4-3-2010 New York:
Eastern District of New York Judge Jack B. Weinstein has held unconstitutional the electronic monitoring of a Brooklyn pizzeria owner awaiting retrial on child pornography charges.
The judge found that the monitoring, mandated by the Adam Walsh Child Protection and Safety Act of 2006, constitutes unconstitutionally excessive bail and violates defendant Peter Polouizzi's procedural due process rights.
"The basic defect of the Adam Walsh Act, as applied, is that it imposes a mandatory limit on freedom of an accused without permitting an 'adversary hearing,'" Weinstein held in United States v. Polouizzi (Polizzi), 06-cr-22.
"Required wearing of an electronic bracelet, every minute of every day, with the government capable of tracking a person not yet convicted as if he were a feral animal would be considered a serious limitation on freedom by most liberty-loving Americans."
Weinstein's opinion marks yet another setback for the government in its prosecution of Polouizzi, who has admitted collecting thousands of images of child pornography. Polouizzi claims he downloaded the photos in the hope of saving the children or perhaps of finding evidence of the brutal rapes he endured as a child.
Since a jury rejected Polouizzi's insanity defense in October 2007 and convicted him of 23 counts of receiving and possessing child pornography, Weinstein has twice ordered the case to be retried. The first order was reversed by the 2nd U.S. Circuit Court of Appeals; the second order is on appeal.
After the government filed its most recent appeal, Polouizzi's counsel, Mitchell J. Dinnerstein, contested the conditions of his bail.
Wednesday, Judge Weinstein ordered the discontinuation of the electronic monitoring, finding that it violated both the Eighth Amendment prohibition against excessive bail and the Fifth Amendment right to procedural due process. The judge cited more than half a dozen decisions finding the Adam Walsh Act, which imposes electronic monitoring without discretion, unconstitutional in cases where flight or safety are not at issue.
"Electronic monitoring devices that inhibit straying beyond spatial home property limits, like those used to restrain pet dogs, are intrusive. Their requirement, when mandated and unnecessary, may constitute excessive bail in particular cases," Weinstein wrote.
"In the instant case there is no statistical foundation for a finding of risk. And the particularized individual clinical and experiential factors suggest no danger that this defendant requires a tracking electronic bracelet to protect the children or public. For the purposes of constitutional assessment, no reasonable risk assessment warrants application of the Adam Walsh Act to this defendant at this time."
Enacted in 2006, the act revised registration requirements for and other rules regarding sex offenders. The law was named after a 6-year-old boy who was abducted from a Florida mall in 1981 and later murdered. Adam's father, John Walsh, is the host of TV's long-running "America's Most Wanted."
Polouizzi's attorney, Dinnerstein, said he was pleased with the decision, but that he still intends to seek relief from the amount of the bail, which was set at $1 million.
Allen Lee Bode appeared on behalf of the Eastern District U.S. Attorney's Office. An office spokesman declined to comment. ..Source.. Mark Fass, New York Law Journal
Showing posts with label GPS - Required by AWA. Show all posts
Showing posts with label GPS - Required by AWA. Show all posts
April 3, 2010
Judge Calls Electronic Monitoring Excessive Bail in Child Pornography Case
March 24, 2010
Porn defendant's monitoring challenged
See UPDATE at end of article:3-24-2010 Arizona:
Attorney calls bracelet mandate unconstitutional
The attorney for a retired Tucson police officer indicted on child-pornography charges is challenging a federal law that requires his client to wear an electronic monitoring bracelet.
Michael Piccarreta contends the Adam Walsh Child Protection and Safety Act is unconstitutional as a whole and as it applies to his client, Jefferson Sutton Stahl, because it prevents individual judges from determining whether electronic monitoring is needed.
"While I think this act is good politics, it's probably bad constitutional law," Piccarreta said Tuesday in U.S. District Court.
The Adam Walsh Act, named for a Florida boy who was abducted from a mall in 1981 and later found murdered, was signed into law in 2006 and applies to all sex crimes. Among its provisions is a requirement that defendants out of custody be subjected to electronic monitoring.
Stahl, 62, was indicted in January on three counts of possession of child pornography and one count of receipt of child pornography.
His is alleged to have purchased four DVDs containing child pornography in June, one year after retiring from the Tucson Police Department following a 32-year career.
Court records indicate Stahl began communicating online in June 2008 with an undercover U.S. Postal Inspector operating an Internet forum described as "a special group for daddys who love young little munchkins!"
Stahl paid $100 for the DVDs, and after receiving them in the mail in August his home was raided by federal agents, who found the DVDs had already been removed from their envelope, court records show.
Agents also found more than 500 images and 24 videos of child pornography on computers and computer files in Stahl's home, court records show. During the search Stahl voluntarily told agents "this is something I've had an attraction to for a long time, but was able to suppress it." Sine his retirement, he had "given in" to his desires, according to court records.
Piccarreta told U.S. Magistrate Judge Thomas Ferraro deciding whether a defendant requires electronic monitoring should be up to the judge, not up to legislation.
"I feel it's inappropriate for Congress to limit judicial power," he said.
Electronic monitoring is an essential part of the pretrial release process for people accused of sex crimes, Assistant U.S. Attorney Carin Duryee said.
Duryee says Stahl is a flight risk because, as a retiree, he has few ties to the Tucson community. Stahl is banned from accessing the Internet, so the monitoring could also determine if he went to a library or other location with Internet access, she said.
"These crimes are predatory," Duryee said. "It's predatory behavior whether it happens behind a computer or on the street." ..Source.. Brian J. Pedersen Arizona Daily Star
Judge: Former Tucson cop must wear monitoring device
3-26-2010:
A federal judge has ruled a retired Tucson police officer indicted on child pornography charges must wear an electronic monitoring device while awaiting trial.
U.S. Magistrate Judge Thomas Ferraro disagreed with a claim made by Michael Piccarreta, the attorney for Jefferson Sutton Stahl, that the Adam Walsh Child Protection and Safety Act is unconstitutional and requiring Stahl to wearing an ankle bracelet while on pre-trial release amounted to excessive bail, according to documents filed Friday in U.S. District Court.
The Adam Walsh Act, passed by Congress in 2006, include a set of conditions that apply to all sex crimes involving children.
Stahl, 62, was indicted in January on three counts of possession of child pornography and one count of receipt of child pornography.
Stahl retired from the Tucson Police Department in June 2008 after a 32-year career. ..Source.. by Brian J. Pedersen Arizona Daily Star
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