NEW: (# Failure to Register Technicality
NEW: Failure to Register a Sex Offense???
CAUTION: SORNA EFFECTIVE even if state has not enacted it
Plea Bargains: Santabello v New York
Forced to Carry Gov't Message Issue: See HERE
Blog also contains "Unfavorable" and "Informational" decisions and relevant news articles. All can be useful in framing arguments for new court actions. (i.e., avoid pitfalls or inform courts.) Or refuting charges, check facts of cases v yours.
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Find State decisions by the Federal Circuit a State is in.

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For "Personal Life Decisions" consult with a lawyer.

Facebook Rant Against ‘Arial’ Font Helps Reverse Sex Offender Determination

11-29-2013 Massachusetts:

Another day, another workplace problem due to an off-hours Facebook rant. Doe is a convicted sex offender. He fought the Massachusetts Sex Offender Registry Board’s determination that he needed to register as a level 3 sex offender. As part of the normal administrative process, Doe’s case went to hearing examiner Tyson Lynch, who ruled against Doe.

During a 6 month time period around the hearing, Lynch posted remarks to Facebook that included the following (as stated by the opinion):
a. “it’s always awkward when I see one of my pervs in the parking lot after a hearing”;
b. he (the hearing examiner) “likes taking motions under advisement, but gets greater satisfaction denying them”;
c. On November 20, 2008, the day of the plaintiff’s hearing, the following comment was posted during working hours: “it’s always a mistake when people testify, because they get destroyed in cross examination”;
d. On that same day, the day of the plaintiff’s hearing, the hearing examiner also posted the following (apparently with reference to a different sex offender): he (the examiner) “hopes this guy doesn’t show up!!” which was followed up with “Tyson Lynch says yay!! He didn’t show up!”;
e. he “thinks his agency has been the subject of too many news exposes should seek alt career plans?”;
f. he “can’t trust someone who drafts a letter in arial font!”;
g. he “thinks attorneys should know that arial font is not appropriate for motions” followed up with “I might be biased. I think arial is inappropriate for most things”;
h. he “hates silly motions”;
i. he “had to lay some smack down on some crazy attorney!!”;
j. he “is at the longest hearing ever!!!”;
k. The entry above was followed by: he “just sat through a 2.5 hour direct examination! Hearings generally last an hour”;
l. he “is off to jail for the day! Let’s hope he doesn’t get shanked”;
m. The above comment was followed up with “[he] wasn’t stabbed while he was in jail, but with the lax security, I’m surprised it didn’t happen”;
n. “well, they have the convicts cutting down trees, so it might be safer in my car”;
o. “I have a police report written entirely in Spanish!!!”; and
p. he “hates the word ‘lascivious.’

These remarks are damning. The court harshly characterizes them as “unquestionably inappropriate, unprofessional, troubling, and suggestive of a prejudicial predisposition.” The remarks imply Lynch made unwarranted negative presumptions against the people he evaluated (the “pervs” reference), was biased against Spanish speakers, and ruled on the basis of the fonts used in written submissions rather than their legal arguments. (I’m not an Arial fan myself but it’s a respectable font. It would have been more understandable if he had ranted against Comic Sans).

Due to Lynch’s apparent bias, the court vacated the registry board’s ruling against Doe and granted Doe another hearing. That resolution should be just the tip of the iceberg because every other case Lynch heard could be susceptible to similar claims of bias. Not only would any biased rulings by Lynch have potentially ruined people’s lives, but it will take years and enormous amounts of tax dollars to resolve the many likely bias claims from Lynch’s prior cases.

This ruling is quite similar to the Shepherd v. McGee, where a children’s social worker ranted on Facebook in a way that suggested bias in her child placement decisions. No doubt both Lynch and the social worker made ill-advised choices when they ranted about their jobs on Facebook, but I’m not sure Facebook is the “problem.” If, in fact, Lynch really felt the way he did, his beliefs are the real problem and Facebook merely provided a way for other people to discover his beliefs. If instead Lynch was truly joking–edgy humor at best, but perhaps amusing to his intended audience–then he learned the hard way that jokes don’t easily translate online. We probably need to do more education of government workers that it’s best to blow off steam around the water cooler or over beers, not on social media.

Fortunately, it appears Lynch took his own advice in paragraph “e.This report indicates he took a layoff 2 years ago, and this LinkedIn profile suggests he’s now a real estate agent.

Case citation: Doe v. Sex Offender Registry Bd., 11–P–1700 (Mass. App. Ct. Nov. 21, 2013) ..Source.. by Eric Goldman

Lifetime registration unconstitutional for sex offenders

This case is being appealed, see lower paragraph.
11-28-2013 Pennsylvania:

York County judge orders state police to remove seven teens from sex offender registry

Seven local teens facing lifetime registration as sex offenders just got a pass.

A local judge has found the lifetime registration requirement for juveniles to be unconstitutional.

Drawing heavily on last year's U.S. Supreme Court ruling that found mandatory life sentences for juvenile killers unconstitutional, Senior Judge John C. Uhler has held that lifetime registration for juvenile sex offenders also is unconstitutional for many of the same reasons.

In a 41-page analysis and opinion issued Nov. 4, Uhler ruled that the recently implemented Pennsylvania Sexual Offender Registration and Notification Act (SORNA) violates the constitutional rights of juveniles because, while it also conflicts with the purposes of the state's Juvenile Act, it has created the same "one size fits all" feature that the U.S. Supreme Court found unconstitutional in juvenile murder sentencing
.

District Attorney Tom Kearney said he will appeal Uhler's decision.

"We have to," Kearney said Monday. "It puts us in a position where one county is handling matters differently from other counties. The appellate courts will have to decide this."

Uhler noted there was little debate on how the law, which came into effect on Dec. 20, 2012, would affect juvenile offenders.

At the time, he stated, legislators seemed more keen on closing a Megan's Law loophole as it pertained to adult transient and homeless sex offenders.

The law was passed pursuant to federal requirements.

Under SORNA, juveniles adjudicated guilty or who admitted to rape, involuntary deviate sexual intercourse or aggravated indecent assault, are required to register with the state police for life.

The seven juveniles whose cases were considered by Uhler all had been adjudicated or made admissions before SORNA was enacted.

In his opinion, Uhler agreed that Pennsylvania's juvenile courts were created "to provide guidance and rehabilitation for the child and protection for society, not to affix criminal responsibility, guilt and punishment."

Referring to the U.S. Supreme Court rulings that banned mandatory life without parole for juveniles, Uhler agreed that "children are constitutionally different from adults for sentencing purposes ... (because of their) diminished culpability and greater prospects for reform."

Uhler also took into account the wealth of research that shows recidivism among juvenile sex offenders is extremely low.

And although the legislature intended SORNA to be non-punitive, Uhler found the opposite.

SORNA's registration requirements are significantly more stringent than Megan's Law, Uhler held. Uhler also agreed that the "law is not reasonably designed to fulfill its purported function" and that it constitutes additional punishment.

"This court finds the SORNA provisions pertaining to juveniles are punitive and violate the ex post facto (retroactivity) clauses of the Pennsylvania and United States Constitutions," Uhler wrote.


In acknowledging Uhler's decision, the Philadelphia-based Juvenile Law Center called it a "landmark ruling." Deputy director and chief counsel Marsha Levick said on the center's website, "Kids are different. As recognized by the U.S. Supreme Court and as dictated by research, children may not be punished like adults in our justice system.

"As a court of second chances, juvenile court cannot impose lifetime penalties on children who we know are uniquely capable of turning their lives around and contributing to their communities."

Registration requirements for sex offenders

Following is the required information juvenile sex offenders must provide Pennsylvania State Police for the Sexual Offender Registration and Notification Act.

• Names and aliases
• All addresses and residences
• Employment
• School enrollment
• All phone numbers
• Plate numbers and registration numbers for motor vehicles, including boats and planes
• Any temporary lodging
• Information on all Internet and social media accounts
• Occupational and professional licenses

Under SORNA, Tier III juvenile offenders -- those adjudicated or who have admitted to committing or attempting rape, involuntary deviate sexual intercourse, aggravated indecent assault and other specified crimes -- are to report in person to a designated authority every 90 days.

The juvenile also must report in person to notify authorities of any changes in registration information within three business days.

There is a mandatory minimum three-year prison sentence for the first failure to report and a five-year prison sentence for the first failure to provide accurate information.

On Nov. 4, York County Senior John C. Uhler ruled the lifetime registration requirement is unconstitutional.

On Monday, York County District Attorney Tom Kearney said he will appeal Uhler's ruling
. ..Source.. by Rick Lee

Gesmondi v Rhode Island

They lost the lawsuit. See second article below.

11-24-2013 Rhode Island:

Gesmondi v Rhode Island

A lawsuit challenging the constitutionality of a state law that makes it a felony for any person required to register as a sex offender to reside within 300 feet of any school.

Cooperating Attorney: Katherine Godin

All documents are available on the ACLU site

Note: Two of the Plaintiffs are disabled, I wonder if the ACLU has included the Americans w/Disability Act in the case?



Judge Upholds Sex Offender Residency Law; ACLU to Appeal

11-30-2012:

R.I. Superior Court Judge Sarah Taft-Carter today upheld the constitutionality of a state law that makes it a felony for any person required to register as a sex offender to reside within 300 feet of any school. RI ACLU volunteer attorney Katherine Godin, who brought the lawsuit, said the ACLU would appeal the ruling. Across the country, experts involved in the treatment of sex offenders, as well as victims’ rights groups, have opposed sex offender residency laws as being ineffective, counter-productive, and potentially more, rather than less, harmful to public safety. If the ruling is formally implemented pending appeal, a number of ex-offenders in Rhode Island who have not been deemed a public safety risk may likely face potential homelessness.

Two of the plaintiffs reside in Warren Manor II, a Providence facility operated by NRI Community Services, a non-profit provider of mental health and substance abuse treatment. The plaintiffs have developmental disabilities and rely on the staff there to assist them with medication, meals and various other daily activities. They have lived at the facility for three or more years. If forced to leave, the complaint alleged, they are “unlikely to find and be placed in a comparable assisted living facility.” They are designated at the lowest level offender classifications, and are not subject to community notification requirements.

However, the judge rejected the ACLU’s arguments that the statute was punitive in nature, as well as data submitted by the ACLU demonstrating that laws such as these do not protect the public. Attorney Godin said today: “We are extremely disappointed by the ruling and concerned that implementation of the law will have precisely the opposite effect of its stated purpose.”

Among the groups that have publicly raised concerns about broad sex offender residency laws, both locally and nationally, are the RI Disability Law Center, the RI Coalition for the Homeless, Day One Rhode Island, the American Correctional Association, the Association for the Treatment of Sexual Abusers, and the Jacob Wetterling Resource Center. A year before the Rhode Island law was adopted, the Rhode Island Sex Offender Management Task Force prepared a draft statement on residency restrictions that noted that “research shows that sex offenders with residential and family stability (which can be disrupted by such restrictions) are less likely to commit new sex offenses.”

At the time the lawsuit was filed, Chris Stephens, the President/CEO of NRI Community Services expressed concern that subjecting the plaintiffs to potential arrest and eviction under the statute “is not only contrary to their medical needs and increases their risk of homelessness, but it categorically does nothing to make the community safer.”

Shortly after Iowa became the first state in the country to implement a sex offender residency statute, the Iowa County Attorneys Association issued a statement opposing that statute, pointing out that “there is no correlation between residency restrictions and reducing sex offenses against children or improving the safety of children.” Other groups have noted that laws like these perpetuate the myth that most child sex offenses are committed by strangers, when in fact the overwhelming majority are committed by relatives and people the child knows.

In addition to NRI Community Services, representatives from the RI Disability Law Center and the RI Coalition for the Homeless have expressed support for the lawsuit.



RI court upholds 300-feet rule for sex offenders

PROVIDENCE, RI – The Rhode Island Attorney General is praising a ruling from Superior Court Justice Sarah Taft-Carter upholding a law that bars registered sex offenders from living within 300 feet of a school. But Rhode Island ACLU volunteer attorney Katherine Godin is disappointed. She brought the lawsuit opposing the residency restriction on behalf of three clients whose status as sex offenders means they'll have to move out of assisted living facilities and may become homeless. Godin says the law's intentions are good but the actual effects may be doing more harm than good

"We were hoping to have a ruling saying the law is unconstitutional as applied to all sex offenders," says Godin.

Godin says the law hasn't been shown to protect children. But the Rhode Island Attorney General says it was a responsible law to put on the books, like many other states have now done. ..Source.. by KRISTIN GOURLAY



Luster v. State ex rel. Dept. of Corrections

11-21-2013 Oklahoma:

Luster v. State ex rel. Dept. of Corrections

NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. (We will remove this when the final decision is posted)

Plaintiff/Appellee, Christopher Luster, a sex offender, filed a Petition for Temporary and Permanent Injunction, Temporary Restraining Order, and Declaratory Relief to enjoin the Defendant/Appellant, The State of Oklahoma ex rel., Department of Corrections, from enforcing the Sex Offenders Registration Act, 57 O.S., § 581 et seq., against him.

The trial court consolidated this case with those of other plaintiffs filing similar actions and granted a permanent injunction to all the consolidated plaintiffs.

We affirm in part and reverse in part and remand for further proceedings consistent with this opinion.

... ... ...

Conclusion:

We therefore affirm the trial court's Order which held legislative enactments or amendments to SORA cannot be applied retroactively to the plaintiffs.

We reverse the trial court's application of a blanket one-year registration frequency to all consolidated plaintiffs who were not immediately removed from the registry.

We remand the matter to the trial court for a determination of the correct registration provisions for each of the consolidated plaintiffs in light of our holdings in Starkey and Cerniglia, supra. The record herein is silent as to the individual consolidated plaintiffs' factual circumstances, with the exception of Luster.

Therefore, we cannot make a determination as to which specific provisions of SORA would apply to each individual consolidated plaintiff.

On remand the trial court is directed to review the individual consolidated plaintiffs' cases in order to determine the applicable versions of SORA for each of the plaintiffs consistent with our holdings.

Court rules in favor of child rapist in dispute over Facebook posts

11-21-2013 Massachusetts:

Doe v Registry Board

A child rapist has won a new shot to reverse his Level 3 classification after a state appellate court ruled his hearing officer was biased thanks to a string of “troubling” Facebook posts in which he referred to offenders as “pervs,” wrote about taking “satisfaction” in denying motions, and aired his concerns that the Sex Offender Registry Board was featured in “too many news exposes.”

The Sex Offender Registry Board said it has sent “many, if not all” of examiner Tyson Lynch’s classifications decisions during a six-month period back for new hearings, according to a court decision released today that blasted his social media exploits as “unquestionably inappropriate, unprofessional, troubling, and suggestive of a prejudicial predisposition.”



The court sided with the sex offender, who is referred to as John Doe in the case, after he appealed his classification as a Level III sex offender, which is considered the most likely to reoffend. He was convicted in 1997 of two counts each of rape of a child, indecent assault and battery of a child under 14 and incest after raping his then preteen daughter over the course of several months, according to the court decision.

In appealing his classification, he said that Lynch showed “bias” against him, an argument the court upheld after browsing Lynch’s busy Facebook account.

Among Lynch’s posts:
• “It’s always awkward when I see one of my pervs in the parking lot after a hearing”

• “had to lay some smack down on some crazy attorney!!”

• “off to jail for the day! Let’s hope he doesn’t get shanked”

• “can’t trust someone who drafts a letter in arial (sic) font!”
Lynch also said he “likes taking motions under advisement, but gets greater satisfaction denying them” and said he “thinks his agency has been the subject of too many news exposes.”

He mused: “should seek alt career plans?”

“We have significant doubt whether the plaintiff received a hearing conducted by a fair, unbiased, and impartial hearing examiner,” the justices wrote in their decision.

The decision did not detail how many cases were returned for a new hearing, either by a court order or agreement of the board.

Lynch was no longer employed at the board when the three-justice panel heard the case, according to the decision, though it did not specify the circumstances under which he left the job.

A message left with a spokesman for the Sex Offender Registry Board was not immediately returned this morning. ..Source.. by Matt Stout



John DOE, Sex Offender Registry Board No. 29481 vs. SEX OFFENDER REGISTRY BOARD. No. 11-P-1700.
Suffolk. September 12, 2013. - November 21, 2013.

Sex Offender. Sex Offender Registration and Community Notification Act. Administrative Law, Hearing. Evidence, Bias. Due Process of Law, Administrative hearing. Constitutional Law, Impartial tribunal.

CIVIL ACTION commenced in the Superior Court Department on January 22, 2009.

The case was heard by Frank M. Gaziano, J., on a motion for judgment on the pleadings, and a motion to vacate the denial of the motion for judgment on the pleadings was heard by Peter M. Lauriat, J.

Xiomara M. Hernandez for the plaintiff.
Thomas M. Doyle for the defendant.

Board grants first exemption to sex-offender residency rules

11-15-2013 Wisconsin:

Man who applied to stay at address committed crime as a juvenile

When the City Council voted in April to restrict violent or child sex offenders from living within 1,000 feet of schools, playgrounds and other places children spend time, they added a provision allowing offenders wishing to live within a restricted zone to apply for an appeal.

On Thursday morning, the Sex Offender Residency Appeal Board — the committee created to consider such appeals — took action on its first request from an offender seeking an exemption, ruling that a Racine man could stay at an address that lies in one of the prohibited areas. Information was not available on how the location of his residence violated the ordinance.

Gathered in a conference room at City Hall, 730 Washington Ave., the board was charged with considering the application of Karl M. Lindquist, who committed his sex crime when he was a juvenile.

A few minutes after the start of the meeting, the board went into closed session where they reviewed information on the sex crime that led to Lindquist’s arrest, as well as information about his sex offender treatment, possible alcohol and drug use and arrests for other offenses.

Becausee Lindquist was a juvenile at the time the offense occurred, the board was not allowed to release information about it.

Vega v Ryan

11-14-2013 Arizona:

Vega v Ryan

The panel reversed the district court’s denial of a 28 U.S.C. § 2254 habeas corpus petition based on ineffective assistance in counsel’s failure to familiarize himself with the file and call witnesses who could provide exculpatory testimony.

After petitioner’s conviction of contributing to the delinquency of a minor, child molestation, and sexual abuse, his trial lawyer learned that the victim had recanted her allegations to her priest. The panel held that counsel’s failure to familiarize himself with petitioner’s file led to a failure to present a key witness to the jury, and that a reasonable lawyer would not have made such an “inexplicable” decision.

The panel also held that counsel’s deficient performance was prejudicial, because the priest’s testimony about the victim’s recantation was not merely cumulative of her own testimony admitting the recantation to her mother, but could have tipped the scales in petitioner’s favor.

REVERSED AND REMANDED.

US v Wolf Child

10-23-2012 Montana:

US v Wolf Child
699 F.3d 1082 (2012)

Timothy Eric Wolf Child, a Native American, appeals a special condition of supervised release imposed by the district court after he pleaded guilty to attempted sexual abuse. The special condition, condition 9, prohibited Wolf Child from residing with or being in the company of any child under the age of 18, including his own daughters, and from socializing with or dating anybody with children under the age of 18, including his fiancée, in both cases unless he had prior written approval from his probation officer.

The district court imposed the special condition without first making any specific findings regarding the necessity of restricting Wolf Child's ability to have contact with his children and his fiancée. It did so on the basis of a record devoid of evidence supporting the need for such a restriction with respect to his intimate family members.

We hold that the fundamental right to familial association, implicated by the parts of the special condition prohibiting Wolf Child from residing with or being in the company of his own daughters and socializing with his fiancée, is a "particularly significant liberty interest." The district court was therefore required to follow an enhanced procedural requirement to make special findings on the record supported by evidence in the record, that the condition is necessary for deterrence, protection of the public, or rehabilitation, and that it involves no greater deprivation of liberty than reasonably necessary.

Because the district court made no such findings regarding the imposition of the special condition, and it conducted no individualized examination of Wolf Child's relationship with the affected family members, it committed procedural error with regard to these specific individuals.

Moreover, because of the absence of any evidence in the record that would support the limitations on the fundamental liberty interests at issue, we hold that special condition 9, as applied to restrict Wolf Child's ability to reside or socialize with his own children and with his fiancée is substantively unreasonable.

... ... ...

VACATED AND REMANDED.

Can an individual be forced to carry the Government's message?

Washington DC:

Wooley v Maynard
430 U.S. 705 (1997)
Google Scholar (How the --concept-- of Wooley has been used in other cases)

The issue on appeal is whether the State of New Hampshire may constitutionally enforce criminal sanctions against persons who cover the motto "Live Free or Die" on passenger vehicle license plates because that motto is repugnant to their moral and religious beliefs.

Since 1969 New Hampshire has required that noncommercial vehicles bear license plates embossed with the state motto, "Live Free or Die."1 N. H. Rev. Stat. Ann. § 263:1 (Supp. 1975). Another New Hampshire statute makes it a misdemeanor "knowingly [to obscure] . . . the figures or letters on any number plate." N. H. Rev. Stat. Ann. § 262:27-c (Supp. 1975). The term "letters" in this section has been interpreted by the State's highest court to include the state motto. State v. Hoskin, 112 N.H. 332, 295 A.2d 454 (1972).

Appellees George Maynard and his wife Maxine are followers of the Jehovah's Witnesses faith. The Maynards consider the New Hampshire State motto to be repugnant to their moral, religious, and political beliefs,2 and therefore assert it objectionable to disseminate this message by displaying it on their automobiles.3 Pursuant to these beliefs, the Maynards began early in 1974 to cover up the motto on their license plates.4

On November 27, 1974, Mr. Maynard was issued a citation for violating § 262:27-c. On December 6, 1974, he appeared pro se in Lebanon, N. H., District Court to answer the charge. After waiving his right to counsel, he entered a plea of not guilty and proceeded to explain his religious objections to the motto. The state trial judge expressed sympathy for Mr. Maynard's situation, but considered himself bound by the authority of State v. Hoskin, supra, to hold Maynard guilty. A $25 fine was imposed, but execution was suspended during "good behavior."

On December 28, 1974, Mr. Maynard was again charged with violating § 262:27-c. He appeared in court on January 31, 1975, and again chose to represent himself; he was found guilty, fined $50, and sentenced to six months in the Grafton County House of Corrections. The court suspended this jail sentence but ordered Mr. Maynard to also pay the $25 fine for the first offense. Maynard informed the court that, as a matter of conscience, he refused to pay the two fines. The court thereupon sentenced him to jail for a period of 15 days. He has served the full sentence.

Prior to trial on the second offense Mr. Maynard was charged with yet a third violation of § 262:27-c on January 3, 1975. He appeared on this complaint on the same day as for the second offense, and was, again, found guilty. This conviction was "continued for sentence" so that Maynard received no punishment in addition to the 15 days.

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

The State's second claimed interest is not ideologically neutral. The State is seeking to communicate to others an official view as to proper appreciation of history, state pride, and individualism. Of course, the State may legitimately pursue such interests in any number of ways. However, where the State's interest is to disseminate an ideology, no matter how acceptable to some, such interest cannot outweigh an individual's First Amendment right to avoid becoming the courier for such message.14

We conclude that the State of New Hampshire may not require appellees to display the state motto upon their vehicle license plates; and, accordingly, we affirm the judgment of the District Court.

Affirmed.




See North Carolina: Fourth Circuit Declares North Carolina's "Choose Life" License Plate Offering Unconstitutional



Paper: Is it constitutional to FORCE sex offender registrants to carry the governments message?



See Also: Board of Education v Barnette West Virginia State Bd. of Ed. v. Barnette, 319 U.S. 624 (1943)



Food for Thought:
When RSOs go in to register they provide information to the registry personnel. Then the registry displays certain of that information on a public registry; all state action. i.e., registrant -to state- state to public.

However, driver's licenses and license plates are vastly different. How you ask? Well, who is actually carrying (i.e., displaying) the state's message, the RSO, that is not like the state displaying information on the Internet.

So there are some who think that distinction is crazy? In the U.S. Supreme court, the case of
Smith v. Doe (Sex offender registration), during Oral Argument the following discussion took place between Mr. Olson (then Solicitor General for the U.S.) and U.S. Supreme court Justice Kennedy:
Justice Kennedy QUESTION: Could -- could the State require a special mark on your license plate?

MR. OLSON: No, I -- well, I don't know, Justice Kennedy, but I would say that would be considerably different than what's here because that would --

QUESTION: I don't think it's very different.

MR. OLSON: Pardon me?

QUESTION: I don't think it's very different.

MR. OLSON: I -- I respectfully submit that it's a great deal different. That mark on your license plate, or mark on your forehead would go wherever you would go. It would require you to carry the government's message rather than the government supplying the message.

QUESTION: Well, this statute requires you to make the government's message four times a year.

MR. OLSON: It only -- it doesn't require you to make the government's message four times a year. The government's message, I respectfully submit, is made when a citizen submits an inquiry to the State through the Internet listing. All -- it is required four times a year is to advise the government of a current location or current information so that the information on the registry is accurate and -- and up-to-date.

So, who is carrying the message? It is the RSO when it is on his driver's license or license plate. That distinction, following the sentencing where it was not part of the sentence, could very well be construed as further punishment. i.e., a ex post facto violation.

Apparently, there is something in law about, who carries the message to the public, and lawyers know about this. Now to find those lawyers to fight the issue all the way to the U.S. Supreme court. That may be easier said than done.

Novel Federal Civil Child Pornography Case Advances: Prejudgment Attachment Ordered and Stay Denied

11-1-2013 Washington:

On Friday, November 1, 2013, the federal court for the Western District of Washington in Seattle issued a groundbreaking ruling in a novel civil child pornography case which the Marsh Law Firm filed ten months ago on behalf of our client “Amy.”

In this remarkable order, Judge Richard Jones granted our motion for prejudgment attachment of convicted sex offender Joshua Osmun Kennedy’s real and personal property. The claims of another of Kennedy’s victims known as “Vicky” were consolidated with Amy’s case, and her joint-motion was also granted.

The Court summarily denied Kennedy’s request for a stay pending the Supreme Court’s upcoming decision in Paroline v. United States, which Kennedy unsuccessfully argued would be dispositive in this case. Judge Jones instead held that the civil statutes under which Amy and Vicky brought their lawsuits do not contain the same proximate cause requirement that is the subject of the pending Supreme Court case, and refused Kennedy’s request for a stay.

The Court rejected every one of Kennedy’s arguments and granted Amy’s and Vicky’s joint request to attach Kennedy’s real and personal property. The Court relied on the Sixth Circuit’s decision in Doe v. Boland, 698 F.3d 877 (6th Cir. 2012) cert. denied, 133 S. Ct. 2825 (2013), which awarded several victims civil damages after a defendant produced and publicly exhibited morphed child sex abuse images of them.

Citing Boland, Judge Jones held that Amy and Vicky suffered injury to reputation and emotional well-being, and demonstrated the probable validity of their claims:
[E]very time Kennedy shared those pornographic images, Kennedy invaded [Amy’s and Vicky’s] interests and harmed their emotional well-being and reputation.
The Court also emphasized the unique nature of 18 U.S.C. § 2255, known as “Masha’s Law”—under which Amy and Vicky brought suit—which declares that any victim “shall be deemed to have sustained damages of no less than $150,000 in value.” The Court noted the high amount of damages provided by Congress, quoting Boland:
The point of a minimum-damages requirement is to allow victims of child pornography to recover without having to endure potentially damaging damages hearings. Were it otherwise, a fresh damages hearing might inflict fresh wounds, increasing the child’s suffering and increasing the compensatory damages to which she is entitled.
698 F.3d at 882 (emphasis in original)

The Court also rejected Kennedy’s constitutional arguments concerning the $150,000 statutory minimum imposed under Masha’s Law. This included claims that the law violates the Fourteenth Amendment’s prohibition on grossly excessive or arbitrary punishments and the Seventh Amendment’s right to a jury trial.

Finally, the Court rejected Kennedy’s efforts to render any pre-judgment attachment prohibitive through his demand for a $300,000 bond on any attachment which might issue. The Court explained that Kennedy’s request:
is so cost-prohibitive that it would result in the inability of virtually any victim of child pornography to attach any property of a defendant. Such a result would fly in the face of the very statutes that provide a civil remedy for those vulnerable victims if defendants have the ability to creatively move assets to become judgment-proof.
Rather than $300,000, the Court ordered a bond in the amount of the statutory state minimum of $3000. ..Continued.. by Marsh Law Firm's ChildLaw Blog

Appeals Panel Orders New Sentencing For Sex Offender

11-5-2013 Mississippi:

Jackson - A federal appeals court (USA v Nelson) has ordered a Mississippi judge to resentence convicted sex offender Tony Lashawn Nelson because one of the conditions on Nelson's supervised release was unreasonable.

Nelson was sentenced to 18 months in prison for failing to register as sex offender to be followed by 10 years of supervised release. Nelson was released from prison in June.

Nelson was convicted of sexual battery in 1995.

A three-judge panel of the 5th U.S. Circuit Court of Appeals found a Mississippi judge's order that prohibited Nelson from all "direct or indirect contact with any non-biological children" is unreasonable. In an earlier case, a panel ruled such a condition created an "unnecessary deprivation of appellant's liberty."

The panel ordered Nelson resentenced with that condition removed from his supervised release. ..Source.. by WJTV.com

Sex offender asked to move away from La Grange schools

ACLU where are you?

11-4-2013 Illinois:

LA GRANGE – A convicted sex offender has been asked to move because he is living within 500 feet of two schools.

La Grange police notified him that he wasn’t in compliance with state law, even though he is no longer required to register as a sex offender 10 years following a conviction.

Chief Michael Holub said police were aware of his 1989 conviction and that he had fully complied with registration procedures required by laws subsequently passed.

He pleaded guilty in 1989 to having sex with a 13-year-old girl when he was 28 years old in DuPage County.

The Cook County State’s Attorney’s Office had been asked to determine whether he remained on a deed to the property where he lives, which would have exempted him as a property owner from moving. He isn’t listed as an owner on the property, and amendments to the statute apply to him, who is barred from living within 500 feet as a convicted sex offender, the state’s attorney’s office determined.

His residence is across the street from Ogden Avenue School on the northeast corner of Ogden and Waiola avenues, and St. Francis Xavier School on the southeast corner of the intersection.

Holub said he requested and will be given a reasonable amount of time to relocate.

“He has paid his debt to society and wants to remain in compliance,” Holub said.

Police aren’t concerned about him with trick-or-treaters being out for Halloween, Holub said. ..Source.. by The Doing