2-8-2010 Oregon:
A lawyer fights for a young man he says was wrongly prosecuted
A small-town Oregon lawyer remains so outraged over what prosecutors did to a Central Oregon teenager in 2006 that he intends to go all the way to the U.S. Supreme Court to seek redress.
For now, University of Oregon Law School graduate Steve Richkind, aided by several current students at the school, is asking the 9th Circuit U.S. Court of Appeals to allow him to press a $3.5 million civil rights lawsuit against state prosecutors on behalf of Richard Lee Simmons.
Simmons is now 21 and living in Texas with his 30-year-old partner and their year-old child. But as an 18-year-old resident of tiny Antelope, Ore., he was prosecuted, convicted and jailed on felony sexual abuse charges arising from a consensual relationship with his high school girlfriend, who was three years younger.
In the eyes of some, such charges are themselves an injustice. Activists across the country are pushing to exempt such cases from felony status.
But for Simmons, getting charged, jailed and publicly labeled a sex offender for such behavior was particularly egregious, Richkind says, because a Jefferson County grand jury had decided it was not a crime.
“Grossest negligence and incompetence”
The panel of citizens, after hearing the state’s evidence against Simmons, returned a “no true bill” rather than an indictment. But, in an error chronicled in publications from Oregon newspapers to the American Bar Association Journal, nobody read the grand jury’s verdict. Everyone from the prosecutor to the judge to Simmons’ own defense attorney assumed he had been indicted — and proceeded accordingly.
After a grand juror alerted them to the error, Simmons’ suit alleges, the judge, prosecutor and defense attorney privately agreed on this remedy: The judge would declare the felony convictions “a legal nullity,” and the district attorney’s office would file new, misdemeanor sex charges against Simmons.
To botch the first prosecution and follow it with a second over the same conduct constitutes double jeopardy, “shocks the conscience” and “violates a universal sense of justice,” Richkind argues.
Public critics of Simmons’ prosecutions have ranged from newspaper editorial writers to former Oregon U.S. Attorney Charles Turner, who calls the bungled first prosecution an example of “the grossest negligence and incompetence” and the subsequent charges “a terrible exercise of prosecutorial discretion.”
The state Department of Justice is defending the six county and state prosecutors who oversaw one or both of the prosecutions. State lawyers have until Feb. 24 to file a response to Richkind’s 9th Circuit appeals brief.
Tony Green, spokesman for Oregon Attorney General John Kroger, declined last week to discuss details.
“Our general principle is that we do our talking in court,” he said. “What is perhaps obvious is that we have been successful at every level at which this case has been heard.”
A Jefferson County Circuit Court judge and the Oregon Supreme Court already rejected a state court civil suit making the same claims. Likewise, a U.S. District Court judge in Portland dismissed Simmons’ suit in the first federal court level. Richkind is pressing ahead.
First federal appeal
It’s a daunting task, according to constitutional scholars and experienced appellate lawyers — particularly for a solo practitioner with no federal court experience.
After graduating from the UO Law School in 1987, Richkind set up a law practice in the same town at the foot of Mount Hood where he graduated from high school. In Sandy, he has specialized in family law, mediation and criminal defense, but took on Simmons’ case at the request of a law school classmate in Jefferson County.
“Prior to this case, I had never filed any action in federal district court or the court of appeals,” he said. “It was a leap of courage for me, because I was so sure that the Constitution was trampled on by what happened to Mr. Simmons.”
Richkind has a steep hill to climb, said Rankin Johnson, a Portland criminal appellate lawyer.
“But this case is also an outrageous enough injustice that it looks like it’s worth fighting over,” he said.
Richkind looked every bit the small-town lawyer when he appeared before Lane County Circuit Judge Karsten Rasmussen on Simmons’ state criminal case early last year. (Rasmussen brokered a settlement of that case after Jefferson County judges withdrew because of their court’s role in the first prosecution.)
In contrast to the polished manner and sleek suits of most litigators, Richkind had an outraged air and the slightly rumpled look of an absent-minded professor.
The latter attribute torpedoed his 2008 bid for an Oregon House seat: He had no candidate statement in the Oregon Voter’s Pamphlet because he missed the submission deadline.
“Vindictive sham” alleged
In a brief filed with the 9th Circuit late last year, Richkind argues that Jefferson County officials violated Simmons’ federal due process rights by prosecuting and jailing him “illegally” the first time despite the grand jury’s decision not to indict him.
The officials further violated those rights, Richkind alleges, by “conspiring” to go forward with a second prosecution for the sexual contact, this time filing misdemeanor charges.
The suit calls the latter prosecution a “vindictive sham” designed to “justify and cover up the illegal first prosecution,” thus protecting the state from embarrassment and liability.
And it alleges that the officials violated Simmons’ state and U.S. Fifth Amendment protections against double jeopardy in the second prosecution for misdemeanor offenses that were “lesser and included” versions of the charges in the first case.
He urges the 9th Circuit to overrule a federal district court judge’s dismissal of the case. In that decision, U.S. District Court Judge Michael Mosman granted a state Department of Justice motion to dismiss the case.
Department of Justice attorney Leonard Williamson had argued that Simmons was not subjected to double jeopardy because the first prosecution became a “void act” and because the charges filed in the second case were different and arose from different incidents. U.S. courts have upheld the right of prosecutors to file misdemeanor charges after a grand jury “not true bill” on felony crime arising from the same episode, he wrote.
Williamson noted that the 9th Circuit has previously upheld prosecutorial immunity even when a prosecutor knowingly used false testimony at trial.
That precedent reflects the “fundamental and important” public interest in prosecutors being free to act on behalf of the public without fear of legal reprisal.
Johnson, the Portland appellate defense lawyer, considers that a flaw in our legal system.
He doesn’t advocate prosecutors being held personally responsible, but said wrongfully prosecuted defendants deserve some kind of government compensation.
“If a government official makes a mistake and a citizen suffers as a result, the citizen should come out ahead,” he said.
Defense attorney settled
The suit now targets six officials: Jefferson County District Attorney Peter Deuel and Deputy District Attorney Steven Leriche; state Attorney General John Kroger and assistant attorneys general Stephanie Tuttle and Darin Tweedt.
Jennifer Kimble, Simmons’ court-appointed attorney in the first prosecution, originally was a defendant, as well, but was removed from the case after reaching a confidential settlement with Simmons.
But Kimble admitted publicly that “none of us did our job” soon after officials learned that there had been no grand jury indictment in the first case. She also gave Simmons written notice that he might have a claim against her and others for their failure to read the jury’s verdict, Richkind said.
Turner, Oregon’s U.S. attorney from 1982 to 1993, has publicly criticized both prosecutions of Simmons, but particularly the latter.
“When the grand jury speaks, that’s the end of the matter, as far as I’m concerned,” he said.
Turner said he does not buy the argument that the offenses in the second prosecution were different incidents.
“They may have picked different days of the month,” he said, “but I know (Jefferson County prosecutors) didn’t just present the evidence of the days in question to the jury, they presented the whole ball of wax. To me, the grand jury was speaking and saying this is not a matter worthy of prosecution. If they’d presented the incidents from the second case to the grand jury, they would have had another no true bill.”
Law students pitch in
Among Richkind’s arguments to the 9th Circuit is a claim that prosecutorial immunity does not apply to such nondiscretionary tasks as the duty to read a grand jury indictment.
That argument could raise an interesting legal question, Lewis and Clark Law School professor Susan Mandiberg said. The criminal law and federal court professor agreed to speak generally about the immunity defense.
“Prosecutors do have absolute immunity for prosecutorial decisions, but not for administrative decisions,” she said. “The question is, where is the line drawn?”
That legal question also interested Andrew Kraushaar, a third-year UO law student who hopes to practice criminal or international law. Last May, he volunteered to help Richkind with the appeal.
With fellow law students Evan Wickersham and Ryan Olds, Kraushaar helped Richkind research, prepare, and electronically file the 9th Circuit brief.
“You think about the U.S. as a bastion of Constitutional democracy, but this poor, socio-economically disadvantaged kid who doesn’t really know his rights just gets kind of beat around by the system,” Kraushaar said.
He added that he could understand the human error that led prosecutor, judge and defense attorney to overlook the “no true bill.”
“The second prosecution is where it gets egregious, when all the players get together behind the scenes and agree to declare a judicial nullity,” he said. “But it did happen. David Lee Simmons served 30 days in jail and also was labeled a sex offender.” ..Source.. Karen McCowan
February 8, 2010
PURSUIT OF JUSTICE
November 4, 2009
MI- State appeals court limits sex offender registry
Read the decision:
11-4-2009 Michigan:
In what may be an important precedent, the Michigan Court of Appeals has ruled that a man arrested for a so-called “Romeo and Juliet” relationship cannot be listed on the state’s sex offender registry because doing so would constitute cruel and unusual punishment.
The defendant, Robert Dipiazza, was arrested and convicted of having a consensual sexual relationship with a girl who was nearly 15 when he had just turned 18. The girl’s parents knew of and approved of the relationship, but Dipiazza was nonetheless charged after one of the girl’s teachers turned him in to police after she found out about the relationship.
The law under which Dipiazza was convicted allowed for youthful offenders to complete a probationary period and then have the offense wiped from their record without a conviction. He completed that probation without incident and in 2005, the charges were dismissed without conviction. Still, he was required then to go on to the state’s registered sex offender list because of an arbitrary deadline in a state law governing the sex offender list.
The Michigan Sex Offenders Registration Act was amended in 2004 to the effect that for those convicted as youthful offenders, only those who failed to complete the probationary period had to be put on the registry. But Dipiazza was convicted on Aug. 29 of that year; had he been convicted a mere five weeks later, he would not have been placed on the registry because he completed the probation and the charges and conviction were then dismissed.
The trial court ruled that being required to go on the sex offender list did not constitute cruel and unusual punishment because the registry requirement is not punishment at all. The court did, however, reduce the amount of time the defendant had to be on the list from 25 years to ten years. The appeals court overturned that ruling, agreeing with defendant that the law, as applied in this particular circumstance, constituted cruel and unusual punishment and ordering the trial court to have him removed from the sex offender registry.
The court ruled: Here, the circumstances of the offense are not very grave. Defendant was 18 years old and in a consensual sexual relationship with a teen who was almost 15 years old. The teen’s parents knew of the relationship and condoned it. This teen is the same person defendant married five years later. The gravity of the offense does not change regardless of the date on which the assignment to youthful trainee status occurred.
The penalty in this case, however, has been harsh. Defendant is being required to register as a sex offender for ten years. He receives the social stigma of being labeled as a sex offender and the social stigma of being “convicted” of a crime even though he successfully completed his status as youthful trainee and the court dismissed the proceedings. As a result of registering as a sex offender, defendant has been unable to find employment and, in fact, lost two jobs after it was discovered that his name is on the sex offender registry. He is depressed and, although he finally married Trowbridge, the opportunity to marry and pursue happiness was withheld from him because of his inability to find employment as a result of being labeled a convicted sex offender. Given the circumstances of this case, the offense that defendant committed was not very grave, but the penalty has been very harsh.
With regard to a comparison of the penalty to penalties for other crimes in this state, defendant would not have had to register as a sex offender had he been assigned to youthful trainee status approximately one month later than he was. Defendant is required to register as a sex offender along with rapists and pedophiles. The PSOR does not provide a description of an offender’s offense. Thus, individuals viewing the PSOR are unable to determine whether a person who is registered is a rapist, a pedophile, or just a person who engaged in consensual sexual activity with a teen…
Also, it is abundantly clear that there is no goal of rehabilitation in this case. Defendant never posed a danger to the public or a danger of reoffending. Defendant is not a sexual predator, nor did the trial court deem him to be. Further, even if defendant needed rehabilitation, SORA’s labeling him to be a convicted sex offender works at an opposite purpose, preventing defendant from securing employment and otherwise moving forward with his life plans.
Consequently, after considering the gravity of the offense, the harshness of the penalty, a comparison of the penalty to penalties imposed for the same offense in other states, and the goal of rehabilitation, we conclude that requiring defendant to register as a sex offender for ten years is cruel or unusual punishment.
It’s obviously a victory for Dipiazza and defendants who are similarly situated; it sounds to me like a victory for reason as well. ..Source.. by Ed Brayton
September 21, 2009
OH- Consensual -v- nonconsensual sexual conduct with a minor
9-21-2009 Ohio:
From The Briefcase:
For the crime of sexual misconduct with a minor — having sex with someone who’s between 13 and 15 — consent isn’t at issue. Under the Adam Walsh Act, though, a person convicted of that crime is a sex offender who has to register if the sexual conduct was “non-consensual,” and doesn’t have to register if it was.
So does that mean that a court must conduct a hearing to determine whether the defendant’s conduct was nonconsensual, even if it wasn’t an element of the crime? Yes, says the 9th District in State v. Battistelli (Ohio case).
Uh, guys, there’s another term for nonconsensual sexual conduct with a minor — or with anyone else, for that matter. It’s called “rape.”
May 14, 2009
TX- Editorial: Texas Rep. Todd Smith’s sex offender registration bill is a common-sense revision
5-14-2009 Texas:
The Texas Legislature is on its way to adding a shade more reasonableness to its get-tough laws on sex offender registration.
HB 3148 by Rep. Todd Smith, R-Euless, would slightly broaden the registration exemption for those convicted of consensual sex with a minor.
Texas actually created a path several years ago for some juvenile offenders to avoid the branding that comes with being on the publicly accessible registry.
That was necessary when it became clear that listing foolish or irresponsible teens along with adult criminals and real predators doesn’t serve the public interest.
Since 2001, judges have had discretion to grant an exemption from registration in cases involving teens with an age difference of 4 years or less. The offender has to be younger than 19 and the victim at least 13. And the victim’s youth has to be what made the action a crime.
Smith’s bill would drop the upper age limit, though the age difference could not be more than 4 years.
Offenders convicted under those circumstances before Sept. 1, when the law would take effect, also could petition to be taken off the registry.
Smith filed the bill because constituents told him about problems that a criminal conviction stemming from consensual sex can create in getting into college and finding jobs, the Star-Telegram’s Dave Montgomery reported.
The bill, which won House approval last week on a 131-12 vote (and needs to get moving in the Senate), wouldn’t change any other part of the penalty for sex with a minor. Nor would it put Texas on the cutting edge of a national debate that flared two years ago as a Georgia man challenged his 10-year prison sentence for having oral sex with a 15-year-old girl when he was 17.
The Georgia Supreme Court freed him after three years. And Georgia and several other states changed their treatment of cases involving teen sex between partners with an age gap.
Underage sex might be immoral, impulsive and ill-advised. And in Texas it still can be a crime. But as the HB 3148 bill analysis points out, "the purpose of sex offender registration is to protect children from child molesters."
Requiring the state to monitor and supervise offenders who aren’t dangerous wastes resources and distracts law enforcement from protecting children as the law intended.
..Source.. STar Telegram.com
May 6, 2009
TX- De-registration bill for consensual sex offenders passes House
5-6-2009 Texas:
Sex offenders who were convicted despite having consensual sex with their victims would be allowed to petition for removal from the state's sex offender registry, under a bill the House passed on Wednesday.
The bill allows offenders who were no more than four years older than their victims - and whose victims were at least 13 years old - to ask a judge to remove them from the sex offender registry if their relationship was consensual. The bill passed 131-12.
Under current law, young men who were convicted after having sex with their underage girlfriends are often forced to register for years, a stigma that keeps them from finding work or renting apartments. Many of the men who came to testify on the bill this spring were married to the women they were convicted of assaulting.
"This is one of the most morally compelling pieces of legislation that I have ever filed," said Rep. Todd Smith. "We rarely have the opportunity to do something that takes people out of a living hell." ..News Source.. by Emily Ramshaw/Reporter
