PACE UNIVERSITY SCHOOL OF LAW

CRIMINAL LAW, ANALYSIS AND WRITING

PROFESSOR HUMBACH December 23, 1998

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 6 questions based upon four 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. 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 minutes per answer, plus 1/2 hour total of reading time.

I.

You have a client accused of being an accomplice in a convenience store robbery. The store clerk was injured seriously and ended up in the hospital where he was unconscious for several days. The clerk later picked out your client in a line-up as the person who acted as the advance lookout and gave the "all clear" for the gunman to come into the store.

Your client admits to you that he was in the store to buy some milk at the time the robbery occurred, but he vehemently denies that he had anything to do with robbery. He claims he was a bystander and hid behind a display rack when he realized that the store was being robbed. He says he was badly shaken in witnessing the crime and ran from the store in fright as soon as the robber was gone. Your private investigator has located another customer, Davis, who left the store immediately before the robbery began. Davis says he did not see either your client or, for that matter, anybody but the robber and the clerk in or near the store.

Your client wants to testify that he was not involved in the robbery and that he was not in the store at the time it occurred. He also wants you to put Davis on the stand to testify that he was not in the store.

1. What are your ethical responsibilities?

II.

Tony Pelton found out that his wife, Tricia, was pregnant as the result of a short affair she had with Tony's personal enemy, Cornwall. Despite Tony's insistence, Tricia refused to get an abortion. Tony moved out. The couple had intermittent contact during the next three months or so. They often argued on these occasions but more usually they got along fairly well, spending quiet evenings together with small talk, TV and popcorn.

One evening Tony came over to visit Tricia and said he'd thought it through and wanted to "make things up." As far he was concerned, he said, Tricia's baby would be theirs, and their life together could go back to being as it was. Even though Tricia had no interest in Cornwall, and said so, she also said she could not just go back to living with Tony again after all that happened. Tony was crushed.

Their conversation became progressively more emotional with Tony getting more and more sentimental as they talked. Then all of sudden something in Tony snapped. "If that !@#$% baby's the problem," he said, "let's just get rid of it." As he spoke the word "rid," his whole body tensed and he slammed a clenched fist into to Tricia's abdomen. The next day Tricia suffered a miscarriage.

The local criminal code defines "criminal homicide" as "causing the death of any human being other than oneself." It defines first degree murder to include "any premeditated homicide." It defines second degree murder to include:

"(a) any intentional homicide except when committed with premeditation or under

sufficient provocation, and

(b) any homicide in the commission of a felony."

It defines manslaughter to include "any homicide committed while under a sufficient provocation." None of the terms in this quoted statutory language, except "felony," are defined in the criminal code, and the courts normally use common-law definitions in interpreting the code. For the past 10 years, however, the word "human being" in the state's wrongful death statute has been interpreted to include all fetuses, from conception on, so that wrongful death damages can be recovered in the death of a fetus.

2. Make an argument that Tony committed "criminal homicide" in causing the death of the Tricia's baby.

3. Assuming that Tony's act could be considered "criminal homicide," which specific offense (of those defined above) is it, if any?

III.

From The Journal News, December 15, 1998:

Man sentenced in air bag incident

Parma, Ohio—A man who failed to switch off an air bag that deployed in an accident and killed his infant son was sentenced yesterday to two 12-hour days in jail–the boy’s birthday and the crash anniversary.

Dwight Childs, 29, is believed to be the first person sentence for failing to switch off an air bag, according to the American Automobile Association.

“Anything I do won’t matter,” Municipal Court Judge Kenneth Spanagel told Childs, who hung his head and grimaced during his sentencing. “Your personal guilt – you’re going to carry.”

* * *

No law required Childs to disengage the air bag, which deployed after Childs’ truck crashed into another truck at an intersection.

But prosecutors charged him because his 1997 pickup truck and the boy’s car seat had stickers warning that the device should be switched off in such circumstances.

4. Draft a judicial opinion supporting the conviction in this case.

IV.

The following is quoted and compiled from The New York Times and The Boston Globe, December 16, 1998:

Using the convoluted calculations that all but dictate sentences in federal court, Alexander Leviner scored high. That meant he was facing close to four years in prison, and maybe nearly six, for having a gun and 14 rounds of ammunition. Yet when Leviner was sentenced earlier this month by US District Judge Nancy Gertner, he got just 2 1/2 years in prison.

Leviner, 33, of Roxbury, was arrested about 3 a.m. on Sept. 14, 1997, after Boston police stopped the car in which he was riding. Police were investigating a report of shots fired . . . and stopped the red Nissan they spotted driving fast, with its lights off. A spent shell casing from Leviner's gun was on the car floor near where he was sitting, along with ammunition. Based on his prior convictions, which included minor drug possession charges, Leviner was charged with being a felon in possession of a gun, a federal offense.

Under the rigid Federal sentencing guidelines, which assign mathematical scores for a defendant's criminal record based on the length of time he has served in prison on previous convictions, Judge Gertner could have sentenced Mr. Leviner to four to six years in prison. Instead, she rejected the guidelines [i.e., apparently she made a "downward departure"] and gave him just two and a half years. In reaching her decision, Judge Gertner said she took note of a growing body of research that "strongly suggests there is racial disparity in the rates at which African-Americans are stopped and prosecuted for traffic violations."

[For example, in] a Maryland lawsuit, Robert L. Wilkins, a black public defender who was stopped on Interstate 95, learned through discovery that while blacks made up 17 percent of the drivers on the highway, they constituted 70 percent of the drivers stopped by the Maryland state police.

David Rudovsky, a professor at the University of Pennsylvania Law School and a civil rights lawyer in Philadelphia, found similar racial disparities in traffic stops along Interstate 95 just south of Philadelphia, and won a class action suit . . . . "There is absolutely no question that minorities get stopped on the highways in a severely disproportionate way because of their race," he said.

[David A. Harris, a law professor at the University of Toledo has also] detailed race-based traffic stops from various parts of the United States, including nearly 1,100 videotaped stops along a stretch of Interstate 95 in central Florida in the late 1980s. While blacks and Hispanics made up only 5 percent of the drivers along that stretch of road, 80 percent of the cars searched by police belonged to black and Hispanic drivers, Harris wrote, quoting from an Orlando Sentinel investigation.

[Judge] Gertner . . . said the preponderance of minor traffic offenses on the arrest record of [Leviner] raised "deep concerns about racial disparity" because none of his motor vehicle charges involved erratic driving or other behavior likely to attract police scrutiny. Most were for driving after his license had been suspended.

"Motor vehicle offenses, in particular, raise deep concerns about racial disparity," Judge Gertner said. Mr. Leviner had previously been stopped in three largely white Boston suburbs, Milton, Brookline and Waltham, and charged with driving after his license had been suspended.

[Professor] Harris . . . said the decision was the first in the nation to depart from the sentencing guidelines because the defendant's record might have been inflated by racial disparities in traffic stops.

5. Discuss why, under the usual rationales for punishment, Leviner should be punished.

6. How will Judge Gertner's downward departure stand up if the government appeals?

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