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9 Ohio St. J. Crim. L. 761 (2011-2012)
Attempt, Preparation, and Harm: The Case of the Jealous Ex-Husband

handle is hein.journals/osjcl9 and id is 765 raw text is: Attempt, Preparation, and Harm: The Case of the Jealous Ex-Husband John Hasnas* The editors of this journal pose an interesting hypothetical for our consideration, to wit: An ex-husband, divorced for about a year, travels to Chicago where his ex-wife lives. He first obtains a loaded gun from the home of his deceased father, and then drives to his ex-wife's house. From the bushes next to the house, he sees her in the kitchen and the man he suspects is the ex-wife's lover giving the husband's female toddler a bath. The ex- husband turns away from the window, but is arrested the next day after the gun is discovered on him by a police officer. Assume that a neighbor of the ex-wife saw the ex-husband in the bushes and reported it to the ex- wife, who now adamantly wants charges pressed against the ex-husband. Although the editors asked us to consider whether the local prosecutor should bring charges of attempted murder, reckless endangerment, or attempted reckless endangerment, due to limitations of space, I have elected to focus on the question of attempted murder exclusively.' To do so, I intend to take a liberty that I do not permit my students, and build some assumptions into the hypothetical to sharpen its focus. Thus, I assume that when the ex-husband went to the home of his ex- wife, he had the specific intent to kill both her and her lover, and hence had the mens rea for attempted murder. Further, I assume that when he was in the bushes watching his ex-wife and lover, the ex-husband did not aim the gun at them or otherwise remove it from its place of concealment. Now, if the question associated with this hypothetical was whether the prosecutor could properly charge the jealous ex-husband with attempted murder, the answer would clearly be yes. But the question asked was whether the prosecutor should file such charges. The fact that the answer to this question is almost assuredly no suggests that there is something amiss with the current state J.D., Ph.D., LL.M. Associate Professor of Business & Visiting Professor of Law, Georgetown University. The author wishes to thank the editors of the Ohio State Journal of Criminal Law for the invitation to participate in this mini-symposium. The author also wishes to thank Ann C. Tunstall of SciLucent LLP for her comments on a draft of this article and Annette and Ava Hasnas of the Montessori School of Northern Virginia for keeping him focused on the crucial importance of the locus poenitentiae. 1I believe the argument I provide to apply to reckless endangerment as well, but that application will be left to the reader. I do not address attempted reckless endangerment. Because it is impossible to attempt to be reckless, I believe that there should be no such offense. 761

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