Hypotheticals in the Criminal Law Classroom: An Interview with Lawrence Connell

Ashley Thorne

Professor Lawrence Connell, who teaches Criminal Law at Widener University, has been placed on administrative leave after students complained about him referring in classroom hypotheticals to killing the university dean, Linda Ammons.  

Some commentators have said that because Dean Ammons is black, his repeated referrals to her death, even for the sake of example, amount to racist and violence-invoking speech. Others argue that law professors use such examples all the time and that this is a normal way to teach a class, as Ann Althouse, a law professor at the University of Wisconsin wrote on her blog, “Look, if you're teaching criminal law, you use hypos that have people doing criminal things. Putting real names in the hypos might be funny or attention-getting or just stupid, but let's not get hysterical.”

Delaware Online quotes Connell’s lawyer saying, of Ammons, “I think she wanted to get rid of a conservative professor.”

We at NAS take an interest in Professor Connell’s case at Widener as one of potential restriction of academic freedom, and we see some cause for concern. We asked Professor Connell some clarifying questions, and he graciously agreed to an interview; below are his answers to our questions. We will continue to follow this case and report as we learn more.

Q: Do you believe that Widener University is seeking to oust you because you are conservative?

A: Yes.

Q: Do you have any evidence of this?

A: Yes. This would include, but not be limited to the following:

My political views have been well-known at Widener since at least 2002, when I participated in a law school debate about the Bush-Gore election. While arguing in favor of the Bush domestic policies, I was shouted down by Gore supporters in the audience. After the debate I was asked by the Student Bar Association to apologize to the student body – and refused - for calling belief in Gore’s proposed economic policies “naïve.” I've not been asked to participate in any political debates at Widener since that time.

Since the election of Obama and Biden (an adjunct professor at Widener), the News Journal in Wilmington has published several letters I have submitted, under my signature as a private citizen, and not in my capacity as a professor at Widener. The letters have criticized various aspects of the Obama administration’s agenda on such topics as immigration policy, the ban on deep water drilling, and the demonization of Tea Partiers.

Q: I read this article which tells about your success in saving James Riley from the death penalty - just to clarify, were you his lawyer at the time? If not, what was your official role in the case?

A: In 1986 I was the Director of the law school’s Postconviction Relief Clinic, in which third-year law students assisted me in reviewing the cases of criminals who had been convicted of serious felonies and whose convictions had been affirmed by the Delaware Supreme Court. I was asked to review the case of Mr. Riley, a black man who had been convicted of killing a white victim and upon whom the death sentence was imposed by an all-white jury. Our investigation revealed, among other legal problems, a pattern of racial discrimination in the selection of Mr. Riley’s jury. As a result, I volunteered to represent him to pursue, among other issues, what appeared to be a violation of Mr. Riley’s constitutional right to equal protection of the law in the selection of his jury.

After twice having our issues rejected by the state courts, we took Mr. Riley’s case to the federal courts. There, two attorneys from a prominent law firm joined me in representing Mr. Riley, and assumed the role of lead counsel in the federal litigation. Because of the relationship I had developed with Mr. Riley while representing him in the state courts, I continued my representation in the federal courts in the role of his co-counsel. In 2002, nearly sixteen years after I initially developed Mr. Riley’s equal protection claim, a majority of the Third Circuit Court of Appeals, by a slim 6 to 5 margin, agreed that Mr. Riley had indeed suffered unlawful discrimination in the selection of his jury, and overturned his conviction and death sentence.

During the early years of my work for Mr. Riley, when his case was in the state system, his execution repeatedly was rescheduled and I repeatedly was required to seek stays on his behalf. Each time a new execution date was scheduled, I found myself in the impossibly difficult position of trying to console and provide hope to a man whose execution was imminent.

Making the entire situation of my representing Mr. Riley even more difficult for me was the fact that the sister of Mr. Riley’s victim, himself a widower who was survived by his five minor children, was my sister’s life-long best friend. My sister’s best friend had undertaken the care of the victim’s youngest daughter. Choosing to represent Mr. Riley presented quite a difficult personal dilemma for me, but Mr. Riley’s execution resulting from an unlawfully selected jury would not balance the scales of justice. It would simply compound the senseless loss of life.

For details of the intricate procedural posture of Mr. Riley’s case, as well as the reasoning for overturning his conviction and death sentence, please see the Third Circuit’s decision at http://openjurist.org/277/f3d/261/james-william-riley-v-stanley-w-taylor

Q: In your courses, do you use other names that students would know (i.e., individuals at the University) in your hypotheticals?

A: Yes.

Q: Was there a particular reason you chose to refer to Linda Ammons as opposed to someone else?

A: Yes. This would include, but not be limited to the following: People need to understand the nature of a law school criminal law class, and how different it is from other types of classes, even other types of law school classes. Professor Orin Kerr of George Washington University School of Law describes it well in http://volokh.com/2011/02/16/criminal-law-professor-suspended-for-classroom-hypotheticals/

“One of the common ways that law professors keep students mildly entertained in class is by posing hypotheticals involving their professors and the Dean. I’m not sure why this is so funny, but students just love it. If you teach first-year criminal law, which typically focuses heavily on homicide crimes, that means you spend a lot of time imagining your colleagues meeting horrible fates. If A kills B out of revenge, that’s just a boring hypothetical. But if the hypo involves the students’ Torts Professor killing the Dean out of revenge — or better yet, a conspiracy in which the Dean and the students’ Torts and Contract Professors agree to kill their Criminal law Professor for beer money — well, that’s serious entertainment. It may seem a bit morbid at first. But it’s the opposite, I think. Putting Professors or the Dean in the place of real criminals and real victims makes the scenario so absurd that it adds a bit of levity to what is otherwise a very depressing topic. As a result, it’s a common tool Criminal Law professors use when teaching first-year students the basic doctrines of criminal law. I suppose over the years I’ve murdered pretty much every 1st-year teacher — and certainly all my Deans — and they’ve all murdered me, too. (All during in-class hypos, mind you.)”

Q: Can you give me an example of a hypothetical you might have used in class, to which the students who complained might have been referring? Can you describe the context in which you would have used it?

A: Yes, here is one: The Dean has threatened to fire me if she comes to school one more time and finds that I have parked in her designated parking space. Upset about the possibility of losing both my job and the parking space, I bring my .357 to school, get out of my car, put the .357 into my waistband, walk to the top floor where her office is located, open the door to her office, see her seated at her desk, draw my weapon, aim my weapon, and fire my weapon directly into what I believe to be her head. To my surprise, it’s not the Dean at all, but an ingeniously painted pumpkin - a pumpkin that has been intricately painted to look like the Dean. Dick Tracy rushes in and immediately wrestles me to the ground. I am charged with the attempted murder of the Dean.

The hypothetical raises various issues about attempted crimes that might entail discussion that spans more than one class. Some of the classroom discussion in the first, for example, will address the two basic philosophical problems of why we punish attempts, which are failed efforts at crime, and why we punish attempts less than successfully completed crimes.

A retributive argument, on the one hand, is that the attemptor has demonstrated his moral culpability by his bad conduct, and the degree of his punishment should not depend on a fortuitous turn of luck. On the other hand, a retributivist might argue that punishment in the absence of harm is unjust. For retributive purposes, has Connell demonstrated his moral culpability by shooting what he believes to be the Dean? Or does the fact that he merely destroyed a pumpkin suggest that his punishment would be unjust?

A utilitarian argument is that the attemptor’s actions demonstrate his dangerousness. His dangerousness having been established, the attemptor needs to be incapacitated or else he will try again until he succeeds. On the other hand, a utilitarian might argue that imposing punishment for conduct short of causing actual harm will cloud the otherwise bright line between conduct that is punishable and not punishable. Certainty of punishment enhances deterrence, while reducing certainty detracts from it. Should Connell be punished in order to prevent him from completing his intended result? If Connell’s shooting a pumpkin is considered attempted murder, then where do we draw the line? 

Attempt law also raises questions about the role of law enforcement in a free society. We want police to capture the people who cause harm, yet we also want police to protect us before harm can occur. On the one hand, a free society does not want punish people who only have bad thoughts or criminal tendencies. On the other hand, we do not want the police to wait so long to intervene that the risk of harm may become inevitable. If we allow law enforcement to intervene before harm is committed, where do we draw the line between conduct that is punishable and conduct that is not?

The “ingeniously painted pumpkin” hypo also raises for discussion in a different class the issue of if, and under what circumstances, impossibility may ever be a defense to an attempt charge. The law generally evolved into the rules that legal impossibility is a defense to an attempt charge, while factually impossibility is not.

What is legal impossibility? What is factual impossibility? Is it legally impossible for a shooter to commit attempted murder (if murder is intentionally causing the death of another human being) by intentionally shooting an ingeniously painted pumpkin, rather than a human being? Or is it factually impossible for a shooter to commit attempted murder by intentionally shooting an ingeniously painted pumpkin because shooting a pumpkin cannot cause the death of another human being? Considerable classroom time is devoted to a discussion of various examples and alternative analyses, in trying to resolve the conundrum.  

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