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Braman Quiz 2

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Part 1: The Modern Penal Code

Charge Arsoni for the death of Erasmus

Under §210.1 of the MPC, criminal homicide is defined as being when a person "purposely, knowingly, recklessly or negligently causes the death of another person" and is divided into three degrees: murder, manslaughter, and negligent homicide. Following Julian's line of thought below, that Arsoni was "reckless" in his actions, Arsoni could easily be convicted of manslaughter under §210.3(1)(a) of the MPC. §210.3(1)(a) states that criminal homicide constitutes manslaughter when it is committed recklessly. Unfortunately, the MPC differs significantly from the common law in regards to the way it treats recklessness. §2.02(2)(c) of the MPC defines recklessness as conscious disregard for a "substantial and unjustifiable" risk. With this considered, in order to be found guilty of manslaughter under the MPC, the offender must be aware that he or she is taking a substantial and unjustifiable risk to human life. This differs from the common law principle of involuntary manslaughter where an offender can be found guilty based on inadvertent risk taking (awareness is not required).

The common-law concept of involuntary manslaughter is instead most similar to negligent homicide under the MPC. Negligent homicide is a third degree felony and is defined by the MPC in §210.4 as criminal homicide that is committed negligently. Arsoni's action can most definitely fall under the negligent homicide provision and will be an easy charge for the prosecutor to get to "stick."

TO ADD: Justification for choosing negligent homicide - jury would likely find act was not purposeful. Erasmus's death was comparatively remote, etc.

Charge Arsoni for the deaths of the 10 prison inmates

§210.2(1)(b) says that criminal homicide constitutes murder when "it is committed recklessly under circumstances manifesting extreme indifference to the value of human life." It goes on further to say that "[s]uch recklessness and indifference are presumed if the actor is engaged or is an accomplice in the commission of, or an attempt to commit, or flight after committing or attempting to commit ... arson." Even if Arsoni accidentally dropped the match and lighter fluid, he was still trying to kill Calculus (therefore exhibiting necessary mens rea) and did commit arson. For this reason, murder, which is not divided into different degrees by the MPC and is always punishable by death, is an aceptable charge to consider for Arsoni.


Check on MPC on Causation 2.03 Sec 3b The actual reult involves the same kind of injury or harm as that designed or contemplated and is not too remote accidental in its occurence to have a just bearing on the actor's liability or on the gravity of his offense.

Charge Proprietus for the deaths of the 10 prison inmates

In regards to the MPC, the analysis of potential charges against Proprietus is difficult. Proprietus's disregard for basic safety regulations could be considered reckless disregard for human life and would, therefore, make him guilty of murder under §210.2(1)(b). Additionally, if it can be proven that Proprietus knew of his recklessness, but the court is wary to believe that he disregarded the value of human life, a manslaughter charge would be appropriate under §210.3(1)(a). Lastly, if none of these are clear enough for conviction, Proprietus could certainly be found negligent, and thereby guilty of negligent homicide, in respect to §210.4.

Gross negligence, wanton and willful

Charge Calculus for the sexual assault on Arsoni

MPC §213.1(1)(a) states that if the victim is compelled to submit by force or by threat of imminent death, serious bodily injury, extreme pain or kidnapping, to be inflicted on anyone, a conviction of rape is appropriate. While this provision seems as though it would satisfy Arsoni's situation, assuming that threats of a third party are satisfactory in regards to this section, the MPC only explicitly provides protection for women who are not the wife of the offender. In this regard, as with many other sections dealing with sexual assault, the MPC is, unfortunately, antiquated.

In regards to degree of the rape, the MPC treats rape under §213.1(1)(a) as a second degree offense unless "(i) in the course thereof the actor inflicts serious bodily injury upon anyone, or (ii) the victim was not a voluntary social companion of the actor upon the occasion of the crime and had not previously permitted him sexual liberties, in which case the offense is a felony of the first degree." Because the facts show that Arsoni permitted the "sexual liberties" and that no harm was necessarily inflicted, if threats of a third party are satisfactory under §213.1(1)(a), the rape must be treated as a second degree offense. This is, of course, only if a court is willing to disregard the MPC's lack of protection for men in regards to rape.

If third party threats are found to be unsatisfactory for §213.1(1)(a) or the court is unwilling to overlook the "men can only rape women" nature of the MPC, there is no hope for a charge of rape in any degree (including the third degree, which is generally irrelevant to this question).

Part 2: PA’s homicide statute, Wisconsin’s Rape statute

Charge Arsoni for the death of Erasmus

Under PA’s homicide statute, first-degree murder requires proof of premeditated intent to kill with malice aforethought. Though the Dean, upon his fall suffered no more than a broken nose, Arsoni probably did not intend to kill the Dean when he punched him in the face (it appears that Arsoni did not pounce upon the Dean after his fall to continue beating him, nor did Arsoni employ any other method of inflicting injury after the fall). Although the premeditation requirement of first-degree murder under Pennsylvania law may include instantaneous action (e.g. Carrol), Arsoni, drunk, evinced no calculation to kill, even in the moments prior to the punch after his wife stated that she had been unfaithful. Therefore, first-degree murder probably will not stick.

However, Arsoni may have intended to cause the Dean serious (or grievous) bodily injury, the factual (“but for” cause) and proximate result of which was the death of Erasmus (the punch at the top of the stairs both enhanced the risk of the result, as the rape enhanced the risk of the victim’s death in Brackett; it was also broadly foreseeable, as it was in Arzon, that the Dean would fall down the stairs and possibly land on other stairwell users). Intent to cause serious bodily injury may constitute “malice aforethought” when the death of anyone results – not necessarily the intended victim (transferred intent). Erasmus’s decision not to receive treatment, an intervening act, will cut off neither moral nor legal culpability, see, e.g., Blaue, and Arsoni could be found guilty of second-degree murder but for the likely mitigating factors he will raise: that Arsoni acted in the “heat of passion” after hearing his wife’s statement that she had been having an affair with the Dean. Although this argument failed the defendant in Carr, it may be adequate provocation (this is a question for the jury; under the common law, finding one’s spouse engaged in extramarital intercourse does constitute adequate provocation; whether the mere assertion of infidelity does, coupled with Arsoni’s prior frustrations with the Dean, is open to the fact-finder), and because Arsoni punched the Dean within moments of hearing his wife’s statement, there would have been inadequate “cooling time.” Therefore, the highest charge that may stick will be voluntary manslaughter.

Charging involuntary manslaughter likely is the safest route. Proving that Arsoni intended to kill or even inflict serious bodily injury may be difficult, but less challenging should be a showing that he acted recklessly (perhaps his intoxication vitiated any consciousness of the risk, though lack of awareness of a risk will not be a defense to involuntary manslaughter), or that he acted with a wanton disregard for human life (punching the Dean near the top of the stairwell, a reasonable result being the Dean’s falling down the stairs and into whomever was below).

Charge Arsoni for the deaths of the 10 prison inmates

Arsoni intended to kill Calculus by lighting him ablaze while Calculus slept. Arsoni’s plans went awry, and he unintentionally set fire to the cell block which resulted in the death of 10 prison inmates. Whereas it may be unclear whether Arsoni intended to kill the Dean (he probably did not), Arsoni did intend to kill Calculus. That other, unintended victims died as a result of Arsoni’s actions does not make him less culpable from a mens rea perspective, and indeed the common law holds that if a defendant intended to kill one person but the death of another results, that defendant may still be guilty of murder. First-degree murder therefore may be charged, and Arsoni’s “adequate provocation” defense likely will fail because he did not act in the heat of passion. Rather, he deliberated to kill Calculus. In fact, he took steps to secure the tools needed to do so (matches and lighter fluid). As a result, he probably will not be able to mitigate to voluntary manslaughter. Whether first- or second-degree murder ultimately sticks will be a question for the factfinder when it determines whether Arsoni’s actus reus was voluntary. True, the fire would not have broken out “but for” Arsoni dropping the lit match, and the use of matches almost uniformly increases the risk of fire, but was it foreseeable? Applying the more narrow Warner-Lambert standard of foreseeability, perhaps not. A judge may decide that most prison environments, even those privately-run, are designed specifically to prevent the spread of fires, as a measure to maintain order and control over the inmates. Fires can and do lead to chaos within a prison. It may therefore not have been foreseeable that lighting one match would lead to such a large fire, and it will be up to the judge to determine whether to instruct the jury to weigh whether the fire was a foreseeable result of Arsoni’s act.

Charge Proprietus for the deaths of the 10 prison inmates

Proprietus failed in his duties as owner and warden of the prison to maintain the prison’s sprinkler system, service the auto-release mechanism on the cells, and he purchased highly flammable paint to save money, and thus acted recklessly. Although he probably did not intend for anyone to die (though we know little about the kind of warden he was), he also may have been unaware that the reason the paint was inexpensive was because it was flammable (mistake of fact). It is unlikely that his failure to pay for the sprinkler system maintenance or the auto-release mechanism feloniously violates any local or state ordinances, and therefore first-degree murder is likely not an option (no felony murder). Nor will second-degree murder be an appropriate charge because the warden’s recklessness was of an ordinary order. A “heat of passion” defense is of no moment here, and voluntary manslaughter is therefore not an option. Therefore, we should charge Proprietus with involuntary manslaughter (see Welansky).

Charge Calculus for the sexual assault on Arsoni

Charging Calculus with rape or sexual assault will turn largely on whether Arsoni consented (mens rea) to engage in oral and anal sex with Calculus every day for a week. Less relevant under Wisconsin law is whether Calculus used or threatened force (actus reus). Calculus will testify that Arsoni freely agreed to have sex, and furthermore, that Arsoni did not offer resistance. Arsoni will testify that Calculus, seeing him crying and fragile, threatened him: that if Arsoni did not have sex with Calculus, that Brutus – who had already threatened Arsoni’s life with a shiv – would wind up on the same cell block as Arsoni. In support of this testimony, Arsoni will state that he asked Calculus, “If I do what you want, will you make sure Brutus doesn’t kill me?” (see Rusk: Arsoni was reasonably fearful of being harmed by Brutus).

If the factfinder credits Arsoni’s testimony, that Arsoni did not consent to have sex, it may also determine that Calculus’ threat to insure Brutus and Arsoni would be on the same cell block constituted a threat of force or violence (given the certainty with which both parties believed Brutus would harm Arsoni). If so, a jury may find Calculus guilty of second-degree sexual assault. If the factfinder determines that there was no threat of force or violence, it may find Calculus guilty of third-degree sexual assault.

On the other hand, if the factfinder believes Calculus, that Arsoni consented to engage in sexual intercourse, Calculus may be found not guilty of any sexual offenses. It is disputed whether Arsoni gave consent, defined under Wisconsin sexual assault statutes to mean, “words or overt actions…indicating a freely given agreement to have sexual intercourse,” and it will be up to the jury to credit one or the other’s testimony.

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