Criminal Law
James
R. Elkins
College of
Law || West Virginia University
Fall, 2009
Archives
Getting Started
Tuesday, August 25,
2009: Introduction to Reading Criminal Law Cases
Background
Reading: On Criminal Law and the Criminal
Justice System
[Note: The designation "background reading" indicates that the material provides a broader context for the assigned cases and other material. These "background readings" will not be discussed in class and you are not responsible for these readings on the final examination.]
West Virginia's Criminal Code §61-2-1 through 61-2-6
[Note: You should begin to familiarize yourself with the law library. A good way to begin to do that is to locate the West Virginia Statutes in which the state's criminal code ("Crimes and Their Punishment") is located. The West Virginia Code is also available on the web. I recommend that you bookmark the site for future continued use.][You should, for use in class, print out the West Virginia Code provisions on homicide, §61-2-1 through 61-2-6.]
People v. Eulo (Dressler: 242-248)
[Note: All assignments in Joshua Dressler, Cases and Materials on Criminal Law (4th ed., 2007), the course casebook, will be designed with the use of the black/right/arrow
Barber v. Superior Court (Dressler: 140-145)
For class discussion: How does the court in Eulo and Barber go about deciding what to do in these cases?
For Further Study (Criminal Law and the "End of Human Life"): (Dressler: 690-707); "The End of Human Life," in Joshua Dressler, Understanding Criminal Law 506-508 (5th ed., 2009)] [In the "For Further Study" section of the assignment you will be provided references to further materials (including links to websites) that may provide assistance in your study of the assigned material. These "for further study" materials and readings are not required reading.]
[Guidelines for Terminating Treatment -- University of Michigan Health Services Policies and Procedures and Guidelines] [Education for Physicians on End-of-Life Care -- Institute for Ethics, American Medical Association] [In the Matter of John Storar & In the Matter of Philip K. Eichner -- two New York cases decided in an opinion by Judge Wachtel]For the most recent, most infamous legal battle on the "end of life" legal non-criminal issues, see the Terri Shiavo case: Wikipedia
[Note: The websites found in the "related web sites" section of the assignment are not required reading. These materials are provided for students who want to relate the assigned reading to journalistic accounts of the legal doctrines and to related materials for further study. You will not be responsible for the material in the "related web sites" on the final examination. The material on which you will be examined at the end of the semester is designed by the black arrow:
People v. Superior Court (Du) (Dressler: 50-53) [Assigned; we
did not discuss the case in class]For class discussion: If the events in Du happened in West Virginia, drawing on the provisions of the West Virginia Code's homicide provisions §61-2-1 through 61-2-6 would you, as a prosecutor, charge Du with 1st degree murder, 2nd degree murder, voluntary manslaughter or involuntary manslaughter?
Thursday,
August 27, 2009: First Degree Murder: Premeditation & Deliberation
First Degree Murder: Defined [West
Virginia statute, Guthrie, and WV Public Defenders Jury
Instruction]
State of West Virginia v. Schrader (Sup.Ct. App.,
W.V., 1982) [on-line
edited text]
172 W. Va. 1; 302 S.E.2d 70; 1982 W. Va. LEXIS 692 (1982)
["First Degree Murder is committed when any person does willfully, intentionally, deliberately, premeditatedly, maliciously and unlawfully slay, kill and murder another person." West Virginia Criminal Jury Instructions, WV Criminal Law Research Center, West Virginia Public Defender Services, 6th edition, 2003][The first thing you will want to do is to check the Public Defender Services jury instruction against the definition of murder found in the West Virginia Code.]
State of West Virginia v. Guthrie (Dressler: 248-252) [Justice
Workman's concurring opinion in Guthrie]
Midgett v. State (Dressler: 253-255)
State
v. LaRock (Sup.Ct.App., W.Va. 1996) [on-line
edited version of LaRock for class discussion]
For discussion of Schrader, Guthrie, Midgett,
and LaRock review the West Virginia Jury Instructions:
Premeditation
& Deliberation
[Note: As part of the class reading assignment you will often be asked to read and review jury instructions used in West Virginia and in other jurisdictions. Until this summer, the "proposed" jury instructions to be used in West Virginia criminal cases could be found on-line at the West Virginia Supreme Court of Appeals website. The current "proposed" jury instructions have now been removed from the Court's website pending review and revision of the jury instructions. The newly revised instructions will probably not be available until after you have finished the course. The links to the jury instructions now under review, along with revisions proposed by students in an "advanced criminal law" course will be found on at the West Virginia Homicide Jury Instructions Project website.]
West Virginia Criminal Jury Instructions, WV Criminal Law
Research Center, West Virginia Public Defender Services, 6th
edition, 2003 [on-line
text]. You will need for class purposes, pp. 64-81,
94-121 of the jury instructions. [You can print out the pages
you need of the .pdf file by directing your printer to print,
pp. 73-90, 103-130, or so I am instructed by one of your colleagues.]
We'll be making reference to these jury instructions in class.
The "proposed" jury instructions drafted by the West
Virginia Criminal Law Research Center for the West Virginia
Public Defender Services are all the more important given the
decision of the West Virginia Supreme Court to remove from the
Court's website the court-sanctioned "proposed" jury
instructions for review and revision.
For Thursday's class, read the Public Defender Jury Instructions
on: lst Degree Murder, and the Premeditation & Deliberation
elements of 1st degree murder, at pp. 64-72 of the Criminal
Jury Instructions (6th ed.)]
For
Further Study (Premeditation & Deliberation):
Joshua
Dressler, Understanding Criminal Law 514-518 (5th ed.,
2009)]
Tuesday,
September 1, 2009: 1st Degree Murder
We'll make a brief pass at LaRock (that we did not discuss
in class)(although I'm not sure there's all that much more than
needs to be said).
[Note: I assign cases that I think it important for you to read. We will sometimes not discuss all of the assigned cases. I trust you'll find that our class discussion will help you better understand those cases we do not have time to discuss.]
State v. Forrest (Dressler 255-259)
[CNN report][Victims of California Mercy Killings]For Further Study (Forrest): [Timothy Paul Brooks (Note), State v. Forrest: Mercy Killing and Malice in North Carolina, 66 N.C.L. Rev. 1160 (1988)]
West Virginia Jury Instruction: Malice
WV Public Defenders Jury Instruction: pp. 73-81
[You were directed to download/print these jury instructions in a previous assignment][In future assignments, I'll be giving you page numbers in printed .pdf file of the WV Public Defenders Jury Instructions and will refer to these jury instructions as WV Public Defenders Jury Instructions.]
Oklahoma Jury Instruction: Malice
Aforethought || Proof
of Malice Aforethought
For Further Study: Dressler Study Guide (Malice): Joshua Dressler, Understanding Criminal Law 509-510 (5th ed., 2009)]
Thursday,
September 3, 2000: Murder & Voluntary Manslaughter
Berry v. Superior Court (Dressler: 291-294, 295-297)
[Man's Best Friend] [Dog Bite Liability--Insurance Information Institute] [Dog Bite Law]For Further Study (cases): United States v. Fleming, 739 F.2d 945 (U.S. Ct.App., 4th Cir., 1984) [on-line text]
People
v. Nieto Benitez (Dressler: 294-295) [setting forth the
statutory scheme for murder and manslaugher in California, and
a commentary on malice that we will use to evaluate the charge
of murder in the Berry case][to compare the California
definitions of murder and manslaughter to the West Virginia
definitions, see the West Virginia Public Defenders Jury Instructions
at pp. 64 (1st degree murder), 108 (2nd degree murder), 117
(voluntary manslaughter), 118 (involuntary manslaughter)]
For Further Study: [Extreme Recklessness/Depraved Heart Murder, in Joshua Dressler, Understanding Criminal Law 519-521 (5th ed., 2009)][Depraved Heart Murder in West Virginia?][Unintentional Killings--article in the Loyola of Los Angeles Law Review]; Parker v. State (Sup.Ct. Ga. 1998) 270 Ga. 256, 507 S.E.2d 744 [on-line text]; State of New Mexico v. O'Kelly (Ct.App. N.Mex., 2003) [on-line text]
Voluntary Manslaughter (Provocation/Heat of Passion)
Girouard v. State (Dressler: 259-270)
West Virginia Proposed Jury Instruction: [Voluntary
Manslaughter] [Provocation]
Oklahoma Jury Instructions: Heat
of Passion | Passion
Defined | Adequate
Provocation | Cooling
Time | Causal
Connection
[Battered Women Plead Provocation] [Heat of Passion: A Murder on the Streets of Leadville, The Colorado Lawyer, Colorado Bar Association
Tuesday, September 8, 2009: Voluntary Manslaughter|Provocation
to Mitigate Murder to Manslaughter|Extreme Emotional Distress
Girouard v. State (Dressler: 259-270)
West Virginia Proposed Jury Instruction--Voluntary Manslaughter|Provocation
(currently under review):
"Voluntary Manslaughter is the felonious, intentional and unlawful taking of another person's life but without premeditation, deliberation or malice."
"The Court instructs the jury that reasonable provocation means those certain acts committed against the defendant which would cause a reasonable man to kill. Inherent in this concept is the further requirement that the provocation be such that it would cause a reasonable person to lose control of himself and act out of the heat of passion, and that he did in fact do so."
Oklahoma Jury Instructions: Heat
of Passion | Passion
Defined | Adequate
Provocation | Cooling
Time | Causal
Connection
State v. Leonard (WV Sup.Ct. Appeal, 2005)
[on-line
per curiam opinion] [Chief
Justice Albright dissenting] [Justice
Starcher dissenting] [Section IV of the Court's Opinion,
"Remaining Assignments of Error" is not relevant to
our consideration of the case and can be skipped.][For your
files/not assigned: Reply
Brief of Appellant Harry David Leonard]
Attorney General for Jersey v. Holley (Dressler: 270-280)
What results on the facts in Holley using this West Virginia jury instruction on provocation? "The Court instructs the jury that reasonable provocation means those certain acts committed against the defendant which would cause a reasonable man to kill. Inherent in this concept is the further requirement that the provocation be such that it would cause a reasonable person to lose control of himself and act out of the heat of passion, and that he did in fact do so."
Should either the prosecution or the defense in a trial in West Virginia involving the Holley facts seek a jury instruction for a more detailed definition of "reasonable man"?
[Fight Leads to Beating Death in Springfield Township, Ohio (YouTube Video)]For Further Study (The Reasonable Person defined as the Ordinary Person)(a Jury Instruction that focuses on ordinary meaning of terms/in contrast to Schrader): State of Michigan v. Lloyd Talton (Mich. Ct. App., 2002) [on-line text]
For Further Study: Manslaughter|Provocation Cases (Leo M. Romero, Sufficiency of Provocation for Voluntary Manslaughter in New Mexico: Problems in Theory and Practice, 12 N.Mex. L. Rev. 747 (1982) [on-line text]; State of Maine v. Greg James Warmke (Maine Sup. Jud. Ct., 2005) [on-line text]; Gilmore v. Taylor, 508 U.S. 333 (U.S. Sup. Ct., 1993)(discussion of confused jury instructions in a murder/voluntary manslaughter case) [on-line text]
For Further Study (Voluntary Manslaughter--the Intent Element): State of Vermont v. Bahiyoud Shabazz (Vermont Sup.Ct., 1999) 169 Vt. 448; 739 A.2d 666 [on-line text]
People
v. Casassa (Dressler: 281-288)
[Note: Extreme Emotional Distress is a Model Penal Code replacement for common law killings in the sudden heat of passion after adequate provocation. West Virginia follows the common law approach.]
Extreme Emotional Distress
[a Utah case] [Extreme Emotional Distress & Insanity Issue in a Hawaii case]
For Further Study: Dressler Study Guide (Voluntary Manslaughter & Extreme Emotional Distress): Joshua Dressler, Understanding Criminal Law 510, 520-521, 535-546, 550-552 (5th ed., 2009)]
Thursday,
September 10, 2009: Involuntary Manslaughter
People v. Beardsley (Dressler: 134-140)
Is there sufficient evidence of involuntary manslaughter in Beardsley to support a conviction for involuntary manslaughter in West Virginia?
The West Virginia Proposed Jury Instruction (currently under review) reads as follows: "Involuntary Manslaughter is the accidental causing of death of another person, although unintended, which death is the proximate result of negligence so gross, wanton and culpable as to show a reckless disregard for human life."
State v. Williams (Dressler: 301-309)
Should the West Virginia Supreme Court of Appeals uphold a conviction of Walter and Bernice Williams for involuntary manslaughter based on the facts presented in the Williams case?
Review the Dressler note scenario, note 9 (p. 308) and Conrad v. Commonwealth (note 9, 309)(pp. 308-309)
State v. Hose
(Sup.Ct.App. W.Va., 1992) [on-line
edited text] 187 W. Va. 429; 419 S.E.2d 690
West Virginia
Negligent Homicide Provisions [on-line
text]
For Further Study (Cases): Saundra Kaye Medlin v. State of Oklahoma (Ct. Crim. App., Okla, 2002) [on-line text]
Involuntary Manslaughter Cases
[Trucker
& Death of a Cyclist][Homeless
men charged for death of fireman putting out a fire in an abandoned
warehouse which the men had accidently started]
YouTube videos: [Boat accident] [North Carolina residents killed in a head-on collision on Interstate 77 near the Virginia-North Carolina border] [Fort Lewis soldier charged in teens death] [Apoxy Manufacturer Indicted In Deadly Big Dig Collapse] [Foam Company Reaches Settlement in Rhode Island Nightclub Fire] [Gun Club, 3 Others Charged in Boy's Uzi Death] [Plea Bargain Struck In Teen Fight Case] Breaking Case (Michael Jackson): Doctor alleged administered fatal drugs to Michael Jackson
Radford, Virginia Photographer Bob Shell: Bob Shell was charged with felony homicide, four counts of defiling a corpse, three drug charges and three sex charges in the death of 19-year-old Marion Elizabeth Franklin of Boone, North Carolina. Franklin died in Shell's Radford photo studio from a lethal dose of morphine. Defense attorney questions letters to witnesses [Aug. 11, 2007] :: Prosecution contact with a witness [Aug. 17, 2007] :: Shell trial begins [Aug. 19, 2007] :: Lurid photos at Shell trial [Aug. 22, 2007] :: Second day of testimony [Aug. 23, 2007] :: Sexually explicit videos at Shell trial [Aug. 24, 2007] :: Time stamp on photos key issue at Shell trial [Aug. 25. 2007] :: Shell trial focuses on shoe strap marks [Aug. 28, 2007] :: Expert testimony for the defense [Aug. 29, 2007] :: Shell's testimony [Aug. 30, 2007] :: Shell's fate in jury's hands [Aug. 31, 2007] :: The jury returns its verdict [Aug. 31, 2007] :: The Online Photographer reports the jury verdict [Aug. 31, 2007] :: A trial like no other [Sept. 1, 2007] :: Fantasy too far [Sept. 3, 2007] [Case Summary: Wikipedia]
Louise Woodward Case: Wikipedia :: Brief Clip of the Cross-Examination of Louise Woodward (YouTube)(closing argument and Judge Zobel addressing the jury):: Closing Argument (audio|YouTube) :: Judge Zobel's Order
Tuesday, September 15, 2009: Class cancelled & Rescheduled
State
of West Virginia v. McGuire (W.V. Sup.Ct.App. 2000) 200
W. Va. 823; 490 S.E.2d 912 [on-line
edited text]
For Further Study (McGuire as an "extreme emotional distress" case): North Dakota Jury Instruction ( (but note the modified "reasonableness" standard); Delania Fields v. Commonwealth of Kentucky (Sup.Ct., Ky., 1999) [on-line text]
For Further Study (Cases): Kuturah
Aldridge v. Commonwealth of Virginia (Ct. App., Vir., 2004) [on-line
text]; Helen E. Lane v. Commonwealth of Virginia, 248 S.E.
2d 781 (Sup.Ct., Vir., 1978); United States v. Sharon Y. Nelson
(U.S. Ct. App. Armed Forces, 2000) [on-line
text]
Thursday, September 17, 2009: Causation
State of Nebraska v. Amanda K. (Neb. Ct. of Appeals,
2000) 2000 Neb. App. LEXIS 7 [on-line
edited text]
State of Iowa v. Albertson (Court of Appeals of
Iowa, 2004) 2004 Iowa App. LEXIS 222 [on-line
text]
Lofthouse v. Commonwealth of Kentucky (Sup. Ct.
Ky., 2000) [on-line
text]
13 S.W.3d 236; 2000 Ky. LEXIS 23
Jury Instructions: [Oklahoma
Uniform Jury Instructions (2nd Edition): Causation]
[New
Hampshire Draft Jury Instruction] [Connecticut
Jury Instruction]
For Further Study (Cases): Joshua Paul Coyle v. Commonwealth of Virginia (Ct. App., Virginia, 2007) [on-line text]; Commonwealth of Pennsylvania v. Judith Claire McCloskey , 2003 Pa. Super 409 (Superior Ct. Pa., 2002) [on-line text]
Tuesday, September 20, 2009: Causation
Velazquez v. State (Dressler: 224-227)
State v. Meyer (Ct.App. Iowa, 2002) [on-line
text]
State of Iowa v. Garcia (Sup.Ct. Iowa, 2000)
[on-line text]
On the Possibility that Bad Things Happen to People in the Hospital ( Background Reading on Iatrogenic Diseases): Iatrogenesis--Wikipedia | American Iatrogenic Association | In-Hospital Deaths from Medical Errors at 195,000 per YearFor Further Study: United States v. Swallow (10th Cir., 1997) [on-line text]; State of Connecticut v. Arrington (Conn. 2004)(on-line text)]
Kibbe v. Henderson
(Dressler: 216-224)
Defense Requested Jury Instruction (Basic Rule): A defendant is entitled to an instruction on his theory of the case if the instruction is a correct statement of the law and the theory is supported by sufficient evidence for the jury to find in his favor.
Footnote: Henderson v. Kibbe, 431 U.S. 145 (1977) [Dressler: "The Supreme Court unanimously reversed the judgment of the Court of Appeals, holding that the trial court's failure to instruct the jury on causation, although erroneous, did not so infect the trial process as to violate Kibbe's constitutional rights."]
For Further Study (a proposed jury instruction on "intervening cause"): Proposed Jury Instruction | Connecticut Jury Instruction
For Further Study (Cases): State v. Ohio v. Wilson (Ct. App. Ohio, 2009) [on-line text]
Thursday,
September 22, 2009: Felony-Murder (Unintentional Killings)
Background Reading: Dressler (309-310, 312-320)
Further Background Reading: A Long Discourse on the Concept of Felony Murder in the United States (by Leonard Birdsong, professor, Barry School of Law); Felony Murder Provisions in Various States
A West Virgina Felony-Murder Jury Instruction (based on the West
Virginia Public Defender Services jury instruction and the "Proposed
Jury Instructions" for use in West Virginia cases now under review):
The Court instructs the jury that a death which occurs during the commission of [an enumerated felony: arson, kidnapping, sexual assault, robbery, burglary, breaking and entering, escape from lawful custoy, or a felony offense of manufacturing or delivering a controlled substance] even if the death is accidental is Felony Murder, and constitutes First Degree Murder.
The State must prove that the defendant:
-- participated in the commission of [the enumerated felony offense]
--and during the commission of that felony
--the death occurs as a result of injuries received in the commission of the [named felony].
The Court further instructs the jury that to find Felony Murder, the [enumerated felony] and the death must be part of one continuous transaction and the felony and the death must be closely related in point of time, place, and causal connection.
Felony-Murder Jury Instructions: [Oklahoma]
[Oklahoma
(cont'd)] [Tennessee]
[New
Jersey] [New
Jersey: Non-slayer Participant]
State v. Walker (Sup.Ct. W. Va., 1992) [on-line
text]
188 W. Va. 661; 425 S.E.2d 616; 1992 W. Va. LEXIS 269
Stucky v. Warden, West Virginia Division of Corrections [on-line
text]
202 W. Va. 498; 505 S.E.2d 417; 1998 W. Va. LEXIS 80
(1998)
State v. Sophophone (Dressler: 334-339)
[Bloggers discuss the pronounciation of Sophophone's name]
For Further Study: [Pushing the Limits on Felony-Murder -- a Scott Depot, West Virginia public defender's blog entry on the death of an accomplice as the basis of a felony-murder charge][Same blogger: Felony Murder and Causation]
[Note: Connecticut, in its Felony Murder jury instruction, sec. 5.3, provides specifically that felony murder does not apply when the victim is a participant in the crime. Connecticut Felony Murder Jury Instruction]
State of West Virginia ex real. James F. Painter v. Paul Zakaib,
Judge (Writ of Prohibition) [on-line
text]
Felony Murder
Re: Class discussion of felony murder in illegal drug sales/buyer's
death cases: See news account of a McDowell county case: Woman
pleads guilty to felony-murder and news account of a Tazewell, Virginia
case: OxyContin
user guilty of murder
WCHS TV Eyewitness News: Stephanie Holsinger Makes Plea Deal
[Life In Prison: Felony Murder -- 60 Minutes] [Life Sentence Too Harsh ABC--Denver's 7] [Colo. Supreme Court Reverses Lisl Auman's Felony Murder Conviction] [High court: New trial for Auman--Rocky Mountain News]
Felony-Murder in the News: [Judge Seeks to Oust a Justice Over Felony Murder Law]
For Further Study (Felony-Murder): [Felony-Murder, in Joshua Dressler, Understanding Criminal Law 521-535 (5th ed., 2009)] [Instructor's Notes: Felony Murder :: Felony Murder in West Virginia]
[Felony Murder & Mens Rea Default Rules (law review article)] [Does the Felony-Murder Rule Deter? Evidence from FBI Crime Data] Cases: State v. Wade (Sup.Ct.W.Va., 1997)(on-line text)(we will read Wade when we take up accomplice liability); Fiegehen v. State, 121 Nev. Adv. Op. 30, 113 P.3d 305 (June 30, 2005)(on-line text)] 1st Degree murder & felony murder are "one crime": Schad v. Arizona, 501 U.S. 624 (1991) [on-line text] Felony Murder and the Death Penalty: Should murder accomplices face execution?
Note: Dressler notes that the felony-murder rule has been abolished in Kentucky and Hawaii and that the Commentary to the Model Penal Code, after extensive analysis, finds the doctrine "indefensible in principle." We might note as well that the country from which we adopted (and adapted) the common law, England, abolished the felony-murder rule by the Homicide Act of 1957.
Bibliography: Guyora Binder, Felony Murder and Mens Rea Default Rules: A Study in Statutory Interpretation, 4 Buffalo Crim. L. Rev. 399 (2000); George P. Fletcher, Reflections on Felony-Murder, 12 Sw. U. L. Rev. 413, 427-29 (1981); James J. Tomkovicz, The Endurance of the Felony-Murder Rule: A Study of the Forces That Shape Our Criminal Law, 51 Wash & Lee L. Rev. 1429 (1994); Nelson E. Roth & Scott E. Sundby, The Felony-Murder Rule: A Doctrine at Constitutional Crossroads, 70 Cornell L. Rev. 446 (1985)
For Further Study (and in 2010 assign as principal cases): Commonwealth of Virginia v. Montague (Virginia, 2000)[Court of Appeal opinion][Supreme Court opinion]; State of Kansas v. Jackson (Sup.Ct. Kansas, 2005) [on-line text]; State of Kansas v. Rogers (Sup.Ct. Kansas, 2003) [on-line text]
Tuesday,
September 29, 2009: Attempts
Background Reading: [Oklahoma: Attempt-Definition]
[Attempts--General Principles (Dressler: 739-746); Commonwealth
v. Peaslee (Dressler: 759-763); People v. Rizzo (Dressler:
763-765)]
Jury Instructions--Attempts:
[9th
Circuit Jury Instruction][South
Dakota Jury Instruction][Attempt
Jury Instruction--US Attorneys Criminal Resources Manual] [6th
Circuit Jury Instruction]
People v. Gentry (Dressler: 748-752)
For Further Study: State of Tennessee v. Bullard (Ct. Crim. App., Tenn., 2009) [on-line text]; State of Louisiana v. Bishop (Sup. Ct., 2003) [on-line text]
State v. Meade (Sup.Ct. App. W.V., 1996)
[facts as stated by the court]
196 W. Va. 551; 474 S.E.2d 481 [In Meade the court cites
State v. Burd, 187 W. Va. 415, 419 S.E.2d 676 (1991), as establishing
the general rule of attempted murder as follows: "[w]here formation
of criminal intent is accompanied by preparation to commit the crime
of murder and a direct overt and substantial act toward its perpetration,
it constitutes the offense of attempted murder."]
People v. Miller (Dressler: 765-768)
For Further Study: [State v. Reeves (Dressler: 768) :: Please read the facts of the case--the first three paragraphs. In Reeves, the court presents its holding as follows: "We hold that when an actor possesses materials to be used in the commission of a crime, at or near the scene of the crime, and where the possession of those materials can serve no lawful purpose of the actor under the circumstances, the jury is entitled, but not required, to find that the actor has taken a 'substantial step' toward the commission of the crime if such action is strongly corroborative of the actor's overall criminal purpose."] [Collier v. State of Indiana, 846 N.E. 2d 340 (Ct. App. 2006]
Collier v. State (Dressler: n.4, p. 774)
For Further Study (Attempts): [Dressler casebook case (mistakenly left off the list of assigned cases: State v. Reeves, casebook, pp. 768-775)] [Joshua Dressler, Understanding Criminal Law 379-419 (5th ed., 2009)] West Virginia Cases: [State v. Mayo (Sup.Ct.App. W.V., 1994) (on-line text) (challenge to a jury instruction in a conviction for attempted 2nd degree murder) (Mayo also involves accomplice liability and we will read the case when we take up aiding & abetting)] [Question of Intent: Wright v. Commonwealth of Kentucky (Sup.Ct., Ky., 2007) (on-line text)] For Further Study (the victim is not the person defendant intends to kill): State of Tennessee v. Jackson (Ct.Crim. App. Tenn., 2002) [on-line text] [The West Virginia Supreme Court, in State v. Meadows, 18 W. Va. 658 (1881), a malicious wounding case, held that where a person intends to kill or injure someone, but in the course of attempting to commit the crime accidentally injures or kills a third party, the defendant's criminal intent will be transferred to the third party. Under this doctrine, a defendant cannot escape guilt because he accidentally injured or killed an innocent bystander while attempting to kill or injure the intended victim. See: State v. Daniel, W. Va., 391 S.E.2d 90 (1990); State v. Hall, W. Va., 328 S.E.2d 206 (1985); State v. Currey, 133 W. Va. 676, 57 S.E.2d 718 (1950)] [Instead of creating a legal fiction of "transferred" intent, one might want to think about a more careful definition of attempts that would encompass the accidental killing of a party other than the intended victim.][Garrett v. State of Maryland (2005)(on-line text)] [Erroneous Jury Instruction: State of Arizona v. Cross (Ct.App., Ariz., 2009) (on-line text); Commonwealth of Pennsylvania v. Geathers (Sup.Ct., Penn., 2003) (on-line text); People v. Harvey (Ct.App., 4th Appellate Dist., Calif, 2009) (on-line text)] Drug Cases: [State v. Jett (W.V. Sup.Ct.App., 2007)(on-line text)] [State of Kansas v. Sheikh (Ct. App., 2001) [on-line text] Indiana Cases: [Clay v. State of Indiana (Ct.App., 2002)(on-line text)] [Edwards v. State of Indiana (Ct. App., 2002) (on-line text) [Carroll v. State of Indiana (Ct. App., 2008)] Other Cases: State of Colorado v. DelgadoElizarras (Ct. App., 2005) (on-line text)]
Thursday,
October 1, 2009: Conspiracy
Background Reading: (Dressler:
809-818)
Jury Instructions:
[Oklahoma]
[Oklahoma-Overt
Act Defined] [Oklahoma-Defense
of Withdrawal] [Oklahoma-Defense
of Withdrawal-Committee Comments] [South
Dakota] [Alaska]
[6th
Circuit/Federal Jury Instructions--with extensive commentary]
[Connecticut]
[Renunciation
of Criminal Purpose]
Commonwealth v. Azim (Dressler: 829-831)
Commonwealth v. Cook (Dressler: 831-836)
People v. Lauria (Dressler: 822-828)
[Without
Conspiracy Laws Alaska Easy Target For Organized Crime] [Expanding
the Reach of Virginia's Business Conspiracy Act]
For Further Study: ["Conspiracy," in Joshua Dressler, Understanding Criminal Law 429-464 (5th ed., 2009)] [Conspiracy in Homicide--California] [Pinkerton vs. aiding & abetting] [Conspiracy to Aid & Abet?] [Vicarious Liability under Pinkerton] [Jury Instructions in the Lori Drew Case (the jury deadlocked on the conspiracy charge)]Cases: Gray v. Commonwealth of Virginia: Court of Appeals decision (1999) | Supreme Court of Virginia (2000) | | Meece v. Commonwealth of Kentucky (Ct. Appl, 2004) [on-line text] || State of North Carolina v. Christian (Ct.App., 2002) [on-line text]
Tuesday, October 6, 2000: Aiding & Abetting
(Accomplice Liability)
Background reading: (Dressler: 860-863); General
History of Aiding and Abetting (Department of Justice Criminal
Resource Manual) | Accessory
Jury Instructions (West Virginia): [
An accomplice is a person who knowingly and with criminal intent
participates directly or indirectly with another (other) person(s)
in the commission of a crime.
The Court instructs the jury that a person who is the absolute perpetrator of a crime is a principal in the first degree. The Court further instructs the jury that a person who is actually or constructively present at the scene of a crime at the same time as the criminal act of the absolute perpetrator, who acts with shared criminal intent, contributing to the criminal act of the absolute perpetrator, is an aider and abettor, and a principal in the second degree, and as such may be criminally liable for the criminal act as if he were the absolute perpetrator of the crime. Actual physical presence at the scene of the criminal act is not necessary where the aider and abettor was constructively present at a convenient distance at the time and place of the criminal act, acting in concert with the absolute perpetrator. However, you are cautioned that merely witnessing a crime without intervention therein does not make a person a party to its commission unless his interference was a duty, and his non-interference was designed by him and operated as an encouragement to or protection of the absolute perpetrator of the criminal act.] [West Virginia]
Jury Instructions (Oklahoma): Aiding & Abetting | Aiding & Abetting Defined | Defense of Abandonment | Abandonment-Burden of Proof | Commentary on Abandonment Federal: [6th Circuit/Federal Jury Instructions--with commentary] [9th Circuit] Other States: [California] [Michigan: Prosecuting Attorneys Association | Mere Presence] [Different Jurisdictions: Accomplice Liability: Mere Presence Insufficient]
State v. Hoselton (Dressler: 863-866)
179 W. Va. 645, 371 S.E.2d 366 (1988)
Compare: State v. Vaillancourt (Dressler: 880-883)
State of West Virginia v. Deem [on-line
text]
193 W. Va. 295, 456 S.E.2d 22 (1995)
State of West Virginia v. Mayo [on-line
text]
191 W. Va. 79, 443 S.E.2d 236 (1994) (distinguishes
Hoselton)
State of West Virginia v. Mullins [on-line
text]
193 W. Va. 315, 456 S.E.2d 42 (1995)
[Governor Wise pardons Gerald Dean Mullins]
[For Further Study: Patterson v. State of Wyoming (Sup. Ct., 2008) [on-line text]
Thursday,
October 8, 2009: Aiding & Abetting (Accomplice Liability)
State of West Virginia v. Miller [on-line
text] [Justice
Starcher concurring]
204 W. Va. 374, 513 S.E.2d 147 (1998)
People v. Lauria (Dressler: 822, 867-869) [Not discussed in
class]
[What result in Lauria using the Judge Learned Hand-Peoni test for aiding and abetting (the test set out, without attribution, in the Dressler edited version of Hoselton)(and cited without adequately being applied in other West Virginia aiding and abetting cases)?]
For Further Study: ["Liability
for the Acts of Others: Complicity," in Joshua Dressler, Understanding
Criminal Law 465-495 (5th ed., 2009)] [Accomplice
Liability--Loyola of Los Angeles Law Review] [Aiding
& Abetting-Federal law] [U.S. Department of Justice-Criminal
Resource Manual: General
History of Aiding & Abetting | 18
U.S.C. § 2 | Statutory
History | Case
Law | Elements
of Aiding & Abetting | Intent
| Charging
aiding and abetting | What
is Not Aiding & Abetting | What
is Not Required to Prove Aiding & Abetting | Attempt
to Aid & Abet | Aiding
& Abetting an Attempted Crime | Conspiracy
to Aid & Abet] (Conviction
for Aiding & Abetting Following Indictment as a Principal):
State of Oregon v. Burney
(Ct.App. Oregon, 2003) [on-line
text] In the News: Joint
venture changes could impact appeal process | Accomplice's
Verdict Reversed More Cases: State of Nebraska v.
Glantz (Sup. Ct. , 1997)(commenting on jury instructions that
define a crime by indicating what does not constitute the crime)
[on-line
text]; State of Kansas v. Marcus Tyler, Jr. (Sup. Ct.,
2008) [on-line
text]; Commonwealth v. Zanetti (Sup. Jud. Ct., Massachusetts,
2009) [on-line
text][read with Zanetti || State of Idaho v. Johnson
(Sup. Ct., 2008)(on-line
text)(Wikipedia)];
The People v. Yesica Amaya (Ct. App. Calif. 4th App. Dt.,
2009) [on-line text];
The People v. Raymond (Ct.App. Calif, 4th App. Dt., 2007)
[on-line text];
Wilson-Bey and Marbury v. United States (Dt.Col. Ct. App.,
2006) [on-line
text][Brief
for the U.S. in Opposition] West Virginia Cases: State
v. Legg (Sup.Ct. App., 2005)(establishing that there is no distinction
between princiapls and accessories; no requirement that aiding and
abetting be presented in the indictment; no requirement for the
prosecution to elect whether to procede against the defendant as
a pricipal or an accomplice) [on-line
text] [appellant's
appeal brief]
Tuesday, October 13, 2009 || Aiding & Abetting
State of
West Virginia v. Wade [on-line
text] 200 W. Va. 637; 490 S.E.2d 724; 1997 W. Va. LEXIS 161 [In
reading this case you'll need to review your notes on felony-murder.]
[In reading this case an array of issues are raised. We will concern
ourselves primarily with the argument that Wade aided and abetted
a drug sale that served as the predicate felony for the felony-murder
conviction that resulted from his shooting of the buyer of the drugs.]
After we finish our discussion of Wade, we'll use the remainder
of the class to discuss questions you may have about studying for
the final examination. For this discussion you might want to peruse
the final examinations given in previous years. They can be found
by way of links on the course syllabus.
Thursday, October 15, 2009 || Self-Defense
Background: Defending
the Self-Defense Case
Jury Instructions: West Virginia:
West
Virginia Homicide Jury Instructions Project: Self Defense
Oklahoma: Self
Defense: Justifiable Use of Non-deadly Force | Self
Defense: Justifiable Use of Deadly Force | When
Self-Defense is Not Available | Burden
of Proof | Justifiable
Force in the Defense of Another | Justifiable
Use of Non-Deadly Force in Defense of Another | Defense
of Another | Defense
of Property | Defense
of Property-Burden of Proof Connecticut: Self
Defense (Deadly Physical Force Used by Defendant) | Justification--Self
Defense | Defense
of Premises | Defense
of Personal Property
State of West Virginia v. Wykle [on-line
text]
208 W. Va. 369; 540 S.E.2d 586
[The defendant, in Wykle, was charged with "malicious assault." West Virginia Jury instruction: "Malicious assault is committed when any person maliciously shoots, stabs, cuts or wounds or by some other means causes bodily injury to another with the intent to kill or permanently maim, disfigure or disable the other person."] [Wykle was convicted of "unlawful assault." In West Virginia: "Unlawful assault is committed when any person unlawfully, but not maliciously, shoots, stabs, cuts, wounds or by some other means causes bodily injury to another with intent to kill or permanently maim, disfigure or disable the other person."] [Simple assault is defined as: "Assault is committed when any person unlawfully attempts to commit a violent injury to the person of another or unlawfully commits an act which places another in reasonable apprehension of immediately receiving a violent injury."]
State of West Virginia v. Jason H. (W.Va. Sup.
Ct.App., 2004][on-line
text][dissenting
opinion--Justice Davis] 215 W. Va. 439; 599 S.E.2d 862
For Further Study (reasonable force): State of Maine v. Mann (Maine Sup. Jud. Ct., 2004) [on-line text]
State of West Virginia v. Cook [on-line
text]
204 W. Va. 591; 515 S.E.2d 127
[In conjunction with Cook, you might want to review People v. Kurr (Dressler: 536-540)]
United States v. Peterson (Dressler: 494-504)
In 2008, the West Virginia Legislature enacted
into law a version of the "castle doctrine. §55-7-22 reads as follows:
§55-7-22. Civil relief for persons resisting certain criminal
activities.
(a) A lawful occupant within a home or other place of residence is justified
in using reasonable and proportionate force, including deadly force,
against an intruder or attacker to prevent a forcible entry into the
home or residence or to terminate the intruder's or attacker's unlawful
entry if the occupant reasonably apprehends that the intruder or attacker
may kill or inflict serious bodily harm upon the occupant or others
in the home or residence or if the occupant reasonably believes that
the intruder or attacker intends to commit a felony in the home or residence
and the occupant reasonably believes deadly force is necessary.
(b) A lawful occupant within a home or other place of residence does
not have a duty to retreat from an intruder or attacker in the circumstances
described in subsection (a) of this section.
(c) A person not engaged in unlawful activity who is attacked in any
place he or she has a legal right to be outside of his or her home or
residence may use reasonable and proportionate force against an intruder
or attacker: Provided, That such person may use deadly force against
an intruder or attacker in a place that is not his or her residence
without a duty to retreat if the person reasonably believes that he
or she or another is in imminent danger of death or serious bodily harm
from which he or she or another can only be saved by the use of deadly
force against the intruder or attacker.
(d) The justified use of reasonable and proportionate force under this
section shall constitute a full and complete defense to any civil action
brought by an intruder or attacker against a person using such force.
(e) The full and complete civil defense created by the provisions of
this section is not available to a person who: (1) Is attempting to
commit, committing or escaping from the commission of a felony; (2)
Initially provokes the use of force against himself, herself or another
with the intent to use such force as an excuse to inflict bodily harm
upon the assailant; or (3) Otherwise initially provokes the use of force
against himself, herself or another, unless he or she withdraws from
physical contact with the assailant and indicates clearly to the assailant
that he or she desires to withdraw and terminate the use of force, but
the assailant continues or resumes the use of force.
(f) The provisions of this section do not apply to the creation of a hazardous or dangerous condition on or in any real or personal property designed to prevent criminal conduct or cause injury to a person engaging in criminal conduct.
(g) Nothing in this section shall authorize or justify a person to resist or obstruct a law-enforcement officer acting in the course of his or her duty.
Self-Defense
[Oregon
Supreme Court redefines self-defense] [Self-Defense?
Or Deadly Force?] [Self
Defense Law and the Martial Artist -- written by Peter Hobart, a
lawyer]
The Ideology of Self-Defense: By ideology, I mean that for some people, the idea of self-defense is something akin to a "sacred right" and forms a fundamental part of their political and social worldview. It is of interest that ideologues draw upon law for their arguments. Consider the following: [CCRKBA -- Citizens Committee for the Right to Keep and Bear Arms] [Prosecutor Clears Woman in Killing -- Charlotte Observer article carried on a Kentucky Coalition to Carry Concealed webpage] [Gremminger Case: A Twisted Case Results in a Twisted Verdict -- San Jose, California]
For Further Study: [Self Defense in California--Loyola of Los Angeles Law Review] [For a theoritical survey of criminal law defenses see: Criminal Law Defenses: A Systematic Analysis (an article by Professor Paul H. Robinson, Northwestern University School of Law)] [Self-Defense as a Mental Defense -- Dr. Brett Trowbridge (also a lawyer) (exploring the psychological aspects of self-defense cases and the use of mental health expert's testimony to establish a fear in self-defense cases)]
For Further Study (cases): State v. Arizona v. Elizabeth Delariva Vogel (Ct. App. Ariz., 2004) [on-line text] Summary: Law of Self Defense in Marylan | Self-defense under California Criminal Law
Tuesday, October 20, 2009 Self-Defense
State v. Dinger (Sup.Ct.App. W.V., 2005) [on-line
text]
218 W. Va. 225; 624 S.E.2d 572
For Further Study (Duty to Retreat): State of Minnesota v. Glowacki (Minn. Ct. Appeals, 2000); State of Tennessee v. Renner (Sup.Ct. Tenn. 1995)
State of West Virginia v. Boggess [on-line
text]
204 W. Va. 267; 512 S.E.2d 189 [There is an argument
raised in the opinion about striking a defense witness's testimony--sec.
IV--that is not pertinent to our discussion.]
People v. Goetz (Dressler: 504-518)
[Bernard Goetz--Wikipedia] [Nancy Grace Interview of Bernard Goetz] [Stone Phillips Goetz Interview: YouTube] [Review -- of a book by criminal law scholar, George Fletcher about the Goetz trial] [Another review of the Fletcher book] [civil complaint filed against Goetz] [Playing the Race Card: Two Famous Criminal Trials (Bernard Goetz & O.J. Simpson)] ['Subway Vigilante' back in court a decade later -- CNN.com]A Note on Judge Wachtler: You will note that People v. Goetz, a rather infamous self-defense case, was decided by Chief Judge Wachtler. Judge Sol Wachtler became a celebrity of sorts. See Sol Wachtler, After the Madness: A Judge's Own Prison Memoirs (New York: Random House, 1997); John M. Caher, King of the Mountain: The Rise, Fall, and Redemption of Chief Judge Sol Wachtler (New York: Prometheus Books, 1998); A Prominent Judge Goes to Prison | Salon.com book review of Judge Wachtler's prison memoir.
Meredith Renwick in a review of Wachtler's prison memories provides a succinct summary of Justice Wachtler downfall: "The annals of history are full of stories of powerful men who self-destructed in public. Sol Wachtler was the Chief Judge of New York, a man with a long and distinguished record of public service, a Rockefeller Republican touted to succeed Mario Cuomo as governor of the state. Instead, on November 7, 1992, he was arrested for writing bizarre threatening letters to his former lover, Joy Silverman, and attempting to extort money. Wachtler pleaded guilty to sending blackmail and kidnap threats, asking for leniency on the grounds that he had been suffering severe manic-depression caused by abuse of antidepressants and sleeping pills. He served 11 months in two different medium-security federal prisons and was released to a halfway house August 29, 1994."
On Judge Wachtler, see: Wikipedia
Wachtler is currently an adjunct professor of law at Touro Law School.
For Further Study: State v. Warnow (Dressler: 518-525)(revisiting the "reasonable person" standard we first discussed in Casassa and presented in a rather misleading statement in the last sentence in Wykle); Mark Lesly, Subway Gunman: A Juror's Account of the Bernhard Goetz Trial (Latham, New York: British American Publishing, 1988)
Thursday, October 22, 2009 :: Self-Defense
by Battered Spouses
Background:
Course Web Resources
State of West Virginia v. Headley [on-line
text]
210 W. Va. 524; 558 S.E.2d 324
State of West Virginia v. Smith [on-line
text]
198 W. Va. 441; 481 S.E.2d 747
[The trial court granted the prosecution's motion in limine excluding evidence of the victim's prior violence directed toward the defendant and any reference to battered woman's syndrome. See: motion in limine] [On limiting evidence, see Justice Albright's dissent in State v. Whittaker, where he states: "Only when the jury has been permitted to hear and consider all of the factual information surrounding the incident, which includes a full history of prior threats and past beatings, can it properly evaluate whether the defendant had reasonable grounds to believe that she was in immediate danger."] [State v. Whittaker, 221 W. Va. 117; 650 S.E.2d 216 (Sup.Ct. App., W.Va., 2007) [on-line text] [Justice Maynard concurring] [Justice Albright dissenting [Justice Starcher dissenting]
State v. Norman (two opinions)(Dressler: 525-530, 530-539)
For Further Study: Kerry A. Shad, State v. Norman: Self-Defense Unavailable to Battered Women Who Kill Passive Abusers, 68 N. C. Law Rev. 1159 (1990); Joshua Dressler, Battered Women and Sleeping Abusers: Some Reflections, 3 Ohio St. J. Crim. L. 457 (2006) [on-line text]
State
v. Harden, 679 S.E.2d 628
(Sup.Ct.App. W.Va. 2009) [on-line
text] [Justice
Benjamin's dissent]
[the majority opinion in Harden by Justice Ketchum is one
of the better written West Virginia Supreme Court opinions that
we've read]
For Further Study (a West Virginia case that preceded Harden by 2 years||different facts different result): State v. Whittaker 221 W. Va. 117; 650 S.E.2d 216 (Sup.Ct. App., W.Va., 2007)[on-line text] [Justice Maynard concurring] [Justice Albright dissenting] [Justice Starcher dissenting]
Bechtel v. State, 1992 Ok Cr 55, 840 P.2d
1 (1992) [on-line
text]
For Further Study (following up Bechtel): The Paine case (10th Cir., 2003) [on-line text]
[Bechtel is cited in Justice Albright's dissent in State v. Whittaker (W.Va. Sup.Ct.App., 2007) [Justice Albright's dissents]
For Further Study (West Virginia cases): State v. Riley, 201 W.Va. 708, 500 S.E. 2d 524 (Sup.Ct.App. W.Va., 1997) [on-line text]; State v. Wyatt, 198 W. Va. 530; 482 S.E.2d 147 (Sup.Ct.App. W.Va., 1996) [on-line text]
For Use in Cases Involving Battered Women who have suffered a History of Violence by Spouses/Lovers: One of the best summary statements for use in cases like Smith, Harden, Norman, and Bechtel is found in Justice Albright's dissent in State v. Whittaker [on-line text]:
Many lay people have difficulty comprehending why an act of violence was committed by a battered woman at a time when she may have seemingly had the opportunity to extricate herself from the situation. This societel misapprehension stems from an inability to fully grasp that "from the perspective of the battered wife, the danger is constantly 'immediate.'" In an emotional state that is the result of a longstanding pattern of threats followed by violence, the abused individual is acutely aware that her abuser is fully capable of carrying out the violence that he is currently threatening to commit. Because of the cumulative pattern of abuse, the abused person processes the threat of violence as an eventuality, rather than a possibility.
[The "danger is constantly 'immediate'" language is quoted from Loraine Eber, The Battered Wife's Dilemma: To Kill or To Be Killed, 32 Hastings L.J. 895, 929 (1981)]
Tuesday,
October 27, 2009: Competence to Stand Trial
Background
Reading: (Dressler: 616-618); Emotional
Competence, Rational Understanding, and the Criminal Defendant (a
law review article)
Competence
to Stand Trial--Case Analysis Form
Idaho v.
Longoria (Id.Ct.App. 1999) [on-line
edited text of the opinion]
133 Idaho 819; 992 P.2d 1219
State
v. Chapman (Sup.Ct.App.W.Va., 2001) [on-line
text]
210 W. Va. 292; 557 S.E.2d 346
[Wechsler Adult Intelligence Scale-Revised -- Wikipedia] [IQ Basics] [IQ Classifications]
Thursday, October 29, 2009: Competence to Stand
Trial & Diminished Capacity
State v. Kent
(Sup.Ct. App.W.Va., 2003) [on-line
text] [dissenting
opinion]
213 W. Va. 535; 584 S.E.2d 169
[anhedonia-Wikipedia] [bi-polar disorder-NIMH] [bi-polar disorder-Mayo Clinic] [bipolar disorder-Wikipedia] [paranoid beliefs and delusions, see delusional disorder-Wikipedia] [delusional disorder-BehaveNet]
[John D. Justice-currently, President and CEO, West Virginia Psychiatric & Forensic Services] [Thomas R. Adamski-Department of Behaviorial Medicine & Psychiatry, West VirginiaUniversity]
State v. Sanders
(Sup.Ct.App.W.Va. , 2001) [on-line
text]
209 W. Va. 367; 549 S.E.2d 40
[The psychological testimony in Court in Sanders refers, in passing, to malingering. See Malingering by Dr. William H. Reid, Forensic Psychiatric Consultant, Journal of Psychiatric Practice column] [Malingering in Forensic Neuropsychology] [There is also a reference to the possibility that the defendant is hiding symptoms--the opposite of malingering. Hiding symptoms is referred to, in the psychiatric literature, as "defensiveness." The defendant my consciously deny symptoms or minimize the effect of the symptoms. Mostly simply put, the defendant is trying to present himself/herself in the most favorable light.]
West Virginia Code: §27-6A-1. Determination
of competency of defendant to stand trial; §27-6A-2. Hearing on competency
to stand trial [on-line text]; §27-6A-4 -- Release from jurisdiction
of the court; §27-6A-5. Periodic review of person found incompetent
to stand trial; §27-6A-6. Judicial hearing of defendant's defense
other than not guilty by reason of mental illness
[on-line
text of WV Code provisions]
Competency
to Stand Trial
Missouri Institute of Public
Health Policy Brief
Assessing
Competency-to-stand-trial Assessments
J Am Acad Psychiatry Law 2004 32:
231-245
Competence
to Stand Trial
Dr. William H. Reid, J. Prac. Psych.
& Behav. Hlth
Competency
To Stand Trial: Summaries of Successful Cases
Capital Defense Network (supporting
capital defense lawyers)
For Further Study (psychosis): [Diagnosis of Mental Disorders] [Delusional Disorder] [Paranoid Schizophrenia]
For Further Study (competence to stand trial): [Competency To Stand Trial: Summaries of Successful Cases -- Capital Defense Network]
West Virginia Resources (cases): State v. Paynter (Sup.Ct.App. W.Va., 1999) [on-line text]; State v. LaRock (Sup.Ct.App. W.Va., 1996) [on-line text]; Wickline v. Michael House, Superintendent, Pruntytown Correctional Facility (Sup.Ct.App. W.Va., 1992) [on-line text]
Tuesday,
November 3, 2009: Diminished Capacity
Background
Reading: (Dressler: 664-669); Diminished
Capacity: Web Resources
Diminished
Capacity Jury Instruction
State v. Griffin (Wash. 1983), 100
Wn.2d 417, 670 P.2d 265 [on-line
text]
State v. Degraw (Sup.Ct.App.W.Va. , 1996) [on-line
edited text]
196 W. Va. 261, 470 S.E.2d 215 (1996) [on-line
full text]
State v. Joseph (Sup.Ct.App.W.Va. , 2003) [on-line
text]
214 W. Va. 525, 590 S.E.2d 718, 2003 W. Va. LEXIS 172 [in
camera -- definition]
State
of Kansas v. White (Kan. Sup. Ct., 2005)
279 Kan. 326, 109 P.3d 1199, 2005 Kan. LEXIS 156
Voluntary
Intoxication: An Assignment We Did Not Take Up (This Will Not Be Included
on the Final Examination)
Voluntary Intoxication (Background Reading): Montana v. Egelhoff (Sup.Ct., 1996) [on-line text] 518 U.S. 37 (1996) ; Robert J. McManus, Montana v. Egelhoff: Voluntary Intoxication and the Constitution, Am.L.Rev. article [on-line text]
Jury
Instructions:
[Connecticut]
[Oklahoma
| Intoxication
by Drugs | Burden
of Proof | Definitions][New
Hampshire][A
Proposed Revision for the West Virginia Voluntary Intoxication Jury Instruction]
[Oklahoma Jury Instructions: Requirements
| Involuntary
Intoxication Defined | Burden
of Proof]
[Under Oklahoma law, a trial judge first has a duty to decide whether the voluntary intoxication defense is sufficiently raised to warrant an instruction. The defense of voluntary intoxication requires that a defendant, first, be intoxicated and, second, be so utterly intoxicated, that his mental powers are overcome, rendering it impossible for a defendant to form the specific criminal intent or special mental element of the crime. (See Frederick v. State, 37 P.3d 908, 942 (Okla. Crim. App. 2001) (holding mere consumption of alcohol and marijuana insufficient to raise defense without showing consumption prevented defendant from forming intent); Bland v. State, 4 P.3d 702, 718 (Okla. Crim. App. 2000) (upholding refusal to give instruction because defendant gave detailed account of crime's circumstances)]
Commonwealth
v. Graves (Dressler: 606-616)
State
of North Carolina v. Golden (No.Car. Ct.App., 2001) [on-line
text]
Coddington v. State (Ct.Crim.App. Okla, 2006)[on-line
edited text]
2006 OK CR 34; 142 P.3d 437; 2006 Okla. Crim. App. LEXIS 35
For Further Study: [For a cogent history and summary of the somewhat confused state of the law of involuntary intoxication as a defense, see the ever dependable, Joshua Dressler, Understanding Criminal Law 345-356 (4th ed., 2006)] [Relevance of Voluntary Intoxication -- a good background summary and presentation of policy concerns (California cases)] [For a good working statement of the law on voluntary intoxication, see Wayne R. LaFave's criminal law treatise, Criminal Law 471-485 (4th ed., 2003)]
For Further Study (West Virginia
Cases): State v. Bush (W.Va.
Sup.Ct.App., 1994) [on-line
text] 191 W. Va. 8, 442 S.E.2d 437, 1994 W. Va. LEXIS 33 -- State
v. Vernatter (W.Va. Sup.Ct.App., 1999) [on-line
text] 207 W. Va. 11; 528 S.E.2d 207; 1999 W. Va. LEXIS 207 [antisocial
personality disorder]
Thursday,
November 5 & Tuesday, November 10: Ralph Tortorici--Case
Study (Introduction-Insanity Defense || Review-Competence to Stand
Trial)
Background: Insanity:
Web Resources Mentally
Ill Criminals and the Insanity Defense: A Report to the Minnesota
Legislature (1999)
Expert
Psychiatric & Psychological Testimony The
Insanity Defense: A Closer Look Evolution
of the Insanity Plea A
Brief History of the Insanity Defense
West Virginia Jury Instruction on Insanity: [current
& proposed revised jury instruction]
On Thursday, we'll screen the PBS Frontline documentary,
"A Crime of Insanity" || On Tuesday, we'll talk about
the film, the Tortorici case and the two Tortorici opinions of the
New York Courts.
Ralph
Tortorici Case
[The PBS Frontline file for Tortorici--printed out--is
150+ pages.] [To access the various files: first, follow the "The
Story of Ralph Tortorici" link; at the next screen you will
find links to--"An Overview," "A Son and a Brother,"
"A Well-Documented History of Mental Illness," "Letter
to Prosecution from Dr. Lawrence Siegel," "The Defense's
Summation," "The Prosecution's Summation," "Interviews."
Following each of these links you will find, in some instances,
still further links.] [On Cheryl Coleman: Commission
on Judicial Conduct: Resignation of Cheryl Coleman as Albany City
Court Judge || Cheryl
Coleman Private Law Practice [For an instructive, thoughtful
account of how lawyers move beyond zealous advocacy to become zealots,
see: Confessions of a Criminal Law
(by Seymour Wishman)]
People v. Tortorici (Sup.Ct.N.Y.--App.Div., 3rd
Dept., 1998) [on-line
text]
249 A.D.2d 588, 671 N.Y.S.2d 162, 1998 N.Y. App. Div. LEXIS 3564
People v. Tortorici [on-line
text]
92 N.Y.2d 757, 709 N.E.2d 87, 686 N.Y.S.2d 346 (Ct.App. N.Y. 1999)
[Note: In the Ralph Tortorici film, we learn that the jury in the Tortorici case was provided only with the most basic information on the effect of a finding that Tortorici was not guilty by reason of insanity. If I understand it right, the jury was informed only that Tortorici would be subject to involuntary civil committment. In West Virginia, a defendant who relies upon the insanity defense is entitled to an instruction which advises the jury as to further disposition of the defendant in the event of a finding of not guilty by reason of insanity. See, State v. Nuckolls, 166 W.Va. 259, 273 S.E. 2d 87 (1980). The Court first suggested that such jury instructions be given in State v. Milam, 159 W. Va. 691; 226 S.E.2d 433 (1976). Approximately half of the states permit trial courts to instruct juries on post insanity defense acquittal disposition. Some states provide the jury with no information about the effects of a not guilty by reason of insanity acquittal.]
For Further Study (on defense counsel Lynch's dilemma in representing Ralph Tortorici and Matthew Victor's dilemma in the West Virgina Sanders case): See, Josephine Ross, Autonomy Versus a Client's Best Interests: The Defense Lawyer's Dilemma When Mentally Ill Clients Seek to Control Their Defense, 35 Am. Crim. L. Rev. 1343 (1998).
For Further Study (on zealous advocacy): See, Seymour Wishman, Confessions of a Criminal Lawyer (New York: New York: Penguin Books, 1982)
For Further Study (on the burden of proof in New York insanity cases; NY requires the defendant to prove insanity, an affirmative defense, by a preponderance of the evidence): See, People of the State of New York v. Kohl (Ct.App. N.Y., 1988), 72 N.Y. 2d 191, 527 N.E.2d 1182, 532 N.Y.S. 2d 45, 1988 N.Y. LEXIS 1133 (upholding the constitutionality of placing the burden on the defendant to prove insanity, a holding that elicited a vigorous, well-reasoned dissent)
Thursday, November 12, 2009: Insanity
Defense
Background Reading: Dressler: 618-620, State v. Johnson (Dressler: 624-636)(note the M'Naghten Rule, State v. Johnson, at p. 625)
State v. Koon (W.Va. Sup.Ct.App., 1993) [edited
opinion for class discussion]
190 W. Va. 632, 440 S.E.2d 442, 1993 W. Va. LEXIS 232 [on-line
full-text]
Tuesday, November
17, 2009: Insanity Defense
121 R.I. 254, 399 A.2d 469Note1: The best way to try to understand the insanity defense is to know something about the history of its use (and, by its nature, its misuse). I mentioned in class that West Virginia and courts around the country began to consider a move away from the M'Naghten test and adoption of the Model Penal Code test in the 1970s. In State v. Johnson, the Supreme Court of Rhode Island Supreme, in deciding to "modernize" its insanity standard, provided a helpful overview of the history you need to know.
Note2: I spoke in class, briefly, about the fact that the verdict in the Hinckley case (not guilty by reason of insanity) stirred what where, at the time, not entirely clear waters. For another brief pass at the insanity defense and commentary on the effect of the Hinckley case, see: The John Hinckley Trial & Its Effect on the Insanity Defense
Note3: I indicated in class that the insanity defense saw relatively little use, and that acquittals based on insanity are difficult to come by. Why, then, should we be spending the time we do on the insanity defense in class? The reason to do so, I think, lies in the fact that we are actually studying the role of psychiatric/psychological expert testimony and how the courts try to deal with it. The law of insanity is, in my view, less important than trying to understand what the psychiatrist are doing and what we, in law, are doing with the psychiatrist.
177 W.Va. 369, 352 S.E.d 120For Further Study (Use of Lay Testimony to Rebut Expert Testimony): State v. Sanders, 225 Kan. 147, 587 P.2d 893, 1978 Kan. LEXIS 423 (Sup.Ct. Kan., 1978) [on-line text]
For Further Study (What Happens to a Defendant Following an Acquittal by Reason of Insanity?) [See: State v. Smith (W.Va. Sup.Ct.App., 1996) [on-line text] 198 W. Va. 702, 482 S.E.2d 687, 1996 W. Va. LEXIS 262 (confinment following "not guilty by reason of insanity")]
For Further Study (Insanity Defense Jury Instructions in West Virginia): Jury Instruction Under Review & a Proposed Instruction
200 W. Va. 479, 490 S.E.2d 298, 1997 W. Va. LEXIS 115 [on-line text]
208 W. Va. 622, 542 S.E.2d 443, 2000 W. Va. LEXIS 178 [full-text of the opinion]For Further Study (A State by State Comparison of the Insanity Defense): Bureau of Justice Statstics: State Court Organization 2004 (Washington, D.C.: U.S. Department of Justice, Office of Justice Programs, 2004) [chart]
For Further Study (Defendants Who Resist the Insanity Defense): [Kaczynski Resists the Insanity Defense--Washington Post][Forcing the Insanity Defense on an Unwilling Defendant--J. Am. Acad. Psychiatry & Law]
November 24 & 26. Thanksgiving Week. No Classes
Taking Law School Examinations
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