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Top Massachusetts court decides due process now demands heightened proof standard for sex offender classification

12-13-2015 Massachusetts:

A helpful reader alerted me to a notable new procedural ruling by the Massachusetts Supreme Judicial Court this past week. In Doe, Sex Offender Registry Bd. No. 380316 v. Sex Offender Registry Board, SJC-11823 (Mass. Dec. 11, 2015) (available here), the top Massachusetts court decided that the preponderance standard of proof is inadequate for sex offender classification. Here is how the opinion starts:
We are asked in this case to consider anew the standard of proof that the Sex Offender Registry Board (SORB) must satisfy in order to classify a convicted sex offender under the provisions of the sex offender registry law, G. L. c. 6, §§ 178C-178Q.

The plaintiff, John Doe No. 380316 (Doe), is a convicted sex offender who was classified by a preponderance of the evidence as having a moderate risk of reoffense. In Doe, Sex Offender Registry Bd. No. 972 v. Sex Offender Registry Bd., 428 Mass. 90, 91 (1998) (Doe No. 972), we held that SORB need only prove the appropriateness of a sex offender's risk classification by a preponderance of the evidence.

In light of amendments to the sex offender registry law and other developments since our decision in that case, however, Doe contends that the preponderance standard no longer adequately protects his due process rights. We agree.

For the reasons stated below, we hold that SORB is constitutionally required to prove the appropriateness of an offender's risk classification by clear and convincing evidence.

Court Expands Eligibility for Certificates of Rehabilitation

11-13-2015 California:

A California Court of Appeal issued a decision this week that expands eligibility for registrants to apply for a certificate of rehabilitation. The decision, People v. Tirey, states that a registrant who was convicted of PC 288(a) and who completed parole 13 years ago is eligible to apply for a certificate.

“This is an important decision for many registrants,” stated attorney and CA RSOL vice president Chance Oberstein. “It will significantly expand the number of registrants who can apply for a certificate of rehabilitation.”

In this case, the appellate court clarified that it was not making a decision whether Tirey would obtain a certificate. Instead, that decision is to be made by a trial court.

According to the Court, equal protection principles were violated when Tirey was declared ineligible to apply for a certificate. These principles have the possibility of being applied to convictions for similar sex offenses such as PC 288 and 288.5.

In its decision, the Court rejected all arguments offered by the Attorney General who had requested a rehearing of the original case.

“A certificate of rehabilitation currently is the only realistic method for registered citizens to be removed from the sex offender registry,” stated Oberstein.

The decision to grant a certificate of rehabilitation is a discretionary decision by a state judge who faces re-election. In order to maximize the possibility of obtaining a certificate, registrants must provide the court with a psychological evaluation as well as letters of support.

Judge Thompson disagreed with the court’s ruling and in his dissent stated that the court’s decision “will allow thousands of serious sex offenders to escape their lifetime parole and sex offender registration obligations.” ..Source.. by CA-RSOL

See Also THESE in State News Blog...

See Also THESE in National News Blog...

Tulsa Police Worried About Sex Offender's Legal Victory

9-14-15 Oklahoma:

TULSA - Tulsa Police are worried now that a convicted child molester has won a legal victory against the Tulsa County District Attorney's office.

Stephen Barnes was convicted in 1999 of rape and lewd acts involving a minor. According to Department of Corrections records, he was released in 2012. He's a registered sex offender, but now that he's out of prison, he wants to live with his mother in east Tulsa.

A 2003 Oklahoma law prevents sex offenders from living near schools and daycare centers. In January 2015, Barnes asked the courts for an injunction against the Tulsa County District Attorney's office, Tulsa Police and the Tulsa County Sheriff's Office, arguing that since the law was passed after he committed his crimes, it didn't apply to him.

Earlier this month the judge ruled in his favor, saying he can live wherever he wants.

Tulsa police fear this will lead to a similar situation for many more convicted child molesters.

"The whole premise of the sex offender registry is to protect our children. Safe zones were created for families to at least feel comfortable knowing there were no sex offenders living nearby. The ruling will open the door for sex offenders to file similar lawsuits and be granted the freedom to reside next to an elementary school, if they so choose," said Tulsa Police Sgt. John Adams. ..Source.. by Lori Fullbright

News SJC Ruling Threatens Sex Offender Laws In 40 Mass. Towns

See also: ACLU of Massachusetts article. And the legal documents HERE Note: RSOL joined in Amicus brief)

8-28-15 Massachusetts:

Doe v City of Lynn

BOSTON (AP) — The highest court in Massachusetts upheld a judge’s decision Friday to throw out a local law that severely restricts where sex offenders can live in the city of Lynn, a ruling that could have broad implications for about 40 other communities.

In a unanimous ruling, the Supreme Judicial Court agreed that Lynn had no legal authority to adopt the ordinance in 2011 because it is inconsistent with state laws governing the oversight of sex offenders.

The Lynn ordinance prohibits Level Two and Level Three sex offenders from living within 1,000 feet of parks or public, private or church schools, effectively banning offenders from about 95 percent of the city’s residential properties.

The high court said a package of laws passed by the state Legislature in 1999 establishes clear policies for monitoring sex offenders and notifying the public where they live. The court said there are “grave societal and constitutional implications” of segregating sex offenders.

People v. Gerber

6-8-2011 California:

People v. Gerber
196 Cal.App.4th 368 (2011)

Defendant Joseph Lowell Gerber appeals from a judgment of conviction of possession of child pornography (Pen. Code, § 311.11, subd. (a))1 (count one), annoying or molesting a child (§ 647.6, subd. (a)) (count two), furnishing marijuana to a minor under 14 years of age (Health & Saf. Code, § 11361, subd. (a)) (count three), and two counts of furnishing a controlled substance to a minor (Health & Saf. Code, § 11353) (counts four and five).

On appeal, defendant challenges the sufficiency of the evidence to support the conviction of possession of child pornography (§ 311.11) and raises claims of ineffective assistance of counsel and instructional error. In addition, he asserts that the trial court lacked authority to make its no-contact order.

We hold that the phrase "the matter depicts a person under the age of 18 years personally engaging in or simulating sexual conduct ..." in section 311.11 requires a real child to have actually engaged in or simulated the [196 Cal.App.4th 372] sexual conduct depicted.

We reverse the conviction of possession of child pornography in violation of section 311.11 based on the insufficiency of the evidence (count one) and we reverse the convictions of furnishing a controlled substance to a minor in violation of Health and Safety Code section 11353 (counts four and five) based on instructional error.

We also strike the no-contact order.

... ... ...

E. No-contact Order

At sentencing, the trial court ordered defendant to have no contact with the victim or her family. Defendant argues that the order is invalid because it was not authorized by section 1202.05 or any other statute. Defendant was not convicted of any of the sex offenses enumerated by section 1202.05, which presently authorizes courts to prohibit visitation between a defendant sentenced to state prison and the child victim. The People concede error and ask this court to strike the order. We agree this is the appropriate remedy.

Simants v State

7-3-2014 Alaska:

Simants v State

Carrie D. Simants was thirty-three years old when she had sexual intercourse with R.H., a seventeen-year-old boy who was living in her home. At the time, R.H. had been adjudicated a delinquent, and Simants had agreed to oversee his compliance with his delinquency case plan. A jury therefore found that Simants was in a "position of authority" over R.H. and convicted her of one count of second-degree sexual abuse of a minor.1 Simants was sentenced to 8 years with 3 years suspended (5 years to serve) and 10 years' probation for this offense.

On appeal, Simants challenges her sentence on three grounds. She asserts that the superior court erred by rejecting the two statutory mitigating factors she proposed at sentencing. She argues, in the alternative, that the court should have referred her case to the statewide three-judge sentencing panel for consideration of a sentence below the applicable presumptive range. Lastly, she challenges a condition of probation that could potentially preclude her from living with her own children after her release.

For the reasons explained below, we conclude that the superior court applied the wrong legal analyses when it rejected the two statutory mitigating factors and imposed the challenged probation condition.

Accordingly, we vacate the probation condition and remand this case to the superior court for further proceedings consistent with this opinion. Because Simants may be resentenced, we do not reach the merits of her three-judge sentencing panel arguments at this time.

... ... ...


We VACATE the special condition of probation limiting Simants from residing in a home where a minor is present to the extent that the condition bars her from living with her own children. If the State wishes to renew its request for a probation condition that restricts Simants's contact with her children, the State must affirmatively show
(1) that there is good reason to believe Simants will pose a danger to her children when she is released from prison, and

(2) that the State's proposed condition of probation is narrowly tailored to avoid unnecessary interference with Simants's relationship with her children.
We retain jurisdiction.

State v Cobler

3-24-2010 Idaho:

State v Cobler
229 P.3d 374 (2010)

Brian C. Cobler appeals from the judgment of conviction and sentence entered upon his guilty plea to sexual battery of a minor, sixteen or seventeen years of age. He challenges the sentence, the denial of his Idaho Criminal Rule 35 motion for reduction of the sentence, and the order denying his motion to modify a no contact order that prohibited contact with any minors.

The order denying the motion to modify the no contact order is vacated and the case is remanded for further proceedings on that issue.

... ... ...

We affirm the judgment of conviction and sentence, as well as the district court's denial of Cobler's Rule 35 motion. Because the district court abused its discretion in denying Cobler's motion to modify the no contact order, we vacate the district court's denial of that motion and remand the case for proceedings consistent with this opinion.2

Doe v. Annucci

6-18-15 New York:

Doe v. Annucci
No. 14 Civ. 2953 (PAE).

Plaintiff John Doe was convicted of sexual offenses against a teenage girl and served more than eight years in prison. After Doe was released on parole, Doe's wife, Jane Doe, gave birth to a son, M.S. In the years that followed, the Department of Corrections and Community Supervision ("DOCCS") applied one of Doe's special parole conditions to bar him, during two distinct time periods, from having any contact with his infant son. These periods totaled more than one year.

John Doe, Jane Doe, and M.S. bring suit against eight state personnel associated with DOCCS, claiming that DOCCS's actions violated their rights to substantive due process, intimate association, and procedural due process, and that each individual defendant personally participated in these actions. Seven of the eight defendants now move to dismiss, asserting mootness, immunity, and failure to state a claim.

For the following reasons, the motions to dismiss are granted as to defendants Rebecca and Rennie Rodriguez for lack of personal involvement in the alleged constitutional violations, but are denied as to all other defendants.

... ... ... ...

US v Burns

12-30-2014 Oklahoma:

US -v- Burns
775 F.3d 1221 (2014)

Mr. James Burns was convicted of possession and attempted possession of child pornography. See 18 U.S.C. § 2252(a)(4)(B), (b)(2). He was sentenced to 63 months in prison, followed by 5 years of supervised release. This appeal involves one of the conditions of his supervised release. That condition requires approval of the probation department before Mr. Burns can have any contact with minors, including his youngest daughter (S.B.).

This restriction intrudes on Mr. Burns's constitutional right to familial association. Because of this intrusion on a constitutional right, the district court should have made particularized findings before restricting Mr. Burns's contact with his daughter. Because the district court failed to make these findings, we reverse on plain error.1

... ... ...

II. Conclusion

The district court committed plain error by restricting Mr. Burns's contact with his daughter without the required findings. Thus, we remand for reconsideration of the supervised-release condition requiring Mr. Burns to obtain permission from the probation office before he can contact S.B.

Doe v Foster et al

This action is in court right now, no decision yet.

4-21-15 New Hampshire:

In April 2015, the ACLU of New Hampshire filed a lawsuit to block enforcement of RSA 651-B:4-a – a law passed in 2009 that restricts the legal and constitutionally-protected speech of all registered sex offenders in New Hampshire. Similar laws in California, Nebraska, Georgia, and Michigan have been struck down.

RSA 651-B:4-a requires anyone who is a registered sex offender – even people with decades-old, low-level offenses like misdemeanor lewdness and people whose offenses were not related to the Internet – to turn over a list of all their online identifiers to law enforcement. While the law is written very unclearly, this likely includes email addresses, usernames and other identifiers used for online political discussion groups, book and restaurant review sites, forums about medical conditions, and newspaper or blog comments — all innocent online speech that has nothing to do with criminality. Under the law, more than 2,700 Granite staters must immediately provide this information to law enforcement, and must report any new accounts before they are even used, even if the new screen name is their own real name. Violations can result in years in prison.