Sex offender can continue to post photos, judge says

1-28-2014 Washington DC:

A D.C. Superior Court judge ruled Tuesday that a convicted sex offender can distribute and post photos of court employees online to protest the city’s sex offender registry.

Dennis Sobin, a former pornographer who served more than a decade in prison for a sexual performance using a minor, posted the photos of employees from D.C.’s Court Services and Offender Supervision Agency (CSOSA) on idiotsregistry.info saying that sex-offender registries are unfair. A court employee filed for a civil protection order, accused him of stalking and asked the court to have Sobin to remove her photo.

But Judge Todd E. Edelman said that Sobin’s actions were protected by the First Amendment.

“Mr. Sobin’s conduct could be criticized,” said Edelman. “I think it’s unlikely to be effective. I think that criticizing lower-level court employees is puzzling. But that’s not my place to say.”

The unusual case garnered the attention of the ACLU, which filed a brief on Sobin’s behalf. Tuesday’s hearing also drew interest from other sex offenders and anti-registry activists.

“I’m very happy the judge understood and abided by the U.S. Constitution that gives citizens the right to protest, even in a personal sort of way,” Sobin said.

Sobin, 70, thought the decision could inspire similar protests elsewhere.

“The judge’s opinion will be used as ammunition around the country,” he said.

Stephanie Gray, the CSOSA employee who sought the protection order, and her attorneys declined comment.

Vicki L. Henry, president of Indiana’s Women Against Registry, welcomed the decision, saying people are not aware how much sex offender registries damage families.

“There’s no empirical evidence supporting these registries,” said Henry, whose son is a sex offender, outside the courtroom. “We need to promote prevention.”

Derek W. Logue, a sex offender from Ohio who was there to support Sobin, said that registries prevent criminals from moving forward. ..Source.. by Justin Moyer

7th Circuit upholds $100 annual sex offender registry fee

1-24-2014 Wisconsin:

Mueller v Raemisch
740 F.3d 1128
Court Docket

---

This decision overturns
Doe v Raemisch

---

Personally I find this decision disgusting, the judge fails to recognize one "having a choice to use a service (passports)" -vs- "being forced against one's will into and pay for a public governmental system (registries).

---

The $100 that Wisconsin sex offenders must pay every year for being listed on a registry is not an unlawful fine, a federal appeals court has ruled. But the court did not address other lifetime conditions of Wisconsin sex offender registration because it found the challengers lacked standing.

The decision by the 7th U.S. Circuit Court of Appeals reversed a ruling by a Green Bay federal judge, and also thwarted the plaintiffs' request to proceed as unnamed. Instead, the court added their names to the case.

U.S. District Judge William Griesbach had ruled the $100 fee amounted to a fine and therefore was an unlawful "ex post facto" punishment for the two plaintiffs, who had been convicted before Wisconsin adopted the sex offender monitoring law.

Tobin Mueller and Gregory Deangelis remain subject to not only the annual $100 fee, but also many other lifetime requirements and restrictions of the sex offender registry, even though they now live in Connecticut and Florida, respectively, and never intend to return to Wisconsin.

Mueller was convicted in 1993 and served four years in prison plus six years of probation. Deangelis was convicted in 1985 and served five years, then again in 1993 and served one year. Each is now subject to lifetime registry in Wisconsin.

But if that's true, the court wrote, they would likely never face any real consequence of violating those restrictions, such as changing their name, or photographing children, or not reporting a change of address, because Wisconsin admits it has never tried to enforce completely out-of-state violations of the restrictions.

Mueller and Deangelis do have standing to complain about the annual re-registration and fee, but the court said those aspects of the law are not punitive, and therefore not prohibited "ex post facto" law. Judge Richard Posner wrote the opinion for a panel that included Judge Diane Sykes and Judge Frank Easterbrook.

"The fee is intended to compensate the state for the expense of maintaining the sex offender registry," Posner wrote. "The offenders are responsible for the expense, so there is nothing 'punitive' about making them pay for it, any more than it is 'punitive' to charge a fee for a passport."

On the issue of the plaintiffs' request for anonymity, the court noted that while the plaintiffs contend they've been subjected to shunning and harassment for being on the offender registry, which is public, the court generally opposes secrecy. In this case, judges didn't see how any additional harm from being named as plaintiffs could outweigh the disruption to their personal lives they say they already have suffered. ..Source.. by Bruce Vielmetti

---

Google Scholar

Leagel

US v Arnold

Notice what the court DID NOT address. Why?

1-24-2014 Mississippi:

US v Arnold

Luther Arnold appeals pro se the denial of his 28 U.S.C. § 2255 motion, claiming that the registration requirements of the Sex Offender Registration and Notification Act ("SORNA") compel his speech in violation of the First Amendment. We affirm.

n 1994, Arnold pleaded guilty of rape, incest, and homosexual acts in Madison County, Tennessee. As a result of the convictions, he was required to register as a sex offender pursuant to SORNA.1 In 2011, he moved from Marshall County, Mississippi, to Tennessee but did not (a) notify Marshall County of his move, (b) update his registration with Mississippi, or (c) register as a sex offender in Tennessee. Shortly thereafter, he was charged, and pleaded guilty of, failure to register as a sex offender in violation of 18 U.S.C. § 2250(a).2

Arnold did not file a direct appeal but collaterally challenged his sentence using § 2255.3 We granted a certificate of appealability, allowing Arnold to argue on appeal that "SORNA is unconstitutional because the registration requirements violate his right to free speech . . . ."4

We have not addressed whether SORNA's registration requirements violate the First Amendment's prohibition of compelled speech.5 [(5)Cf. Hersh v. United States ex rel. Mukasey, 553 F.3d 743, 765 (5th Cir. 2008) ("The First Amendment protects compelled speech as well as compelled silence."). We therefore begin by discussing West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) and Wooley v. Maynard, 430 U.S. 705 (1977), the relevant Supreme Court precedent on compelled speech. We then turn to related circuit-court precedent.

... ... ...

Arnold has not urged that SORNA either requires him (a) to affirm a religious, political, or ideological belief he disagrees with or (b) to be a moving billboard for a governmental ideological message. In fact, it appears that Congress enacted SORNA as a means to protect the public from sex offenders by providing a uniform mechanism to identify those convicted of certain crimes.10 Barnette and Maynard do not therefore require us to conclude that the government has unlawfully compelled Arnold's speech.

Our limited sister-court precedent further supports this view. The logic of Sindel extends to the present case: When the government, to protect the public, requires sex offenders to register their residence, it conducts an "essential operation[] of [the] government," just as it does when it requires individuals to disclose information for tax collection. And as Cutshall notes, the Constitution does not provide Arnold "with a right to keep his registry information private."

The judgment based on the order denying Arnold's § 2255 motion is AFFIRMED.

Arnold's motion for appointment of counsel is DENIED.

Pennsylvania Supreme Court reinstates child porn charges in Lehigh County sexting case

1-25-2014 Pennsylvania:

Top state court says county judge erred in dismissing porn charges against girl.

A video of a teenage girl and boy engaged in a sex act circulated among Allentown youths for at least a year before another girl was charged with possession and distribution of child pornography for posting it on Facebook.

Although a Lehigh County judge agreed with the girl's attorneys that the charges were "an overreaction by law enforcement" and dismissed them in 2012, the state Supreme Court on Thursday reversed his decision.

The girl, identified in court papers only as C.S., must return to Lehigh County juvenile court to face felony charges in a case that raises new questions about where poor judgment by sexting teens ends and criminal exploitation by child pornographers begins.

Lehigh County Assistant District Attorney Heather Gallagher said police and prosecutors do not believe what C.S. did was sexting, the term used to describe the practice of sending sexually explicit photos, videos or messages using cellphones or computers.

Juvenile Law Center Wins Second Ruling Declaring Pennsylvania's Juvenile Sex Offender Registration Requirements Unconstitutional

1-17-2014 Pennsylvania:

For the second time in the last three months, a Pennsylvania judge has ruled that Pennsylvania’s juvenile sex offender registration requirements are unconstitutional. On January 16, 2014, Monroe County Court of Common Pleas President Judge Margherita Patti-Worthington ruled that Pennsylvania's law requiring juveniles convicted of sexual offenses be subjected to lifetime sex offender registration violates their rights under the Pennsylvania Constitution. (Read Judge Patti-Worthington’s opinion here.)

In 2012, the General Assembly enacted new legislation (SORNA) requiring children convicted of certain sexual offenses to register for life on a sex offender registry. Shortly after the law went into effect, Juvenile Law Center, along with local counsel, Syzane Arifaj of the Monroe County Public Defender’s Office, filed motions on behalf of five youth adjudicated delinquent for offenses committed prior to the law’s effective date. The motions challenged SORNA under several provisions of the Pennsylvania and Federal constitutions as well as the Pennsylvania Juvenile Act.

In a well-reasoned decision, the Monroe County Court held that registration is unconstitutional because it infringes on the youths’ fundamental right to reputation and creates an irrebuttable presumption of dangerousness in violation of the Pennsylvania Constitution’s guarantee of due process. The Court based its decision on a historical analysis of the right to reputation and due process in Pennsylvania, as well as a review of SORNA’s impact on youth as compared to previous versions of Megan’s Law.

The Court drew upon recent U.S. Supreme Court jurisprudence to find that the label of “sex offender” creates harm to a youth’s reputation because it connotes a degree of dangerousness not typically present among youthful offenders. “Being a child implies a unique reputation in our society … Children’s habits are not solidified and this is contemplated in the law ... Where a child’s serious transgressions might have been looked on with a more lenient eye, especially as time passed and wounds were healed, [SORNA] will remind us that this person is a sexual offender and this reminder will persist for the rest of the juvenile’s life.”

The Court also considered the rate of recidivism among youth who commit sexual offenses to determine that the statute is not narrowly tailored to the compelling state interest in protecting the community. The extremely low rate of recidivism indicates that children are not dangerous and therefore do not require costly and burdensome monitoring and registration well into their adulthoods. The lack of any individualized inquiry prior to the imposition of registration further renders SORNA problematic. This presumption that the youth are dangerous without an opportunity to be heard until twenty-five years have passed does not provide meaningful due process.

Juvenile Law Center also challenged SORNA on behalf of juveniles subject to registration in Lancaster County, PA. We are awaiting a decision in that case.

In November 2013, Juvenile Court Judge John C. Uhler of York County, PA ruled SORNA unconstitutional under the Eighth Amendment, as well as the Due Process Clauses of the U.S. and Pennsylvania Constitutions (In the Interest of J.B. et al.). This case is currently on appeal to the Pennsylvania Supreme Court.

Petitioners were represented by Marsha L. Levick and Riya Saha Shah of Juvenile Law Center, and Syzane Arifaj of the Monroe County Public Defender’s Office. The Defender Association of Philadelphia also contributed assistance to the briefing. ..Source.. by Juvenile Law Center

Bloggers have First Amendment protections, federal court rules

1-17-2014 Oregon:

Obsidian Finance Group LLC; Kevin D. Padrick v Crystal Cox

A federal appeals court ruled Friday that bloggers and the public have the same First Amendment protections as journalists when sued for defamation: If the issue is of public concern, plaintiffs have to prove negligence to win damages.

The 9th U.S. Circuit Court of Appeals ordered a new trial in a defamation lawsuit brought by an Oregon bankruptcy trustee against a Montana blogger who wrote online that the court-appointed trustee criminally mishandled a bankruptcy case.

The appeals court ruled that the trustee was not a public figure, which could have invoked an even higher standard of showing the writer acted with malice, but the issue was of public concern, so the negligence standard applied.

Gregg Leslie of the Reporters Committee for the Freedom of the Press said the ruling affirms what many have long argued: Standards set by a 1974 U.S. Supreme Court ruling, Gertz v. Robert Welch Inc., apply to everyone, not just journalists.

"It's not a special right to the news media," he said. "So it's a good thing for bloggers and citizen journalists and others."

Crystal L. Cox, a blogger from Eureka, Mont., now living in Port Townshend, Wash., was sued for defamation by Bend attorney Kevin Padrick and his company, Obsidian Finance Group LLC, after she made posts on several websites she created accusing them of fraud, corruption, money-laundering and other illegal activities. The appeals court noted Padrick and Obsidian were hired by Summit Accommodators to advise them before filing for bankruptcy, and that the U.S. Bankruptcy Court later appointed Padrick trustee in the Chapter 11 case. The court added that Summit had defrauded investors in its real estate operations through a Ponzi scheme.

A jury in 2011 had awarded Padrick and Obsidian $2.5 million.

Fourth District Court of Appeal Tosses City’s Sex Offender Ordinance

2-20-2014: District Attorney Wants Top Court to Review Rulings Overturning Ban on Sex Offenders in Parks

1-14-2014: District Attorney will take sex-offenders fight to state Supreme Court

1-14-2014 California:

People v. Nguyen

The Fourth District Court of Appeal ruled yesterday that state law occupies the field of sex offender restrictions, preempting a city ordinance where the restriction was considered a registration requirement and restriction on daily life.

Div. Three, in an opinion by Richard M. Aronson, affirmed the dismissal of a misdemeanor complaint against JeanPierre Cuong Nguyen. He was charged with violating Irvine Municipal Code §4-14-803, requiring that sex offenders obtain written permission from the city’s police chief before entering a city park and recreational facility.

In determining the relevant field for ascertaining whether state law preempted the ordinance, the court concluded that the state has preempted the field of restrictions on a sex offender’s daily life, not just the geographical restrictions of where a sex offender may travel.

The Legislature, Aronson said, “has enacted a comprehensive statutory scheme regulating the daily life of sex offenders to reduce the risk of an offender committing a new offense…[the statutory scheme] occupies the field and therefore preempts the city’s efforts to restrict sex offenders from visiting city parks and recreational facilities.”

The requirement of written permission, the court held, was a de facto registration mandate. Such a requirement is preempted by state law, especially where the state has long occupied the area of sex offender registration, since 1947, Aronson said.

The district attorney argued that the whole ordinance need not be invalidated because the written permission requirement could be severed from the rest of the city ordinance. The court disagreed, saying that striking the written permission portion from the ordinance would result in an outright ban on sex offenders’ ability to enter parks or recreational facilities, which was not part of the Legislature’s intent.

Aronson said:

“An invalid portion of an ordinance is volitionally separable if the remainder of the ordinance reflects a substantial portion of the legislatives body’s purpose in passing the ordinance. Here, allowing the remainder of Section 4-14-803 to stand as an outright ban on sex offenders entering a city park or recreational facility would go beyond Irvine’s intent.”

A court has does not have the power, Aronson concluded, to sever a portion of a city ordinance where to do so would result in rewriting the ordinance to conform to a presumed intention, substantially altering the meaning of the ordinance as originally enacted. ..Source.. by MICHAEL J. PEIL Staff Writer

---

Recidivism of Sex Offenders Released from Prison in 1994

2013 Outcome Evaluation Report. January 2014.

Homelessness Among California's Registered Sex Offenders - August 2011

Appeals court reinstates indictment against McKeesport man who failed to register as sex offender

1-15-2014 Pennsylvania:

USA V Blake Brown Jr

When it comes to an exemption in the federal sex offender registration law, “not more than four years” means no more than 1,461 days, a federal appeals court ruled Wednesday in a precedential ruling.

A three-judge panel of the U.S. District Court of Appeals ordered U.S. District Judge Joy Flowers Conti to reinstate the indictment of Blake Brown, 28, of McKeesport, who is charged with failing to register after he moved to Pennsylvania from New York. He was arrested in 2011 during a regional sweep by law enforcement of unregistered sex offenders.

Brown was convicted in 2003 in Florida for lewd molestation of a 13 year old when he was 17 years old, the ruling says. The registration law exempts people convicted of consensual acts when the victim was at least 13 and they were “not more than four years older.”

Brown was four years and four months older than his victim. Conti ruled that the federal law was ambiguous about whether the calculation should include only whole years or include months or days. The appeals court said anything past 1,461 days is more than four years. ..Source.. by Tribune-Review

Federal reinstates child porn conviction

1-14-2014 Mississippi:

JACKSON, Miss. — The 5th U.S. Circuit Court of Appeals (USA v James William Smith) has reinstated the conviction of a Tupelo, Miss., man on federal child pornography charges.

A three-judge panel of the 5th Circuit issued the decision Tuesday and returned the case to Mississippi for sentencing.

In 2012, James William Smith sought a new trial in a child pornography case arguing that the court made numerous errors. Instead, U.S. District Judge Sharion Aycock in Aberdeen, Miss., threw out the conviction and acquitted Smith of the charges.

Smith had been convicted of one count of possessing child pornography. The indictment in the case said Smith had movies of child porn on his work computer in Tupelo in 2011.

Aycock said the government failed to prove Smith knew the images were on the computer.

The government failed to prove beyond a reasonable doubt that Smith knowingly possessed the illegal materials found on his computer, Aycock said, adding it is just as likely that the other person downloaded the child pornography onto the computer, as Smith did.

Smith faced up to 10 years in prison upon conviction.

The 5th Circuit panel said the evidence supported the Mississippi jury's guilty verdict.

"We conclude that the prosecution presented sufficient evidence such that the jury could find, beyond a reasonable doubt, that Smith downloaded the files and knew what he was downloading. Given that the nature of the files and the interstate transport are not in dispute, the evidence is thus sufficient to sustain a conviction of knowing possession of child pornography," the panel said.

The panel said courts have found that even when a computer is shared and illegal files are found a jury could reasonably conclude that the owner and possessor of the computer would be aware of at least some of the images on his computer. ..Source.. by SunHerald.com

ACLU Stops Suspicionless Home Searches in Etowah County, Alabama

1-13-2014 Alabama:

MONTGOMERY, Ala. – The American Civil Liberties Union, the American Civil Liberties Union of Alabama, and the law firm Jaffe & Drennan reached a unique settlement Friday in Doe v. Entrekin with the Etowah County Sheriff’s Office, stopping its officers from conducting unannounced, suspicion-less, and warrant-less searches of a family’s home. The sheriff’s office had been performing such searches at the homes of everyone registered for a sexual offense, without exception, ostensibly to verify their residence. Similar programs exist across Alabama and the nation. Under the terms of the settlement, the sheriff’s office will conduct all in-person residence verifications outside a registrant’s home. Officers may not enter the home without the registrant’s written consent at the time of the verification, unless the officers have a warrant or an emergency makes entry necessary.

"The officers had absolutely no authority for these traumatic invasions of their privacy," said Brandon Buskey, ACLU attorney. "Our plaintiffs’ home had been searched numerous times. The registrant has always complied with the state law, and there has never been any reason to believe otherwise. Through this settlement, we have placed important limits on the sheriff’s office’s power in Etowah County that we hope to see throughout the state."

The ACLU’s clients, a family living in Etowah County, were subjected to the sheriff’s office searches because one family member is a registrant. The sheriff’s office conducted these searches even though this plaintiff registers in person at the sheriff’s office four times a year in accordance with state law – a requirement he must fulfill for the rest of his life; the offense occurred when he was 14 years old; he is not on probation or parole; and the state of Alabama determined he is at low risk of reoffending.

The settlement requires the sheriff’s office to make additional changes for registrants who, like the plaintiff, committed their offenses as juveniles, who are no longer on probation or parole, and whom the state has determined to be low risk. For these registrants, the sheriff’s office will be limited to quarterly phone verifications after an initial in-person interview. Officers may conduct subsequent in-person verifications outside the home only if they cannot reach the registrant by phone within the quarter after leaving a message, or if there is reason to believe the registrant is not complying with state law. To protect registrants’ privacy, officers conducting such in-person verifications must be wearing civilian clothing and using an unmarked car.

"For low-risk juveniles, our settlement requires officers to contact the person by phone first, and only if that proves unsuccessful over the course of three months can the officers talk to the person outside the home," Susan Watson, executive director of the ACLU of Alabama, explained. "The settlement is a significant improvement over the old way: demanding entry into a family’s house and threatening arrest if they don’t comply." ..Source.. by ACLU Alabama

Louisiana sex offender Facebook law: New law requires sex offenders post their criminal status

Besides my note below, and the fact that I think this is ludicrous, lets take a different look at this requirement. Are all social networks capable of storing this extra information, do they ask the questions and provide input fields for sex offenders to input the required information? Further proof lawmakers do not take the time to think about what they are proposing.. (see background posts HERE) As of 1-2014 no one has challenged this.

7-11-2012 Louisiana:

LOUISIANA -- A new Louisiana law requires sex offenders and child predators to state their criminal status on their Facebook or other social networking page, with the law's author saying the bill is the first of its kind in the nation.

State Rep. Jeff Thompson, a Republican from Bossier City, Louisiana, says his new law, effective August 1, will stand up to constitutional challenge because it expands sex offender registration requirements, common in many states, to include a disclosure on the convicted criminal's social networking sites as well.

Thompson, an attorney and a father of a 13-year-old daughter and 9-year-old son, said he hopes other states will follow Louisiana.

Social networking sites such as Facebook and MySpace have been removing sex offenders from their web pages for years, but Thompson said the law is designed to cover any possible lapses by social networking sites.

"I don't want to leave in the hands of social network or Facebook administrators, 'Gee, I hope someone is telling the truth,'" Thompson said Tuesday. "This is another tool for prosecutors."

The new law, signed by Gov. Bobby Jindal earlier this month, builds upon existing sex offender registration laws, in which the offender must notify immediate neighbors and a school district of his or her residency near them, Thompson said.

The law states that sex offenders and child predators "shall includes in his profile for the networking website an indication that he is a sex offender or child predator and shall include notice of the crime for which he was convicted, the jurisdiction of conviction, a description of his physical characteristics... and his residential address."

Several states now require sex offenders and child predators to register with authorities their e-mail accounts, Internet addresses or profile names to social network and other web sites, according to the National Conference of State Legislatures. A few states such as Illinois and Texas even outright prohibit sex offenders, as a condition of parole, from accessing social networking websites, the group said.

The Louisiana law is the latest addition to statutes requiring public notice and registrations by sex offenders, Thompson said.

"It provides the same notice to persons in whose home you are injecting yourself via the Internet," Thompson said. "I challenge you today to walk down the street to see how many people and children are checking Pinterest, Instagram and other social networking sites. If you look at how common it is, that's 24 hour a day, seven days a week for somebody to interact with your children and your grandchildren."

Facebook applauded the new Louisiana law, even though it "will have no direct" effect on its service, the company said in a statement to CNN.

"Our Statement of Rights and Responsibilities already bars registered sex offenders from using Facebook," the firm said. "We take the safety and security of our users, especially the many young people on Facebook, very seriously. We have consistently supported legislation to help strengthen law enforcement's ability to find, prosecute and convict online sexual predators."

Violators of the new law could face imprisonment with hard labor for a term between two and 10 years without parole and a fine up to $1,000. A second conviction carries a maximum penalty of imprisonment with hard labor for a term between five and 20 years without parole and a fine up to $3,000.

Thompson consulted prosecutors and the attorney general in Louisiana when drafting the law because last year, a federal court struck down a Louisiana law that outright banned sex offenders and child predators from using Internet. The court found the law too broad, Thompson said.

Last year, the American Civil Liberties Union of Louisiana sought to block the enforcement of that state law that tried to limits sex offenders' use of the Internet, arguing that it infringes on constitutional rights. The law had targeted registered sex offenders convicted in crimes involving children and prohibited the "using or accessing of social networking websites, chat rooms and peer-to-peer networks," according to the legislation that was signed into law in June 2011.

Louisiana lawmakers, however, have not given up on that stricter law. In fact, a revised version was passed by the Louisiana legislature and signed into law in May, but Thompson is skeptical that latest version can survive a court challenge. The revised, new ban prohibits certain registered sex offenders from intentionally using a social networking website, Gov. Jindal said in a statement.

Said Thompson about that new law: "It may very well fall under scrutiny and attack. That's one of the reasons that I created the bill I did. I'm not trying to create a ban. I'm just trying to create an expansion of the existing notice requirements." ..Source.. by Michael Martinez, CNN

State appeals court finds California law trumps Orange County's strict sex offender measures

2-20-2014: District Attorney Wants Top Court to Review Rulings Overturning Ban on Sex Offenders in Parks

1-14-2014: District Attorney will take sex-offenders fight to state Supreme Court

1-11-2014 California:

People v Godinez and HERE

LOS ANGELES — A California appeals court ruled Friday that state law trumps Orange County regulations banning sex offenders from parks and beaches, dealing a serious setback to some of the strictest sex-offender rules in the state.

The decision comes after a county court in 2012 overturned the conviction of a sex offender for going to a park and asked the 4th District Court of Appeal to rule on the case and the legality of the regulations, the Los Angeles Times reported. The Sheriff's Department had already stopped enforcing the law in response.

The registered sex offender, Hugo Godinez, was convicted of a misdemeanor for going to a company picnic at a Fountain Valley park in 2012. He had been convicted of misdemeanor sexual battery two years earlier to earn the sex offender status.

Orange County's restrictions passed in 2011 barred offenders from parks and beaches unless they got written permission from the sheriff.

The appeals judges on Friday found that the rule amounted to a "de facto registration requirement" and conflicts with laws passed by the state which already provide a "comprehensive statutory scheme regulating the daily life of sex offenders."

A phone message left with the district attorney's office after business hours by The Associated Press was not immediately returned, but the DA's Chief of Staff Susan Kang Schroeder told City News Service the county may appeal further.

"We're going to review our options requesting the Supreme Court of California to review this case," Schroeder said. "We believe in this war in protecting children against sex offenders that the state never intended to pre-empt every law keeping sex offenders out of parks."

On the urging of the district attorney, several cities passed similar measures, the Times reported. Many of them were also facing legal challenges and one, Lake Forest, has already repealed its rules. ..Source.. by Daily Journal

---

Recidivism of Sex Offenders Released from Prison in 1994

2013 Outcome Evaluation Report. January 2014.

Homelessness Among California's Registered Sex Offenders - August 2011

US v Sterba

8-13-1998 Florida:

US v Sterba

The grand jury indicted James R. Sterba (Sterba) for allegedly violating 18 U.S.C. § 2422(b)1 by soliciting a minor for an unlawful sexual encounter.2 Sterba allegedly utilized a computer and the services of one of the adult "chat rooms" of America Online (AOL) to contact and persuade a putative minor to engage in sexual activity with him at an agreed time and place. A "chat room" is a service, available through the much-discussed "Internet," by which a participant sends to and receives messages from an unseen person who presumably shares some particular enthusiasm, in this instance, sexual intercourse.

After both the United States and Sterba completed their trial presentation and rested their respective cases, Sterba interposed a motion for mistrial based upon both the government's misidentification of a material witness and the consequent infringement of Sterba's sixth amendment right to confront the witnesses against him. I granted the motion. Sterba now seeks dismissal of the indictment based upon his fifth amendment immunity from being "for the same offence ... twice put in jeopardy ...", a right commonly called his immunity from "double jeopardy."

... ... ...

Conclusion:

By a course of intentional misconduct, discovered serendipitously by the defense during trial, the prosecution goaded the defense into moving for a mistrial. The defendant's fifth amendment immunity from double jeopardy precludes another trial and, therefore, requires the dismissal of the indictment.

The defendant's motion to dismiss the indictment is GRANTED.

---

See Prosecutorial Misconduct Registry

And this 2013 article:

The Untouchables: America's Misbehaving Prosecutors, And The System That Protects Them

NEW ORLEANS -- Some questions seem particularly prone to set John Thompson off. Here's one he gets a lot: Have the prosecutors who sent him to death row ever apologized?

"Sorry? For what?" says Thompson. The 49-year-old is lean, almost skinny. He wears jeans, a T-shirt and running shoes and sports a thin mustache and soul patch, both stippled with gray. "You tell me that. Tell me what the hell would they be sorry for. They tried to kill me. To apologize would mean they're admitting the system is broken." His voice has been gradually increasing in volume. He's nearly yelling now. "That everyone around them is broken. It's the same motherfucking system that's protecting them."

He paces as he talks. His voice soars and breaks. At times, he gets within a few inches of me, jabbing his finger in my direction for emphasis. Thompson pauses as he takes a phone call from his wife. His tone changes for the duration of the conversation. Then he hangs up and resumes with the indignation. "What would I do with their apology anyway? Sorry. Huh. Sorry you tried to kill me? Sorry you tried to commit premeditated murder? No. No thank you. I don't need your apology."

The wrongly convicted often show remarkable grace and humility. It's inspiring to see, if a little difficult to understand; even after years or decades in prison, exonerees are typically marked by an absence of bitterness.

Not Thompson, but you can hardly blame him. Even among outrageous false conviction stories, his tale is particularly brutal. He was wrongly convicted not once, but twice -- separately -- for a carjacking and a murder. He spent 18 years at the Louisiana State Penitentiary, 14 of them on death row. His death warrant was signed eight times. When his attorneys finally found the evidence that cleared him -- evidence his prosecutors had known about for years -- he was weeks away from execution.

But what most enrages Thompson -- and what drives his activism today -- is that in the end, there was no accountability. His case produced a surfeit of prosecutorial malfeasance, from incompetence, to poor training, to a culture of conviction that included both willfully ignoring evidence that could have led to his exoneration, to blatantly withholding it. Yet the only attorney ever disciplined in his case was a former prosecutor who eventually aided in Thompson's defense.

"This isn't about bad men, though they were most assuredly bad men," Thompson says. "It's about a system that is void of integrity. Mistakes can happen. But if you don't do anything to stop them from happening again, you can't keep calling them mistakes."

Over the last year or so, a number of high-profile stories have fostered discussion and analysis of prosecutorial power, discretion and accountability: the prosecution and subsequent suicide of Internet activist Aaron Swartz; the Obama administration's unprecedented prosecution of whistleblowers; the related Department of Justice investigations into the sources of leaks that have raised First Amendment concerns; and aggressive prosecutions that look politically motivated, such as the pursuit of medical marijuana offenders in states where the drug has been legalized for that purpose. In May, an 82-year-old nun and two other peace activists were convicted of "sabotage" and other "crimes of violence" for breaking into a nuclear weapons plant to unfurl banners, spray paint and sing hymns. Even many on the political right, traditionally a source of law-and-order-minded support for prosecutors, have raised concerns about "overcriminalization" and the corresponding power the trend has given prosecutors.

Most recently, the Justice Department came under fire for its investigation of leaks to the media, including a broad subpoena for phone records of the Associated Press, and for obtaining the phone and email records of Fox News reporter James Rosen. In the Rosen case, Attorney General Eric Holder personally signed off on a warrant that claimed that merely publishing information that had been leaked to him made Rosen a criminal co-conspirator. Many have pointed out that such a charge would make it a crime to practice journalism.

President Obama has since expressed his dismay at the Rosen warrant, but his response was curious. He asked Holder to investigate the possible misconduct that not only occurred under Holder's supervision, but in which Holder himself may have participated.

In asking Eric Holder to investigate Eric Holder, Obama illustrated the difficulty of adequately addressing prosecutorial misconduct as well as anyone possibly could: Prosecutors are relied upon to police themselves, and it isn't working. A growing chorus of voices in the legal community says the problem is rooted in a culture of infallibility, from Holder on down. And it's against this backdrop -- this environment of legal invincibility -- that we get the revelations of massive data collection by the National Security Agency, government employees who lie to Congress with no repercussions, and government investigators, courts and prosecutors operating in secret. ..Continued..

Sex offender disputes claim he moved

We wonder, as to the vehicle address, under Pennsylvania DMV code, is anyone who fails to change addresses -on vehicle registrations- likewise prosecuted? Or whether vehicles towed or otherwise impounded are checked and prosecuted likewise if addresses are different between licensed owners and registered vehicle addresses. In addition, does MV code charge a felony for incorrect motor vehicle addresses?

1-8-2014 Pennsylvania:

WILKES-BARRE — Police say convicted sex offender Cyrus Spencer moved without informing authorities, as required under Megan’s Law, and that he admitted as much to officers.

Spencer’s response? Prove it.

Defense attorney Allyson Kacmarski has filed a motion on Spencer’s behalf in Luzerne County Court, seeking a hearing in connection with the allegations against her client, arguing the prosecution does not have enough evidence to prove its case.

Luzerne County Judge Michael T. Vough on Monday scheduled the hearing to take place at 2 p.m. Feb. 7.

According to an affidavit filed by state police, Newport Township Police Chief Jeremy Blank told Trooper Martin Connors that on Jan. 4, 2013, he went to a home on Miner Avenue, Wanamie, in connection with an unrelated incident.

While there, Blank told Connors, he encountered Spencer, who told the chief he was living at the address, according to the affidavit. A records check revealed that Spencer was a Megan’s Law offender listed as living on Essex Lane in Wilkes-Barre.

In March 2000, a Luzerne County jury Wednesday found Spencer, then of Hunlock Township, guilty of sexually assaulting a 15-year-old girl. The following month, county Judge Mark Ciavarella sentenced Spencer to a state prison term of six to 12 years.

State records show that Spencer, 48, is a Tier 3 offender and must register for life. State police must be notified of any change of address within three days.

Newport police said they returned to the Miner Avenue residence the following week and took statements from Spencer and his girlfriend indicating that they had moved into the apartment on Jan. 1, 2013. Police said they also obtained a written statement from the landlord — the girlfriend’s father — who said the couple moved in on Jan. 1.

On Jan. 18, 2013, Spencer’s girlfriend was cited with a traffic violation while driving his car, which was then towed, police said. Spencer called Blank a short time later to ask where the vehicle was, and the chief told him “he could be towed for numerous violations including failure to change his address and his motor vehicle registration,” the affidavit says.

Later that day, according to police, Spencer arrived at the police station to drop off a change of address form for his license and vehicle registration, which indicated he had moved on Jan. 1.

Spencer is facing two counts of failure to address/be photographed, a felony.

According to the motion filed by Kacmarski, the defense does not believe the prosecution can establish a case. ..Source.. by Roger DuPuis

Megan's Law offender granted new trial

1-8-2014 Pennsylvania:

A man awaiting trial on homicide charges can have a new trial on his alleged failure to register as a sex offender, the state Superior Court ruled Tuesday.

Joseph Walter Derhammer, 43, is entitled to a new trial because he was apparently not informed he could waive the right to a jury trial, the panel of three state judges determined.

Derhammer is also awaiting trial on criminal homicide charges related to the April 13, 2009 arson fire that caused the death of his ex-girlfriend Nancy Kostelnick, 48, and her daughter Carolyn "C.J." Kostelnick, 23.

Police said the porch of the Kostelnicks' house at 46 Chester St., Wilkes-Barre, was set alight using combustible materials, which created a fast-moving fire. The Kostelnicks died from carbon monoxide poisoning.

While investigating the fire, law enforcement officials discovered Derhammer's alleged failure to register as a sex offender. He committed involuntary deviate sexual intercourse in 1995, records show.

Derhammer had moved out of the Kostelnicks' house on April 1, 2009, but did not register until five days later. Megan's Law requires sex offenders to register within two days of changing addresses.

After a 90-minute trial on March 3, 2011, former Luzerne County judge Lewis Wetzel found Derhammer guilty of the Megan's Law violation. Derhammer appealed, and the commonwealth and superior courts reversed the sentence on the grounds that the record is "devoid of any indication that anyone informed Derhammer of his waiver rights." ..Source.. by CitizensVoice.com

Federal appeals court throws out child pornography conviction because of repulsed juror

1-7-2014 Ohio:

USA v Shepard

A federal appeals court on Tuesday threw out a northeast Ohio child pornography conviction because of a juror who said he was repulsed by graphic images.

A 6th U.S. Circuit Court of Appeals panel ordered a new trial for a man who had been sentenced to 14 years in prison and to pay $3,000 in restitution to a child victim, among other conditions. A federal jury in 2011 had found Trent Shepard of Poland, Ohio, guilty on three counts of receiving visual depictions of minors engaged in sexually explicit conduct and one count of attempted receipt.

The images were allegedly found on laptops belonging to a financial company he had worked for from his home. Court records state that Shepard indicated he didn't know how the material got into his computer.

The three-judge panel unanimously agreed Shepard was deprived of his right to a fair and impartial jury by the trial judge's failure to remove a juror who expressed disgust about child pornography.

"He (the juror) expressed without qualification his belief that child pornography was evidence of 'the lowest form of humanity' and is 'just disturbing,' " Judge Martha Craig Daughtrey wrote in their opinion.

The juror, who wasn't identified, had expressed reservations during jury questioning, but said he could follow the law. However, he raised more concerns after being sworn in, saying he had two small children and couldn't view child pornography.

"I don't want those images in my head, trying to get those out of my head for the next 10 years," the juror said when questioned by the prosecutor, according to court documents. The judge declined to dismiss the juror and rejected a motion for a mistrial.

The appeals panel said the juror should have been removed, "in light of this evidence of bias and inability to follow" his oath.

Mike Tobin, a spokesman for the U.S. attorney's office in Cleveland, said it was too soon to comment or say whether the ruling would be appealed. Shepard's attorney didn't immediately return a call. ..Source.. by DAN SEWELL

Child porn case dismissed

1-7-2014 Washington:

A court case claiming a former Sammamish resident was in possession of child pornography has been dismissed.

Joseph Padgett was charged in January 2011 with first-degree possession of child pornography in connection with five computers, four external hard drives and a USB thumb drive containing hundreds of images of child pornography, according to charging documents filed in King County Superior Court at the time.

Padgett’s estranged wife said she had discovered the computers, according to the documents. She turned the material over to King County Sheriff’s Office detectives in November 2010.

The estranged wife said she did not see any of the images of child pornography. She found some images that, while disturbing, were not illegal, and some computers and electronic storage devices that were fingerprint-protected.

She was informed by legal counsel that the images she could see would not be sufficient for police to obtain a search warrant to break the protections on the other storage devices.

After other developments, police were able to obtain a warrant.

Law enforcement analysis of the computers turned up the child pornography. However, that evidence was suppressed. A court order filed in November 2013 said the search warrant used to review the evidence was too vague. The order cited previous case law.

“It has been crystal clear in the State of Washington since 1992 that the term ‘child pornography’ is unconstitutionally vague and will not support a search warrant,” read the court ruling signed by Judge Jim Rogers.

Last month, Rogers signed another order recognizing that the practical effect of suppressing the evidence was to terminate the case, and the case against Padgett was dismissed without prejudice.

The prosecutor has filed a notice of appeal of the decision, said Dan Donohoe, spokesman for the King County Prosecutor’s Office. No dates have been set. ..Source.. by Ari Cetron

Gennette v Florida

9-13-2008 Florida:

Gennette v Florida

Edwin Gennette appeals his conviction and sentence for one count of unlawful use of a two-way communications device to facilitate a felony, in violation of section 934.215, Florida Statutes. The conviction was based on Appellant's plea of nolo contendere, entered after the trial court denied the defense's motion to dismiss the charges.1

Appellant's plea reserved his right to appeal the denial of the motion to dismiss. In his motion, Mr. Gennette argued that his conduct was the product of entrapment by the government, as defined by section 777.201, Florida Statutes, and that he was thus entitled to dismissal as a matter of law.

We agree, reverse the denial of the motion to dismiss and the resulting conviction and sentence, and remand to the trial court with instructions to dismiss the charge.

... ... ...

In the case before us, the e-mail chain established, by a preponderance of evidence, that the government induced or encouraged Appellant, and due to his lack of predisposition, caused him by methods of persuasion to commit the offenses charged. As previously noted, the parties stipulated that Appellant was "a person other than one who is ready to commit" the offense. § 777.201(1), Fla. Stat.