Local man's case illustrates complexity of sex offender registry after Supreme Court ruling

10-30-2013 Oklahoma:

While officials with the Oklahoma Department of Corrections review whether over 7,000 criminals will remain on the state's sex offender registry following a July Supreme Court decision, one Comanche County man is protesting a conviction he received locally for violating the Oklahoma Sex Offender Act.

Edward D. Turner, 49, received a letter Oct. 7 stating he had been removed from the sex offender registry in Oklahoma after the DOC reviewed his case and determined he had been kept on the list longer than statute allowsa process started after the June 25 decision in Starkey v. Oklahoma Department of Corrections. By Friday, Turner had filed three motions requesting a court-appointed attorney, free copies of court records, and permission to withdraw his guilty plea out-of-time.

Law enforcement officers and legal professionals have been anticipating the effects of the ruling in Starkey's appeal. Starkey moved to Oklahoma after pleading no contest to one count of sexual assault of a 15-year-old in Texas.

The sentence required him to register for 10 years following his release from prison, but in the years following his conviction, the laws related to sex offender registration changed several times. Starkey argued he was illegally kept on the sex offender registry for longer than 10 yearslike Turner when DOC applied new statutes to his case retroactively rather than subjecting him to the laws in effect at the time of conviction.

The court sided with Starkey and ruled that Starkey's registration period should have ended in 2008. Now, the DOC web site states that officials are reviewing each of the over 7,000 sex offenders in Oklahoma to remove those no longer subject to the Oklahoma SORA.

Oklahoma Department of Corrections Public Information Officer Jerry Massie said that as of Friday, a little over 1,300 registrants had been reviewed resulting in 679 offenders being removed.

"It's a slow process, and there's over 7,000 to perform," Massie said. "We have to look at each case and determine what laws were in effect at the time the offender was sentenced, when certain revisions to the law happened and how they might be impacted by the Starkey case."

Massie said one of the areas of most concern is how the review might play into cases in which a registrant has been charged or convicted for failure to properly register when he or she was not required to, like Turner.

"I was illegally charged with a felony for not complying with Oklahoma Sex Offender Registration Act where none applied pursuant to new Oklahoma Supreme Court decision of Starkey v. Oklahoma Department of Corrections," he wrote. "Detective Nancy Lombardo of Comanche County acting with and for the Oklahoma Department of Corrections retroactively applied the 2007 amended scheme of OSORA to Mr. Turner."

To read the full story requires Sign-in at original source: ..Source.. by Malinda Rust

Biller v State

The POLICE are permitted to download child pornography? Something is wrong with that...

3-28-2013 Florida:

Biller v State

Appellant pleaded guilty to fifteen counts of possession of child pornography and one count of transmission of pornography by electronic device, reserving his right to appeal the denial of his dispositive motion to dismiss the charges. He argues that the trial court erred in denying his motion to dismiss the charges of possession of child pornography because section 827.071(5), Florida Statutes (2010), is unconstitutional and void for vagueness. He also argues that the trial court erred in denying his motion to dismiss the charge of unlawful transmission of pornography because there was no evidence that he "transmitted" (as that term is defined by statute) anything. We affirm Appellant's convictions on the possession of child pornography charges without further discussion. State v. Cohen, 696 So.2d 435, 436 (Fla. 4th DCA 1997). We reverse the conviction and sentence on the transmission of pornography charge.

Using a peer-to-peer sharing network known as Limewire, Appellant downloaded pornographic images of children to his home computer. The files were obtained from other Limewire subscribers who permitted access to their files. Using the sheriff's office's own Limewire subscription, sheriff's agents then retrieved images from an accessible folder in Appellant's computer via the internet. Based on the retrieval of these images, Appellant was charged with and convicted of one count of "transmitting" child pornography using an electronic device, in violation of section 847.0137(2). The statute defines "transmit" as "the act of sending and causing to be delivered any image, information, or data from one or more persons or places to one or more other persons or places over or through any medium, including the Internet, by use of any electronic equipment." Id. Thus, the legal issue we are asked to confront is whether, by allowing access to files through a sharing network, Appellant "sent" images to another person.

The State concedes that Appellant did not affirmatively dispatch the images using a function on his computer. Indeed, Appellant had no knowledge that agents retrieved the images. The State posits that Appellant essentially sent the files because he maintained them in a shared folder and knowingly allowed other Limewire subscribers to access them. Conversely, Appellant argues that "send" means a purposeful act to deliver the files, rather than the mere allowance of access to the files. One definition of the word "send" is, "to cause to go or be carried." Webster's New World College Dictionary 1305 (4th ed. 2001). This definition supports Appellant's construction of the statute, although the State's proffered construction is not unreasonable. Under statutory lenity principles, however, when a criminal statute is susceptible of more than one construction, we are compelled to construe the statute most favorable to Appellant. § 775.021(1), Fla. Stat. Accordingly, we reverse Appellant's conviction for transmitting child pornography and remand this cause for resentencing.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

USA v McLaurin

10-3-2013 Vermont:

USA v McLaurin

David McLaurin, a convicted sex offender, was required by federal law to register any change in his address. He failed to do so and, following his guilty plea, was sentenced in the United States District Court for the District of Vermont to fifteen months' imprisonment and five years of supervised release. As a condition of his release, McLaurin was required to "participate in an approved program of sex offender evaluation and treatment, which may include . . . plethysmograph examinations, as directed by the probation officer." Judgment, United States v. McLaurin, No. 11 Cr. 113 (WKS), Dkt. No. 28 (D. Vt. Aug. 22, 2012), J. App. 9.

This examination involves the use of a device know as a plethysmograph which is attached to the subject's penis. In some situations, the subject apparently may be required, prior to the start of the test, to masturbate so that the machine can be "properly" calibrated. The subject is then required to view pornographic images or videos while the device monitors blood flow to the penis and measures the extent of any erection that the subject has. The size of the erection is, we are told, of interest to government officials because it ostensibly correlates with the extent to which the subject continues to be aroused by the pornographic images.

McLaurin objected to this requirement as unnecessary, invasive, and unrelated to the sentencing factors specified in 18 U.S.C. § 3553(a) and therefore impermissible as a discretionary condition of supervised release. See 18 U.S.C. § 3583(d)(1). The district court nonetheless imposed the requirement without reference to the statutory goals of supervised release or to any expected benefits to the public or to McLaurin. McLaurin now appeals.

We hold that this extraordinarily invasive condition is unjustified, is not reasonably related to the statutory goals of sentencing, and violates McLaurin's right to substantive due process. We therefore vacate the condition.

Brown v City of Michigan City, Indiana

9-5-2006 Indiana:

Brown v City of Michigan City, Indiana ...
462 F.3d 720 (2006)

On August 1, 2002, Robert Brown was banned from all properties or programs operated by the Michigan City Department of Parks and Recreation. On August 13, 2002, he filed this suit against the City of Michigan City, Indiana ("City"); he alleged that the ban violated his rights to procedural and substantive due process guaranteed by the Fourteenth Amendment.

On September 19, 2005, the United States District Court for the Northern District of Indiana granted summary judgment in favor of the City. Mr. Brown now appeals. For the reasons set forth in this opinion, we affirm the judgment of the district court.

... ... ...

Mr. Brown responds that, because Michigan City has not chosen to ban all child molesters from its parks, only Mr. Brown, its actions are "fundamentally irrational." Appellant's Br. at 34. But the City's means need not be "narrowly tailored" to its goals; rather, they need only be "reasonably related to [those] goal[s]." City of Chicago v. Shalala, 189 F.3d 598, 607 (7th Cir.1999). Unlike other persons previously convicted of child molestation, Mr. Brown was witnessed repeatedly in Washington Park watching patrons through binoculars; there is no indication that park officials had seen other sex offenders on City property, engaged in activity similar to Mr. Brown's. Further, as we concluded in Doe, "[t]here is certainly nothing in the record to suggest the City would act differently when faced with a similar case." Doe, 377 F.3d at 773 n. 14.[9]

Conclusion
For the reasons set forth in this opinion, we affirm the judgment of the district court.

AFFIRMED

Doe v City of Lafayette, Indiana

Multiple Dates - Indiana:

Doe v City of Lafayette, Indiana
7-30-2004 377 F.3d 757 (2004)

In February of 2000, the City of Lafayette, Indiana, issued John Doe, a convicted sex offender, a letter, informing him that he was banned from all public parks under the City's Jurisdiction. In November of 2000, Mr. Doe initiated this action, alleging that the ban violated his rights under the First and Fourteenth Amendments of the Constitution of the United States. The United States District Court for the Northern District of Indiana granted summary judgment to the City. For the reasons set forth in the following opinion, we now affirm the judgment of the district court.

... ... ...

Doe's actions do not come close to criminal conduct punishable as stalking. He did not "continually" or "repeatedly" go to the public park; his ban order was based on a single visit. See Landis v. State, 704 N.E.2d 113, 113 (Ind.1998) (holding that "the crime of stalking by its nature necessitates proof of repeated or continuing acts"). Nor did Doe's gaze or proximity cause any specific person to feel 784*784 frightened or threatened; indeed, there is no evidence that anyone even noticed Doe's presence. Frazier v. Delco Elecs. Corp., 263 F.3d 663, 668 (7th Cir.2001) ("The stalking victim who doesn't know that she is being stalked is not in fear of being injured."). Most importantly, Doe's conduct — going to a public park with improper thoughts about children previously unknown to him — did not harm any of the youths in the park, unlike the terror caused by actions criminalized as stalking.[10]

III. CONCLUSION

In the City's haste to take action to protect its children, an admirable goal, both the majority and the City fail to apprehend the possible secondary effects of this ban on the very safety it seeks to ensure. As a society grappling with the problem of pedophilia, see Crane, 534 U.S. at 414, 122 S.Ct. 867 (requiring some lack-of-control determination in the civil commitment of convicted pedophile), we have limited resources in our arsenal to address the possibility that someone like Doe may reoffend. Once released back into our society, a former sex offender must feel free to seek therapy and must be supported in his efforts to control his urges rather than penalized. Why deter former sex offenders from one of the few treatments available? The importance of therapy cannot be understated. See 51 Am.Jur.3d § 5 ("the group (led by the therapist) works on each member's issues, such as denial, guilt, the offender's own sexual trauma, or lack of empathy for the victim. This is a common technique for outpatient treatment of sex offenders (often a condition of probation)..."). The First Amendment's concern with freedom of thought as a basis for the freedom of expression is highlighted by the facts of this case. The chilling effect of this ruling, i.e., that the communication of one's thoughts may result in being banned from public spaces, is frightening. See Hodgkins v. Peterson, 355 F.3d 1048, 1056 (7th Cir.2004) ("The Supreme Court has often noted that a realistic threat of arrest is enough to chill First Amendment rights."). To oversimplify the issue, as one of location or logistics (i.e., the argument that Doe can simply think elsewhere) fails to address the problem of chilled speech, or here thought, that the First Amendment seeks to secure.

One cannot be a thinking member of society and not be acutely aware of the critical problem of sex offenses against children. The substance of Doe's sexual fantasies about children are repugnant and deplorable. Doe himself admits that. But, of course, the fact that this court or the City of Lafayette finds Doe's thoughts offensive does not limit the amount of First Amendment protection they are afforded. See Free Speech Coalition, 535 U.S. at 245, 122 S.Ct. 1389 ("It is also well established that speech may not be prohibited because it concerns subjects offending our sensibilities."); Am. Booksellers Assoc. v. Hudnut, 771 F.2d 323, 327 (7th Cir.1985) ("Under the First Amendment the government must leave to the people the 785*785 evaluation of ideas."); Collin v. Smith, 578 F.2d 1197, 1200 (7th Cir.1978) (noting that the First Amendment covers protected speech even though it may be "repugnant to the core values held generally by residents of this country"). Despite our repudiation of the content of his thoughts, the City of Lafayette may not punish Doe for his thinking alone, for without protection from government intrusion into our thoughts, the freedoms guaranteed by the First Amendment are virtually meaningless.[11]

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Doe v City of Lafayette, Indiana
6-27-2003 334 F.3d 606 (2003)

John Doe was banned for life from all park property in the City of Lafayette, Indiana — including a golf course, sports stadium, and city pools. The City did not provide notice or a hearing before instituting the ban, nor did it allow Doe to appeal its decision. Doe filed suit against the City, arguing that the ban violates his First Amendment right to freedom of thought and a fundamental right under the Fourteenth Amendment to loiter in public parks. The district court granted summary judgment in favor of the City. We reverse, finding the ban violates the First Amendment.

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Doe v City of Lafayette, Indiana
9-14-2001 160 F.Supp.2d 996 (2001)

The material facts in this case are not in dispute. John Doe has a long history of criminal behavior regarding children. He has numerous arrests and convictions ranging from child molestation to various misdemeanors including: voyeurism; exhibitionism and window peeping. (Dep. Doe at p. 11-16, 20-22). Doe's last conviction was in 1991 for attempted child molesting. (Dep. Doe at p. 17). His sentence included four years of house arrest and four years of probation in Lafayette. During his probation and house arrest he was not restricted from entering the Lafayette city parks. (Aff. Doe at ¶ 3). Doe has received various types of out-patient treatment for sex-addiction since the time of his arrest. (Dep. Doe at p. 31).

Doe has also received treatment for his addiction from Dr. Patricia Moisan-Thomas, Ph.D., an addictions counselor, as well as attending a sex offenders anonymous group. (Dep. Doe at p. 27, 31-32). Doe has not engaged in any incidents of molesting, voyeurism, exhibitionism since 1991. (Aff. Doe at ¶ 2). Dr. Moisan-Thomas has opined that Doe will always have inappropriate thoughts about sex. (Aff. Moisan-Thomas at ¶ 9). Doe admits to having inappropriate thoughts which he finds to be extremely unpleasant and has resumed taking drugs to alleviate his sexual urges. (Dep. Doe at p. 26-27). Dr. Moisan-Thomas has opined that there is no guarantee that Doe will never reoffend, however she feels that he is in control of his urges even without his medication. (Dep. Moisan-Thomas at 26-27, 33-35).

Sometime in January 2000, Doe began having inappropriate sexual thoughts about children. He then walked to Murdock Park where he saw a number of youths in their early teens and watched them from a distance for about 30 minutes. (Dep. of Doe at 23-28). Doe had fantasies 998*998 about exposing himself or having some sort of sexual contacts with the youth. (Id. at 29). According to Doe, he recognized that these thoughts were inappropriate and then left the park. (Id. at 29).

Doe became extremely upset about the incident. He then reported the occurrence to Dr. Moisan-Thomas and his sex offenders group. (Aff. Moisan-Thomas at ¶ 6; Aff. Doe at ¶ 4). As a result of an anonymous source, Doe's former probation officer was informed that he was sitting in the park and watching children. (Reed at 8). The probation officer contacted the Lafayette Police Department and reported the incident. Subsequently, a discussion was held between Lafayette Police Chief Reed, Superintendent Mayes and the city attorney on the appropriate course of action. (Reed at 11-12). Based upon that meeting, the Park's Department issued an order to Mr. Doe which stated the following:

Due to reports of your improper behavior toward juveniles using city park property, you are hereby notified that you are not allowed to enter any city park property, including Columbian Park at any time for any purpose. If you are observed on park property, you will be arrested for trespass. (Reed at 10-13, Ex. 3)

The city of Lafayette has several large parks within its territorial limits. (Dep. Mayes at 3-9). The parks provide activities such as softball, swimming and numerous other activities. (Id at 5-6). The various parks are patrolled by a security force connected to the Parks and Recreation Department as well as by the Lafayette Police Department. (Dep. Reed at p. 14). The Superintendent of the Parks and Recreation Department has delegated to the head of security the authority to ban individuals from the City's parks. (Mayes at 21). The Superintendent admits that there are no documents or written procedures for banning individuals from the parks.[1]

Ban orders are typically issued in instances where teenagers or young adults have destroyed property or interfered with other park patrons. (Mayes at 17-18). The ban order is issued and the individual is then informed that if he or she returns to the park during the time that the order is in effect he or she will be arrested for trespass. (Id. at 20). Typically, ban orders are issued for a week or a summer in duration. (Id. at 19). In this instance, Doe was issued a permanent ban order from all city parks. (Reed at p. 10-13, Ex. 3).

Doe seeks a lifting of the ban order in order to partake in a softball league which he participated in before the ban order, attend events at Loeb Stadium in Columbian Park, and attend outings in the park if they should arise. Furthermore, he contends that the ban prevents him from walking in the park with his adult friends. (Id.).

... ... ...

Here it is undeniable that the city has a strong and legitimate interest in the welfare of its young citizens, whose immaturity, inexperience, and lack of judgment may sometimes impair their ability to exercise their rights wisely. See Hodgson v. Minnesota, 497 U.S. 417, 444, 110 S.Ct. 2926, 111 L.Ed.2d 344 (1990) It is indisputable that state governments have important interests in seeking to secure the safety of their minor citizens. Dayton Area Visually Impaired Persons, Inc. v. Fisher, 70 F.3d 1474, 1489 (6th Cir.1995). The ban order as previously stated is narrowly tailored to the specific facts and circumstances involving Doe and therefore advances the legitimate goals of the city. See Thompson 250 F.3d at 407. Therefore the court finds that the ban order does not violate his substantive due process rights.

III. CONCLUSION
For the foregoing reasons the City of Lafayette's motion for summary judgment is now GRANTED. Each party to bear its own costs. IT IS SO ORDERED.

United States v Kebodeaux

6-24-2013 Texas:

United States v Kebodeaux

SCOTUS Blog explains it best:

Holding: As applied to respondent Anthony Kebodeaux, the registration requirements of the Sex Offender Registration and Notification Act fall within the scope of Congress’s authority under the Necessary and Proper Clause. (i.e., he was required to register)

Judgment: Reversed, 7-2, in an opinion by Justice Breyer on June 24, 2013. Chief Justice Roberts and Justice Alito filed opinions concurring in the judgment. Justice Scalia filed a dissenting opinion. Justice Thomas filed a dissenting opinion, in which Justice Scalia joined as to parts I, II, and III-B.

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eAdvocate Research

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Did "Congressional Gremlins" play a part in the US v Kebodeaux decision?

6-25-2013 Washington DC:

There is no doubt that in Kebodeaux the US Supreme court solidified, with a healthy amount of verbiage, that Congress is using their "Necessary and Proper" reasoning to extend its powers over the land (Necessary and Proper is now the Congressional "catch-all reasoning."). This follows their use of Necessary and Proper use in the Comstock decision as well. Personally, this writer does not agree with the court and believes it will be years into the future before another set of Justices sets the record straight. How many other denials will be based on this "catch-all reasoning" in the meantime?

But that is not the portion of Kebodeaux I wish to address today. This is the portion that is relevant:

In today’s opinion, however, Justice Stephen Breyer, writing for Justices Kennedy, Ginsburg, Sotomayor, and Kagan, tactfully sidestepped the “Hotel California” theory by holding that Kebodeaux had never actually checked out of federal jurisdiction, thus repudiating that Fifth Circuit’s characterization of Kebodeaux’s release as “unconditional.” The Court accepted the Solicitor General’s argument that, “through a complex set of statutory cross-references,” Kebodeaux was subject to another registration requirement, the Wetterling Act, at the time of his release. SORNA was merely a modification of the registration requirements of the Wetterling Act.

Within the decision it says, Kebodeaux was released in 2004, registered then moved, and after the second move failed to register that move. In 2006 AWA was enacted, and applied retroactively to all convicted of sex offenses.

Now when the court said Wettering was still effective when Kebodeaux was released, I thought, thats impossible, AWA when it was enacted, REPEALED all prior laws, and since it was applied retroactively Kebodeaux would be correct, he didn't have to register.

So I went back to AWA to see if my memory was failing, using the Thomas Congressional website, here is what it says about the AWA law approved by Congress in 2006 (see "Text of Legislation" Version 5):

SEC. 128. REGISTRATION OF SEX OFFENDERS ENTERING THE UNITED STATES.

The Attorney General, ... ... ....

SEC. 129. REPEAL OF PREDECESSOR SEX OFFENDER PROGRAM.

(a) Repeal- Sections 170101 (42 U.S.C. 14071) and 170102 (42 U.S.C. 14072) of the Violent Crime Control and Law Enforcement Act of 1994, and section 8 of the Pam Lychner Sexual Offender Tracking and Identification Act of 1996 (42 U.S.C. 14073), are repealed.

(b) Effective Date- Notwithstanding any other provision of this Act, this section shall take effect on the date of the deadline determined in accordance with section 124(a).

SEC. 130. LIMITATION ON LIABILITY FOR THE NATIONAL CENTER FOR MISSING AND EXPLOITED CHILDREN.

So where did Sec. 129 disappear to? Congress approved that section, but it is not in current AWA law. Congressional Gremlins are at work again! In the beginning of AWA it shows the sections that are supposed to be in AWA:

Subtitle A--Sex Offender Registration and Notification

Sec. 111. Relevant definitions, including Amie Zyla expansion of sex offender definition and expanded inclusion of child predators.

... ... ....

Sec. 128. Registration of sex offenders entering the United States.

Sec. 129. Repeal of predecessor sex offender program.

... ... ....

Sec. 131. Immunity for good faith conduct.

What it shows is that, Section 129 was eliminated from the final law, and Section 131 was made Section 129. Who in Washington DC has the authority to override what Congress Approves?

The Office of Legislative Counsel in both the House and the Senate are responsible for drafting of, proposed laws and amendments, for Lawmakers to present to their respective House, but only the House Office of Legislative Counsel appears to be responsible for the final codification of laws presented to the President.

So we leave this issue with, is that where the Congressional Gremlins are that ignored AWA Section 129 approved by Congress in 2006, missing today, and which ultimately played a part in today's Kebodeaux decision?

For now have a great day and a better tomorrow.
eAdvocate...

Sex offender ID law misapplied, higher court says

7-9-2009 Indiana:

Harris v Indiana
No. 79A04-0809-CR-546

Enhancements to Indiana's Sex and Violent Offender Registry that took effect on July 1, 2006, are continuing to cause snarls for law enforcement.

The Indiana Court of Appeals on Thursday reversed two convictions against a Lafayette man who assumed a dead man's identity -- allegedly to avoid being listed on the state's sex offender registry.

David M. Harris, 55, was found guilty of felony counts of forgery, application fraud, identity deception and failure to register as a sex offender after a bench trial in July 2008 in Tippecanoe Circuit Court.

He also was found guilty of misdemeanor failure to possess a valid Indiana driver's license or identification card, a requirement that took effect three years ago.

Indiana's higher court, however, dismissed the application fraud conviction on grounds that the prosecutor's office could not prove that Harris applied in Tippecanoe County for a driver's license under the name Richard Blair.

Thursday's unanimous ruling also found that Harris does not have to carry government-issued identification because his two convictions for child molesting took place before July 1, 2006.

Sheriff's Detective Greg Haltom, who maintains Tippecanoe County's sex offender registry, said the justices' finding is contrary to how he'd been enforcing the ID card statute.

"The way I interpreted the law was that, if you're a registered sex offender, you need an Indiana identification card," Haltom said. "There is a lot of litigation out there right now regarding all those changes."

Harris is listed on the state's registry as a sexual predator, meaning he is required to provide his address and other contact information to law enforcement for life.

Charges against Harris were filed in May 2007 after an acquaintance contacted police about Harris' true identity. Haltom said Harris reportedly called around to several states and eventually was able to obtain a birth certificate for a Richard Blair in Michigan.

Harris did not know Blair.

He allegedly used the birth certificate to obtain an Indiana driver's license, a Social Security card and a community college identification card in Blair's name.

The Indiana Court of Appeals on Thursday also ordered that Harris be resentenced in Tippecanoe Circuit Court for the remaining convictions against him.

He currently is serving a 291/2-year prison sentence.

Sheriff Tracy Brown said it's not uncommon to hear of different interpretations of the state's sex offender statutes. During an Indiana Sheriff's Association meeting Thursday, he said one person brought up that it could greatly vary in all 92 counties.

"The General Assembly had the right intent with the legislation, which is to protect children," Brown said. "But clearly there is enough confusion that law enforcement and legislators need to work at a committee level to sit down, review and tighten these laws." ..Source.. by SOPHIA VORAVONG

Coach Sues Mom Over ‘Pedophile’ E-mail and Wins

8-27-2009 Connecticut:

Pedophilia is nothing to take lightly. And calling someone one, or “one step away from being one,” can get you in trouble if there is no evidence that she is.

The mother of an East Hartford High School swimmer is going to have to pay her daughter's former swim team coach $88,000 because of a "malicious, outrageous, and evil" e-mail campaign during which, she repeatedly used the word "pedophile."

Laurie Lima admitted she had no evidence that the former coach of the high school girls swim team was a pedophile, Hartford Superior Court Judge Julia Aurigemma said. Aurigemma decided those little communications were libelous.

Lima's campaign against Mary Anne Bojko, which began in November 2007, was "malicious, outrageous, and evil," the judge wrote.

Bojko sued. In April, a two-day trial was held. Bojko said she did nothing wrong.

Lima wrote in one e-mail that Bojko was "one step away" from being a pedophile because the coach had told the girls to keep swim team matters secret. ..Source.. by LEANNE GENDREAU

Conley v US

While this case may seem misplaced, we need to look at the case they cite as authority for their principle: Lambert v California (A sex offender failure to register case)

9-26-2013 District of Columbia:

Conley v US

In 2009, the Council of the District of Columbia enacted a statute, D.C. Code § 22-2511 (2012 Repl.), making it a felony offense for a person to be present in a motor vehicle if the person knows that the vehicle contains a firearm (“PMVCF”), even if the person has no connection to or control over the weapon and is not involved in any wrongdoing whatsoever. This is the first appeal of a PMVCF conviction to come before this court. Appellant Antwaun Conley, joined by the Public Defender Service as amicus curiae, contends that the law is unconstitutional and that the trial court plainly erred in allowing the jury to convict him of this crime.

We agree that the PMVCF statute violates due process. We reach that conclusion for two reasons. First, the essence of the offense is the defendant‟s voluntary presence in a vehicle after he learns that it contains a firearm. Yet instead of requiring the government to prove that the defendant‟s continued presence was voluntary, § 22-2511 requires the defendant to shoulder the burden of proving, as an affirmative defense, that his presence in the vehicle was involuntary. This shifting of the burden of persuasion with respect to a critical component of the crime is incompatible with due process.

Were that the only defect in the statute, it would not necessarily be fatal, for we might sever the constitutionally invalid affirmative defense and construe the remainder of § 22-2511 as imposing on the government the burden to prove that the defendant stayed in the vehicle voluntarily after he learned that it contained a firearm. But burden-shifting is not the statute‟s only constitutional defect; it offends due process in another way. As the Supreme Court explained in Lambert v. California,1 it is incompatible with due process to convict a person of a crime based on the failure to take a legally required action—a crime of omission—if he had no reason to believe he had a legal duty to act, or even that his failure to act was blameworthy.

The fundamental constitutional vice of § 22-2511 is that it criminalizes entirely innocent behavior—merely remaining in the vicinity of a firearm in a vehicle, which the average citizen would not suppose to be wrongful (let alone felonious)—without requiring the government to prove that the defendant had notice of any legal duty to behave otherwise. This is a defect that we cannot cure by interpreting the statutory language.

Accordingly, we are obliged to hold that § 22-2511 is unconstitutional on its face and that appellant‟s conviction for violating that statute must be reversed.

Burk v DOC -and- Cerniglia v DOC

10-1-2013 Oklahoma:

Based on the Starkey decision 6-25-13 (OK Sup Ct) which held:

¶ 81 We agree with the result of the trial court's Order which found the level assignments were not to be retroactively applied and Starkey is only required to register for 10 years.

Two more cases on 10-1-2013 will be granted similar relief, reach having slightly different dates, they are:

Burk v State

Cerniglia v State

Effectively these holding prevent retroactive reclassification of certain offenders. It might be time for OK registrants to have lawyers check, their cases, to see if there is any relief for them.

Ohio sex offender's residence near school upheld

10-3-2013 Ohio:

State v Benedetta

YOUNGSTOWN, Ohio (AP) - An Ohio appeals court has upheld a convicted sex offender's right to live within 1,000 feet of a school, saying a law creating that geographic limit cannot be applied retroactively.

The Belmont County prosecutor argued the ban should apply to Ray Benedetta because he hadn't been living at the property in Shadyside in eastern Ohio all along, but only moved in after the ban became law in 2003.

Ohio's 7th District Court of Appeals ruled late last month that previous court rulings in Ohio make it clear the 2003 ban doesn't apply to people convicted before that year, regardless of how long they've lived within the 1,000 foot limit.

Benedetta was convicted of compelling prostitution in 2001 and finished a 10-year obligation to report to authorities annually last year. ..Source.. by Fox19.com

ACLU-DE Wins Small Victory with Dover Sex Offender Ordinance

10-1-2013 Delaware:

Wilmington, DE (October 1, 2013) — The American Civil Liberties Union of Delaware agreed today to dismiss its lawsuit challenging the City of Dover ordinance adopted in April 2012 to expand residency restrictions for registered sex offenders.

For now, we will have to be satisfied that we won a small victory for our client,” said Richard Morse, ACLU-DE legal director. “Since the city amended the original ordinance to include a grandfather clause and our client can stay in his home, he no longer needs a ruling by the court.”

The ordinance, §70-7 of the Dover Code, restricted registered sex offenders from living or working within 500 feet of a daycare center. The Dover City Council adopted the ordinance despite objections from the ACLU that residency laws actually increase the risk of harm to children.

All studies of residency restrictions for sex offenders have shown that they make the public less safe,” said Kathleen MacRae, ACLU-DE executive director. “These laws destabilize the lives of offenders by pushing them away from the support of family, friends and the mental health services that they need. They also drive offenders into the shadows and away from supervision by law enforcement, one of the most effective tools against recidivism,” MacRae continued.

In a 2012 report, the Delaware Sex Offender Management Board recommended to the General Assembly that Delaware change the statewide residency restriction so that judges can decide whether to apply the restriction. The Board noted in its report:

The sex offender residency restriction was a well-intended effort to keep the children of our community safe. It has, however, had unintended consequences that may decrease community safety. While limited, research findings indicate residency restrictions have little to no effect on sexual re-offense. Housing restrictions appear to be based largely on three ideas, none of which is supported by the evidence.

Federal justice statistics show that only 7% of sex-offenders victimize someone they do not know. Laws such as the Dover ordinance lull communities into a false sense of security by overstating the threat posed by strangers and ignoring the fact that most sexual abuse is committed by a family member or acquaintance.

Dover’s only change to their original ordinance was to eliminate the requirement that people move from the homes where they were living when it was passed. The ordinance still applies to registered sex offenders who wish to move to a home that is near a daycare center.

Even though the city amended the residency ordinance so our client may stay in his home, there are still many other things wrong with this law. The ACLU is ready to file a new lawsuit on behalf of people who seek to move to a prohibited area or work near a daycare center. They should contact us for help,” Morse concluded.

... ..Source.. by ACLU-DE

APPELLATE COURT DETERMINES ORANGE COUNTY SEX OFFENDER ORDINANCE UNLAWFUL

11-15-2012 California:

People v Godinez
UPDATE: Case is on appeal

The ordinance passed by Orange County which prohibits all registrants from entering public parks, beaches, harbors and other recreational areas is unlawful, according to a panel of three Superior Court judges. The unanimous decision was issued on November 15.

According to this decision, the county ordinance violates the constitution of the State of California because it preempts existing state law which prohibits registrants from entering public parks but only if the registrant is on parole and offended against a child who is less than 14 years old. That law is California Penal Code Section 3053.8.

“This is a major victory for registrants, not only in Orange County, but throughout the state of California,” stated Janice Bellucci, California RSOL state organizer. “Registrants can now recreate in the parks, beaches, and harbors of Orange County without fear of being arrested or fined.”

This decision is the result of the dedication and hard work of attorneys within the Orange County Public Defender’s Office who have represented registrant Hugo Godinez, who was arrested in an Orange County Park on May 5, 2011. According to attorney Scott Van Camp, Godinez was attending a mandatory company celebration of Cinco de Mayo at the time of his arrest.

The court’s decision has been referred to the next appellate level for possible review. That court could reject further consideration of this decision or accept the case for additional review. A decision by that court regarding further review of the November 15 decision is expected in December.

The November 15 decision is limited to the Orange County ordinance and does not apply to ordinances passed by cities within that county or any other county. However, additional challenges have been made to similar ordinances adopted by Orange County cities, including but not limited to Tustin, Fullerton, Costa Mesa, Seal Beach, and Huntington Beach. ..Source.. by CA-RSOL