CA- Federal Judge Unhappy With Flip-Flopping Fed

2-6-2009 California:

It's never a good idea to make a judge on the brink of a five-month-long death penalty trial think he's wasting his time.

Assistant U.S. Attorney Denise Barton learned that lesson this week, when Northern District of California Judge William Alsup ordered her to explain why the government decided to dismiss a sex offender registry prosecution less than two weeks after Alsup had sorted through extensive briefing on the statute's constitutionality.

In court Wednesday, Alsup kept his voice low and made sure to describe prosecutors in the office as "excellent." But the judge seemed disturbed that Barton pushed hard to detain defendant Gary Hardemann in December, only to toss the case this week.

"You went after him hammer and tongs to keep him in custody," Alsup said. The judge released Hardemann even after Barton claimed he was a danger to the community, and that more counts were coming.

"When you are charging a case, I urge you to be ready to go to trial," said Alsup, who will preside over a rare capital trial later this month.

Barton acknowledged Alsup's frustration, but said the dismissal became necessary after a newly discovered legal hurdle arose in recent weeks. Prosecutors then doubted their ability to prove the case, she said.

"We did what we believed was the responsible thing," said Barton, who coordinates the office's sex crimes prosecutions.

According to Hardemann's federal public defender, Daniel Blank, the case appears to be the first in the Northern District of California brought under the recently passed Sex Offender Registration and Notification Act. Hardemann was convicted of two state law sex crimes in the 1980s, which were expunged. Still, the government contends Hardemann is required to register under SORNA, and that he failed to do so.

Blank sought to dismiss the indictment with various challenges to the statute, including a facial attack invoking the Commerce Clause. Alsup turned him down.

After that ruling, though, the government grew unsure of whether Hardemann technically moved out of San Francisco in 2007. Changing residences triggers SORNA's reporting requirements, Barton said. Since Hardemann went to Mexico for a few months -- but returned to San Francisco -- Barton said she and others in the office doubted their proof.

Still left unsettled is the fate of Alsup's constitutional analysis.

"I think that was a close call," the judge said. "I ruled in the government's favor, but I had it in the back of my mind that Mr. Blank would take it up on appeal and the 9th Circuit would sort it out."

Not surprisingly, Barton thought Alsup should let the order stand, while Blank said he should withdraw it. Alsup took the matter under submission.

"I'm concerned with having that opinion out there. Somebody may put more weight on it than it deserves," he said.

The judge closed by reminding prosecutors of their immense power over citizens that "don't have the same resources" as the government.

"Please proceed with caution and good judgment," he said. ..News Source.. by Dan Levine, The Recorder