I apologize for taking up (too?) much of class on Wednesday telling the war story of my very first real legal experience after law school (but perhaps a real-world war story about a non-capital case was a useful break from what we have been doing lately). If you want to read the Second Circuit's opinion in United States of America v. Caroline Oyibo Ekwunoh, 12 F.3d 368 (2d Cir. 1993), it is available at this link (and elsewhere on-line, of course).
In addition, I mentioned that the mens rea sentencing issue in Ekwunoh is discussed in the casebook (see pp. 321-25), and is also the subject recent Supreme Court debate in some other contexts. Specifically, check out the links and other materials about these cases recently argued over before SCOTUS:
Flores-Figueroa v. United States (08-108) (argued Feb 25) — concerning mens rea needed to trigger two-year mandatory sentence under federal identity theft law.
Dean v. United States (08-5274) (argued Feb 25)— concerning mens rea needed to trigger ten-year mandatory minimum sentence for discharging a gun during a violent crime.
Though I may in subsequent posts give everyone a distinct opportunity to talk about, e.g., whether you'd like more war stories and/or whether you understand the class's paper requirements and/or whether I effectively explained the methods of my madness, all those topics are also fair game in the comments to this post since we will not be together again for a full week.
Sentencing Class @ OSU Moritz College of Law 
3 responses to “US v. Ekwunoh, mens rea cases, war stories and class plans”
Sorry, Andrew. More damper on this happy place. Just for fun, try being more lawyerly, and rebut instead of making ad hominem remarks. Lawyerly is a compliment.
The mens rea violates the Establishment Clause.
1) Per se. Mind reading is a supernatural power. The supernatural is religion. Half the major violent crimes are committed by folks legally drunk. The criminal himself cannot honestly judge intent, if the crime is recalled at all. I understand no recall is needed to infer intent from conduct. The word, infer, is a synonym for mind reading, and not a rebuttal with objective evidence.
2) Origination. A French monk applied the Scholasticist doctrine that God would know intent and judge it after death. Intent came from the elements of mortal sin and a church catechism. So what? So what if the law were based the Koran? In the 1200’s that was an humanitarian advance, a loophole to escape the sole punishment of the 1200’s, death.
3) Policy. Where is the evidence the hunter who shoots another thinking him a deer is less dangerous than the hunter who shoots another after a $10,000 payment from the other’s wife? (In that scenario, the money is objective evidence of intent.) But there is no evidence mens rea contributes to safety. There should be strict liability, with a judgment of dangerousness by the executive branch based on the past. Future victims should be able to sue the probation department for deviations from assessment standards that result in victim injury. The probation department is just counting past behaviors from all sources, including childhood records, after conviction, and not functioning as God does. Intent has no scientific, validated meaning, such as a measurement scale, or brain imaging showing anything happens in real life. It does not exist. The reason? It is from the thinking of Medieval monks, not more recent scientists.
4) Indoctrination without consent. Modern students do not believe in the supernatural outside of their spiritual adherence. To get them to believe in the mens rea, they undego an indoctrination so good, no one knows it took place. But people who pass 1L believe minds can be read. The indoctrination violates the Establishment Clause. The use of mens rea by any judge does too, since it imposes a supernatural belief of a very specific church, with the force of government.
5) Latin. All Latin violates the Establishment Clause, being the foreign language of a church. We need a statute voiding all legal utterances containing Latin, and canceling any severability in the legal utterance.
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As an aside on Scholasticism, the IRAC, parsing text word for word, incomprehensible lawyer gibberish? From a church, and unlawful, anti-scientific garbage causing total failure of every goal of every law subject. Worse than from a church, French.
If some lawyer academic wants to get serious enough to fix this mess, to help the lawyer profession, please, say so.
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This probably belongs down in the “strongly held beliefs” post below, but I’ve noticed most of us tend to post on the latest blog entry, regardless of topic. This is an AP article from today’s Dispatch: http://hosted.ap.org/dynamic/stories/E/EXPENSIVE_TO_EXECUTE?SITE=OHCOL&SECTION=HOME&TEMPLATE=DEFAULT
It is similar to other articles people have posted recently, but there is one interesting thing I noticed in this article–how strongly held beliefs have changed. This article specifically mentions how Bill Richardson and “The Hanging Judge of Orange County” have changed their mind–although Richardson seems to be waffling–perhaps waiting to see what is most politically popular. The Hanging Judge seems to have changed his strongly held belief, but, as Prof. Berman has mentioned before, often times people will change their mind AFTER they have an opportunity to make real change. If this judge would have changed his mind earlier, he might have been able to make a bigger difference. Anyway, I thought it was interesting. It makes me wonder if the fiscal argument against the death penalty will go away in a few years if the economy is back on track.
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