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Fall 1997 Criminal Law Final

Frank Fatha and his wife Mary had been married for nearly ten years. During most of that time, they had a happy marriage. They have two children, Sara, who is almost seven, and Frank Junior (Junior), who is five. Unfortunately, about a year ago, Mary met a man at work to whom she was very attracted, and they had an affair that lasted several months. Frank discovered the affair and became very upset. He confronted Mary and she admitted having had intimate relations with her co-worker for several months. Although Frank tried to get over it, he was having difficulty continuing his relationship with Mary. They decided to separate to give Frank time to see if he could forgive Mary so they could reconcile.

In part because they hoped to eventually reconcile, and in part because they wanted to avoid hassle and legal fees, Frank and Mary decided not to get a legal separation. Frank moved out of the marital home and in with his brother Bob, who was single and had a large house. The couple agreed that Mary would keep custody of the children during the week, and that Frank would have the children most weekends. They agreed to be flexible and accommodate each otherís (and the childrenís) needs. They were fairly agreeable about this arrangement at the beginning, and things worked out fairly well for the first few months.

The last several months have been more problematic, however. Frank had begun to question Maryís parenting of the children, and, although Mary denied she was continuing to have relations with others, he was suspicious and didnít believe her. His concerns were based in part on things the children said and did while they stayed with him on the weekends. Of particular concern to Frank was the fact that both children appeared depressed, anxious and withdrawn. Sara, who was six, was crying herself to sleep and then awakening in the middle of the night with nightmares. Junior kept to himself a lot and would not talk much to his father. Both children, who had previously been happy-go-lucky and fun-loving, appeared not to enjoy much of anything. Needless to say, Frank was worried about them. When he confronted Mary, she denied she was having a relationship with anyone, indicated she noticed that the children were somewhat depressed as well, and attributed their sadness to their concern that, since the separation was lasting so long, Frank and Mary might not ever get back together. Frank did not believe that was the sole cause of the childrenís malaise (although in fact, it was, but Frank underestimated the effect separation and fear of divorce, by themselves, could have on the children).

Although Frank tried hard to get the children to "open up" and talk to him about what was bothering them, he was unsuccessful in doing so. The nightmares and depressed behaviors continued, and Frank decided to find out what was going on. He confided his concerns to his brother Bob, with whom he was living. Bob had never really liked Mary and didnít trust her. Those negative feelings had been exacerbated by the affair. Although Bob himself was something of a ladies man and had his share of intimate relationships, including a live-in girlfriend, he believed that once a couple married, both parties had an obligation to be faithful. He felt that Mary had really hurt and betrayed his brother, and he resented her even more for that.

Bob suggested to Frank that they place a wiretap on Maryís phone to try and find out what was really going on. Frank asked Bob if that was legal. Bob responded that, since Frank owned the property, he had a right to do whatever he wanted, even if he wasnít living at the house. Frank expressed some surprise and commented that he thought only those actually in on a conversation could record it. Bob replied that that was usually the case, but he was pretty sure there was an exception for spouses, at least where they werenít divorced yet and where the person taping the call had a right of access to the marital property, which Frank clearly had. Bob said that, as long as Frank had a legal right to place the tap, anyone who acted with his consent had such a right too. Thus, they could work together to record the calls. This sounded reasonable to Frank, who agreed that placing a tap might be a good idea, and the brothers worked out a plan to get it done.

Bob had the technical ability to actually install the wiretap and he set out to get the necessary equipment. He went to several stores looking for the electronic equipment he needed and was surprised nobody seemed to carry it any more. At the third store he visited, he asked the clerk if they had the "box" he needed. He told the clerk he had looked several places and hadnít been able to find it, and was surprised they didnít seem to have it either. The clerk told him they stopped carrying most stuff that could be used for wiretaps since the law now made most taps illegal. They felt it was safer not to sell any equipment that could be misused because they wanted to avoid any possibility of lawsuits or prosecution. Bob thought they were being overly paranoid, but after he heard the same thing at the next two stores he visited, he decided to give up trying to buy the device and to adapt some equipment he had from his old fraternity days instead. Bob did so and got the wiretapping device ready for installation.

One night, Frank and Bob called the house, expecting no answer since they knew Mary and the kids were planning to visit Maryís mother. When there was in fact no answer, they drove over to the house and entered using Frankís key. Working together, they installed the wiretap device, hiding equipment under the hallway steps and in the basement ceiling. The device recorded all calls on audiotape, and Frank managed to discreetly retrieve the tapes when he came by to pick up the kids or else Bob came by the house when no one was home and recovered them.

Frank and Bob were surprised at the volume of calls on the tapes. They didnít have time to listen to everything, so they would fast-forward through and listen for the kind of information they were looking for. It wasnít long before they found it. On the first set of tapes were several calls apparently between the teenage babysitter Mary hired to watch the kids after school and someone else they couldnít identify. In the calls, the babysitter talked about "the mother" having a torrid affair. The calls also hinted at what sounded like abusive behavior by the mother toward the children. Bob was livid. At a church function later that week, he told people that Mary was a slut and was having an affair while she was still married to Frank. He also told people she was abusive toward the children. Frank was also terribly upset and wondered what he should do. He didnít share his concerns with anyone (and didnít know that Bob had done so) but decided to observe the children more closely and see if he could figure out what was going on.

A few days after listening to the first tapes, Bob picked up another set. In one of the calls on these tapes, the babysitter said, "The affair is really heating up. He comes by every day and stays over most nights. And it looks like theyíre going to take off to avoid interference from her husband or anyone else. Gonna take the kids with them, too." In a call that appeared to be the next day, she said, "Looks like theyíre gonna take off any day. Bet itís before the weekend, before he gets wind of whatís going on. Iíll bet theyíre gonna take the kids right after school so theyíre not there when he comes to pick them up for the weekend. It would be just like her these days." Right after those calls was a call between Mary and a man whose voice was unfamiliar to Frank. She said to him, "I need to talk to you about Frank and the kids - about what weíre going to do. I need to take action soon. Can we talk right away? Is it OK if I come over today after work?" The man responded, "Thatís fine. Iíll see you then."

Upon hearing these calls, Frank panicked. He was afraid Mary would take the kids and heíd never see them again. It was Thursday, and he feared Mary would take them before he could pick them up on Friday. He and Bob decided they needed a plan. After discussing various possibilities, they decided that they needed to get the kids at school before Mary could take them. Frank didnít want to go into the school and try to pick them up, because heíd never done that before and he was afraid the teachers knew he was separated from Mary and might call her if he tried to get them. He and Bob decided that instead, they would get the kids from the school playground at after-lunch recess and Frank would take them to a friendís summer home until he could work things out with Mary or through the courts.

The next day, Frank and Bob left for the school about noon. They realized that they needed to get the kids quickly while no one was looking. They wanted to do it fast, so they decided to grab the kids, carry them to the car and leave quickly, explaining what was happening to them once they were on their way. They drove Frankís car, and they planned to drop Bob off at his car a few blocks away after they had the kids. Bob and Frank sat in the car waiting for the children to enter the school playground. After a while, they saw Junior, and then a few minutes later, (what they believed to be) Sara joined him in a corner of the playground near the sandbox. It was a cold day and both children were wearing heavy coats and hoods. It was time to act. As planned, the two men quickly entered the school playground. Frank grabbed Junior, said "Donít worry, itís me, Dad. Iíll explain in a minute" and carried him out to the car. Bob grabbed "Sara," said, "Donít worry, itís Uncle Bob. Youíre safe with me," and began to run with her toward the car. She began yelling, and Bob thought she sounded strange, but he said, "Please be quiet. Itíll be OK." She stopped yelling and started to cry. Given her prior depression and anxiety as well as the awkwardness of the situation, Bob wasnít too surprised at her reaction. He quickly shoved her into the back of the car next to Junior, jumped in the front passengerís seat, and Frank sped away. By this time, others had observed what was happening and Frank needed to get away quickly.

They were about four blocks away when Bob looked back and saw that the little girl, who was still crying, was not Sara. She was Claire Cook, one of Juniorís friends who, at age six, was about Saraís size and build and who had a jacket very much like Saraís. Bob told Frank the problem, and the two men became frantic. They knew they needed to take her back, but they didnít want to get caught. They also realized there was no way they could get Sara now. They immediately turned around and headed back toward the school. When they got about a block away, they saw a police car arriving. Bob said, "Stop the car." Frank stopped about a half block from the school on the other side of a busy street. Bob got out, opened the back door and took Claire, who was still somewhat hysterical, out of the car. "You can go back to school now," he said, and the men drove off. After they left, Claire started to run across the street toward the school without looking and was killed when she was hit by a car that was traveling about ten miles over the speed limit.

Frank, unaware that the little girl had been killed, dropped Bob off and continued to his friendís house about three hours away. Bob returned home and was working on his lawn when Maryís minivan drove up. Mary believed that Bob had to have been involved in the abduction of Junior, and she decided to confront him to try and find out where Frank and Junior were. She got out of the car and approached Bob, who met her on the driveway. "Whereís my child?", she screamed. Bob responded, "What do you mean? How would I know where your kids are?" Mary responded, "Cut the crap. The police know Frank was involved, and I think you were to. You know everything about your brother. Heíd never do something like this on his own. You had to have instigated this. And youíll be in big trouble when they figure it out. You and Frank both. Itís only a matter of time until they find him and my son. Heíll never get to see the kids again after this." Bob was angered by Maryís apparent threat. "You abusive slut. Youíre the one who caused all this, and itís you who wonít get to see the kids. Frank will get them and youíll have all the time you want to spend with your lover. You wonít be able to harm them any more."

Mary looked incredulously at Bob. "What are you talking about?," she screamed. He responded, "Donít play innocent with me. We have it all on tape. That babysitter of yours talked all about how you were abusing the kids and having a hot affair, you slut." All of a sudden it clicked. The kids had told Mary that the babysitter spent lots of time on the phone talking about soap operas, and Mary had just warned her to keep off the phone when the kids were home. They must have tapped her phone and overheard the babysitter talking about the soaps and thought she was talking about Mary. She was almost amused at how stupid Bob was, but then became really angry when she realized what was going on. During the last week, several friends didnít let their kids come over to her house to play with Sara and Junior, and several people at church had given her funny looks and wouldnít talk to her. She realized that Bob had probably been spreading ugly rumors about her. This made her even angrier. "You idiot. You thought they were talking about me! And you take my son based on that! They were talking about soap operas, for Godís sake."

By now, both she and Bob were screaming at each other. Bob responded, "Do you take me for a fool? You are an abusive slut and you wonít even own up to your own behavior. We heard you tell your lover you needed to take action soon. Youíre just a lying slut. I wish weíd have gotten both of them. Then we could assure youíd never see either of them again. I pity poor Sara, who has to stay with you a little longer. But you wonít have her long either. You donít deserve to be a mother."

Mary had had enough. "You jerk! I was talking to my lawyer, not a lover. Why am I trying to explain myself to an idiot like you. Iím not listening to any more of this. Youíve taken my child, ruined my reputation, and now youíre abusing me. And that poor child who died - I just canít believe this. Iím going to the police. You canít get away with this," she screamed. With that, she got back into her van, which was still running, and put it into reverse to back out of the driveway. As she started to back up, Bob continued to yell and curse at her. Mary couldnít take it any longer. She put the van in drive, stepped hard on the gas and headed straight for Bob, who was a few feet in front of her. He saw the van coming toward him and jumped out of the way. Unfortunately, Laurie Lova, Bobís live-in girlfriend, had just come out to see what was going on and, unbeknownst to either Bob or Mary, was standing behind him. She didnít see the van coming and was hit head-on. She died immediately from internal injuries suffered when she was hit.

Discuss the potential criminal liability of Bob and Mary under the following statutes only. Analyze ß 650.250, 677.100 (CL version) and all homicide offenses under Common Law only. Analyze ß 677.100 (MPC version) under Model Penal Code only.

Mok. G.L. ß 650.250

Whoever knowingly abducts a child under the age of fourteen from the premises of any school, day care center, or other child care program without the consent of the childís parent or legal guardian shall be guilty of a Class D felony.

Mok. G.L. ß 677.100 - (CL version)

Whoever intercepts or endeavors to intercept any wire or electronic communication without either (1) the consent of a party to the conversation or (2) legal authority to do so shall be guilty of a Class B misdemeanor.

Mok. G.L. ß 677.100 - (MPC version)

Whoever knowingly intercepts or endeavors to intercept any wire or electronic communication without either the consent of a party to the conversation or legal authority to do so; or who discloses the contents of any illegally intercepted oral or wire communication, shall be guilty of a Class B misdemeanor.

Mok. G.L. .ß 500.100 Murder

Murder is the unlawful killing of a human being with malice.

Mok. G.L. .ß 500.110 Murder in the First Degree

Murder is murder in the first degree if committed with premeditation and deliberation, or if the actor is engaged in the preparation for, commission of, or flight from, a felony.

Mok. G.L. .ß 500.120 Murder in the Second Degree

All other murder is murder in the second degree.

Mok. G.L. ß 500.200 Manslaughter

Manslaughter is the unlawful killing of a human being without malice.

Mok. G.L. ß 500.210 Voluntary Manslaughter

Voluntary manslaughter is a killing upon sudden quarrel or heat of passion.

Mok. G.L. ß 500.220 Involuntary Manslaughter

Involuntary manslaughter is the killing of another by the commission of an unlawful act not a felony or a lawful act in a grossly negligent manner.

Note: Despite common belief to the contrary, there is no exception to the wiretap statute for spouses, regardless of whether they have a right of access to the marital home. There are only limited exceptions that provide legal authority for interception of wire communications (phone calls), none of which are applicable here.