This is a closed book exam. Do not speak with any person other than the faculty member who is administering this exam until you have turned in your exam. Do not remove any exam materials, questions, or blue books from the room during the exam. After you complete the exam and turn in your blue books, you may take the questions with you when you exit the room.
The exam consists of two parts. You will have three hours to complete the exam. Recommended times are indicated for each part. Answer all questions.
Identify yourself on your blue books only by your exam number. By placing the exam number on your blue book and by submitting your blue book for credit, you are agreeing to the following pledge (as required by law school policy):
"On my honor I have neither given nor received improper assistance. And I will report any improper assistance that I am made aware of."
Do not assume any additional fact or law, except those laws studied in the course, without stating explicitly your assumption and explaining why such additional information is necessary for your answer.
PART I. SHORT ANSWERS (60 minutes for this part--or an average of ten minutes for each question)
Instructions. Write a coherent, literate response to each of the following problems. Each problem in this part can be answered adequately with a response that is no longer than one paragraph.
1. The evidence shows that defendant Barry Badd, intentionally shot and killed Victor Thumb during a robbery in Kosciuszko, Mississippi, because Thumb only had $3.47. The defendant has asked for a jury instruction as follows:
Men and woman of the jury, if you find that the defendant killed the victim during the course of committing armed robbery with premeditation and deliberation, then you should return a verdict of guilty to the crime of capital murder.
Explain whether the trial court should give such an instruction.
2. Same facts. Explain whether this would be a proper instruction under the Model Penal Code.
3. Kathy Kilmer and Phyllis Putter, residents of Kosciuszko, Mississippi, were once best friends and golfing partners. One day Kilmer learned that Putter was having an adulterous affair with Kilmer's husband. Kilmer flew into a rage. The next morning, Kilmer waited on the street outside Putter's house with a gun. When Putter drove down her driveway, Kilmer approached Putter's car pointing the gun at the car's window. Through the glass Kilmer observed Putter's five-year-old daughter sitting on the seat next to Putter.
As the car approached, Killer took careful aim at Putter and fired six shots into the car. The shots wounded Putter and killed Putter's daughter. Putter was an elected committeeman for the Democratic Party.
Mississippi law provides:
Any person who shall intentionally (a) burn any child, (b) torture any child or (c) except in self-defense or in order to prevent bodily harm to a third party, whip, strike or otherwise abuse or mutilate any child in such a manner as to cause serious bodily harm, shall be guilty of felonious abuse and/or battery of a child and, upon conviction, may be punished by imprisonment in the penitentiary for not more than twenty (20) years.
You are working for the prosecutor, who asks whether there are any problems presented by the merger doctrine or otherwise that might prevent a successful prosecution for capital murder for the death of Putter's daughter. Please advise.
4. Abe and Baker were college students who continued to room together after they graduated. Abe started to date Sue, whom Baker had known in high school. Baker had once been in love with Sue and had even proposed marriage to her, but she had declined.
Baker was aware that Abe's and Sue's relationship was not entirely happy. He frequently told Abe that Sue was no good and that she would betray him some day. One night Abe got drunk and started complaining about how Sue wanted to see other men. As he got drunker, Abe started making various violent statements including, "She does not deserve to live."
Baker agreed and added, "She's no good. I told you so."
Finally, Abe threw down his drink and shouted, "I am going to kill her. Where is your gun."
Abe was referring to a loaded handgun that Baker kept in his room. Baker told Abe that he kept the gun in his top dresser drawer. Abe went into Baker's room and took the gun from the drawer. Putting the gun in his pocket, Abe said, "I'll be back soon."
Baker said nothing.
Abe shot and killed Sue that night. Abe pleaded guilty to Sue's murder and is prepared to testify to the above facts. Baker has been charged as an accomplice to murder and manslaughter in a jurisdiction that follows the common law. Baker has retained you and wants to know whether he may be found guilty of either crime. Please advise.
5. The state of Model, which has enacted the Model Penal Code, has suffered serious forest fires for the past three summers. Accordingly, the Model legislature enacted a new criminal statute:
Section 252.1. A person is guilty of a misdemeanor if he [or she] burns an open flame for more than thirty seconds outside an enclosed structure without a license from the Department of Environmental Happiness.
Section 252.2. A person is guilty of a felony of the third degree if he [or she] causes any fire to damage the property of another without a license from the Department of Environmental Happiness.
One summer evening in the state of Model, after the effective date of the new legislation, Paul Feuerabend decided that it was time to burn back the kudzu weeds as he had done every summer for the past twenty-three years.
Feuerabend did not know about the new statute and did not have any licenses for burning open air fires. He carefully measured the wind and got a weather forecast. The wind was blowing gently and steadily from the east and was predicted not to change for eight hours. Consequently, Feuerabend started a controlled burn of the kudzu on the east edge of his property, expecting the fire to move slowly to the west where it would be stopped by a four-lane road.
During the previous twenty-three years Feuerabend's fires had never burned out of control or damaged anyone else's property. Unfortunately, this evening the wind changed directions unexpectedly and increased in force, blowing flames and sparks onto a neighbor's crops. The fire destroyed the neighbor's crops and spread from there to the Model State Forest.
Feuerabend has been indicted for violating sections 252.1 and 252.2. You are his lawyer. He tells you that he did not know that a license was required and also that he did not mean to burn anyone else's property. Please explain to him what these statutes require the state to prove and whether he has any defenses.
6. Bub Trieber got very drunk one night at the Shady Grove Lounge in Kosciuszko, Mississippi. The bartender told him not to drive, but Bub laughed in his face and said, "It's my life, Dude." After Bub stumbled out of the bar, the bartender called the police.
Before the police arrived, however, the bartender heard screeching brakes and ran out into the street. Bub had driven over and killed Trey Oldogg. The police investigation determined that Trey was a retarded three-year-old who was hiding under Bub's car which had been parked on the street in front of the bar. The reason Trey was hiding there is not known. He may have been playing a game. Trey was not visible to Bub and would not have been visible unless Bub had gotten down on his hands and knees and peered under his car with a flashlight. The area was not residential; and there were no children's toys present or other reasons for Bub to have suspected that a child might have been near.
Bub was arrested at the scene and tests confirmed that his blood alcohol rate was far in excess of the levels specified in Miss. Code Ann. § 62-11-30. Bub was subsequently indicted for Trey's death under that statute. (He has not been indicted under any other homicide statutes.)
You have been appointed to represent Bub who asks you to explain his potential criminal liability under that statute. Please explain.
PART II. ANALYTIC ESSAYS (two hours)
Instructions. Write coherent, literate essays in the Blue Book that respond to each of the following problems.
A. The Case of the e-mail female impersonator (60 minutes)
Bif, a eleven-year-old boy living in Kosciuszko, Mississippi, communicated by e-mail with Sleezo, a fifty-year-old man living in Philadelphia, Mississippi. Bif used the name Beth in all his e-mail communications with Sleezo. And Bif described himself to Sleezo as "a mature, big boned woman, old enough to be your grandmother."
The two communicated about various sexual acts that they proposed doing to each other and to other people. Bif thought the communications were funny and did not think either he or Sleezo really intended to do any of the proposed acts.
In one communication, Sleezo invited "Beth" to come to room 212 of the Sunset Motel in Philadelphia, Mississippi on June 13, 2000. Sleezo bragged to "Beth" about the size of his penis and asked "her" to come perform oral sex on him at that location.
Bif's mother discovered this e-mail when Bif and his buddies were laughing about it. Bif's mother did not think it was funny and took it to the District Attorney who discovered that room 212 really was Sleezo's residence and that Sleezo had been convicted of rape in Alabama in 1987.
The District Attorney arrested Sleezo. A search of his motel room at the time of the arrest disclosed a collection of pornography and various illegal drugs. Sleezo has been charged with attempted rape and attempted sexual battery in connection with his e-mail proposal to Bif. Please explain the relevant elements of the crimes and identify and explain any applicable defenses.
B. The Case of the Deadly Doddering Defendant (60 minutes)
Professor Mousemeier, for many years one of the greatest Criminal Law Professors, was in an automobile accident that caused permanent brain damage. The injury resulted in a variety of strange behaviors.
First, Mousemeier suffered from periodic blackouts or periods of unconsciousness. During these periods he continued to act in apparently purposeful ways and appeared conscious to other persons. Second, he acquired the fixed delusion that he was Superman. Specifically, he believed he was born on another planet, had supernatural powers, and was impervious to most lethal injuries. Third, he suffered from irrational fears that he was being pursued by an evil power named Lex Luther who was able to kill him with a special substance called Kryptonite.
Mousemeier's memory also deteriorated so that he could not recognize many former acquaintances and could not remember recent events. He was also unable to remember any facts of cases that he covered in class but was able to compensate for this by resorting to the Socratic method.
Mousemeier also suffered wild mood swings and would become belligerent when challenged. For example, he was unable to accept that George Bush was president and started shouting and swinging on one occasion when a treating physician tried to persuade him of that fact.
Mousemeier sought help from several psychiatrists. They all generally agreed that he suffered from organic brain injuries or dementia that resulted in pronounced symptoms of schizophrenia, paranoid type. While there was no cure, the psychiatrists prescribed tranquilizers to reduce his anxiety. They did not think he presented a risk of harm and recommended that he continue to teach in the law school.
As time went on, Mousemeier became unable or unwilling to perform many basic grooming tasks and he acquired a rank odor. His family feared for his long-term health and sent him to Glorious Sunrise Home (formerly known as the Home for the Incurables) from where he commuted to his teaching job.
During his first year at Glorious Sunrise, Mousemeier engaged in several acts of violence. He poked another patient with a cane when the patient told him that George Bush was president. He threw a shoe at a television monitor during "Superman," shouting "Faker, faker. I am the real Superman." And he was suspected of removing "Lexis" decals from automobiles in the parking lot.
At the beginning of Mousemeier's second year in residence at Glorious Sunrise, that facility hired a new janitor named Bob Luther. Bob's work clothes included a blue shirt with the name "Luther" boldly embroidered over the left pocket.
When Mousemeier first saw Bob, he stared at the embroidered name on the uniform, became visibly upset, fled to his room, and locked the door. The staff nurse on duty followed Mousemeier to see what was wrong. Opening his door with a pass key, she found him cringing in a corner murmuring, "Luther, Luther, Luther. Bad, bad, bad." The nurse, unfamiliar with details of Mousemeier's case history, had no idea what was upsetting him. She gave Mousemeier the maximum prescribed dose of tranquilizers and left him asleep on his bed.
A half hour later Mousemeier beat Bob to death with his cane when Bob entered his room to empty the garbage can. Mousemeier was found striking the dead body with his cane, chanting, "Kill or be killed. Can't kill me. Kill or be killed. Can't kill me..."
Mousemeier claims to have no memory of the event. Four experts have evaluated Mousemeier after the killing. Dr. Phibes believes Mousemeier is lying and that he killed the victim on purpose and is exaggerating his psychotic symptoms to avoid prosecution. Dr. Freud believes Mousemeier was conscious at the time of the killing, was aware of what he was doing, knew it was wrong, and has since unconsciously suppressed the memory. Dr. Gulliver believes that Mousemeier was conscious at the time of the killing; believed it was necessary to kill or be killed; and has since forgotten the experience because of his brain injury. Dr. Adler believes Mousemeier was unconscious at the time of the killing and was acting automatistically or in a fugue state induced by the tranquilizers.
Bob's estate has commenced a civil action against Mousemeier for wrongful death, and Mousemeier has impleaded Glorious Sunrise. The estate seeks punitive damages on the theory that Mousemeier engaged in criminal acts in causing the death. You are clerking for a law firm that represents Big Insurance Co., the company that insurers Glorious Sunrise. Under the terms of the policy issued to Glorious Sunrise, your client expressly excluded liability for damages resulting from the commission of any crimes.
Frederick McGavran, a partner in your firm, has asked you to write a memorandum outlining Mousemeier's potential criminal liability. Please evaluate it under both the Model Penal Code and the common law.
1. The court should not give the requested instruction. Capital murder in Mississippi does not require premeditation and deliberation.
2. The instruction would not be proper under the Model Penal Code. The Model Penal Code has no such crime as capital murder.
3. Felonious child abuse would be available in theory because the Mississippi Supreme Court has held that listed predicate felonies for capital murder like felonious child abuse do not merge. Nevertheless, the defendant has not satisfied the elements of this felony because she did not intentionally abused the child.
4. While Baker had no duty to act to prevent the killing of another, his statement about the location of the gun constitutes a voluntary act that helped the principal. The real problem is whether he acted with the necessary mens rea. Most jurisdictions require true purpose for accomplice liability. But even true purpose jurisdictions find that providing a gun with knowledge of the principal's purpose furnishes sufficient evidence for the jury to find such purpose. Under these facts, a jury may convict, and an appellate court would affirm.
5. Because the statute is silent, recklessness (or higher) is required for every material element. [This general rule got no credit.] This applies to defendant's conduct as follows. For 252.1, he burned the flame purposely and knowingly and thus satisfied the mens rea [recklessness being satisfied both by definition and by specific rule by higher levels of culpability]. For 252.2 he caused the damage to other's property recklessly only if he was aware of a significant and unjustifiable risk that constituted a significant deviation from law abiding conduct. This is probably not established.
Though mistake of law is not a general defense, the lack of a license may be a material element. If so, there is a level of culpability that attaches to it of recklessness or higher, in which case defendant would have a defense that he was not aware of the risk.
6. The mayhem and homicide offenses in Miss. Code Ann.
§ 62-11-30 require negligence. But did not act with civil, let alone
criminal negligence under these facts. Moreover, the death was (arguably)
not proximately caused by Bub's drunk driving but by the child hiding under
A. The Case of the e-mail female impersonator
A good answer would:
1. Explain that attempt in Mississippi requires: endeavor and design (specific intent), overt act, and failure or prevention of completion.
2. Identify relevant rape elements: forcible sexual intercourse (male-female genitals).
3. Identify relevant sexual battery elements: sexual penetration (defined to include oral sex), of child under 14, by person 2 years older than victim.
4. Explain that legal impossibility might prevent conviction for attempted rape. (No possible male-female intercourse possible with this victim.)
5. Discuss defense that defendant did not specifically intend to commit sexual batter where he thought the victim was old enough to consent. [It does not matter that sexual battery when completed would be a strict liability crime.]
6. Discuss rule that one cannot attempt to commit a strict liability or general intent crime.
7. Discuss defense that the e-mail communications did not yet go beyond mere preparation and were not a direct frustrated act.
8. Apply Model Penal Code's formula for substantial step strongly corroborative of purpose is ambiguous here. The soliciting showed purpose to engage in acts but no purpose to engage in acts under the circumstances that constituted sexual battery. What is more, the Mississippi overt act requirement apparently requires an act closer to completion than does the Model Penal Code.
9. Discuss and distinguish Ishee case. Even if
affirmed by the Supreme Court, the circumstances of face-to-face solicitation
in Ishee differ in that the actor was closer to completing the target
offense and the actor had the opportunity to identify his or her intended
B. The Case of the Deadly Doddering Defendant
A good answer would:
1. Show how facts satisfied elements of murder at common law (malice being defined to include intent to kill).
2. Explain the common law requirement of actus reus and voluntary act.
3. Discuss how the unreasonable belief would prevent self-defense at common law but would mitigate murder liability to manslaughter by the doctrine of imperfect self-defense.
4. Accurately state the M'Naugton definition of insanity.
5. Show how facts satisfied the elements of murder under the Model Penal Code (purposely causing death).
6. Explain Code's requirement of voluntary act and its specific exclusion of automatism from voluntary act.
7. Evaluate how the defendant may have satisfied the Code's initial requirements for self-defense (actual but not reasonable belief) but further explain that this would not provide a defense to manslaughter or negligent homicide under the Code if the defendant was reckless or negligent in his unreasonable belief. [He was at least negligent!]
8. Accurately state the ALI/Code definition of insanity.