7-31-2008 National:
The Senate on Wednesday passed legislation to modernize the nation's computer crime laws and give prosecutors more leeway in pursuing cyber crooks.
Under current federal cyber-crime laws prosecutors must show that the illegal activity caused at least $5,000 in damages before they can bring charges for unauthorized access to a computer. Under the bill approved today, that threshold would be eliminated.
Instead, the legislation would make it a felony to install spyware or keystroke-monitoring programs on 10 or more computers regardless of the amount of damage caused.
This change is important because most of today's cyber criminals break into thousands of computers at a time, but seldom inflict $5,000 worth of damages on any one individual. Moreover, while most commit their crimes by tunneling their connections through hacked computers, the crooks may never damage the PCs they are using as a proxy or try to steal personal and financial data from victims.
The real damage to cyber-crime victims -- the loss of privacy and the time and effort it takes to clean up a compromised machine and/or stolen identity -- is extremely hard to quantify monetarily. Nevertheless, one section of the measure would give identity theft victims the ability to seek restitution for the loss of time and money spent restoring credit.
The bill also would allow federal courts to prosecute attackers who go after computers located in the same state in which they live. Under current law, federal courts only have jurisdiction if the thief uses interstate communication to access the victim's PC.
Another new provision covers cyber extortion. Under existing law, the government can prosecute cyber extortionists who threaten to delete a victim's data or to crash a computer. But there is no specific statute that addresses cyber crooks who try to extort companies by, say, publishing or releasing stolen information. This bill would criminalize that activity.
This reminds me of the attack against CD Universe in 2000, when a hacker broke into the online music store's redit card database and threatened to publish the information online unless it paid $100,000. CD Universe refused, and the hacker went ahead and posted the data on the Web.
These new provisions will be added to a bill known as The Former Vice President Protection Act (H.R. 5938). The original Senate cyber-crime bill from November, 2007, was stalled in the House of Representatives, so lawmakers have tacked on these new cyber-crime-fighting measures to legislation that the House already approved. The measure now heads back to the House for reconsideration. ..News Source.. by Brian Krebs on Computer Security
July 31, 2008
Senate Approves Bill to Fight Cyber-Crime
NY- Computer searches
7-31-2008 New York:
Congress should establish guidelines
International travelers carrying laptops and cell phones are being forced to allow customs agents to rummage through their electronic contents much as they do travelers' luggage.
Only the searches can be more intrusive since they invade private, personal communications and confidential business data. Material has been copied by security officials. Equipment has been confiscated and held for months. All without a search warrant or even what might pass as reasonable cause.
A corporate executive from Washington complained that he was ordered to turn on his cell phone and then watched as the customs agent checked out the contents.
An engineer returning from London was required to open his laptop. A federal agent copied the Web sites the man had visited.
Agents seized the laptop of a marketing executive with assurance it would be returned in a few days. More than a year later, she still does not have it back.
A spokeswoman for Customs and Border Protection said the department does not seize electronic items unless it suspects wrongdoing and any copied material is retained only if it's relevant in an investigation. Whether that is true is impossible to determine. None of those who have publicly complained about the seizures have yet been charged with a crime.
In effect, agents conduct the electronic searches at whim.
Homeland Security officials say it is the same as searching other luggage. Not so, says Susan Gurley, executive director of the Association of Corporate Travel Executives.
The laptops and phones can contain confidential business records. Seizing them can interfere with business transactions. Some corporations are restricting the type of business data employees may carry on laptops when traveling overseas.
"When your luggage is looked at, you get your luggage and all your clothes back. The difference with a computer," she said, "is that you don't know if all the information that has been downloaded has been returned."
And it leaves open the question of who has access to the data that may be left lying around unprotected.
Concerns have also been raised about racial profiling that singles out certain religious or ethnic groups.
Lawsuits have been filed challenging the practice and seeking more information about its application. However, lower level federal courts have upheld the legitimacy of the searches, which is reason why Congress has to intervene.
Clear guidelines are needed to establish when such searches are permissible, to control seizure of equipment and then to ensure security of any confiscated or copied data. ..News Source.. by Watertown Daily Times.com
MN- Citizens attend sex offender info meeting to learn first hand what is working, what needs fixing
7-31-2008 Minnesota:
Chisago City Council members, residents, state lawmakers, area law enforcement filled the community room at Chisago Lakes Area Library last week to update everybody on sex offender laws, and brainstrom ideas to help make the community safer. The meeting included a representative from the governor's office, another from the Bureau of Criminal Apprehension, plus Dept. of Corrections representatives, a state crime victim advocate supervisor and the Chisago County Attorney.
The purpose in calling the meeting was public education, and to hear ideas and concerns that could become laws to address issues.
While one sex offender living in Chisago City is basically motivating this citizen activist energy, those attending the meeting heard a lot about sex offenders in general from people whose careers involve sex offenders and their victims.
In a nutshell, Chisago County looks like this:
~ There are 94 registered criminal sex offenders who have Chisago County for a home address filed with the courts system.
~ Of all the recent criminal sexual conduct cases in this county 87 percent of the crimes were perpetrated by someone the victim personally knew.
~ Of the 94 county sex offenders 82 don't have a "level" assigned them.
The level designation is what legally triggers public notice of an offender's whereabouts. The offender's level needs to be #3 in order to air information about this offender in public format, through a legally required notification. (There is one level 3 offender in the 94-- he lives in North Branch.)
Levels 2 and 1 still get tracked and information is shared by law enforcement but they have a certain amount of ability to make their way in the world anonymously.
~ Levels are assigned to any offender who has spent time in lock-up. There are so many in Chisago County who don't have a level designation because they didn't actually serve time. They do have to register though. The audience was told plea agreements don't affect the need to register. As long as the final disposition of a case is stemming from an original criminal sexual conduct violation, the offender must register.
~ The one thing in common with all 94 offenders in Chisago County is that local law enforcement and state agency personnel know who they are and where they live.
~ In Chisago County compliance with registration is 95 percent. And, the few who have violated the rules of their release are known to not be physically residing here.
The state Department of Corrections (DOC) official told the audience the last thing society wants to do is drive offenders "underground" by placing such restrictions on where offenders can live that they start to lie or shirk their probation/parole conditions.
William Donnay showed statistics and charts depicting how since 1992-- when intensive supervision and registration began-- the incidence of recidivism declined from 20 percent to 4 percent. He opined, "I attribute much of that to the protective wall we've been building." The 'wall' being treatment, civil commitment procedures, monitoring, enhanced sentencing guidelines, DNA collection, etc.
Randy Tenge, a Bureau of Criminal Apprehension agent officed in Center City, said his guys are out 24 hours a day visiting or surveilling known sex offender residences and routes. He said, "Sex offender monitoring and behaviour management is a system of layers."
Tenge said from what he's seen this county benefits from excellent work being done with sex offenders, adding he has no worries about living and raising his kids in this area. He added, "Minnesota is years ahead" of other states in managing and monitoring sex offenders.
Lakes Area Police Chief Kevin Stenson told the approximately 40 citizens at a meeting last week that the ages-old idea that "...criminals do their time and pay their debt to society" has been turned inside-out with the advent of sex offenders.
The public isn't satisfied with sex offenders doing time and being released. The audience at the meeting reinforced that sentiment. They suggested more measures lawmakers must consider, hoping to keep their kids safe and sex offenders from re-offending. Ideas like Big Brother ankle bracelet monitoring were discussed.
Sex offenders shouldn't be allowed to live where they can even view children or where children might see them engaging in indecent conduct.
There needs to be a national system tracking offenders on an equal, consistent basis, not left up to each state.
Any offender moving into Minnesota must be required to be evaluated and assigned a level.
Offenders should be locked up forever.
Rep. Kalin and Sen. Olseen said they'd take what they heard and look into laws that might be applicable on some issues. Offender tracking, psychological assessments and lock-up cost money and require manpower, however.
Donnay said it's like a newly-invented highway guardrail system that acts like a net and traps and holds vehicles that cross the median, saving lives. But it costs $1 million per mile to install. The legislators weigh the cost, risk and benefits of all tax dollar expenditures.
On a personal level: children must be taught skills to know when a situation feels wrong and how to respond or avoid an offender.
Donnay reminded the audience in 2004 there were 585 sex offenders convicted in the state, and 527 of them had no priors. "It's the ones who are outside the wall" or the unidentified sex offender who poses the biggest threat.
-Like uncle Joe and other acquaintances in the daily life of potential victims.
Lydia Newlin, victim advocacy unit state supervisor, stressed safety tools need to be taught at all developmental stages in a child's life. The most-often victimized age group is 11-17.
Identify five healthy adults in your child's life they can go to. Many children who are violated won't talk with parents, but will with another trusted adult.
Have a code phrase for phone use, if kids want to get away from a situation and maybe can't talk openly on the phone...like, I left the iron on.
Stop by the house of a friend of your child's unannounced. ..News Source.. by DENISE MARTIN
The Supreme Court Is Wrong On the Death Penalty
A major problem with this new theory is, that Patrick Kennedy's crime occurred March 2, 1998, and the National Defense Authorization Act (2006) (which contained the new possible sentence of death for a child under 12) was not effective until October 1, 2001. That would raise major ex post facto concerns.
7-31-2008 National:
It's not often that the U.S. Supreme Court is asked by a state and the federal government to reconsider a case it has just handed down because it missed key evidence.
But that is what is happening now in Kennedy v. Louisiana. In that case, the court ruled in late June that Louisiana could not execute someone convicted of violently raping a child. Dividing along familiar 5-4 lines, the court held, speaking through Justice Anthony Kennedy, that the death penalty must be reserved for killers and traitors. To apply it to others, including the most reprehensible violators of young children, would constitute a "cruel and unusual punishment" violating the Constitution's Eighth Amendment.
Emphasizing the evolving character of what constitutes an "unusual" if not an unduly "cruel" punishment, the court rested its condemnation of executing the rapists of children largely on what it described as a trend away from the use of death to punish such crimes both here and abroad.
But there was a problem with the court's understanding of the basic facts. It failed to take into account -- because nobody involved in the case had noticed -- that in 2006 no less an authority than Congress, in the National Defense Authorization Act (2006), had prescribed capital punishment as a penalty available for the rape of a child by someone in the military.
Defenders of the court's decision in Kennedy v. Louisiana would have it ignore that embarrassing wrinkle by treating the military as a parallel universe that simply does not intersect civilian justice on the plane of constitutional principle. But a court searching for universal principles of justice in the name of the Eighth Amendment would be hard pressed to accept that view of the military/civilian distinction. Particularly when the court's division tracks the usual liberal/conservative divide, its credibility depends on both candor and correctness when it comes to the factual predicates of its rulings.
Whatever one's view of the death penalty -- and I have long expressed misgivings on both its wisdom and its constitutionality -- it's important that the inequities and inequalities in its administration be minimized. Commitment to that principle, not a rush to the center, lay behind Barack Obama's disagreement with the court's ruling in this case even before the 2006 federal death penalty provision came to public attention.
Many who applauded the court's original ruling did so not on the basis of the court's (now evidently faulty) trend-spotting rationale but, rather, on the premise that any way of containing the spread of capital punishment -- such as by confining its use to murderers and traitors -- is a good idea. But even those who harbor serious doubts about capital punishment should feel duty-bound to oppose carve-outs from its reach that denigrate certain classes of victims, or that arbitrarily override democratic determinations that such victims deserve maximum protection.
If a legislature were to exempt the killers of gay men or lesbians from capital punishment, even dedicated death penalty opponents should cry foul in the Constitution's name. So too, should they cry foul when the judiciary holds the torturers or violent rapists of young children to be constitutionally exempt from the death penalty imposed by a legislature judicially permitted to apply that penalty to cop killers and murderers for hire. In doing so, the court is imposing a dubious limit on the ability of a representative government to enforce its own, entirely plausible, sense of which crimes deserve the most severe punishment.
To be sure, holding the line at murder and treason gives the judiciary a bright line that blurs once one says a legislature may include other offenses in its catalogue of what it deems the most heinous of all crimes. But the same may be said of virtually any bright line. Placing ease of judicial administration above respect for democracy and for principles of equal justice under law is inexcusable.
The Eighth Amendment's cruel and unusual punishment clause should not be construed in a manner that puts it on a collision course with the 14th Amendment's equal protection clause. The Supreme Court would do well to take that overriding consideration into account as it decides whether to revisit its seriously misinformed as well as morally misguided ruling. ..Source: NY Times.. Opinion of: Mr. Tribe, a professor of constitutional law at Harvard Law School, is the author of the forthcoming book "The Invisible Constitution" (Oxford Press).
PA- State attorney general says 200 sex offenders joined MySpace
Why shouldn't they join, there is nothing in the terms of agreement which says they cannot join.
7-31-2008 Pennsylvania:
Authorities are reviewing records for nearly 200 registered sex offenders in Pennsylvania who opened accounts on MySpace, a popular social networking Web site.
"Convicted sex offenders have no business in that kind of environment," state Attorney General Tom Corbett said.
-Why, MySpace has other adults on it, and 95% of all new sex offenses comes from folks who have no former sex conviction.
Corbett spokesman Nils Frederiksen said Megan's Law records were reviewed to determine whether any convicted sex offender has violated terms of his release through MySpace use.
Information about the individuals is being forwarded to state and local probation and parole officers to allow them to search for possible violations.
The Attorney General's Child Predator Unit has identified 185 MySpace accounts that appear to match registered sex offenders.
MySpace provided information last year for about 110 registered sex offenders believed to have been active on the site.
"We're not aware that any violations were found in that first group," Frederiksen said. "It's something we have to evaluate on a case-by-case basis."
-The truth is out, earlier RSO did nothing wrong.
Frederiksen said the office continues to press MySpace about sex offenders who use phony names on the site.
-Oh bull, if they used phony names, how could you identify them? Shame, a lie when you can't find an answer.
MySpace reached an agreement in January with attorneys general in all 50 states and the District of Columbia to take significant steps to protect children who use the site. ..News Source.. by Michael Hasch, TRIBUNE-REVIEW
GA- CBS 46 Investigates: Out Of The Picture
This is one of the worst cases of reporting I have ever seen, note my comments below:
7-31-2008 Georgia:
ATLANTA -- A CBS 46 investigation has uncovered countless breaches in Georgia's Sex Offender registry.
Hundreds of convicted criminals whose names are on the registry have no pictures on the state's official Web site. And those offenders could be living next door to you.
-OK, does the registry show the address, and if so, can't people figure out what the address next door to them is?
CBS 46 investigative reporter Wendy Saltzman questioned the Georgia Bureau of Investigation about whose responsibility it is to keep the state's Web site up to date. "It's ours," responded GBI spokesman John Bankhead.
A four-week CBS 46 investigation found the GBI and local law enforcement officers have failed to post hundreds of metro Atlanta sex offenders' pictures on the state's official registry because of backlogs and miscommunications.
"There are a lot of photographs that need to be updated. There are photographs that need to be added to those that don't have photographs," Bankhead said.
CBS 46 learned that in DeKalb County, one in every 20 pictures are missing. In Cobb County, one in every 14 pictures are missing. In Gwinnett County, one in every 12 offenders is not pictured. And in Fulton County, one in every seven offenders has no picture.
"I can not answer why their pictures are not on there," Fulton County Deputy Sabrina Thornton said. "Other than they didn't come in for their initial registration."
Georgia law requires sex offenders to go to their local sheriff's office and register themselves once a year. Any failure to register is a felony. And every year, by law, the sheriff's office is required to photograph them.
"All of our photos are sent to the GBI," DeKalb County police investigator ____ Becker from DeKalb County said. "From there, they are put on the Web site. We don't have anything to do with putting them on the GBI Web site."
-There is the problem, state workers. Pictures are sent? How, by carrier pigeon? I wonder what kind of camera is used to take pictures, sounds like the kind that requires you to have the film developed.
But somewhere between the sheriff's departments and the Georgia Bureau of Investigation, hundreds of photos are falling through the cracks, and no one knows what these offenders look like.
-OK, who is shooting the pigeons? Maybe they need bullet proof vest for the pigeons?
"We have a staff that work on that, but they work on other issues," Bankhead said. "But when you have 1,000 photos to enter to add a month, it's just a workload issue."
-What, 1,000 new sex offenders a month? Something is not right here.
CBS 46’s exclusive investigation found missing photos show a more significant failure in communication between the GBI and local law enforcement. We found addresses for numerous criminals with no picture posted on the GBI Web site and for some reason, local law enforcement had no idea these offenders are living in their communities.
-Yup, I knew it, the police don't know what addresses are in the neighborhood they patrol. How about giving them a list of addresses in the area they patrol?
CBS 46 News uncovered the loophole in the system by doing a simple search of the GBI Web site. But local law enforcement agencies are not doing that same match to identify missing information and untracked offenders registered in their counties. CBS 46’s investigation discovered that 800 offenders across the state listed by the GBI never had their addresses verified.
When we asked Thornton about those untracked offenders, she responded, "We are in the process of find out why (they are) not in our system."
Our investigation got immediate action. Fulton County delivered 128 photos to the GBI Wednesday morning. Officials in Gwinnett and Dekalb counties tell us they have also sent all of their photos to the GBI and they are reviewing the list of untracked offenders in their communities.
The GBI has also added two additional staff members, for a total of three people, to deal with the backlog of missing pictures as a result of our report.
-OK, the pigeons have landed, hopefully they haven't pooed on the pics. Now where is that manual on how to use this computer?
Officials in Cobb and Clayton Counties refused our repeated requests for an interview. ..News Source.. by Wendy Saltzman
July 30, 2008
TX- Why Do Some Teachers Get in Relationships With Students?
This story raise a long list of questions. Apparently experts have a way to tell the difference between the "opportunist" and the "fixated" offenders, and the opportunist is not a danger to children. If true, why do lawmakers not take that into consideration and remove those offenders from registries? That alone would make law enforcement's job easier. Also, why do registries not indicate who the fixated ones are? I also notice the absence of the term "predator" from the discussion about teacher offenders, at least until they become a registrant, then they are spoken of as a predator. Many questions arise when you take the time to read between the lines of the usual fear monger; the media.
7-30-2008 Texas:
HOUSTON -- It seems like we hear about it more and more, every year: School teachers having sex with under-age students. What turns a teacher into a seducer? How can we protect our children?
Sex offender therapist Rosslyn Granger counsels many former teachers serving probation for engaging in sexual conduct with students.
In most cases, she says, the teacher doesn't plan to get involved sexually with the child, but distorted thinking and personal problems lead them to cross boundaries until they become blurred.
She calls this type of offender the "opportunist." They are usually younger, less experienced teachers, men or women, who are capable of having normal, age-appropriate relationships, but incapable of making proper choices when their job puts them in close, regular contact with teenage children. These offenders, Granger says, can be successfully treated and, with proper therapy, generally pose no danger around children.
The teacher-abusers we hear about less often are those Granger calls the "fixated" offenders. These are the offenders we think of when we think of "child predators." They are usually males, generally prey on younger children, often have multiple victims, and take careful measures not to get caught.
Fixated offenders, Granger says, look for opportunities to molest children. Opportunists, she says, "bump into them." Both are a danger to kids, if not treated. Fixated offenders are never safe around children.
When a school teacher engages in sexual activity with an under-age student, Granger says, it is always damaging to the child. The female child will suffer more emotional damage.
Males may become more sexually aggressive around their peers and, without proper therapy, may have difficulty having normal, age-appropriate relationships.
While there may be no way to stop child molestation by teachers, Granger believes schools could go a long way toward reducing the number of cases that occur. She suggests school districts offer courses to young teachers on the risks of crossing boundaries and how to appropriately react if students are behaving sexually toward them.
Parents can help protect their own children, she says, by paying attention to them and being aware of any behavioral changes and/or unusually close relationships with a teacher, especially if they exclude other students. ..News Source.. by FXO 26 Texas
Yahoo spent $630,000 to lobby in second quarter
Am I the only one who sees a major conflict between the two other bills (highlighted below) Yahoo has lobbied for?
7-30-2008 National:
WASHINGTON - Yahoo Inc. spent $630,000 in the second quarter to lobby on online privacy, patent reform and other issues, according to a recent disclosure report.
The Internet company lobbied on measures to protect data, prevent identity theft, and on legislation to improve federal efforts to halt piracy and counterfeiting of American-owned intellectual property.
In addition, Yahoo (nasdaq: YHOO - news - people ) lobbied on proposals to crack down on spyware and phishing scams. Spyware are computer programs that can surreptitiously access hard drives to track online behavior and steal sensitive personal data, while phishing scams use fake e-mails and fraudulent Web sites to trick consumers into releasing credit card numbers and other personal information.
The Sunnyvale, Calif.-based company also lobbied on federal auctions of wireless spectrum and on online advertising, including an agreement that will allow Google Inc. (nasdaq: GOOG - news - people ) to sell some ads displayed alongside search results on Yahoo's Web site.
Other bills the company lobbied on would:
_ Require registered sex offenders to furnish their e-mail and instant messaging addresses, and require the U.S. attorney general to have a system that allows social networking Web sites to compare their user lists with the National Sex Offender Registry.
_ Make it illegal for U.S. companies hosting Internet content, such as Web pages or e-mail, to give users' personal information to governments that restrict Internet access.
..News Source.. by Forbes
Editorial: Fine-Tuning Megan’s Law
Note: Additional highlighting and links to proof that what the editorial mentions is being underestimated as there are hundreds of cases of recorded vigilantism and even murders of registered sex offenders resulting from these laws. That which is recorded does not reflect the thousands of subtle personal acts of prejudice and biases inflicted throughout society. eAdvocate
7-30-2008 National:
Megan’s Law, which requires public notification when a convicted sex offender moves into a community, is named for Megan Kanka, a 7-year-old New Jersey girl who was killed by a released sex offender near her home in Hamilton Township in 1994. However useful, the law has always carried great potential for danger, and now a New Jersey court has taken a step toward making it a more sophisticated instrument of public safety.
One danger has always been vigilantism (and even murders) See Note above. Child molesters living peaceably in a community after serving their time — and even some people mistaken for child molesters — have been beaten up or fired upon.
A disturbing new development is the proliferation of local ordinances that go beyond the reporting requirements of legislation like Megan’s Law by restricting where sex offenders may live. In some New Jersey towns, offenders cannot live within 2,500 feet of a school or playground. Often, the banned areas are so large as to effectively prohibit a sex offender from living anywhere in town.
These bans can do more harm than good. They will not deter a determined predator. Many law enforcement officials, including parole officers, have observed that they tend to bunch sex offenders in drug-infested, rundown neighborhoods that are poorly suited for anyone trying to turn around a life.
Two weeks ago, in a unanimous decision, a New Jersey appeals court ruled that such ordinances conflicted with the state’s Megan’s Law because they interfered with the broad discretion given to parole officers to decide where a sex offender may live. By arbitrarily ruling out certain areas, the judges suggested, the ordinances could deny offenders access to public transportation, treatment programs and employment.
Several state legislators now say they will try to amend the law to allow for residency limits. The courts in New York have upheld such bans and other states, including Oklahoma and Iowa, have adopted them.
There’s no reason for New Jersey to make the same mistake. We have long supported the registration requirement. But we also believe that officials should be aware that in the wrong hands, this information can lead to harassment or worse. And the decision about where a sex offender should live properly resides with law enforcement agencies. ..News Source.. Editorial NY Times
VT- Buffer zone sends wrong message
7-30-2008 Vermont:
First let me apologize for not being able to rearrange my schedule to attend Tuesday night's City Council meeting where the Child Protection Ordinance was passed.
I believe the article should have been titled "Sex Offenders: Coming To A Neighborhood Near You" (in my best movie announcement voice), This was a rash decision — and no clear thought to the ramifications was put into it.
Here is what we are now stuck with in Barre City: A sex offender can not live at Central Hotel or one of the smaller, less-expensive, efficiency style apartments located in "downtown."
However, they can live near Highgate Apartments and Green Acres Apartments, where families have moved due to being lower income Vermonters — perhaps single parents or a person with a disability, the most vulnerable residents of the city, and a place with the highest concentration of children within the city.
We have now told them that doesn't matter because we are keeping the sex offenders away from City Park? Think of why you moved into the neighborhood you did. I chose mine due to the quiet residential atmosphere, the fact that we saw several boys playing in the streets — it was a perfect fit for our family.
If we are not in the "buffer zone," are we to expect that our neighborhood will rapidly fill up with sex offenders, as their options are now quite limited?
Are we going to have "dark" parts of town that everyone is warned to stay away from? So much for Barre coming together as a community.
Who will Thom Lauzon target next as someone he doesn't want in the city? Perhaps overweight people will no longer be allowed to live within 1.000 feet of a store — ya know — for their safety? ..News Source.. by Renita Marshall, Barre City
Barre, Vermont Ordinance 2008-03 is here:
NH- Sex offender seeks ordinance exemption in Dover
7-30-2008 New Hampshire:
DOVER — Registered sex offender Richard Jennings is asking a judge to exempt him from the city's sex offender ordinance while his legal case against the ordinance is being resolved.
Under the city's ordinance, registered sex offenders can't reside within 2,500 feet of a school or day care center and Jennings' Locust Street address is located about 1,200 feet from My School Kindergarten at 118 Locust St.
District Court Judge Stephen Morrison took Jennings' motion under advisement following a hearing at Dover District Court on Tuesday afternoon, but said before he left the bench that he was unlikely to rule in favor of it.
Jennings attorney, Barbara Keshen of the New Hampshire Civil Liberties Union, filed the motion last week asking the court to allow Jennings to live at 175 Locust St. upon his release from prison on Friday.
The NHCLU is asking the district court to throw away the ordinance and rule it unconstitutional. A hearing on that matter is scheduled for Nov 10 at 9 a.m.
Keshen said during Tuesday's hearing that moving to another location would create a severe financial hardship to Jennings, his fiance and her daughter.
"Mr. Jennings' offense didn't involve young children, it involved an individual just under the legal age," Keshen said. Keshen also referenced the fact that Jennings and his fiance, Janice Sessler, have been together for eight years.
Jennings, 41, was convicted in May 2000 on a charge of felonious sexual assault on a minor.
Keshen also argued that Jennings is considered a low-risk sex offender and it would be a waste of time for him to move, claiming the city's ordinance is likely to be found invalid.
"Cases have come down since I filed the original motion that seem to indicate that we're standing on very solid ground and that Mr. Jennings will prevail," Keshen said.
Keshen referred to a recent case in New Jersey where similar ordinances were struck down on the grounds they were pre-empted by state law.
Dover City Attorney Allan Krans said allowing Jennings to live on Locust Street would be ruling against the ordinance before the hearing to determine its constitutionality even took place and would open Dover up to an onslaught of sexual offenders who would move to the city looking to take advantage of that.
"They're (Jennings and Keshen) right, there will be a severe hardship, they're absolutely right, but it's not on Mr. Jennings. Its on the children and the citizens of Dover," Krans said. "The children will have a sex offender within 2,500 feet from their schools, without a hearing."
Jennings also never legally lived at 175 Locust St., so why should he be allowed to live at the residence, Krans argued.
"At best he had a technical residence is Dover, at worst he comes to court with his hands so unclean, it boggles the mind," he said.
Jennings moved to the city from Portsmouth at the end of 2007 and was arrested in November and charged with felony-level failure to register as a sexual offender for not notifying police that he moved from Portsmouth to Dover. That's also when police charged him with the ordinance violation.
He was arrested again in April for also living at the Locust Street address and not registering with city police. Jennings had claimed he was living with his parents in Epping, but several neighbors tipped police off about Jennings still living at the address, which led to police performing surveillance in the area.
As a result of the latter charge, he was sentenced to six-months at the Strafford County House of Corrections, which expires Friday.
Sessler, 47, was also charged in April for allegedly harboring Jennings while police tried to arrest him. She recently agreed to plea guilty to a charge of hindering apprehension.
While leaving the bench, Morrison said he would consider all factors but admitted that it's unlikely he could rule against the ordinance because currently there is no presumption that it's unconstitutional.
A decision on Jennings' living arrangements is expected later this week. ..News Source.. by AARON SANBORN
FL- If Deltona prosecutes sex offenders, city would have to pay for their defense
7-30-2008 Florida:
Deltona must pay for the legal defense of three sex offenders it wants to force out, a three-judge panel ruled Tuesday.
The city is responsible for paying defense attorney Rob Sanders, who represents the indigent men cited for violating a city rule on where they can live.
Sanders hasn't sent a bill yet but said he has found legal problems and could argue the ordinance is unconstitutional. Such a trial could be costly.
"If the city continues to prosecute, in this current posture, it will cost the city thousands of dollars," said Sanders, who thought the city might end up dropping these cases.
City Attorney George Trovato said he had not yet read the ruling but would ask commissioners next week for a closed-door meeting to discuss the city's next step.
The three men -- Ricardo Maldonado, Charles Ambrose and Robert Bisson -- had been prosecuted under the city's old restrictions, which barred sex offenders from moving within 2,500 feet of a school, bus stop, park or day-care center.
Although Deltona has removed the extra-large buffer around bus stops, the city hadn't dropped the cases against the men.
Deltona also hasn't tried to prosecute new cases against other offenders living in the prohibited zones.
In a ruling issued Tuesday, three circuit judges agreed that if Deltona wants to prosecute the men, the city is responsible for paying their legal defense if the men can't hire attorneys.
The Public Defender's Office represents indigent clients in criminal cases but not in city violations, unless there is an agreement for the public defender to do so.
An appellate-court ruling from Fort Lauderdale made it clear that a Florida city is obligated to pay the legal defense, if there is no contract with the public defender. ..News Source.. by Ludmilla Lelis | Sentinel Staff Writer
OH- New Strike Against Unregistered Sex Offenders
Another case that needs to be appealed as there are several issues which have been glossed over in this decision. i.e. Trent was not notified of the new FEDERAL requirements, which Congress mandated that the U.S. Attorney General do (Sec 117), and which the USAG has not done. Congress mandated that it be done through each state's registration system, therefore, if a state has not implemented AWA how could those registrants know of its requirements. Further, since the USAG has not issued regulations as to cases like these, a real question of whether a retroactive application is permissible or a ex post facto violation.
7-30-2008 Ohio:
DAYTON, Ohio -- A United States District Court Judge in Dayton has upheld the constitutionality of the 2006 federal law used to punish sex offenders who fail to register.
Gregory Lockhart, United States Attorney for the Southern District of Ohio, and James Wahlrab, United States Marshall, annouced the ruling handed down by Judge Walter Rice July 24th.
Congress passed the Sexual Offender Registration and Notification Act as part of the Adam Walsh Child Protection and Safety Act in 2006. The law requires anyone convicted of sex crimes under federal law, or anyone convicted in state court and traveling in interstate commerce, to register with law enforcement agencies where they live, work, or are a student.
Any person required to register and fails, is subject to a fine up up to $250,000 and up to ten years in prison.
Judge Rice's ruling is in response to a motion filed by Roger Dale Trent. A federal grand jury indicted Trent in December of 2007, charging him with failing to register as a sex offender, when he moved from Indiana to Darke County. Trent was convicted of a sex crime in Indiana in May of 2007.
Trent asked the court to dismiss the indictment, claiming that the law violated the Commerce Clause of the United States Constitution. He also said that the law should not apply to him since he hadn't been notified of it, and the crime occurred before Ohio passed a sex offender notification law.
-The U.S. Supreme court in Lambert -v- California held that it is a due process violation if a state fails to notify a person of their duty to register, that has been violated here.
Judge Rice rejected all of Trent's arguments saying that SORNA is "a valid regulation of the uses of the channels of interstate commerce." Judge Rice also ruled that the federal guidelines governing the application of SORNA allow for the law to be applied even in states which have not yet approved their own registration programs.
-This is questionable since guidelines have no force of law.
"The ruling adds to the growing number of court decisions that SORNA is a legal and useful way to protect communities from sexual criminals who travel from place to place without notifying those communities of their presence," Lockhart said. "We will continue to work closely with the Marshals Service and local law enforcment agencies to bring to justice any who violate the law." ..News Source.. by WHIOTV.com
CA- Parole officials take aim at transient sex offenders
What idiot came up with this idea? Prohibit transient sex offenders from staying in any one place unless it is a homeless camp etc. ...... These idiots are going to legislate themselves into a corner. Under the new theory all one must do to comply is, to roll over, then they are in a different place.
7-30-2008 California:
Voters said paroled sex offenders cannot live near a school or park, so more are saying they don't live anywhere while bouncing from place to place to avoid the tight living restrictions of Jessica's Law.
Now, the state plans to bar those "transient" sex offenders from staying at any address for more than a few hours, while allowing them to settle in homeless camps, under bridges or at bus stops, including those near schools or parks.
With the new rules, parole officials aim to define what it means to "reside" somewhere under Proposition 83. The 2006 ballot measure set some of the nation's toughest sex offender laws, including lifetime GPS tracking for most sex felons and a lifetime ban on them living within 2,000 feet of a school or park where children "regularly gather."
Critics call the changes for parolees a harsh and possibly dangerous reaction to the fact that in the Bay Area and other urban centers, little housing falls outside of the 2,000-foot zones.
Less than a year after parole agents began enforcing the residency ban, more than 1,000 paroled sex offenders across the state have registered as transient. That is one among every five parolees who fall under the law, state data show.
Parole workers have found that many of them are "couch surfing" within the banned zones, said Robert Ambroselli, state deputy parole director.
"People are kind of moving to a location, staying there for a day and moving on to some other location," said Ambroselli.
"If you're charging a (GPS) unit, that's one thing, but at one point you cross the threshold of 'I was just charging my unit and I ended up sleeping on the couch.' At some point, you've established residency. The department is trying to define just that."
Parole Director Tom Hoffman detailed the agency's plans in a July 15 memo to parole officers and supervisors. It was quickly rescinded so state lawyers could review it.
Except for work, business or treatment, the memo states, parolee sex offenders who register as transient may not regularly visit any banned address for more than a "brief or momentary period," and for no longer than two hours.
Also, according to the memo, the 2,000-foot rule does not apply to homeless camps, bridges or bus stops, no matter how close to schools or parks — a change from earlier statements by corrections officials. Ambroselli said he expects most of the directive to become policy after the review.
The shift reflects what many critics and even some Proposition 83 backers predicted: Trouble for sex offenders and the parole agents who manage them in finding stable housing that complies with the law. Jessica's Law does not define "park," "reside," or how to measure the distance.
The state paroles as many as 700 sex felons each month, and state maps show that in the Bay Area, few apartment houses or motel rooms fall outside the zones. Virtually none does in San Francisco. Some sex offenders said their parole officers suggested they register as transient to stay within the law.
S.T., a parolee in West Contra Costa, said he registered transient and arranged with his parole officer to tend to his ailing wife, build a contracting business and to sleep various places at night. The new rules, he said, would threaten his chances.
"Anywhere without an address? That's primarily under a bridge or in an open field," said S.T., who asked to be identified by his initials only, saying he was concerned for his safety. "I'd basically be losing my family. I couldn't do my job. It seems to me they're trying to lock everybody up."
Hoffman's memo "clearly shows how the parole division is struggling with this untenable situation that Prop. 83 put them in," said Ernest Galvan, a San Francisco attorney who represents four parolees in a case challenging one aspect of Jessica's Law. "The fact the pendulum can swing suddenly back and forth — now you can't be somewhere for two hours, now you can be under a bridge — it's a classic symptom of an unconstitutionally vague law."
Experts, including many sex-crime prosecutors, have called stability — in housing, treatment and family — key to keeping sex offenders from reoffending.
The proposed rules would prove counterproductive, one advocate said.
"You're saying they're a beast in the field. How are they supposed to get through the night?" asked Jake Goldenflame, a registered sex offender in San Francisco. "We're not likely to make them a better person if we treat them as if they're an animal that has to be kept outside all the time. It's going to make the state a more dangerous place."
The agency is simply adjusting to what it has found enforcing the law, Ambroselli said. Saying that bridges, homeless camps and bus stops are not subject to the 2,000-foot rule recognizes "just the reality of dealing with ... all these sex offenders," he said. "We're not saying that's what you should be doing."
One advocate said it's too easy to blame the state parole agency.
"They're sort of working with what they've been given," said Robert Coombs of the California Coalition Against Sexual Assault, which opposed the 2,000-foot rule. "Most parole agents are really working to make sure their folks have stable housing as best as they can. In some cases, there's literally nowhere to go."
The concern over parolees neglects a group that grows daily — those off parole, said Nancy O'Malley, Alameda County's chief assistant district attorney, who sits on the California Sex Offender Management Board.
The law called for lifetime GPS monitoring but did not say who would track them, and local agencies have balked at the cost.
Just how many sex offenders who fall under Jessica's Law have since come off parole is unclear. In December, then-corrections Secretary James Tilton put the number at 500. Now, officials won't reveal a number.
"We're trying to figure that one out," O'Malley said. ..News Source.. by John Simerman, Contra Costa Times
House apologizes for slavery, 'Jim Crow' injustices
7-29-2008 National:
WASHINGTON (CNN) -- The House of Representatives on Tuesday passed a resolution apologizing to African-Americans for slavery and the era of Jim Crow.
The nonbinding resolution, which passed on a voice vote, was introduced by Rep. Steve Cohen, a white lawmaker who represents a majority black district in Memphis, Tennessee.
While many states have apologized for slavery, it is the first time a branch of the federal government has done so, an aide to Cohen said.
In passing the resolution, the House also acknowledged the "injustice, cruelty, brutality and inhumanity of slavery and Jim Crow."
"Jim Crow," or Jim Crow laws, were state and local laws enacted mostly in the Southern and border states of the United States between the 1870s and 1965, when African-Americans were denied the right to vote and other civil liberties and were legally segregated from whites.
The name "Jim Crow" came from a character played by T.D. "Daddy" Rice who portrayed a slave while in blackface during the mid-1800s.
The resolution states that "the vestiges of Jim Crow continue to this day."
"African-Americans continue to suffer from the consequences of slavery and Jim Crow -- long after both systems were formally abolished -- through enormous damage and loss, both tangible and intangible, including the loss of human dignity and liberty, the frustration of careers and professional lives, and the long-term loss of income and opportunity," the resolution states.
The House also committed itself to stopping "the occurrence of human rights violations in the future." ..News Source.. by CNN
Committed to stopping human rights violations IN THE FUTURE, not the PRESENT.
July 29, 2008
MA- Creem: Why I voted against Jessica’s Law
Hats off to a lawmakers who is willing to stand alone and fight overwhelming odds, and in fact, is correct on every postion she states. Further, pay particular attention to the "tucked in" provisons masked as "Internet age updates" which in fact allow the state to circumvent 4th amendment protections. Hopefully the ACLU will get involved and have those provisons declared unconstitutional.
7-29-2008 Massachusetts:
Being the only “no” vote on a crime bill named in memory of a little girl is a tough spot to be in for an elected official, but that is my situation after the Senate overwhelmingly passed Jessica’s Law. For 10 years, I have been deeply involved in reforming the state’s sex-offender laws, and we have made Massachusetts safer for children. Unfortunately, and in spite of its popularity, Jessica’s Law has serious flaws.
Jessica’s Law originated in Florida in response to the rape and murder of 9-year-old Jessica Lunsford by a convicted sex offender. Since then, more than 30 states have adopted some form of the law. Our version was largely developed by the district attorney’s and the attorney general’s office, and focuses on creating three new “aggravated” levels of existing sex crimes, which would now carry mandatory minimum prison sentences ranging from 10 to 20 years.
I am a longtime critic of mandatory minimum sentencing as a failed experiment of the “get tough” 1980s. Nearly 30 years of experience shows that mandatory sentencing does little to deter crime, unnecessarily ties the hands of judges and pointlessly fills prisons when less expensive — and more effective — sentencing alternatives exist.
In 1999, I successfully argued that convicted sexual predators should have lifetime parole supervision. A few years later, I helped create and fund a statewide intensive-parole program. To date, that program has a recidivism rate of zero. It can — and should — be expanded.
In addition to mandatory sentences, Massachusetts’ Jessica’s Law also included several other questionable provisions on administrative subpoenas, mandated reporters and proof of prior convictions.
Tucked away in the bill were two sections that were misleadingly touted as simply statutory updates for the Internet age. The change, however, gives prosecutors sweeping new powers to demand subscriber information from both telephone companies and Internet service providers. These expanded administrative subpoenas allow investigators to avoid the need for judicial or grand-jury approval, and ultimately to circumvent everyone’s Fourth Amendment protections.
Additionally, it did not simply add ISPs to the existing administrative-subpoena statute. It took the dramatic step of lowering the standard for obtaining information on phone users and applying that lower standard to computer users as well, opening the door to all sorts of prosecutorial fishing expeditions that current law would prevent.
This unwarranted invasion of privacy is even more alarming when you consider that Internet providers store far more personal information than telephone companies. Throw in the bill’s lack of disclosure requirements and its blanket immunity for providers, and the potential for abuse can easily be envisioned.
I cannot support this attack on privacy rights when less-invasive and equally effective means are available. Our liberties should never be sacrificed in the name of prosecutorial convenience.
For that same reason, I also objected to Jessica’s Laws provisions allowing the admission of court records as self-authenticating evidence of prior convictions. Such evidence will be admissible as prima facie evidence to apply mandatory minimum sentences to repeat offenders.
I see this as a violation of the federal and state Constitutional rights of a defendant to confront accusers, and I believe my position is supported by recent rulings of the U.S. Supreme Court, which has barred similar efforts to offer evidence of prior convictions in lieu of witness testimony.
All too often we have seen the fallibility of state and federal record-keeping, especially when exempted from traditional and adversarial testing. This only reinforces the importance of the ability to confront opposing witnesses.
Finally, Jessica’s Law creates broad new mandatory sentences for so-called mandated reporters. There is no question that people who abuse a position of trust to sexually assault children are particularly abhorrent. Still, this bill was not carefully drafted and is ultimately too broad.
“Mandated reporters” engage in occupations or hold positions that have functions of trust such as physicians, teachers, child-care workers, certain court employees and religious leaders. If they have a “professional relationship” with a child they believe is the victim of abuse, they have a legal obligation to notify authorities. However, Jessica’s Law ignores the need for such a relationship when imposing new penalties. As I read the bill, any defendant who happens to be in a mandated-reporter occupation would face enhanced penalties — even if he had no prior relationship with the victim.
People who abuse a position of trust should face stiffer penalties, but this law seeks to create a new category of criminal based solely on occupation.
It’s never easy to stand alone — especially when the question is the safety of our children. Yet I stand by my vote, because Jessica’s Law is riddled with flaws and based on outmoded thoughts on criminal sentencing. I have argued for years that we need to be smart on crime — especially with offenders as insidious as sexual predators. Increased parole, thoughtful sentences, allowing judges to do their job and forcing prosecutors to respect civil liberties are all properly part of that effort. Unfortunately, Jessica’s Law is not. ..News Source.. by Guest Column/State Sen. Cynthia Creem
CA- California Supreme Court rules on right to testify in civil commitment hearings
A issue of first impression, a very rare event. However, it must be remembered that, in a civil commitment trial the issue of "Guilt or Innocent" is not the issue, the issue is, whether or not this person should be civilly committed. Now, will all PAST trials have to be done over?
7-29-2008 California:
A sexually violent predator from San Bernardino faces an indefinite commitment to a state mental hospital despite a state Supreme Court ruling Monday that he should have been allowed to testify in his 2005 trial.
Convicted rapist Tony Lee Allen, 41, who is being held at Coalinga State Hospital, could return to San Bernardino County Superior Court next year for a trial to determine whether he should remain incarcerated.
The U.S. Fifth Amendment gives defendants the absolute right to testify in criminal cases. However, until Monday's ruling, defendants in sexually violent predator cases -- a mental health proceeding instead of a criminal trial -- apparently did not have that right.
"It was unclear until this decision came down," said Christopher Blake, Allen's defense attorney who argued before the high court. "This is the first time this has come forward anywhere in the U.S. that we know of."
Monday's 7-0 decision, binding in California, clearly says defendants in sexually violent predator trials have a right to testify even if their attorneys object.
"It gives these people the right to speak for themselves," Blake said. "It's then up to a jury to decide: Do we believe this guy or not? It's like any other trial we have."
Allen, who has a long criminal record, was sentenced in 1990 to 20 years in prison for two violent rapes. He was released in 2001, but immediately committed to a state mental hospital.
"These were heinous rapes," Deputy District Attorney Camelia Mesrobian said. "This is the dangerous sexually violent predator we fear."
The high court also mentioned Allen's reckless behavior, lack of remorse, mental disorders and cocaine dependency. Medical experts quoted in the opinion said Allen would likely commit more violent crimes if released.
Mesrobian, who specializes in sexual predator prosecutions, said Allen's next trial was on hold pending the Supreme Court's decision. She said it likely would occur next spring.
It will be her fourth trial to determine whether Allen should be released from the mental hospital. The first three, beginning in 2001, each ended with the maximum two-year commitment.
At his 2005 trial, Allen, over the objections of his attorney, wanted to testify in his own defense, the Supreme Court decision said.
Judge Kenneth Ziebarth ruled that Allen could not testify.
Monday's decision said Ziebarth's error was "harmless beyond a reasonable doubt." The justices said Allen's testimony would not have changed the jury's conclusion that Allen was a sexually violent predator.
Allen's latest commitment was scheduled to end in March 2007, but his release was delayed after Mesrobian sought the fourth extension.
This time, Allen faces an undetermined commitment instead of a two-year limit because of voters' approval of Prop. 83, also known as Jessica's Law, in 2006. His release would not be allowed until officials determine he no longer is a danger to the public. ..News Source.. by JOHN F. BERRY, The Press-Enterprise
Bush: Former Army cook's crimes warrant execution (Rape of an adult)
Would Bush have made this decision if the U.S. Supreme court had not recently rejected the case involving death for child rape?
7-29-2008 National:
WASHINGTON (AP) -- President Bush could have commuted the death sentence of Ronald A. Gray, a former Army cook convicted of multiple rapes and murders.
But Bush decided Monday that Gray's crimes were so repugnant that execution was the only just punishment.
Bush's decision marked the first time in 51 years that a president has affirmed a death sentence for a member of the U.S. military. It was the first time in 46 years that such a decision has even been weighed in the Oval Office.
Gray, 42, was convicted in connection with a spree of four murders and eight rapes in the Fayetteville, N.C., area between April 1986 and January 1987 while he was stationed at Fort Bragg. He has been on death row at the U.S. Disciplinary Barracks at Fort Leavenworth, Kan., since April 1988.
"While approving a sentence of death for a member of our armed services is a serious and difficult decision for a commander in chief, the president believes the facts of this case leave no doubt that the sentence is just and warranted," White House press secretary Dana Perino said.
"The president's thoughts and prayers are with the victims of these heinous crimes and their families and all others affected," she said.
Bush's decision, however, is not likely the end of Gray's legal battle. Further litigation is expected and these types of death sentence appeals often take years to resolve. It also remains unclear where Gray would be executed. Military executions are handled by the Federal Bureau of Prisons.
Members of the U.S. military have been executed throughout history, but just 10 have been executed by presidential approval since 1951, when the Uniform Code of Military Justice, the military's modern-day legal system, was enacted into law.
President Kennedy was the last president to stare down this life-or-death decision. On Feb. 12, 1962, Kennedy commuted the death sentence of Jimmie Henderson, a Navy seaman, to confinement for life.
President Eisenhower was the last president to approve a military execution. In 1957, he approved the execution of John Bennett, an Army private convicted of raping and attempting to kill an 11-year-old Austrian girl. He was hanged in 1961.
Gray was held responsible for the crimes he committed in both the civilian and military justice systems.
Silas DeRoma, who left active duty in 1999, was one of several military attorneys who represented Gray on appeal.
"It's disappointing news, as you can imagine," said DeRoma, who now works as a regulatory attorney in Honolulu for the National Oceanic and Atmospheric Administration. He said the basis for some of Gray's appeals focused on the prisoner's mental competency and his representation at trial.
In civilian courts in North Carolina, Gray pleaded guilty to two murders and five rapes and was sentenced to three consecutive and five concurrent life terms. He then was tried by general court-martial at the Army's Fort Bragg. There he was convicted in April 1988 and unanimously sentenced to death.
The court-martial panel convicted Gray of:
-Raping and killing Army Pvt. Laura Lee Vickery-Clay of Fayetteville on Dec. 15, 1986. She was shot four times with a .22-caliber pistol that Gray confessed to stealing. She suffered blunt force trauma over much of her body.
-Raping and killing Kimberly Ann Ruggles, a civilian cab driver in Fayetteville. She was bound, gagged and stabbed repeatedly, and had bruises and lacerations on her face. Her body was found on the base.
-Raping, robbing and attempting to kill Army Pvt. Mary Ann Lang Nameth in her barracks at Fort Bragg on Jan. 3, 1987. She testified against Gray during the court-martial and identified him as her assailant. Gray raped her and stabbed her several times in the neck and side. Nameth suffered a laceration of the trachea and a collapsed or punctured lung.
Gray has appealed his case through the Army Court of Criminal Appeals (then known as the U.S. Army Court of Military Review) and the Court of Appeals for the Armed Services. In 2001, the Supreme Court declined to hear the case. ..News Source.. by DEB RIECHMANN, Associated Press Writer
Disabilities Law Covers Sex Disorders, D.C. Circuit Rules
7-29-2008 National:
Twice this month, the U.S. Court of Appeals for the D.C. Circuit expanded the sweep of a "major life activity" under the nation's anti-discrimination law for federal employees.
First, the court said sleep qualified. Now sex is on the list.
That is, disabilities that promote sleeplessness or the inability to have sex are covered by the 1973 Rehabilitation Act the court ruled.
Employment lawyers say the rulings open the door for a host of new discrimination claims and add ballast to cases that hinge on plaintiffs' ability to prove that their disabilities substantially interferes with their everyday lives.
"Employers will have to view the term 'disability' much more broadly," says Victoria Zellers, a partner in Cozen O'Connor's Philadelphia office.
Zellers says many of the cases brought under the Rehabilitation Act and the Americans with Disabilities Act, which protects private employees, wash out on summary judgment because employees fail to clear the first hurdle: proving they are disabled.
In some circuits, the statute is construed to cover those who can't care for themselves, perform manual tasks, walk, see, hear, speak, breathe, learn or work.
The Centers for Disease Control and Prevention estimates that 10 percent of American adults suffer from a sleep disorder, and at least twice as many suffer from sexual dysfunction, whether physical or psychological.
"This could mean a lot more ADA cases go to trial," Zellers says.
In a July 18 opinion, Judge David Tatel, quoting Genesis, pronounced sex a "significant human activity, one our species has been engaging in at least since the biblical injunction to 'be fruitful and multiply.'"
In stating the obvious, the appeals court became the second in the country to answer a question the Supreme Court circumvented a decade ago in Bragdon v. Abbott in which the majority found that reproduction -- the end, but not the means -- rated as a major life activity.
Tatel, writing again for the majority in a July 1 opinion, aligned the court with at least three other circuits on the issue of sleep.
"Sleeping is unquestionably a significant activity -- human beings spend roughly a third of their lives doing it," Tatel wrote in Desmond v. Mukasey. "And it is certainly important."
The court, reversing circuit precedent, also found that plaintiffs are not required to show that their sleep disorders affect their waking activities, in order to bring a discrimination claim. The court's drift toward a broader definition of disability comes as Congress is considering legislation that would aggressively expand coverage for employees bringing claims under the Americans with Disabilities Act, which protects private employees from discrimination based on disability.
The legislation would junk four Supreme Court decisions that lawmakers say ignored Congress' intent when it passed the Americans with Disabilities Act 18 years ago, lessening the burden on claimants to show how their disabilities affect them. The House passed the ADA Amendment Act in June, by a vote of 401-17. The Senate had its markup earlier this month.
CLEARANCE DENIED
The D.C. Circuit's July 18th ruling was a victory for Kathy Adams, a lawyer in Piedmont, S.C., who sued the State Department for discrimination in 2005, after she was refused clearance to serve in the Foreign Service.
She was diagnosed with breast cancer in August 2003, soon after receiving notice that she had passed her written and oral examinations. She underwent a mastectomy, and two months later, her fallopian tubes and ovaries were removed. By October 2003, when she received a letter assuring her of an appointment to the Foreign Service, Adams was cancer-free.
When Adams informed the State Department of her bout with cancer, she was denied medical clearance, despite her doctors' assurances that she was healthy.
The district court dismissed her claim last year, reasoning that the cancer did not qualify as a disability because it wasn't long-term or permanent.
Significantly, the D.C. Circuit found that her history with cancer was enough, provided she could show it continued to limit a major life activity.
Adams, in a declaration, said the experience had "crippled indefinitely and perhaps permanently" her ability to enter into romantic relationships.
"Our client just wept when we read the [D.C. Circuit] decision to her," says Adams' lawyer, David Shapiro, of Swick & Shapiro. "Here's a person who came to the conclusion she wanted to serve the country, she's well qualified to do so, and she's denied because she had cancer?"
He says Adams wants to be hired into the Foreign Service with a salary equivalent to the experience she would have accumulated had she been cleared in 2003.
A spokesman for the U.S. Attorney's Office for the District of Columbia, which handled the case, says the decision is under review.
Shapiro says he was less impressed with the panel's pronouncement on sex than its finding that her history of cancer withstood the statute's requirement that the claimant show a "record" of impairment.
"They discriminated against her based on a history -- and this is exactly what the statute is supposed to guard against," Shapiro says.
Judge Karen LeCraft Henderson, in her dissent, said she would not have reached the question of whether sex qualifies as a major life activity because Adams failed to show that her impairment had limited her before the State Department rescinded the offer. ..News Source.. by Joe Palazzolo, Legal Times
TX-MI- Collecting Computer Data in the U.S.: Pick the Wrong State and You Could Wind Up in Jail
7-29-2008 Texas / Michigan:
Texas and Michigan have created tough laws regarding computer forensics. John Tredennick explains the new rules these states have enacted.
Several months ago, I wrote a column about collecting data in the European Union. While most of it focused on the complicated rules that govern data collection over there, I was equally interested in the fact that if you broke one of their rules you could wind up in jail. I still have a picture in my mind of the hapless CIO who spent 6 months in a Finnish jail because he didn’t provide sufficient protection for individual privacy in his security policies.
I contrasted the severity of the EU provisions with discovery in the United States, which up until now was pretty much unregulated. Corporations could collect data from their networks without special requirements. Attorneys and legal assistants could collect data from any willing subject. Heck, just about anybody you could pull in off the street could lay hands on a computer and collect data from it, forensically or otherwise.
That may be about to change. Two states have recently enacted statutes that make it a crime for unlicensed individuals to engage in computer forensics. Texas passed a law that would give regulators the power to impose up to a year in jail and a $14,000 fine on people doing “computer investigations.” Michigan went a bit further. On May 28 th of this year, Governor Jennifer Granholm signed into law a bill that makes unlicensed computer forensics work in Michigan a felony punishable by up to a four-year prison term, damages of up to $25,000 and a criminal fine of up to $5,000.
Can you believe that? They say everything is big in Texas but when it comes to imposing penalties on computer forensics, Michigan now takes the cake. Crack open that computer case in Detroit or Duluth or even Ann Arbor and you better bring your toothbrush. You might be doing a stretch at the Standish Maximum Correctional Facility or maybe in Saginaw.
Let’s take a look at these two state laws and see what we can learn. Not surprisingly, both seem to be the product of heavy lobbying from the state PI bar. If this proves good for local business, you can expect other PI groups to start lobbying their legislatures as well. (You will find links to all of this information at the end of this column.) ..The Rest of the Story.. by John Tredennick
U.S. urges new hearing in death penalty case (Child Rape)
7-29-2008 National:
The Justice Department, in a bold legal maneuver, on Monday afternoon asked the Supreme Court to rehear a major case on the death penalty, saying the basis of the decision had been “undermined.” The decision at issue was the 5-4 ruling on June 25 in Kennedy v. Louisiana (07-343), barring the death penalty for the crime of raping a child. The federal government was not involved in that case. Although the Court’s rules do not allow non-parties to ask that a case be reheard, the Solicitor General’s office filed a motion asking permission to do so, arguing that the Court should grant the state of Louisiana’s plea for rehearing. The motion can be found here.
“The United States,” Acting Solicitor General Gregory G. Garre argued in the motion, “has a substantial interest in rehearing because the Court’s decision casts grave doubt on the validity of a recent Act of Congress and Executive Order of the President authorizing capital punishment for child rapists under the Uniform Code of Military Justice”– the law that governs crimes committed by those in military service.
The motion is based primarily upon the fact that the Court, in striking down Louisiana’s law on the death sentence for child rape, did not take account of a federal law authorizing that penalty in the military justice system. No one involved in the case had mentioned that law to the Court, and Justice Anthony M. Kennedy’s opinion for the majority noted the supposed absence of a federal law on the subject in a survey of whether there was a “national consensus” for or against such punishment. The omission, discovered by a military law expert and mentioned on his blog, led Louisiana to ask formally that the case be reopened to consider the military law provision.
The Solicitor General’s office reacted earlier to the omission by saying that, if rehearing were sought, it would “consider what steps are appropriate.” On Monday, the answer came, one week after Louisiana asked for a new review.
The new motion contended: “The Court’s decision and, in particular, its assessment of the ‘national consensus with respect to the death penalty for child rapists’, was not informed by those recent pronouncements [of Congress and the President].”
Under the Court’s rules, a rehearing of a decided case can come about only if one of the Justices who voted with the majority supports rehearing, and there are five votes to do so. And, under the rules, the Court almost never will grant a new review of a decided case without first asking for a reaction from the other side — here, the lawyers for Patrick Kennedy, the Louisiana inmate involved.
While saying, as it had earlier, that it “regrets” not having brought those developments to the Court’s attention, the government filing said that the decision “rests on an erroneous and materially incomplete assessment of the ‘national consensus’ concerning capital punishment for child rape. That error undermines the foundation for the Court’s decision.”
Even if the Court were to reach the same result after a new look, the rehearing would have been justified “to ensure that a material omission in the decisionmaking process has not tainted the Court’s decision on a matter of such profound constitutional, moral, and practical importance.”
Moreover, the motion asserted, the Court should take the occasion of a rehearing to spell out further the relationship, if any, between the two rationales it used in ruling against a death sentence for raping a child. One rationale was the inquiry into a “national consensus” on the subject — the part of the opinion that omitted the federal military law. The other rationale was the Court’s use of its own “independent judgment.”
The Court, the govecaernment motion said, “has not had occasion to illuminate the extent to which these two inquiries are interdependent.” And, it went on, the Court has never used its “independent judgment” to forbid capital punishment “in the face of a national consensus” favoring such punishment — a consensus that the government suggests may in fact exist because of the federal actions and “a broader trend” in the country “recognizing the incalculable individual and societal harms inflicted by the sexual abuse of children.”
The Solicitor General sharply criticizes the Court’s ruling, especially its “categorical nature.” In discussing that facet of the government argument in a footnote, the motion noted that the Court has not yet decided whether rulings on the Eighth Amendment ban on cruel and unusual punishment apply differently in a military case involving a death sentence. But, because of the breadth of the decision last month, the motion said, it “casts grave doubt on the constitutionality” of the military law allowing a death penalty for child rape. ..News Source.. by SCOTUS
IA- Iowa case raises question: Is stripping an art?
7-29-2008 Iowa:
DES MOINES, Iowa (AP) -- Iowa doesn't have any all-nude strip clubs - but it does have performing arts centers where women dance naked.
However, the loophole in the state's public indecent exposure law that allows nude dancing at "art centers" is under attack in the small community of Hamburg, a town of 1,200 just across the Missouri River from Nebraska.
The case pending before a Fremont County judge effects only one business in Hamburg, but if he agrees with the prosecutor, it could eventually threaten the legal standing of nude dancing clubs across the state.
District Judge Timothy O'Grady heard arguments in a one-day trial on July 17 and took the case under advisement.
It all began on July 21, 2007, when a 17-year-old niece of Sheriff Steven MacDonald climbed up on stage at Shotgun Geniez in Hamburg and stripped off her clothing. Owner Clarence Judy was charged with violating Iowa's public indecent exposure law.
Judy responded that the law doesn't apply to a "theater, concert hall, art center, museum, or similar establishments" devoted to the arts or theatrical performances.
"Dance has been considered one of the arts, as is sculpture, painting and anything else like that. What Clarence has is a club where people can come and perform," said his lawyer, Michael Murphy.
Murphy noted that the club has a gallery selling collectible posters and other art, and it provides patrons with sketch pads.
Nonsense, said Fremont County Attorney Margaret Johnson, an underage girl danced naked at the club, and that's illegal.
"Are you saying that minors can't be protected? Can a group of 12-year-olds come down and go in and dance nude and it's OK? I don't think that's what the Legislature had in mind when it made those additional provisions," Johnson said.
Johnson said the intent of the law is to allow movies in a theater where there's brief nudity or for an art gallery displaying paintings of nudes.
Murphy said Judy bans anyone under 18 from entering the five-year-old business. The problem, he said, was "a group of girls snuck in a 17-year-old."
"While she was there, she felt like dancing so she got up and danced on the stage and then she took her clothes off. Trouble with that is she's the sheriff's niece," he said.
Johnson denied that the teen's relation to the sheriff was connected to the charges filed against Judy.
Her parents were absolutely appalled with the situation," Johnson said.
The sheriff declined to comment. There was no comment from his niece, whose name wasn't given.
As part of his defense during trial, Murphy cited a 1998 ruling that found nude dancing is a form of art. In that case, the owner of the Southern Comfort Free Threatre for the Performing Arts in Davenport was charged under the public indecent exposure law for allowing nude dancing. A judge found owner not guilty.
The current case deals only with Judy and Shotgun Geniez, but there could be an appeal if either side loses.
Johnson said that would take it to the Iowa Court of Appeals and perhaps the Iowa Supreme Court. That would make it a statewide case that could affect dozens of other clubs in the state. ..News Source.. by MELANIE S. WELTE
