PACE UNIVERSITY SCHOOL OF LAW

CRIMINAL LAW, ANALYSIS AND WRITING

PROFESSOR HUMBACH December 8, 1999

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 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 (1 to 5) 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 20-25 minutes per answer, plus about a 1/2 hour of reading time.

I.

It was Sunday afternoon and Maud's ex-husband, Frank, was coming over to pick up the couple's two children, to take them out for dinner. Frank arrived about 20 minutes late, and had obviously been drinking. When Maud asked about this, Frank said he had "just gone out for a couple of beers with the guys" after the softball game. Frank belonged to a team in the local amateur league, and they played in the early afternoon every Sunday. Maud expressed some reservations about Frank's driving condition, but Frank said: "Hey, look, we're not going to get into that again, are we? The children have a right to have dinner with their dad."

As sole custodial parent, Maud was legally responsible for the children's well-being, but Frank had been prompt with the support payments in the past few months. Maud didn't want to raise an issue and maybe get under his skin. She knew how he could be when he got irritated and, without the regular payments of child support, Maud would have to make up the difference, and that would mean no money left over for tuition at the community college.

About an hour after Frank and the children left, Maud's phone rang. There had been an accident. Frank's car apparently missed a turn and slid off the road, striking a large tree. All three occupants of the car died of injuries sustained in the crash. The autopsy indicated that Frank's blood alcohol level was .12, which is above the legal limit.

1. Would Maud's decision to let her children ride in a car operated by a drunk driver constitute either recklessness or criminal negligence under the standards delineated in the Model Penal Code (and in New York)? Note: For purposes of this question, do not discuss any possible issues of "intervening cause" or "proximate cause," which are subjects for next semester. What the question is asks for is a discussion of mens rea only.

II.

The state you are in has a statute known as the Campaign Law. Section 700.12 of that law states, among other things:

"No person shall make any use of any buildings, facilities, open lands or other properties belonging to the state or to any municipality thereof for the purpose of soliciting or collecting funds to be used for any political campaign."

Criminal penalties are prescribed for violating this section, which was enacted 80 years ago. At that time, it had been a fairly common practice among incumbents to hold political fund-raising events in city and state office buildings and recreation facilities and, even on occasion, in the capitol building itself. This practice was thought to give the incumbents an unfair advantage.

In a very messy negative campaign, Mayor Bunn of the City of Moripless is being challenged by David Straightfellow. Among other allegations, Straightfellow claims that Mayor Bunn has illegally caused the city to maintain a website that violates the section quoted above. Although the website is almost entirely devoted the history, attractions and other points of interest of Moripless, it does have a "page" that allows people to contribute to Bunn's campaign via credit card.

The local prosecutor, a political ally of Straightfellow, has attempted to embarrass and distract Mayor Bunn by having him indicted for violating of the Campaign Law. The mayor contends that "this is all partisan nonsense." Legally, he points out that the statute manifestly does not refer to computer websites, that the legislature obviously did not intend the statute to prohibit this use of computer websites owned by cities, and that the statute was not enacted with the purpose (motivation) to prohibit computer websites. In a more practical vein, the mayor's lawyer contends that, in any case, the statute (which never before has been applied to computer websites) could not be applied to the city website in this case.

2. Is there support for the notion that the statute does not cover computer websites used to solicit campaign contributions or that, at any rate, it could not applied to the city's current website?

III.

For a time after Marisa had come to work in the same company office as George, the two of them had hit it off very well. After a while, however, Marisa tired of George, and she broke off the romance. George, however, was not ready to give up and, as far as Marisa was concerned, he started to become a pest. It was not that George ever did any thing in particular that was "objectively" inappropriate, but under the circumstances Marisa did not care to receive attentions from George at all. From her standpoint, a little bit a George went a real long way.

What made things especially bad was that George fancied himself as a very clever practical joker. Everybody in the office knew that, and most people received his shenanigans with relatively good humor. The tragedy in this case unfolded as a consequence of one of George's attempts at a prank. Marisa was exceptionally terrified of insects and "bugs" of every kind. George knew this. One day he obtained a very large and lifelike rubber tarantula spider and secretly placed it in Marisa's desk, on top of a box of cough drops. When, a few minutes later, Marisa reached into her drawer and felt, then saw, the giant quivering spider, she screamed and screamed, pressing her palms against her pallid cheeks, she vibrated visibly and she screamed and screamed, over and over again.

Like everyone else, George heard the clamor and came running. When Marisa saw George's self-satisfied grin, she shouted "You b------!" and grabbed a heavy metal tape dispenser on her desk, hurling it toward George. The dispenser hit George in the temple and bounced off the side of his head. George has not yet regained consciousness, and it is not clear he ever will.

3. (a) If George dies, can Marisa be properly charged with premeditated murder? Discuss. (Do not discuss provocation or extreme emotional disturbance here).

(b) If George dies and Marisa is charged with homicide in his death, and the state recognizes "extreme emotional disturbance" as a mitigating factor, would that factor be applicable to Marisa's situation? Discuss.

4. If it becomes obvious that George is never going to regain consciousness due to the amount of post-trauma swelling and brain damage that has occurred, will his doctor be guilty of committing homicide by "pulling the plug" on George's life support machines?

IV.

DeBeer has been convicted of "travel with the intention of engaging in sexual relations with a person under 18 years of age," a state offense that is modelled on the Federal crime of travelling in interstate commerce for such purposes. Using an internet "chat room," DeBeer had made contact with a person who called herself Ellen. She represented herself to be a 14 year old high school girl living in the town of Camber. In response to DeBeer's inquiries about her social life, Ellen responded that she "liked to fool around" but that she "was bored with boys her own age." She added that she had learned "you sometimes have to take chances with life" and "try new things" because "that's the only way you'll ever know what it's all about." The two of them agreed to set up a rendezvous. Ellen suggested the meeting place, the Gallant Mall, which is a large shopping complex located in Camber, about 170 miles from DeBeer's home. DeBeer made the trip by car.

Unbeknownst to DeBeer, his new chat room friend was in fact an investigator for the district attorney's office in Camber, an adult who had no intention of appearing at the rendezvous in person. Instead, DeBeer was met by two police officers who took him into custody.

On the basis of this evidence, the jury found DeBeer guilty, as stated above. Now, in the sentencing phase, DeBeer's lawyer points out that DeBeer has expressed deep remorse, is the sole source of support and care for his disabled wife (who has Parkinson's disease), has never been in trouble with the law before, and has not, in fact, brought any actual harm to any person, whatever may have been his intentions. Although the actions of the district attorney's office were not technically entrapment, DeBeer's lawyer forcefully insists that there is no evidence that DeBeer's admitted pedophiliac desires would ever have been acted upon except for the fact that investigator "Ellen" had provided him with such an extraordinary (apparent) opportunity. If severity of impact on the victim is a legitimate ground to increase a sentence, the lawyer contends, then the total lack of a victim ought to correspondingly decrease the sentence.

The district attorney's office is concerned that the judge, following the example of several Federal judges in similar cases, will let DeBeer off with probation.

5. Should DeBeer receive a mild sentence based on his family responsibilities and the lack of an actual "victim"? Explain.

(Note: Although the Federal Sentencing Guidelines do not, of course, apply to state sentencings, you should assume that the sentencing judge will consider the same sorts of arguments and factors as apply in Federal sentencing "departures.")

<End of examination.>