sex offenders

Where were you on April 17, 1966?

Jul 22nd

Posted by Gideon in criminal law principles

Ask anyone that question and they’ll look at you like you’re crazy (and you might get some interesting responses from those that weren’t born yet). But try it. If you were alive then, think back. Think back to that April day or any other April day that year or the next year or in fact, any day between 1966 and 1972 and tell me where you were specifically between the general periods of any time of day or night.

You can’t. It’s impossible. 44 years have passed since 1966 and 38 since 1972. Yet, for “G.R.H.” of Louisiana it is this lack of photographic memory and the inability to have the foresight to note and document his whereabouts on all those days in those 6 years decades ago that has landed him in jail for the rest of his life.

In 2006, GRH [opinion here] was accused of sexually assaulting a minor, as you may have guessed, between 1966 and 1972. The complainant, 44 at the time of the accusations, had an alleged clear memory of the assaults perpetrated by the defendant, some 40 years ago.

There was no corroboration, no contemporaneous disclosure, no other instances of sexual abuse by this defendant, nothing. Just the say-so of a 44 year old woman, almost an entire lifetime after it allegedly occurred.¹

Imagine, as Justice Douglas did, dissenting in United States v. Marion, that the 44 year delay occurred after GRH was arrested and not before. Certainly, none would argue that his right to a speedy trial was not violated. And the concerns with such a delay are certainly mitigated after the institution of a criminal prosecution: you know there is an action pending, so you hire an investigator, document your memories, speak to witnesses and firm up their recollections. When someone is not prosecuted and doesn’t sense one coming (having done nothing wrong), there is no reason why anyone would keep track of whatever alibis they might have had or whatever witnesses may have had to offer.

Justice Douglas, quoting Baron Alderson in 1844:

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

Baron Alderson said in Regina v. Robins, 1 Cox’s C. C. 114 (Somerset Winter Assizes 1844), where there was a two-year delay in making a charge of bestiality:

“It is monstrous to put a man on his trial after such a lapse of time. How can he account for his conduct so far back? If you accuse a man of a crime the next day, he may be enabled to bring forward his servants and family to say where he was and what he was about at the time; but if the 329*329 charge be not preferred for a year or more, how can he clear himself? No man’s life would be safe if such a prosecution were permitted. It would be very unjust to put him on his trial.”

What would he have thought of a 44 year delay, I wonder.

Yet, the Louisiana Court of Appeals (not even their Supreme Court, mind you, who declined to review the case) squarely placed the burden on the defendant to prove that he suffered actual prejudice; that the 44 year delay did, in fact, somehow prejudice him. The treatment of this important issue by the Louisiana Court of Appeals is very telling: the actual discussion of the issue is limited to two pages at best and is as summarily dispensed with as one can without being called trite.

We find that P.B. did not have problems recalling the inappropriate acts committed by Defendant. However, she did not recall the dates on which these acts occurred. We further find that Defendant cannot prove he was prejudiced by the delay in this case.

This, in polite circles, is called getting f*cked over. The defendant cannot prove the very thing that would help him, because of the very thing that made him unable to prove it. Also known as legal fiction or “how to convict a sex offender in 2 easy steps”.

And some, like me, would argue that the there really needn’t even be a showing that the defendant was prejudiced. Rather, the burden should shift squarely to the State. If they wish to prosecute someone after as gargantuan a delay as in this case, let them prove good reason for waiting so long. Let them prove the reliability of the witnesses and the testimony. Let them prove that this is not some recently concocted scheme by an upset individual.

How easily does the court dispense with that argument? I’ll show you:

Defendant also asks this court to assume prejudice because of the forty-year delay. This has never been the law. and we decline to adopt such a rule. See U.S. v. Beszborn, 21 F.3d 62 (5th Cir. 1994), cert. denied sub nom. Westmoreland v. U.S., 513 U.S. 934, 115 S.Ct. 330 (1994). Defendant further asks this court to issue a bright-line rule that prohibits prosecutions for “offenses such as these” without both corroboration and contemporaneous report to the authorities. We also decline to adopt such a bright-line rule based on the provisions of La.Code Crim.P. arts. 571 and 571.1.

No explanation, no rationale, nothing. A man, charged after a 44 year delay, about to spend the rest of his life in jail, deserves more than that. Our justice system deserves more than a dismissive, impatient wave of the hand.

I’m obviously not passing judgment on whether she was telling the truth or not. She may well be and he may well have done it. That’s not the point. The point is due process. And could this have happened to anyone but a “sex offender”?

That, really, is the rub here. He’s a sex offender. She must be believed and we, the courts, must do everything in our power to ensure that this man doesn’t get set free. Law and justice be damned. The witches shall burn and we shall light the fires.

GRH has filed a petition for writ of certiorari with the Supreme Court. The state did not deign to file a response.

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1. The court had to jump through other hoops to even get to this point. It reasoned that even though at the time of offenses, the death penalty was no longer applicable, it remained a capital offense and thus there is no applicable statute of limitations for rape. The court then also uses recently enacted statutes to justify its decision to not apply the due process clause. Judicial bullshit activism at its best.

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Taking stock of Comstock

May 17th

Posted by Gideon in federal criminal issues

2 comments

[I can't believe no one's made the pun yet]

What Comstock is, what it isn’t and what it might very well be.

First, what Comstock isn’t. Despite the ominous newspaper headlines, it is my opinion – however uninformed – that Comstock does not directly stand for the proposition that it is Constitutionally permissible to indefinitely commit sex offenders beyond the expiration of their criminal sentences.

Justice Breyer’s decision explicitly reserves that question for another day:

“We do not reach or decide any claim that the statute or its application denies equal protection of the laws, procedural or substantive due process, or any other rights guaranteed by the Constitution. Respondents are free to pursue those claims on remand, and any others they have preserved.”

As one commentator notes, there may very well be viable challenges to the Federal statute in the yet-to-come Comstock II or other cases.

What Comstock is: a decision that holds (however unpersuasively and problematically) that civil commitment by the Federal government is a “necessary and proper” means of exercising the federal authority that permits Congress to create federal criminal laws. What that “enumerated power” is, is never mentioned by the majority opinion (the best analogy I’ve seen of this legal trickery is in this post).

Justice Thomas explains this succinctly (yes, I know. Shut up.):

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

The Government identifies no specific enumerated power or powers as a constitutional predicate for § 4248, and none are readily discernable. Indeed, not even the Commerce Clause—the enumerated power this Court has interpreted most expansively, [citation omitted] can justify federal civil detention of sex offenders. Under the Court’s precedents, Congress may not regulate noneconomic activity (such as sexual violence) based solely on the effect such activity may have, in individual cases or in the aggregate, on interstate commerce. Morrison, 529 U. S., at 617–618; United States v. Lopez, 514 U. S. 549, 563–567 (1995).

What Comstock may very well be: the start of a line of cases that holds, one at a time, that it is perfectly okay for states and the federal government to indefinitely confine sex offenders, well beyond the expiration of their terms of incarceration.

Mixing sex offenders and public safety is a sure recipe for the evisceration of the rights guaranteed and protected by the Constitution. A court following in the footsteps of Comstock could easily hold that, as per the decisions in Alaska and Dept’ of Public Safety, civil commitment is a regulatory function undertaken for the safety of the general public, is not a punitive measure and justify it using the following language from Comstock:

2. This type of legislation is a long-standing Congressional practice: “the civil-commitment statute before us constitutes a modest addition to a set of federal prison-related mental-health statutes that have existed for many decades.”
3. The statute is merely an extension to persons already in federal custody (“If a federal prisoner is infected with a communicable disease that threatens others, surely it would be “necessary and proper” for the Federal Government to take action, pursuant to its role as federal custodian, to refuse (at least until the threat diminishes) to release that individual among the general public, where he might infect others).

Of course, both of the above arguments are a smoke-screen for the real purpose: sex offenders are bad and must be put away forever, even in the face of evidence suggesting that they are the lowest to reoffend. The above argument also ignores the basic distinction between civil commitment of sex offenders and those who are “quarantined” for health reasons: that the “disease” of being a sex offender is the very reason the individual is incarcerated in the first place, thus, in a sense, making civil commitment a second punishment.

But we are talking about sex offenders, so it’s open season. For a preview, see this brief analysis of the potential interplay between Comstock and Kansas v. Hendricks.

Finally, it must be noted that there is certainly something odd about the timing of the two criminal justice decisions issued today: Comstock and Graham v. Florida.

Reading them both on the same day certainly leaves one with the sense that there is no direction on the court on criminal justice issues.

[For links to far more detailed coverage of Comstock, see this post at SexCrimes.]

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Padilla on sex offender registration, indirectly

May 12th

Posted by Gideon in ct state law

5 comments

Back when Padilla v. Kentucky was decided by the United States Supreme Court, the defense bar was quite excited not only by the relief it afforded criminal defendants, but also by the exciting possibility that the Court might be willing to take an honest look at the fictional distinction between direct and collateral consequences of a plea.

Aside from deportation, which the Court described as “long recognized [as] a particularly severe penalty”, there is one other “collateral” consequence that defense lawyers are in a constant battle against. And that is sex offender registration. So it was only a matter of time before some court in the country considered the severity of the consequence of sex offender registration in light of the principles of Padilla.

Thanks to Doc Berman, I came across this very recent New York Supreme Court Court of Appeals decision in NY v. Gravino, which addressed the question of whether sex offender registration is a collateral consequence. A divided court says yes.

While Padilla dealt explicitly with attorney performance, Gravino addressed the issue of whether a plea was knowing, intelligent and voluntary if the trial court did not inform the defendant of the registration requirement.

Despite acknowledging that sex offender registration (especially in New York) is a “severe penalty”, the majority recites the usual “it’s not a penal statute, but merely regulatory” bullshit in order to neatly classify registration as a collateral consequence as opposed to a direct consequence.

But here’s where Padilla comes in. As I mentioned before, Justice Stevens gave us a delicious quote to use and rely on:

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

We, however, have never applied a distinction between direct and collateral consequences to define the scope of constitutionally “reasonable professional assistance” required under Strickland, 466 U. S., at 689. Whether that distinction is appropriate is a question we need not consider in this case because of the unique nature of deportation.

The arguments in favor of requiring that defendants be aware of the deportation consequences apply just as forcefully to the sex offender registration context. From the dissent in Gravino:

Significantly, in determining whether the direct/collateral consequence dichotomy was useful to determine whether deportation advice was required, the Court stated, “[a]lthough removal proceedings are civil in nature, deportation is nevertheless intimately related to the criminal process. Our law has enmeshed criminal convictions and the penalty of deportation for nearly a century. And, importantly, recent changes in our immigration law have made removal nearly an automatic result for a broad class of noncitizen offenders. Thus, we find it most difficult to divorce the [civil] penalty from the conviction in the deportation context”.

While it is true that Padilla dealt with the duty of counsel, rather than the duty of the courts, to inform a criminal defendant about deportation, the rationale employed by the Court in rejecting the direct/collateral consequence dichotomy applies with equal force in determining the voluntariness of a guilty plea where the court has failed to advise the defendant of SORA registration, which is also a civil penalty “difficult to divorce . . . from [a] conviction”.

It is difficult for me to understand how the court can, on one hand, admit that “SORA registration and risk-level determinations are non-penal consequences that result from the fact of conviction for certain crimes” and on the other easily “divorce the consequence from the conviction”.

While we may not be there yet, the day is not far off when some court will force SCOTUS to revisit their terrible rulings in Smith v. Doe and Dep’t of Public Safety v. Doe, in light of Padilla and the lifting of the veil on direct and collateral consequences.

Gravino was not permitted to withdraw her plea, despite never really being told that she’d have to register for 20 years and she would be in violation of a criminal statute if she failed to do so. Collaterally, two days ago, the Connecticut Supreme Court decided a case in which the defendant was explicitly told on the record that he did not have to register as a sex offender.

In Connecticut, unlike New York, the trial court is required, pursuant to 54-251(a), to inform the defendant that he will be required to register as a sex offender at the time of the plea:

Prior to accepting a plea of guilty or nolo contendere from a person with respect to a criminal offense against a victim who is a minor or a nonviolent sexual offense, the court shall (1) inform the person that the entry of a finding of guilty after acceptance of the plea will subject the person to the registration requirements of this section, and (2) determine that the person fully understands the consequences of the plea.

The defendant in that case, however, didn’t seek to withdraw his plea. Instead, all he wanted was to be free of the requirement to register. I think the court more likely than not would have let him withdraw his plea if he so pleased.

Connecticut, of course, also treats sex offender registration as regulatory rather than a punitive measure (State v. Waterman). But eventually, some court will have to accept the fact that these registration requirements place an undeniably heavy burden on offenders – burdens that are created by society in general – and deal with them in an intellectually honest manner.

Right?

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Tonya Craft teaches us all

May 11th

Posted by Gideon in ethics

15 comments

Tonya Craft, a former kindergarten teacher, charged with 22 counts of various sexual offenses involving 3 minor girls, was acquitted today. You may or may not have heard of her. I wrote a post recently about the trial and some of the outrageous antics engaged in by the prosecutors.

She was represented by Demosthenes Lorandos, who apparently has made a habit of successfully defending child sex cases across the country, and who hilariously said at the post-verdict press conference: “I do not lose”.

The media has been all over this trial, bringing it much needed attention. At first, the attention focused on the misbehavior of the prosecutors [see this for some very questionable comments during closing] and later the complete lack of qualification and training of the so-called “child sex experts”.

Twitter was set ablaze today as the jury was deliberating and the tweets of joy were abundant when the verdict was announced. Parties have been planned, interviews being given on the news and Ms. Craft will now fight to regain custody of her children.

All’s well that ends well. But this is not a happy post, nor is it a merely celebratory one. While Ms. Craft has the opportunity to return to her life, there are lessons for all of us. A fellow defense lawyer asked on Twitter: “Who is #tonyacraft and why [is she] any different from all of our other human tragedies?”

She is not. There are hundreds of Tonya Crafts out there in the criminal justice system, every single day, pleading to charges to avoid lengthy sentences or attempting to fight the false allegations and losing.

Any criminal defense lawyer (like yours truly) saw a stream of familiarity in the continuing coverage by news reporters of the direct and cross-examinations of the witnesses. The dissection of the forensic interviews by the defense experts was a veritable checklist of the problems associated with such after-the-fact divining: repeated questions, leading questions, suggestive questions. Pressuring children to answer a certain way; the worst form of confirmation bias. The prosecutors attempting to cast the defendant in general terms as a bad person, a person of loose moral character, thus equating foibles in their character with child molestation.

This. Happens. Every. Day.

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

Child sex assault allegations are the scariest of them all. The power to believe a child is overwhelming and the fear of disbelieving a child is even greater.

Will the media be there tomorrow when yet another Tonya Craft is hung out to dry by our criminal justice system and our courts that are so quick to label anyone merely accused of such a crime as a heinous monster? Will the public rise up in support every time there is a trial with questionable evidence and even shadier tactics employed by prosecutors and experts?

Or did Tonya Craft get attention because she’s white and she’s a woman?

There’s a well documented disparity between male and female sex offenders and the treatment they receive in our courts. Women are more likely to receive probation and less jail time than men. Women are more likely to have websites created which count down the “hottest” sex offenders.

Men are vilified and universally regarded as creepy and generally guilty.

Imagine if it weren’t Tonya Craft on trial, but Tony Craft. Would there be the same hubbub? Would anyone even bat an eyelid? Would the media’s treatment of the trial have been the same or diametrically opposed?

I don’t mean to demean the victory here, but this is a great opportunity for those who aren’t “in the know” in the system to realize several things:

1. People are falsely accused of crimes

2. Child Sex cases are the most difficult to defend against

3. Prosecutors routinely rely on questionable “experts” to get convictions

4. Just because a man is accused of molesting a child, doesn’t mean he’s guilty.

The next time you get asked to serve on a jury, think long and hard about these things and about Tonya Craft and about the witchhunts that go on every single day in all our courtrooms across the country.

Congratulations Tonya Craft. You board a plane and given an interview to NBC, it is your right. There will be some noise made about grieving the judge and the prosecutors, but if history is any guide, nothing will come of it. The town in Northwestern GA will return to normal and soon this will be talked about as a fairy-tale. But tomorrow, another Tony(a) Craft will be arrested and charged and will go on trial. Will he/she get justice? Will you be there to cover it? Will you know the difference? Will you turn a skeptical eye? Or will you join the mad rush of hysteria that has swept the nation in condemning the despicable child molester?

Your eyes have been opened. Whether to keep them open is up to you.

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tonya craft

Prove the defendant’s bad character, not the crime

May 6th

Posted by Gideon in criminal law principles

3 comments

Let’s play a game. I will give you two quotes, both on the same issue. One is from an erstwhile liberal northeast state, the other from a state in “flyover country”. You guess which is which.

Compare:

Nonetheless, we recognize that crimes of a sexual nature are unique and distinct from crimes of a nonsexual nature because they often are “committed surreptitiously, in the absence of any neutral witnesses” and exhibit an “unusually aberrant and pathological nature . . . .” State v. Merriam, [citation]. Accordingly, we conclude that evidence of uncharged misconduct properly may be admitted in sex crime cases under the liberal standard, provided its probative value outweighs its prejudicial effect, to establish that the defendant had a tendency or a propensity to engage in certain aberrant and compulsive sexual behavior.

with:

that which makes the evidence more probative—the similarity of the prior act to the charged act—also makes it more prejudicial. As we explained in Reynolds, where a prior bad act is “similar to the incident in question, ‘it would be extremely difficult for jurors to put out of their minds knowledge that the defendant had assaulted the victim in the past and not allow this information to consciously or subconsciously influence their decision.’ ” [citation] (quoting State v. Henderson, [citation]). [Statute] violates the due process clause of the [State] Constitution as applied in this case because it permits admission of prior bad acts against an individual other than the victim in the case to demonstrate general propensity.

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

Which is which? I’ll tell you. The first is from State v. Dejesus, a Connecticut Supreme Court decision that I excoriated here. The latter quote is from a very recent decision of the Iowa Supreme Court in State v. Cox. Of course, this liberal standard in Connecticut is applicable only to sex offenders. Scott, writing on State v. Cox, highlights yet again the blindness caused by sex offender hysteria and the quick sacrifice of basic principles of constitutional law such as due process:

The obvious response is that if a defendant is alleged to have committed a crime, prove the crime, not the defendant’s bad character. Putting aside the trial within a trial aspect of using uncharged prior bad acts, itself a nightmare to defend, the use of propensity to smear a defendant seems far too obvious for someone as smart as Eugene to ignore.

Most people, including lawyers, find propensity compelling. This is what makes it so dangerous. It is marginally relevant, but it is also the most unduly prejudicial evidence available. As bad as it is for most, it’s worse for anyone accused of being a sex offender, since that characterization already creates a taint that few are able to overcome. There are few offenses that can turn a stomach faster or harder, particularly when the offense involves a child.

As much as the public would be just as happy to take anyone accused of a sex offense and hang them in a tree, after which they can have as fair a trial as they want, this is precisely why propensity evidence should not be permitted at trials involving alleged sex offenses. The mere allegation of a sex offense carries overwhelming prejudice. To further remove the need to prove the crime, by supplanting proof with the prejudice of propensity, reduces the trial to a farce. Defendants should be convicted for what they did, not because they’ve been smeared in the process.

Nowhere has this been more evident recently than in the trial of Tonya Craft, which I wrote about here and which is still underway. One need only peruse the live tweets by the media from the trial to get a sense of the circus that it has become, centered around proving the bad character of the defendant, rather than the crime itself. Once a sexual deviant, always a child molester.

Sex offender fear has seeped into the subconscious of our society. Ask any defense lawyer and they will tell you it is the worst kind of crime to be charged with. An accusation, almost always, is as good as a conviction. We keep believing adolescents and children who make these allegations, many of them years and decades after the assault is alleged to have happened, despite common sense and experience telling us that children are frequent liars of the worst kind. Hack “experts” spring out of the woodwork to explain away any action or behavior of the child as being “consistent with sexual assault”.

A typical cross-examination of these “experts” will seek to show that delayed disclosure is indicative of sexual assault and at the same time immediate disclosure also indicates the same; that good grades are just as indicative as bad grades; acting out and acting normal are both indicators of sexual abuse. No matter how the child acts, the “expert” will tout it as a definite reaction to sexual abuse.

Yet juries don’t seem to care. A sex offender is dangerous and we must believe children. Child sexual assault, to be sure, is an ugly crime. But to automatically assume that any person accused of such is guilty is fearmongering of the worst kind that can only come back to bite us in the ass.

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tonya craft

A witchhunt by men who molest the law

Apr 29th

Posted by Gideon in ethics

10 comments

[Update: She's been acquitted.] Raise your hand if you’ve never heard of Tonya Craft. I hadn’t either, until I stumbled across this post at change.org. Tonya Craft is the latest lightning rod in that modern day witch-hunt: the sex offender.

But, from all accounts, this isn’t a normal case. This is a shining example of the lengths people will go to, in order to brand someone a villain. The word sham is inadequate to describe the sheer rape of the law that is currently underway in Northwest Georgia at Craft’s trial.

There’s little doubt that a guilty verdict will fail on appeal. Yet Arnt and his fellow prosecutor Len Gregor seem intent on achieving one anyway, no matter the cost. They’ve badgered witnesses with questions about Craft’s exercise and lawn-mowing habits, of all things. They’ve asked whether Craft is a narcissist, and if Craft ever passed out in a girlfriend’s bed after a night of drinking. These so-called “sordid revelations” that the kind that only a puritan (or an unhinged prosecutor) would connect to evidence of child molestation.

The case has gotten weirder and weirder. One defense witness, who let Craft watch her children every day for almost two years without incident, testified that one of Craft’s accusers — who is also a child actress — was “worldly for her age.” “Does that mean she’s a slut?” asked Gregor. When the witness uncomfortably denied the charge, Gregor wondered whether the child might be a “pre-slut.”

While change.org has two posts on the subject, much of the coverage is being done by this man (and this newspaper). The transgressions of the prosecutors in this case are numerous: from claiming that they didn’t have to obey the law, to employing the worst “experts”, to seeking to introduce dubious “prior bad acts”. I could really go on, but that wouldn’t do the story any justice. Instead, follow the yellow brick road from the ridiculous:

Craft’s trial has also seen a parade of so-called forensics experts act as effective cheerleaders for the prosecution. One expert who made an appearance, Holly Nave Kittle of the Children’s Advocacy Center, was openly hostile to questions about her lack of credentials and was unfamiliar with any relevant child abuse literature. Neither did she help her credibility as a witness after she “liked” a public Facebook post by Arnt, in which he wondered “if Tonya Craft’s Defense [sic] lawyers are really insane of [sic] just trying to jack up her defense bill?” (Both Arnt and Kittle’s conduct likely violate Georgia’s ethical rules.)

Another prosecution “expert” involved, Suzie Thorne, lacks a college degree, and her testimony seems highly suspect. When Thorne interviewed one of the children involved during a videotaped session, she asked the girl a whopping 16 times whether “anything else happened.” Each time, the child said no. However, Thorne testified that after she shut off the camera, the child left the room and then returned — suddenly remembering that yes, Craft had sexually abused her.

Fair enough. But then why didn’t Thorne record this statement, or press the child for more information on camera?

to the “what the fuck are you talking about?”:

“Do you know anything about a time that Ms. Craft came to the door of her home dressed only in a towel to meet a first-time date?” “No, I do not,” said the witness.

Mr. Gregor asked, “Do you know any narcissists?” “No, I do not.”

“Would a good person molest a child?” “No.” “Would a good person insert a finger or thumb in a vagina or rectum?” “No.”

As Noah Arenstein at Change puts it: the prosecutors were becoming increasingly unhinged. At least until the media showed up. But that’s not the worst of it. The man who seems to have defiled the purity and sanctity of the law the most is the judge presiding over the trial: Judge Brian House. Starting with declining (without explanation) to recuse himself from the trial, despite having represented Craft’s ex-husband in his divorce from her, to permitting completely irrelevant testimony about the defendant’s alleged affairs with adults, to not permitting the defense to present any character evidence of the defendant, after permitting irrelevant character-assassination testimony from the prosecution.

We all are aware that allegations of child sexual abuse inflame the passions of most people. But when a woman is so horribly being railroaded in a trial, where the singular aim seems to be to obtain a conviction in the face of damning evidence suggesting the contrary, where all independent observes agree that even if a conviction is obtained, it is sure to be reversed on appeal, do we know that we’ve crossed the line from hysteria into madness.

Prosecutors so abusing their power and a judge sanctioning the farce is a damning indictment of the lengths we will go to to demonize those that may be innocent so long as a child is involved. Whether Tonya Craft is guilty or not is irrelevant. That the trial is being permitted to be conducted in such an egregious manner casts a dark pall over all of us that hold the criminal justice system here in such high regard.

While this is the first I’ve read about Tonya Craft, this won’t be the last. I hope it’s the same for you.

[You can follow coverage of the trial by reporters on Twitter and use the #TonyaCraft hashtag.]

tonya craft

A few stray thoughts

Mar 23rd

Posted by Gideon in ct legal news

3 comments

the metaphor, stupid

Monday was a marathon day at the state legislature, with several criminal justice bills being considered. Two of the most important, in my view, were the bills to eviscerate The Great Writ (see prior post here) and Connecticut’s first attempt at residency restrictions (see previous post here). For those who want to brave through the public hearing, the entire video is here and written testimony submitted can be read here.

[A warning: this post is long, repeats some arguments I've already made and is extremely rude and vitriolic. But if you don't read it, you support terrorists.]

The habeas corpus effective suspension and evisceration bill

Chief State’s Attorney Kevin Kane testified at length (almost an hour, I think) on the habeas corpus “reform” bill. There were many, many problems with his testimony, but a few things really stuck in my craw. The entire basis for the State’s “suggestions” in the habeas reform bill seemed to be premised on two things: 1) that there is a glut of “frivolous” petitions and courts are overburdened; and 2) by moving the restrictions on the filing of habeas corpus petitions to the “front end”, rather than during the process itself, there will be a lot of weeding out and the load will be lightened.

Both are unfounded. CSA Kane went on for the better part of an hour, trumpeting the vast number of “successive petitions”, before someone on the committee had the good sense to ask him for some numbers. Just what constitutes a successive petition and what does he consider frivolous? Certainly not all petitions that are denied are not frivolous and eventually he had to admit that. Later on, during the testimony of the Deputy Chief Public Defender, we heard that a meager 4 1/2 % of all petitions were “successive”, in that petitioners had filed a prior habeas corpus petition.

But the State’s argument was premised on this straw man (if not outright lie) that the courts were dealing with a deluge of repetitive, frivolous and time consuming merit-less habeas petitions where petitioners were on their 9th or 10th bite at the apple. From what I’ve been told, there is maybe one inmate who is on his 7th or 8th petition, but that’s about it.

The second premise of the state’s position is all the more confusing and confounding.

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

To allay the fears of the few who rightly questioned the evisceration of such an important and time-honored Constitutional right, the state has inserted several “exceptions” into the bill that would apparently provide a mechanism whereby petitioners can get review of meritorious claims despite missing the statute of limitations and/or having filed prior habeas corpus petitions.

But the onus in all of those exceptions falls squarely on the shoulders of indigent, incarcerated inmates. When asked, for example, how the inmate could make a showing that there were facts that would lead a court to believe there was a chance that the petition was meritorious, the CSA replied that the petitioner could submit an affidavit of facts, that a court would then consider.

And just how is an inmate to do that? Counsel would not be appointed at that stage, so the petitioner would have no access to resources to effectuate such an affidavit. How is he to send people out into the community to investigate the merit to his claims? How is he to present them in a legally effective manner to a judge? Courts routinely insist that defendants and petitioners should not represent themselves and yet here we place this onerous burden, even in cases alleging actual innocence on an incarcerated inmate.

Not one legislator pointed out, much to my dismay, that the Courts would have the same amount of work, just clothed in a different garb. Instead of ruling on the merits of the petitioner’s claims, the court would rule on the merits to decide if there was merit. And then presumably rule again? The fact that this will only lead to more litigation should be obvious to everyone.

Also to my dismay, not one legislator challenged the sound-bite claim that victims are routinely dragged out to habeas corpus hearings, many years later and forced to face a retrial of sorts. In fact, at around 1:03:00 on the video, Judiciary Committee Co-Chair Mike Lawlor parrots the State’s position that “we can trot thousands of victims in here” who are notified that there is a habeas pending and they may be called to testify. Does it sound terrible? Yes. Does it happen? Almost rarely.

In fact, I can’t think of any case that I know of where the victim was called to testify at the habeas trial. There is maybe one scenario in which a victim may be called to testify. Perhaps this is something for which statistics cannot be kept. Still, someone should challenge this fearmongering argument, because it will quickly fall apart, instead of blindly accepting it as true. It simply is not true.

And as an aside, even if a victim is called to testify at a habeas trial, we should not use that as an excuse to curtail the basic Constitutional right to challenge the legality of one’s conviction. The slight inconvenience experienced by any such victim should necessarily take a back seat to the monumental interest in determining whether a person has been unlawfully and illegally deprived of his liberty.

The residency “you hate children or you love terrorists” restrictions bill

The testimony on this bill starts at around 03:14:10 on the video. The main testimony in support of the bill comes from State Rep. Rebimbas. Now, she does not represent my district, I hadn’t heard of her existence prior to Monday and I’ve never, ever spoken to the woman. I’m sure she does a fine job representing her district.

But.

Either she’s horribly assisted by aides who gave her incorrect information, or she misspoke or she intentionally fudged so many things to the committee that it made my head spin.

Two big points here as well: 1) The 2000 feet residency restriction zone is not overly restrictive; and 2) Sex offender recidivism is the highest.

Those who are regular readers of this blog know that residency restrictions are a pet peeve of mine (I even have a category dedicated to it). They are ineffective, useless and only tend to drive sex offenders underground.

At 3:41:00 (approx.) she says that 2000 feet is not overly restrictive “because it’s less than half a mile”. Putting aside the fact that 2000 feet is not less than half a mile, 2000 feet would put Connecticut into the group of most restrictive states. Per this 2007 OLR report, most states have residency restriction zones less than 2000 feet. The only states with a restriction of 2000 feet are Alabama, Arkansas, Iowa (whose County Attorneys issued this statement in 2006 against residency restrictions) and Oklahoma. So 2000 feet would be the most restrictive legislation in the country.

At approx 03:47:00, a legislator hits upon the biggest problem with the residency restrictions in urban cities. There’s a map of places covered by a 1500 feet restriction in the city of New Haven. The only place in the entire city of New Haven that is not within 1500 feet of a school or daycare is in the middle of the Yale golf course. Increase that radius to 2000 feet and there’s nowhere in any of CT’s large cities where sex offenders could reside. (See this post for another map and more on this.)

You should also listen to her evasive bullshit response to Rep. Holder-Winfield at approx 03:53:02 on the question of which, if any, states had restrictions greater than 2000 feet.

What’s the upshot of that? Sex offenders move into rural areas. Mike Lawlor joked at one point that he’s not sure how the rural legislators would feel about that. We all know how Southbury crapped the bed when one sex offender moved in. Imagine a whole busload of them.

In her long winded and vacuous answer to the question about where these sex offenders would go, the Rep. responded by repeating the easily refuted claim that sex offenders are very likely to reoffend and that “we’re protecting the children”. I’m not sure how many times I’m going to have to cite to the studies that show 1) that 95% of sex crimes are committed by people known to the victim and 2) that sex offenders have very low recidivism rates.

When pushed (at 03:55:03) about her numbers on recidivism, she didn’t have any handy, but “her numbers show that there are high recidivism rates”.

Look, I’m not sure if she knows all the answers or what. The point here is that this is dangerous legislation and should only be discussed, much less voted upon, with the full knowledge of the facts. Legislators needs to read all the studies in this area, arm themselves with accurate and reliable facts and then have a long and honest discussion about whether residency restrictions are needed in Connecticut.

The reality is that there already do exist residency restrictions and those are in the form of conditions of probation. When a defendant is on probation, they own him. They control what he wears, what he breathes and more importantly where he lives. Every client that I have, who is convicted of a sex offense, has some form of residency restriction built into his conditions.

Poorly thought out laws should have no place in our penal code, much less ones proposed based on knee-jerk fearmongering. Trotting out the children to pass terrible legislation is akin to the “if you’re against the war, you’re for the terrorists” mantra.

We must refuse to cower blindly to imaginary fears.

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Sex-y times at the state lege

Mar 18th

Posted by Gideon in ct legal news

4 comments

It’s the middle of the legislative season and just like all of us, the state legislature has sex on their minds. Sex related bills, I mean. No, wait, not dollars bills that you – nevermind. This is a family-friendly blog.

During public hearings to be conducted tomorrow and on Monday, the judiciary committee will consider a slew of bills focusing on sex and sex offenders. I’m here to give you the rundown on what they are and why they’re all bad (except one).

S.B. No. 33 An act concerning the registration of sexual offenders

This is, of course, the State equivalent of the awful, awful federal Adam Walsh Act. For 7 reasons why this bill is evil and must be defeated, see here.

S.B. No. 34 An act concerning computer crimes against children

This bill amends the “Enticing a Minor” statute by making it a crime to not exactly entice a minor to do anything:

or (2) display such person’s intimate parts through the use of a digital camera capable of downloading still or video images to a computer for transmission over the Internet or through the use of other available technology, or engage in a sexual act through the Internet or by telephone.

In fact, I’m not even sure that subsection (2) requires that the minor view any of these, um, intimate parts.

S.B. No. 479 (RAISED) AAC the attendance of registered sexual offenders at school functions involving their children.

Registered sex offenders are permitted to enter school property to attending school functions and/or meet with school personnel regarding their own children. That this bill is needed is the perfect example of just how stupid our sex offender laws are getting.

H.B. No. 5486 (RAISED) AAC residency restrictions for registered sexual offenders.

That this bill has been introduced comes as no surprise. The only surprise (to me) is that it took until 2010 for our state legislature to consider residency restrictions. My battle against residency restrictions is well documented. This bill has bad parts and “oh look we’re learning from other states” parts.

The bad: There’s a 2000 feet buffer zone. Which means that sex offenders will be banned from living anywhere in the state.

The “oh look we’re learning”: Grandfather clauses for those who already live somewhere within 2000 feet of any place a child may conceivably one day dream of going and for those whose houses may one day in the future fall within a 2000 feet zone.

The “good, I guess”: A violation is only a Class A misdemeanor.

H.B. No. 5533 (RAISED) AAC sexting.

Yes, sexting. That venerable institution of teens everywhere. What we used to call, back in the day, a good old-fashioned game of “doctor”.

Except this is the good bill I mentioned earlier. Thanks to Norm’s post, I see that the bill actually reduces the penalties for “sexting” from a D felony to an A misdemeanor.

The Adam Walsh fearmongering and bleeding money Act

Feb 10th

Posted by Gideon in Adam Walsh Act

2 comments

I have been in somewhat of a blog slumber. I haven’t posted in a while (and frankly, since Scott returned from his vacation, there’s no more opportunity for me to sneak in and steal his readers). But what better way to get the blood pumping and the vituperative juices returning than the news that our state Republicans and lame-duck Governor are once again introducing the Adam Walsh “burn them at the stake” Act.

I wouldn’t recommend clicking on that link. The Act is long and is sure to get your delicates in a delicate twist (unless you’re a terrorist, in which case, you win).

I’ve already written about one nonsensical aspect of this “Act” before: on the requirement that travelers through the State notify public safety of their impending passage.

There are several more that merit attention and derision, so I’ll list them first and then take them on one by one:

The Act creates a new “tiered” system of SORN (sex offender registration and notification), dividing defendants not on their chances of re-offending, or on the particular circumstances of their offenses, but simply on the offense of conviction itself: Tier A: 15 years, Tier B: 25 years, Tier C: life. Currently, in CT, there are only two “tiers”: 10 years and life. Risk assessment is simply not a factor in either equation and that’s a huge mistake.
The current risk of injury statute, the go-to statute for dubious allegations involving minors, would be revamped and broken up into three different statutes, each more onerous than the previous. Sexual contact with a minor under thirteen would become a Class A felony, thus lumping it together with the burglaries home invasions and murders and sexual contact with someone between thirteen and sixteen would become a Class B felony.
The rules for exemption from registration are putrid and hollow.
The registration requirements place a burden that is far greater than was approved by SCOTUS in Alaska and CT Dept. of Pub Safety (as distinguished by Maine’s Supreme Court): once a year for Tier 1, every 6 months for Tier 2 and every 3 months for Tier 3, all in person.
The requirements for “transients” are incredibly laughable and courts are taking notice of the fact that it is problematic to require homeless people to register and punish them for essentially not having a home.
The retroactive application of the registration requirements, which are already being successfully challenged.
The cost. Oh, the cost. It shall be staggering. It shall be wasteful. It shall be just what States need in this time of financial surplus.

The seventh point is the focus of this post, which is one more step toward a Big Brother/nanny state:

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

Sec. 8. (NEW) (Effective October 1, 2010) Any person who has reason to believe that a registrant is in violation of registration requirements and who, with intent to assist the registrant in eluding a law enforcement officer in the investigation or enforcement of such violation, (1) withholds information from, or does not notify, the law enforcement officer about the registrant’s noncompliance with such requirements and, if known, the whereabouts of the registrant, (2) harbors, or attempts to harbor, or assists another person in harboring or attempting to harbor, the registrant, (3) conceals or attempts to conceal, or assists another person in concealing or attempting to conceal, the registrant, (4) knowingly provides false information regarding the registrant, (5) obstructs or hinders the law enforcement officer in the performance of such officer’s official duties relative to the investigation or enforcement of such violation, or (6) falsely represents the registrant by signing address verification forms or other official documentation relative to the registration of sexual offenders, shall be guilty of a class D felony.

At first glance, the statute seems to be somewhat restricted in its application, proscribing active hindering or deception. But there is much potential for abuse here. For example, when is a “law enforcement officer in the investigation of such a violation”? Is it automatically assumed, that once a registration lapses on the 90th day or the 181st day, that an officer would begin to investigate the noncompliance?

And how is one to be held liable for not notifying, if one is unaware that an “active investigation” is underway? The word “notify” signifies an affirmative duty on the part of the individual with knowledge of non-compliance. So does this create a requirement and place a responsibility on all of us to notify law enforcement as soon as we become aware that someone we know is not in compliance? Are we being asked to spy and snitch on one another?

This statute ignores many of the realities surrounding sex offenders: an overwhelming percentage of offenders are known to their victims, are members of their family, etc. In a lot of cases, the people just want to move on, to try and reconcile, to forgive and forget. Especially after the defendant has served his sentence and been reunited with his family. Now this places the difficult choice in the hands of the family members or new loved ones: risk exposing the one you love to further incarceration or yourself to that same penalty.

Why can’t we keep policing to the police? And why is not snitching a crime only when it comes to sex offenders? Why not a bill that covers all crimes and failure to report information pertinent to a crime?

The AWA is a bloated piece of crap, which moves the state of our legislation in exactly the opposite direction of where it needs to go. It ignores the realities of recidivism, of risks and generally and spectacularly fails to recognize the individual circumstances that surround each offense and instead lumps people together into pseudo-homogenous categories where none apply.

But here, in the liberal Northeast’s southernmost state, it is de rigueur.

[For more, see this and Sex Crimes' AWA page.]

[The silly bill is No. 33. In order to counter the vicious hate directed at No. 33, I give you something beautiful: K 333.]

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On the intersection of morality, child sex and law

Jan 23rd

Posted by Gideon in sex offenders

7 comments

[THIS IS A BIG WARNING: The site I am about to link to is thought-provoking and unabashedly pornographic. Yes, I said pornographic. Be expected to be treated to pictures of naked women. Lots of them. And body parts. Lots of them. If you are under the age of 18, click here.

But on the flip side, you will be treated to articles on philosophy and morality. And in this particular case, law.

If you are sensitive to pornographic images, I would recommend using "Readability", which strips all images from pages and makes the text larger and more readable. That is how I read this page, despite no antagonism toward pornography. It just is easier to read.

It is undoubtedly, without reservation, NSFW. I will repeat: NSFW.]

Have you installed “Readability“? Why not? Go install it now. I’ll wait.

…

Done? You promise? Okay:

Roman Polanski and the Bounty of Childhood Sex is the article I am linking to here. It uses the case of Roman Polanski (both in its anecdotal and criminal case sense) as a springboard for a discussion and exploration of the immorality of child sex laws. Some excerpts:

So-called child molestation, which is actually just an abusive term for childhood sex is not a crime. The reason is simple. The act can be divided into two parts potentially. One is the sex, the other is physical (or excessive psychological – a vague and dubious concept) coercion. It is true that physical coercion can be criminal especially if it involves inflicting physical pain. However, coercion by itself is indifferent to the age of the victim. Coercing anyone to do anything against their will is at the very least immoral. Doing so at the point of a gun is often criminal (Coercing the perpetrator of a holdup to desist at the point of a gun is not considered criminal, but coercing a soldier into battle at the point of a gun may be considered criminal). However, proponents of so-called child molestation make clear that coercion is irrelevant to the supposed criminality of the act since even consensual sex with children is criminalized.

and:

If coercion and age are irrelevant in the spurious criminalization of childhood sex, that leaves the sex. The reason childhood sex is a criminal act must be the sex. But, if sex were the critical element, if sex were in itself damaging or evil, then all sex should be illegal. Apart from a few hysterics and other illiterates, no one would find this to be an acceptable conclusion. Sex is a pleasurable act and an enjoyable experience that, absent external and irrelevant disapproval, need have no deleterious consequences. This principle is as true for children as it is for adults. There is nothing identifiably specific in the child’s mental make-up that accounts for any special harm caused by this pleasurable experience. Of course, any physical activity runs some risk of physical harm, however small. Sexual activity in particular could result in vaginal or anal tearing, especially in a smaller body. But, if that were an applicable principle, the prohibition of sex should apply to dwarves but not to children above a certain physical stature. Indeed the potential for physical damage is an argument not to ban the activity, but to ensure is safe pursuit. Pee wee football is susceptible to far greater damage than mere fucking. But the potential for damage is no reason to ban the sport but rather to make sure the players wear safety equipment.

also:

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

The case for psychological damage is even weaker because there is a good argument that only a very small portion of psychologically damaging activity (such as torture) merits criminalization. Otherwise every nag would end up in the Big House. (The idea that judges could be counted on in their wisdom to apply a bad law such that Polanski would be sent up but nags given a pass is not relevant here, partly because there are untrustworthy judges just as there are bad laws, but primarily because our focus is to determine the moral grounds which could be used by a “wise” judge can make an exception in some unhappy situation. But if that is the case, why not just determine the moral grounds for good law and leave out the arbitrariness of the judiciary?) There is in fact abundant lack of reliable statistical evidence (pp. 24 ff.) that shows any psychological damage from childhood sex, even granting a highly prejudicial definition of psychological well-being. The anecdotal evidence compiled from interviews with children has been found to have been manipulated and in some cases invented (a genuine criminal act). Moreover, thanks to Melanie Griffith and the admirable Richard Dawkins (and indeed Samantha Geimer, Polanski’s own “victim”), we do have dependable anecdotal evidence that childhood sex has no effect whatsoever. Although Dawkins does deplore the fact of his own “victimization,” he quite simply states that the experience itself was “embarrassing but otherwise harmless (p. 316).” He obviously seems to have suffered no ill effects in later life, unless one perhaps plausibly maintains that an Oxford professorship is a sure sign of a mental trauma. Indeed some of those baby beauty contests strike me as a lot more creepy than a passing blow job. Most tellingly, the legal age for marriage in many states and countries before the child abuse fad hit should have resulted in a long history of psychotic brides. Which it didn’t.

Finally:

So the elements of so-called child molestation – coercion, age and sex – are in themselves not criminal. Perhaps it is some lethal combination of the three that provides a basis for criminalization. Yet it is hard to see what combination would work. Coercion, except in cases where the coercion is directed against a potential criminal act, should stand alone as an immoral and possibly criminal act. If coercion is involved, it makes no difference what the victim was coerced to do. And, as we saw, coercion is not even a necessary element in sexual criminalization. Arguments for the supposed harmfulness of sex turn out to be arguments for instruction in practicing sex properly. Arguments for the harmful combination of sex and age turn out to imply to prohibition of any number of activities that children are now allowed to do or to restrict procreation to artificial insemination.

There is a lot more in the piece and it raises some interesting questions. We are already all mostly in agreement that some specific instances of “statutory rape” and not offensive and should not be criminalized; hence the so-called “Romeo and Juliet” laws. But on the other hand, most of us would identify a certain moral repugnance as we continue to increase the age gap between the participants: 16 and 18 is okay, but what of 20 and 15? 20 and 16? Why the dividing line at 16 or 17? And how is 20 and 15 that different from 36 and 15 or 16 for that matter?

I would certainly not recommend this line of philosophical thought as a “defense” to child sex allegations in Court. Taking such a tact is bound to lead to a sudden decrease in credibility and perhaps an involuntary “transfer” to the basement without a stapler.

But for a Saturday, which is today, this might serve as the perfect springboard for a mental excursion. This is what I hope to do. Let me know if you do and what you find. Thus far, I think I already have problems with his summary dismissal of “coercion” despite the assertion that consent is “irrelevant”.

Specifically, I am interested in these theories and any studies that may exist out there on the question of “moral harm” inflicted on victims, in the context of the ambiguous “risk of injury” statutes.

I suspect I may lose a few readers because of this post. That’s fine.

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Is a battle on sex offender registration brewing?

Dec 29th

Posted by Gideon in Adam Walsh Act

7 comments

Silly sex offender registration laws have long been a bone that I’ve been itching to pick. If you asked me to list the ten worst decisions by SCOTUS in the last decade, Smith v. Doe and Dept’ of Public Safety v. Doe would make the top 5 of that list.

But I’ve always had the nagging feeling that both those decisions didn’t preclude future challenges to sex offender registration laws and their retroactive applications as violations of the Ex Post Facto clause. Now, we may just find out, because Maine’s Supreme Court has held that its sex offender registration law (SORNA) does violate the EPF.

The Maine decision is State v. Letalien, in which the defendant challenged the change in registration requirements from 15 years to lifetime and from change in address notifications to proactive 90 day reporting requirements. Interestingly, the ME court finds that the Federal and Maine Constitutions provide the same EPF protections and so the EPF violation is of the Federal Constitution.

Just like SCOTUS in Smith, the Letalien court concludes that SORNA is civil in nature and then engages in a discussion of the seven Mendoza-Martinez factors to determine if a statute that is intended to be civil will be found to be an ex post facto law. It will be so only if the “party challenging the statute provides ‘the clearest proof’ that ‘the statutory scheme [is] so punitive either in purpose or effect as to negate [the State’s] intention’ to deem it ‘civil.’” Kansas v. Hendricks. The factors are:

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

Whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment—retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned.

Comparing the conclusion reached by SCOTUS in Smith on the first factor to Maine’s SORNA law (and reality), the court finds that SORNA is indeed punitive in nature because it imposes an affirmative disability:

These provisions, which require lifetime registrants, under threat of prosecution, to physically appear at their local law enforcement agencies within five days of receiving a notice by mail, place substantial restrictions on the movements of lifetime registrants and may work an “impractical impediment that amounts to an affirmative disability”.

Here, however, quarterly, in-person verification of identity and location of home, school, and employment at a local police station, including fingerprinting and the submission of a photograph, for the remainder of one’s life, is undoubtedly a form of significant supervision by the state. In this respect, SORNA of 1999 imposes a disability or restraint that is neither minor nor indirect.

The court then evaluates the other factors, finding some to be in favor of the state, some neutral and some in favor of the defendant. But viewing them as a whole, the court cannot escape the conclusion that enhancing a defendants registration requirements which were imposed as part of a sentence before the change in the law necessarily violates the EPF clause.

There is no dissent, but there is a concurrence by one Judge who would have gone further than the majority. He cites an Indiana Supreme Court decision, Wallace v. State (2009), which also held that the retroactive application of SORNA to a defendant sentenced prior to the enactment of any registration requirements violated the EPF clause of the Indiana Constitution. The Wallace court concluded:

In summary, of the seven factors identified by Mendoza-Martinez as relevant to the inquiry of whether a statute has a punitive effect despite legislative intent that the statute be regulatory and non-punitive, only one factor in our view— advancing a non-punitive interest—points clearly in favor of treating the effects of the Act as non-punitive. The remaining factors, particularly the factor of excessiveness, point in the other direction.

So now we have two 2009 decisions holding that the retroactive application of SORNAs violates the EPF clause of the Federal constitution and a State constitution with identical language. This seemingly goes against SCOTUS’ holding in Smith, but I think that opinion was wrong and was very narrowly tailored. Will they revisit it? I’d love them to.

I wonder how such a challenge would play out in Connecticut. In the currently existing jurisprudential landscape, the prospects seem dim. Our Appellate Court has seemingly characterized Megan’s Law requirements as “collateral”, thus rejecting the notion that a defendant needed to be advised of the registration requirement at the time of plea and sentencing and the Supreme Court has held that Megan’s Law in CT is not punitive in nature at all. [Google Scholar doesn't seem to have a link to that decision, so the link is to a later decision that discusses and expands on the same ideas.] That Supreme Court decision, however, was in 2001 and since then there have been new versions of Megan’s Law here in CT. I think the time might be ripe for an all out assault on this piece of legislation.

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ex post facto, registration, retroactive

High-risk sex offenders still have nowhere to go

Dec 22nd

Posted by Gideon in cheshire

2 comments

Two years ago (and how time flies!) I wrote about the lack of any real residential inpatient options for high risk sex offenders in Connecticut. As of today, nothing has changed. The man whose case prompted the prior post is set to be released from custody on Christmas eve and – surprise, surprise! – he’s most likely going to end up in a shelter.

And even that’s not certain.

Instead, 52-year-old Ransome Lee Moody will be waiting in line for a bed at Immanuel Baptist Homeless Shelter in New Haven, a place where indigent offenders who have done their time often go for housing when there are no other options.

Now Moody is not a nice guy. Having spent 32 years of his 52 year life behind bars for various sexual and violent crimes, it’s clear that there’s a problem and he’s a danger either to himself or to society. So it would be appropriate if there were a place to house people like him, which would provide them the appropriate treatment and security and allow them to successfully integrate back into society, if possible.

Such a place was envisioned by the legislature – perhaps the only good thing to come out of the wholesale *cough*bullshit*cough* “reforms” to the criminal justice system in the wake of the Cheshire murders.

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

Somehow, in the midst of all that fist thumping and righteous indignation, the legislature managed to make a provision for a residential treatment center for high risk offenders: 12 on parole and 12 on probation. They even secured a bid from contractors and identified a location.

Then came the budget crisis. And of that behemoth bill, the one thing that lost its funding was the one sensible proposition. Meanwhile, the state is still funding the prosecution and eventual housing of people charged with and convicted of the redundant crime of home invasion.

And so now, despite the best efforts of the judicial department to find Mr. Moody a roof over his head and much needed treatment, we’re all going to play a game of Russian roulette:

But last month, [Moody's lawyer, public defender Jay] McKay said “we’re quite a long distance from the hopes of Judge Holzberg.” McKay told Superior Court Judge Patrick J. Clifford the facility would have taken care of Moody’s housing and his therapeutic needs.

“But the problem is that there isn’t one,” Clifford said. “It is a hope. And that was the legislature’s hope also. But with the budget crisis, we don’t have it.”

In the meantime, probation and parole officials will struggle to find options for homeless sex offenders, addressing public safety but also helping offenders adjust to life outside prison walls.

Probation officials said if that shelter is full, Moody could look for a bed at two other New Haven shelters. And in what they called a rare case that all beds will be filled, Moody could end up on the streets.

When asked at last month’s hearing if Moody would be guaranteed a bed, Chief Probation Officer William Anselmo admitted it was not a sure thing.

“We can do our best,” Anselmo told Clifford. “We don’t have a safe house. We don’t drop them off at a motel and pay for the night. Unfortunately, we do have some sex offenders supervised by probation, registered offenders that do live under the bridge for a couple of nights. We’ve had guys sleeping on the green in New Haven. Unfortunately, we just do not have the resource to put somebody up for the night.”

So if you happen upon the New Haven green next week and see Mr. Moody sleeping on a park bench, be sure to go over and say hello. Tell him that while he may have spectacularly failed society, it too has failed him.

[By the way, I haven't heard anything from either the residents of New Haven nor the American Idol Governor on the release of Mr. Moody, have you? If she has tried to keep him in jail longer than his sentence because he's such a damn menace to society and I just missed it, please let me know.]

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The fear is upon us: convict to be on the safe side

Dec 20th

Posted by Gideon in sex offenders

7 comments

these are not the sex offenders youre look-wait, he kinda is

America’s War on Sex (Offenders) is well documented by now. Sexual deviants and offenders are the modern day witches, persecuted by the fearful among us, without any regard to rationality or reason. So it was only inevitable, then, that the prosecutions of these witches creeped into the Orwellian realm: seemingly innocent acts (albeit non-conventional) that may perhaps possibly lead to an actual crime, despite a mountain of evidence suggesting the opposite.

That’s precisely what happened to one gentleman in Colorado, as documented by Dr. Marty Klein, who authors the Sexual Intelligence blog. He explains (explicit details, skip the blockquote if you’re delicate):

Here’s the situation: The defendant “Mr. Jones” goes into a Yahoo adult chat-room, and makes it clear he wants to have conversations about sexually dominating a young person. A person responds—let’s call her “Missy”—who says she’s a teen who would gladly chat with a wiser, older man about the ins and outs of sexual things.“Missy” says she’s 14, and she and “Mr. Jones” proceed to exchange hundreds and hundreds of emails, IMs, and phone calls, which range from the incredibly boring to the graphically sexual. He discusses how one day she’s going to be sexual with men, and therefore he helpfully instructs “Missy” to put her fingers in her vagina, practice sucking them, etc.. On the other hand, he never invites his correspondent to meet him, never sends “Missy” money or gifts, never sends her pictures of adults having sex with minors.

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

Judging by the quotes, you might have guessed that “Missy” is a cop. Mr. Jones was charged with some form of internet sexual exploitation (if any CO practitioners know the statute, leave a link in the comments and I’ll amend the post – the closest I could find was this), notwithstanding the fact that “Missy” was not a minor, nor was he doing any grooming for any contact whatsoever, since through their repeated communications he had not once suggested they meet in person, nor sent a photograph of himself or requested photographs of her. In other words, it was a fantasy. Much like the ones we all have.

Dr. Klein, hired as an expert by the defense, was put through the wringer by the prosecution, who sought to paint Mr. Jones – and by implication all adults with healthy sexual desires – as deviants:

The prosecution tried to get me to say that most people who fantasize are sick, which I wouldn’t. They tried to get me to say that people’s fantasies indicate what they want to do in real life, which I wouldn’t. They tried to get me to say that Mr. Jones’ calls and emails were typical grooming behavior. I pointed out the fundamental flaws in their reasoning: he had met “Missy” in a chatroom for adults, not for fans of Miley Cyrus or the Jonas Brothers. And after a thousand emails and phone calls, he never said anything like, “Let’s meet. We’ll have a great time. When are you free? I’ll send you money for a bus ticket.”

The jury received Dr. Klein warmly and showered Mr. Jones’ lawyer with compliments. Yet today, Mr. Jones is not a free man. The jury convicted him, because they were afraid to believe him. They couldn’t be sure if he was really seeking out a child. No, he didn’t prove his innocence beyond a reasonable doubt.

This war on sex has so turned the tables on individuals that the fundamental constitutional protections of due process and the burden resting with the state to prove a crime exist only as a sham, if at all. When juries are afraid to do the right thing and acquit someone who has committed no crime, only because they could never be a hundred percent sure that the defendant didn’t intend to, or never will intend to, it is time to lock your doors and never leave the house.

When convictions are based on what the defendant couldn’t disprove, not what the State failed to, the criminal justice system has turned into nothing more than the crusade against heretics.

As the comments to my previous post on whether pedophelia is the result of organic brain disorders show, it may very well be the fact that “these people” are “different” from the personas average people put on display that drives the “average juror” to convict, just to be safe.

Hopefully, on appeal, it will be proven that this was not a “reasonable” jury and restore our faith in the criminal justice system. But don’t hold your breath.

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Judging evil: Do pedophiles have free will?

Dec 4th

Posted by Gideon in criminal law principles

14 comments

Neuroskeptic, earlier this week, wrote this very powerful (and sad) post about the story of an anonymous man, who after several surgeries removing parts of his brain, developed sexual urges directed toward minors. He developed a case of the rare Klüver-Bucy Syndrome. KBS is a behavioral disorder that occurs when the right or left temporal medial lobes of the brain are damaged. One of the symptoms of KBS is altered sexuality, which can be defined as: characterized by a heightened sex drive or a tendency to seek sexual stimulation from unusual or inappropriate objects.

In this anonymous subject’s case, the inappropriate objects were prepubescents. He was arrested in 2006 and charged with knowingly and wilfully possessing material which contained at least three images of child pornography. The intent requirement of this crime was the key factor in the fight over his sentence. On his behalf, the argument was made that because of the damage to his brain and the resultant KBS, he was not in control of his hypersexual urges. The prosecution countered that since he was able to prevent himself from acting out in public (I wonder if that’s really the case or if that’s a bit of reverse logic), he was able to control his urges, and thus any criminal act was wilfull and knowing.

In his particular case, the judge accepted the mitigation provided by the defense and sentenced the man to the minimum permissible. [Note that after being put on anti-depressants and other medicine, his urges went away.] But, as Neuroskeptic notes, there is a very interesting question here. If the science does prove at some point down the road that pedophiles really are not in complete control of their urges and these urges are the result of a brain malfunction – an organic disorder, if you will – must we change our attitudes toward those that commit these crimes?

Neuroskeptic notes a striking similarity between the behavior of monkeys with similar brain damage and humans:

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

On the other hand, damage to the same parts of the brain causes strikingly similar symptoms in monkeys. An alien scientist observing life on earth might well conclude, from cases like this, that all the species of monkeys on this planet are very similar – including humans. You damage a certain part of their brains, and their behaviour changes in a predictable way. Most of us humans would say that other monkeys don’t have “free will” – but then how are we so sure that we do?

No matter what your views on child molesters, if you are a student of the law and of the human mind, the possibility that some people may act out in ways that they cannot control must pique your interest. For the very essence of criminality is the mens rea, the intent to commit an act that society has deemed illegal. This may not be limited to pedophiles alone: consider the man who by all accounts is sweet, gentle and kind and who, one day, goes on a rampage for no seeming reason and commits horrible murders. Criminal defense lawyers have already recognized the impact of traumatic brain injury on the defendant and his culpability. So why are pedophiles so different in our view?

People almost universally will decry the act of pedophilia as immoral, distasteful and heinous. The reason for this particular hatred toward pedophilia is the nature of the victim: the innocent, not-as-yet-sexual child, who cannot defend himself against the improper advances of someone older. And there is a lot of merit to that. But ask someone the next question: why do pedophiles offend? The answer you’re most likely to get will include some vague term such as “sick” or “evil”. Underlying these reasonings is the belief that pedophiles are able to control their urges and their actions. But “sick” or “evil” are amorphous terms. They mean whatever you want them to mean and are usually dismissive in nature. To ask that question is to invite the “are you serious?” look.

But it is an entirely legitimate question. At least for those of us concerned with fitting the punishment to the crime and with understanding the motivations of human beings in the context of the criminal justice system.

As long as a large majority of the population views sexual acts committed upon a child as against the norm, pedophilia will remain a crime (there is some discussion on the internet that pedophilia is a sexual orientation, not a sexual disorder, but I will leave that for another day). Having accepted that, we must then turn to the punishment for that crime. Must we punish the individual who wilfully and knowingly shoots another person for a perceived slight less severely than the individual who sexual abuses children, albeit without any ability to control his urges?

The development of neuroscience vis-a-vis pedophiles may lead (should lead?) to an adjustment in our view of the offender, not the crime itself. This student paper asks some of the pertinent questions:

If it is the case that pedophilia is often unpreventable and always incurable, is it not also the case that any one of us is at risk for pedophilia? With this possibility in mind, should we try and be more sympathetic, or would sympathy mean forgiving a heinous crime and at the same time sacrificing critical moral guidelines? This is not necessarily the case. For example, in the film The Woodsman, a convicted pedophile is released from prison and struggles with his past offenses and continued urges. The audience is asked to be sympathetic but also recognize that his deviant behavior is harmful. Understanding and perhaps sympathizing with those who suffer from pedophilia does not mean believing child molestation is acceptable.

Just as we don’t “accept” the robberies committed by the junkie to support his habit (we understand and sympathize with the junkie and his need to commit the robbery), would it be so horrific to understand the physiology of the pedophile and to make a correct in our perception of the punishment needed to be meted out? After all, it is our changing views (and some might say oscillating) of this type of behavior that result in the classification of illegality.

At the very least, as we represent individuals charged with these crimes, we must begin to explore the neurological possibilities that the client may or may not be fully in control of his actions. The three stated goals of the criminal justice system – punishment, rehabilitation and deterrence – would be better served by understanding the cause of the action, rather than ignoring it altogether, as is often the case with pedophilia. Discovering that the defendant suffers from an organic brain injury may help us fashion the appropriate sentence and create access to the appropriate treatment to prevent re-offending.

As more light is shed on this area of neuroscience, [see the work of Frederick Berlin] I suspect that this is a conversation we will be having more often.

[Because there are many who would skim this post and conclude that I am advocating de-criminalizing the act of pedophilia, I feel it is important to reiterate that I am not. I am merely exploring an area that is new to me: the possibility that brain functioning might explain the reason why pedophiles molest children. Also, this is my personal view only.]

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Ooo, look: a sex offender (is doing what he should)

Aug 18th

Posted by Gideon in ct legal news

4 comments

It seems as though Connecticut’s problems with its probate courts have been solved and they’re running all hunky-dory. How else can one explain the unsolicited comments by two probate judges (remember, these aren’t actual judges. In fact, they aren’t even lawyers. So I can’t dust off that old “what do you call a lawyer with an IQ of 50″ chestnut) that sex offenders are entering their building.

Except, um, their building also hosts a damn probation office where they are reporting.

Probate Judges Frank Forgione and John Keyes say sex offenders are among the clients visiting the Adult Probation Office at the State Street building.

Forgione says probation officials told him they’re making every effort to ensure children are not in danger. But the New Haven Register reports there were no guards at the probation office door or the front lobby of the building Friday afternoon.

So here’s a new rule, in this age of unbelievably stupid hysteria surrounding sex offenders: they should be banned from all places a child may conceivably go, no matter how ridiculous or far-fetched it may sound. This way, sex offenders will be banned from everywhere, including courts, jails, a street and your mind.

Don’t even go there.

sex offenders

Where were you on April 17, 1966?

Taking stock of Comstock

Padilla on sex offender registration, indirectly

Tonya Craft teaches us all

Prove the defendant’s bad character, not the crime

A witchhunt by men who molest the law

A few stray thoughts

Sex-y times at the state lege

The Adam Walsh fearmongering and bleeding money Act

On the intersection of morality, child sex and law

Is a battle on sex offender registration brewing?

High-risk sex offenders still have nowhere to go

The fear is upon us: convict to be on the safe side

Judging evil: Do pedophiles have free will?

Ooo, look: a sex offender (is doing what he should)

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