Monday, January 11, 2010

Con Law Exam Question 2

By Mike Dorf


Here's the rest of the exam from Friday's post.


Question 2 (Weight: 65 percent)

      Based on your excellent work at Huckabee, Palin & Romney, you have obtained summer employment at the Cuyahoga County Prosecutor’s office in Cleveland, Ohio.  It is now July 2010.  The U.S. Supreme Court has recently decided, in McDonald v. City of Chicago, that the Second Amendment is incorporated against the states.  Meanwhile, you have been assigned to work on the case of State v. Davis.

      At the highly-publicized April 2010 murder trial of U.S. citizen and Cleveland resident Drucilla Davis, the state of Ohio charged that Davis--a well-known singer/songwriter--intentionally killed her ex-boyfriend, Victor Viceroy, because Davis was jealous of Viceroy’s new relationship.  Davis admitted to killing Viceroy but testified that she did so in self-defense.  Viceroy, who is a former professional wrestler, came at Davis in a rage, threatening to “rip her throat out,” Davis said.  Claiming she feared for her life, Davis fatally shot Viceroy through the heart with her legally owned and properly licensed handgun.


      In most American states, when a criminal defendant raises a defense of self-defense, the prosecution bears the burden of disproving self-defense beyond a reasonable doubt.  Ohio is different.  In Ohio, the defendant bears the burden of proving self-defense by a preponderance of the evidence.  This approach was held to be valid under the federal Constitution in Martin v. Ohio, 480 U.S. 228 (1987).  Applying this standard, the jury deliberated for three days, and then returned a guilty verdict against Davis.  After the trial, one juror who was interviewed on television, said that none of the jurors were convinced beyond a reasonable doubt that Davis was lying, but that they just couldn’t decide whether or not she was telling the truth, so they concluded that she had not met her burden of persuasion.


      The Davis case sparked national outrage, with NRA Executive Vice President Wayne LaPierre describing Davis as “an American hero who should be given a parade, not put behind bars.”  Congress quickly responded by passing the “Second Amendment Self Defense Restoration Act.”  President Obama vetoed the bill on the ground that it was unconstitutional, but the bill became law on May 6, 2010, when his veto was overridden.  The Act provides:

Section 1

      This Act is passed pursuant to the powers of Congress to regulate interstate commerce, to enforce the Fourteenth Amendment (including incorporated rights such as those protected by the Second and Ninth Amendments), the spending power, the Necessary and Proper Clause, and any other powers that may be pertinent.

Section 2

      In any criminal trial in a state or federal court, no person who timely raises a defense of self-defense shall be convicted of the charged offense unless the government proves the absence of self-defense beyond a reasonable doubt.

Section 3

      In the event that a court finds Section 2 unconstitutional on its face or as applied, the following “Fallback A” shall operate to the extent of Section 2’s unenforceability: In any state or federal prosecution in which a defendant is accused of a crime affecting interstate commerce, no person who timely raises a defense of self-defense shall be convicted of the charged offense unless the government shall prove the absence of self-defense beyond a reasonable doubt.

Section 4

      In the event that a court finds Sections 2 and 3 unconstitutional on their face or as applied, the following “Fallback B” shall operate to the extent of the unenforceability of Sections 2 and 3: In any state in which a person can be convicted of a crime without proof beyond a reasonable doubt by the government of the absence of self-defense, in a case in which the defendant timely raises a defense of self-defense, said state and all of its subdivisions shall immediately forfeit all federal funding administered by the federal Department of Justice’s Office of Justice Programs.*  This forfeiture shall require any such state and its subdivisions to forfeit future funding and to return any funding already received in any fiscal year in which this provision shall operate.
Section 5
      In the event that a court finds Sections 2, 3, and 4 unconstitutional on their face or as applied, the following “Fallback C” shall operate to the extent of the unenforceability of Sections 2, 3, and 4:  The President of the United States shall issue a full pardon to any person convicted of any crime in any state or federal court in the United States after the enactment of this statute if that person timely raised a defense of self-defense and the prosecution was not required to prove the absence of self-defense beyond a reasonable doubt.

Section 6
      As used in this statute, the “defense of self-defense” refers to the defense of self-defense as defined by the relevant jurisdiction’s substantive criminal law, but at the very least must entitle a person claiming self-defense to avoid conviction if he or she used reasonable force, including lethal force if reasonable, to prevent what he or she reasonably believed to be a threat of death or serious bodily harm to himself or herself.
Section 7
      This Act shall become effective immediately upon passage and shall apply to all cases pending on or after passage.
      Your supervisor was the prosecuting attorney in the Davis case, which is now on appeal in the Eighth Appellate District of the Court of Appeals of Ohio.  She informs you that under Section 7, the Act clearly applies to Davis herself, but she wants your help in figuring out whether the conviction will likely be upheld and/or whether Davis will receive a pardon.  Please write her an objective memorandum addressing the constitutionality of the Second Amendment Self Defense Restoration Act, on its face and as applied to Davis.  Regardless of how you resolve each sub-question, be sure your memo addresses the constitutionality of Section 2 and each of the Fallback provisions.

5 comments:

Neil H. Buchanan said...

If I were one of your students, I would not be amused. As a reader of your blog, however, I'm delighted and fascinated.

Blogger said...

See generally http://www.columbialawreview.org/articles/fallback-law

Bill Abendroth said...

I'd say Davis was still SOL, absent some weird new definition of "pending." Under law of the case doctrine, the Ohio rule would still apply for the appeal, and (arguably) for any re-trial.

THAT SAID, I can tell you any number of times I have been in front of trial courts where the Judge said "I know the law says 'ABC', but I'm going to do DEF instead..." (Judicial speak for "EF YOU, BUDDY!"). I have also seen more than a few appellate opinions holding that while previous cases have held ABC, "under the totality of the circumstances in this case," the court rules DEF ("under the totality of the circumstances in this case" is judicial speak for "ABRACADABRA!").

Show you said...

As used in this Statute, "defense of self-defense" refers to the defense of self-defense as defined by the substantive criminal law of the relevant jurisdiction.

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