PACE UNIVERSITY SCHOOL OF LAW
PROFESSOR HUMBACH December 16, 2003
FINAL EXAMINATION TIME LIMIT: 1 hr. 45 min.
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.
This year’s final examination consists of two parts:
1. Take-home part. You should have with you your paper answering the take-home part of the examination. Place your examination number clearly on the first page Do it now. Place the paper in the envelope with your examination booklet and other materials.
2. Proctored part. This is the proctored part of the examination. It consists of 3 questions based on two 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 3). 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, you will receive more credit by discussing 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—the elements you are going to talk about. Then talk about them.
Remember, too, to keep your answers on point, and answer only the questions asked. Do not circle around your point. Aim for the bull's eye. Otherwise, you will risk running out of time. You have about 25 minutes per question, plus about a 1/2 hour of reading time.
Benny and three of his buddies were out driving around. Benny failed to notice a red light and went right through it. As it happened there was a police car, and it pulled out, roof lights flashing, to pull Benny over. However, Benny had a warrant out against him and, rather than stop, he accelerated. A chase, eventually involving three cruisers, then ensued.
When Benny reached the shopping mall near the edge of town, he saw a long line of cars stopped at a traffic signal up ahead. In order to avoid this bottleneck, he steered his car onto a grassy margin that divided the road from a large parking lot surrounding the shopping mall. When he reached the parking lot pavement he began speeding around the lot, a police cruiser in pursuit. The other two pursuing cruisers did not go into the parking lot, but set off to block the two roads that led away from the mall.
It was a little after 3:00 p.m. and the mall was full of shoppers. All around the parking lot people were walking to and from their cars. Benny wove several turns up and down the parking rows, his tires screeching and the police car in pursuit, siren howling. People with armloads of packages would suddenly see Benny turn into their row and they would jump between the parked cars to get out of the way. However, one person (who had his back to Benny’s oncoming car) did not jump. Instead, disoriented by the noise of the siren, he looked left and right in momentary confusion as to where the roaring motor sound was coming from. Benny saw the guy but made a flash decision not to jam on the brakes. The victim was struck by Benny’s speeding car and later died of the injuries.
Benny was apprehended the next day and the prosecutor has charged with him premeditated murder, saying that this evidence supports such a charge. Benny’s lawyer contends that this evidence would, at most, support a conviction of [reckless] manslaughter.
Question 1. Who is right? Is there any other basis for a murder charge? (Note: disregard the felony-murder rule in answering this question)
Kay Morris and Del Thornton had lived in houses across from one another for several years. Increasingly they had been getting on one another’s nerves. It all seems to have started when Del got a Rottweiler dog. The dog barked a lot. Kay went for a long time without complaining. When she finally did complain, however, she had so much pent-up anger that she said some things which, in retrospect, she agrees went over the line. However, that was several years ago, and the dog is long gone.
Other problems came and went—the leaf blowers used at 8:30 a.m. by Kay’s gardening service, the yard-illuminating spotlight that Del installed and then left on all night (causing annoying light in Kay’s bedroom), and other things more trivial. These were not big issues, but were the occasion for Kay and Del to say some things to one another that were downright rude. When Del read a newspaper report that “Kay Morris” had been picked for prostitution at a road house outside town he was ecstatic. He repeated the story to most of the neighborhood before he was told that person arrested had been a different “Kay Morris” altogether. Nevertheless, Del kept track of his neighbor’s visitors, and Kay (a youngish middle-aged divorcee) did have occasional gentlemen friends whose cars remained in her driveway over night. Del was convinced that Kay Morris his neighbor had a lot in common with the police-blotter person of the same name, if indeed they weren’t actually the same person. Unfortunately, he said so, a lot, and word of this got back to Kay.
The day Kay killed Del, there had been a big windstorm the night before. Kay’s garbage can (put out for morning collection) had blown over and much of its contents had been carried onto Del’s property by the wind. His shrubs were filled with unpleasant bits and pieces of used tissues, combed out hair and other such disgusting residues of everyday life. Del was furious. He grabbed one of the dirty tissues from a yew bush and, with it in hand, he crossed the street and knocked on Kay’s door. When she came to the door, Del pointed out what had happened and asked her what she planned to do about it. “Well, it’s Tuesday,” Kay replied. “I’m going to work.” Del was enraged. He called her a “slut” and a number of other things that were even more unpleasant. Kay asked Del why he spread stories about her around the neighborhood, and Del said “Because they’re true…aren’t they?” Just before he turned to leave, he intoned in a slightly singsong voice “trash for the trash,” and he tossed the dirty tissue in her face.
As Del walked away, Kay was in a boil. Del was too. He spent the next half-hour or so cleaning the debris out of his shrubbery, cursing every fragment. Just as he was finishing up, Kay came out of her house to go to work. As she was on her way toward her car, Del crossed the street with the carton of trash he’d collected from his bushes. Kay hurried into her car and locked the doors, feeling an almost blinding anger toward Del, along with some fear. She watched as he walked up her driveway, behind the car, with his carton in his arms.
By the time Kay got her motor running, Del had gotten to within 4-5 feet behind Kay’s car. There he stopped. He then just stood there, blocking the driveway, and looked through the car’s back window at the reflection of Kay’s eyes in the rear-view mirror. At this point Kay’s kaleidoscope of emotions exploded. Without a thought (that she remembered), she pressed down on the gas, causing the car to bolt backwards and strike Del. The impact bowled him to the ground, and the car passed over him. Then seeing him lying in front of her in the driveway, Kay shifted the car into “drive” and pressed the gas again, this time turning the wheel so as to run over Del with the front and back tires. After the feeling second “bump,” she shifted into reverse, and ran over Del again, repeating the process two more times.
“I don’t know what got into me,” she explained later. “I hardly remember even doing it. It was like it was this other person doing it, making me act, making me run the car back and forth. Like I was just watching. Sure I was angry when I came out of the house, but then something just snapped.”
Question 2. Is Kay guilty of either murder or manslaughter? Explain, using the common law and any differences under the Model Penal Code (and New York) approaches.
Question 3. Assume that, after conviction, Kay’s attorney asks the court to sentence her, at most, to home detention and/or probation, but not jail time. In light of the usual rationales for punishment, how should the court react to this request?
<End of examination.>