OH- Ruling doesn’t end challenges of sex offender classifications

10-12-2008 Ohio:

The recent decision upholding retroactive application of Megan's Law reclassification of those convicted of sex offenses does not cancel court challenges of cases involving the Adam Walsh Act.

"I still have all Adam Walsh Act (cases), and they will still be there," Judge Michael Kelbley, Seneca County Common Pleas, said.

The Adam Walsh Act is a more restrictive three tiered reclassification of offenders. Some offenders now have to register for life, not only where they live but where they attend school and work.

Mary Ward, Seneca County clerk of courts, said in the Seneca County Common Pleas court there are 29 "Adam Walsh" cases challenging the reclassification.

While Kelbley is waiting for guidance from the Ohio Supreme Court in the wake of its Megan's Law decision, Judge Steve Shuff is planning on moving ahead with his cases, saying it could be up to a year before a Adam Walsh case would appear in front of the state supreme court.

"I'm going to rule on them as soon as the opportunity presents itself," Shuff said.

The case ruled on by the court was brought by Andrew Ferguson, convicted of rape, who argued it was unconstitutional to apply these new restrictions retroactively and to not allow a judge to revisit the classification. He also challenged that statements, information, photographs and fingerprints are considered public records and are included in the internet database of sex offenders maintained by the attorney general's office.

The court has previously upheld retroactive application of laws regarding sex offenders, saying the changes were not aiming to punish but meant to protect the public.

Barry Wilford, immediate past president of the Ohio Association of Criminal Defense Lawyers, said Kelbley's decision to hold off is probably the smartest decision.

"It's a huge mess thanks to the Legislature. Many lower courts are holding tight. That's the smartest way to deal with this," Wilford said.

He said it could be six months to a year for an Adam Walsh case to move to the state's highest court.

He said his organization is emboldened by the dissent in the Ferguson case and feel that it will have some application for the Adam Walsh Act.

"Three members thought even Megan's Law is punitive (punishment) in nature," Wilford said. ..News Source.. by Melissa Topey