LOUISIANA STATE UNIVERSITY

PAUL M. HEBERT LAW CENTER

FINAL EXAMINATION

Criminal Law, Section 1 December 10, 2003

Mr. Green 1:30 - 4:30 p.m.

INSTRUCTIONS

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 three hours. It is recommended that, before writing anything, you read the questions carefully, 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 it. 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.

6. If you write by hand, please answer the first question on a separate pad of paper. Please answer the second question in the space provided in the exam packet. Please write legibly. You will receive no credit for answers that cannot be read.

7. Whether you write by hand or by word processor, please make sure that you observe the usual rules of English prose. Use proper punctuation and capitalization, and write in full sentences. Please do not use abbreviations unless it is clear what they mean.

8. Write your confidential exam number on your copy of the exam and on the front of your legal pad. 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 Aassume 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.

Question 1

(75 percent; approximately 2 hours and 15 minutes)

The big day everyone at Bayou State University Law School, in Springfield, Louisiana, had been waiting for was fast approaching. To celebrate a round of extensive renovations to its physical plant, the school had scheduled an elaborate “rededication” weekend – two days of fundraising events, speeches from dignitaries, and lavish alumni cocktail parties. The festivities were scheduled to begin with an address by U.S. Secretary of Homeland Security, Clancy Wiggum, at 10:00 p.m. on Friday, October 20.

By Saturday, October 14, there was still a good deal of landscaping work to be done on the law school grounds. The work was being performed by a crew made up of prisoners from the state’s minimum security prison in Flanders, Louisiana. With less than a week to go before the rededication weekend would begin, the crew was planning to work right up till the last minute on Friday morning.

One of the members of the landscaping crew was Barney Gumble. Gumble had already served three years of a six-year sentence for forgery at Flanders. In June, Barney had filed an application for parole with the State Parole Board, but, by mid-October, he was still waiting to hear whether it would be granted. Barney desperately wanted to get out of prison and go home to his wife, Selma (who retained her maiden name of Bouvier), and their two children, Rod and Todd.

On Saturday, October 14, Barney wrote the following letter to his wife:

Dearest Selma,

Prison life is tedious and degrading. Since you were last here in September, the medical care for my diabetes has declined precipitously. I have been receiving insufficient glucose monitoring, poorly calibrated insulin treatments, and an inappropriate diet. I’ve lost weight, been suffering from blurred vision, fatigue, muscular pain, excessive urination, and, on several occasions, have gone into diabetic shock.

I have done everything I can think of doing. I have complained to the authorities repeatedly, but have not been able to get anyone to do anything. I have thought of filing a lawsuit, but I know that it would take months or even years to resolve, by which time I might be dead.

You’ve got to help me get out of here to see a doctor. As you know, I’ve been working with the prison’s traveling landscape crew. On the morning of October 20, we will be working at the BSU Law School building in Springfield, getting the grounds ready for some kind of rededication ceremony later that morning.

There should be a big crowd to get lost in. It’s as good an opportunity as I’m likely to have to make a break. I really can’t wait any longer. I’ll need to change out of my prison uniform into some street clothes. Please leave a pair of pants and a long sleeve shirt for me under the dumpster out back of the law school building. I’ll look for your car on the east side of the building near the flagpole as close to 9:45 a.m. as possible. We’ll take things from there.

All my love to the twins,

Barney

Selma received the letter two days later, on Monday, uncensored and unscreened by prison authorities.

Barney also sent a similar letter to his brother, Ned, but this was lost in the mail and was never received by him.

Although it was true that Barney was a diabetic, in fact the medical treatment that he was receiving at Flanders was not nearly as bad as he had said in his letter. Moreover, he had never made an appeal to prison authorities. Barney, who was desperate to get home to his family and despairing of ever hearing from the Parole Board, had exaggerated the situation in order to persuade Selma (and Ned) to help him.

Because Barney had always been honest with her in the past, however, Selma believed what he had said in his letter, and was convinced that his health was in serious danger. Later that day, she mailed Barney a note saying, “I will do as you ask. See you Friday at quarter to 10.”

Barney received Selma’s response, again uncensored, on the morning of Thursday, October 19.

Later that day, by coincidence, the State Parole Board notified the Warden of Flanders Prison that Barney’s application for parole had been granted, effective immediately. But because the landscaping crew was shorthanded, and because Barney was a good worker, the warden decided to wait a couple of days to notify Barney of the news. Thus, as of the afternoon of October 19, the state’s custody over Barney was no longer “lawful,” though neither he nor Selma was aware of this fact.

The next day, October 20, at 9:30 a.m., Selma arrived on the BSU campus with a set of Barney’s clothes beside her on the front seat of her car. From a distance, Selma could see the prison landscaping crew in their orange jump suits spreading mulch over the flower beds by the side of the law building. Selma grabbed the clothes, got out of the car, and began walking towards the law school building. But as she came within sight of the dumpster, she suddenly developed what can only be described as “cold feet.” She was afraid that Barney would be caught, that he would never get parole, and that he would end up serving an even longer sentence than if he stayed put. As a result of these concerns, Selma, still carrying Barney’s clothes, turned around, got back in her car, and drove home.

Meanwhile, at 9:45 a.m., a limousine carrying Secretary Wiggum pulled up to the front of the law school. There, they were met by (1) Law School Dean Seymour Skinner, (2) a crowd of approximately one hundred, mostly middle-aged alumni milling around waiting for the festivities to begin, (3) a group of approximately ten law students and undergraduates who were holding placards criticizing what they regarded as the “attack on civil liberties” waged by the Department of Homeland Security, and (4) a five piece brass band playing the BSU fight song, “Fight on, Brave Nutria.”

As Wiggum emerged from the car, the ten or so students began chanting derisive slogans and pounding a bass drum. One of the group’s leaders, Milhouse Van Houten, was particularly excited. He shouted at Wiggum, “By suppressing our civil liberties, you are letting the terrorists win. I hope Osama Bin Laden gets you next time.” Then, he took the Palm Pilot computer he had been holding in his hand and threw it to the ground, smashing it into dozens of pieces.

Standing about ten yards behind Wiggum was Waylon Smithers, a loyal alumnus and ardent supporter of the Department of Homeland Security’s policies. When Smithers heard what Van Houten had said and saw what he had done, he became both extremely agitated and concerned for Wiggum’s safety. He pulled out the concealed pistol that he was licensed to carry, and fired it at Van Houten. The bullet missed Van Houten, but it did strike and instantly kill first year law student Maggie Simpson, who had been standing next to Van Houten. It also grazed the arm of Dean Skinner, causing a superficial wound.

Meanwhile, Barney, who had briefly snuck away from the landscaping crew to look, in vain, for the clothes he had expected Selma to leave under the dumpster, rejoined the crew just as they were boarding the bus to return to Flanders State Prison. No one noticed that he had been gone.

* * *

Please discuss all of the offenses a Louisiana prosecutor should consider in deciding whether and how to charge Barney Gumble, Selma Bouvier, Milhouse Van Houten, and Waylon Smithers. Your discussion should be limited to the Louisiana law we have discussed in class, including the elements of each offense, any weaknesses in the State=s case with respect to such offenses, and any applicable defenses. In analyzing the facts of the case, you may refer to any relevant authorities discussed in class (including non-Louisiana authority, such as that found in the Dressler casebook and the Model Penal Code), provided that such authority is helpful in analyzing the problem under Louisiana law.

Question 2

(25 percent; approximately 45 minutes)

On Monday, December 8, 2003, U.S. Representative and former Governor Bill Janklow, of South Dakota, was convicted of manslaughter for a fatal traffic accident he caused in August.

Please read the news item that follows, and then discuss the following: (1) Based on our discussion of homicide law in states other than Louisiana, what do you think was likely to have been the theory under which Janklow was prosecuted? (2) If the accident had occurred in Louisiana, what would have been the appropriate homicide charge? (3) If you had been representing Janklow at trial, what defense or defenses would you have sought to develop? Would your answer be any different if the trial had been held in Louisiana?

Please confine your analysis to the facts as described in this question. Please do not refer to additional facts you may have learned about the case from other sources.

Diabetes expert testifies in Janklow trial

Says congressman had symptoms of low blood sugar

Friday, December 5, 2003 Posted: 7:04 PM EST (0004 GMT)

FLANDREAU, South Dakota (AP) -- Rep. Bill Janklow appears to have had symptoms consistent with a diabetic reaction before the August 16 crash that killed a motorcyclist, an expert testified Friday during the congressman's manslaughter trial.

Dr. Fred Lovrien of Sioux Falls, also a diabetic, said he examined Janklow after initially being skeptical about a proposed medical defense.

He said he concluded after examining him October 27, reviewing his medical records and talking with him about his activities in the hours before the crash that it was likely Janklow had been suffering from low blood sugar, or hypoglycemia the day of the crash.

Janklow may not have felt the early symptoms because it was hot when he spoke at an event that morning and because he had had an angry exchange with a heckler, Lovrien said.

He said Janklow also told him he hadn’t eaten anything that day. When a diabetic takes insulin but doesn’t eat, the person can get fatigued and pass out, he said.

* * *

Canceled breakfast

Angela Cleberg, a server at Minerva’s restaurant in the Ramkota Inn hotel, said Janklow and his chief of staff, Chris Braendlin, ordered breakfast but canceled the order. “He said they were running late and had to leave,” she said. They paid for a soft drink and coffee.

Leslie Simdorn, a former Janklow intern, said Janklow did not eat any of the barbecue available at the event out of concern he might spill it on his clothes.

“He did ask [chief of staff Chris Braendlin] for a hot dog,” said Simdorn, who said she didn’t see him eat one. Braendlin testified Wednesday that Janklow hadn’t had anything to eat all day.

* * *

[On cross examination, Deputy Prosecutor] Ellyson asked Lovrien if it would be unusual for someone to go 20 hours without eating, as several witnesses have said Janklow did on the day of the crash.

"Yes, it would be unusual," Lovrien said. When a diabetic takes insulin but doesn't eat, the person can get fatigued and pass out, according to testimony.

After the cross-examination, Lovrien told Ed Evans, Janklow's lawyer, that his opinion is still that Janklow likely suffered from low blood sugar about the time of the accident -- but only if he had not eaten.

* * *

Diabetic Reaction

On Thursday, An accident reconstruction expert testified that Janklow was going 59 or 60 mph at the time of the crash – less than the Highway Patrol’s estimate of 71 mph, but still over the 55 mph speed limit for that stretch of road.

Defense lawyer Ed Evans acknowledges that Janklow was speeding but said he did not see the stop sign because he had a diabetic reaction that caused him to become disoriented.