Monday, April 27, 2009

Gossip Girl: What's Yours is Ours

Gossip Girl: Southern Gentlemen Prefer Blondes
(aired April 27, 2009)

Serena goes on a Spanish holiday with her friend Poppy and Poppy's boyfriend Gabriel. While in Spain, Serena and Gabriel get married after a night of drinking. Serena returns to the United States regretting what happened, but soon Gabriel follows her and they begin to date. But Gabriel is still dating Poppy so he can keep her business contacts for his telecommunications start-up company. Poppy finds out and Gabriel and Poppy break up. Without Poppy's contacts, though, Gabriel is concerned he'll have to go work for his father's tobacco business. Serena proposes Gabriel solicit her mother and other rich friends to invest in his new company. He does with great success.

In reality, there is no company and Gabriel and Poppy plan to keep the money for themselves. Before they could skip down together, Gabriel takes all of the money, including $500,000 from Poppy. Poppy tells Serena everything that happened.

Issue: Are Gabriel and Poppy liable for the same or different offenses? If so, which ones?

A conspiracy is an agreement between at least two people to commit an offense, and all parties to the agreement are liable for the acts of other conspirators if those acts are within the scope and objective of the conspiracy. False pretenses is the obtaining of another's property through a false representation of an existing fact.

Analysis: Likely the same. Gabriel and Poppy entered into an agreement to solicit investment funds for a company that does not exist. At a minimum they are both guilty of conspiracy to commit false pretenses. Because Gabriel, in furtherance of the conspiracy, actually obtained the funds through his false representation, he is also likely guilty of false pretenses. Poppy assisted in Gabriel's acts, and therefore, she is likely liable under accomplice liability (think: aiding and abetting).

And even though Poppy told Serena everything that happened, that doesn't change anything. While a conspirator can withdraw from a conspiracy (and avoid liability for subsequent acts), she can only withdraw from the conspiracy by telling her co-conspirator, Gabriel, that she was leaving the conspiracy. It does not appear she withdrew from the conspiracy, as seen in her apparent surprise at Gabriel's double-crossing of her. Let that be a lesson to you potential conspirators out there!

Bonus: Here's a fun fact to share at cocktail parties. Under the common law, a conspiracy required only an agreement to commit an offense. Most jurisdictions now treat conspiracy as a two-element offense: (1) an agreement to commit a criminal offense and (2) an overt act in furtherance
of the agreement. Even under modern criminal law, Gabriel and Poppy are guilty of conspiracy because the committed an overt act when they tricked Serena into introducing Gabriel to the investors at the cocktail party.

As an added bonus, consider the following. Gabriel and Poppy can be guilty of both conspiracy to commit false pretenses and false pretenses because conspiracy offenses do not merge with a completed underlying offense. This is different from the two other inchoate crimes--solicitation and attempt--where you can only be guilty of the completed offense or the completed underlying offense.


30 Rock: The Black Widow

30 Rock: The Ones
(aired April 23, 2009)

Facts: Jack proposes to marry Elisa but Elisa has a secret. In confidence, she tells her friend Liz that years ago she killed her husband in a fit of rage after she caught him having an affair with another woman. Elisa was never convicted because they could not find an unbiased jury. After a night bundled up with her Slanket, Liz tells Jack about Elisa's past. Jack is concerned that he's marrying a murderess.

Issue: Did Elisa murder her first husband?

Law: Generally speaking, murder is the intentional killing (or intent to inflict grievous bodily harm that results in the death) of another person. Voluntary manslaughter is an intentional killing, committed in the "heat of passion" based on sufficient provocation.

Analysis: Likely not. Although she could not find an unbiased jury to decide her guilt, Elisa is probably guilty only of voluntary manslaughter. Traditionally, finding your spouse in flagrante delicto with someone else can create sufficient passion to provoke the jilted spouse into murdering her husband, provided there is no "cooling off" period and there is a link between the provocation, emotion/passion, and killing.

Elisa's case is a good example of voluntary manslaughter brought on by a cheating husband. Note, though, that if Elisa knew about the affair and killed her husband at a later date, she would likely be guilty of murder as she would have had a sufficient period of time to "cool off." The gist of voluntary manslaughter is in a fit of passion you commit homicide.

Bonus: And before you think this means Elisa walks away, voluntary manslaughter is still a felony and can lead to a long period of confinement, albeit far less than in the case of murder. For example, if Elisa had committed the offense in Virginia, her voluntary manslaughter would lead to a Class 5 felony conviction, which carries a sentence of one to ten years. However, if a Virginia jury convicted her of first-degree murder, that is a Class 2 felony and carries a sentence of twenty years to life. And they don't let you wear "What the Frak" t-shirts in prison.


Sunday, April 26, 2009

Observe & Report

Observe & Report (2009)

Facts: Ronnie Barnhardt, head of security at a local mall, has made several attempts to go out on a date with mall shop girl, Brandi. After Brandi is the victim of a flasher, Barnhardt escorts Brandi back to her vehicle in the mall parking lot. He asks Brandi out on a date and while initially hesitant, she ultimately agrees.

When Ronnie picks up Brandi at home, Brandi has already been drinking. They go to a bar where Brandi consumes two more drinks and four shots of tequila. Upon request, Ronnie also gives Brandi his bottle of medication used to treat his bipolar condition. Brandi takes three pills.

By the time Ronnie returns Brandi home, she is severely intoxicated and Ronnie has to help Brandi into her house. Brandi vomits and Ronnie kisses her. Eventually the two engage in sexual intercourse even though Brandi vomits again and is unresponsive. During the act, Ronnie asks if he should continue and Brandi mumbles, "Why are you stopping, motherf---er?" They complete the sexual act and Ronnie goes home. The next day Brandi says nothing about the night to Ronnie.

Issue: Did Ronnie rape Brandi?

A rape is the nonconsensual sexual intercourse between a man and a woman. Consent can be negated if the woman is unable to give consent due to a physical or mental impairment. Similarly, consent can be negated if the man uses force or fraud to obtain consent.

Analysis: Most likely yes. Because it is clear they had intercourse, the real issue here, as with most acquaintance rape (or "date rape") is over whether Brandi consented to sex with Ronnie. Due to her severe intoxication--as evidenced by her vomiting, flashes of consciousness, and inability to walk on her own, she likely could not form the necessary consent.

Ronnie could argue that he believed she consented to sex--as seen in her reaction when Ronnie stopped the sexual act; however, it was likely unreasonable for him to believe she could consent to sex with him because he was well-aware of her diminished capacity. (This defense is called "mistake of fact," but it is unavailable in the case of rape if the mistake is unreasonable.) Ronnie's case is also weak because he purchased the alcohol for Brandi, he gave her his prescription drugs (a federal crime all on its own), and he has a history of sexual interest in Brandi.

Bonus: This scene caused generated some controversy because of the apparent rape of Brandi. Here's an ABC News article about the debate. And here's my take on this film: even without this scene, it was still pretty lousy.


Sunday, April 19, 2009

An Introduction

Have you ever watched a television show or movie and wondered whether the fictional people on screen are committing a crime? Then this blog is for you. Each week I'll present the facts from whatever I happen to watch and give you the law and a brief analysis of whether I think any crime occurred. If have your own comments or take on the issue, share them in the comments.

To avoid any state favoritism or anyone using my comments for legal advice (which you should never, ever do), I'll use American criminal common law (unless otherwise noted) for these issues.