Ruling clouds sex-offender registry

1-8-2010 Indiana:

Work is hard to find for Shane Call these days.

He still sells cleaning and hygiene products out of his home, but gone are the days when he would hit nearby farmers markets and hawk his goods and generate a nice supply of cash. After someone found his photo on the Indiana Sex and Violent Offender Registry along with the words “child molesting,” he was no longer welcome.

“It’s really, really affected my life in the past five years,” said Call, who claims he was wrongly convicted by a jury of child molesting in 1991 and had to appear on the state sex offender registry after it was created in 1994. “Before I was on the list, I hated the fact I was accused of that crime, but as soon as I got on the list, things got hard.”

A ruling by the Indiana Supreme Court last year, though, found that Richard P. Wallace, a man convicted of child molesting in 1989, no longer had to register with the state as a sex offender because he committed his crime before the law that created the registry was enacted.

That ruling has thrown the state and local sex offender registries into disarray.

Allen County officials say that like Wallace, Call is no longer required to register as a sex offender. His name and face have been scrubbed from the Allen County sheriff’s online registry. Officials with the Indiana Department of Correction, though, are refusing to erase any names from the state’s official registry without a court order.

The Allen County registry is supposed to be an offshoot of the state registry, something the sheriff’s department created as a way for local residents to search using the sheriff’s Web site. Now, though, the registries do not match.

At issue are different interpretations of the state high court’s ruling: Officials with the Indiana Department of Correction – which keeps the state’s official registry – believe the ruling applies only to Richard P. Wallace. Allen County police, prosecutors and local judges have determined the ruling applies to everyone.

Cpl. Jeff Shimkus of the Allen County Sheriff’s Department is part of the agency’s Sex Offender Registration and Notification Team. As the officer charged with enforcing the registry laws, Shimkus said more trouble may be ahead.

The situation opens the door for each county to interpret the ruling differently, throwing off uniformity across the state at a time when the state’s goal, in order to comply with federal laws, was to be more standardized regarding sex offenders, Shimkus said.

“It’s going to cause problems with the state site because its accuracy can’t be guaranteed,” Shimkus said.

‘A nightmare’

Sometime after the court’s ruling on the Wallace case last year, officials with the Allen County Prosecutor’s Office met with officials from the Allen County Sheriff’s Department to decide what the decision actually meant, Shimkus said.

The consensus was that the names of offenders who committed crimes before the creation of the registry had to come off the local list.

Also removed were the names of people who had committed lesser crimes that previously did not require registration.

For instance, between 1994 and 1997, people convicted of rape were required to register only if the victim was younger than 18. Someone who raped an adult in 1995 would not have been required to register. But laws were later amended to require all convicted rapists to register as sex offenders.

Now, people convicted of rape before the law was amended no longer appear on the Allen County sex offender registry, local officials said.

“We don’t have to like it, but that’s what the law says,” said Shimkus of the decision.

For nearly four months, Shimkus’ team, including himself, Cpl. Michael Smothermon and Crystal Barker, pored over 625 files of sex offenders. By the time they were done removing names, 375 remained on the registry.

“It was a nightmare,” Shimkus said of the work.

Some other Indiana sheriff’s departments are falling in line with what Allen County is doing. Officials with the Kosciusko County Sheriff’s Department have been combing sex offender files in their registry but have yet to find any offenders who are affected by the Wallace ruling, according to department spokesman Sgt. Chad Hill.

Other departments, like the DeKalb County Sheriff’s Department, are not removing any names unless given a court order, much like the Indiana Department of Correction.

“Our role is to determine who has to register,” said Brent Myers, director of registration and victims services for the Indiana Department of Correction. “Whether or not local sheriffs are enforcing who has to register, that’s something they have to talk about with their legal counsel.

“Unfortunately, the (Wallace) decision, like a lot of decisions, is very complicated, and there’s not a one-size-fits-all option.”

The DOC’s view

Like the meeting in Allen County, officials with the Department of Correction, the Indiana Attorney General’s Office and the Indiana Prosecuting Attorneys Council met after the Wallace decision was passed down.

But the consensus was different from the Allen County interpretation.

“The Supreme Court did not order us to review every individual; it referred to only Wallace,” Myers said.

The feeling after the meeting with the attorney general was that offenders who thought they should be off the registry because of the Wallace decision should take it up with the local courts, Myers said. There, an impartial review could be done.

If the DOC receives a court order to remove a name from the list, then that name will be removed, Myers said. So far, the department has received fewer than 70 such orders from local judges.

Allen Superior Court Judge Fran Gull said the criminal division has been inundated with requests to remove sex offenders from the state’s registry, including requests from offenders who were never prosecuted in Allen County.

And Gull has also seen requests from out-of-state offenders or even federal offenders wondering how, or whether, the changes apply to them.

“I don’t know what the status of the law is in other states,” Gull said. “Hell, I don’t know the status of the law in the state of Indiana. It changes all the time.”

As they work through the petitions that fall within local jurisdiction, Gull said they are strictly applying the statute. If the offenders committed their crimes before the registry was in effect, then their names are off the list.

And like Shimkus, Gull believes the confusion could increase.

“I knew it was going to be bad,” she said. “And I don’t think it is as bad as it is going to get.”

Future problems could include offenders not realizing they are eligible to be removed from the registry. The DOC is not doing anything to help, Gull said.

A written request

Call sent a handwritten letter to Allen Superior Court on Dec. 3.

In it, he talked about how difficult it has been to support his wife and 13-year-old son since being put on the list. He noted that he has not been in any trouble since his conviction and reasserted his innocence. Call says he was framed.

“Not everybody who pleads guilty is guilty,” said Call’s wife, Jennifer Call, adding that her husband’s past is a dark secret that’s hard to talk about with others. “Everyone who has known him has said, ‘I can’t believe that about your husband.’ ”

Call didn’t know what to expect after sending the letter, but Thursday he got his validation: a letter of response, telling him the judge agreed with him.

He’d soon be off the state registry. ..Source.. Jeff Wiehe and Rebecca S. Green