was therefore entitled to a new trial with jury instructions that included a potential reckless
manslaughter charge.

Page 665: Add Note 7:

7. Accomplice Liability and the Death Penalty. John Allen Muhammad, who was convicted
of murder for directing with John Lee Malvo the Washington-area sniper attacks, contended on
appeal that he could not face the death penalty because he was not the Atriggerman@ and
principals in the second degree (excluding specified exceptions) cannot be sentenced to death in
Virginia. Relying on the testimony of a British military soldier who specialized in sniper
methodology, the Supreme Court of Virginia in Muhammad v. Commonwealth, 611 S.E.2d 537
(Va. 2005), reasoned that Muhammad acted as a principal in the first degree, and thus was
eligible for the death penalty, because the act of Aspotting@ for the Ashooter@ was required to
successfully perpetrate the fatal attacks. (For further discussion of the D.C. sniper cases, see the
materials supplementing Pages 376 and 807 of the casebook.)
E. ACCESSORY AFTER THE FACT AND OBSTRUCTION OF JUSTICE

Page 680: Add to Note 2:

Federal criminal law codifies the common law of accessory after the fact at 18 U.S.C. ' 3:
AWhoever, knowing that an offense against the United States has been committed, receives,
relieves, comforts or assists the offender in order to hinder or prevent his apprehension, trial, or
punishment, is an accessory after the fact.@ The maximum punishment is one-half the maximum
sentence prescribed for the principal actor, up to fifteen years.
In 2003, a New York husband and wife were sentenced under this statute to more than two
years in prison (which they had already served awaiting trial), when they pled guilty, admitting
that they wired money, and offered their residence as a hiding place, to James Kopp, an anti-
abortionist who had murdered a doctor. Susan Saulny, Two Who Helped Doctor=s Killer Are
Released After 29 Months, N.Y. Times, Aug. 22, 2003, at B4. See also 18 U.S.C. ' 2339
(providing up to ten years= imprisonment for whoever Aharbors or conceals@ terrorists).

Page 683: Add Notes 7, 8, and 9:

7. Martha Stewart=s Convictions. In 2004, Martha Stewart, the custodian of good taste (and
former stockbroker) and her stockbroker Peter Bacanovic were convicted of conspiracy,
obstruction of justice, and lying to federal investigators. The charges flowed from a federal
statute, 18 U.S.C. ' 1001, that makes it a crime to lie to a federal investigator, even if not under
oath. The alleged lies involved denials that Stewart=s decision to sell another company=s stock
was based on a tip from Bacanovic that the other company=s CEO had decided to dump his stock.
The government proved that Stewart and Bacanovic falsely claimed that Stewart had a pre-
existing order to sell stock when the price fell to a certain level. The alleged lies were found to
constitute obstruction of an investigation to determine whether Stewart had inside information
that prompted the sale of the stock. Ironically, the prosecution ultimately decided not to even
charge criminal Ainsider trading,@ because it is at least questionable whether the knowledge that a
different company=s CEO is selling stock is Ainside@ information. Thus proving the old adage that
Athe cover-up is worse than the crime,@ Stewart and Bacanovic were convicted of lying and
obstructing an investigation of what may not even have been a crime. (The Securities and
Exchange Commission is, however, pursuing a civil insider trading case against Stewart and
Bacanovic. See Julia Levy, Stewart Verdict Opens Door for SEC Insider Trading Suit, N.Y. Sun,
March 11, 2004, at 2.)
Stewart was sentenced to five months in prison and five months= home confinement, as well
as two years= probation. While her appeal was pending, Stewart chose to serve her sentence
immediately and spent five months in a minimum security prison in Alderson, West Virginia She
was released on March 4, 2005, and remained under house arrest on her estate in Bedford, N.Y.
until August 2005 See Constance L. Hays, Home Sweet Home Confinement, N.Y. Times, March
5, 2005, at C1. As part of a move to boost her company=s image, Stewart inked a deal before she
went to prison with Mark Burnett, executive producer of The Apprentice reality TV show, to star
in her own version of the show, and she began filming while serving her house arrest. And
indeed, the value of her company’s stock has not declined despite her criminal conviction.
Under the circumstances, do you think that the government=s criminal prosecution was
excessive or appropriate?
Stewart’s appeal of her convictions was unsuccessful. United States v. Stewart, 433 F.3d 273
(2d Cir. 2006). However, the Court did reverse the sentence of Martha Stewart’s broker, and
remanded for reconsideration in light of the Supreme Court’s Booker decision, discussed above.
While Stewart could appeal to the Supreme Court, it seems extremely unlikely that review would
be granted because "there are no earth-shaking issues other than the fact that she's Martha
Stewart," according to Solomon Wisenberg, a Washington D.C. white collar criminal defense
lawyer. Martha Stewart's conviction upheld, January 6, 2006, CNNMoney.com. While the value
of Stewart’s stock has apparently not been damaged by the government’s prosecution, her
version of The Apprentice never really took off and was cancelled after one season.

8. A One-Sentence Email as Obstruction of Justice. The mens rea of obstruction can be


extremely circumstantial. In 2004, a prominent investment banker was convicted for obstruction
of justice at a second trial (after jurors deadlocked in the first trial) for sending a two-line email
message. Frank P. Quattrone, the head of Credit Suisse, endorsed and forwarded a subordinate=s
email message entitled Atime to clean up those files,@ an annual notice reminding employees of
the corporation=s standing document retention and destruction policies. The government
characterized this email as an instruction to hundreds of employees to destroy documents that
were subject to a grand jury subpoena (although the government did not show that any relevant
documents were actually destroyed). Quattrone=s defense argued unsuccessfully that he did not
know the documents were under subpoena and that, in any case, he did not intend anything more
than Aroutine housekeeping procedures,@ unconnected in his mind with the federal probe. See
Michelle Garcia, Prosecution Opens in 2nd Quattrone Trial, Wash. Post, April 17, 2004, at E1.
Quattrone was sentenced to 18 months in prison.
However, in March 2006, the Second Circuit unanimously reversed Quattrone’s conviction,
finding that the trial judge, Richard Owen, had given the jury improper instructions. For
example, he had allowed the jury to convict Quattrone of obstruction "regardless of whether he
intended such." United States v. Quattrone, 441 F.3d 153 (2d Cir. 2006); Frank Quattrone's
conviction overturned, Associated Press, March 20, 2006. The appellate court ruled that Owen’s
instruction was at odds with last year’s U.S. Supreme Court ruling throwing out the conviction of
the accounting firm Arthur Andersen for destroying Enron related documents. See Arthur
Andersen v. United States (discussed above in the materials supplementing Page 193 of the
casebook.) “The Supreme Court has made clear that the conduct to be punished, then, must not
only be made with wrongful intent but also with a consciousness that the conduct in question is
wrongful.” Quattrone, supra, 441 F.3d at 176.
Meanwhile, the SEC dropped all charges against Quattrone, and the government agreed to a
“deferred prosecution” agreement by which it will not retry Quattrone and he will be free to
engage in public securities work in the future. Andrew Ross Sorkin, Quattrone May Avoid 3rd
Trial, N.Y. Times (Aug. 19, 2006).
In Anderson, 125 S.Ct. 2129 (2005), the Supreme Court reversed obstruction of justice
convictions of the accounting firm Arthur Andersen. In facts echoing the Quattrone prosecution,
the government had indicted based on memos sent by its in-house counsel advising the firm to
comply with its document retention policies and destroy files containing information about
Enron. The Supreme Court ruled that the trial judge failed to instruct the jury on the proper mens
rea for obstruction, which requires that a person who instructs others to shred documents must
act with Aconsciousness of wrongdoing@ and must also contemplate that the documents being
destroyed might be material in a particular official proceeding. See Jess Bravin, Justices
Overturn Criminal Verdict in Andersen Case, Wall Street Journal, June 1, 2005, at A1.
9. Has Barry Bonds committed a crime? Another celebrity who faces potential
perjury and obstruction of justice indictments is baseball’s home-run slugger Barry Bonds. In
December 2003, federal prosecutors questioned Bonds closely in the grand jury about documents
allegedly detailing his use of steroids. Bonds' lawyer has told the San Francisco Chronicle that
prosecutors are considering a perjury case against Bonds for the statements he made. The Grand
Jury transcripts, which by law must be kept secret, were eventually leaked to the media (a
separate investigation into those leaks is ongoing). The transcripts revealed that Barry Bonds
repeatedly said he had taken only legal substances as far as he knew.
Whether or not perjury or obstruction of justice charge are filed against Bonds, such
charges would face some tall hurdles. According to the Supreme Court, if Bonds’ answers were
literally true, even though they were intended to mislead, his testimony would not be perjury.
Bronston v. United States, 409 U.S. 352 (1973). The Court ruled that “literal truth” is a defense
to perjury and it is the prosecutor's job to ask precise questions and obtain clear answers.
Experts say that if Barry Bonds used phrases like “I believe” or “to the best of my memory,”
literal falsity could be almost impossible to prove.
Should the prosecution have so much discretion in bringing charges? Why the obsession
over Bonds? Is it simply because he is so close to the all-time home run record? The amount of
manpower and effort put into this initiative by the government is surprising to Munson, a legal
expert for Sports Illustrated, who says nowadays we only see this kind of attention in terrorist
cases. "Bonds is the ultimate prize of this investigation," he says. Munson called Barry Bonds a
legal career maker, comparing him to Al Capone. See generally Bob Egelko, Perjury always a
tough charge to prove in courts, April 15, 2006, San Francisco Chronicle; Lance Williams and
Mark Fainaru-Wada, What Bonds told BALCO grand jury, December 3, 2004, San Francisco
Chronicle; Jacob Luft, What happens next? A look at where MLB's steroid scandal goes from
here, June 8, 2006, SI.com
Chapter 15
CONSPIRACY

A. THE ELEMENTS OF CONSPIRACY


[4] THE OVERT ACT REQUIREMENT

Page 704: Add to Note 1:

The U.S. Supreme Court has indicated that it will require proof of an overt act only when
Congress specifically writes such a provision into law. In Whitfield v. United States, 543 U.S.
209 (2005), the defendants were indicted on 20 counts, including conspiracy to launder money
for a scheme that defrauded unwary investors. The defendants challenged the money laundering
conspiracy count on the grounds that the government had to prove that at least one of the
conspirators committed an overt act in furtherance of the conspiracy. Analogizing to the drug
conspiracy statute at issue in United States v. Shabani, the Court reasoned that unless Congress
specifically requires evidence of an overt act, like in the general federal conspiracy statute, no
overt act is required to prove conspiracy.

B. THE SCOPE OF CONSPIRACY LIABILITY


[6] RICO

Page 727, add to Note 4:

Scheidler v. NOW, Inc., 126 S. Ct. 1264 (2006): The civil RICO case against anti-
abortion organizations (NOW, Inc. v. Scheidler mentioned on Pg. 727) has now gone on for over
a decade. After the Supreme Court held that RICO was not limited to enterprises motivated by
economic purposes, the case was remanded for further proceedings. At trial, a jury found that
petitioners had engaged in a host of extortion, or extortion-related, acts, and therefore violated
RICO. The District Court awarded treble damages to the respondents and entered a nationwide
injunction.
But on certiorari, the Supreme Court reversed, ruling that the “property” at issue here for
the underlying Hobbs Act extortion counts went well beyond whatever the outer boundaries of
property might be, and could not constitute federal extortion. Thus the RICO counts, dependent
on that predicate conduct, could not stand. Then, on a second run to the Supreme Court, the
plaintiffs’ separate theory that RICO could also be based on instances or threats of physical
violence unrelated to the property claims, was also rejected. The Court ruled that Congress did
not intend to create a freestanding physical violence offense in the Hobbs Act, and ordered the
case remanded for entry of judgment for the petitioners. Id. at 1274. Thus this use of civil RICO
against the anti-abortion movement appears to now be finally rejected.
Page 727: Add to Note 6:

A violation of a New York state version of RICO was one of the charges brought in the 2004
prosecution of several prominent Tyco corporate executives. Former Tyco CEO Dennis
Kozlowski and his Chief Financial Officer, Mark Swartz, were accused of pocketing $170
million in company money to buy expensive homes and throw lavish parties and making $430
million in the sale of stock after falsely inflating company earnings. The ATop Executive
Criminal Enterprise@ in Tyco was characterized as the organizational basis for the RICO-like
charge. However, the judge dismissed the charge because he had Aserious reservations@ about
whether the statute was meant to apply in a case involving only two defendants and he feared the
charge might Aconfuse the jury.@ Ben White, Tyco Judge Throws Out One Charge, Wash. Post,
March 6, 2004, at E1. As explained above in the material supplementing Page 193 of the
casebook, the judge ultimately dismissed the jury and declared a mistrial on the remaining
charges after one juror received an intimidating letter. Tyco=s General Counsel, Mark Belnick,
was acquitted of securities fraud and grand larceny charges in July of 2004, but on retrial both
Kozlowski and Swartz were found guilty. See Andrew Ross Sorkin, Ex-Chief and Aide Guilty of
Looting Millions at Tyco, N.Y. Times, June 18, 2005, at A1. See materials supplementing Page
193, supra.
Chapter 16
JUSTIFICATION

B. SELF-DEFENSE

Page 735: Add to Note 2:

Bernhard Goetz, who still has not paid the judgment entered against him in Darrell Cabey=s
civil suit, spends his time helping injured squirrels and selling electronic equipment on the
Internet. See Jennifer Steinhauer, Undaunted by Their Slim Prospects, Outsiders Crowd Mayoral
Race, N.Y. Times, Aug. 28, 2001, at B1. Goetz ran for mayor of New York City in November of
2001, winning 1300 votes. See The 2001 Elections: Results, N.Y. Times, Nov. 8, 2001, at D5.

Page 751: Add to Note 3:

In response to criticisms of the battered woman syndrome and learned helplessness theories,
some domestic violence experts maintain that the so-called Aactive survivor theory@ better
captures the experience of battered women. See, e.g., Edward W. Gondolf & Ellen R. Fisher,
Battered Women as Survivors: An Alternative to Treating Learned Helplessness 11-25 (1988).
These theorists observe that, rather than being helpless, battered women Arespond to abuse with
helpseeking efforts that are largely unmet,@ and they Aremain in abusive situations not because
they have been passive but because they have tried to escape with no avail.@ Id. at 11, 17. As a
result of these developments in the understanding of abusive relationships, many researchers,
expert witnesses, and judges now talk in terms of Abattering and its effects@ rather than Athe
battered woman syndrome.@ See, e.g., People v. Humphrey, 921 P.2d 1, 7 n.3 (Cal. 1996)
(observing that Athe preferred term among many experts today is >expert testimony on battering
and its effects= or >expert testimony on battered women=s experiences@=) (quoting amicus brief).
This terminology is intended to minimize the confusion generated by the term Abattered woman
syndrome@ by avoiding any suggestion that the woman suffers from a Asyndrome@ or mental
impairment, or that some sort of profile or model exists that all battered women must match. But
cf. Regina A. Schuller & Patricia A. Hastings, Trials of Battered Women Who Kill: The Impact of
Alternative Forms of Expert Testimony, 20 Law & Hum. Behav. 167, 181-84 (1996) (concluding
based on simulated trial experiments that the type of expert testimony used in cases involving
battered women C whether phrased in terms of the battered woman syndrome and learned
helplessness or more along the lines of the active survivor theory C does not have much effect on
jury verdicts).

Page 752: Add to Note 4:

The U.S. Supreme Court summarily reversed a grant of habeas corpus relief to a battered
woman who challenged her second-degree murder conviction on the ground that the trial judge=s
use of the term Areasonable person@ in instructing the jury on the definition of the Aimminence@
requirement was inconsistent with California law on imperfect self-defense, which reduces a
killing caused by an honest, but unreasonable fear to voluntary manslaughter. (For discussion of
the doctrine of imperfect self-defense, see Note 6 on Page 738 of the casebook.) Although the
instruction was clearly error, the Supreme Court ruled that the Ninth Circuit, in granting habeas
relief, had Afailed to give appropriate deference to the state court=s decision.@ Middleton v.
McNeil, 541 U.S. 433, 437 (2004) (per curiam). AGiven three correct instructions and one
contrary one, the state court did not unreasonably apply federal law when it found that there was
no reasonable likelihood the jury was misled,@ the Supreme Court concluded. Id. at 438.

Page 753: Add to Note 5:

In several states, trial judges are now required to give jury instructions explaining how expert
psychological testimony is relevant to a battered woman=s self-defense claim. See, e.g., Smith v.
State, 486 S.E.2d 819, 823 (Ga. 1997) (requiring modification of pattern self-defense instruction
Ain all battered person syndrome cases@ to make clear that Aevidence that the defendant suffers
from battered person syndrome . . . relates to the issue of the reasonableness of the defendant=s
belief that the use of force was immediately necessary, even though no use of force against the
defendant may have been, in fact, imminent@); Boykins v. State, 995 P.2d 474, 479 (Nev. 2000)
(requiring instruction informing the jury that evidence of battered woman syndrome may be
considered Awhen determining the defendant=s state of mind at the time of the killing and
whether she acted in self-defense,@ and in evaluating Athe reasonableness of her belief that she
was about to suffer imminent death or great bodily harm@).
In Bechtel v. State, 840 P.2d 1, 11 (Okla. Crim. App. 1992), the Oklahoma Court of Criminal
Appeal went even further, adopting a special jury instruction for battered women=s self-defense
cases that omits the pattern jury instruction=s reference to Aa reasonable person@ and instead
advises the jury to consider whether Aa person, in the circumstances and from the viewpoint of
the defendant, would reasonably have believed that she was in imminent danger of death or great
bodily harm.@[FN1]
[FN 1 The complete text of the jury instruction the court adopted for cases involving battered
women is as follows (with the language omitted from the pattern jury instruction in brackets):
A person is justified in using deadly force in self-defense if that person
[reasonably] believed that use of deadly force was necessary to protect herself
from imminent danger of death or great bodily harm. Self-defense is a defense
although the danger to life or personal security may not have been real, if a
[reasonable] person, in the circumstances and from the viewpoint of the
defendant, would reasonably have believed that she was in imminent danger of
death or great bodily harm.

The concurring opinion in Bechtel called the majority=s decision somewhat Apuzzling,@ noting
that the modified instruction Aincludes the reasonableness requirement@ in the last clause despite
the court=s purported intent to A>strik[e] the words Areasonably@ and Areasonable@ from [the]
instruction.=@ See id. at 15-16 (Parks, J., concurring in the result) (quoting the majority opinion).

D. NECESSITY

Page 783: Add to Note 7(a):


The number of states that approve the medical use of marijuana has grown to eleven, with
bills pending in seven additional states. See Dan Hurley, Medical Marijuana on Trial, N.Y.
Times, Mar. 29, 2005, at F5. In 2001, Canada became the first country to permit the medical use
of marijuana, and the Dutch government now grows marijuana for medical use, Atreat[ing]
marijuana like any other prescription drug.@ Keith B. Richburg, For Dutch in Pain, Drugstores
Offer Pot by Prescription, Wash. Post, Feb. 11, 2004, at A22.
Nevertheless, the medical marijuana movement in this country has recently been dealt
several blows in the courts. For example, the Washington Court of Appeals= decision in State v.
Diana has been overturned. See State v. Williams, 968 P.2d 26, 30 (Wash. Ct. App. 1998)
(holding that Awith respect to Schedule I drugs [like marijuana], there is not a defense of medical
necessity@ because Athe decision of whether there is an accepted medical use for particular drugs
has been vested in the Legislature [and] [t]he Legislature has determined that marijuana has no
accepted medical use@).
Likewise, in United States v. Oakland Cannabis Buyers= Cooperative, 532 U.S. 483 (2001),
the U.S. Supreme Court refused to read a medical necessity defense into the provisions of the
Controlled Substances Act, 21 U.S.C. ' 801, that prohibit the manufacture and distribution of
marijuana. Noting that Ait is an open question whether federal courts ever have authority to
recognize a necessity defense not provided by statute,@ the Supreme Court concluded that a
medical necessity defense, though Anot explicitly abrogated@ by the statute, would be Aat odds@
with it. Id. at 490, 491 (emphasis added). The Court explained that Athe statute reflects a
determination that marijuana has . . . >no currently accepted medical use.@= Id. at 491. Although
the majority observed that Anothing in our analysis, or the statute, suggests that a distinction
should be drawn between the prohibitions on manufacturing and distributing and the other
prohibitions@ in the act, id. at 494 n.7, three Justices refused to join this portion of the opinion,
noting that Awhether the defense might be available to a seriously ill patient for whom there is no
alternative means of avoiding starvation or extraordinary suffering is a difficult issue not
presented here.@ Id. at 501 (Stevens, J., concurring in the judgment). Most recently,
however, the Supreme Court held in Gonzales v. Raich, 125 S. Ct. 2195 (2005), that even
seriously ill patients who use locally grown marijuana under a doctor=s orders in one of the states
permitting the medical use of marijuana are subject to prosecution for violating the federal drug
laws. Writing for the six Justices in the majority, Justice Stevens concluded that Congress has
authority under the Commerce Clause to prohibit even Athe intrastate manufacture and
possession of marijuana for medical purposes pursuant to [state] law.@ The majority explained
that the Commerce Clause gives Congress Athe power to regulate purely local activities that are
part of an economic >class of activities= that have a substantial effect on interstate commerce.@
AGiven the enforcement difficulties that attend distinguishing between marijuana cultivated
locally and marijuana grown elsewhere, and concerns about diversion into illicit channels,@ the
Court explained, Awe have no difficulty concluding that Congress had a rational basis for
believing that failure to regulate the intrastate manufacture and possession of marijuana would
leave a gaping hole@ in the federal drug laws= efforts to create Aa comprehensive regime to
combat the international and interstate traffic in illicit drugs.@
Noting that A[t]his case exemplifies the role of States as laboratories,@ Justice O=Connor=s
opinion for the three dissenters observed that A[t]he States= core police powers have always
included authority to define criminal law and to protect the health, safety, and welfare of their
citizens.@ (O=Connor, J., dissenting). The dissenters criticized the majority for Asanction[ing] an
application of the federal Controlled Substances Act . . . without any proof that the personal
cultivation, possession, and use of marijuana for medicinal purposes, if economic activity in the
first place, has a substantial effect on interstate commerce and is therefore an appropriate subject
of federal regulation.@

Page 784: Add to Note 7(b):

In a more recent Ninth Circuit case, a defendant charged with being a felon in possession of a
firearm raised a necessity defense, alleging that he grabbed a handgun from one of his
companions during a fight because he was afraid his friend would shoot someone. The court held
that the defendant had a valid necessity defense if four elements were satisfied:

A(1) [the defendant] was under unlawful and present threat of death or serious bodily
injury; (2) he did not recklessly place himself in a situation where he would be forced to
engage in criminal conduct; (3) he had no reasonable legal alternative; and (4) there was
a direct causal relationship between the criminal action and avoidance of the threatened
harm.@

United States v. Beasley, 346 F.3d 930, 933 n.2 (9th Cir. 2003) (quoting United States v. Wofford,
122 F.3d 787, 790 (9th Cir. 1997)). The court held, however, that the defendant had the burden of
proof on this issue. See id. at 933-35. But cf. United States v. Talbott, 78 F.3d 1183, 1185-87 (7th
Cir. 1996) (concluding that, absent a statute allocating the burden of proof to the defendant, the
prosecution had the burden of disproving a similar defense beyond a reasonable doubt).
Chapter 17
EXCUSE

A. DURESS

Page 798: Add new Note 2A:

In 2006, the U.S. Supreme Court ruled that neither the common law nor the Constitution
prohibits placing the burden of proof for duress on a defendant. Dixon v. United States, 126
S.Ct. 2437 (June 22, 2006). The 7-2 majority wrote (per Justice Stevens” that “like the defense
of necessity, the defense of duress does not negate a defendant’s criminal state of mind …;
instead, it allows the defendant to ‘avoid liability … because coercive conditions or necessity
negates a conclusion of guilt even though the necessary mens rea was present.” In concurrence
and dissent, Justices Alito and Breyer, respectively, debated whether the placement of the burden
of proof on federal criminal defendants was generally the law, or dependent on the particular
criminal statute at issue.

Page 807: Add to Note 8(c):

Lee Malvo, the seventeen-year-old convicted in connection with the 2002 Washington-area
sniper shootings, raised a form of brainwashing defense. His insanity defense was premised on
the theory that John A. Muhammad, the man who masterminded the killings, had Aeffectively
brainwashed [Malvo] into participating in the shootings,@ so that he A>lost his sense of identity as
a result of . . . prolonged and coercive persuasion or indoctrination.@= James Dao, Mental Health
Experts Call Sniper Defendant Brainwashed, N.Y. Times, Dec. 11, 2003, at A38 (quoting defense
expert). A Virginia jury rejected this defense and convicted Malvo of murder and terrorism, but
they spared his life and sentenced him to life in prison. See Adam Liptak, Younger Sniper Given
Sentence of a Life Term, N.Y. Times, Dec. 24, 2003, at A1. (For a description of the Virginia
terrorism statute and the conviction of John Muhammad, see the material above supplementing
Pages 376 and 665 of the textbook.)

B. ENTRAPMENT

Page 824: Add to Note 1:

Although Jacobson requires that defendants must be predisposed to commit a crime Aprior to
first being approached by Government agents,@ a number of courts have noted that Jacobson
does not foreclose the prosecution from using evidence of actions that defendants engaged in
after the government contacted them to show they were predisposed before they were
approached by the government. See, e.g., United States v. Squillacote, 221 F.3d 542, 565 (4th Cir.
2000) (citing cases).

Page 825: Add to Note 2:


In Foster v. State, 13 P.3d 61 (Nev. 2000), the Nevada Supreme Court overturned its earlier
decision in Shrader v. State, 706 P.2d 834, 836 (Nev. 1985), which had required that the police,
before Atarget[ing] a specific individual for an undercover operation, . . . must have reasonable
cause to believe that the individual is predisposed to commit the crime.@ Noting that Nevada was
Ain the minority if not the only remaining jurisdiction@ to impose such a restriction on undercover
police activities, the court concluded in Foster that Athe reasonable cause requirement unduly
restricts reasonably designed police undercover operations implemented to ferret out crime@ and
that Athe well-settled law of entrapment . . . is sufficient protection against the possibility of
police excess.@ 13 P.3d at 64.

Page 829: Add to Note 5(b):

In United States v. Brooks, 215 F.3d 842, 844 (8th Cir. 2000), a variation on the supply-and-
buy cases, a government agent sold a heroin addict (Brooks) six packets of heroin and then, later
the same day, asked him to return some of the heroin because the agent=s Asupply . . . had run out,
and . . . he had a customer who needed heroin badly as she was suffering from withdrawal.@
When Brooks refused, explaining that Ahe planned on keeping the heroin for himself,@ the
undercover agent persisted and made three additional requests the following day, ultimately
threatening to Acut off Brooks= own heroin supply.@ Id. Faced with losing his Aonly source of
heroin,@ Brooks relented and returned two of the heroin packets to the government agent. Id. at
846. On these facts, the Eighth Circuit concluded that Brooks had been Acoerced . . . into selling
the heroin back.@ Id. The court reversed his conviction for distribution of a controlled substance,
finding Aan improper level of governmental involvement and inducement@ and thus Aentrapment
as a matter of law.@ Id. at 846, 844.

Page 832: Add to Note 6 following State v. Williams:

By contrast to Williams, compare the Georgia Supreme Court=s refusal to find a violation of
due process in Gober v. State, 566 S.E.2d 317 (Ga. 2002), even though the undercover officer in
that reverse sting case sold the defendant narcotics that should have been destroyed under the
requirements of a state statute. Noting that due process is infringed A>only when the Government
activity in question violates some protected right of the defendant,@= the court concluded that the
state statute did not Acreate any right in the defendant@ but merely Aimpose[d] a separate,
unrelated obligation on the police.@ Id. at 318 (quoting Hampton v. United States, 425 U.S. 484,
490 (1976)).

Page 834: Add to Note 7:

See also People v. Smith, 80 P.3d 662, 667 (Cal. 2003) (rejecting the doctrine of sentencing
entrapment on the grounds that it Afocuses on the intent of the defendant@ and therefore A>does not
fit@= with the objective approach to entrapment followed in California) (quoting the state
appellate court=s opinion).
C. INSANITY
[1] THE SCOPE OF THE INSANITY DEFENSE

Page 841: Add to Note 1:

Sell v. United States, 539 U.S. 166 (2003): Recently, the Supreme Court held that the Due
Process Clause permits the government to forcibly administer antipsychotic drugs in order to
render a defendant competent to stand trial. The Court admonished, however, that a defendant
may be forced to take such medication only if Athe treatment is medically appropriate, is
substantially unlikely to have side effects that may undermine the fairness of the trial, and, taking
account of less intrusive alternatives, is necessary significantly to further important governmental
trial-related interests.@ Id. at 179.

Clark v. Arizona, 126 S.Ct. 2709 (June 29, 2006): Most recently, the Supreme Court issued
a wide-ranging decision likely to have many implications for the development of the States’ laws
addressing insanity. In, the Supreme Court affirmed that a State may, if it chooses, abandon the
first prong of the M’Naughten test, which generally inquires “whether a mential disease or defect
leaves a defendant unable to understand what he is doing.” Nothing in the Constitution requires
a conclusion that the Framers intended “Due Process” to encompass the traditional M’Naughten
test.
Moreover, in a second aspect of the Clark decision, the Court ruled that a state may also, if it
chooses, restrict evidence of mental illness or incapacity to the issue of an insanity defense, and
prohibit its introduction on the general issue of mens rea.
Interestingly, this 5-4 decision included Justice Kennedy in the dissenting four, while Justice
Souter, who often sides with the “liberal” wing of the Court, wrote for the majority. It is too
early to guess at the full implications of Clark, but it could signal significant alterations in the
consideration of mental illness defenses, if not the topic of mens rea in general.

Page 844: Add to Note 3:

The Nevada legislature likewise attempted to join the list of states that have abolished
insanity as a separate defense. But the state supreme court struck the statute down on the grounds
that Alegal insanity is a well-established and fundamental principle of the law of the United States
. . . protected by the Due Process Clauses of both the United States and Nevada Constitutions.@
Finger v. State, 27 P.3d 66, 84 (Nev. 2001), cert. denied, 534 U.S. 1127 (2002). The court
explained:

Historically, the mens rea of most crimes, particularly specific intent crimes, incorporates
some element of wrongfulness as that term is used in . . . M=Naghten. The Legislature can
only eliminate this concept of wrongfulness if it redefines the crime itself, in other words,
if it chooses to make the act, regardless of the mental state, the crime. Thus murder could
simply be defined as the killing of a human being. But so long as a crime requires some
additional mental intent, then legal insanity must be a complete defense to that crime.
The Kansas Supreme Court, however, came to the opposite conclusion in State v. Bethel, 66
P.3d 840 (Kan.), cert. denied, 540 U.S. 1006 (2003), agreeing with the other courts that have
upheld the constitutionality of state statutes abolishing insanity as a separate defense. The Kansas
court distinguished the Nevada Supreme Court=s decision in Finger on the grounds that Amalice
is not a requisite element of murder@ in Kansas, and Athe only intent required is the intent to kill a
human being.@ Id. at 850. The court concluded that Athe affirmative insanity defense is a creature
of the 19th century and is not so ingrained in our legal system to constitute a fundamental
principle of law.@ Id. at 851. See also Christopher Slogobin, An End to Insanity: Recasting the
Role of Mental Disability in Criminal Cases, 86 Va. L. Rev. 1199, 1202 (2000) (taking the
position that insanity should be abolished as a separate defense, and that mental disorder should
constitute a defense Aonly if it supports an excusing condition that . . . would be available to a
person who is not mentally ill@ C e.g., where a mental disorder leads to a lack of mens rea or a
mistaken belief that one is acting in self-defense or under duress).
Following similar reasoning, some courts have held that insanity may not be raised as a
defense in juvenile delinquency proceedings. See Golden v. State, 21 S.W.3d 801 (Ark.), cert.
denied, 531 U.S. 1022 (2000); Commonwealth v. Chapman, 538 S.E.2d 304 (Va. 2000). But see
In re Winburn, 145 N.W.2d 178, 183 (Wis. 1966) (concluding that, A[i]n view of the evident
consequences of an adjudication of juvenile delinquency, it is difficult to accept the state=s
argument that the traditional concepts of >crime and punishment= have been eliminated,@ and A[i]t
is therefore apparent that the state=s consequent argument that the >old concept of criminal
responsibility= has no relevance is not completely acceptable if we are to accord to children at
least some measure of the >essentials of due process and fair treatment@=).

Page 849: Add to n.13:

John Hinckley, now 50 years old, was recently permitted to take unsupervised visits in the
custody of his parents and, assuming the success of those outings, several 32-hour overnight
visits. See United States v. Hinckley, 292 F. Supp. 2d 125 (D.D.C. 2003). In allowing these visits,
the court reasoned that Hinckley=s psychosis and depression had been in remission for at least ten
years, that he had Aexhibited no evidence of delusional thinking@ for about fifteen years and no
violent or suicidal behavior in more than twenty years, and that he had Asuccessfully participated
in over 200 Hospital-accompanied outings in the community without incident.@ Id. at 146. The
court imposed a number of conditions on these visits, including that a Adetailed itinerary@ be
provided to the court two weeks before each outing, that Hinckley stay within a fifty-mile radius
of Washington, D.C., and that he remain at all times in his parents= supervision. See id. at 151.
Although these visits have apparently been Auneventful,@ the court rejected Hinckley=s request for
unsupervised multiple-day visits to his parents= home in Williamsburg, Virginia, outside the fifty-
mile radius. Henri E. Cauvin, Hinckley Renews Bid for Virginia Trips, Wash. Post, June 2, 2005,
at B1. The court explained that Aan important risk factor remain[ed] unaddressed@ C i.e., Athe
nature of the relationship [between Hinckley and a former St. Elizabeths patient, with whom
Hinckley had been romantically involved,] and the impact of the relationship on Mr. Hinckley=s
emotional state.@ United States v. Hinckley, 346 F. Supp. 2d 155, 178 (D.D.C. 2004). In
December 2005, however, the district court granted Hinckley permission for seven overnight
visits with his parents. Having now “successfully” completed six of these visits, Hinckley is
requesting more visits and expanded privileges associated with them. The government, however,
has signaled its opposition, and 25 years after his crime, Hinckley remains the focus of
remarkable governmental attention. See David Lerman, Hinckley Asks for More Visits,
DailyPress.com, Aug. 16, 2006.

Page 859: Add to Note 5(c):

The issue of postpartum psychosis was the focus of national attention during the trial of
Andrea Yates, a Texas woman who drowned her five children in the bathtub in June of 2001.
Despite Yates= long history of mental illness C including several suicide attempts and
hospitalizations C the jury rejected her insanity defense under the Texas insanity statute, which
required proof that a Asevere@ mental disease or defect led Yates not to know that her conduct was
wrong. Yates was convicted of capital murder and sentenced to life in prison. See generally
Deborah W. Denno, Who Is Andrea Yates? A Short Story About Insanity, 10 Duke J. Gender L. &
Pol=y 1 (2003).
On appeal, however, the appellate court granted Yates a new trial, finding that there was Aa
reasonable likelihood@ that Afalse testimony@ given by Dr. Park Dietz, a well-known psychiatrist
who testified for the prosecution, Acould have affected the judgment of the jury.@ Yates v. State,
2005 Tex. App. Lexis 81, at *19-20 (Jan. 6, 2005). Specifically, Dietz C the only one of six
experts who testified at Yates= trial who concluded that she knew right from wrong C incorrectly
testified that A>there was a [Law & Order television] show of a woman with postpartum
depression who drowned her children in the bathtub and was found insane and it was aired
shortly before [this] crime occurred.=@ Id. at *19, *8-9. In July 2006, at the retrial, a jury
concluded that Yates was in fact insane at the time of her acts, and acquitted her of murder
charges. She is confined for mental treatment in Texas. Jury Finds Yates Insane, Not Guilty,
Houston Chronicle, July 26, 2006.

[2] THE EFFECT OF AN INSANITY ACQUITTAL

Page 870: Add to Note 4:

In a more recent opinion addressing the Kansas Sexually Violent Predator Act, the U.S.
Supreme Court held that, in order to Adistinguish the dangerous sexual offender whose serious
mental illness, abnormality, or disorder subjects him to civil commitment from the dangerous but
typical recidivist convicted in an ordinary criminal case,@ who is A>more properly dealt with
exclusively through criminal proceedings,@= civil commitment under the Kansas sexual predator
statute required Aproof of serious difficulty in controlling behavior.@ Kansas v. Crane, 534 U.S.
407, 412-13 (2002) (quoting Kansas v. Hendricks, 521 U.S. 346, 360 (1997)).

Page 871: Add to Note 5:

For an empirical study which found that mock jurors who received a jury instruction on the
effect of an insanity acquittal were significantly more likely to find the defendant not guilty by
reason of insanity after jury deliberations (even though it had no impact on the mock jurors prior
to deliberation), see Shannon R. Wheatman & David R. Shaffer, On Finding for Defendants Who
Plead Insanity: The Crucial Impact of Dispositional Instructions and Opportunity to Deliberate,
25 Law & Hum. Behav. 167 (2001).