Crim Law Question:

Percy Shelley and Harriet Westbrook were married. At first, their marriage was happy, and a year after they married, their daughter was born. Soon after that, however, Shelley realized he no longer loved Westbrook. Though they conceived another child a year after the birth of the daughter, shortly after the conception Shelley ran off with Mary Godwin. Westbrook gave birth to Shelley’s son, and proceeded to raise the children by herself.

Shelley and Godwin wanted to marry each other, but couldn’t do so while Harriet was alive. (For purposes of this problem, assume that divorce is illegal.) Shelley often bemoaned his plight to his friend Lord Byron, a nasty character who had the reputation of being “mad, bad, and dangerous to know.” It was widely rumored that Byron had in the past tried to poison Samuel Coleridge by giving him tainted opium, and had killed both Alexander Pushkin and Vladimir Lensky in duels. Byron often expressed his sympathy to Shelley, and would sometimes say that something needed to be done about Shelley’s problem. “Can Westbrook swim?,” he at one point asked Shelley. “No, she can’t,” Shelley responded. “Hmm,” Byron said.

One day, Shelley returned to the family home to see his children (who were then four and two). Though Westbrook naturally felt herself quite wronged by Shelley, she still loved him; and though Shelley by this point hated her and wished her dead, he was still sexually attracted to her. After the children went to bed, Shelley and Westbrook started to have sex (though Westbrook remained mostly clothed).

Unbeknownst to Shelley, Godwin had suspected that Shelley was still attracted to Westbrook, and followed him. She lurked outside the house, spying on the couple, and drinking a bottle of wine to drown her sorrows. She saw pretty much everything Shelley and Westbrook were doing, and when she saw Westbrook and Shelley start to have sex, Godwin ran in, armed with a pitchfork. Godwin stabbed at Westbrook, but missed her.

Westbrook ran off, fleeing Godwin. Shelley ran after Godwin, but Westbrook wrongly assumed that Shelley and Godwin were in league with each other, so fled both.

Shelley’s and Westbrook’s house was near a river, and Westbrook ran onto a bridge spanning the river. To her surprise, she ran into Byron — whom she had long suspected, it turns out wrongly, of having had a homosexual affair with Shelley — standing in the middle of the bridge. “You somdomite!,” she shouted at Byron, temporarily distracted from her attempt to run away from Shelley and Godwin, and started punching him. (Assume that “somdomite” would generally be understood as a pejorative for “homosexual.”)

Byron then pushed Westbrook, who as a result fell off the bridge into the water. Shelley and Godwin, who by then had caught up, didn’t try to save Westbrook, and Westbrook drowned.

Assume that all this happens in the state of Xanadu, in the present day. Xanadu is generally a common-law jurisdiction, but its courts are open to influence from the Model Penal Code (not including § 210.3(1)(b) [extreme-disturbance manslaughter], which we didn’t study) and from the various state law rules that we studied in class.

Assume that § 1939.9.1 of the Xanadu Penal Code provides that “Burglary, defined as entering the dwelling of another with the intent to commit a crime therein, is a felony.”

In case you find it helpful, you may read and consider Model Penal Code § 2.03, which you may assume all jurisdictions (even non-MPC ones) would apply by analogy. Do not discuss any insanity defense.

Analyze what charges — under criminal law rules that we studied in class (not including assault or battery), or that are defined in this problem — can be brought against Shelley, Godwin, and Byron (though do not discuss charges that can be brought against Byron as to Coleridge, Pushkin, and Lensky).

Just for fun, folks — you don't really have to take eight hours and then post the answer in the comments. In fact, if you'd rather just try to catch all the allusions and post those in the comments, that would be great. I'm sure you'll catch some I didn't even intend to make!

Jim Hu:
Was Westbrook Wilde with rage upon meeting Byron?
5.15.2006 9:37pm
Well, here's a murder or manslaughter defense for Byron that assumes facts outside the hypothetical. Harriet was already dead a year when Byron pushed her off the bridge, having drowned herself in 1816 before Ianthe, her eldest, was 4 years old.
5.15.2006 9:47pm
Having proven himself a world-class swimmer, I'm sure they expected Byron to jump in and save her, yes?

Yours truly,
Frank N. Stein (at lpdbw's place)
5.15.2006 9:55pm
Eugene Volokh (www):
lpdbw: Yeah, I thought about working in Byron's swimming abilities, but I decided that the problem was complex enough.
5.15.2006 10:08pm
mythusmage (mail) (www):
What about Byron's substance abuse? Kinda hard to save a life when you're stoned out of your gourd.
5.15.2006 10:24pm
Yosef Ibrahimi:
Since I should be studying here is a quick list of issues spotted. If only civil procedure hypotheticals were as interesting as criminal law ones.

Godwin: Burglary, as well as negation of specific intent due to intoxication.

Godwin: Attempted Murder, negation of specific intent due to intoxication.

Byron: Murder / Attempted Murder / Battery: Discuss self-defense and proportionality (also analyze whether Byron was supposed to take the blows, say if the bridge is narrow and Byron knows Westbrook cannot swim).

Even if Byron is guilty of some form of criminal homicide, he might have it downgraded to involuntary manslaughter, as Westbrook calling him a sodomite and attacking him could be sufficient provocation.

Discuss Byron's failure to rescue as culpable, if he could do so without endangering himself. Likely he would only have this obligation if his use of force was more than he was legally entitled to use.

Shelley: Murder. Shelly had a duty to rescue based on his marriage to Westbrook. Discuss Abandoned heart murder, and how Shelly's inaction could be regarded as extreme indifference to the value of human life. In the alternative discuss manslaughter.

Godwin: Discuss murder / manslaughter. She doesn't seem to have the intent for murder due to intoxication. Perhaps if Westbrook fleeing and drowing are casually and proximately foreseeable, this can be regarded as part of Godwin's crime. Also Godwin at the very least committed a misdemeanor by trespassing on Westbrook's land (intoxication will not serve as a defense to this), thus she might be on the hook for misdemeanor manslaughter. Furthermore, as a result of her actions, she might have an affirmative duty to rescue, which she ignored likely resulting in manslaughter liability.

Other general issues:
Discuss conspiracy / solicitation with regard to Byron and Shelley arranging for Westbrook's death. Also analyze Byron as possibly guilty of the attempted murder of Westbrook (look at preperation, unquivocality, final acts and the other such attempt tests).

Perhaps one should also apply the various insanity tests to Byron as he is "mad". Though it doesn't seem like any one would help him, except maybe the product test.
5.15.2006 10:27pm
Steve Lubet (mail):
Westbrooke should have adhered to the Marquess of Queensberry rules.
5.15.2006 10:35pm
Guest J (mail):

Why not "sodomite"?
5.15.2006 10:43pm
Sasha (mail):
Guest J: Look here.
5.15.2006 10:47pm
Guest J (mail):
Cool! That's a really nice allusion to add. I've heard the Wilde story and still never learned that detail.
5.15.2006 10:50pm
Roman Goldstein (mail):
I'm going to elaborate on and disagree with Yosef's excellent start.

Charge Goodwin with 1st degree murder on a felony murder theory. The underlying offense is burglary, and, in an admittedly convuluted series of events, somebody died as a result of that burglary. But since she broke in intending to kill someone (murder, or perhaps voluntary manslaughter being the predicate crime to burglary), the merger doctrine applies, and there's no felony murder.

I disagree with Yosef that alcohol downgrades the mens rea. Most courts find voluntary intoxication to not be exculpatory or mitigating at all. The MPC provides that self-induced intoxication is not a defense unless it negates an element of the offense. Everyone seems to agree drunkenness can't negate recklessness.

Byron fails to have a total defense since his self-defense wasn't justified: he used deadly force to repel non-deadly force. Though pushing somebody in the water normally is nondeadly, a court probably would find that Byron's specific knowledge of Westbrook's vulnerability dispositive. Yet some states allow deadly force to repel violent crimes (like Westbrook's battery) as a general rule.

Byron could be held to 2nd degree murder for failure to rescue. He endangered Westbrook, creating a duty to rescue (recall his self-defense wasn't justified). Only 2nd degree because there was no premeditation. (I'm assuming the premeditation requirement has bite.)

Provocation reduces his murder to voluntary manslaughter, not involuntary manslaghter (another disagreement with Yosef). Mutual combat or serious assault is sufficient provocation under the common law. Though a court might hold that by the time Westbrook was drowning, she was no longer a threat to Byron; he should have been "cooled off," negating the provocation mitigation.
5.15.2006 11:55pm
Average Joe (mail):
What effect do the decrees of Kubla Khan have on the laws of Xanadu? Does the wartime law brought about by the invasion of Ozymandias have any effect on the problem?
5.16.2006 12:39am
Dave Hardy (mail) (www):
Last I heard Xanadu followed Sharia law anyway, and only considered the Model Penal Code when it favored the prosecution.
5.16.2006 12:52am
Average Joe (mail):
With regards to the last question I asked, specifically, does the Onegin-Ozymandias non-aggression pact have any effect on the underlying law? Sorry I was not more specific earlier. It is getting late for me.
5.16.2006 1:14am
DK1L (mail):
I'm studying for a crim. exam, so I decided to take a look. Yousef and Roman did a great job! I didn't spot any crimes that they didn't. But I'll respectfully disagree with a few things they did label crimes, though they're all close calls:

1. I don't think felony-murder applies to Goodwin. I haven't studied attempt or burglary, so I'll just take the previous posters at their word that there is burglary. But felony-murder requires the underlying felony to be the proximate cause of the death. A heart attack might not be an intervening cause, but I'm pretty sure being pushed off a bridge is. Burglary is a but-for cause, but it didn't really make the death at Byron's hands more likely. The best argument for the prosecutor, besides the genral strict policies behind felony-murder, is that the burglary put Westbrook in such an agitated state that it mader her more likely to attack Byron, which made him more likely to attack back. That still seems to me too attenuated and unforeseeable, even if one believes Byron only attacked because he was provoked.

2. I think Byron's self defense is pretty tricky. "Pushing" isn't generally what I think of as deadly force. Roman is right that pushing on a bridge probably is another matter, though.

3. As to the "somdomite" provocation mitigation to voluntary manslaughter, I think that would be a tough sell. Most courts hold that words alone, no matter how hurtful, are not enough. It certainly doesn't fit any of the old fashioned common law categories. For states following the MPC, you'd have to get a judge who individualizes the gravity of the provocation (calling Byron a somdomite is particularly hurtful if Byron is a homosexual).

4. For accomplice liability for Shelley for Byron's actions, I'm not sure he has the requisite purpose to aid in the conduct. He seems more reckless, and less like he knows for sure what Byron is up to.
5.16.2006 1:29am
Syd (mail):
I don't see Godwin getting more than Burglary and maybe assault with a pitchfork. Trying to get her for murder would make this a Frankenstein's monster of a case.
5.16.2006 1:46am
You poke at someone with a pitchfork, that's got to be attempted murder.
5.16.2006 3:59am
jpaulg (mail):
Doesn't it depend on whether the pitchfork was obtained from the local "Garden Supplies" shop or the "Angry Mob" shop.
5.16.2006 4:50am
ed in texas (mail):
Dang. Reads like a victorian novel. Sorry to hear Lensky died; wonder if it was a tragedy or a statistic. The position of Godwin as a non-Frankensteinian non-mob (singular sans torches) attempting to fork over the Shelley is unclear. As George Bernard Shaw said, 'why don't I get invited to these parties'.
5.16.2006 8:53am
AppSocRes (mail):
Polidori, here. I think the only crime here is the vicious hate-crime attack of Westbrook upon my dear friend, Byron, when they met upon the bridge.
5.16.2006 9:11am
Antinome (www):
Are you sure Westbrook did not call Byron a Nazi?
5.16.2006 9:23am
... And thus invoke Godwin's law?
5.16.2006 10:37am
Dave Hardy (mail) (www):
But the really interesting civil law questions involve group defamation. See Aldermen and Citizens of Somdom v. Marquis of Queensberry, 123 KB 52.
5.16.2006 11:17am
Where was Kubla Khan in all of this?
5.16.2006 11:41am
No somdomite; just a poser.
5.16.2006 11:43am
i love wikipedia:
nice work sasha. isn't wikipedia a beautiful thing? the first true "marketplace of ideas."
5.16.2006 12:18pm
Richard Bellamy (mail):

Last I heard Xanadu followed Sharia law anyway, and only considered the Model Penal Code when it favored the prosecution.

No, the assumption that should be taken from the jurisdiction is that all of the above actions were performed on Roller Skates to an Olivia Newton-John soundtrack.
5.16.2006 12:26pm
Man from Porlock:
Was Westbrook's body actually recovered, or did it disappear into caverns measureless to man?
5.16.2006 2:05pm
Mark Leen (mail):
To bad we don't know what happened afterwards (did they report the crimes, etc.), could have thrown in misprision of a felony and a nice discussion of how that would intersect with the Fifth Amendment.
5.16.2006 2:34pm
Yosef Ibrahimi:
I looked over the fact pattern again. It seems that Godwin is on the hook for felony murder, with burglary as the underlying felony.

Godwin didn't break into the house until she saw Shelly begin having sex with Westbrook. Since she ran in with a pitchfork it is reasonable to assume that at the very least she intended battery at the time of entry putting her on hook for burlgary.

Then there is simply a question of proximate causation as to felony murder. (And if the jurisdiction is one where we must inquire as to whether the felony is inherently dangerous, that too). Depending on the level of abstraction we view this at, it seems reasonable to put Godwin on the hook for murder. If we view this as "she died while fleeing an assault", it doesn't seem that anything supervened. After all Byron might have pushed her, but if her she normally would have had to run over the bridge, and had a foreseeable chance of falling in (perhaps it is a narrow bridge and a person could reasonably fall into it when running for their life) there is no reason to cut off the chain of causation.

I also have to correct one of my previous contentions. If you regard Godwin's battery as sufficient provocation, then Byron would get charged with voluntary manslaughter (not involuntary), though he would have a full justification defense if his response was lawful and proportional.

I am betting Godwin will try to get manslaughter as opposed to murder, based on heat of passion. I would also wager that the court will refuse to recognize this as a matter of public policy. Shelly and Godwin were not married, and while in fact she might have been deeply attached to him, without a substantive legal relationship (like marriage), she won't get the manslaughter instruction.
5.16.2006 3:23pm
Some Guy (mail):
I remember seeing crap like this and wondering when I would be free from the tyranny of sheltered professors who probably were only there because they couldn't hack it in the real world. Then I wound up teaching a few classes on the side, and I realized how fun it was to torture the wretches that came to my door.
5.16.2006 4:23pm
vepxistqaosani (mail) (www):
Did no one get the allusion to Eugene? Perhaps the letter was lost in the post ... I'll check with Postmistress Tatiana.
5.16.2006 6:51pm
Ming the Merciless Siamese Cat (mail):
I am heartened to see that, at least so far, there are only three people who are such colossal geeks that they would anwser a law exam question for jollies.

Well done to the readership generally.

As for the three offenders. You guys really need to get laid.
5.16.2006 9:47pm
Joe Zwers (mail):
1939.9.1 (Sept. 1st, 1939)is the date Hitler invaded Poland. Definitely an example of "entering the dwelling of another with the intent to commit a crime therein"
5.17.2006 12:53am
Joe Zwers (mail):
Vladimir Lensky is a character in a Pushkin book. Lensky dueled in the book and Pushkin was killed in a duel in real life.

Coleridge wrote Xanadu after an opium dream and Byron encouraged him to publish it.
5.17.2006 1:06am
Brian Macker (mail) (www):
Were there no crimes in the first paragraph? Can one abandon ones children and practice infidelity in this hypothetical jurisdiction?

What about later on? Was there a conspiracy to murder in the conversation of Shelley and Byron?

Public nudity on the part of Shelly?

What about public drunkeness for Godwin? Open bottle laws? Was Godwin a Peeping tom? Did Godwin own the pitchfork she used or did she steal it for criminal purposes?

Disorderly conduct? Noise ordinances? Polluting a public waterway?

I'm no lawyer. Just asking. Did you guys miss these or not? Is there some reason these lesser crimes don't count?
5.17.2006 1:49am
Eugene Volokh (www):
Joe Zwers: September 1, 1939 was also the name of a poem, by W.H. Auden (naturally, an allusion to the start of World War II).
5.17.2006 3:18pm
This is my take on the main issues, from the perspective of a foreign jurisdiction.

Is S guilty of counselling or procuring B to unlawfully kill W ? (unlawful killing being either murder or manslaughter depending on the circumstances)
Is G guilty of stalking S ?
Is G guilty of burglary ?
Is G guilty of attempting to and/or unlawfully killing W ? Can G claim provocation / diminished responsibility / intoxication ?
Is B guilty of the unlawful killing of W ? Can B claim self defence / provocation (the 'gay rage' defence) / accident / act independent of will ?
Are S, G and B criminally negligent in relation to the death of W ?
5.18.2006 4:52am
Wanda (mail):
I have to ask - what about the children? Two minor children were left alone in the house when Westbrook, Shelley and Godwin ran out into the night. Surely Shelley would be charged with endangering the children by leaving them unattended in a house where light was provided by the open flame of a candle or a fireplace. I assume the children would have been taken into foster care after the events of the night.
5.18.2006 11:59pm
Brian Macker (mail) (www):
Wanda, they're not liberals so they don't think about the children. :)
5.19.2006 11:53pm