PROFESSOR HUMBACH                                                                                      December 17, 2001

FINAL EXAMINATION                                                                           TIME LIMIT: 2 1/2 HOURS






                        This is a closed book examination.




            This examination consists of 5 questions based on four fact situations. Please note that fact situation IV contains two questions. The questions are to be answered in the Examination Booklets provided by the Registrar's Office. Please clearly number your answers to each of the questions (1 to 5). Follow the instructions carefully and answer only what is asked.


            Legal arguments are called for, and your grade will be based substantially on the quality of your legal argumentation. Remember, your answer should first make clear where you are going--what you are going to talk about. It should also:


 (1)       state the rules, considerations or principles that are relevant to deciding the issues raised by the facts,

 (2)       point out the specific features of the factual situations that make the rules, considerations or principles relevant, and

 (3)       pull the two together with appropriate conclusions.


Remember, too, to keep your answers on point, and answer only the questions asked. In so doing, do not circle around your point. Aim for the bull's eye. Otherwise, you will risk running out of time. You have about 20-25 minutes per question, plus about a 1/2 hour of reading time.


          Terry Burton was in the ninth grade and constantly having problems at school. He had a noticeable speech impediment and his fellow students teased him constantly about it, often imitating him and exaggerating his mispronunciations. Although this had gone on for years, Terry never got used to it, and he cringed inside even at just the thought that someone might be about to taunt or mock him. Of course, he avoided asking questions in class and, when he had no choice but to talk in class, the other students would exchange malicious glances and grins, and they made no effort to hide their derision from Terry. Except for the one or two people at school with whom Terry maintained slightly friendly relations, he hardly ever spoke with anybody outside his own family. Terry was pretty much a loner. Most of his free time he spent reading comics and playing video games.


Physically big for his age, Terry’s strength was reinforced by the fact that he was also somewhat heavy-set. Still, he did not respond with aggression to the teasing. He had been severely punished some years before for getting into a full-blown fight in grade school, not only being suspended but, worse, suffering an extended period of privilege deprivation at home. He learned to keep his anger in check, even if he could not stop it. He could not help the powerful feelings of rage that welled up inside him when others teased him. His emotions showed, moreover, in the sudden redness of his face, the contortion of his lips and the swelling of the veins in his neck, which visibly pulsated in response to the taunting. Terry was constantly fantasizing about how he might “get back” at his tormenters—daydreaming about everything from smashing them with baseball bats to burning down their homes.


          On the fatal day, Terry had been called on by the teacher toward the end of a class. As usual, he stumbled over his answers, raising a suppressed but audible giggling from those seated around him. Out in the corridor after class, one of his classmates, George Bessing, made a hurtful comment to Terry as he patronizingly placed his arm around Terry’s shoulders. Terry shook free and, as he turned and made a motion toward George, George pushed out his arms as though to keep Terry at bay. This sudden move, however, caused Terry to step back and lose his footing. He landed on his bottom, his books strewn about him, to the great delight of all around.


          During the next class Terry seethed with fury. George, who sat in the next row over and a couple of seats toward the front, turned back toward Terry and, with a smirk, patted at his own bottom, a knowing and pointed reminder of what happened during the break. Terry’s anger grew. When the class was dismissed, 50 minutes later, George sidled up to Terry and whispered: “Let’s s-s-s-see if we keep our b-b-b-balance now.” Terry seemed to just snap. There was red fire extinguisher hanging on the nearby wall and Terry grabbed it. Holding it in one hand, he smashed it down on George’s head. Tragically, George died several hours later of complications from the concussion.


          Question 1. Discuss whether Terry can be properly held guilty of murder or only manslaughter under the traditional rules relating to provocation.



          Phil Taggert is a landlord who owns a large number of rent-regulated apartments. He is able to raise the regulated rents whenever a tenant moves out and is replaced by a new tenant. It is therefore to Taggert’s advantage to have as much turn-over as possible on his lowest rent apartments. To increase the turn-over rate Taggert retained the services of Messrs. Clopp and Durban. Their mode of operation is to pester, annoy and generally hassle targeted tenants until the tenants get fed up and move out. The local prosecutor is outraged and he wants to put an end to these practices. However, Clopp and Durban are careful to avoid serious legal violations and are, at most, prosecutable for various fairly minor misdemeanors. It would be a tedious process to get convictions even for that. The prosecutor has, therefore, decided on a different tack. He has moved to prosecute the threesome under the state’s larceny statute. That statute makes it a felony for a person, “with the intent of depriving another of property, to wrongfully take, obtain or withhold property from the owner thereof.”


The state’s larceny statute contains no definition of “property,” but the cases to date have all involved moveable property—following the common law rule that larceny can occur only with respect to goods and other physical things that can be moved from place to place, as distinguished from real estate, land, apartments or the like. However, under state law, a tenant’s rights under a lease are considered a kind of “property.” In fact, the tenant’s rights under a rent-regulated lease can be a very valuable form of property; if the “market” rental would greatly exceed the permissible maximum rent under the regulations, the tenant’s rights under a regulated lease can be worth many thousands of dollars. Nevertheless, no court in the state has ever said it would constitute larceny to “take, obtain or withhold” a tenant’s rights under a lease. Nor has any court of the state has ever ruled the possibility out.


There have been a number of recent cases in which that state’s courts have extended the property conception to allow larceny with respect to new kinds of things (for example, Internet addresses, compilations of computer data, and scientific secrets). There has never, however, been a case where a court has extended the conception to an “old” kind of property that was not previously thought of as a possible object of larceny.


Question 2. Taggert, Clopp and Durban argue that it would be error for the court to treat them as guilty of larceny for their actions taking tenant’s rights under leases in this case. Evaluate their argument.



            Antonia Keller has just been convicted of criminal possession of cocaine with intent to distribute. The defense will probably try to assert her family situation and other factors concerning her crime as grounds for a mitigation of her sentence.


            Ms. Keller is a young mother with three children, ages 4, 2½ and 11 months. She supports herself and her family by working nights at a small grocery store near her home. Although she was a high school dropout, she has gotten her GED and, until her arrest, had attended classes at the local community college. During her teen years she frequently used crack and freely admits that she was "really messed up." More recently, however, she seemed to have turned her life around. She married the father of her children a little over 3 years ago, but her husband was killed in a construction-site accident about a year ago.


            When Ms. Keller was arrested on the street near her home, she was found to have 250 grams of cocaine base wrapped in a sealed package carried in a canvas shopping bag. She insists resolutely that she did not know what was in the package. According to her, it had been left at her apartment earlier that day by her brother, who had come for a brief visit. Later, she says, her brother had telephoned and said he "forgot" the package, and he asked her to do him a favor and take it for him to the clerk at a certain deli at a nearby address he specified.


            Although Ms. Keller admits she believed her brother was still "mixed up with drugs," she says she has rarely seen him since her marriage and claims to know few details of his involvement. Initially the prosecutor had hoped to get her to identify her brother's sources, and she readily agreed to provide the office with whatever assistance she could. However, under questioning she provided little information of value, and she claims that she does not know who her brother got the drugs from.


            Evidently the jury did not believe her story about not knowing the contents of the parcel. Ms. Keller now faces a sentence of up to 15 years in prison unless the judge can be convinced that a lesser sentence is appropriate. Effectively, a long sentence will mean the destruction of her family, with her children probably being separated not only from her but from one another as they are turned over to a series of paid caregivers in the foster care system, unless she puts them up for adoption.


            Question 3. In light of the four rationales for punishment and any other considerations that you think legally should apply discuss whether Ms. Keller should receive a substantial mitigation of her sentence.



Carolyn Davies is an office worker a few years out of high school and she has an active social life. Although she is not an “addict,” she does use controlled substances from time to time, especially if someone she’s with happens to have some and offers it. Last week, she and a friend went out for the evening and ended up in a bar called Tony’s, which is a popular stop among the young single set in Davies’ community. Her friend ran into an old acquaintance at the bar and the two of them, after a time, left together. Davies stayed behind. A little later on Davies met the individual who was to become the decedent in this case. That individual, a young stockbroker by the name of Arthur Clemmons, was a user of heroin and other hard drugs on a fairly regular basis.


Clemmons and Davies hit it off fairly well. They talked about, among other things, using drugs. Both Clemmons and Davies agreed it was best not to do drugs alone “in case something happened.” After a couple of drinks together Arthur asked Davies if she’d like to go back to his place and try some “great stuff” that he had there. Davies said: “Sure.”


Once at his place, Clemmons fixed Davies something to drink and excused himself for a moment. He went into the bathroom. When he did not come out again after fifteen minutes or so, Davies started to become worried. There was no answer when she knocked on the door. Trying the handle, she found it unlocked. The door opened only a short distance, however, because Clemmons was lying unconscious on the floor and his body was blocking opening.


            Davies surmised (correctly as it turned out) that Clemmons had taken an overdose. She briefly considered dialing 911, but decided instead to gather her belongings and get herself out of there. She stopped only to wipe the glass containing her drink, intending to remove her fingerprints from it.


According to the medical examiner, Clemmons died of an overdose, but almost certainly could have been saved if Davies had called 911 right away and prompt medical attention had been provided.


Can Davies be properly convicted of murder or manslaughter in the death of Arthur Clemmons? In answering this question be sure to discuss:


Question 4. The law with respect to omissions.


Question 5. The applicable mental elements.


Assume that the state’s criminal code contains the provisions contained in the appendix on page 6 of this examination.

<end of examination>



§ 101-15. Culpability; definitions of culpable mental states.

          The following definitions apply to this criminal code:

          * * *

3. "Recklessly." A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such a nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. * * *



§ 202-05. Murder in the second degree.

          A person is guilty of murder in the second degree when:

          * * *

(2) Under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person;

          * * *


§ 202-10. Manslaughter.

          A person is guilty of manslaughter when:

          * * *

(3) he recklessly causes the death of another person;

          * * *


<end of appendix>