Category Archives: sex offenders

Maryland court rules sex offender registration cannot be retroactive

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Bucking the national trend, Maryland’s Court of Appeals ruled earlier this week [PDF] that requiring an individual to register as a sex offender for a crime committed 12 years before the registry came into existence violates the Maryland Bill of Rights and the ex-post facto clause of the Federal Constitution.

The prohibition against ex post facto laws is rooted in a basic sense of fairness, namely that a person should have “fair warning” of the consequences of his or her actions and that a person should be protected against unjust, oppressive, arbitrary, or vindictive  legislation. See Demby, 390 Md. at 608-09, 890 A.2d at 327 (citations and quotations  omitted) (noting that there are “[t]wo paramount protections” provided by prohibitions  against ex post facto laws; “the assurance that legislative Acts give fair warning of their  effect and permit individuals to rely on their meaning until explicitly changed,” and a  restriction on “governmental power by restraining arbitrary and potentially vindictive  legislation”);

…

Based on principles of fundamental fairness and the right to fair warning within the  meaning of Article 17, retrospective application of the sex offender registration statute to  Petitioner is unconstitutional.

The whole opinion is quite the read and a great lesson for those interested in how the U.S. Supreme Court has watered down and narrowed the Federal protection against ex-post facto laws, starting with Youngblood and including Smith v. Doe and CT v. Doe.

Connecticut, in turn, through legislation and jurisprudence has taken the opposite view: that sex offender registration is not a punishment and thus cannot violate the ex-post facto clause. State v. Alex Kelly:

The defendant also contends that the trial court further violated the ex post facto clause by imposing a sentence that required him to register as a sex offender in accordance with §§ 54-102r and 54-102s. Those sections, commonly referred to as Megan’s Law, were enacted in 1994 and 1995, respectively, and § 54-102r was amended in 1997. Megan’s Law requires that a sexual offender register with the local chief of police or resident state trooper after establishing residency in the state and notify his or her parole or probation officer whenever he or she changes residence address. In turn, the parole or probation officer is required to notify law enforcement authorities of the change. See General Statutes (Rev. to 1997) § 54-102r (c), as amended by No. 97-183, § 1, of the 1997 Public Acts, and General Statutes (Rev. to 1997) § 54-102s (b). The defendant argues that these provisions are punitive and, therefore, 91*91 the requirement that he register under the statutes violates his constitutional right to be free from the application of ex post facto laws because, at the time he committed the offense, Connecticut did not mandate registration of sex offenders with community law enforcement. We disagree.

Although this court never has specifically addressed the issue, most other state and federal courts have held that registration statutes, similar to our § 54-102r, requiring convicted sex offenders to register with local authorities in the communities in which they reside, are regulatory and not punitive in nature.[35] Those courts have concluded that such regulatory measures do not constitute punishment as proscribed by the ex post facto clause.

There was talk for a long time of sensible sex offender registration reforms in Connecticut, but nothing has happened yet. Maybe it will; maybe it won’t. But I believe it’s time for our courts to revisit this issue.

Juris ‘not a medical’ Doctor

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Hello, Sweetie.

I’ve long joked that my favorite pickup line is “I’m a lawyer, but you can call me Doctor” and I’ve semi-seriously tried to get people to call me Dr. Trumpet for years now. My graduate degree, after all, is the Juris Doctor1. While I may play one on Friday nights, I’d sooner seek the services of one than play a doctor in court, during a trial.

Criminal cases surprisingly involve a variety of medical issues: from gunshot wounds to broken noses to neuroscience to sexually transmitted diseases. While it helps to have a more than basic understanding of how many liters of blood the are in the human body or what posterior and anterior lateral thingy muscle mean, no criminal defense lawyer should purport to try a case with material medical evidence without consulting someone who has actual training in the medicinal arts.

Take trichomonas, for example. How many here know what that is? And if you’re told that the complainant in a sex assault case contracted trichomonas, allegedly from your client, wouldn’t it behoove you contact a medical profession to ask just how likely that is? Continue reading →

Special sex offender syllogism

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In the criminal law, there are experts and then there are experts. While you will find no shortage of people willing to line up and testify for a hefty fee that things are just as you wish them to be, some have more credibility than others. Falling in the former camp are those who deal with scientific evidence, like DNA or ballistics (and even then…). Squarely in the latter camp are those who are nothing more than anecdotal data compilers who then come to conclusions about that data through biased lenses: the so-called “forensic child abuse experts”. Really, they’re no more than lay witnesses who state their observations in their particular “practice”. Most don’t conduct research of their own, or write peer reviewed scientific papers or have more than the most basic medical training, if that.

And yet they’re allowed to testify with impunity about their so called “expertise”, which surprisingly happens to exactly coincide with whatever behavior the complaining witness exhibits. Courts have bent over backwards to permit this “expert” testimony, going so far as to classify it as non-scientific, thus placing it squarely outside the realm of Daubert scrutiny. [In CT, see State v. Sorabella, which doesn't answer the question of whether Daubert scrutiny is still required for this anecdotal expert testimony pursuant to Kumho Tire.] Continue reading →

It’s time for real reform

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Years ago, when two men broke into a house overnight in the suburban town of Cheshire, CT and in the most gruesome manner imaginable killed three women, leaving one survivor, the calls for an overhaul of our criminal justice system were swift and unrelenting (I could have linked every word in that overwrought sentence to a separate post, but I’ll spare you and leave you with just this link instead). Some proposals – three strikes laws, for instance – were thankfully dispatched as ineffective and onerous, while others increasing penalties and creating new laws where old ones already existed were passed and continue to terrorize our criminal courts to this day.

But there was an event and swift, decisive reaction. There was outrage and fist-thumping and a general cacophony best described as madness.

Now, some 5 years later, there are equally troubling events bubbling to the surface in this land of steady habits. These events demand a similarly swift and decisive response from those that purport to speak on our behalf. The difference, however, is that this response needn’t be born of passion, but rather of compassion and logic.

First – and forgive me for being so late to this game – the wound that has opened and refused to scab and heal: racial profiling. Starting with the indictment of 4 East Haven police officers, the mayor’s boneheaded remarks, the long-overdue resignation of the police chief all the way up to the Hartford Courant’s analysis of over 10,000 traffic incident reports, it should be clear to everyone, not just those who are nestled inside the system, that there is an undeniable bias against minorities:

[Just the other day, I was viewing this slideshow of photographs taken by a reporter in 1983, documenting the protests against the KKK right here in CT and for a brief moment, deluded myself into thinking that racism and racial stereotyping were thankfully a thing of the past. Don't make the mistake I did. It's still there. You just can't see it.]

The disparity was most striking among Hispanic motorists, who were more likely than both whites and blacks to be ticketed in each of 13 categories of violations — such as speeding, cellphone violations, running stop signs and improper license-plate display — for which there were at least 1,000 stops. Black drivers fared worse than whites in 10 of the 13 categories.

For violations of state laws on tinted windows, white motorists were ticketed 12 percent of the time. For blacks and Hispanics, the figure was 17 percent and 24 percent, respectively.

Among drivers stopped for an improper turn or stop, blacks were nearly 50 percent more likely to be ticketed than whites. Hispanics were twice as likely.

That this is something that should be prohibited occurred to the wise men of the Senate as far back as 1999, when they passed a state law outlawing profiling and requiring each department to submit racial data for analysis. But like a bandaid on a gaping head wound, it was never more than lip service. The reason for that, of course, is that this problem is systemic. It’s also a problem without a solution, at least as currently imagined. So let’s assume someone gets pulled over because of racial profiling and gets a ticket. So what? What can anyone do about it? What’s the remedy? Short of a vindictive prosecution type of argument, how is someone even going to prove it? And what’s the legal basis for a judge or prosecutor to take that into account if we ever get over the hurdle of making them believe that that’s the cause of the stop?

The change has to come from the system, not imposed on it. Those in power – judges and prosecutors – have to first admit that this problem exists and then view stops with skepticism and suspicion and not take the word of police officers as gospel.

A few years ago I worked with a clerk who was a young Hispanic male. In the three years we worked together, he got 7 tickets, all from the same police department in the town where our office was. We all knew he got pulled over because he was Hispanic. Fat load of good it did him. He still had to pay 7 tickets.

The only other solution, of course, is the wholesale federal indictment and prosecution of errant officers. This, obviously, is not tenable. But there have to be repercussions; a system purporting to provide justice cannot turn a blind eye to the injustices that populate its halls on a daily basis.

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Let’s play a little game. I’ll posit some well known facts and then I’ll tell you whether they’re true or not.

Q: Is it true that all sex offenders kill their victims?

A: No.

Q: Is it true that all sex offenders are possessed by the devil and can’t even be killed by the Colt?

A: No.

Q: Is it true that the minute you let a sex offender out of jail, he goes and eats another baby?

A: No.

Q: Is it true that sex offenders have the highest (or even high) rate of recidivism?

A: No.

A study [PDF] by the state Office of Policy and Management has finally vindicated what I (and others) have been saying for a long time now: sex offenders don’t reoffend at the same rates as other felons and the common perception of their rates of recidivism is incorrect. From the study:

The study tracked 14,398 men for a five-year period following their release or discharge from a Connecticut prison in 2005. In that cohort, 1,395 men had a previous arrest for a sex offense, 846 had a conviction and 746 served a prison sentence, either the one ending in 2005 or an earlier one, for a sex offense.

Looking at the 746 men who had served time for a sex crime, 27, or 3.6 percent, were arrested and charged with a new sex crime; 20, or 2.7 percent, were convicted of a new sex offense; and 13, or 1.7 percent, were returned to prison for a new sex crime. Many among the 746 committed other crimes — many for parole violations or violating the conditions of the sex offender registry — but not sex crimes.

Those are spectacularly low rates (yes, yes, I know, one child is one child too many) that don’t justify the resources and the energy put into incarcerating these offenders and nor do they justify the onerous sentences handed out to all and sundry.

Obviously there are those who have committed grievous offenses and must be punished accordingly, but that’s exactly my point: that, contrary to popular belief, sex offenders aren’t one-size fits all and we must treat them as such. There are those who are low risk, those who are medium risk and those who are high risk. There are those who are misguided teens with angry parents and those who are truly predatory. Our system paints them all with the same scarlet letter and such a homogenous view does nothing to keep us safe or to put our resources where they are most needed.

The Court article linked to above calls for the creation of a tiered registration system. There already exists a Risk Assessment Board. Fund it. I have additional suggestions: pass legislation that makes it clear that an offender does not have to admit to committing the crime during treatment, that they don’t have to confess to other crimes. People are routinely violated (yes, I know, it’s an awful word) for failing to “admit” their crime during treatment even if they steadfastly maintained their innocence throughout the proceedings. Hey, here’s a news flash: innocent people go to jail all the time.

Let’s focus our resources on determining who out of those truly pose a danger and who can be rehabilitated. The less people we ostracize, the safer we are.

And so as this short legislative session continues, the question comes into focus: will our legislature be strong enough to eschew the faulty “tough on crime” for the more appropriate “smart on crime”? Will these events – the racial profiling and the studies – be enough to jar them out of their steady habits and, for once, enact some meaningful reforms?

 

 

 

I know it when I see it

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obscene

Finally, my favorite subject: pornography. Everyone has to have heard of Justice Potter Stewart’s words which form the title of this post, written in a concurrence in Jacobellis v. Ohio, on the issue of “obscene” videos. And almost no one knows what it means. After a flurry of decisions in the 1960s and 70s (Stanley v. GA, Smith v. CA, Miller v. CA, Jenkins v. GA) attempting to define exactly what is obscene and what is protected and just who can be prosecuted with and ending up with a mess of a Constitutional doctrine, the Supreme Court – and the general American public – seem to have given up on pornography altogether. No one really cares anymore and there’s hardly ever a prosecution for the production, sale and possession of adult pornography.

Unless you’re a sex offender on probation, of course. Enter Robert Stephens. Stephens was convicted of possession of child pornography and as part of his sentence, was placed on probation. Some of his conditions were as follows:

One of the seven special conditions was that the defendant’s access to any computer must be approved by the office of adult probation. Among the special  sex offender conditions were that the defendant (1) not possess, or subscribe to, any sexually stimulating material deemed inappropriate by a probation  officer, (2) not possess a camera, DVD player, camcorder, videocassette recorder or other similar equipment without the approval of a probation officer, and  (3) submit to an examination and search of his computer or other similar equipment to verify that it was not being utilized in violation of his probation or  treatment.

Note that the condition isn’t “obscene” material, but rather “sexually stimulating material deemed inappropriate by a probation officer”. More on that later.

As is the natural course of events for sex offenders, he was found in violation of his probation for having a few nude photographs of his ex girlfriend and duly sentenced to 42 months in prison. He appealed, claiming that the condition: Continue reading →

The Aftermath

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It’s no secret that if there’s one type of case that a defense attorney really fears, it’s the one involving allegations of sexual assault against a child. They’re morally repugnant crimes, which can be alleged with surprising ease and little evidence to back them, making them nightmares to defend. Add to that the stigma that is now attached, the media scrutiny, the complete disregard for the presumption of innocence and the witch hunt under way and you have the perfect recipe for sleepless nights and ruined lives.

This week, the Washington Post published a lengthy, powerful article on the aftermath of such a (false) allegation against an elementary school teacher in Fairfax, VA.

Sean Lanigan’s nightmare began in January 2010, when the principal at Centre Ridge Elementary School pulled him out of the physical education class he was teaching and quietly walked him into an interrogation with two Fairfax County police detectives.

He had no warning that a 12-year-old girl at the Centreville school had accused him of groping and molesting her in the gym.

The girl, angry at Lanigan about something else entirely, had made the whole thing up. But her accusations launched a soul-sapping rollercoaster ride that still hasn’t ended.

Lanigan’s story captures all the problems with child sexual abuse cases: an overenthusiastic willingness to believe the accuser, blinders that inhibit careful investigation, witnesses getting locked into stories they can’t get out of, job loss, media lynching and stubborn prosecutors digging their heels in, unable to see beyond the blind faith in their dubious complainants:

Lanigan spent months in anxious exile, forced from his school, his players, his neighbors and his friends, pondering the possibility of up to 40 years in a state penitentiary.That soon turned to relief. A jury found him not guilty after just 47 minutes of deliberation — virtually unheard of in a child sex abuse case. Jurors were outraged by the lack of evidence, with one weeping in sympathy during closing arguments.

But still the nightmare continues, as Lanigan struggles to earn back his reputation and career.

Within two weeks of the accuser’s report — without ever speaking to the girl — Fairfax detectives arrested Lanigan and charged him with aggravated sexual battery and abduction.

And then came the collateral consequences:

Police issued a press release with Lanigan’s booking photo and home address, and the school district sent home a letter about his arrest. TV trucks descended on the school and his neighborhood, and Lanigan’s reputation took a lasting beating. Even today, the first thing that comes up in a Google search of Sean Lanigan is a Web site called “Bad Bad Teacher.”

In this age of everything being stored forever, it is extremely disappointing that those who publish these sensationalist stories to grab headlines don’t have the ethical integrity to tie up loose ends and update their earlier proclamations when people are found not guilty. The internet garbage dump is littered with half-finished pronouncements of people’s arrests, floating about in the cyber wilderness, available to anyone and everyone for eternity. We see headlines every single day, on every news website: “Man arrested for robbery; Man accused of molesting child; Suspect arraigned in murder”.

The crime itself isn’t news – it’s the fact of arrest and allegation – a giant scarlet blob that’s shot out with the precision of a paintball gun, with no sense of duty to clean up the mess once the shot has been fired.

When do we ever see news organizations edit their original articles to reflect the outcome of the case. “Man arrested for raping 3 year old” never has an update attached to it stating “Man was ultimately acquitted, see here for details”. When do police departments put out press releases acknowledging that they arrested an innocent individual, one that was ultimately acquitted?

Why are we so quick to believe accusations and sully reputations based solely on them? Why do we permit shoddy police investigations that seem to have no regard for the truth? Think of the children, sure, but what about the rest of us?

Once in the equipment room, the girls decided, Lanigan laid the accuser on a stack of blue tumbling mats, began massaging her shoulders, then laid on top of her and told her he would “treat her like a queen,” while the other girl stood in the doorway. The accuser said that she tried to get up, but that Lanigan pushed her down and asked where she was going. The accuser said she had patrol duty, and Lanigan then allowed her to leave.

Several witnesses said the tumbling mats couldn’t even fit in the equipment room, but there is no indication in reports or trial testimony that Fairfax police ever checked.

Shoot first, there is no later.

 

The child abuse exception to [privilege]

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If the law were a series of Hollywood blockbusters, undoubtedly the highest grossing series of movies of all time would be the ones that featured the exceptions carved out in long-standing law to accommodate the prosecution of alleged child abusers. You’d start with the original, “The Child Abuse Exception to Confrontation”, with which the writers judges hit a goldmine. Then I’d recommend moving to “The Child Abuse Exception to Prior Bad Acts”, and by now with a well-worn formula that keeps the entire plot intact but simply changes the name, a la The Hangover 2, The Child Abuse Exception to Privilege. There’s a rumor that there is a madlibs game in the works “The Child Abuse Exception to _____”. Ultimately, the plan is to release a director’s cut box set compendium under the title “The Child Abuse Exception to The Law”.

This most recent iteration, which can be viewed on a screen near you, is also known by its working title of State v. Mark R., in which the court goes to great lengths to explain why it is perfectly legal for a psychiatric counselor to not only disclose suspected child abuse to authorities – as a mandated reporter – but also to testify as to the private communications between the counselor and patient.

The relevant facts are thusly: Man allegedly fondles step-daughter. Step-daughter and mother confront man with assistance of priest in priest’s office. Man reluctantly admits said fondling, apologizes. Priest then informs mother that either she or he will have to report said abuse to law enforcement within 24 hours, as he is also a mandated reporter (gotcha!).

Two weeks later, suffering emotional stress from the step-daughter’s accusations and impending criminal prosecution, the man goes to seek counseling at a clinic. During a confidential intake interview, man again (yes, I know) admits said fondling. Counselor has to report said suspected child abuse.

Both priest and counselor testify at man’s trial about his confessions. Man is convicted and spends many years in jail; appeal follows.

In Connecticut, the privilege statute is 52-146s, which states:

(b) Except as provided in subsection (c) of this section, a professional counselor shall not disclose any such communications unless the person or the authorized representative of such person consents to waive the privilege and allow such disclosure. The person or the authorized representative of such person may withdraw any consent given under the provisions of this section at any time in writing addressed to the individual with whom or the office in which the original consent was filed. The withdrawal of consent shall not affect communications disclosed prior to notice of the withdrawal.

(c) Consent of the person shall not be required for the disclosure of such person’s communications:

(6) If child abuse, abuse of an elderly individual or abuse of an individual who is disabled or incompetent is known or in good faith suspected;

So it is pretty clear that the counselor is permitted to violate the privilege in order to report the suspected child abuse. The question then becomes, does the privilege continue to not exist once the disclosure has been made? The court says yes:

Once a client makes such an admission to a counselor, there is no indication, in either the text of the statute or its legislative history, that the counselor must obtain his consent  for any subsequent disclosures.

The defendant in the present case contends that Orr controls the result here. He argues that, as with the social worker statute, the professional counselor statute only  contemplates an initial disclosure of a client’s admissions of child abuse, and only to the extent required by law and necessary to secure the safety of the child, and therefore  the statute does not permit a counselor subsequently to testify against her client at trial. We disagree.

The court then goes into a somewhat limited analysis of why they disagree, mostly revolving around the fact that some other statutes mention that reporters shall be immune from criminal prosecution and that their names shall be disclosed to all necessary parties in said prosecution. Thus, it concludes:

Taken together, these provisions demonstrate a clear legislative intent that any mandatory report of child sexual abuse be channeled simultaneously into: (1) a child protection  investigation, spearheaded by the department, to prevent future abuse; and (2) a criminal investigation, spearheaded by local law enforcement, to address past abuse. Unlike  the imminent risk exception in § 52-146q (c) (2), the child abuse exception contained in § 52-146s (c) (6) is in part remedial. Accordingly, we discern no basis for reading into §  52-146s an implied distinction between disclosure of confidential communications for purposes of child protection and criminal prosecution.

The court also dismisses the argument that this decision will have a chilling effect on people seeking therapeutic treatment because any disclosure results in a criminal investigation, so the prospect of having his statement admitted through his counselor isn’t much of a deterrent. I suppose it’s been a long time since any of the justices practiced in a criminal court – if at all – but I’d like to take this opportunity to remind them that the number one factor leading to convictions is a confession.

In addition, I think there’s a significant distinction between this case and any other hypothetical case involving the disclosure to a psychiatric counselor: the fact that the suspected child abuse had already been disclosed a few weeks prior, by the priest.

The reason he went to the clinic and spoke to the counselor in the first place was the stress he experienced following the accusations made against him by the step-daughter. I understand that we need to protect children and that is the main goal, but a subsidiary one has to be the rehabilitation of people who commit these crimes and the first step in that process starts with therapy.

Imagine the therapy session that starts: “I must warn you that I can’t help you unless you talk freely and honestly about what you did and why, but if you do that, I will have to report you and testify against you in court”.

Yeah, no chilling effect, for sure.