Criminal Law, Section 2 December 8, 2000
Mr. Green 1:30 - 5:30 p.m.
1. This is an open book exam. You may consult any written materials that you have with you at the beginning of the exam.
2. The examination period will last four hours. It is recommended that you use at least the first half hour of the period to read the questions, determine exactly what they are asking, note issues that you wish to discuss, and plan your answer. Answers that are concise and well-organized will receive higher scores than those that are rambling and long-winded. Points will be deducted for answers containing incorrect or irrelevant statements.
3. You are encouraged to use subheadings when they help to clarify your analysis and organization.
4. If the same analysis would apply to the resolution of more than one issue on the exam, there is no need to repeat such analysis. Instead, you are welcome to incorporate it by reference.
5. You must answer both questions on the exam. Please note that the questions are weighted unequally for grading purposes. To help you budget your time, I have indicated the approximate amount of time that each question should take to answer, assuming that you use the first half hour of the examination period as suggested.
6. You may write or type your answers to this examination. The answer to the first question should be written on a legal-sized pad with dark ink (if you write) or on double-spaced single sided paper (if you type). Your answer to the second question should appear on the appropriate lined pages provided below (again, typed answers should be double spaced). No credit will be given for answers exceeding the space limitations. The space given is only a maximum. You might well be able to write an excellent answer in substantially less space.
7. Write legibly. You will receive no credit for answers that cannot be read.
8. Write your confidential exam number on your copy of the exam and on the front of your legal pad (or typing paper). Do not write your name or otherwise identify yourself anywhere on either the exam or your answers.
9. If there are ambiguities in the facts, or additional facts you would need to resolve a particular issue, you should state any assumptions that you make, and how they affect your response. Be careful not to "assume away" key issues that need to be addressed.
10. At the end of the examination period, please return this copy of the examination (labeled as indicated above) along with your answers.
11. Good luck and Happy Holidays!
PLEASE DO NOT TURN TO THE QUESTIONS THAT FOLLOW UNTIL YOU ARE INSTRUCTED TO DO SO.
Times were tough at Bayou State University ("BSU") in Baton Rouge, Louisiana. BSU's football team, the Fightin' Nutrias, were limping through yet another losing season. The team's new head coach, Max Martinet, despite a four year $1.6 million a year salary, had been unable to deliver the winning season so fervently hoped for. By late October 2000, the team's bowl prospects were nil. Several star players were either injured or in jail. Attendance at home games was down. Alumni donations to the University had nearly dried up. The team had even lost its "sure win" homecoming game against the South Central Arkansas State Yellowbellies.
University administrators were desperate to dump Martinet and hire a new coach. But any such move was bound to be costly. Martinet's contract provided that, in the event of his firing, he was entitled to liquidated damages. Since Martinet had been on the job only one year, BSU could not fire him without first paying the $4.8 million remaining on his contract.
Unfortunately, that kind of money was not so easy to come by. Maintenance of University buildings had long since been deferred, library acquisitions had been cut to the bone, and faculty salaries were already notoriously low. In order to raise the funds needed to pay off Martinet's salary and hire a new coach, BSU administrators were considering the possibility of shutting down the entire Department of Biology.
By late October 2000, word of the Biology's Department possible demise had spread all over campus. One person who was particularly concerned about this prospect was Diana "Doc" Pendleton, an M.D./Ph.D. senior professor of biology and expert in genetics, who spent most of her time in the lab but also maintained a valid license to practice medicine. For the last several years, Pendleton had been working on a project to create a genetically engineered Tur-duc-ken -- a bird containing DNA from (and some of the most delicious qualities of) a turkey, a duck, and a chicken. Pendleton feared that, if the Department of Biology were to be disbanded, all of her work in the lab would be for nought. On the evening of October 31, 2000 she took it upon herself to save the Department.
At approximately 6:00 p.m., Pendleton drove to Phinian's Pharmacy on Government Street in Baton Rouge. The pharmacy was owned by Phil Phinian, who also happened to be the pharmacist on duty when Pendleton arrived. Pendleton wrote out a prescription for twenty 1 gram dosages of dextromoramide, an extremely potent narcotic that is almost always prescribed in dosages of 1 milligram (1/1000th of a gram). Pendleton told Phinian that she had a patient she wanted to "put to sleep for a very, very long time." Although Phinian was practically certain that Pendleton was planning to use the dextromoramide for some illicit purpose, he was nevertheless anxious to make the sale. Phinian had been fighting a losing battle against the big chain pharmacies that had recently moved into the neighborhood, and this was only the third prescription he had filled all day. So Phinian did not ask Pendleton any additional questions, and, complying with all applicable pharmacy regulations, filled the prescription.
Shortly thereafter, Pendleton drove to BSU's Department of Athletics, where Max Martinet had his office. She got out of her car, walked past the bronze cage where Nick the Nutria, the BSU mascot lived, and entered the front door of the Department of Athletics (hours of operation, 8:00 a.m. - 8:00 p.m.). Pendleton then walked towards the kitchen near the rear of the facility.
Pendleton's friend Sherry DiNardo was the head chef in the Department of Athletics' well regarded dining facility, and DiNardo had issued Pendleton a "standing invitation" to drop by, say hello, and see the kitchen. As Pendleton was arriving, dinner was about to be served to Max Martinet and his coaching staff in the tenth floor paneled dining room overlooking the BSU campus. DiNardo told Pendleton that Coach Martinet was particularly fond of her crawfish etouffée, and, as usual, had ordered a special double serving of the dish.
Pendleton was talking to DiNardo about the plan to shut down the Department of Biology and about how angry she was at the BSU administration for considering such a possibility. Then, while DiNardo had her back turned, Pendleton took the bottle of dextromoramide out of her handbag, and set it down on the counter, waiting for the right moment to pour the poison into Martinet's dish.
A moment later, DiNardo turned around, noticed the bottle, and grabbed it. "What the hell is this?" she said. "Dextromoramide?! Isn't that some kind of poison? You were trying to poison Martinet to save your stupid job, weren't you, Doc? And now you've ruined my career too."
At this point, DiNardo, who was practically hysterical, grabbed a sharp knife from the counter and ran at Pendleton. Before she could reach her, however, she slipped in a puddle of etouffée sauce, landed on top of sou-chef Larry Livingston, and accidentally wounded him in the stomach.
[Livingston was subsequently taken to the hospital. Had his wound been treated properly, he would have had an 85 percent chance of full recovery. Unfortunately, one of the doctors in the operating room used an unclean surgical instrument, Livingston contracted an infection, and, a week later, died as a consequence.]
Meanwhile, on the other side of campus, BSU's ZZZ fraternity was gearing up for its annual Halloween bash. Every year, the fraternity offered a prize to the member or members who could produce the most daring decoration for the party. Typically the decorations consisted of jack-'o'-lanterns and other Halloween decorations taken from area homes, but this year, Chip Chapin, BSU senior political science major and vice president of the fraternity, was determined to come up with something much more impressive. This year, Chapin had decided that the "honored guest" at the fraternity's party should be none other than Nick the Nutria.
At approximately 6:30 p.m., Chapin telephoned his fraternity brother Rick Richards and asked Richards if he wanted to help him snatch Nick. Richards - who, between 6:00 and 6:30 p.m. had been getting into the spirit of the holiday by drinking three shots of 81 proof Cuervo tequila followed by three Dos Equis beer chasers - told Chapin that he would be happy to help. Chapin then told Richards to meet him in fifteen minutes in front of Nick's cage. Immediately after the telephone conversation was concluded, however, Richards fell asleep.
Chapin, unaware of Richards' condition, drove to the Department of Athletics. From 6:45 until 7:00 p.m., Chapin waited for Richards to appear, but he never did. So, at 7:00 p.m., Chapin began trying to jimmy the lock on Nick the Nutria's cage by himself.
A few minutes later, Biff Buffington, a freshman member of the fraternity, happened to be walking by the Department of Athletics and saw Chapin attempting to jimmy the lock on Nick's cage. "Hey, Chip, whadcha doin' over here?" Buffington asked.
"What's it look like I'm doin', Sherlock," Chapin answered. "I'm trying to liberate Nick the Nutria so he can join us at tonight's Halloween party. Why don't you give me a hand."
"Well, I'd love to help, Chipper, but that's illegal, isn't it? I mean, you can't just take Nick the Nutria back to the fraternity house without first getting permission, can you?"
"Listen, Einstein. I happen to have permission. Max Martinet himself told me it was okay to borrow Nick the Nutria for the night. He just forgot to give me the key to the cage. So I have to jimmy it open. Now give me a hand with this, would you." (In fact, Chapin was lying. He had no such permission from Martinet or anyone else in the Department.)
"Oh, well, I wish you'd told me that in the first place," Buffington said as he started to help Chapin jimmy the lock on the cage. Then, after about two minutes, Buffington stopped suddenly and said, "Oh, shoot, Chipper, I just remembered - I was supposed to be back at the fraternity house by 7:00 p.m. to help Jock Jackson decorate the beer kegs."
Chapin then said, "Buffington, I am giving you a direct order as the vice president of your fraternity. You help me jimmy open this lock right now or I will run you out of so fast you won't know what hit you. I will cut your ears off. I will expose you for the pea-brained sissy that you are."
At this point, Buffington resumed helping Chapin jimmy the lock on Nick the Nutria's cage. Finally, after another minute or two of trying, they successfully unlocked the lock, opened the cage door, grabbed Nick the Nutria, and headed for Chapin's car.
A moment later, campus and city police arrived on the scene.
Please discuss all of the offenses a Louisiana prosecutor should consider in deciding whether and how to charge Phil Phinian, Biff Buffington, Chip Chapin, Sherry DiNardo, Diana "Doc" Pendleton, and Rick Richards. Your discussion should be limited to the Louisiana law we have discussed in class, including the elements of each crime, any weaknesses in the State's case with respect to such crimes, and any defenses to such crimes. In analyzing the facts of the case, you may refer to any relevant authorities discussed in class (including the "common law" and Model Penal Code), provided that such authorities would be helpful in analyzing the problem under Louisiana law.
The Louisiana law of criminal law defenses seems, on its face, to reflect an inconsistency. On the one hand is Article 20, which creates an unusually broad defense of justified homicide, one which applies to a number of situations that would not constitute justified homicide in other jurisdictions. On the other hand is Article 18, which, among other things: (a) contains a relatively narrow defense of duress; and (b) entirely omits a generalized defense of necessity, or choice of evils. To what extent, if any, are the relatively broad provisions of Article 20 and the relatively narrow provisions of Article 18 inconsistent with each other? To what extent, if any, can they be reconciled? Drawing on the various theories of criminal law defenses that we discussed during the course of the semester, please discuss.