February 28, 2009

OH- Sexual crime law OK

Someone is drinking wacky water, one legal system for sex offenders and a completely different legal system for others? While ex post facto may not apply here because of the court's meaning of "punishment" other laws and constitutional provisions do. i.e., when you say xx-years, is that a contract, and one that has finality? Clearly, the public's right to know is based on laws when the agreement between the registrant and the state was made, and included a finality provision; to view it otherwise is to say the agreement was a lie, a sham and made in bad faith. I wonder, are their judges in courts, at various levels, that for reasons yet unknown, should be recusing themselves from these cases?

A few notes on portions of the court decision:

"Conversely, remedial laws are those affecting only the remedy provided, and include laws that merely substitute a new or more appropriate remedy for the enforcement of an existing right. (p-5)" Registration after the agreed upon term extinguishes registrants' rights to no longer register, and as such is no remedy at all, it is an abrogation of the registrants' remedy.

Further, "The Cook court noted that “[e]xcept with regard to constitutional protections against ex post facto laws * * * felons have no reasonable right to expect that their conduct will never thereafter be made the subject of legislation. (p-5)” To say this, and not include a belief of finality in the term -part of the agreement-, is to say that, the state can forever lie when making agreements with registrants. If the state can lie and get away with it, why does the state prosecute offenders if they lie? This double standard must cease.

To say that, "registration and community notification laws are necessary to achieve the goals of protecting the public from sex offenders (p-5)" is a ruse. To believe that is also to believe that sex offenders are not part of the public which needs to be protected from harm. R&C laws place registrants in harms way and there is documentation to prove that over 150 registrants have been brutally murdered and otherwise harmed due to these laws. There is no evidence showing that registration laws protect anyone in the public, such is illusory, and as mentioned, there is substantial evidence that they cause harm to many registrants and their families.

The entire principle of "finality and proportionality" that flows through all criminal code -nationally- is thrown out the window when it comes to sex offenders and registration laws, and not to other types of offenders, this is discrimination in violation of both the state Constitutions and the U.S. Constitution.

2-28-2009 Ohio:

Court says offenders' registration retroactive

In a case likely headed for the Ohio Supreme Court, the state's 2007 law toughening requirements for sex offenders to report their address can be applied retroactively, an appeals court ruled Friday.

Even if the original time when offenders had to report has expired, the law is legal and still applies, the Cincinnati-based 1st District Court of Appeals ruled in a unanimous decision written by Judge Sylvia Hendon.

"By their voluntary acts (crimes), sex offenders have surrendered certain protections that arguably are afforded to other citizens. Their convictions of felony offenses put them into a class that has already been deemed to have no expectation of finality in the consequences of the judgments against them," the decision read.

The issue is a fight over the rights of convicted sex offenders versus the public's right to know where those sex offenders live, work or go to school.

A decade ago, Ohio lawmakers enacted a law that required sex offenders to register their address. The length of time they had to register depended on the crime committed and other factors considered by a judge - including the likelihood of offenders committing future crimes.

In 2007, Ohio lawmakers amended that law to mirror the federal law - commonly called the Adam Walsh Act, named for the 1981 killing of the 6-year-old at the hands of a convicted pedophile.

It changed the reporting requirements based solely on the crime.

The impact of the change was that hundreds of sex offenders in Hamilton County and thousands across Ohio were required to report for longer times - often for life - than originally ordered to by a judge.

Jerome Sewell Jr. was one of them.

Sewell and another man were accused of sexually touching two women as they slept in 1998.

Sewell pleaded guilty in 1999 to sexual battery and was sentenced to two years of probation and six months in a drug- and alcohol-rehabilitation program, and was ordered to stay away from the victim. He also was required to report his address to officials for 10 years.

Then the law changed and reclassified all sex offenders. The 2007 law requires sex offenders to register - based on their crimes - for 15 years, 25 years or life.

The new classification was based only on the crime - not on judge's opinions of future danger - and Sewell, who was months away from completing his 10-year reporting requirement, now has to register for life.

He sued, saying the law change can't be applied to him because he already was classified and argued that it can't be applied retroactively or his punishment increased.

The appeals court disagreed, deciding the new reporting requirements are no different than those for enhancements of tax codes, or new requirements for passports or driver's licenses for all citizens.

"They are legitimate exercises of governmental regulatory power to protect a public interest or further a legitimate government interest," Hendon wrote.

Sewell and his attorney, Margie Slagle, disagree.

"These individuals have a court order. That also gave them the right to be done with that duty after 10 years. They have a court order for that," Slagle said, adding that it was improper for Ohio's General Assembly to create laws that violate existing court orders.

She likens it to a moratorium on home foreclosures applied, like this law, retroactively.

"Is that constitutional? We're on a very, very slippery slope," she said.

Dan Burke, an attorney with the Hamilton County Public Defender's Office, said he has six clients whose reporting requirements would have expired if not for the new law.

Slagle will appeal the case to the Ohio Supreme Court. Assistant Hamilton County Prosecutor David Stevenson believes that court will hear the issue.

"I would expect it would be appealed, and I would expect them to take it," Stevenson said. ..News Source.. by Kimball Perry

Read More of Article...

Bill in Congress - HR 1076

2-27-2009 National: UPDATE

Internet Stopping Adults Facilitating the Exploitation of Today's Youth (SAFETY) Act of 2009

Sponsor: Rep Smith, Lamar [TX-21]
Introduced 2/13/2009 HR 1076

SENATE VERSION:
Sponsor: Sen Cornyn, John [TX]
Introduced 2/13/2009 S 436 (This bill is the same as HR 1076)

The stated intent of the bills are: To amend title 18, United States Code, to protect youth from exploitation by adults using the Internet, and for other purposes.

The stated intent does not even come close to describing what this bill is about. First it relates to "child porn" and "money," in essence, if money is used -in commerce- (i.e., to pay for child porn, or access to child porn, or I have even seen cases where they said, if disks were purchased that meant -in commerce- was applicable which to me is stretching it WAY TOO FAR.) then this bill is applicable.

Next, who this is applicable to: "Whoever, being an Internet content hosting provider or email service provider, knowingly engages in any conduct the provider knows or has reason to believe facilitates access to, or the possession of, child pornography (as defined in section 2256) ... ." OK, I can see that being stretched to, but for now its OK.

UPDATE: Apparently there is debate as to who a ISP is, there are folks thinking the bill means those who provide a service to someone else. See MSBA Computer & Technology Law. ( Internet cafes, ISPs, hotels, universities, and employers would be required to keep logs of all data associated with IP addresses assigned individual users – from e-mail logins to search queries to visited Web sites.) However, even using that theory there still remains a problem, when folks use those portals they do not assign IP Addresses, such is assigned by the e-mail provider the user signs on to. There is no known mechanism today to allow for compliance under that theory.

Then, comes retaining records of user's activity: "(h) Retention of Certain Records and Information- A provider of an electronic communication service or remote computing service shall retain for a period of at least two years all records or other information pertaining to the identity of a user of a temporarily assigned network address the service assigns to that user.'"

Here is a major problem, example assume its AOL and they see someone sending a CP pic (their first notice of this guy doing something wrong), now, when does the 2-years start? The past 2-years or the next 2-years, this bill has holes. The only ISP response is to keep everyone's records for 2-years. That folks, puts ISPs in a position where they have to drive costs of their service UP UP UP.

Now, the sentence for violation: "... shall be fined under this title or imprisoned not more than 10 years, or both." That may sound OK, but remember the "for other purposes" well catch this amendment of other statutes:

Section 2251(e) of title 18, United States Code, is amended--
(1) by striking `15 years nor more than 30 years' and inserting `20 years or for life'; and
(2) by striking `not less than 25 years nor more than 50 years,' and all that follows through `not less than 30 years nor more than life.' and inserting `life.'.

Section 2252(b) of title 18, United States Code, is amended--
(1) in paragraph (1)--
(A) by striking `5 years and not more than 20 years' and inserting `15 years or for life'; and
(B) by striking `not less than 15 years nor more than 40 years.' and inserting `not less than 30 years or for life.'; and
(2) in paragraph (2)--
(A) by striking `or imprisoned not more than 10 years, or both' and inserting `and imprisoned for not less than 3 years nor more than 20 years'; and
(B) by striking `10 years nor more than 20 years.' and inserting `20 years or for life.'.

Section 2252A(b) of title 18, United States Code, is amended--
(1) in paragraph (1)--
(A) by striking `5 years and not more than 20 years' and inserting `15 years or for life'; and
(B) by striking `not less than 15 years nor more than 40 years' and inserting `not less than 30 years or for life'; and
(2) in paragraph (2)--
(A) by striking `or imprisoned not more than 10 years, or both' and inserting `and imprisoned for not less than 3 years nor more than 20 years'; and
(B) by striking `10 years nor more than 20 years' and inserting `20 years or for life'.


No need to go any further, they have nothing to do with this bill's actual purpose, this is the way Congress amends other laws, and in these cases, MANDATORY SENTENCING and some for LIFE SENTENCES. This is a big NO NO NO, I do not support this method or mandatory sentencing in any way shape or form. It is not possible for Congress to anticipate future circumstances that needs to be left up to judges at the time.

Accordingly, I am OPPOSED to this bill. Folks should notify their people in Congress to stop this bill, and stop this "for other purposes" stuff, which is nothing but a crafty sneeky way to get something changed which has nothing to do with the bill at hand; and, it subverts the constitutional process for proper debate on amendments.

Thanks,
eAdvocate

Note: To see all bills concerning sex offenders or their familes currently in Congress simply click here. At the present time I do not review sex offender bills concerning Immigration or Appropriations, they get very involved and are time consuming.

Note: Full bill text WILL NOT be included in this blog because as time goes on bills are amended by Congressional Committees and also on the floor of either house, and it is too easy to confuse folks who may not realize that. Further, links to the bill in Congress will be provided so folks can always see the latest version of the bill.

Read More of Article...

LA- City of Covington agrees to pay former inmate

2-28-2009 Louisiana:

A Covington man who spent 19 years in prison for a rape he didn't commit is poised to receive $1.4 million in the settlement of a federal lawsuit he filed against the city.

During an emergency meeting Friday morning, the Covington City Council approved a $300,000 promissory note to Dennis Patrick Brown, whose 1985 conviction for aggravated rape was overturned in 2004 after DNA evidence conclusively excluded him as a suspect in the crime.

The council approved the note by a 5-0 vote after meeting in executive session with City Attorney Deborah Foshee and Mayor Candace Watkins.

The $300,000, which will be paid to Brown in 10 annual installments of $30,000, plus $1.1 million from the city's insurers, will be used to settle the suit Brown filed in October 2005, City Council members said.

City officials declined to comment further, saying the matter is still in litigation. Watkins said the city will make a statement once the settlement becomes official. The agreement should be signed next week, Foshee said.

Brown sued the city and former city police officers, alleging civil rights violations, after his release from Louisiana State Penitentiary at Angola and the dismissal of the charges against him by the district attorney's office.

One of Brown's attorneys, William E. Rittenberg of New Orleans, declined to discuss details of the pending settlement "until it's a done deal." But "anything he gets will not be too much for spending 20 years in prison for a crime he did not commit, " Rittenberg said.

Brown, who's now 41 and living in western St. Tammany Parish, was incarcerated from age 17 until his release at age 36. "That was the prime of his life, " Rittenberg said.

Covington police arrested Brown in September 1984 after a woman reported being raped at knifepoint in her home on Polk Street. Based on her description, police sketched an image of a suspect with a bandanna covering all but his eyes.

She later picked Brown out of a lineup. During the September 1985 trial, the victim testified that she had no doubt Brown raped her.

Brown denied the attack, testifying that police had threatened him with a knife to gain a confession. He told the jury that police investigators were lying and that the first time he set eyes on the victim was in court. He was found guilty and sentenced to life in prison.

His case caught the attention of the Innocence Project of New Orleans, a group of lawyers who have used a Louisiana statute passed in 2001 to test evidence from old crimes. They secured a court order to test blood, semen and clothing found at the scene of the rape. Two tests of the evidence excluded Brown as the rapist.

In his suit, Brown contends investigators coerced a confession through physical force and intimidation and fabricated a detailed report of his confession while conveniently losing an audio tape that would have shown he had been threatened.

Brown also named a former technician with the State Police Crime Lab as a defendant in the suit, contending that he failed to run additional blood tests on the evidence that could have excluded Brown as the rapist. The city's settlement does not involve Brown's claims against the state, Foshee said.

Foshee, in court documents filed in Covington's defense, contended city police did nothing wrong and most of the points raised by Brown in the suit were brought up and dismissed during motions for his criminal trial.

In dismissing motions to suppress the confession, the identification by the victim and other evidence, state courts ruled that Brown's constitutional rights had not been violated, Foshee said in a court brief.

Covington officials declined to explain why they are settling the suit if there was no wrongdoing on the city's part.

Rittenberg said he and other attorneys representing Brown took on the case for free. Until early this month, Brown's legal team included Eric H. Holder, who withdrew from the case after he was named U.S. attorney general by President Barack Obama. ..News Source.. by Charlie Chapple, The Times-Picayune

Read More of Article...

February 27, 2009

Bill in Congress - HR 288 -- HR 382

2-27-2009 National:

Here we have two bills with the same proposal:

Save Our Children: Stop the Violent Predators Against Children DNA Act of 2009

Sponsor: Rep Jackson-Lee, Sheila [TX-18]
Introduced 1/8/2009 Bill HR 288

-AND-

Sponsor: Rep Jackson-Lee, Sheila [TX-18]
Introduced 1/9/2009 Bill HR 382

The intent of each is: To create a separate DNA database for violent predators against children, and for other purposes.

First, I see no reason to duplicate a portion of a massive CODIS DNA data base, it wastes tons of money. Secondly, can you imagine how many other laws which reference the main CODIS DNA data base would also have to be modified. This is plain wasteful.

As to the differences between the two bills, HR 382 appropriates monies through 2012 and requires regulations be enacted while HR 288 does not have those in it.

I will ignore the findings mentioned that cite no authority, and that there is no "other purpose" mentioned in either bill.

I am OPPOSED to either of these bills.

Thanks,
eAdvocate

Note: To see all bills concerning sex offenders or their familes currently in Congress simply click here. At the present time I do not review sex offender bills concerning Immigration or Appropriations, they get very involved and are time consuming.

Note: Full bill text WILL NOT be included in this blog because as time goes on bills are amended by Congressional Committees and also on the floor of either house, and it is too easy to confuse folks who may not realize that. Further, links to the bill in Congress will be provided so folks can always see the latest version of the bill.

Read More of Article...

IN- Sex offender claims

Will lawmakers ever resort to using evidence based reasoning? There is a constitutional right to attend meetings that affect public rights (every state has these laws), and that right has not been denied anyone previously convicted of a crime.

2-27-2009 Indiana:

TERRE HAUTE, Ind. (WTHI) - Donald Hyde served seven months in prison for child solicitation starting in 2002. He then served time in 2003 for parole violation.

Right now sex offenders, like Hyde, cannot legally live within 1000 feet of a school, but the law does not restrict them from going to school events.

Last Monday, the Vigo County School Board moved to restrict sex offenders from all events on school property, including school board meetings.

Now Hyde is speaking out.

"One of the things I did learn was to be careful around children," said Hyde.

Hyde says he's not a danger to anybody, especially children, and he has a right to attend the meetings. He also says people are making assumptions that are not true.

The school board may amend the restriction to allow sex offenders to attend meetings only, but they have not decided yet.

Hyde said he does plan to attend the next meeting on March 9. ..News Source.. by Jessica Hayes

Read More of Article...

MI- Judge blocks parents of slain son, media from 'thrill kill' hearing

Earlier story

2-27-2009 Michigan:

DETROIT -- The parents of a murdered River Rouge man are upset that a judge today blocked them and others from a hearing for a Plymouth Township teen who killed their son.

To the surprise of prosecutors, relatives and the media, Wayne County Circuit Judge Bruce U. Morrow closed his court to hear a request for a new trial by Jean Pierre Orlewicz, 18, who was convicted last year of masterminding the stabbing, beheading and mutilation of Daniel Sorensen, 26, of River Rouge.

Jim Sorensen, Daniel Sorensen's father, said Morrow explained closing the courtroom by saying "constitutionality is not absolute."

"This young man murdered my son. I feel we should have been able to attend the hearing," Jim Sorensen said from the hallway outside of Morrow's courtroom.

"We don't get to be there to be a witness for our son."

Orlewicz wants a new trial, claiming he had inadequate lawyers and wasn't allowed to present testimony about his mental health. The case drew national attention when Wayne County Prosecutor Kym Worthy described the slaying as a "thrill killing."

"The Wayne County Prosecutor's Office is at a loss to understand why the Sorenson family, the public and the press were banned from the courtroom in the Orlewicz case today," Prosecutor Kym Worthy said in a statement. "The court did not state a reason for taking this action. It is my firm belief that the court proceedings should be ... open and transparent."

Orlewicz's new attorney, Elizabeth Jacobs, said she sought the closure to discuss subjects that wouldn't be admitted if the judge granted a new trial.

"There is no sense tainting a jury," Jacobs said.

Jacobs praised Morrow for closing the hearing, which will be continued April 24. It was unclear if the hearing will be open to the public. Morrow did not return calls to explain his decision.

Orlewicz was sent to prison for life after a jury didn't buy his testimony that he killed Sorensen in self-defense. Another teen testified Orlewicz asked him to help prepare a garage in Livonia for the killing, and then helped dump Sorensen's torso in Northville Township and his head in the Rouge River. Alexander Letkemann, 19, pleaded guilty to second-degree murder and is serving 20 to 30 years in prison.

Jacobs said the sentencing judge, Annette Berry, should not hear today's request because of her comments at Orlewicz's sentencing in May.

"I have to say I am grateful the jury convicted you, sir... I am grateful that you are going away for the rest of your life because in my view, I believe you would have killed again," Berry said.

Jacobs claims Berry also improperly prevented the defense from presenting three expert witnesses who were expected to testify about Orlewicz's mental condition and prior psychiatric treatment.

The request for a new trial also claims Orlewicz received inadequate counsel from his previous legal team headed by James C. Thomas, who later defended former Detroit Mayor Kwame Kilpatrick. Sorensen also said that prosecutors led him to believe that Orlewicz will claim self-defense as a reason to receive a new trial.

Sorensen said the self-defense claim is a bogus one, but he wants Orlewicz to exhaust every legal avenue available so that there are no excuses for him not to remain in prison.

"He would've had every chance he deserved," Sorensen said in hushed tones while flanked by his wife, Kim, and a Wayne County sheriff's deputy. "That is the way the system works." ..News Source.. by Santiago Esparza and Doug Guthrie / The Detroit News

Read More of Article...

NC- Sex offender was on grounds of the Downtown Middle School, says sheriff's office

This makes no sense, 4 times over 2 weeks with PO knowledge, and no arrest after any of those times. Obviously there was a reasonable explanation to stop arrests. Possibly this guy lives or works near the scholl and passes it on the way and given GPS units have a 15 feet tolerance sets it off. I doubt probation would give a GPS unit to someone who is not smart enough to know the consequences of violating it. Would love to know the outcome of this case if anyone finds out...

2-27-2009 North Carolina:

Elbert Otis Jeffries Jr., a registered sex offender, was arrested and charged with four felonious counts of Sex Offender on Child Premises after it was reported that he had been on the grounds of Downtown Middle School.

A convicted sex offender was arrested yesterday morning for being on the grounds of the Downtown Middle School four times in recent weeks, the Forsyth County Sheriff's Office said.

Elbert Otis Jeffries Jr., 26, of 4142 Old Lexington Road, faces four counts of being a sex offender on school premises. The Sheriff's Office said a probation officer told them Wednesday that Jeffries had been on the school grounds four times between Feb. 12 and Tuesday.

Jeffries is being monitored by a GPS tracking device that shows his location at all times. It was part of his sentence when he was convicted in 2006 of indecent liberties with a minor.

Jeffries is being held at the Forsyth County Jail with bond set at $15,000. ..News Source.. by Staff

Read More of Article...

CA- Judge vows arrest for leaks, threats in molester Lamb housing placement

The public and all of criminal justice advocated for civil commitment schemes, well here is a graduate of the program and he deserves an opportunity to prove himself. He will be monitored during such proving period. SO to those who asked for civil commitment you have to accept all of its provisions, release is one of them.

2-27-2009 California:

Will house child molester without public comment

Threatening arrest for anyone who violates harassment laws or a gag order in the case, an angry judge said Thursday he will place sexually violent predator James Lamb into housing in Monterey County without a public comment period, possibly next month.

Judge Richard Curtis said statutory requirements for public notification had long ago been met by the publicity in the case. He said authorities are looking at a new property for the repeat child molester and may be approved when he next hears the case March 17.

Curtis said he was "quite disturbed" at the threatening and harassing phone calls that prompted a couple to withdraw their offer of a Prunedale property for Lamb's placement earlier this month.

He said he is convinced that someone involved in the case violated the gag order, which he renewed Thursday. Curtis did not say why he believed there had been a violation, but promised if he determines who it was or learns of a future violation by any public employee, official or witness in the case, he will find them in contempt of court.

He appeared to extend the threat to the public, pointing out that it is against the law to threaten or harass someone. He said the owners of the Avery Lane property in Prunedale received 30 to 40 phone calls in a "very short period of time," some of them threatening.

"This is the second time landowners have been intimidated, threatened or harassed by members of the public," Curtis said, referring to an earlier offer in Bradley that was withdrawn. "It's totally inappropriate and I'm upset by that."

The judge said the public is aware that he is required by law to place Lamb in Monterey County, his official county of residence. The next time an appropriate property is identified, he said, there would be no 30-day public comment period.

1,500 residences reviewed

Curtis and the Department of Mental Health have been looking for housing for Lamb since July 2007, when the judge ordered him into the conditional release phase of the state's Sexually Violent Predator Program.

More than 1,500 residences have been reviewed, most rejected by landlords or because they didn't meet restrictions in Jessica's Law, which prohibits offenders from living within 2,000 feet of a school or park.

Lamb, 51, a former Spreckels resident, was committed to the program in 1998 after being convicted of molesting three children.

According to testimony by therapists who treated him at Atascadero State Hospital, he has admitted more than 70 molestations involving dozens of children.

Since his admission to the program in 1998, he has completed the four phases of inpatient treatment and been voluntarily castrated at his own expense. In the conditional release program, he would continue to receive treatment and live under strict rules that include round-the-clock monitoring by a GPS ankle bracelet and a prohibition against driving for at least one year.

Community outrage

Both efforts to place Lamb in the community have been met with outrage by neighboring residents, as well as public officials. Supervisor Lou Calcagno this month said Lamb was not welcome anywhere in his district and could face vigilantism if he were seen there. Sheriff Mike Kanalakis has said he does not approve of Lamb's placement anywhere in the county.

Curtis did not name names on Thursday, but warned if any public official, including members of the Board of Supervisors or the sheriff's department, made out-of-court comments about the case, he would find them in contempt.

Senators against release

Central Coast legislators this month offered little guidance to Curtis. State Senators Jeff Denham and Abel Maldonado said they would prefer Lamb be permanently incarcerated.

"It is unfortunate that these animals ever get out of prison," Denham said. "If I had my way, they would never get out."

Both said they had tried unsuccessfully to pass legislation that would keep predators behind bars or release them to isolated facilities where they could be monitored. Maldonado congratulated Prunedale residents for blocking Lamb's placement there.

"I'm not encouraging anyone to break the law, but I am encouraging them to be vocal, use my office, use their political representatives office to put pressure to keep that person from getting out," he said. "I don't want James Lamb in my neighborhood and I don't want him in any neighborhood."

Homelessness most risky

Assembly members Anna Caballero and Bill Monning said Curtis and the community are faced with the difficult challenge of protecting the community and Lamb's rights at the same time.

Monning said local leaders and their constituents should seize the opportunity to develop acceptable housing options, such as an isolated re-entry facility where sex offenders could be monitored. The worst option, he said, is for the court to be forced to release Lamb as a transient.

"If we don't know where these people are paroled to, we create a greater risk for our communities," he said.

Caballero agreed.

"Voters have stated very clearly where they don't want sex offenders to live, but not where they do think they should live, once they are released from prison," she said. "Until we come to a collective, statewide agreement on where these offenders can live, the predictable outcome is homelessness — the most risky location of all." ..News Source.. by Virginia Hennessey

Read More of Article...

Analysis: How many ways to lose a case?

2-27-2009 Washington DC:

By the time Justice Anthony M. Kennedy asked a government lawyer which of several ways he would prefer the Supreme Court would use to hand him victory, it was plain that Michael Rivera’s chances had all but vanished. But, in fact, the oral argument Monday in Rivera v. Illinois (07-9995) had only been underway less than a minute when doubt arose as to why the Court had agreed to hear his appeal, and deeper doubt set in over how he could ever prevail.

Rivera, serving an 85-year prison sentence for murdering a Chicago youth he mistakenly thought was a member of a rival street gang, sought the Court’s help because a juror his lawyer thought might be biased was put on the jury – despite the lawyer’s supposedly peremptory challenge. But the lawyer speaking for him on Monday — James K. Leven of Chicago — had uttered only four sentences, and a part of a fifth, before Justice Ruth Bader Ginsburg and other Justices whose votes Rivera surely would need laid down a barrage of hostile questions.

The thrust of the questions by Ginsburg and Justices David H. Souter and Stephen G. Breyer was that Leven was trying to constitutionalize a mere violation of state law on trial procedure — and, to make matters worse, was doing so when there may not have been a violation at all. Leven’s whole case was premised on the argument that a wrongly seated jury makes the entire jury “an unlawful adjudicator,” but Ginsburg immediately ridiculed the idea, calling it “quite a stretch.”

Souter promptly made the point that the Justices rely on state courts to interpret state law, and noted that the Illinois Supreme Court had denied there was such a violation. When Breyer soon joined in, his complaint was about the slippery slope he thought Leven was approaching. “There could be a thousand reasons why under state law a particular jury is improperly constituted,” Breyer noted. So, he went on, was Leven trying to make a constitutional issue out of every one of them?

Even before Leven could answer, Justice Kennedy moved in to put heavier emphasis on Breyer’s question, and, when Leven tried to answer that query, Kennedy accused him of “avoiding the question.” Then, accusingly, Kennedy said: “What you are giving us is a sweeping proposition, A, for the constitutional principles that you are setting forth; B, for the supervision and intrusion it would cause federaql courts on the state system.”

There was nothing, from then on, for Leven to do but soldier onward, making his same points amid unrelenting waves of skeptical or even hostile questions from the Court’s moderate-to-liberal members, along with Justice Kennedy.


Justice Ginsburg even questioned Leven’s interpretation of the facts in the case regarding the possible bias of the wrongfully seated juror, and Justice Souter aggressively disputed each point of Leven’s interpretation of the Illinois Supreme Court decision against his client.

Chief Justice John G. Roberts, Jr., began a question to Leven that sounded as if it might be helpful to Rivera, but, by the time Roberts finished the thought, it was not helpful at all. The Chief Justice commented that, once a juror was wrongly suited, it would be impossible to show the harmfulness of that error. That, of course, is an underlying point in Rivera’s case — because a wrongly composed jury cannot be undone or its alternative analyzed, harmlessness cannot be shown, so the conviction should always be overturned. But the Chief Justice finished his question by saying that he was only talking about a minor error in juror seating, like inelibility to serve because of residence.

Illinois’ solicitor general, Michael A. Scodro, had a much easier time of it at the lectern. He had to deal, to be sure, with some nettlesome questions — especially from Justice Antonin Scalia — about whether the Court had jurisdiction to review the state Supreme Court’s reading of federal harmless error doctrine. (The state’s argument does question whether the Court had jurisdiction to hear this case at all, contending that the state court had relied only on state law grounds.) Even so, Scalia’s questions did not appear to be supportive of Rivera’s underlying challenge.

Justice John Paul Stevens, another whose vote Rivera would seem absolutely to need, suggested that, indeed, the Justices might not have jurisdiction and a decision that came out of the case might be no more than “an advisory opinion” — something the Court does not give.

When the argument reached the point that Scodro yielded the final 10 minutes of time to a federal lawyer, Matthew D. Roberts, an assistant to the U.S. Solicitor General, it was not at all clear that the Court needed to hear more against Rivera’s position. The lawyer faced few probing questions, although the Chief Justice, now joined by Justice Ginsburg, again wondered how to judge harmlessness, or not, when a trial had gone ahead with a wrongly seated juror. “There is no way to tell” after the fact whether that seating made a difference, the Chief Justice remarked.

As the assistant to the Solicitor was about to sit down, Kennedy asked the portentous question. “There are any number of alternatives that we can adopt in ruling for your position. If we were to rule for your position, what do you think is the most straightforward rationale?” He gave a satisfactory answer but, the argument having gone as it did, any that he gave would have seemed more than sufficient. ..Source.. by SCOTUS Blog

Read More of Article...

Woman faces life sentence for hiring undercover hit man

2-27-2009 Australia:

A Melbourne court has been told a woman who tried to kill a man charged with molesting her daughter has shown no remorse.

The 32-year-old woman, who cannot be named, was found guilty by a Supreme Court jury of incitement to murder her stepfather.

The trial heard that in 2007 the woman's daughter reported she was sexually assaulted by the man - a complaint was made to police and he was charged.

The court heard the woman said her stepfather must die for what he had done to her daughter, but her plan was uncovered when she hired an undercover policeman posing as a hit man.

At a pre-sentence hearing today the woman's lawyer asked the judge to consider a wholly or partly suspended jail sentence.

But the prosecution said the woman had shown no remorse, and told the court the maximum penalty is life imprisonment.

The hearing will continue at a later date. ..News Source.. by ABC News

Read More of Article...

Sex offender alleges police violent to him

2-27-2009 Canada:

A high-risk convicted sex offender says he thought police were playing a "cruel joke" when they accused him of molesting his girlfriend's eight-year-old son following a day at the Red River Exhibition last summer.

"I was in shock, I thought this was a dream. I didn't do anything to anybody, I know that 100 per cent," Brent Atatise told a judge Thursday as he took the witness stand in his own defence.

Atatise, 30, has pleaded not guilty to sexual assault, saying he's been falsely accused. He also claims several Winnipeg police officers viciously assaulted him in the parking garage at the Public Safety Building following his arrest.

"They opened the door (of the cruiser car) and said 'We got the rapist in the back seat, anyone wanna take a shot at him?'" said Atatise. One officer smashed him in the head with the car door and repeatedly punched him in the face while another hit him in the stomach, he said.

"They just kept calling me an (expletive) skinner, saying I liked to touch little boys. I told them they must be joking, that I didn't rape anybody," said Atatise.

Atatise said he thought he had a good relationship with the alleged victim's mother, whom he met while taking a welding course in the spring of 2008. He said the woman invited him to come with her two kids to the Ex for Aboriginal Day last June and he reluctantly agreed to come along, knowing he was on probation with conditions not to be alone with children.

Atatise said they had a fun "family day" together that ended when the woman ran out of money. They all took the bus home, and he said the woman got mad when he rejected her invitation to get a pizza and all spend the night together. Atatise said he was worried about his court-ordered conditions so he told the woman he wanted to spend the night drinking with friends.

"I was always having to lie when she wanted to bring the children over, or have me come to their place, because of all my conditions," he said. "I know she got mad (that day) and must have thought I was breaking up with her."

It was just hours later that police showed up and said he was under arrest for molesting the little boy.

The victim testified earlier this week, telling court he was molested on three occasions in one day. The boy said Atatise also threatened to kill his entire family if he told anyone what happened inside a teepee and washroom at the Ex, as well as a bathroom at Portage Place Shopping Centre.

The Crown will cross-examine Atatise on Friday morning. ..News Source.. by Mike McIntyre

Read More of Article...

February 26, 2009

MA- At corrections’ cutting edge: Mass. native studies how to handle sex offenders

2-26-2009 Massachusetts:

Raynham — With a string of academic accolades to her credit, Rebecca Jackson could have enjoyed the ivory tower of college life.

Instead, the Raynham, Mass., native entered a field many would have shunned.

Jackson studies and teaches about pedophilia disorders, including criminal forensic evaluation, competency to stand trial and assessing the risk for sex offenders before they are released from prison.

“When I tell people what I do, the reaction I get is distaste,” Jackson, a 1991graduate of Bridgewater-Raynham Regional High School, said in a phone interview from her home outside San Francisco. “But we are trying to balance individual rights with public safety.”

As director of the Forensic Psychology Program at Pacific Graduate School of Psychology in Palo Alto and as Director of Forensic Program at Washington State University in Spokane, Jackson teaches mental health professionals how to safely move sex offenders back into society. She also trains workers at sex offender commitment centers.

As a consultant in Spokane, she helps the Department of Corrections assess the risk of re-offending based on the type of offense committed.

Despite public perceptions, the recidivism rate is only 13 percent, she says.

“There are definitely sex offenders who do not re-offend – most do not re-offend,” she says. “This is why a lot of policies don’t work. We lump sex offenders together.”

For example, her research shows that older offenders tend to be less risky than younger ones and men who abuse boys are more dangerous than those who abuse girls.

“An older man who commits one act of molestation on a young girl is a statistically a lower risk offender,” she says.

The field is moving toward civil commitments, external controls like bracelets and teaching offenders ways to stay out of trouble and live safe and productive lives.

Jackson recalled a man in his late 50s who returned home to his wife after 18 years in prison.

“He has been successfully managing his life for several years now,” she said.

The 2006 “Adam Walsh” Sex Offender Registration and Notification Act has added another layer of protection by making it a federal crime for convicted sexual predators to fail to register as a sex offender and relocate from one state to another.

While some consider her field “worthless, fruitless work,” she says, Jackson firmly believes she is safeguarding the public from those who commit the most heinous crimes.

“I don’t think there’s ever been a society without some outlaws and individuals who break the law or hurt other human beings. But between science and good policy, we can reduce the numbers,” she said.

The daughter of Elaine Jackson of Raynham and the late Jeffrey Jackson, Rebecca Jackson entered the field after earning the highest honors in college and beyond.

She graduated summa cum laude from West Virginia University and was named outstanding doctoral student at the University of North Texas.

She won awards for her clinical psychology residency in public behavioral health and justice policy at the University of Washington School of Medicine.

Most recently, she received the American Psychological Association and the American Psychological Foundation’s Theodore Blau Award for Outstanding Early Career Contributions to Clinical Psychology.

Despite all her scholarly success, Jackson said she was not a high achiever in high school and might not have gone on to college if not for the coaxing of a teacher back at B-R.

“She encouraged me to push my potential. I am very grateful to her for that,” Jackson says of Kathy O’Toole.

Jackson has published 25 articles in professional journals, including Learning Forensic Assessment, the first in a series on International Perspectives on Forensic Mental Health.

She has also conducted workshops in forensic evaluations at the Department of Corrections in California and Nebraska, the El Dorado County Mental Health Department in California and the San Francisco Jail Psychiatric Services and Napa State Hospital. ..News Source.. by Susan Parkou Weinstein

Read More of Article...

OR- Sex offender's mom thinks he's guilty, wants to stab him

BREAKING NEWS

2-26-2009 Oregon:

Darrin Eugene Sanford told his mother in a phone call Wednesday morning that he did not kill 13-year-old Alycia Nipp and was forced to confess, said his mother, Shirley Newman.

But Newman told Sanford, who is expected to face aggravated murder charges, that she did not believe him. The phone went dead after that, Newman said.

The phone call was the first conversation between Newman and her son since his arrest Monday for allegedly stabbing Nipp while trying to rape her. The seventh-grader was taking a shortcut through a field near the abandoned house where Sanford, a homeless sex offender, had been living.

Prosecutors expect to file charges including aggravated murder against Sanford today, said John Fairgrieve, senior deputy prosecuting attorney for Clark County. A probable cause affidavit said Sanford confessed to trying to have sex with Nipp and then stabbing her with an unknown object after she laughed at him.

Sanford's attorney, Mike Foister, did not return a message for comment.

But Clark County sheriff's spokesman Sgt. Scott Schanaker said Sanford's confession was not forced. "He gave his testimony freely and of his own volition," said Schanaker.

Newman said despite her son's claim, she did not believe him.

She said police searched her home, which is less than a mile from where Nipp was killed, and took several of his possessions, including a silver dagger, stained blue jeans and a stained brown sweatshirt.

"I want to take that knife and stab him," she said. "I want him to feel the pain he put on that girl."

Sanford, the youngest of her four children, visited her every day, she said. He would often shower and eat at her house. But they both preferred for him to not live in her home, and he had been staying in an abandoned house that borders the field where Nipp was killed.

On Saturday, Sanford did not come to her home until about 7:30 p.m., she said. He took a shower, stayed a few hours and left.

Newman said her sympathy is with Nipp's mother, not with her son.

"I wish I could give her daughter back, but I know I can't," Newman said. "He's got to pay for what he's done."

She said she plans to visit him only once and will leave him with a picture of herself.

"I will not see him again," she said.

To read how Clark County supervised Darrin Sanford, click here. ..News Source.. by Helen Jung, The Oregonian



Clark County kept tabs on sex offender, Washington says

by Michelle Roberts, The Oregonian

A Washington Department of Corrections official has done a preliminary review and says that Clark County probation officials weren't obligated to notify a Hazel Dell neighborhood that a dangerous sex offender was living in a nearby abandoned house.

The sex offender, Darrin Eugene Sanford, 30, has confessed to killing a 13-year-old girl, Alycia Nipp, on Saturday in an overgrown field near the abandoned house.

"I'm convinced Clark County sheriff's officers did everything they could have," said Stefani Meusborn-Marsh, the corrections field administrator for southwest Washington. "I've done enough of a review of the case to know that."

But if Sanford had been living across the bridge in Multnomah County, policy dictates that neighbors would have been notified, officials said.

"I don't want to speak badly of another agency," said Scott Taylor, director of the Multnomah County Department of Community Justice, "but in that particular case -- because of our policy in Multnomah County -- we would have notified neighbors."

The Clark County prosecutor plans to file formal charges, including aggravated murder, against Sanford today.

Read More of Article...

OR- Oregon court removes man from sex offender list

2-26-2009 Oregon:

PORTLAND, Ore. (AP) — In the first case to interpret a new law on sex abusers, the Oregon Court of Appeals ruled Wednesday that judges can remove offenders from a state registry even if it can't be shown there's a zero risk they will reoffend.

The case involved a Clackamas County man convicted in 1993 of a misdemeanor sex offense against an 11-year-old girl.

_____ was sentenced to three years on probation and ordered to complete a sex offender treatment program.

In 2006, he asked the Clackamas County Circuit Court to remove him from the registry under a revised state law that allows sex offenders convicted of only one misdemeanor to request removal 10 years after completing probation or parole.

The trial judge denied the request despite testimony from a psychologist who said the risk of _____ reoffending was less than 1 percent.

But the appeals court, in an opinion by Judge Jack Landau, ruled the "clear and convincing evidence" standard set by the Legislature to show an offender no longer posed a threat to the public "did not intend to require a sex offender to establish that there was no possibility whatsoever that he or she would reoffend."

Landau also said the language of the statute indicates the request for an order removing the offender from the registry must be granted if the burden of proof required by the standard is met.

"The use of the word 'shall' strongly suggests that the issuance of the order is not a matter of trial court discretion," Landau wrote.

The appeals court noted that _____ had successfully completed three years of sex offender treatment, he was remorseful and law-abiding, and his psychologist testified _____ likely "will never reoffend."

The trial judge relied mostly on a letter from the victim, who said she would suffer lifelong consequences and _____ should not be removed because he had received "less than a slap on the wrist."

But the appeals court said that the victim had presented no evidence to contradict the claim that _____ was rehabilitated and did not pose a threat to public safety.

The court said the Legislature has used the word "rehabilitate" in a number of different contexts in state law, and none suggests it is "an absolute guarantee of future perfection."

The registry is a public record of people convicted of sexual abuse, although the full list is not available online. Those on the list who are considered predatory are on an online list, and their neighbors are notified. ..News Source.. by WILLIAM McCALL




IN THE COURT OF APPEALS OF THE STATE OF OREGON

DAVID LINCOLN PATTERSON,

Plaintiff-Appellant,
v.
JOHN FOOTE, District Attorney,
Defendant-Respondent.

Clackamas County Circuit Court
CV06050055
A133423

Robert R. Selander, Judge.
Argued and submitted on August 13, 2008.
David T. Viuhkola argued the cause and filed the briefs for appellant.
Laura S. Anderson, Senior Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before Landau, Presiding Judge, and Brewer, Chief Judge, and Schuman, Judge.

LANDAU, P. J.

Reversed and remanded with instructions to grant relief.

LANDAU, P. J.

In this case of first impression, petitioner appeals an order denying his petition for relief from the duty to report as a sex offender. The relevant statute requires the court to grant that relief if, among other things, a petitioner who was previously convicted of a single misdemeanor sex offense provides clear and convincing evidence that he has been rehabilitated and no longer constitutes a threat to public safety. Petitioner contends that he provided uncontroverted evidence that he has not reoffended in more than 10 years, that he successfully completed sex offender treatment, and that, in the view of the only expert to testify, his "recidivism risk is virtually nil." According to petitioner, he met his burden. The state responds that, even if the risk of reoffending is less than one percent, that represents some risk of harm and thus a basis for the trial court's finding that defendant has not been rehabilitated or poses a threat to public safety. We conclude that petitioner met his burden and that there is no basis for the trial court's determination that petitioner has not been rehabilitated or poses a threat to public safety. We therefore reverse and remand for entry of an order granting petitioner the relief he requests.

The relevant facts are undisputed. In 1993, petitioner pleaded guilty to a misdemeanor sex offense involving his 11-year-old daughter. He was sentenced to probation; one of his conditions of probation was that he obtain sex offender treatment. Petitioner also was required to register as a sex offender under ORS 181.596 and to make periodic reports as required by that statute.

Petitioner completed the required conditions of probation and was discharged from probation in 1996. In May 2006, he sought an order relieving him of the duty to report as a sex offender. See former ORS 181.600 (2005), renumbered as ORS 181.820 (2007).(1) The trial court held a hearing at which petitioner and a psychologist, Dr. Wollert, testified. Petitioner also offered in evidence a 1996 letter from Wollert to petitioner's probation officer and a 2006 letter from Wollert to petitioner's counsel in the current proceeding. Respondent, the district attorney of the county in which petitioner was residing, offered in evidence a 2006 letter from the victim, addressed "To Whom It May Concern."

Petitioner testified that he had successfully completed three years of sex offender treatment provided by Wollert; that he had paid all fines and fees and had paid for counseling for the victim and other family members; that he was continuing to support the victim financially; that he had no other criminal convictions; that he had complied with the applicable sex offender registration requirements; that he was active in his church; and that he "[v]ery much" regretted committing his offense against the victim.

In his 1996 letter, Wollert informed petitioner's probation officer that petitioner had satisfied all the requirements of the treatment program. In his 2006 letter, Wollert noted that, while participating in treatment, petitioner had shown "much shame and remorse" and was a "very responsive and dedicated client," who fell in "the lowest risk group" of convicted sex offenders. Wollert stated that he believed that petitioner "does not represent a danger to public safety and that his recidivism risk is virtually nil, being less than one percent."

Wollert testified at the hearing that petitioner had participated in a sex offender treatment program for over three years following his conviction. Wollert opined that petitioner was a "very responsive client, very dedicated," that he was a "very active" and "strong" program participant who had completed all the requirements of the program, and that he had had no subsequent law violations other than a speeding ticket. Wollert also testified that individuals in the class of sex offender into which petitioner falls--"familial offender with one victim"--"have a very, very low recidivism rate." As to petitioner specifically, Wollert reiterated that his "risk of recidivism is nil; it's less than 1 percent." When asked whether he firmly believed that petitioner would never reoffend, Wollert responded, "I do."

As noted, the trial court also considered a letter from the victim. In that letter, the victim set out several reasons that, in her view, the court should deny the requested relief. She generally noted the "important issue of reoffending" and the fact that the reporting requirement permits law enforcement agencies to keep track of offenders. She also briefly described the long-term detrimental effects that petitioner's particular actions had had on her physical and psychological well-being. The victim stated her belief that the case had been "grossly mishandled" by the state, including the lack of a victim advocate, her inability to make an impact statement, the fact that her therapist at the time disclosed her communications to her parents, and the fact that petitioner was permitted to return to the family home, resulting in her being placed in foster care. The victim opined that petitioner had received "less than a slap on the wrist" for his offense and should not be relieved from the remaining requirement. She stated that, notwithstanding any "argument about the present, it doesn't change his crime" and the lifelong consequences from which she suffers.

At the conclusion of the hearing, the trial court found that petitioner had not committed any subsequent crimes and that he had successfully completed the court-approved sex offender treatment program. The court concluded that, although Wollert had testified that the possibility of petitioner reoffending was "less than 1 percent or nil," clear and convincing evidence nevertheless was lacking to show that petitioner was rehabilitated and did not pose a threat to the public. The trial court explained that it was "concerned that [Wollert] gives any percentage of the possibility of reoffending, even if it's less than one percent." The court therefore denied relief.

On appeal, petitioner argues that he met his burden to show by clear and convincing evidence that he is rehabilitated and does not pose a threat to public safety and that, accordingly, the trial court erred in denying relief. Petitioner relies in part on Wollert's testimony that there was virtually no chance of his reoffending. He also argues that the trial court misconstrued ORS 181.820. According to petitioner, the plain meanings of the terms "rehabilitate" and "threat" in that statute demonstrate that the legislature did not intend to require a sex offender to establish that there was no possibility whatsoever that he or she would reoffend. Based on what he deems to be the equitable nature of the relief sought, the fact that the legislature imposed a "clear and convincing evidence" standard of proof, and the fact that the legislature allocated the factfinding role to the trial court, petitioner urges us to review the record de novo and reverse the trial court's order.

In regard to this court's standard of review, respondent agrees with petitioner that we construe the meaning ORS 181.820 as a matter of law. Respondent argues, however, that, because the statute establishes a special statutory proceeding, under ORS 19.205(5), ORS 19.415, and Article VII (Amended), section 3, of the Oregon Constitution, we review the trial court's factual findings for "any evidence" supporting the facts at issue. Finally, pointing to the use of the word "satisfied" in ORS 181.820, respondent argues that this court reviews the trial court's decision in the case for an abuse of discretion. Respondent argues that, in light of the nature of the crime, the victim's letter to the court, and the possibility--however small--that petitioner might reoffend, the trial court did not abuse its discretion in determining that petitioner did not qualify for relief.

The appellate courts of this state have not previously reviewed an order entered under former ORS 181.600 (2005) or ORS 181.820. We first consider our standard of review--more precisely, we attempt to determine what standard of review the legislature intended for us to apply. We do so by considering the text and context of the statute; if those features do not disclose the legislature's intent, we consider the statute's legislative history and relevant maxims of statutory construction. See PGE v. Bureau of Labor and Industries, 317 Or 606, 610-12, 859 P2d 1143 (1993).

Again, under ORS 181.820, if the trial court "is satisfied by clear and convincing evidence" that a petitioner has met the required conditions for relief from the reporting requirement, the trial court "shall" enter the relevant order. The use of the word "shall" strongly suggests that the issuance of the order is not a matter of trial court discretion. See Pendleton School Dist. v. State of Oregon, 345 Or 596, 607, ___ P3d ___ (2009) (use of the word "shall" in constitutional provision at issue signifies "a directive or a command that states a requirement"); State v. Langan, 301 Or 1, 10, 718 P2d 719 (1986) (use of word "shall" in statute providing for trial court order setting aside conviction indicated that, if statutory criteria were met, trial court was required to enter the requested order). Moreover, whether the evidence below met the requisite clear and convincing standard of proof as to the relevant preconditions for relief is a legal determination that we review for legal error. Delgado v. Souders, 334 Or 122, 134-35, 46 P3d 729 (2002) (whether a party has met its burden of proof is reviewed as a matter of law). Taken together, those aspects of ORS 181.820 suggest to us that, on review of the trial court's order, we determine as a matter of law whether, on this record, the trial court reached the correct result.

The Supreme Court's decision in Langan is especially instructive in that regard. In that case, the defendant, a tavern owner, had been convicted of promoting gambling, in violation of ORS 165.122. Four years later, he moved for an order setting aside his conviction as provided in ORS 137.225. Under that statute, after a specified time period, a defendant who has "fully complied with and performed the sentence of the court" may apply for such an order. If the trial court "determines that the circumstances and behavior of the applicant from the date of conviction * * * to the date of the hearing on the motion warrant setting aside the conviction, * * * it shall enter an appropriate order." The trial court held a hearing on the defendant's motion, at which the primary issue was whether, subsequent to his conviction, the defendant had acted unlawfully by continuing to sell playing cards to his tavern patrons; according to the state's evidence, a police officer had advised the defendant that that conduct was unlawful, and the defendant had ignored that advice. Based primarily on that evidence, the trial court denied the defendant's motion to set aside his conviction. Langan, 301 Or at 3-4.

On appeal, the Supreme Court noted that it was the defendant's burden to show that he met the criteria set out in the statute. Id. at 5, 10. The Supreme Court also determined that the statutory reference to a defendant's "behavior" was intended to capture primarily a defendant's compliance with criminal laws. Id. at 9-10. The court explained that, consistently with ORS 137.225, if a defendant meets his or her burden to show that he or she had not engaged in any disqualifying behavior, the trial court "shall" enter the order; based on that textual feature of the statute, the court expressly rejected the state's argument that the trial court had "discretion" whether to set aside a conviction regardless of the state of the record. Id. at 7-8, 10. Applying those legal standards, the court determined that, in denying the defendant's motion, the trial court had erred in relying on the state's evidence that the defendant did not accept a police officer's mere "advice" that selling playing cards was an illegal activity. The Supreme Court therefore reversed and remanded for further proceedings. Id. at 10-11.

This case is directly analogous to Langan. As in that case, defendant here had the burden to show that he met the criteria in a statute, in this case, ORS 181.820(3). And, as in Langan, the use of the word "shall" in that statute indicates that, if defendant met that burden, the trial court was required to issue the relevant order.(2)

We turn, then, to the nature of the burden that petitioner was required to meet. Again, under ORS 181.820, petitioner was required to demonstrate by clear and convincing evidence that he is rehabilitated and does not pose a threat to public safety. The "clear and convincing evidence" standard requires evidence of extraordinary persuasiveness--that is, evidence establishing that the truth of the facts in issue is highly probable. State v. M. L. F., 220 Or App 629, 634, 188 P3d 368 (2008).

The question that remains is what the statute requires when it states that a petitioner must prove by clear and convincing evidence that he or she is "rehabilitated" and does not pose a "threat to the safety of the public." The state contends that the statute requires that a petitioner must prove an absolute absence of any possibility that he or she will reoffend. According to the state, any risk, "regardless of how small," precludes granting relief under the statute. We find no such requirement in the statute.

As pertinent here, the verb "rehabilitate" means "to restore to a useful and constructive place in society" and "to put on a proper basis or into a previous good state." Webster's Third New Int'l Dictionary 1914 (unabridged ed 2002). The noun "rehabilitation" means "the process of restoring an individual (as a convict * * *) to a useful and constructive place in society through some form of * * * correctional or therapeutic retraining." Id. Nothing in the ordinary meaning of the term suggests that, to be "rehabilitated," an individual must establish that he or she is now absolutely free of any risk--however small--of future error.

It is worth noting that "rehabilitate" is a term that the legislature has employed in a number of different contexts. See ORS 135.891 (setting out requirements for diversions, including "participation in programs offering medical, educational, vocational, social and psychological services, corrective and preventive guidance and other rehabilitative services"); ORS 135.980 (pertaining to the maintenance of a directory of "rehabilitative programs," defined in part as programs designed to treat alcohol and drug abuse, to prevent criminal sexual behavior, or to modify a propensity to commit crimes, among other purposes); ORS 421.155 (persons sentenced as dangerous offenders "shall be given such physical, mental and psychiatric observation and treatment as is available and may tend to rehabilitate such person"); ORS 420A.005 (pertaining to youth offenders; defining "cognitive restructuring" as "any rehabilitation process that redirects the thinking of an offender into more socially acceptable directions and that is generally accepted by rehabilitation professionals" and defining "reformation plan" in part as "a plan for medical, educational, vocational, social and psychological services and training as well as other rehabilitative services designed to reduce future criminal and antisocial conduct").

In none of those contexts is "rehabilitate" used in the sense that the state suggests in this case, that is, an absolute guarantee of future perfection. Cf., e.g., In re Knappenberger, 344 Or 559, 577, 186 P3d 272 (2008) (term "rehabilitation" refers to steps taken to prevent recurrence of unlawful conduct); In re Covington, 334 Or 376, 382-87, 50 P3d 233 (2002) (applicant for admission to state bar who had history of drug and alcohol abuse failed to demonstrate by clear and convincing evidence that he was rehabilitated; evidence that he had taken responsibility for his prior conduct and had completed various treatment programs was outweighed by psychologist's opinion that applicant nevertheless remained at risk for relapse); State ex rel SOSCF v. Stillman, 333 Or 135, 141, 36 P3d 490 (2001) (in context of proceeding to terminate parental rights, evidence that a parent "had made progress in rehabilitation" included evidence that he had completed a drug treatment program and various classes, had modified his resistant attitude, had taken responsibility for the consequences of his unlawful behavior, and had engaged in various constructive activities); State v. Dillon, 292 Or 172, 179, 637 P3d 602 (1981) (restitution is "intended to serve rehabilitative and deterrent purposes by causing a defendant to appreciate the relationship between his criminal activity and the damage suffered by the victim").

The requirement that the petitioner prove that he or she no longer poses a "threat to the safety of the public" likewise provides no support for the state's insistence upon proof of a complete and total absence of a risk of reoffense. The term "threat" ordinarily refers to "an indication of something impending and usu. undesirable or unpleasant." Webster's at 2382 (emphasis added). The word "impending," in turn, means something "that is about to occur : imminent." Id. at 1132. Likewise, the verb "impend" means "to threaten from near at hand or as in the immediate future * * * to be imminent : give promise of occurring in the immediate future." Id. A "threat," in other words, ordinarily refers to something that is likely to occur, and sooner rather than later. See, e.g., State v. Hall, 327 Or 568, 573, 966 P2d 208 (1998) (ordinary dictionary definition of "threat" implies immediacy). In no way does the legislature's use of the term in ORS 181.820 support the suggestion that any risk of reoffense, however remote, is sufficient to defeat a petitioner's request for relief under the statute.

Thus, consistently with the applicable standard of proof and the plain meaning of the terms "rehabilitated" and "threat" to public safety, we understand ORS 181.820 to require a petitioner for relief from the sex offender reporting requirement to demonstrate by clear and convincing evidence that he or she has successfully completed programs or services designed to ameliorate his or her previous behavioral and psychological patterns and to prevent a recurrence of unlawful conduct, and that, as a result, the petitioner does not present a threat, that is, he or she is not likely to reoffend.

On this record, we conclude that petitioner met his burden. As we have noted, there was evidence at the hearing that petitioner had successfully completed three years of sex offender treatment, that he was remorseful regarding his crime, and that he currently was leading a law-abiding and socially constructive life. Petitioner's witness, Wollert, testified that petitioner's "risk of recidivism is nil; it's less than 1 percent." When asked whether he "firmly believe[d]" that petitioner will never reoffend, Wollert responded, "I do."

Moreover, there is a complete absence of evidence to the contrary, either factual or in the form of an opinion. The only evidence that the state offered was the victim's letter. The problem is that the letter provided no information pertinent to the ultimate criteria for obtaining relief, viz., that the petitioner is rehabilitated and does not pose a threat to public safety. By its terms, the letter addressed the effects of petitioner's offense on the victim, as well as the effects of such offenses on victims generally. It did not purport to provide any information about petitioner's efforts to rehabilitate himself or his present circumstances; indeed, it expressly disavowed the necessity for doing so.

We therefore conclude that the trial court erred in determining that petitioner had failed to meet his burden to show, by clear and convincing evidence, that he was rehabilitated and did not pose a threat to public safety. It follows that the trial court erred in denying the requested relief. We therefore reverse and remand with instructions to enter an order relieving petitioner of the duty to report as a sex offender.

Reversed and remanded with instructions to grant relief.



--------------------------------------------------------------------------------



1. Former ORS 181.600 (2005), renumbered as ORS 181.820 (2007), provides:

"(1)(a) No sooner than 10 years after termination of supervision on probation, conditional release, parole or post-prison supervision, a person required to report under ORS 181.595, 181.596 or 181.597 may file a petition in the circuit court of the county in which the person resides for an order relieving the person of the duty to report if:

"(A) The person has only one conviction for, or juvenile court finding of jurisdiction based on, a sex crime;

"(B) The sex crime was a misdemeanor or Class C felony or, if committed in another state, would have been a misdemeanor or Class C felony if committed in this state; and

"(C) The person has not been determined to be a predatory sex offender as described in ORS 181.585.

"(b) The district attorney of the county shall be named and served as the respondent in the petition.

"(2) The court shall hold a hearing on the petition. In determining whether to grant the relief requested, the court shall consider:

"(a) The nature of the offense that required reporting;

"(b) The age and number of victims;

"(c) The degree of violence involved in the offense;

"(d) Other criminal and relevant noncriminal behavior of the petitioner both before and after the conviction that required reporting;

"(e) The period of time during which the petitioner has not reoffended;

"(f) Whether the petitioner has successfully completed a court-approved sex offender treatment program; and

"(g) Any other relevant factors.

"(3) If the court is satisfied by clear and convincing evidence that the petitioner is rehabilitated and that the petitioner does not pose a threat to the safety of the public, the court shall enter an order relieving the petitioner of the duty to report. When the court enters an order under this subsection, the petitioner shall send a certified copy of the court order to the Department of State Police."

For convenience, in the remainder of this opinion we refer to the statute by its current number.

--------------------------------------------------------------------------------

2. In interesting contrast to Langan is the Supreme Court's decision in State v. Langley, 314 Or 247, 839 P2d 692 (1992), adh'd to on recons, 318 Or 28, 861 P2d 1012 (1993). That case involved the review of a trial court's denial of a motion to change venue under ORS 131.355, which provides that the court "shall" order a change of venue, "if the court is satisfied" that the potential for prejudice interferes with the right of the defendant to obtain a fair and impartial trial. The court stated that the standard of review of a decision under that statute was abuse of discretion. 314 Or at 260. There was no discussion, only a citation to State v. Little, 249 Or 297, 312, 431 P2d 810, cert den, 390 US 955 (1968), a case decided under an earlier version of the statute, which provided that a trial court "may" order a change of venue in certain circumstances. Former ORS 131.420 (1967). In our view, this case is much more like Langan than Langley. This case--like Langan and unlike Langley--involves review of a trial court's determination whether petitioner met a specified burden of proof, which is always a question of law. In any event, the trial court's decision in this case was expressly based not on an exercise of discretion, but on the court's determination that ORS 181.820 requires a petitioner to demonstrate an absolute absence of any risk of future harm. That is a question of law. ..Source..

Read More of Article...

February 25, 2009

WA- Can today's sex offender laws, in part, be causing recidivism and deaths...

Our heart goes out to the victim's family. The words of the offender's mother need to be given serious thought. Are there people (here a former sex offender now homeless) in society who, when pushed too far (here by sex offender laws), who snap and no longer care about societal norms, and go on to commit henious acts? Hopefully this is an isolated case and not a sign of the future. See also the mother's video.

2-25-2009 Washington:

Alleged Killer's Mom: He Wants To Be Jailed

VANCOUVER, Wash. -- The mother of a Vancouver man who’s accused of killing a 13-year-old girl said she thinks her son wanted to go back to prison.

On Monday, police arrested 30-year-old Darrin Sanford in connection with the killing of Alycia Nipp.

The girl’s stepfather found her body in a field off of Northeast 78th Street early Sunday morning. Experts said she was stabbed to death.

Police said when they questioned Sanford he admitted to killing the teen after he tried to have sex with her.

Sanford’s mother, Shirley Newman, lives around the corner from where Nipp’s body was found. She said Wednesday that she's overwhelmed with sadness for the girl’s family.

She said she is in complete shock just thinking about the charges against her son.

“He promised me. He promised me he’d never hurt a child,” Newman said.

Police found Nipp's body in a field where Sanford was camping. He often stopped by his mom’s house, so detectives served a search warrant there and took clothing and a knife as evidence.

Sanford is homeless, a registered sex offender and just out of prison. His mother said she thinks he may have killed the girl to get back in.

“He knows he screws up. He knows he doesn’t have a life in society. So why keep setting him loose?” Newman (Offender's Mother) said.


She said Sanford had a rough childhood and was in and out of foster homes where he was abused. But she said that is no consolation for the victim’s family.

“I’m very sorry. My pain is with you. I want to take that pain away and hold you in my arms and take that pain away from you,” Newman said.

Newman said her thoughts and prayers are with Nipp’s family and she said she knows her son will be punished.

“He took your daughter from you. God will take my son from me,” Newman said.

Darrin Sanford is locked up in the Clark County Jail without bail. His next court appearance will be on March 11. ..News Source.. by Fox12 News

Read More of Article...

IN- Homeless advocates ask for help with shelter

2-25-2009 Indiana:

A battered national economy hit home with the Shelby County Board of Commissioners Monday as the board was asked to help shelter a heavy new load of first-time homeless persons in the county.

Aid to the homeless in Shelby County is projected to cost Human Services Inc. $17,300 in 2009 - $12,500 for hotel rooms and $4,800 for homeless placement administration.

Sandra Hall and Debbie DeBord of Human Services approached the commissioners Monday and asked for $17,300 to aid homeless families and transients in 2009 with emergency lodging and other expenses.

Hall, county director of Human Services, said the need for a homeless shelter in Shelbyville has become acute because of several factors, including evictions, foreclosures and condemned homes.

She said there were 427 homeless people, including 208 children, seeking housing in Shelby County in 2008. That's up 82 percent from the 235 homeless people Human Services assisted in 2007. Local police also often call the agency about transients, Hall said.

"Most of the people I see are being evicted, or a lot of guys are going to jail, so you've got a lot of homeless women with children," Hall told the commissioners, "and lots of 18-year-olds being kicked out by their parents."

Shelbyville's Knights Inn offers Human Services a $25 per night discounted rate to house clients, and there's also a homeless shelter in Greenfield, where Shelby County's homeless are taken for temporary shelter, Hall said.

But Hall said a better option is to seek community support for a Shelbyville homeless shelter. She said she has asked about a dozen Shelby County business representatives and several social service agencies to help with a homeless shelter.

"With the needs that we've seen, it's an ever-increasing problem," Hall said. "We've had two people that lost everything at the (Indiana Live! Casino), and they're trying to make it home. More than anything else, I would just like to make a plea to the commissioners. There are a lot of people out there hurting."

Hall said a Shelbyville homeless shelter can be staffed by Shelby County Community Support and Human Services staff. Its purpose would be to provide a variety of training to the homeless and move them from homelessness to self-sufficiency.

The training would include educating the homeless on job training, budgeting, resume writing, parenting, anger management, maintaining employment, acquiring a General Education Development diploma, goal setting, renters' rights and car ownership.

"The benefits would be having a population that is more self-sufficient and moving away from public assistance," said Hall's written proposal to the commissioners. "The true key to doing this is education and community support and to serve as a bridge from poverty to self-sufficiency."

Hall said grant money could be utilized to purchase a building for a shelter and fix it up, but she said the month-to-month operational costs are the problem.

"What we're looking for is the commitment to move forward to make sure the funds are there to staff the facility with people who can conduct case management with the families in need," said DeBord, executive director of Human Services Inc. "We're not in business to give handouts ... but to get them back on track to lead productive lives themselves. The need continues to grow. We're seeing many more evictions and foreclosures, and we're working to try and take care of the immediate need of placement, as well as work with them to ensure that they have the knowledge and resources to help make their lives better."

Human Services, one of 24 community action agencies in Indiana, is a nonprofit that serves six central Indiana counties, including Shelby County, with an $11 million annual budget.

Shelby County Board of Commissioners President Tony Newton said the commissioners would check the county's poor relief fund and see if any of the money can be allocated to Human Services.

"I know we have a little money that we can help out a little bit," Newton said. "We will check into that and see about helping you out some and get back to you in a week or so." ..News Source.. by Jeff Tucker
Staff writer

Read More of Article...

NY- Sex offender residency laws are ineffective

2-25-2009 New York:

Sunday's article about the court ruling holding that New York state law pre-empts local sex offender residency laws left out a number of very important points. First, the public safety rationale for the local laws is at best questionable.

According to the state Division of Criminal Justice Services, most sex assaults are committed by persons who have no prior sex offense convictions. Since only those who have been convicted are on the state sex offender registry, most who commit sex offenses are not subject to any residency restrictions.

Many if not most sex offenses are committed against adults, not children, who are often used as the main justification for these laws.

In addition, the federal Center for Sex Offender Management notes that the overwhelming majority of sexual assaults against minors are committed by family members, relatives, friends, baby-sitters or others known to the child or family.

Again, no residency law will protect against assaults committed by those kinds of offenders, who often live in the very same household as the victim.

In Iowa, prosecutors are now calling for a repeal of a state residency restriction law. They criticize such laws because, among other things, "research shows that there is no correlation between residency restrictions and reducing sex offenses against children or improving the safety of children." The Iowa prosecutors also note that "law enforcement has observed that the residency restriction is causing offenders to become homeless, to change residences without notifying authorities of their new locations, to register false addresses or to simply disappear."

When offenders fail to maintain proper registration as a direct or indirect result of residency restrictions laws, such as those recently passed in Tully and previously enacted in Jordan, Cicero, Cayuga County and Auburn, no one is truly safer. Before spending the taxpayers' time and money on ineffective measures such as these residency laws, our local elected officials should first educate themselves on the facts and not just react to undifferentiated, hysterical fear that does not in fact protect our children. ..News Source.. by Michael Hungerford

Read More of Article...

IL- Cops have tough time tracking homeless sex offenders

2-25-2009 Illinois:

MURPHYSBORO - Sex offenders in Illinois are supposed to register their whereabouts, but police have a hard time keeping track of the homeless ones.

Recently, one sex offender in Murphysboro had registered his address with the Jackson County Sheriff's Department as a bridge over Illinois 13.

The man was arrested after exposing himself to walkers on Lake Murphysboro Road. For now, he is residing in the Jackson County Jail in Murphysboro.

"We can't really keep good track of them," said Sgt. Dave Nichols with the sheriff's department. "This guy was under a bridge and then in a restroom at a park. We then had reports he was in the woods. If they are wandering around from place to place, we can't keep track of them very well."

Nichols said the reason for having sex offenders register their address is to keep closer tabs on their whereabouts for public safety purposes.

Having offenders living in public places, he noted, makes keeping the public safe and keeping offenders tracked all the more difficult.

In 1986, a law was passed that stated only a person who had been convicted more than once of a sex crime could be considered a sex offender. That law was amended in 1993 to include anyone convicted of a sexual crime.

Several other amendments were made to the law before 1997, when provisions were added to spell out the process for proper sex offender registration. Those procedures include the requirement for sex offenders to register their current address within 10 days of release from law enforcement custody.

In July 1999, the law was amended again to require offenders to continue registration of current addresses for the remainder of their lives.

Nichols said the problem comes with sex offenders who are required to register but no do have a permanent address or are homeless.

The law requires offenders who have no fixed address to register every 7 days for each location they have stayed. In many cases, police said these locations include public parks, wooded areas, and bridge underpasses.

Out of about fifteen Southern Illinois counties surveyed, only three showed sex offenders registered as homeless.

Six offenders in Jackson County are tagged as homeless, one in Saline County, and one in Jefferson County. Jefferson County Sheriff Roger Mulch said he hasn't experienced any problems with homeless offenders providing public locations as residency.

He sees a greater problem in dealing with transient offenders who don't re-register.

"We have issues with people who are transient and try and list this area as their home address and it is not," he said. "As a matter of fact, we've followed the sex offenders to Florida and Texas and put those authorities on alert and been successful in making arrests." ..News Source.. by Tara Fasol, The Southern

Read More of Article...