Difficult to Answer the Following

¶ … difficult to answer the following questions because the factual scenario lacked some of the information needed to determine how a prosecutor would prove the necessary elements of the charges. The investigating officers clearly identified a factual scenario, but the factual scenario does not make it clear if the defendants made incriminatory statements, if witnesses were present for the activities, or if the officers used a third means of determining the factual scenario. Therefore, for all of the questions below, I would seek admittance of any and all statements, physical evidence, and witness testimony.

As a prosecutor, I would file the following charges against Bubba Dwayne Hopeless: arson under Cal. Pen. Code 451(a), arson that causes great bodily injury, for the injuries received by Honey Bee Sweet; five counts of arson under Cal. Pen. Code 451(b), arson that causes an inhabited structure or inhabited property to burn, for the burning of a total of five dwellings; an enhancement under Cal. Pen. Code 451.1(3), for causing great bodily injury to more than one victim; an enhancement under Cal. Pen. Code 451.1(4), for causing multiple structures to burn in a single violation of 451; aggravated arson under Cal. Pen. Code 451.5(a)(3) because the fire caused the destruction of five or more inhabited structures; two counts of first degree murder under Cal. Pen. Code 189, for a murder committed in the perpetration of an arson; and aggravated battery under Cal. Pen. Code 243(d).

To prove the above offenses, I would have to be able to prove arson, since all of the charges stem from the original act of arson. To demonstrate arson, I need to prove that Bubba willfully and maliciously set fire to a structure. I would demonstrate willfulness by showing that Bubba used gasoline to start the fire. Maliciousness can be proven by an intent to defraud. I would establish Bubba's intent to defraud by proving the existence of insurance on the property, Bubba's dire financial situation, and the fact that the fire was intentionally set. In addition, if either Red Neck Womanizer or Mary Lou Hopeless struck a plea bargain, I would use their testimony to demonstrate Bubba's intent. Once having established that Bubba willfully and maliciously set the fire, to support the charges I would simply need to establish the facts. First, I would demonstrate that, but for Bubba's fire, the five structures would not have burned down. I would next demonstrate that the fire caused the injuries and the death. Bobbi Sue Shortlived died of smoke inhalation, which is directly attributable to fire. Likewise, her grandmother received burns, which are attributable to fire. Proving that Ying-Dong Song's injuries were the result of the fire will be more difficult. First, I will have to demonstrate that the fire caused the explosion, then that the explosion caused vibrations, and that Song fell as a result of those vibrations.

II. I would charge the crime as a first degree murder because Cal. Pen. Code 189 specifically designates murders committed in the perpetration of an arson as first degree murders. This statute is supported by the Anderson factors, which suggest three elements are essential when determining whether a murder should be charged as first degree. These factors include: planning, motive, and pre-existing reflection and weighing of considerations. 447 P.2d at 949.

All three factors do not have to be present to support a charge of first-degree murder. On the contrary, establishing planning seems sufficient to support such a charge. Therefore, the fact that Bubba did not have a motive to cause any of the deaths that resulted from the fire, and did not set the fire to cause any deaths, does not make him ineligible for a charge of first-degree murder.

III. I would charge Redneck Womanizer with the exact same charges as Bubba. Under Cal. Pen. Code 451, "a person is guilty of arson when he or she willfully and maliciously sets fire to or burns or causes to be burned or who aids, counsels, or procures the burning of, any structure, forest land, or property." According to the factual scenario, it appears that Redneck counseled Bubba to burn the property. Depending on whether any of the defendants sought a plea bargain, I would prove this element by offering testimony to prove the content of the conversation between Redneck and Bubba. I would charge Redneck at the same degree, not because I believe that he shared the same level of culpability as Bubba, but to pressure him to seek a plea bargain, so that I could use his testimony as evidence against Bubba, to establish the willful and malicious elements of the arson charge. If I was unable to do that, I would prove the conversation between Redneck and Bubba, show that it led to a fire, and that the fire caused the damages and deaths.

IV. Like Redneck, I would charge Mary Lou Hopeless with the same set of charges against Bubba.

Mary Lou Hopeless obtained the gasoline that was used to start a fire, and I would presume and attempt to prove that she did so knowing that the gasoline would be used to commit an arson. If so, then she aided in the burning of the houses, and would be guilty of the underlying arson that supports all of the additional crimes. I would prove that she obtained the gas by showing videotape of her at the gas station, providing a credit card receipt, or having a witness testify to her presence at the gas station.

V. I would file the following charges against Jimmy Jo Braindead: second degree burglary under Cal. Pen. Code 460(b) and larceny under Cal. Pen. Code 484(a). It will be somewhat difficult to support the allegations of burglary and larceny, because Braindead was not caught while committing the theft. However, it appears that the police investigation has turned up sufficient evidence to support such charges, rather than simply a charge for possession of stolen property. Therefore, I would present evidence to show that Braindead entered the armory and removed the dynamite, which would satisfy the entry requirements for the burglary conviction and the taking requirement for the burglary and larceny convictions. Furthermore, although there are no state laws that speak to the stockpiling of dynamite, I would consider charging Braindead under Cal. Pen. Code 11418(a)(1). Although dynamite is not specifically listed as a weapon of mass destruction under Cal. Pen. Code 11416 and 11417, both statutes make it clear that they are not all-inclusive lists of all possible weapons of mass destruction. Therefore, I would show that dynamite is the type of weapon capable of causing the type of fire and explosions listed in 11417, and that Braindead stockpiled it, as prohibited under 11418. I would not charge Braindead with a hate-crime, even though his stockpiling was to prepare for a race war, because those enhancements do not apply to crimes like stockpiling. I would also charge Braindead under Cal. Pen. Code 452 for recklessly causing a fire, because his reckless stockpiling of dynamite helped cause the fires that destroyed at least three of the four burned homes. I would demonstrate that it was reckless for him to stockpile dynamite, using any relevant local or municipal codes as well as the above-listed weapons of mass destruction statutes. Then, I would use experts to show how the explosions exacerbated the existing fire.

B.I. If I were Bubba's defense attorney, I would definitely seek a plea bargain, in which Bubba took responsibility for the burning of the structures and the assault, but did not face first-degree murder charges. I would try to put the responsibility for the fire unto Redneck and Mary Lou, and offer to testify against them in exchange for reduced charges.

II. I would challenge the prosecution's evidence regarding Bubba's participation in the underlying arson. Furthermore, I would challenge the notion that Bubba was responsible for any damage beyond the burning of his home, and the burning of Braindead's home. Bubba could not foresee that Braindead was stockpiling dynamite in his home, so I would argue that he could not have willfully caused the explosion, the two deaths, or the assault.

C.I. If I were the defense counsel for Redneck, I would seek a plea bargain in which my client offered to testify against Bubba in exchange for having all of his charges dropped. I would assert that my client was simply talking and had no idea that Bubba actually intended to burn the home. There is no clear evidence that Bubba engaged in planning; the factual scenario merely states that Bubba decided on the arson after having a conversation with Redneck.

II. I would use the same defenses for Braindead as I would for Bubba. I would certainly challenge Braindead's involvement in any actual planning of the crime; even if he suggested the idea of burning a house, that he did not mean for Bubba to actually do so.

D.I.I would approach Mary Lou's defense in two ways, both involving a total denial of her criminal responsibility for the acts. I would not suggest that Mary Lou plea-bargain to any offense.

II. First, I would suggest that all she did was buy gasoline, which is not illegal, and that she was not aware of Bubba's plans to use it to burn down the houses. If the evidence demonstrated that Mary Lou was aware of Bubba's plans to use the gasoline to burn down the house when she purchased it, I would explore the use of the Battered Women's Syndrome. Using that, I would suggest that if Mary Lou purchased gasoline knowing that Bubba intended to use it to commit an arson, that she did so because she feared the consequences of telling Bubba "no." I would show Bubba's history of domestic violence with a prior spouse, his long string of marriages, and present any evidence suggesting that Mary Lou was a battered woman.

Roe v. Wade

From a constitutional perspective, Roe v. Wade should not be overturned. Roe v. Wade was only one of several cases that helped delineate the constitutionality of restrictions on birth control; all of the non-abortion related cases have became an intricate part of the privacy and autonomy that Americans expect to have protected by the Constitution. These rights protected the autonomy of individuals and failed to recognize human life prior to viability. Roe v. Wade contained a built-in protection to acknowledge the changing scientific possibility of viability, but these scientific changes have already been recognized in post Roe v. Wade cases that have limited Roe's scope. Overturning Roe v. Wade would not be akin to Brown v. Board of Education overturning Plessy v. Ferguson; there has been no dramatic shift in American sensibilities since the original Roe v. Wade decision. Moreover, the Plessy v. Ferguson decision was based an assumption that could be factually proven incorrect: that separate facilities could be equal. When the factual inequality of the separate facilities was demonstrated, the decision became impossible to defend. However, the Roe decision itself rovides an opportunity for changing laws as facts change; the Roe decision makes it clear that if viability ever coincides with conception, a state would be permitted to completely outlaw abortion. In fact, under Roe, laws that absolutely restrict abortions after approximately 20 weeks would probably be held constitutional, because scientific advances have made 20 weeks a plausible viable term.