I

PACE UNIVERSITY SCHOOL OF LAW

CRIM-LAW I

PROFESSOR HUMBACH December 16, 2002

FINAL EXAMINATION TIME LIMIT: 2 1/2 HOURS

IN TAKING THIS EXAMINATION, YOU ARE REQUIRED TO COMPLY WITH THE SCHOOL OF LAW RULES AND PROCEDURES FOR FINAL EXAMINATIONS. YOU ARE REMINDED TO PLACE YOUR EXAMINATION NUMBER ON EACH EXAMINATION BOOK AND SIGN OUT WITH THE PROCTOR, SUBMITTING TO HIM OR HER YOUR EXAMINATION BOOK(S) AND THE QUESTIONS AT THE CONCLUSION OF THE EXAMINATION.

DO NOT UNDER ANY CIRCUMSTANCES REVEAL YOUR IDENTITY ON YOUR EXAMINATION PAPERS OTHER THAN BY YOUR EXAMINATION NUMBER. ACTIONS BY A STUDENT TO DEFEAT THE ANONYMITY POLICY IS A MATTER OF ACADEMIC DISHONESTY.

This is a closed book examination.

GENERAL INSTRUCTIONS:

This examination consists of 5 questions based on five fact situations. 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.

Unless the context otherwise requires (such as where the facts are specifically stated to arise in a particular state), base your answers on general principles of criminal law as generally applied in American common law jurisdictions. If you are aware of more than one rule among the jurisdictions, discuss the alternatives. Do not assume the existence of any facts or agreements not set forth in the questions.

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.

Wally and Telia were married in 1995, but things have been going badly for them the past couple of years. They have not shared intimate relations for over 15 months, and Telia moved in with her sister last spring. Nevertheless, Wally and Telia saw each other frequently and they both agreed (verbally, at least) that they should try to get back together. This is how it had been, at any rate, until a late last summer. Telia and her sister went on a lengthy cruise in August and after her return, she and Wally did not meet at all for a time. When they finally did get together, Wally noticed a pronounced change. Wally said that he really looked forward to getting things back “like they were,” but Telia no longer nodded in agreement as she used to. She said repeatedly that “things are never the same,” and that she needed more time to “think about it.”

Then, for nearly a month, Telia and Wally did not see each other at all. Their next encounter was utterly unexpected. Wally was waiting at a red light and, all of a sudden just as the light changed, he caught a glimpse of Telia out of the corner of his eye. The car behind him honked and Wally proceeded across the intersection, but then he pulled up to the curb on the far side and peered back through his rearview mirror. What he saw, he scarcely could believe. Telia was unmistakably pregnant—or so it appeared to Wally—and walking down the street with another man. He watched as the two of them continued to move along the sidewalk and then turn into a bar and grill down the block. Wally felt himself break into a cold sweat. His heart was racing. He reached toward the key to shut off the motor and realized his hand was shaking violently.

A few moments passed and Wally started the motor again. As he drove toward his apartment, a plan formed in his mind. He decided to confront Telia and her friend. He figured he would start by telling the latter to “butt out” where he wasn’t wanted. He was sure it wouldn’t work, but it was a start. He had to do something. What about the baby? This thought confused him greatly. Wally just didn’t know. But, first things first—back to the apartment. Wally wanted to pick up a small gun he had bought several years before, when there had been some break-ins in his building. He didn’t intend to kill anybody, he decided to himself, but he wanted a gun for protection. It was just being practical, he thought. After all, he didn’t know what Telia’s friend might have, or do.

Wally arrived back at the bar and grill just as Telia and her friend were finishing off their burgers and lighting up after lunch. The first thing Wally saw was their hands touching across the table. His blood boiled at the sight. Unnoticed, Wally slipped up to the table where the couple was sitting and, without preliminaries, he thundered into the man’s ear, “She may be a slut, but she’s my slut.” The other man, taken by surprise, felt a spasm of rage. Without a thought he picked up his half-full glass of beer and splashed it in Wally’s face. Wally recoiled at the sudden sting in his eyes. He staggered back as the whole scene was momentarily clouded out by the beer. When his vision returned, something just snapped and he pulled the gun from his pocket. Wally was able to squeeze off three shots before the bartender floored him with a baseball bat.

You are assigned as defense counsel in the murder prosecution against Wally for killing the father of Telia’s unborn child. What do you think?

II.

A patient was brought to the hospital several days ago suffering from injuries sustained in a serious automobile accident. Since then his condition has deteriorated steadily. He is being sustained by state-of the-art life support apparatus. The patient’s treating physician, Dr. Bloodworth, holds out little hope that he will ever again be able to live without it.

After consultations with colleagues, Dr. Bloodworth is convinced that the patient will probably never regain consciousness. He give orders that the life-support machinery be removed. The order is implemented by members of the hospital staff and, a short time later, the patient dies.

Can Dr. Bloodworth be convicted of homicide? Explain.

III.

Sonya Jenkins is a registered nurse at a large hospital complex. In order to cut down on employee expenses, the hospital administration has been trying to cut back on the number of nurses it employs and, for the past year or so, the number has been consistently below the full-staffing levels of the past. The hospital has compensated by having nurses work overtime and using temps from an agency. The hospital has also made increasing use of so-called “mandatory overtime,” in which nurses are required to work double shifts, sometimes on short notice.

Sonya has two young children at home and, all things equal, would prefer not to have to work. However, the parking situation near her home is extremely difficult and, somehow, she and her husband managed to run up over $10,000 of unpaid parking tickets. They were forced to borrow money to pay the tickets and now, since her husband’s income from construction work puts them on a very tight budget, she has taken her present job to pay off this debt.

Last weekend, at the end of her twelve-hour shift (7:00 p.m. to 7:00 a.m. on a Friday night) Sonya was asked to work a second shift because the day person called in with the flu. One of the patients in Sonya’s unit had unexpectedly become medically unstable during the night and needed to be closely observed. If Sonya left for home, her unit would have had to be under the nurse in a nearby unit, and could not be as closely supervised. As Sonya knew well, this would put the unstable patient at a substantial risk of death if, as was not unlikely, he suffered an acute episode during the next shift.

Because Sonya’s husband was away on a construction job, their children (age 4 and 7) were being watched by the neighbor across the hall. However, Sonya’s neighbor was in the Army reserves and had to go away for the weekend, leaving no later than 8:00 a.m. After weighing her alternatives, Sonya told her supervisor that she absolutely could not work the extra shift, and left. About two hours later the unstable patient went into crisis and “coded.” Due to the delay caused by the absence of a nurse actually in the unit, the patient died. Sonya has been indicted for manslaughter (reckless homicide) for “abandoning” her patient.

The issue here is whether Sonya was reckless. (Do not discuss omissions liability in answering this question.)

IV.

Forster was a collector of ancient Hittite artifacts and had a substantial collection. One of the things of great interest to collectors of ancient artifacts is the authenticity of the provenance (details of the source of the artifact). The seller typically supplies a written statement of the provenance at the time of sale. A number of years ago there had arisen a substantial problem of unscrupulous sellers providing falsified provenance certificates for ancient artifacts, and the legislature adopted a statute reading:

“Whoever shall, in connection with the sale of ancient artifacts, display or supply a false written certificate of authenticity shall be guilty of a misdemeanor and subject to a prison term of up to one year.”

A few weeks ago Forster saw a Hittite oil lamp for sale on a website run by Blake, who specializes in such things. Forster inquired as to the details. Specifically, he asked about the existence of the usual certificate of provenance, and Blake sent him one by return email—supposedly by an expert on antiquities of this type. On the basis of this certificate, Forster sent his check for $2200 to the seller and received the lamp. It has turned out to be a fake.

Forster has complained to the district attorney, and the question is whether Blake has violated the above statute. It seems clear that Blake just “made up” the certificate and that, in any case, the supposed expert does not appear to exist. However, Blake contends that (whatever else he may be guilty of) he did not violate the above statute since he did not, at any point, supply a “written” certificate. He argues that “written” means at very least some sort of permanent or lasting form, and he did not at any point supply such a thing. The fact that Forster “recorded” what Blake sent does not mean that Blake supplied a written certificate but, at most, that Forster created a kind of “writing” out what Blake did in fact supply.

Blake also points out correctly that the legislature deliberately limited the coverage of the statute to “written” statements of provenance. According to the legislative history this limitation was imposed in order to avoid founding criminal liability on mere misunderstandings (or later mischaracterizations of) sales hyperbole and puffery. Finally he points out that the legislature could not have had email communications in mind when it used the word “written” in its statute and since communication by computers did not even yet exist at the time that statute was adopted.

To date, no case has ever applied the statute to anything but a writing on paper. In one case, moreover, a tape-recording of a statement spoken over the telephone was held not to constitute a “written” certification of provenance within the meaning of the statute.

Should the above statute apply to Blake?

Edgewood logged onto an internet chat room for “Daring Teens” and got into an exchange with a person who described herself as an “almost-15-year old” who was “tired of little boys” and wanted to have an experience with a “man who had some money and could show her the world.” Edgewood replied that he was just person she was looking for and, after confirming that they both were “ready for action,” they arranged a rendezvous at a nearby shopping mall.

What Edgewood did not realize was that the person he was “chatting” with was, in fact, an adult working for the local district attorney’s office. When Edgewood got to the appointed meeting place at the mall, he was approached by two detectives, one of whom took his arm and told him he was under arrest. Being a rather pugilistic type, however, Edgewood managed to smash a fist into the detective’s face, causing him to loosen his grip and, before the detectives could respond, Edgewood had hurtled himself in to the holiday shopping crowds.

With the two detectives still in pursuit, Edgewood reached his car and, tires screeching, headed toward the exit of the mall’s parking garage. The detectives got to their car and continued their pursuit. Rounding a turn inside the garage, the detective who was driving failed to notice a pedestrian loaded up with packages who had just stepped out from between two parked cars. The detectives’ car hit the pedestrian, who was dead on arrival at the local medical center.

The police finally caught up with Edgewood, who is now in custody charged with felony murder. The predicate felony is “attempted soliciting a minor to engage in sexual relations.” (You should assume that any other crimes here, such as resisting arrest, bare-handed assault, this form of escape and reckless driving, are only misdemeanors). Discuss whether Edgewood can be convicted of felony murder.