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Dannii seems to be making noises again as the feud between her and Sharon Osborne has reportedly been reignited. The X-Factor judge has weighed in on reports that Osbourne is also coming back on the show, like her. The rift between her and the fellow judge began when Sharon "spoke against her," calling her "manipulative." Sharon she said, according to take40.com also bullied her on the show.
Dannii thinks that hiring Osbourne is a bit "risky."
"I read they are going back to the original auditions and Sharon Osbourne is coming back," Dannii said, noted take40. "That's risky. Either people will go, 'We have moved on' or go 'Amazing.'"
She was sure, however, not to watch the British edition of the 'X-Factor,' adding that she never watched the show since she left. With or without Sharon?
'X-Factor Australia' is set to be launched later this year.
Meanwhile, expect things to heat up on X-Factor Australia 2013 with the Minogue sisters working together in the upcoming season. Kylie Minogue has agreed to team up with her sister, Dannii, and she will be making special guest appearance as mentor for the contestants in the Australian edition of the X-Factor.
Dannii is making her debut as judge for the X-Factor Australia while Kylie appears as a mentor. This is not the first time the sibling beauties will be collaborating on a show. Dannii already worked as a judge for the British version of the reality competition and in her participation in 2009, Kylie also made a special appearance as mentor to Dannii's protégés on the show.
An episode for the sisters was already filmed in New York last week. And Dannii is very excited about it.
"This is a change. Kylie is a huge X Factor fan," Dannii was quoted in an interview when asked of Dannii on the show.
Kylie also gushed over her sister.
She said, "Dannii is so good at this, I'm just along for the ride. It's really fun to do something together, so it was a done deal when she asked me."
This kind of show is one of Dannii's natural habitats, but I do feel at home on a TV set and being with my sister... We're both comfortable in this environment," she added.
Also READ:
'X-Factor' USA 2013: Judge Demi Lovato's Father Dies, Talks of New-Found Sister [PHOTOS] Full article HERE. 'Game of Thrones':Things to Expect from GoT Peter Dinklage and George R. R. Martin in Australian Visit in November [PHOTOS] Full Article HERE. EXCLUSIVE! Omar Borkan Al Gala: "Too Handsome" Thanks 1 Million Followers for Love and Support [PHOTOS] Full article HERE.


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Lectures on Russian Literature
Harcourt Brace Jovanovich/Bruccoli Clark, 1981 - Literary Criticism - 324 pages
The author's observations on the great nineteenth-century Russian writers-Chekhov, Dostoevsky, Gogol, Gorky, Tolstoy, and Turgenev. "This volume... never once fails to instruct and stimulate. This is a great Russian talking of great Russians" (Anthony Burgess). Edited and with an Introduction by Fredson Bowers; illustrations.
What people are saying - Write a review
Review: Lectures on Russian LiteratureUser Review - Mirumir - Goodreads
"But remember that 'simplicity' is buncombe. No major writer is simple. The Saturday Evening Post is simple. Journalese is simple. Upton Lewis is simple. Mom is simple. Digests are simple. Damnation is simple. But Tolstoys and Melvilles are not simple." Read full review
Review: Lectures on Russian LiteratureUser Review - Ivana - Goodreads
If I remember well, I immensely enjoyed this book. I prefer reading over reading about reading, that is I prefer literature to literary criticism. That being said, I really enjoyed reading Nabokov's ... Read full review

subset: commoncrawl


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Prime Property
Blogging Houston real estate with Nancy Sarnoff and the Houston Chronicle real estate team.
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Higginbotham partners get new office and adopt new name
Higginbotham has consolidated three Houston offices into Energy Tower I at 11700 Katy Freeway near Kirkwood. The move brings a combined 85 employees from Chapman Schewe Benefits Consulting, Madison Benefits Group and Swantner & Gordon, all partners in the Fort Worth-based Higginbotham group, under one roof. The partners are adopting the Higginbotham corporate name in […] [Read More]
Grandway West projects scores another tenant
InSite Realty Partners and The Urban Cos. have landed a second tenant in The Offices at Grandway West under construction at the Grand Parkway near Franz Road in the Katy area. LJA Engineering, a full-service consulting engineering firm, has leased 12,223 square feet in the building 1904 Grand Parkway North. Along with a lease by Percheron, the building […] [Read More]
Niko Niko's to open 4th Houston-area location
Niko Niko's Greek & American Cafe will open a location near the Energy Corridor in spring of next year. It will be the restaurant's fourth Houston-area location. The 6,000-square-foot restaurant will be at 1040 West Sam Houston Tollway near the intersection of Interstate 10 and Sam Houston Tollway, the company announced. The space was […] [Read More]
KBS sells renovated Energy Corridor building for $120M
An affiliate of KBS Realty Advisors has sold Two WestLake Park in the Energy Corridor for a tidy profit after completing a renovation that expanded the office building's rentable area by 17 percent. KBS Real Estate Investment Trust II sold the 17-story, 455,476-square-foot building to Bravo Strategies for $120 million, according to a filing by the Newport Beach, […] [Read More]
Energy Corridor building filling up
Offshore exploration and production company Venari Resources has leased the eighth floor in West Memorial Place, a new building under construction in the Energy Corridor. "In its first two years Venari has made significant discoveries in the Gulf of Mexico and successfully expanded our portfolio, which has led to accelerated growth for our company," Brian Reinsborough, […] [Read More]
Tiny Energy Corridor subdivision to be redeveloped as multifamily project
The days are numbered for the homes in the Addicks Dam subdivision in the Energy Corridor. A Dallas investor has purchased 21 residential lots in the tiny neighborhood near the Katy Freeway and Eldridge for a multifamily redevelopment project, according Mark Kidd Sr. of M Kidd Properties. Blackhaw Partners, a subsidiary of JDMco and J. […] [Read More]
Marriott and Hampton Inn headed for Energy Corridor
A Dallas-based developer plans to build two hotels in the Energy Corridor, an area of explosive growth where 6.6 million square feet of office space is under construction or expected to break ground this year. The 135-room hotels, a Courtyard by Marriott and a Hampton Inn & Suites, will be developed by Western International on 5.2 acres […] [Read More]
Energy firms headed to new Energy Corridor digs
Houston-based Atwood Oceanics Inc. is relocating its corporate headquarters into a new building in the Energy Corridor as it seeks to modernize its office space in a competitive hiring environment. "This move positions Atwood for continued success and enhances our ability to attract and retain the best employees," Rob Saltiel, Atwood Oceanics' President and CEO, said […] [Read More]
Skanska reveals plans for new Energy Corridor development
Petroleum Geo-Services will lease 122,000 square feet in a new building slated for the Energy Corridor, a developer announced Wednesday. Skanska USA Commercial Development, which is building the office project on 12 acres south of Memorial Drive and west of Eldridge, said the project will include a 12-story office building and a parking garage with nine […] [Read More]
Jacobs Engineering to lease new Energy Corridor building
Construction is about to heat up on another project in the Energy Corridor. Jacobs Engineering has signed a lease for nearly 82,000 square feet of space in what will be a seven-story office building at 12140 Wickchester Lane, just north of Interstate 10 between Kirkwood and Dairy Ashford. The new building, which will be part of […] [Read More]
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VIEWS: 27 PAGES: 36 CATEGORY: Business POSTED ON: 11/14/2010
Az Mens Rights Divorce Legal Help document sample
Criminal Law Duke University Prof. Beale Spring 2002 Principles of Criminal Law 1. Retribution (punishment) 2. Utilitarian a. deterrence (general – public at large, specific – convicted D) b. incapacitation – protect from further crimes while in jail c. rehabilitation d. denunciation (educate public about what's bad behavior, stigmatize D) 3. S has much more power than D. therefore, different standard of proof Common Law Crimes analysis: principle of legality: no retroactive crime definition, D must have fair notice 1) charges must be specific, but court-created misdemeanors (public mischief) okay Rex v. Manley D made false accusations 2) principle of legality – forbids retroactive crime definition; prohibits judicial crime creation a) source: C Art. I, §9 and 10, due process clause b) reasoning: deterrence (criminality must be known), popular will (legislature should enact laws), legislature responsiveness (not wait for problems to reach courts), ethical (fairness to defendant, rationality, justice), division of power between judicial and legislative branch c) majority of states will allow non-statutory convictions, but rarely used d) minority allow use of prior precedent in common law, allow foreseeable judicial enlargement 3) fair notice statute must be sufficiently clear to person of ordinary intelligence MPC 1.02(1)(d) Vagueness & Due Process analysis: check for vagueness (facial or as applied), potential for discrimination, C nature of conduct 1) statute must give person of ordinary intelligence fair warning, and not encourage arbitrary and erratic arrests and convictions 2) unconstitutionally vague laws unenforceable Kolender v. Lawson vagrancy laws requiring ―reliable‖ identification a) ―facial‖ - vague on its face, unconstitutional b) ―as applied‖ - vague as applied, argue on a case by case basis. arbitrary/discriminatory enforcement 3) reasoning: adequate notice, arbitrary/discriminatory enforcement, guidance to law enforcement, due process protection 4) discriminatory enforcement unC Papachristou v. City of Jacksonville white women and black men stopped by police 5) factors to consider when determining vagueness a) potential for discriminatory application b) unable to be more precise Nash v. US ―undue restraint of trade‖ c) C nature of the conduct involved NAACP v. Button invalidated vague law against 1st Amendment. prevent ―chilling effect‖ 6) cannot prevent gang members from loitering Chicago v. Morales legislature must establish minimal guidelines for LEO. reasoning: a) 4th amend – can't randomly stop and search b) 5th amend – can't demand self-incrimination c) 14th amend, due process – vagueness Courts & Legislatures analysis: doctrine of strict construction when construing statutes, power of courts to enlarge laws 1) courts cannot enlarge statutes. legislative power Keeler v. Superior Court of Amador County viable fetus not human being for purpose of murder a) due process of law (fair warning) b) CA had opportunity to update law and did not enlarge (legislative intent) c) division of power between courts and legislative (more representative of people), more able to draft a complete law w/ clear exceptions and definitions d) Cass (judicial courts have some law-making ability in interpretation) ruled against anti-social behavior; as opposed to e) Keeler (principle of legality) said anti-social behavior should be controlled by legislature f) MPC 1.02 ambiguous language construed to further purpose of code 2) Handout Rogers v. TN establishes federal judicial law. ―no murder unless victim dies within a year and a day‖ upheld a) quarter of jurisdictions do not follow MPC -> defenses not codified, are judge- made. defenses in these systems are based strictly on precedent 3) equal access (racial) Bouie a) 14th Amendment only applied to S action. SC never ruled b) Legislative action created statutory right of equal access (Civil Rights Act). applied to F and S 4) Doctrine of Strict Construction a) ―construe penal statute as favorably to the defendant as its language and the circumstances … may reasonably permit…‖ b) history: mitigate elimination of benefit of clergy when execution was punishment for serious offence c) legislature response – pass laws to construe statutes to further general purpose of statutes d) Strict Construction still invoked selectively to protect fair notice McBoyle v. US vehicle != airplane e) F criminal law be related to F interest (enumerated powers) US v. Bass firearms transport must travel through IC i) principles: ambiguity resolved in favor of lenity, protection of federal-S balance Omissions analysis: no duty to act unless existed legal duty 1) case law: no crime for failure to act, unless exist legal duty to act. a) moral duty != legal duty. MPC 2.01(3) (same as CL) 2) rationale: difficulty of proving intent, large number of potential D, protecting individual freedom, harm normally less for omission than for act, moral duty != legal duty, many omissions and actors, determining causation, requiring danger to actor 3) exceptions: duty to act (below) 4) omission proximately causing harm may be criminal if existed duty Commonwealth v. Konz wife preventing diabetic husband from obtaining treatment. a) not charged w/ acts (removing insulin, preventing exit) b/c difficult causation (could have been saved until very last moment, decedent had opportunity to take social visitors) b) can lay spouse detect point at which victim is no longer competent and step in? c) no clear precedent of spousal duty in this S d) cannot hold spouse liable for omitting acts which victim can do himself . analysis: i) mental competence of victim ii) whether victim is danger to self or others e) ideal legislative action area 5) but if decedent made informed choice, no crime People v. Robbins diabetic wife resolved to not take medication 6) duty to act – only source of criminal liability with an omission a) sources: statute (file taxes), relationship (spousal, land owner, parental), contract (lifeguard, doctor, babysitter), voluntary assumption that precludes aid from others, creation of peril b) actor may be protected by good Samaritan laws 7) drug overdoses a) no duty to summon medical assistance People v. Beardsley friend left to wake up from morphine, but died b) duty exists if assume responsibility People v. Oliver took heroin addict home from bar, out of sight from others 8) failure to provide sustenance a) duty exists if decedent supported by D Regina v. Instan D lived w/ and supported by decedent, who died of gangrene and neglect b) if no contract to care for child or assume care of child, no duty to feed Jones v. US D entrusted w/ care of two children, one starved to death 9) omission from continuing futile medical treatment not crime Barber v. Superior Court of LA written request to withdraw all life-sustaining machinery a) w/h life support is omission, not act b) duty to act overruled by family's request c) to informed consent in the absence of competence: living wills, do not resuscitate orders, power of attorney 10) policy: active killing is worse b/c 1) worse motives 2) no personal risk 3) longer potential life 4) possibility of survival Voluntariness 1) generally, no guilt unless conduct includes voluntary act (willed bodily movement by the actor) 2) criminal act must be voluntary Martin v. S D brought onto highway by police 3) involuntary conduct – physically coerced movement (A push B), reflex movement, disease (seizure), unconsciousness (epilepsy, narcolepsy, stroke) 4) impaired conduct – concussion, sleepwalking, hypoglycemia 5) MPC 2.01 requires voluntary act for criminal liability, non-exhaustive list of involuntary acts (reflex, unconsciousness, hypnosis, not effort of actor) 6) involuntary act does not alleviate responsibility before losing consciousness People v. Decina seizure during driving -> negligent homicide 7) cannot convict for addiction to narcotics alone Robinson v. CA 8) criminally liable for actions while under the influence. irresistible impulse, disease not defense Powell v. Texas intoxication in a public place a) up to S to determine what voluntary means in criminal context (local solutions to local problems like alcoholism) Mens Rea (MR) "guilty mind" analysis: crimes require state of mind 1) broad meaning – committed act w/ ―evil mind‖. narrow meaning – commits offense w/ mental state set out in definition of offense 2) Common Law a) reasoning: blameworthiness of act, prevent permanent loss of property (just ask for it back), deterrence, no retributive need b) must have MR for specific criminal act Regina v. Faulkner stole rum, lit match and burned rum (not purposeful in burning ship) Regina v. Cunningham steals gas meter, poisoned mother-in-law next door (not purposeful in poisoning neighbor)) i) to show D foresaw danger, must use circumstantial evidence (sign on gas meter, smell gas after taking meter, previous experience w/ gas meters, expert testimony, removes self from danger). no asking D b/c 5th amendment c) felony requires existence of felonious intent Wilson v. S d) larceny requires trespassory takings (intent). MR level same as CL level. Morissette v. US taking discarded bomb containers. no mention of MR != no MR required. innocent e) specific intent – require a particular state of mind when committing crime. purposeful or knowledge. f) general intent – default requirement, minimum level of blameworthiness required for criminal punishment (battery, just need act), closer to MPC negl g) defense: mistake of fact i) specific intent – honest mistake ii) general intent – honest and reasonable mistake S v. Walker abducted son and passerby girl iii) general intent elements of specific intent crimes – ―knowingly lie‖ on gov't contractor job application. mistake re: answers are covered. held: not honest and reasonable mistake. US v. Yermian knowingly modifies ―lie‖, not ―within jurisdiction of federal agency‖ 3) MPC a) actus reus – criminal act. conduct (acts or omissions), circumstances (existing external facts), results (consequences of D's conduct) b) mens rea i) purpose - conscious object to engage in conduct or cause result ii) knowingly – aware of nature of conduct, that circumstances exist, that conduct will necessarily or very likely cause result iii) recklessly - gross deviation from standard of conduct (objective), requires subjective fault (awareness and conscious disregard of substantial or unjustifiable risk) iv) negligently – fails to be aware of substantial and unjustifiable risk that constitutions substantial deviation from standard of care. (―reasonable man‖ standard, objective) but measured against circumstances known to actor c) other sections i) 2.02 (3) reckless is default ii) 2.02 (4) mens rea applies to all material elements iii) 2.02 (5) can substitute higher mens rea iv) 2.04 no MR == valid defense 4) Analysis of Mens Rea under MPC 1. apply any terms which appear to all material elements (purpose, knowing, reckless, or negl) 2. recklessly is default 2.02(3) 3. give lowest mens rea needed for conviction 2.02(5) Mistakes analysis: legal or factual mistake 1) Overview a) CL: ignorance or mistake to existence, scope, or meaning of criminal law no defense b) mistake of fact negating required mens rea is defense c) mistake of non-criminal law is defense for specific intent crimes, no defense in general intent crimes d) rationale: certainty of law, concern re: fraud, promoting education of the law e) exceptions: mistakes that negate mens rea, authorized reliance on official statement of law, due process (Lambert defense) 2) Criminal Law a) mistake is generally no defense b) ignorance of law is no defense to general intent crimes S v. Fox purchase ephedrine from out of S i) MPC 2.02(9) – criminal liability not dependent on awareness of criminality of conduct c) misunderstanding statutory definition no defense, even on reliance on other officials People v. Marrero prison officer possessing .38 d) official misstatement no defense Hopkins v. S erects sign for notary public S v. Striggles gambling ―gumball‖ machine. lower court holdings, county attorney & mayor's opinion i) issues: discourage reliance on unofficial sources (non-judicial), no shopping for ―can-do‖ advisors, public record is easy to search e) arguments against ―ignorance is no defense‖: no deterrence, unfair and unjust f) rationale: issue of proof (5th amendment), judicial efficiency, presumption of knowing the law, discourage ignorance, uniform law, encourage compliance w/ high visibility prosecution g) CA v. Lambert felon registration. Lambert Defense 1. omission crime, no knowledge or warning to know 2. no notification, no opportunity to comply 3. law for convenience of law enforcement, discriminatory application 4. everyday behavior illegal (living in LA) 5. used for harassment when there are no other charges h) reforms i) MPC – unknown and unpublished statute, or reliance on erroneous official statement/interpretation of law, valid defense. 2.04(3)(b) (1) 2.04(1) ignorance or mistake of fact or law is defense if 1. law provides defense or 2. mistake negates MR of crime (2) 2.04(3) reasonable reliance on official misstatement of law. AD ii) reliance on official misstatement is valid defense (also can be entrapment) Cox v. LA 101 ft from courthouse Raley v. OH misstatement re: right to refuse to answer questions iii) NJ – no violation for unclear or undetermined statute if acting in good faith iv) mistake of fact negating MR is valid defense 3) Other Mistake a) mistake of law no defense in general intent crimes S v. Woods convicted for marrying after illegal divorce in Nevada i) bigamy is general intent offense ii) D showed intent – drove all the way to Nevada to get divorce Applying Mens Rea Analysis Negligence and Law of Homicide 1) CL homicide uses objective, reasonable man standard for MPC negligence DPP v. Smith drag policeman while attempting escape in car a. issue: failure to perceive risk, punishment of those who didn't know or understand, civil commitment w/o conviction to protect society b. Holmes – society requires minimum standard of care to function 2) def of ―negligence‖ – should be aware of substantial and unjustifiable risk exists or will result (objective) but based on what the actor knew and perceived (subjective) a. thoughtless or careless, as opposed to intentional, mitigates blame/punishment b. but people still need to be responsible for omission to think 3) MPC – no different levels of negligence, raises standard to recklessness 4) US limitation on capital punishment in murder a. first degree murder – poison, lying in wait, or willful, deliberate, or premeditated killing, or committed while arson, rape, robbery, or burglary b. all others murders second degree 5) murder types a. intend to kill or knew death would result b. intended to inflict grievous bodily harm or knew such would result c. actor manifested reckless indifference to death d. death occurred while committing a felony 6) manslaughter types a. intent, but in heat of passion b. reckless or negligent behavior c. commission of unlawful act not a felony Intoxication 1) voluntary intoxication no defense in general intent crimes DPP v. Majewski drunk man fights in bar, blanked out 2) specific intent crimes and intoxication a. VA not admissible. reasoning: deter drunkenness, voluntary intoxication == intent, PP against irresponsible alcohol use, PP against violence, proof of sufficient intoxication b. OH admissible to show incapability of forming intent/mens rea i. reasoning: weight of authority, fairness and morality, difficulty of measuring foresight of drunk, rarity of unawareness due to intoxication c. CA admissible if so intoxicated to be unable to form intent, burden on D 3) MPC 2.08(1) intoxication no defense unless it negatives element of MR a. 2.08(2) unawareness of risk b/c intoxication immaterial for recklessness Strict Liability analysis: prison time? moral wrong? public welfare offense? danger to society? 1) SL crimes requires no MR US v. Freed possession of hand grenades 2) public welfare offences only consist of forbidden acts or omissions, no MR (speeding, selling alcohol to minors) 3) felonies punishable w/ prison sentences ordinarily require MR Staples v. US 10 year penalty for possession of machine gun 4) grading elements – mistake valid defense if about fact which would negate criminality in specific intent crime a. no defense if mistake w.r.t. value of object stolen. value is not specific element of crime b. MPC – no defense if D guilty of another offense if facts were as he believed, but mistake will reduce grade and degree of offense to what he thought 5) independent moral wrongs – mens rea not required. punishment for wrongness of act eg, statutory rape, abduction, adultery 6) justification for SL: potential social harm is very great, D has adequate notice of wrongness of behavior, S has reasonable expectation of adherence, commonality of behavior (few have grenades), small punishments/dam to reputation, no reputation damage, malum prohibitum (wrong b/c it's prohibited, not inherently wrong), social danger, only affect grading 7) no need to show D has knowledge of federal agency jurisdiction US v. Yermian lied on security questionnaire 8) MPC 1.04(5) – only SL. for violations (no imprisonment) 9) determination of SL – legislature history, severity of penalty, protection of public, ―as broad as possible short of constitutional limits‖ Corporate Criminal Liability Xerox CL: no liability b/c lack of criminal intent liability if (MPC 2.07) majority 1) offense defined by statute; or 2) omission to discharge duty imposed by law (pay taxes); and 3) act conducted by employee within scope of employment, on behalf of corporation; and 4) authorized, requested, commanded, performed, or recklessly tolerated by board of directors, or high managerial agent S v. Christy Pontiac-GMC corp liable for specific intent crime if (common law) respondeat superior ―let the superior make answer‖ 1. agent acting within course and scope of employment 2. agent acting in furtherance of corp's business interest 3. acts were authorized, tolerated or ratified by management New York Central & Hudson River RR v. US act, omission, or failure of agent acting within scope of employment shall be deemed act of corporation problems: little analysis of corporate intent, no exception for maverick employee, encourage insulation and ignorance of higher management alternative theory: negligent hiring or retaining of employees Attempts Analysis: 1. act requirement 2. is there a required result? 3. how far down crime time line? 4. mens rea requirement 5. merger w/ completed crime; 6. defense: impossibility, abandonment 1) Act Requirement MPC 5.01(1), (2) a. rationale: criminal liability reserved for behavior, evidentiary function, differentiating daydreams (harmless) from fixed intentions (dangerous) b. attempt defined by reference to object of offence (no attempt standing alone) c. types: imperfect/complete – completed acts, failed to obtain criminal goal; incomplete – did not complete all acts d. MR in common law: generally purpose e. need overt act for attempt charge People v. Bowen and Rouse entry to victim's house not overt act when D was repairman f. no attempt unless ―gone beyond acts of ambiguous nature‖ People v. Coleman g. inviting child into car no overt act for gross indecency People v. Pippin h. changing mind creates no overt act Commonwealth v. Peaslee arranged combustibles, changed mind about lighting it i. having equipment (revolver, bullets, accomplice) not attempt, only preparation People v. Youngs j. tests for attempt i. overt act (CL) – very late into attempt of ii. dangerousness test – time, distance, necessary steps not yet taken 1. Hyde v. US nearness to completion, gravity of harm threatened, degree of apprehension aroused, probability of success iii. physical proximity test – will result in actual crime if not extrinsically hindered (no conviction for searching for clerk People v. Rizzo) iv. indispensable element test – focus on completed essential elements of crime v. Res Ipsa Loquitur – predict whether crime would occur based on manifested criminal intent (confession insufficient, require evidence of intent) vi. Probable Desistance Test: The point of no return – point beyond which it is not probable that D would turn back. subjective: D's mental state. Objective: would ordinary person have passed the point of no return? vii. what has been completed King v. Barker (Res Ipsa Loquitur) 1. rationale: commitment to criminal behavior is dangerous 2. difficulty: need to predict future behavior 3. solution: preclude confession, ensuring adequate evidence viii. MPC 5.01(2): substantial step ―strongly corroborative of criminal purpose‖ actor's conduct, in light of all circumstances, must add significantly to other proof of criminal intent 1. broadens liability for attempt 2. bill trap in ATM not substantial step US v. Harper k. Other Offenses i. liability for attempt require actual participation People v. Adami D solicit undercover cop to kill wife ii. solicitation is now an independent crime §5.02 l. issue: when should liability attach in course of completed crimes? false statement, bribery, larceny (unclear when harm will result) m. possession i. exclusive dominion and control over object and failure to disgorge ii. constructive: presence on premises and proprietary interest of premises 2) Mens Rea Common Law Majority MPC Conduct Specific Intent 5.01(1)(a) for completed act cases – purpose 5.01(1)(c) for incompleted act cases – purpose Results Specific Intent to do 5.01(1)(b) – purpose or entire evil thing ―belief‖ Circumstances Specific Intent or 5.01(1): Same mens rea whatever completed as completed offense - offense requires kind of culpability otherwise required for commission of an offense a. CL tradition: criminal attempt requires specific intent to do entire evil thing Thacker v. Commonwealth shooting at light in tent b. MPC §5.01(1) purpose for conduct and result, but mens rea is same as underlying crime i. (a) conduct: P ii. (b) results need ―purpose or belief‖ as MR. not a defined MR, ~= P iii. (c) P does or omits which would be crime if circumstances were as believed iv. inchoate crimes punished same as completed crimes (unlike CL) 1. exception 5.01(1) inchoate 1st degree felony reduced to 2nd degree c. minority: criminal attempt not require specific intent; undertaking substantial and unjustifiable risk of death == MR for murder People v. Thomas warning shots at rapist is attempted homicide d. rationale for requiring specific intent: punish behavior likely to result in hurtful consequences e. completed conduct but no result, two approaches i. punish to deter similar behavior and penalize intent ii. ignore and protect ambiguous conduct f. MR for attempt often higher than target offense: difficulty in proving attempt 3) elements of attempt: intent to commit act, act for purpose of committing a crime, failure to complete Ross v. MI 4) merger – merge attempt w/ complete crime. no separate prosecution Abandonment 1) CL: no abandonment defense (very high threshold act requirement) 2) MPC §5.01(4) abandonment is AD if it is a complete and voluntary renunciation of criminal purpose and [abandons effort or prevents it from being committed] accomplices still liable a. no abandonment if failure caused by physical resistance or external intervention ―not voluntary if motivated by circumstances…‖, postpone crime to another time or victim 3) voluntary failure to complete is valid defense Ross v. MI abandoning rape after discovering victim had daughter a. still liable for attempt, trespass. ―present virtue never wipes away past crimes‖ 4) rationale: encourage abandonment of crime, discourage carrying out of crime, differentiate victims (rape v. attempted rape) Complicity analysis: 1. act which assisted principal. 2. mens rea requirement 3. guilt of principal required? 4. defense of withdrawal. CL: liability of principal does not depend on other principals, accessory liability is derivative of principal's liability principal – actor in crime. either primary or assistant (1st v. 2nd degree) accessory (before and after) the fact – one who assists the commission of the offense, but not present during its commission; one who knowingly assists a felon to avoid arrest, trial, or conviction Modern: principals, accomplices, accessory after the fact (lighter punishment). all parties are guilty 1) Act Requirement a. physical conduct, psychological influence, or by omission where the person had a duty to act . no assistance, no liability b. trivial assistance (lookout) or useless assistance (principals didn't know), still liability c. must be an act (as little as encouragement) or an omission of legal duty d. absence of dissent may equal assent if silence ―encourage, embolden…‖ Rex v. Russell husband stands by while wife drowns self and kids S v. Walden mother stands by while child was beaten by bishop e. informing killer of victim's location == accessory before the fact McGhee v. VA telling lover husband's location, but not @ scene of crime f. principals did not know of help, still liability S v. Tally judge prevented warning sent out to victim g. NY statute for accomplice – solicits another, aids another, or fails in legal duty to prevent h. CL: innocent agent's manipulator is still principal; MPC 2.06(2)(a) i. dog, incompetent, minor 2) Mens Rea a. MPC 2.06 MR requires 1. intentionally engage in acts of aid or attempts to aid, and 2. act w/ culpability required in definition of offense he assisted. i. defense: MPC §2.06(6)(c): A person is not an accomplice if he terminates complicity prior to commission of offense AND (i) wholly deprive complicity of its effectiveness OR (ii) give timely warning to law enforcement or otherwise make a proper effort to prevent commission of the offense 1. standard easier than thwarting under conspiracy b. split in CL whether K is sufficient for accomplice complicity i. no complicity for selling counterfeit money. need purpose US v. Peoni A sells to B sells to C, who gets caught. A not liable for C ii. K is sufficient Backun v. US sold to 2nd D who planned to sell silverware out of S 1. accessory liability not only based on ―having a stake‖ but on ―aiding and assisting‖ the perpetrators iii. knowing partner has gun & willing to use == complicity in murder People v. Durham partner had gun, partner used gun in past, partner shot and killed cop while resisting arrest 1. Natural and Probable Consequences liable for natural and reasonable or probable consequences of any act he knowingly aided or encouraged 2. murder not N&PC of stealing car, but of crime spree w/ trigger-happy partner 3. rationale: encourages abandonment 4. not law in most Ss c. NY statute: accomplice - intentionally aid the criminal conduct of another, criminal facilitation – provides means or opportunity for commission of felony Common Law Majority MPC 2.06(3) Conduct Purpose/Intent or Purpose Knowledge (Peoni/Backun debate) Results Purpose Purpose Circumstances Purpose or object of crime 3) Guilt of Principal a. no need for principal's guilt Regina v. Cogan and Leak gangbang wife, principal believed wife consented, not guilty of rape. conviction for husband assisting rape upheld Lunt child legally incapable of stealing, but instigator still liable for receiving stolen tricycle b. opposing view: crime must have been committed by the principal (conviction not necessary) Dusenbery v. Commonwealth security guard watched couple having sex, did not rape girl himself c. majority view: MR of principal irrelevant to secondary actor's liability d. secondary party can be charged w/ higher degree eg. murder when principal kills in fit of passion i. not apply to non-murder offenses Regina v. Richards hit men hired by wife beats up husband, but less than expected ii. rationale: cannot be blamed for assault which did not take place e. exemptions i. Legislative exemption – not liable as accomplice to offense if statute is intended to protect that person Regina v. Tyrrell underage female aided and abetted underage sex ii. MPC §2.06(6) is victim of offense, conduct inevitably incident to offense. buyer of drugs not liable for seller's sale charge f. defense: withdrawal i. terminates complicity prior to commission and (wholly deprives it of effectiveness or gives timely warning to LEO or makes effort to prevent commission) g. complicity liability derivative? i. total derivative – requires P's conviction. difficulties: P dead, immunity, insanity, jurisdiction, can't be found, good defense. tradition CL ii. depends on P's act Cogan iii. depends on P's guilt, as demonstrated in trial for accomplice. P's actual conviction not necessary iv. MPC 2.06(7) ―claimed to have committed the offense‖ – P's guilt v. MPC 5.01(3) punishes conduct designed to help another, even if crime never took place, P didn't know of aid Conspiracy analysis: 1. agreement between two or more parties; 2. act requirement (likely very low); 3. scope and duration of conspiracy; 4. merger under MPC and some CL; 5. MR required; 6. defenses: renunciation agreement between two or more persons to commit an unlawful act or series of unlawful acts exception to hearsay rule – admission against interest by any party admissible against all parties; joint trial – favors prosecution; guilt w/o substantial step CL, MPC: act of agreement is sufficient for liability 1) inchoate offense a. cannot convict for both attempt and conspiracy (C is lesser included offense of A), can only be convicted for a single conspiracy for a single agreement even if multiple overt acts are carried out, can be convicted for multiple conspiracies if D entered into multiple agreements People v. Burleson practice run at robbing bank, then door was bolted at execution b. CL: nothing beyond agreement is needed. statutes require an overt act i. still very weak. ANY act qualifies, agreement can be informal and inferred from indirect evidence c. rationale: punish agreement to commit crime; aggravate penalties; alternative to complicity; higher danger of group crime, prevent actual crime d. can infer agreement from actions e. MPC: object of conspiracy must be crime. CL: no such requirement f. bilateral – must have actual agreement (no police informers) Regle v. Maryland informer, undercover agent, insane, and D. CL approach g. unilateral – subjectively believes he has an agreement S v. St. Christoper plan to kill mother while father was away at auction. MPC 5.03(1)(a) i. individual believing he has conspiracy is just as dangerous h. 5.03(3) one conspiracy if object of ―continuous conspiratorial relationship‖ 2) merger rule MPC 1.07(1)(b) ―can not be convicted of more than one offence if: … one offense consists only of a conspiracy or other form of preparation to commit the other‖ a. some CL say can convict for both crime and conspiracy b. split on whether can be convicted of both 3) MPC allows renunciation if it is a complete renunciation. MPC 5.03(6) 4) multiple conspiracies a. CL: one agreement for multiple offenses-> one conspiracy b. §5.03(3) – if you conspire to commit a number of crimes, it is one conspiracy as long as there is a continuous conspiratorial relationship MPC CL Conduct purpose specific intent Results purpose specific intent Circumstance commentary says this is specific intent or whatever the offense intended to be ambigious. P requires (not a lot of case law) or whatever offense requires conspiracy requires higher MR than attempt Impossibility legal impossibility factual impossibility attempt defense maybe (shot empty bed, liable) conspiracy no defense no defense 1) function a. surrogate for uncertainties on criminal purpose b. surrogate for entrapment defense c. eliminate waste associated w/ trivial ―crimes‖ 2) legal impossibility – ―act if completed would not be criminal‖ defense to attempt. a. two types. pure (incorrectly believes conduct is a crime), hybrid (goal is illegal, but commission is impossible due to mistake regarding legal status of some factual circumstance) 3) factual impossibility ―impossible to complete b/c of condition unknown to D‖. no defense. US v. Thomas having sex with dead girl still conspiracy to commit rape People v. Dlugash shooting victim in head after victim is already shot through chest. liable for attempted murder 4) policy – punish D for actions that would cause harm from his viewpoint, discourage similar behavior in future 5) MPC abolishes impossibility defense a. §5.01(1) criminality judged from D's PoV b. §5.05(2), 2.12 mitigation. permit grade of offence to be reduced if conduct unlikely to result in public danger c. §223.6 some crimes (receiving stolen property) defined to eliminate impossibility argument d. pro: unlikely people will be prosecuted for innocuous behavior, don't let criminals go too easily, D is dangerous (actual belief, willingness to finish job) 6) CL attempt: a. factual impossibility, no defense (shot empty bed, crack empty safe) b. legal impossibility, act would not be illegal if completed. act which does not violate any laws (ccw) (also covered by MPC) 7) completed offenses Bronston v. US president of company gave answer to wrong question during hearing. no liability 8) hypo: if drug dealer took shipment of non-cocaine drug, still liable. impossibility not defense in conspiracy 9) act unlikely to result in harm (prayer group), unlikely to find liability Conspiracy & Complicity analysis: accomplice must have stake in venture for liability. duration of conspiracy (Pinkerton v. MPC). defense: withdrawal 1) supplier liable if he knows his supplies are used for criminal purpose People v. Lauria prostitute using phone service. not guilty a. ―knows‖ if 1. supplier intends to participate or 2. inference that supplier intends to participate based on special interest in activity or aggravated nature of the crime (eg. selling grain to moonshiners likely not crime) b. intends to participate factors: inflated prices or quantity, goods w/ no legit uses, stake in outcome c. knowledge would be sufficient in some cases (felonies) but not here 2) rationale: society duty to prevent serious harms to society 3) complicity holds one person responsible for conduct of another; conspiracy imposes liability for agreement to commit crime 4) MPC 5.03 show purpose to promote or facilitate crime to convict for conspiracy 5) member of conspiracy is criminally responsible for crimes committed by co- conspirators in furtherance of their agreement. majority rule Pinkerton v. US brother liable but did not aid and abet distilling of alcohol while in jail a. Pinkerton Rule co-conspirator liable for ―reasonable and foreseeable‖ results in furtherance of conspiracy b. not accepted in all juris c. exception: acts not done in furtherance of conspiracy, not fall within scope of project, or could not be reasonably foreseen as necessary or natural consequence, offense requires conduct for commission MPC 2.06(6)(b), conspiracy ended (must actively disaffirm. MPC 5.03(6) d. analysis – very broad liability. must somehow constrain size of conspiracies People v. Luciano man putting girls in prostitute homes 6) while conspiracy is in existence, an overt act by one partner is act of all w/o new agreement. act must be reasonably foreseeable S v. Stein D suggested principal rob victim's house. principal was caught, took hostage 7) defense: actively disaffirm participation or inform LEO MPC 5.03(7) 8) MPC: single act, single violation->single penalty. rejects Pinkerton b/c no provision for MR. but acts may fall under multiple statutes (RICO, drug laws, interference w/ commerce, etc) a. ending criminal liability under 2.06 Conspiracy - Scope; compare RICO 20-5 Braverman v. US alcohol manufacturing violation o prosecution try to show multiple conspiracies o defense tries to show only one conspiracy o held: single conspiracy statute, single agreement -> single violation o MPC 5.03 conspires to commit multiple crimes, guilty of one conspiracy if crimes are object of same agreement or continuous conspiratorial relationship trial strategy o multiple conspiracies – multiple punishments, less responsibility of each member, multiple SoL o single conspiracy – one punishment, greater responsibility of each member, one long SoL o also determines joint trial, exception to hearsay rule structure of conspiracy o wheel – members of spokes are members of same conspiracy, w/o direct relation but have common interest (rim on wheel) US v. Bruno 80 people involved in large-scale drug smuggling operation. common interest -> all liable w/o common interest, series of small conspiracies - Brown helped others fill out false application to federal housing for money. no need to know names of other conspirators o chain – direct links between Ds o MPC 5.03(2) – do not need to actually know co-conspirators, but do need agreement w/ requisite mens rea and overt act (not 1st or 2nd degree felony), must be of same crime duration o MPC 5.03(6) renunciation of criminal purpose - 1) abandoned conspiracy and 2) took steps to thwart conspiracy's object o MPC 5.03(7)(a) continues until objective is accomplished or abandoned o (b) presumption of abandonment where no overt act committed for SoL o (c) renunciation 1) Tell coconspirators of noninvolvement OR 2) inform authorities of the existence of the conspiracy and his participation therein o CL: all objectives achieved, or when all members abandon all objectives can terminate participation by ―some affirmative act‖ to establish withdrawal limitations o Wharton's Rule when offense requires participation of more than one person, no conspiracy (adultery, incest, bigamy, dueling) o MPC 2.06(6) person not accomplice if involvement inevitable Gebardi v. US interstate transport of women for prostitution. D was man, accomplice was women o Rationale: jeopardy, legislative intent focus on suppliers compare with accomplice liability MPC §2.06(6)(c): Must 1) wholly deprive it of its effectiveness or 2) give timely warning to law enforcement authorities or 3) take proper efforts… easier than thwarting RICO RICO covers criminal organizations as well US v. Turkette leadership in criminal organization o punish infiltration and operation of legit business by organized crime, can seize assets, allow award of attorney fees o punish organized crime itself require proof of structure separate from activity and distinct from necessary (to the crime) organization common or shared purpose. function as continuing unit ascertainable structure statute o racketeering activity – act or threat involving murder, kidnapping, … o enterprise – union or group of individuals associated in fact o pattern of racketeering activity – at least 2 acts of racketeering activity, second within 10 years of first o unlawful debt – illegal gambling debt, leading money at usurious rate o prohibited activity – receive money, invest in (exception for stock purchase) from enterprise o remedies: forfeiture, civil claims for treble claims and attorney's fees application to conspiracy – loosens relation requirement. no need for members to actually know each other US v. Elliott o punishing agreement to participate in the enterprise, not agreeing to commit each of the crimes Justification/CL Necessity Justification – exception to prohibitions laid down by specific defenses. ―D did the right thing‖ o elements Commonwealth v. Markum abortion clinic trespassers guilty b/c legislature action, actors not faced w/ harm themselves i. actor faced w/ clear and imminent harm, not debatable or speculative ii. reasonably expect action effective in avoiding greater harm iii. no effective legal alternative iv. legislature not acted to preclude defense v. legislature has not ruled imminent act is legal no necessity defense if situation created by actor o statutory treatment of necessity MPC § 3.02 interpretation of federal law implies potential defense of necessity, preempts S law NY adds: require no fault of the actor, avoiding injury must clearly outweighs value of following law, S wins in close cases MPC 3.02 – whatever is legal cannot be evil; no imminence clause (encompassed by necessity); subjective standard for ―justifiable‖ if actor wrong about imminent harm (1) subjective intent – actor must believe action is necessary (1)(a) balancing test on necessity of act (no bar against homicides) (2) if actor was reckless or negligent in bringing about situation, still liable for offenses for actor's MR is sufficient no fault of actor, no legislative intent to bar defense NY – morality and legality are not the same, evil measured by ordinary intelligence and morality People v. Archer imminent injury, through no fault of actor, clearly outweigh the desirability of avoiding the injury more narrow defense o economic necessity not justification for criminal charge S v. Moe D took flour during Depression may be justification in extreme cases S v. Mayfield fraudulently obtained welfare aid to prevent nutritional deficiencies in her children. did not obtain ―benefit‖ of payment. did get payments. remanded o medical necessity – marijuana legislature intended to preclude necessity defense in marijuana possession S v. Tate quadriplegic w/ spasms opposing: legislature recognized benefits of marijuana (Controlled Substances Therapeutic Act allowed use of marijuana) S v. Diana relieved symptoms of MS. elements: 1. use is necessary to minimize symptoms 2. benefits are greater than harm prevented by law 3. no effective alternative 4. D bears burden as affirmative defense by 51% o Homicide is never justified by necessity Regina v. Dudley and Stephens eating boy on lifeboat policy objection: how to decide who to sacrifice? no playing God danger was not imminent pardoned by legislature (case-by-case determination) o hypo: B& E into animal testing facility i. not imminent harm, no idea how harmful chemicals are, legal alternatives, ineffective (just test next day) ii. legally sanctioned testing (licensed by FDA, required, gets grant money); social interest in having safe products iii. only liable for attempt or conspiracy (no completed crime) MR of purpose hypo: shooting down hijacked plane to prevent impact w/ Whitehouse and president o interests: protecting president & national injury greater than killing innocent hostages? o pivotal issue: value of president and national injury v. value of innocent lives Excuse – circumstances that make conviction and punishment inappropriate. no criminal blameworthy intent to punish Defense Against Aggression MPC §§ 3.04 one who is free from fault may use force to defend self or property against harm threatened by unlawful act of another if o cannot avoid threatened harm w/o using force or giving up some right or privilege o force used is not excessive compared to harm justified even if belief was wrong, if belief was reasonable Shorter v. People shooting through door knowing similar attacks, kills LEO o MPC allows subjective beliefs. but if unreasonable, and was reckless or negligent, and underlying crime MR requires R or N, liable justification defense is jury question People v. Goetz shot 4 youths on NY subway principle of personality (rights of individuals) v. principle of proportionality (force used must not be out of proportion w/ nature of threat) situations for use of force o self-defense – deadly force justified to prevent serious bodily harm o prevention of dangerous felonies – at CL, every citizen entitled to prevent any felony. modern felonies very different from CL felonies (non death penalty) o prevention of escape – CL: can use DF to prevent escape. modern: only for LEO and those aiding them o not justified in using deadly force to recover property or protect against threat of future harm o defense of habitation – CL: can use DF to prevent entry believed to cause robbery, burglary, arson, assault. even if DF not necessary to defend life. ―Make my Day‖ statutes immunize residents o defense of property MPC 3.06 (3)(a) duty to request desist w/ broad exceptions (useless, dangerous) prevent needless violence (those that can be stopped w/ warnings) (3)(d)(ii)(2) DF justified if use of nonDF would expose actor or another to substantial danger of serious bodily harm broad powers to individuals to use force to protect property requirement for retreat – majority requires no retreat: merely consider failure to retreat as circumstance. MPC 3.04 embraces retreat o requires retreat, give up possession, or abstain from action which he has no duty to do w/ complete safety o what qualifies as duty? civil or legal? (interview, meeting friends) o only applies to use of DF o only need to give up possession if other party has claim of right (robbery - > can use DF) o only if actor knows he can retreat w/ complete safety o ―castle‖ exception – no need to retreat in own dwelling. applies to intruder and other occupants o opposing view: be ―manly‖ and stand your ground o analysis: what you believe will happen if you don't comply, what are they asking you to do? (abstain or act) minority CL requires retreat w/ castle exception. but 1. only if completely safe. 2. only if victim should have been aware. 3. w/ firearms, rare to have safe retreat MPC limitations (force not justified) o resisting arrest, resisting force used by occupier when occupier has claim of right to property o deadly force only to protect against death, serious bodily harm, kidnapping or sexual assault o aggressor provoking DF is never justified in using DF for SD Objective/Subjective Defenses, Mistake MPC §§ 3.04, 3.06, 3.02(2), 3.09(2) Objective – belief held by reasonable person in D's situation o valid defense under CL o does race of attackers affect perceived danger? o black man hassled by police can raise self-defense & introduce expert witness S v. Brown cops regularly hassled minorities Subjective o no defense under CL, except imperfect self-defense (mitigate degree of murder to manslaughter) o SC adopted subjective definition of reasonable person S v. Leidholm consider unique physical and psychological characteristics of accused o reason: must act instantly and instinctively o concern: blacks getting shot b/c D had past ―bad experience‖ Mistake MPC 3.09 o imperfect justification negates MR, but no defense to manslaughter. only mitigation o excessive force will lack malice aforethought, so only manslaughter MPC has subjective standard, unless D was negligent/reckless in not knowing relevant facts. held liable for offenses w/ negligent or reckless mens rea Self Defense & Domestic Violence MPC §§ 3.04(1), 3.09(2) expert testimony on battered women syndrome (BWS) admissible to explain reasonable fear of death S v. Kelly stabbed husband with scissors imminence relaxed for BWS. testimony shows subjective belief of danger, and reasonableness of belief o NC SC rejects BWS relaxing imminence S v. Norman don't want to legalize spouse killing governor commuted sentence to time served. spent rest of life on probation policy: better to win in court b/c establishes precedent for BWS OTOH, can judicial system form rules to deal w/ such outrageous exceptions? con: justifies killing of husbands based on wife's testimony hypo: hostage to be killed in a week. take opportunity to kill terrorist? Feminist: social prejudice against women using force, standards based on male model and expectations can also argue insanity defense, but demeaning to feminists self-defense by battered child no defense Jahnke v. S still need imminence S v. Jane WA uses subjective standard for imminence Defense of Others mistake of fact does not protect defense of others People v. Young defends man against 2 plainclothes officers. o minority: reasonable mistake on part of D justifies actions MPC 3.05(1)-(2) D's use of DF to protect X o D has right to SD, if facts were as he believed o X has right to SD, if facts were as he believed o D believes intervention is necessary to protect X o X must attempt retreat if possible Duress MPC § 2.09 elements objective standard o D under imminent unlawful threat of death or bodily harm to self or others property damage, economic hardship or damage to reputation insufficient o D did not recklessly or negligently place himself in situation o D had no reasonable legal alternative o causal relation between criminal act and avoiding threatened harm threat must be imminent S v. Toscano threatening family not sufficient. also did not call the police MPC 2.09 – coerced by use or threat of unlawful force against him or another, which a person of reasonable firmness would be unable to resist. o treats duress as excuse o no need for DF, but must be force (no economic or reputation harm) o unlawful force – must be committed by another person, no force of nature o jury question on whether reasonable person is able to resist (including homicide) o reckless or negl put self in situation will limit liability to crimes of MR:N making no choice (actions not under conscious control) != making hard choice (kidnapped child) o don't want to allow criminals to immunize their agents duress is objective. no BWS US v. Willis husband put gun in D's purse during drug buy. BWS is subjective as defense to homicide. CL: no. MPC: maybe. accomplice to murder can rely on duress DPP Northern Ireland v. Lynch drove IRA members to attack o not apply to principle of 1st degree Abbott v. The Queen took active part in murder o duress available when another delivered killing blow, but not when Ds took part in killing Regina v. Howe overruled Lynch truly innocent would not be prosecuted contributory actions by D o no duress defense Williams v. S D told others of Hale's house, voluntary association w/ drug association no brainwashing/coercive persuasion defense US v. Hearst capacity for 2 months US v. Batchelor American POW in Korean war no situational compulsion defense. ie, mercy killing entrapment o elements gov't instigation inducement overstep bounds of permissibility D had no pre-existing criminal intent o persistent attempt to get D to facilitate heroin buy People v. Barraza no conviction o deter unacceptable police behavior o tended to punish people who were lured into committing crime by gov't instigation Sorrells v. US o no objective theory Sherman v. US must distinguish between trap for innocent and trap for criminals o reliance on gov't information valid defense Cox v. LA told to meet 101 feet from court house Raley v. OH relied on gov't statement of right to refuse to answer Insanity every man presumed to be sane. Insanity is AD, burdens on D. C to have D prove BRD. prosecutor still has burden of proving MR M'Naghten test (traditional CL) (purely cognitive) 1. defect of reason or disease of the mind; and 2. D did not know act was wrong (cognitive: narrow, understood act was morally wrong v. affective: broad, understood act was wrong by societal standards); or a. legally wrong (knew what he did violated the law) v. morally wrong (knew what he did was bad thing). eg: person told by God to kill 3. D did not know nature and quality of act irresistible impulse test: in addition to M'Naghten test. not liable if free agency was destroyed by the mental disease (acted w/ irresistible and uncontrollable impulse) o all or nothing o planning of crime no failure, as long as actor's ability to control conduct was substantially impaired o reliability of proof (cannot control v. does not control) product test (only in NH): excused for act if it was the product of mental disease or defect o too broad, minority view planning normally disproves insanity People v. Wolff planning to kill mother w/ ax handle. broadens M'Naghten test o D have enough mental capacity to know and understand act? o D know and understand wrongness of act? issues in real court room: admissibility of evidence (cognitive v. affective), jury instructions o jury bias: if victim could be anyone, likely to find guilty. victim unique, likely to find innocent MPC (adopted by all Circuit Courts) (broadened M'Naghten and irrestibible impulse tests – not responsible for conduct if, as result of mental disease or defect, actor lacked substantial capacity 1. to appreciate criminality (or wrongfulness) of actions; or 2. conform conduct to dictates of law 4.01 o narrowed after Hinkley. A person is excused if he proves by clear and convincing evidence that at the time of the crime, as the result of a severe mental disease or defect, he was unable to appreciate the nature and quality or the wrongfulness of his conduct. 18 USC 20(a) o broad b/c assumption that D did not have MR o Was there an impairment of his volitional controls? o Did he have affective, not merely cognitive knowledge? o Did he have a lack of substantial capacity to appreciate and conform his conduct? Note: not total incapacity, but merely substantial impairment of capacity. possible changes: abolish (3 states) clarify definition of mental disease (enumerate specific diseases) clarifying know/appreciate (just cognitive or affective as well) shift burden of proof (lower on P (preponderance, clear and convincing), shift to D) change or remove volition/control standard (couldn't or didn't control self?) clarify lack of substantial capacity add guilty but mentally ill verdict o same result as guilty. still imprisoned and may be executed change procedure for commitment after acquittal create ―guilty but mentally ill‖ verdict Analysis of Matthew Shepards 1. murder or manslaughter? murder. actor knew that death would result (left him strung up to die), reckless indifference (hitting small man many times, leave him tied up to the fence out in winter), commission of felony (kidnapping, robbery), intent to kill (asking Shepards whether he could read the truck's license plate, Shepards responded yes) 2. if murder, first or second degree? first: ―willful, deliberate, and premeditated‖ or ―in perpetration of any robbery‖ Death Penalty FOR AGAINST Effective as a deterrent (inconclusive) Ineffective as deterrent (inconclusive) Societal condemnation of murder Condemnation can be achieved in other ways Can be deprived of life with due process social mores (8th amend, other countries) Rare and arbitrary enforcement (racially discriminatory) Risk of erroneous convictions (poor counsel) final and irreversible no discernible effect on homicide limit number of appeals to cut costs High costs because of litigation (appeals) cannot exclude for cause jurors who have objections against death penalty discretionary jury sentencing in single proceeding did not violate due process McGautha v. CA DP sentencing was discriminatory against poor black Ds Furman v. GA ―cruel and unusual like being struck by lightening‖ o affirmed structured jury discretion (require finding aggravating factor), provide appellate review o rejected that death penalty was unC per se o invalidated mandatory penalty: individualized determination is necessary o Positions of the Judges nothing wrong w/ death penalty. evolving standards of decency have not yet invalidated death penalty substantive. Brennan and Marshall. death is always cruel and unusual, has no place in civilized S. S cannot impose more severe penalty w/o additional benefit (questionable), cannot arbitrarily impose such a harsh penalty procedural. Douglas, Stewart, White. discretionary capital sentencing statutes discriminate against poor, black. similar to being struck by lightening. wantonly and freakishly imposed S's response mandatory penalty (struck down b/c not individualized) require finding aggravating factor valid. narrows discretion mitigating factors list for D may not be exclusive verdict determined by guided jury discretion 15 S use bifurcated verdict and sentencing mitigating circumstances must be independently determined, list non-exclusive Lockett v. OH cannot convict b/c no mitigating circumstance fits statute Penry v. Lynaugh must allow jury to consider mitigating evidence no death penalty for minors (<16) Eddings v. OK, Thompson v. OK, S v. Valencia, Trimble v. S 17 year old okay tension: promote consistency and reduce arbitrariness v. include discretion and individualized determination. sentence verdict not need to be unanimous why use jury? 12 people instead of 1, reflection of social values, prevent political decision. but judge would be more experienced decision maker, more consistent decisions MPC o criteria for inclusion: intent to kill (or use lethal force), extreme indifference to value of human life 1. identify of victim (police, fireman, judge, prosecutor, witness, elected official 2. accompanying criminal offences 3. hazardous conduct 4. pecuniary motive 5. hindrance of law enforcement 6. unusual cruelty or depravity 7. in custody 8. prior criminal conduct 9. prediction of future criminal conduct 10. overruled premeditation-deliberation formula o criteria for exclusion: under 18, mentally retarded o must consider any evidence in mitigation no C requirement for comparative review Pulley v. Harris judge has authority to sentence death in spite of jury recommendation AL v. Judith Neelley many aggravating circumstances, no mitigating circumstances o upheld AL v. Neelley balancing aggravating v. mitigating circumstances, no insanity. pardoned 2 days before governor left office appeals court's duties o review case for error which adversely affected right of accused o consider whether death was proper sentence i. was sentence imposed under influence of passion, prejudice, or other arbitrary factor ii. whether independent weighing of aggrav. and miti. factors indicate death was proper sentence iii. whether death is excessive or disproportionate to penalty imposed o explicitly address each of three question for every death case it reviews (compare w/ other cases in the S) also subjects accomplice to death penalty if participation manifested extreme indifference to value of human life Tison v. AZ weakling or follower not subject to death People v. Gleckler, S v. McIlvoy diminished responsibility – majority: allows evidence of mental abnormality to reduce sentence, consider provocation defense, intoxication the cases in which mental abnormality is present is normally the ones that need death the most, cannot consider non-statutory aggravating circumstances Miller v. S kills women taxi driver same day released from prison Race/Death Penalty alleged discriminatory application of death penalty not grounds for reversal, death sentence not disproportionate to other death sentences McCleskey v. Kemp o EP claim: purposeful, invidious discrimination o 8th Amend claim: cruel and unusual when racially discriminatory o reasoning: would apply to all punishments w/ discretion in sentencing, statistical deviation not sufficient: must show discriminatory intent and purpose, don't want to stop all DP when victim was white, sentence not disproportionate to others in S (not discriminatory), correlation not causation, existence of safeguards (jury selection, evidence admissibility), DP is legislative decision o statistics show white victim midrange crimes much more likely to get death penalty o history and opportunity for racist application of death penalty o Furman theory: as long as action is unexplainably arbitrary, unC Possible Reforms 1. judge combine an objective equation (victim, aggravating factors, mitigating factors) and jury's findings 2. have victim's family decide punishment 3. abolish death penalty. irreparable. or at least stop using until system is fixed 4. increase safeguards, get qualified attorneys 5. decrease safeguards and let people speak 6. create special death court which only reviews death cases, w/ paid attorneys and experts 7. blind jury (technical problems: victim's families, autopsy photos, how to affect prosecutors and judges) Intentional Homicide MPC §§ 210.2, 210.3 o Murder (CL categories. no single MR, just death eligible crimes) actor intended to kill, or knew death would result actor intended to inflict grievous bodily harm, or knew such harm would result actor manifested reckless indifference (depraved heart) death occurred while actor engaged in commission of felony o Degrees of Murder first degree – killing w/ intent to kill. intentional, willful, deliberate, and premeditated. capital punishment eligible must have motive, special technique, or planning courts split on how much planning time is required length of time is irrelevant Commonwealth v. Carroll may let brutal murders off. must have planning People v. Anderson 50 stab wounds, chasing victim around house gives juries power of mercy in extreme cases second degree – all other murders PA Statute willful, deliberate and premeditated effect on severity of punishment not all S have distinction between first and second degree examples: Purpose or knowledge to kill while beating, Purpose or knowledge to cause grievous bodily harm, Recklessness plus: depraved indifference. argument for punishing random murderers as well – more dangerous to society o HOPSAP: Heat of Passion/Sudden Adequate Provocation o Provocation Defense reduces murder to manslaughter (CL uses objective standard) striking D, angry words followed by assault, sight of friend or relative being beaten, citizen being unlawfully deprived of liberty, man in adultery w/ D's wife o no objective provocation, no reducing of level Freddo v. S man particularly sensitive to swearing is irrelevant o Non-Provocation Defenses words alone, gestures, trespass to property, misconduct by child or servant, breach of contract o another approach: non-categorical. passion which might render ordinary men liable to act rashly or w/o due deliberation Maher v. People rejects fixed categories of provocation o majority rule: D acted in heat of passion – D less blameworthy provoking event was ―legally adequate‖ – no fixed categories provocation sufficient to excite passions of reasonable person – sliding scale: greater the provocation, stronger the defense o Cooling time (HOP) – negates provocation D's passions must have not abated passage of time sufficient for reason to be restored. CL: any passage of time is sufficient time when a reasonable person would have cooled off S v. Gounagias taunted for being drunk and sodomized, then killing attacker. cooling time sufficient to find no provocation defense opposing: no requirement of sudden rage for provocation defense People v. Barry wife taunt husband w/ sexual attraction to another man Mathew Shepards: possible passionate state – homosexual overture reminded of childhood sexual abuse o can consider temperamental, not physical characteristics or mental abnormalities of D in provocation defense Bedder v. DPP 18 year old impotent youth killed prostitute People v. Ogen policy to only accept objective provocations (discourage vigilante, discourage masculine aggressiveness) People v. Cassassa kills neighbor living in below apartment. not insane enough for defense must apply objective standard of ―extreme emotional disturbance w/ reasonable explanation‖ (some Ss) NY places burden on D to prove >= 51% (affirmative defense) o rules benefit men, who are more likely to fly into homicidal rage, and because men commit crimes more often. too harsh (objective standard, cooling time); rules benefit crazies who can't control themselves o mistaken provocation is defense S v. Yanz mistaken adultery o mental abnormality admissible for ―imperfect‖ justification People v. Wells overreacted to threatening conduct. reduces murder to manslaughter reasoning: admissible for homicide -> admissible for self- defense/provocation valid defense in England Regina v. Byrne ―state of mind so different from normal that a reasonable man would term it abnormal‖ burden of proving ―extreme emotional disturbance‖ is preponderance o MPC – no murder degrees. distinctions between murders: list of aggravating/mitigating circumstances, subjective, reasonable as judged by actor in circumstances, nothing about timing; leave punishment to judge. not followed in all Ss o 210.3(b) mitigate to manslaughter if 1. extreme mental or emotional disturbance (subjective) and 2. reasonable explanation of disturbance (objective) o provocation list not exclusive, not need to be sudden/immediate Unintentional Homicide MPC §§ 210.2-210.4 recklessness plus murders (2nd degree) (Extreme Recklessness/Depraved Heart Murder) o recklessness is so high but D didn't care. just as bad as murder o eg. shooting into crowded room, driving down crowded sidewalk, playing Russian roulette, omission of legal duty (failure to feed child) o MPC 210.2(b) considered murder Manslaughter. homicide w/o malice aforethought or justification/excuse o heat of passion (voluntary manslaughter) o actor engaged in reckless or negligent behavior, less than murder but more than civil negligence (involuntary manslaughter aka negligent homicide) o death occurred while actor engaged in unlawful act not amounting to felony (involuntary manslaughter) mentally disturbed (not insane) and lacked moral understanding, reduce to 2nd degree People v. Wolf child killing mother w/ ax handle o not full defense, but mitigation D can present psychology defense relating to MR, otherwise can only hope to reduce charge or sentence subjective analysis of intoxication. drunk driving not automatically 2nd degree. not necessarily implied malice Essex v. Commonwealth D was so drunk he didn't hear lady next to him screaming o lack of implied malice – not purposeful, cruel act committed by one individual against another o voluntary intoxication no defense to homicide charge o to determine existence of malice: quality of D's conduct, likelihood of causing death or great bodily harm, volitional or inadvertent o held: no malice, no 2nd degree murder objective analysis of intoxication. depraved murder: objective consideration of circumstance People v. Register fired gun in crowded bar after argument sufficient for depraved mind murder (mental – recklessly; voluntary act). D's intoxication not negative elements o malice found in getting drunk culpability for murder. need intent to inflict harm, or recklessness or negligence of a high degree of callousness or indifference to life o Commonwealth v. Malone Russian Roulette killed friend. gross recklessness that reasonably can cause death == wickedness culpability for involuntary manslaughter. more negligence than ordinary tort o Commonwealth v. Sostilio wanton or reckless conduct causes bodily injury == assault and battery. manslaughter is battery that causes death o Commonwealth v. Agnew driving tractor pulling unlit disk. car hits disk. no disregard, took steps which turned out to be inadequate modern statutes o Northington v. S allowed 5 month daughter starve to death. no malice (or murder) by mother. no indifference. indifference applies to human life generally, not one specific person. o MPC: manslaughter if recklessly committed; negligent homicide if ―negligently‖ committed. negl not enough for homicide (must consciously perceive risk) SF dog mauling case did D know there was potential for loss of life? have been complaints of dogs menacing other people physical ability to control two 100 lb dogs, no muzzle on dogs D knew the dogs were dangerous (trained to be attack dogs, bought dog from prisoner who trained them) charge D w/ manslaughter or second-degree murder (no premeditation or planning, or fit into other categories (felony murder)) still need malice aforethought result: convicted woman of second degree murder, convicted husband of manslaughter (reckless to have dangerous dogs in apartment, accomplice liability for reckless owning and exercising of dogs in apartment common areas) Felony Murder (FM) MPC § 2.10.2(1)(b) analysis: 1. was there a predicate felony? 2. was there a homicide? 3. does homicide satisfy requirement of FM (SL or in furtherance of goals) History o person and all accomplices who commits any felony are guilty of murder if death occurs during commission or attempted commission of the felony. strict liability o to limit application: inherently dangerous felony, natural and probable result of death, felony is independent of the homicide o rationale: criminalizes behavior not otherwise be an independent homicide offense (no need for culpability, easier to convict), upgrades homicidal behavior (negligent killings), added deterrent to dangerous felonies, reinforcement of societal norms (condemning crimes that cause death) o no ―heat of passion‖, no self-defense defenses o accomplice liability not restricted by accomplice MR Judicial rejection of rule o People v. Aaron rejected FM. only raises established murder to 1st degree, malice is still required element (but can be inferred from D's act likely to cause death) o S v. Goodseal possession of firearm by felony inherently dangerous if circumstances are sufficient. helping topless dancer rob John, using pistol in menacing fashion. guilty o S v. Underwood overruled Goodseal. determine dangerousness of felony in abstract, not on circumstance. possession of firearm by felon not dangerous in abstract. use of firearm is o approaches: enumerated list of crimes (NY), felonies inherently dangerous to human life (Underwood), felonies dangerous in context (Goodseal) o rationale for rejection: should only punish felony w/ inherently dangerous to human life. want to punish MR to harm others. o issues: duration of felony? how much causation needed? punishing for murder D didn't commit doesn't deter, merger: no FM if felony is dependent on homicide (otherwise, any homicide would incur FM) o MPC – rejects FM rule b/c imposes most strict penalty (1st degree murder) based on SL. ordinary criminal homicide, causation, and complicity is enough. emphasis MR criminal homicide constitutes murder if committing robbery, rape, deviate sexual intercourse by force, arson, burglary, kidnapping, felonious escape (presumes recklessness and indifference) 210.2(1)(b) rebuttable presumption of R. P has to prove R+ beyond reasonable doubt o most juris keep FM, but limit types of felonies and provide AD Must give jury instruction on lesser homicide offense if applicable o rationale: discourage jury from convicting for impermissible reason Distribution of Controlled Substances o Heacock v. Commonwealth affirmed FM of cocaine supplier to drug party. supplier prepared fatal mixture (overdose) o Sheriff, Clark County v. Morris limited circumstances where drug supplier can be convicted of FM quantities are inherently dangerous, immediate and causal relationship between conduct and death, relationship more than sale of drugs and include involvement in ingestion of lethal dosage o S v. Randolph declined to embrace FM Attempted FM Amlotte v. FL elements: perpetration of enumerated felony, intentional overt act, which could but did not cause death Felony Murder II MPC § 2.10.2(1)(b) FM not apply to accomplice who initiates gun battle and gets killed People v. Antick People v. Taylor cannot convict accomplice of FM if principal is acquitted collateral estoppel Homicide committed by non-participant o general CL: felon only responsible for homicides that were committed in furtherance of the felony, by person acting as agent o proximate cause S v. Canola D convicted of FM for beginning chain of event leading to accomplice shooting victim, who shot and killed accomplice o agency theory Commonwealth v. Redline killing must be done by D or accomplice in furtherance of felony o People v. Washington FM for death of accomplice killed by victim of robbery. no conviction. FM only applies to killings done by D or accomplice o modification: only hold D liable for killings done by D or accomplice o dissent: felons put events into motion accomplice liability o majority: liability for your or your agent's actions (not 3rd parties) o minority: liability for deaths proximately caused by action, but must be killed by principal 3 ways to convict in FM situations o ordinary complicity (natural and foreseeable consequence), conspiracy, FM analysis: must have 1. homicide 2. predicate felony which caused death 3. co- felons engaged in felony Duration: attempt to commit through immediate flight thereafter Modern Statutes o NY – D or another participant causes death of person not a participant MPC – no FM but reckless indifference can be presumed if death caused during an enumerated felony w/ no FM, use R+ 2nd degree murder and N&PC or Pinkerton for accomplice liability Misdemeanor Manslaughter – death resulting from commission of misdemeanor - > liability for manslaughter. SL o not in MPC Rape CL made it very difficult to obtain convictions. changing social values reflected in changing laws WI Statute (repealed) gender specific focus on victim's behavior (require resistance/threat of serious violence in addition to lack of consent); unlike other crimes (trespass, robbery, arson) spousal exclusion limited to vaginal penetration absence of MR on part of D (strict liability) no grading: just one offence w/ severe punishment (traditionally includes death) procedural requirements: special jury instructions (corroboration requirement, prompt complaint (short SoL)) all these factors lead to historically low conviction lack of MR focused inquiry on: 1. Amount of force (more force than required to accomplish penetration) 2. Resistance of the victim – must be extreme unless weapon was used by rapist 3. Lack of consent Elements to be Proved 1. force or threat of force 2. intercourse against will of victim 3. no consent by victim MPC 213.1, reflects early policy of protecting D (men) 1. Breaks new ground in 3 ways: expands behavior which constitutes rape—vaginal, oral & anal penetration provides degrees for rape (1st, 2nd, gross sexual imposition) focuses on actor's behavior rather than internal thoughts—objective criteria. Focus on use of force, not consent/resistance. 2. MPC does not eliminate special procedural rules. Retained a prompt complaint requirement in order to limit opportunities for blackmail (since, clearly, this is the biggest problem with rape today) §213.6(4) – 3 month statute of limitations § 213.6(5)—requires corroboration of victim's testimony Consider who was making the rape laws – old wealthy men When you see what the drafters thought were the problems (blackmail, bitter pregnant women), it is almost laughable MPC has not been the model used. It is outdated and too close to being part of the old common law views. modern reforms 1. sweep away procedure requirements (corroboration, jury instruction, SoL, victim's history) 2. focus more on defendant's actions, MR 3. remove ―utmost resistance‖ requirement suggested reforms gender-neutral, less focus on victim and more on D expand coverage to all penetration need more than 1 offense (different levels of punishment) o harm, amount of force used, STD/pregnancy modify consent requirement (presume non-consent, make consent AD instead of element) Reasonable Doubt C outer bound on S's criminal procedure criminal conviction must be based on proof beyond a reasonable doubt (BRD) for every element of crime In re Winship cannot shift burden or persuasion to D by renaming elements into affirmative defenses Mullaney v. Wilbur malice aforethought not conclusively implied unless disproved by D by preponderance o reduce likelihood of erroneous conviction, symbolize greater significance of criminal conviction o substance-oriented, not formalistic (don't care if it's called a defense) o policy: worse to have too heavy punishment than too light o liberty interest in not being convicted of greater crime, need to protect legitimacy of criminal justice system affirmative defense burdens can be shifted to D Patterson v. NY killing wife's lover o distinguished Mullaney: allows renaming of crime elements to AD o shifted burden of production and persuasion (normally preponderance of evidence) o formalistic-approach. concerned about S eliminating marginal defenses prosecutor (insanity, lack of mental capacity, reliance on official statement of law), separation of S and federal o what if shift all burden onto D? murder for physical assault and dead body o judicial check on S legislature: C limits on S's ability to redefine crimes (guilty when indicted, unless proven innocent) o federalism concern: criminal punishment is realm of S MPC 1.12 AD only shifts burden of production MPC 1.12(2)(a) no disproof of AD needed unless exist evidence supporting such defense. only shift B of production, no shift of B of persuasion MPC 2.04(4) shifts defense to D, sets burden of persuasion as POE analysis: o procedural/formal procedure looks at identified elements of crime in statute o substantive procedure looks at punishment and historical background of state crime application of Patterson. all evidence must be considered in determining ―beyond reasonable doubt‖ Martin v. OH issue: aggrevated murder -> lack of self-defense. wife killed husband who'd assault her before ―acquit if there was preponderance of evidence that D did not precipitate confrontation, had honest belief of imminent danger‖. D convicted. o D needs to prove SD by preponderance of evidence, P needs to prove malice beyond reasonable doubt elements enhancing punishment past statutory max must be alleged and decided by jury, BRD Apprendi v. NJ statute allows judge to tack on years for ―hate crime‖ o sentencing factors okay if they keep sentence within statutory limits o next battle: drug sentencing, death v. life imprisonment sentencing can raise floor punishment, not ceiling Harris ―brandishing‖ gun in drug transaction w/ police Presumptions certain facts are held to certain treatment as proof of other facts o some facts which need to be proved (need evidence) o presumption regulates relation between those facts (which need to be proved) and other facts (presumed facts) o eg. presume properly stamped and addressed letter arrived at destination o eg. presume possession of illegal substances on D-owned property o enter trial by judge instruction to jury or statute definition (R+ murder under MPC) C Issues 1. Presumption may be undermining the function of the jury to make the actual findings 2. Presumption of innocence could be undermined 3. Presumption could undermine the requirement of proof beyond a reasonable doubt. 4. presumption may be used to undermine the political process (presumption of guilt on possession of illegal substances cannot have presumption of malice or obligation on D to disprove Sandstrom v. MT presumes a person intends ordinary consequences of his voluntary acts. reversed conviction o conclusive presumption – unC o rebuttable presumption – shifting burden of persuasion. invalid under Mullaney, valid under Patterson o permissive presumption, shift in burden of production – C permissible MPC 1.12(5) existence of fact must be submitted to jury unless evidence negatives presumed fact Proportionality & Death Penalty policy: focus on objective factors lends credibility o unaddressed: wide MR in rape, racism in sentencing o 8th amend implies national standard in criminal punishment death is excessive punishment for rape Coker v. GA no death of victim, public sentiment (social mores, juris differences, low jury imposition of DP) o strong dissent: prison term no deterrence, substantial damage to victim and society, aggravating factors, criminal history, no other DP b/c of recent prohibition, S's jurisdiction (allow experimentation) death is excessive for non-participatory FM Enmund v. FL victims shot, perps returned fire. D does not kill, attempt to kill, intend to kill, or intend use of lethal force o status among jurisdictions, low actual application, societal rejection (actually DP recipients), save ultimate judgment for 1st degree murder o purpose of DP: retribution and deterrence major participation in felony == reckless indifference to human life -> DP eligible Tison v. AZ break father out of jail, victims murdered while D getting water. deaths would not have occurred w/o D's assistance o dissent: D did not kill, should survey how often penalty is imposed, minors, retards not exempt from DP Stanford v. KY age > 16 -> DP eligible Penry v. Lynaugh mentally retarded -> DP eligible o DP rarely imposed on young offenders b/c rarely appropriate. lack blameworthiness, exclusion will not reduce deterrence to other prisoners, including will not deter those under 18 o against DP on retards: death is always disproportionate to blameworthiness, no deterrence Proportionality & Imprisonment life sentence not cruel and unusual for $230 in fraud Rummel v. Estelle repeat offender, refusal to follow society's laws, punishment is legislative prerogative o no grossly disproportionate punishment, but SC will defer to S cannot use balancing test on proportionality question. punishment determined by legislature Hutto v. Davis 40 years for 9 oz of marijuana reject Hutto. use 3 factor test. Solem v. Helm 6 prior convictions. life imprisonment w/o parole. 1. gravity of offence 2. sentence compared w/ similar crimes within juris 3. sentence compared w/ other juris life imprisonment w/o parole not cruel and unusual for large cocaine possession Harmelin v. MI national drug problem, no C clause against disproportionate clause, crime is difficult to detect o no required mitigation for life in prison w/o parole o mandatory sentencing valid (unlike DP) o dissent: most severe penalty, equal to murder and worse than rape and assault, prior decisions imply proportionality clause, other S's laws (no other S has mandatory life sentence for first-time drug offender) ―hard and painful labor‖ cruel and unusual punishment Weems v. US sentenced under Spanish Penal Code overruled Harmelin People v. Bullock life imprisonment violates cruel and unusual punishment 40 years w/ no parole too harsh for consensual sex w/ minor. compare w/ other jurisdictions S v. Bartlett close to maturity line, presence of consent, less grave than (second degree murder, sexual assault…), immature young man associated w/ younger peer group Quick Review Public Policy social control v. moral fairness Duty to Rescue pro: social duty to each other, good Samaritan protects actors against: expansive scope on liability, how much punishment to give? exceptions render statute useless no risk to actor (physical or financial), no need to violate ―other duties‖, reported to LE, assistance summoned by others Insanity Defense Federal Circuit: AD. burden of proof on D, by clear & convincing evidence For: no utility in punishing, unjust to punish people w/o MR, no abuse (not used often, jury decides on fraud, results in treatment not freedom), burden on D, defendants given treatment before release Against: open to abuse, many insane people in prison, retribution, general deterrence issues: what counts as insanity, exact composition of insanity, burden (on who, how much), what experts can testify to, misclassifications of ―mental illness‖ (homosexuality), insane no more deserving of acquittal than normal people (eg. poor social-economic background) Death Penalty racism, lack of representation, rampant errors in trials, political complications, finality of sentence Self-Defense BWS to relax ―objectively fear for her life‖ not useful for ―imminence‖ Rape historically different: focus on victim male notions of what is objectively reasonable behavior sexual freedom of both parties require resistance to prove non-consent presumption of consent Reasonable Doubt greater power of the state uphold respect of judicial system
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Reinaldo Maiz
Reinaldo Maiz, 22, remembers nothing of his motorcycle crash three years ago, just two blocks from his Cooper City home. Paralyzed from the waist down, he was forced to give up his job as a Broward County firefighter. ¿When I got home, I was a little down,¿ he said. ¿Then I realized, at least I... Reinaldo Maiz, Courtesy


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Twin spires, multiple members: Lismore's St. Anthony Catholic Church marks 100 years
LISMORE -- It's been 100 years since Mary Ann Spieker's father, Herman Wieneke, helped build the distinctive twin-spired St. Anthony Catholic Church in Lismore, but neither the stately structure nor Spieker's reliance on it as her faith home are visibly diminishing with age.
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Who spiked the punch? Vodka or rum, mixed drinks or shots, get recipe ideas for your next party.
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