KS- Appeals court: Sex offender signs are too harsh

4-25-2009 Kansas:

Quoting from the title song of the 1960s television series "Branded," a state appeals court panel ruled Friday that a Stafford County judge overstepped his authority when he ordered a man to put signs on his house and car announcing that he is a sex offender.

The three-judge panel cited the television show while explaining its ruling in the case of Leroy Schad, a 73-year-old Hudson man who was ordered to post the signs as part of a plea bargain related to his taking baths with two children.

"Branded" aired on NBC in 1965 and 1966. It starred Chuck Connors as Capt. Jason McCord, an Army officer wrongly cashiered and disgraced as a coward after surviving a frontier massacre that wiped out his troop.

The show is most remembered for its haunting ballad-style theme song, which contained the lyrics quoted by the appellate judges: "Wherever you go, for the rest of your life, you must prove, you're a man."

"In McCord's case, these final lyrics condemned him to a life of wandering and trying to prove to others that he was not a coward," the judges wrote. "Indeed, the lyrics expressed a very harsh and unforgiving censure against McCord for his alleged cowardice.

"Similarly, in the present case, the signage conditions exact a very harsh censure against Schad," the ruling continued.
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"Although Schad had been convicted of a sexual offense, the imposed signage conditions would work against any rehabilitation while on probation because wherever Schad would be, he would be 'branded.' "

The opinion was written by Judge Richard Greene and joined by judges Steve Leben and Henry W. Green Jr.

While the television show was used as an illustrative example, the ruling itself hinged on court precedents in similar cases from Tennessee, Montana and Illinois.

In those cases, the courts ruled that public humiliation would interfere with the rehabilitative purpose of probation and was impermissible.

Carl Folsom III, the lawyer who represented Schad, acknowledged that he found it "a little odd" that the judges cited '60s TV in their decision.

But, he said, it was appropriate to the case, which included arguments on public humiliation punishments dating back to the Massachusetts Bay Colony.

"In my brief, I cited a lot of really old books," Folsom said. "It was just such an unusual sentence, it required some unusual comparisons."

Stafford County Attorney Joe Shepack, who represented the state, did not return a phone message seeking comment.

In addition to overruling the sign conditions, the appellate judges also ordered Stafford County District Judge Ron L. Svaty to reconsider the length of Schad's probation and a prohibition on leaving his house to buy groceries.

They ruled that Svaty had not adequately justified setting Schad's probation term at five years when sentencing guidelines call for three.

A psychological report said Schad is not a public risk and described him as "an aging person showing poor judgment in the face of mitigating circumstances."

The appellate judges also directed that Schad be allowed to leave his home to shop for groceries unless Svaty can make a ruling that it's not an essential activity.

Folsom said shopping is critical for Schad because "he's an elderly person who doesn't have much contact with family" and has no one to consistently bring him food.

The original terms of the house arrest allow Schad to leave home for medical care, to meet with his probation officer and to attend a sex offender treatment program. ..News Source.. by DION LEFLER, The Wichita Eagle