tag:blogger.com,1999:blog-30785573541210894692023-11-16T07:18:04.403-05:00Sex Offender Court DecisionseAdvocatehttp://www.blogger.com/profile/09569822127629044435noreply@blogger.comBlogger423125tag:blogger.com,1999:blog-3078557354121089469.post-40805686352064598612017-04-15T15:39:00.000-04:002017-04-15T15:58:23.568-04:00People v Michael Diack<div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg8yyRYlLBAv9iY1DvO15WHYRk7weZsDzipyppw8Xib_5j31bVoxt_d78Rkz1jWutfPrYmZ1icj3qVUDG-xd3oSA-CmjUCf4qWb7V5E8oB281Q6y7ROMpTbk0umldmuUoPufQBO4F-VmkfW/s1600/a-court.jpg" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg8yyRYlLBAv9iY1DvO15WHYRk7weZsDzipyppw8Xib_5j31bVoxt_d78Rkz1jWutfPrYmZ1icj3qVUDG-xd3oSA-CmjUCf4qWb7V5E8oB281Q6y7ROMpTbk0umldmuUoPufQBO4F-VmkfW/s200/a-court.jpg" /></a></div><b>2-17-2015 New York:</b><br />
<br />
<a href="http://caselaw.findlaw.com/ny-court-of-appeals/1692393.html">People v Michael Diack</a><br />
<br />
Kathy Manley, for appellant. Kenneth L. Gartner, for respondent. New York Civil Liberties Union, amicus curiae.<br />
<br />
In 2006, Nassau County enacted Local Law No. 4–2006 (Local Law 4), which, as relevant here, prohibits registered sex offenders from residing within 1,000 feet of a school. In recent years, dozens of municipalities in this State have enacted similar laws that prohibit registered sex offenders from living within a certain distance of schools, daycare centers, parks, youth centers and other areas where children are likely to congregate.1 That such laws are proliferating at an accelerated rate is hardly surprising, given the significant interest involved, namely, the protection of children from sex offenders. Local governments have, understandably, relied on their police power in furthering that interest.<br />
<br />
But a local government's police power is not absolute. When the State has created a comprehensive and detailed regulatory scheme with regard to the subject matter that the local law attempts to regulate, the local interest must yield to that of the State in regulating that field. We hold that the State's comprehensive and detailed statutory and regulatory framework for the identification, regulation and monitoring of registered sex offenders prohibits the enactment of a residency restriction law such as Local Law 4.<br />
<br />
I.<br />
<br />
In 2001, defendant, a Nassau County resident, was convicted of the crime of possessing an obscene sexual performance by a child (Penal Law § 263.11). He served 22 months in prison and, upon his release from custody, was classified a level one sex offender under the Sex Offender Registration Act (Correction Law art 6–C, § 168 et seq.). Defendant was discharged from parole on August 19, 2004. In July 2008, defendant reported his change of address to the New York State Division of Criminal Justice Services. Upon receiving this information, the Nassau County Police Department determined that defendant had moved to an apartment located within 500 feet of two schools.<br />
<br />
Defendant was charged by information with a violation of Nassau County Local Law 4, which is codified in Nassau County Administrative Code § 8–130.6. That provision states, in relevant part, that “[i]t shall be unlawful for any registered sex offender to establish a residence or domicile where the property line of such residence or domicile lies within: (1) one thousand feet of the property line of a school; or (2) five hundred feet of the property line of a park ․” (Nassau County Administrative Code § 8–130.6[a][1], [2] ). The code defines a “registered sex offender” as “a person who has been classified as a Level 1, Level 2 or Level 3 sex offender and who is required to register with the New York state division of criminal justice services, or other agency having jurisdiction,” pursuant to the Sex Offender Registration Act, regardless of whether the sex offender has actually registered (id . at § 8–230.2).<br />
<br />
Defendant moved to dismiss the information on the ground that Local Law 4 and section 8–130.6 are preempted by state law. The District Court of Nassau County granted the motion and dismissed the charge on the ground that Local Law 4 is preempted by New York's “comprehensive statutory scheme for sex offenders.” The Appellate Term reversed and reinstated the information, holding that it could not discern any express or implied intention by the Legislature through the enactment of the Sex Offender Registration Act (and other state laws) to occupy the entire field so as to prohibit the enactment of local laws imposing “residency restrictions for sex offenders who are no longer on probation, parole supervision, subject to a conditional discharge or ․ seeking public assistance” (41 Misc.3d 36, 39 [App Term, 2d Dept, 9th and 10th Jud Dists 2013] ). A Judge of this Court granted defendant leave to appeal. <a href="http://caselaw.findlaw.com/ny-court-of-appeals/1692393.html">..Continued..</a><br />
<br />
<hr><br />
<a href="http://niagarafallsreporter.com/Stories/2015/MAR24/SexOffenders.html">Courts: New York State Law Trumps Stricter Local Laws in Residency Requirements for Sex Offenders</a><br />
<br />
<hr>eAdvocatehttp://www.blogger.com/profile/09569822127629044435noreply@blogger.com0tag:blogger.com,1999:blog-3078557354121089469.post-79215381786768426622016-09-14T17:14:00.000-04:002017-04-15T15:33:33.686-04:00Doe v Bredesen <div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg8yyRYlLBAv9iY1DvO15WHYRk7weZsDzipyppw8Xib_5j31bVoxt_d78Rkz1jWutfPrYmZ1icj3qVUDG-xd3oSA-CmjUCf4qWb7V5E8oB281Q6y7ROMpTbk0umldmuUoPufQBO4F-VmkfW/s1600/a-court.jpg" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg8yyRYlLBAv9iY1DvO15WHYRk7weZsDzipyppw8Xib_5j31bVoxt_d78Rkz1jWutfPrYmZ1icj3qVUDG-xd3oSA-CmjUCf4qWb7V5E8oB281Q6y7ROMpTbk0umldmuUoPufQBO4F-VmkfW/s200/a-court.jpg" /></a></div><b>11-16-2007 Tennessee:</b><br />
<br />
<a href="http://www.leagle.com/decision/20071505507F3d998_11499/DOE%20v.%20BREDESEN">Doe v Bredesen</a><br />
<br />
Plaintiff-appellant John Doe pleaded guilty in the Criminal Court of Knox County, Tennessee, to attempted aggravated kidnapping in violation of TENN.CODE ANN. §§ 39-12-101 and 31-13-304, and two counts of sexual battery by an authority figure in violation of TENN.CODE ANN. § 39-13-527. After Doe was convicted and sentenced, the Tennessee Legislature enacted the Tennessee Sexual Offender and Violent Sexual Offender Registration, Verification, and Tracking Act of 2004 ("the Registration Act"), TENN.CODE ANN. § 40-39-201 et seq., which became effective on August 1, 2004. The Registration Act reclassified Doe as a violent sexual offender, see TENN. CODE ANN. § 40-39-202(24)(j), and required him to comply with the requirements of the Tennessee Bureau of Investigation ("TBI") Sexual Offender Registry for the rest of his life, see TENN.CODE ANN. § 40-39-207(g)(1)(B). <br />
<br />
The Tennessee Legislature also enacted the Tennessee Serious and Violent Sex Offender Monitoring Pilot Project Act ("the Monitoring Act"), TENN.CODE ANN. § 40-39-301 et seq., which became effective July 1, 2004.1 The Monitoring Act authorized the Tennessee Board of Probation and Parole ("the board") to subject a convicted sexual offender to a satellite-based monitoring program for the duration of his probation. TENN.CODE ANN. § 40-39-303. In August 2005, Doe's probation officer notified him that he would be required to wear a global positioning ("GPS") device at all times beginning in September 2005.<br />
<br />
Doe brought suit in the United States District Court for the Eastern District of Tennessee ("the district court") alleging that because he was convicted before the effective date of the Registration and Monitoring Acts, the application of the Acts' requirements to him violated the Ex Post Facto Clauses of the United States Constitution (Article I, Section 3, Clause 3) and the Tennessee Constitution, as well as his right to procedural due process and his right against self-incrimination under the Fifth Amendment of the U.S. Constitution, and his right to privacy under both constitutions. The government moved to dismiss the complaint under FED.R.CIV.P. 12(b)(6) for failure to state a claim on which relief could be granted, and Doe filed an opposition brief that supported only the Ex Post Facto claims. Doe's opposition brief also sought to raise a claim that was not in his complaint — that application of the Registration and Monitoring Acts to him violated his plea agreement.<br />
<br />
The district court ruled that Doe's ex post facto claims were meritless, the government had not breached the plea agreement, and Doe had abandoned his other claims. The district court dismissed the complaint, and Doe timely appealed. <br />
<br />
For the reasons that follow, <span style="color:black;background-color:#ffff04">we affirm</span>. In doing so, we hold, inter alia, <span style="color:black;background-color:#ffff04">that <b>the Registration Act</b> (TENN.CODE ANN. § 40-39-201 et seq.) and <b>the Monitoring Act</b> (TENN.CODE ANN. 40-39-301 et seq.) do not violate the Ex Post Facto Clause of the United States Constitution</span>.<br />
<br />
<hr><br />
See: <a href="http://lawreview.law.ucdavis.edu/issues/44/2/notes/44-2_Lee.pdf">Severing the Invisible Leash: A Challenge to Tennessee’s Sex Offender Monitoring Act </a><br />
<br />
<hr>eAdvocatehttp://www.blogger.com/profile/09569822127629044435noreply@blogger.com0tag:blogger.com,1999:blog-3078557354121089469.post-31477285485553217862016-08-26T12:59:00.000-04:002016-09-18T08:01:12.134-04:00Appeals Court: Amended Michigan Sex Offender Laws Flawed and Unconstitutional<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEim3_vTI3vug6iUMd_2vhxU3EKEAwaRQIsUh02Y7pwDZ2ox_vPXQcVOy1DjM_CNTFV3VaS_3fgF8WeEYUYQZQsVxPXdEEGD4b6vOmI-ytzqlac6Ns3RaXWIDFS7z1WT99Y41X7CLCm3BMuC/s1600/a-info-post.jpg" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" height="137" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEim3_vTI3vug6iUMd_2vhxU3EKEAwaRQIsUh02Y7pwDZ2ox_vPXQcVOy1DjM_CNTFV3VaS_3fgF8WeEYUYQZQsVxPXdEEGD4b6vOmI-ytzqlac6Ns3RaXWIDFS7z1WT99Y41X7CLCm3BMuC/s200/a-info-post.jpg" width="200" /></a><b>8-26-16 Michigan:</b><br />
<br />
<b>Comment from William Dobbs:</b><br />
<br />
A late summer win! Yesterday a three judge panel (Gilbert Merritt, Alice Batchelder and Bernice Donald) of the US Sixth Circuit Court of Appeals handed down a decision remarkable for what it does, the legal reasoning, and explicit hope for future legal challenges. <br />
<br />
Legislators have a habit of imposing new punishments on those already sentenced for sex offenses. The court put a stop to that, declaring the practice “ex post facto” and unconstitutional. Many of Michigan’s 40,000+ registrants will benefit shortly. <br />
<br />
Is the registry punishment? Registrants and just about anybody else would say yes. Courts, however, usually say no, viewing the registry as an administrative matter, sidestepping consideration of legal challenges by registrants. <br />
<br />
The Sixth Circuit judges took a careful look, got real, <span style="color:black;background-color:#ffff04">and resoundingly declared the registry is punishment</span>—an important holding by a federal circuit court. The 14-page decision ends with tantalizing hope for the future, noting that claims the court did not consider are “far from frivolous and involve matters of great public importance.” The infernal registry is still standing but this is a significant victory for reason and justice. <br />
<br />
<b>Decision</b><br />
Does v. Snyder<br />
US Court of Appeals for the Sixth Circuit, Case Nos. 15-1536/2346/2486<br />
<br />
<b>Decision filed Aug. 25, 2016:</b><br />
<a href="http://www.opn.ca6.uscourts.gov/opinions.pdf/16a0207p-06.pdf">http://www.opn.ca6.uscourts.gov/opinions.pdf/16a0207p-06.pdf</a><br />
Audio of oral argument - <a href="http://www.opn.ca6.uscourts.gov/internet/court_audio/aud2.php?link=recent/01-27-2016%20-%20Wednesday/15-1536%20%20Richard%20Snyder%20Governor%20et%20al%20vs%20John%20Does%20et%20al.mp3&name=15-1536%20%20Richard%20Snyder%20Governor%20et%20al%20vs%20John%20Does%20et%20al">Part One--Jan. 27, 2016</a> .. <a href="http://www.opn.ca6.uscourts.gov/internet/court_audio/aud2.php?link=audio/04-27-2016%20-%20Wednesday/15-2346%20John%20Does%20v%20Richard%20Snyder.mp3&name=15-2346%20John%20Does%20v%20Richard%20Snyder">Part Two--Apr. 27, 2016</a><br />
<br />
<hr><br />
See also:<br />
<br />
<a href="http://www.freep.com/story/news/local/michigan/2016/08/25/michigan-sex-offender-registry/89367938/">Court: Michigan's toughened sex offender rules cannot be retroactive</a> by David Eggert<br />
<br />
<a href="http://wemu.org/post/appeals-court-says-michigan-sex-offender-law-flawed-and-not-working#stream/0">Appeals Court Says Michigan Sex Offender Law Flawed And Not Working</a> by Rick Pluta <br />
<br />
<hr>eAdvocatehttp://www.blogger.com/profile/09569822127629044435noreply@blogger.com0tag:blogger.com,1999:blog-3078557354121089469.post-67641707358249457432016-08-25T13:20:00.000-04:002016-08-26T12:38:31.871-04:00Colorado SOMB Approved Standards Revisions Sexual Offense History Questions<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEim3_vTI3vug6iUMd_2vhxU3EKEAwaRQIsUh02Y7pwDZ2ox_vPXQcVOy1DjM_CNTFV3VaS_3fgF8WeEYUYQZQsVxPXdEEGD4b6vOmI-ytzqlac6Ns3RaXWIDFS7z1WT99Y41X7CLCm3BMuC/s1600/a-info-post.jpg" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" height="137" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEim3_vTI3vug6iUMd_2vhxU3EKEAwaRQIsUh02Y7pwDZ2ox_vPXQcVOy1DjM_CNTFV3VaS_3fgF8WeEYUYQZQsVxPXdEEGD4b6vOmI-ytzqlac6Ns3RaXWIDFS7z1WT99Y41X7CLCm3BMuC/s200/a-info-post.jpg" width="200" /></a><br />
<b>8-19-16 Colorado:</b><br />
<br />
<b>Source Colorado SOMB Announcement:</b><br />
<br />
Greetings, <br />
<br />
On August 19, 2016, the SOMB approved revisions to the Standards and Guidelines as they pertain to sexual offense history questions, including sexual offense history polygraph questions. These revisions apply to Standards and Guidelines for adult sex offenders and juveniles who have committed sexual offenses.<br />
<br />
All current Standards and Guidelines related to requirements for sexual offense history questions, including sexual offense history polygraph questions, are unchanged. The following revisions apply only when an adult sex offender or a juvenile who has committed a sexual offense refuses to answer such questions.<br />
<br />
<b><u>Below you will find three recent court decisions that support a client's right to refuse to answer sexual offense history questions, including sexual offense history polygraph questions.</u></b> These decisions have necessitated the revised language to the Standards and Guidelines as follows:<br />
<blockquote>"If the offender refuses to answer sexual offense history questions, including sexual offense history polygraph questions, then the provider shall meet with the supervising officer to identify and implement alternative methods of assessing and managing risk and needs. The provider shall not unsuccessfully discharge an offender from treatment for solely refusing to answer sexual offense history questions, including sexual offense history polygraph questions."</blockquote>The revisions are implemented, where applicable, throughout the Standards and Guidelines for adult sex offenders as well as for juveniles who have committed sexual offenses. You are encouraged to review the attached documents carefully. You are welcome to submit proposed changes to be considered as the revision process moves forward. In addition, as questions arise, please do not hesitate to contact us. <br />
<br />
Thank you.<br />
<br />
<hr><br />
<center><a href="http://www.leagle.com/decision/In%20COCO%2020160516055/PEOPLE%20v.%20ROBERSON">People vs. Robertson</a><br />
<a href="http://www.leagle.com/decision/In%20COCO%2020160516054/PEOPLE%20v.%20RUCH">People vs. Ruch</a><br />
<a href="http://www.leagle.com/decision/In%20FDCO%2020160815E02/U.S.%20v.%20VON%20BEHREN">US vs. VonBehren</a></center><br />
<hr>eAdvocatehttp://www.blogger.com/profile/09569822127629044435noreply@blogger.com0tag:blogger.com,1999:blog-3078557354121089469.post-66989435364191713932016-08-25T12:47:00.000-04:002016-09-14T17:02:46.397-04:00USA v Cheever<div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg8yyRYlLBAv9iY1DvO15WHYRk7weZsDzipyppw8Xib_5j31bVoxt_d78Rkz1jWutfPrYmZ1icj3qVUDG-xd3oSA-CmjUCf4qWb7V5E8oB281Q6y7ROMpTbk0umldmuUoPufQBO4F-VmkfW/s1600/a-court.jpg" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg8yyRYlLBAv9iY1DvO15WHYRk7weZsDzipyppw8Xib_5j31bVoxt_d78Rkz1jWutfPrYmZ1icj3qVUDG-xd3oSA-CmjUCf4qWb7V5E8oB281Q6y7ROMpTbk0umldmuUoPufQBO4F-VmkfW/s200/a-court.jpg" /></a></div><b>7-18-2016 Colorado:</b><br />
<br />
<a href="http://www.leagle.com/decision/In%20FDCO%2020160719777/U.S.%20v.%20CHEEVER">USA v Cheever</a><br />
<br />
JOHN L. KANE, Senior District Judge.<br />
<br />
This matter is before me for sentencing on Defendant Shawn Cheever's plea to a single count of possession of child pornography. I have heard the presentations of counsel, and Mr. Cheever has been afforded his right of allocution. Because the question of a condign sentence in this case, and in cases involving plea deals negotiated in rigid adherence to non-binding Sentencing Guidelines generally, raises sentencing issues about which I have thought long and hard, I take time to address them in the following written opinion.<br />
<br />
... ... ...<br />
<br />
<b>Conclusion.</b><br />
<br />
It is argued at various places in the vast literature on this subject I have reviewed that the value of the plethysmograph is not to condemn or to judge, but rather to facilitate the evaluation and therapy undertaken by nudging the subject along to admit his defect of character — a sort of plaintive admonition that confession is good for the soul and overcomes the resistance to therapy that is manifested in denial. Such admission is regarded as one of the first steps toward a rehabilitative state of refrain and abstinence. Perhaps it should be considered a shortcut in therapy. (One can only surmise that a relapse after treatment would exacerbate the perversion because it occurs in spite of the therapy generated by the conscious admission.)<br />
<br />
The Court of Appeals for the Second Circuit held in United States v. McLaurin, 731 F.3d 258, 260 (2013) that a condition of defendant's supervised release that required him to take penile plethysmograph testing was an "extraordinary invasive condition [that is] unjustified, is not reasonable related to the statutory goals of sentencing, and violates McLaurin's right to substantive due process."<br />
<br />
<b><u>The special condition requiring Cheever to submit to plethysmograph testing is specifically rejected.</u></b> So, too, until such time as I am presented by the government with proof that the polygraph and the visual reaction time measurement device will meet the goals of supervised release as applied to a particular defendant, that such testing will involve no greater deprivation of liberty than is necessary for the particularized supervised release of an individual defendant and that there are no alternative measures, techniques or devices available that are any less intrusive to freedom of thought, they, too, are rejected.eAdvocatehttp://www.blogger.com/profile/09569822127629044435noreply@blogger.com0tag:blogger.com,1999:blog-3078557354121089469.post-84304362676046575202015-12-13T23:26:00.001-05:002016-08-25T12:40:43.536-04:00Top Massachusetts court decides due process now demands heightened proof standard for sex offender classification<div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg8yyRYlLBAv9iY1DvO15WHYRk7weZsDzipyppw8Xib_5j31bVoxt_d78Rkz1jWutfPrYmZ1icj3qVUDG-xd3oSA-CmjUCf4qWb7V5E8oB281Q6y7ROMpTbk0umldmuUoPufQBO4F-VmkfW/s1600/a-court.jpg" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg8yyRYlLBAv9iY1DvO15WHYRk7weZsDzipyppw8Xib_5j31bVoxt_d78Rkz1jWutfPrYmZ1icj3qVUDG-xd3oSA-CmjUCf4qWb7V5E8oB281Q6y7ROMpTbk0umldmuUoPufQBO4F-VmkfW/s200/a-court.jpg" /></a></div><b>12-13-2015 Massachusetts:</b><br />
<br />
A helpful reader alerted me to a notable new procedural ruling by the Massachusetts Supreme Judicial Court this past week. In <span style="color:black;background-color:#ffff04">Doe, Sex Offender Registry Bd. No. 380316 v. Sex Offender Registry Board, SJC-11823 (Mass. Dec. 11, 2015)</span> (<a href="http://www.mass.gov/courts/docs/sjc/reporter-of-decisions/new-opinions/11823.pdf">available here</a>), the top Massachusetts court decided that the preponderance standard of proof is inadequate for sex offender classification. Here is how the opinion starts: <blockquote>We are asked in this case to consider anew the standard of proof that the Sex Offender Registry Board (SORB) must satisfy in order to classify a convicted sex offender under the provisions of the sex offender registry law, G. L. c. 6, §§ 178C-178Q. <br />
<br />
The plaintiff, John Doe No. 380316 (Doe), is a convicted sex offender who was classified by a preponderance of the evidence as having a moderate risk of reoffense. In Doe, Sex Offender Registry Bd. No. 972 v. Sex Offender Registry Bd., 428 Mass. 90, 91 (1998) (Doe No. 972), we held that SORB need only prove the appropriateness of a sex offender's risk classification by a preponderance of the evidence. <br />
<br />
In light of amendments to the sex offender registry law and other developments since our decision in that case, however, Doe contends that the preponderance standard no longer adequately protects his due process rights. We agree. <br />
<br />
For the reasons stated below, we hold that SORB is constitutionally required to prove the appropriateness of an offender's risk classification by clear and convincing evidence.</blockquote><a href="http://sentencing.typepad.com/sentencing_law_and_policy/">..Source..</a><br />
<hr>eAdvocatehttp://www.blogger.com/profile/09569822127629044435noreply@blogger.com0tag:blogger.com,1999:blog-3078557354121089469.post-26430864913049749732015-11-13T17:22:00.002-05:002015-12-13T23:29:05.141-05:00Court Expands Eligibility for Certificates of Rehabilitation<div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg8yyRYlLBAv9iY1DvO15WHYRk7weZsDzipyppw8Xib_5j31bVoxt_d78Rkz1jWutfPrYmZ1icj3qVUDG-xd3oSA-CmjUCf4qWb7V5E8oB281Q6y7ROMpTbk0umldmuUoPufQBO4F-VmkfW/s1600/a-court.jpg" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg8yyRYlLBAv9iY1DvO15WHYRk7weZsDzipyppw8Xib_5j31bVoxt_d78Rkz1jWutfPrYmZ1icj3qVUDG-xd3oSA-CmjUCf4qWb7V5E8oB281Q6y7ROMpTbk0umldmuUoPufQBO4F-VmkfW/s200/a-court.jpg" /></a></div><b>11-13-2015 California:</b><br />
<br />
A California Court of Appeal issued a decision this week that expands eligibility for registrants to apply for a certificate of rehabilitation. The decision, <a href="http://www.leagle.com/decision/In%20CACO%2020151112122/PEOPLE%20v.%20TIREY">People v. Tirey</a>, states that a registrant who was convicted of PC 288(a) and who completed parole 13 years ago is eligible to apply for a certificate.<br />
<br />
“This is an important decision for many registrants,” stated attorney and CA RSOL vice president Chance Oberstein. “It will significantly expand the number of registrants who can apply for a certificate of rehabilitation.”<br />
<br />
In this case, the appellate court clarified that it was not making a decision whether Tirey would obtain a certificate. Instead, that decision is to be made by a trial court.<br />
<br />
According to the Court, equal protection principles were violated when Tirey was declared ineligible to apply for a certificate. These principles have the possibility of being applied to convictions for similar sex offenses such as PC 288 and 288.5.<br />
<br />
In its decision, the Court rejected all arguments offered by the Attorney General who had requested a rehearing of the original case.<br />
<br />
“A certificate of rehabilitation currently is the only realistic method for registered citizens to be removed from the sex offender registry,” stated Oberstein.<br />
<br />
The decision to grant a certificate of rehabilitation is a discretionary decision by a state judge who faces re-election. In order to maximize the possibility of obtaining a certificate, registrants must provide the court with a psychological evaluation as well as letters of support.<br />
<br />
Judge Thompson disagreed with the court’s ruling and in his dissent stated that the court’s decision “will allow thousands of serious sex offenders to escape their lifetime parole and sex offender registration obligations.” <a href="http://californiarsol.org/2015/11/court-expands-eligibility-for-certificates-of-rehabilitation/">..Source..</a> by CA-RSOL<br />
<br />
<hr><br />
See Also <span style="font-family: trebuchet ms; color:#ff0000;"><b><a href="http://sexoffenderresearch.blogspot.com/search/label/Certificate%20of%20Rehabilitation/">THESE</a> in State News Blog...</b></span><br />
<br />
See Also <span style="font-family: trebuchet ms; color:#ff0000;"><b><a href="http://congress-courts-legislation.blogspot.com/search/label/Certificate%20of%20Rehabilitation/">THESE</a> in National News Blog...</b></span><br />
<br />
<hr>eAdvocatehttp://www.blogger.com/profile/09569822127629044435noreply@blogger.com0tag:blogger.com,1999:blog-3078557354121089469.post-44721524923519193362015-10-11T10:25:00.000-04:002017-09-25T23:19:39.836-04:00Tulsa Police Worried About Sex Offender's Legal Victory<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEim3_vTI3vug6iUMd_2vhxU3EKEAwaRQIsUh02Y7pwDZ2ox_vPXQcVOy1DjM_CNTFV3VaS_3fgF8WeEYUYQZQsVxPXdEEGD4b6vOmI-ytzqlac6Ns3RaXWIDFS7z1WT99Y41X7CLCm3BMuC/s1600/a-info-post.jpg" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" height="137" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEim3_vTI3vug6iUMd_2vhxU3EKEAwaRQIsUh02Y7pwDZ2ox_vPXQcVOy1DjM_CNTFV3VaS_3fgF8WeEYUYQZQsVxPXdEEGD4b6vOmI-ytzqlac6Ns3RaXWIDFS7z1WT99Y41X7CLCm3BMuC/s200/a-info-post.jpg" width="200" /></a><br />
<b>9-14-15 Oklahoma:</b><br />
<br />
TULSA - Tulsa Police are worried now that a convicted child molester has won a legal victory against the Tulsa County District Attorney's office.<br />
<br />
Stephen Barnes was convicted in 1999 of rape and lewd acts involving a minor. According to Department of Corrections records, he was released in 2012. He's a registered sex offender, but now that he's out of prison, he wants to live with his mother in east Tulsa.<br />
<br />
A 2003 Oklahoma law prevents sex offenders from living near schools and daycare centers. In January 2015, Barnes asked the courts for an injunction against the Tulsa County District Attorney's office, Tulsa Police and the Tulsa County Sheriff's Office, arguing that since the law was passed after he committed his crimes, it didn't apply to him.<br />
<br />
Earlier this month the judge ruled in his favor, saying he can live wherever he wants.<br />
<br />
Tulsa police fear this will lead to a similar situation for many more convicted child molesters.<br />
<br />
"The whole premise of the sex offender registry is to protect our children. Safe zones were created for families to at least feel comfortable knowing there were no sex offenders living nearby. The ruling will open the door for sex offenders to file similar lawsuits and be granted the freedom to reside next to an elementary school, if they so choose," said Tulsa Police Sgt. John Adams. <a href="http://www.newson6.com/story/30028528/tulsa-police-worried-about-sex-offenders-legal-victory">..Source..</a> by Lori FullbrighteAdvocatehttp://www.blogger.com/profile/09569822127629044435noreply@blogger.com0tag:blogger.com,1999:blog-3078557354121089469.post-27094881739899000402015-08-28T15:50:00.000-04:002015-09-02T12:43:18.975-04:00 News SJC Ruling Threatens Sex Offender Laws In 40 Mass. Towns<div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg8yyRYlLBAv9iY1DvO15WHYRk7weZsDzipyppw8Xib_5j31bVoxt_d78Rkz1jWutfPrYmZ1icj3qVUDG-xd3oSA-CmjUCf4qWb7V5E8oB281Q6y7ROMpTbk0umldmuUoPufQBO4F-VmkfW/s1600/a-court.jpg" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg8yyRYlLBAv9iY1DvO15WHYRk7weZsDzipyppw8Xib_5j31bVoxt_d78Rkz1jWutfPrYmZ1icj3qVUDG-xd3oSA-CmjUCf4qWb7V5E8oB281Q6y7ROMpTbk0umldmuUoPufQBO4F-VmkfW/s200/a-court.jpg" /></a></div><span style="font-family: trebuchet ms; color:#ff0000;"><b> See also: <a href="https://aclum.org/uncategorized/massachusetts-high-court-unanimously-strikes-down-lynn-sex-offender-residency-restrictions/">ACLU of Massachusetts</a> article. And the legal documents <a href="https://aclum.org/cases-briefs/three-registered-sex-offenders-v-city-of-lynn/">HERE</a> Note: RSOL joined in <a href="https://aclum.org/app/uploads/2015/07/Amicus-Brief-FINAL.pdf">Amicus</a> brief)</b></span><br />
<br />
<b>8-28-15 Massachusetts:</b><br />
<br />
<a href="http://www.mass.gov/courts/docs/sjc/reporter-of-decisions/new-opinions/11822.pdf">Doe v City of Lynn</a><br />
<br />
BOSTON (AP) — The highest court in Massachusetts upheld a judge’s decision Friday to throw out a local law that severely restricts where sex offenders can live in the city of Lynn, a ruling that <span style="color:black;background-color:#ffff04"><b>could have</b> broad implications</span> for about 40 other communities.<br />
<br />
In a unanimous ruling, the Supreme Judicial Court agreed that Lynn had no legal authority to adopt the ordinance in 2011 <a href="http://www.mass.gov/eopss/agencies/sorb/">because it is inconsistent with state laws governing the oversight of sex offenders</a>.<br />
<br />
The Lynn ordinance prohibits Level Two and Level Three sex offenders from living within 1,000 feet of parks or public, private or church schools, effectively banning offenders from about 95 percent of the city’s residential properties.<br />
<br />
The high court said a package of laws passed by the state Legislature in 1999 establishes clear policies for monitoring sex offenders and notifying the public where they live. The court said there are “grave societal and constitutional implications” of segregating sex offenders.<br />
<a name='more'></a><br />
“Except for the incarceration of persons under the criminal law and the civil commitment of mentally ill or dangerous persons, the days are long since past when whole communities of persons, such (as) Native Americans and Japanese-Americans may be lawfully banished from our midst,” Justice Geraldine Hines wrote for the court.<br />
<br />
Benjamin Keehn, appellate counsel for the state Committee for Public Counsel Services, which sued the city of Lynn on behalf of sex offenders, said the court’s ruling effectively invalidates similar ordinances in other communities in the state.<br />
<br />
“I would be really shocked if any city or town that has an ordinance likes this attempted to enforce it,” he said.<br />
<br />
“They make the public less safe — not more safe — by destabilizing the ability of sex offenders to get their lives together.”<br />
<br />
Lynn officials said the residency restriction is not inconsistent with state law, but instead shares the same purpose as the state law: protecting children from sexual predators.<br />
<br />
The 1999 state laws required sex offenders to register with local police, established procedures for civilly committed sex offenders deemed the most likely to reoffend and set up community parole supervision for life for certain offenders. The laws also required police departments to release information about certain sex offenders to the public.<br />
<br />
The court said that at least 40 communities have passed laws restricting where certain offenders live, including Ashland, Barnstable, Braintree, Dedham, Fall River, Framingham, Hopkinton, Natick, Revere, Somerset and Springfield.<br />
<br />
Lynn officials argued that the state Attorney General’s office has continued to approve similar regulations, including a North Reading bylaw approved in January. A spokeswoman for Attorney General Maura Healey did not immediately return a call seeking comment.<br />
<br />
Geoff Beckwith, executive director of the Massachusetts Municipal Association, said the group does not have a policy position on the issue, but generally believes local officials are in the best position to decide whether a local policy or ordinance is needed.<br />
<br />
“Clearly, there are 40 communities across the state that have taken action to enact local ordinances — they’ve all been approved by the attorney general who was in office at the time — cities and towns clearly felt they were supplementing and not interfering with the state’s laws regarding sex offenders,” Beckwith said.<br />
<br />
But the high court said the lower court judge was correct in finding that there was “an express legislative intent to forbid local activity in the area of the civil regulation and management of the post-incarceration lives of convicted sex offenders.”<br />
<br />
Lawyers who represented the city of Lynn did not immediately return calls seeking comment. <a href="http://boston.cbslocal.com/2015/08/28/sex-offenders-lynn-restrictions-massachusetts-law-sjc-ruling/">..Source..</a> By Denise LavoieeAdvocatehttp://www.blogger.com/profile/09569822127629044435noreply@blogger.com0tag:blogger.com,1999:blog-3078557354121089469.post-59722648212264570482015-08-16T14:15:00.001-04:002015-11-19T08:52:05.032-05:00People v. Gerber<div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg8yyRYlLBAv9iY1DvO15WHYRk7weZsDzipyppw8Xib_5j31bVoxt_d78Rkz1jWutfPrYmZ1icj3qVUDG-xd3oSA-CmjUCf4qWb7V5E8oB281Q6y7ROMpTbk0umldmuUoPufQBO4F-VmkfW/s1600/a-court.jpg" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg8yyRYlLBAv9iY1DvO15WHYRk7weZsDzipyppw8Xib_5j31bVoxt_d78Rkz1jWutfPrYmZ1icj3qVUDG-xd3oSA-CmjUCf4qWb7V5E8oB281Q6y7ROMpTbk0umldmuUoPufQBO4F-VmkfW/s200/a-court.jpg" /></a></div><b>6-8-2011 California:</b><br />
<br />
<a href="http://www.leagle.com/decision/In%20CACO%2020110608055/PEOPLE%20v.%20GERBER">People v. Gerber</a><br />
196 Cal.App.4th 368 (2011)<br />
<br />
Defendant Joseph Lowell Gerber appeals from a judgment of conviction of possession of child pornography (Pen. Code, § 311.11, subd. (a))1 (<b>count one</b>), annoying or molesting a child (§ 647.6, subd. (a)) (<b>count two</b>), furnishing marijuana to a minor under 14 years of age (Health & Saf. Code, § 11361, subd. (a)) (<b>count three</b>), and two counts of furnishing a controlled substance to a minor (Health & Saf. Code, § 11353) (<b>counts four and five</b>).<br />
<br />
On appeal, defendant challenges the sufficiency of the evidence to support the conviction of possession of child pornography (§ 311.11) and raises claims of ineffective assistance of counsel and instructional error. <span style="color:black;background-color:#ffff04">In addition, he asserts that the trial court lacked authority to make its no-contact order</span>.<br />
<br />
We hold that the phrase "the matter depicts a person under the age of 18 years personally engaging in or simulating sexual conduct ..." in section 311.11 requires a real child to have actually engaged in or simulated the [196 Cal.App.4th 372] sexual conduct depicted. <br />
<br />
We reverse the conviction of possession of child pornography in violation of section 311.11 based on the insufficiency of the evidence (count one) and we reverse the convictions of furnishing a controlled substance to a minor in violation of Health and Safety Code section 11353 (counts four and five) based on instructional error. <br />
<br />
<span style="color:black;background-color:#ffff04">We also strike the no-contact order.</span><br />
<br />
... ... ...<br />
<br />
<b>E. No-contact Order</b><br />
<br />
At sentencing, the trial court ordered defendant to have no contact with the victim or her family. <span style="color:black;background-color:#ffff04">Defendant argues that the order is invalid because it was not authorized by section 1202.05 or any other statute. Defendant was not convicted of any of the sex offenses enumerated by section 1202.05, which presently authorizes courts to prohibit visitation between a defendant sentenced to state prison and the child victim. The People concede error and ask this court to strike the order. We agree this is the appropriate remedy.</span>eAdvocatehttp://www.blogger.com/profile/09569822127629044435noreply@blogger.com0tag:blogger.com,1999:blog-3078557354121089469.post-74446020451021982722015-08-16T13:47:00.000-04:002015-08-16T14:00:34.714-04:00Simants v State<div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg8yyRYlLBAv9iY1DvO15WHYRk7weZsDzipyppw8Xib_5j31bVoxt_d78Rkz1jWutfPrYmZ1icj3qVUDG-xd3oSA-CmjUCf4qWb7V5E8oB281Q6y7ROMpTbk0umldmuUoPufQBO4F-VmkfW/s1600/a-court.jpg" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg8yyRYlLBAv9iY1DvO15WHYRk7weZsDzipyppw8Xib_5j31bVoxt_d78Rkz1jWutfPrYmZ1icj3qVUDG-xd3oSA-CmjUCf4qWb7V5E8oB281Q6y7ROMpTbk0umldmuUoPufQBO4F-VmkfW/s200/a-court.jpg" /></a></div><b>7-3-2014 Alaska:</b><br />
<br />
<a href="http://www.leagle.com/decision/In%20AKCO%2020140703004/SIMANTS%20v.%20STATE">Simants v State</a><br />
<br />
Carrie D. Simants was thirty-three years old when she had sexual intercourse with R.H., a seventeen-year-old boy who was living in her home. At the time, R.H. had been adjudicated a delinquent, and Simants had agreed to oversee his compliance with his delinquency case plan. A jury therefore found that Simants was in a "position of authority" over R.H. and convicted her of one count of second-degree sexual abuse of a minor.1 Simants was sentenced to 8 years with 3 years suspended (5 years to serve) and 10 years' probation for this offense.<br />
<br />
On appeal, Simants challenges her sentence on three grounds. She asserts that the superior court erred by rejecting the two statutory mitigating factors she proposed at sentencing. She argues, in the alternative, that the court should have referred her case to the statewide three-judge sentencing panel for consideration of a sentence below the applicable presumptive range. <span style="color:black;background-color:#ffff04">Lastly, she challenges a condition of probation that could potentially preclude her from living with her own children after her release.</span><br />
<br />
For the reasons explained below, we conclude that the superior court applied the wrong legal analyses when it rejected the two statutory mitigating factors <span style="color:black;background-color:#ffff04">and imposed the challenged probation condition</span>. <br />
<br />
<span style="color:black;background-color:#ffff04">Accordingly, we vacate the probation condition and remand this case to the superior court for further proceedings consistent with this opinion.</span> Because Simants may be resentenced, we do not reach the merits of her three-judge sentencing panel arguments at this time.<br />
<br />
... ... ...<br />
<br />
<b>Conclusion</b><br />
<br />
We VACATE the special condition of probation limiting Simants from residing in a home where a minor is present to the extent that the condition bars her from living with her own children. If the State wishes to renew its request for a probation condition that restricts Simants's contact with her children, the State must affirmatively show <blockquote>(1) that there is good reason to believe Simants will pose a danger to her children when she is released from prison, and <br />
<br />
(2) that the State's proposed condition of probation is narrowly tailored to avoid unnecessary interference with Simants's relationship with her children.</blockquote>We retain jurisdiction.eAdvocatehttp://www.blogger.com/profile/09569822127629044435noreply@blogger.com0tag:blogger.com,1999:blog-3078557354121089469.post-20609940199938064692015-08-12T08:57:00.000-04:002015-08-16T13:37:25.957-04:00State v Cobler<div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg8yyRYlLBAv9iY1DvO15WHYRk7weZsDzipyppw8Xib_5j31bVoxt_d78Rkz1jWutfPrYmZ1icj3qVUDG-xd3oSA-CmjUCf4qWb7V5E8oB281Q6y7ROMpTbk0umldmuUoPufQBO4F-VmkfW/s1600/a-court.jpg" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg8yyRYlLBAv9iY1DvO15WHYRk7weZsDzipyppw8Xib_5j31bVoxt_d78Rkz1jWutfPrYmZ1icj3qVUDG-xd3oSA-CmjUCf4qWb7V5E8oB281Q6y7ROMpTbk0umldmuUoPufQBO4F-VmkfW/s200/a-court.jpg" /></a></div><b>3-24-2010 Idaho:</b><br />
<br />
<a href="http://www.leagle.com/decision/In%20IDCO%2020100324332/STATE%20v.%20COBLER">State v Cobler</a><br />
229 P.3d 374 (2010)<br />
<br />
Brian C. Cobler appeals from the judgment of conviction and sentence entered upon his guilty plea to sexual battery of a minor, sixteen or seventeen years of age. He challenges the sentence, the denial of his Idaho Criminal Rule 35 motion for reduction of the sentence, <span style="color:black;background-color:#ffff04">and the order denying his motion to modify a no contact order that prohibited contact with any minors. <br />
<br />
The order denying the motion to modify the no contact order is vacated and the case is remanded for further proceedings on that issue.</span><br />
<br />
... ... ...<br />
<br />
We affirm the judgment of conviction and sentence, as well as the district court's denial of Cobler's Rule 35 motion. Because the district court abused its discretion in denying Cobler's motion to modify the no contact order, we vacate the district court's denial of that motion and remand the case for proceedings consistent with this opinion.2eAdvocatehttp://www.blogger.com/profile/09569822127629044435noreply@blogger.com0tag:blogger.com,1999:blog-3078557354121089469.post-23192345966419001262015-08-12T00:49:00.000-04:002015-08-12T16:43:02.893-04:00Doe v. Annucci <div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg8yyRYlLBAv9iY1DvO15WHYRk7weZsDzipyppw8Xib_5j31bVoxt_d78Rkz1jWutfPrYmZ1icj3qVUDG-xd3oSA-CmjUCf4qWb7V5E8oB281Q6y7ROMpTbk0umldmuUoPufQBO4F-VmkfW/s1600/a-court.jpg" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg8yyRYlLBAv9iY1DvO15WHYRk7weZsDzipyppw8Xib_5j31bVoxt_d78Rkz1jWutfPrYmZ1icj3qVUDG-xd3oSA-CmjUCf4qWb7V5E8oB281Q6y7ROMpTbk0umldmuUoPufQBO4F-VmkfW/s200/a-court.jpg" /></a></div><b>6-18-15 New York:</b><br />
<br />
<a href="http://www.leagle.com/decision/In%20FDCO%2020150716C10/DOE%20v.%20ANNUCCI">Doe v. Annucci </a><br />
No. 14 Civ. 2953 (PAE). <br />
<br />
Plaintiff John Doe was convicted of sexual offenses against a teenage girl and served more than eight years in prison. <span style="color:black;background-color:#ffff04">After Doe was released on parole, Doe's wife, Jane Doe, gave birth to a son, M.S.</span> In the years that followed, the Department of Corrections and Community Supervision ("DOCCS") <span style="color:black;background-color:#ffff04">applied one of Doe's special parole conditions to bar him, during two distinct time periods, from having any contact with his infant son</span>. These periods totaled more than one year.<br />
<br />
John Doe, Jane Doe, and M.S. bring suit against eight state personnel associated with DOCCS, claiming that DOCCS's actions violated their rights to substantive due process, intimate association, and procedural due process, and that each individual defendant personally participated in these actions. Seven of the eight defendants now move to dismiss, asserting mootness, immunity, and failure to state a claim. <br />
<br />
For the following reasons, the motions to dismiss are granted as to defendants Rebecca and Rennie Rodriguez for lack of personal involvement in the alleged constitutional violations, <span style="color:black;background-color:#ffff04">but are denied as to all other defendants.</span><br />
<br />
... ... ... ...<br />
<br />
<hr>eAdvocatehttp://www.blogger.com/profile/09569822127629044435noreply@blogger.com0tag:blogger.com,1999:blog-3078557354121089469.post-68009335707619955062015-08-11T13:49:00.000-04:002015-10-29T19:53:31.296-04:00US v Burns<div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg8yyRYlLBAv9iY1DvO15WHYRk7weZsDzipyppw8Xib_5j31bVoxt_d78Rkz1jWutfPrYmZ1icj3qVUDG-xd3oSA-CmjUCf4qWb7V5E8oB281Q6y7ROMpTbk0umldmuUoPufQBO4F-VmkfW/s1600/a-court.jpg" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg8yyRYlLBAv9iY1DvO15WHYRk7weZsDzipyppw8Xib_5j31bVoxt_d78Rkz1jWutfPrYmZ1icj3qVUDG-xd3oSA-CmjUCf4qWb7V5E8oB281Q6y7ROMpTbk0umldmuUoPufQBO4F-VmkfW/s200/a-court.jpg" /></a></div><b>12-30-2014 Oklahoma:</b><br />
<br />
<a href="http://www.leagle.com/decision/In%20FCO%2020141230055/U.S.%20v.%20BURNS">US -v- Burns</a><br />
775 F.3d 1221 (2014)<br />
<br />
Mr. James Burns was convicted of possession and attempted possession of child pornography. See 18 U.S.C. § 2252(a)(4)(B), (b)(2). He was sentenced to 63 months in prison, followed by 5 years of supervised release. This appeal involves one of the conditions of his supervised release. <span style="color:black;background-color:#ffff04">That condition requires approval of the probation department before Mr. Burns can have any contact with minors, including his youngest daughter (S.B.).</span><br />
<br />
This restriction intrudes on Mr. Burns's constitutional right to familial association. Because of this intrusion on a constitutional right, <span style="color:black;background-color:#ffff04">the district court should have made particularized findings before restricting Mr. Burns's contact with his daughter. Because the district court failed to make these findings, we reverse on plain error.1</span><br />
<br />
... ... ...<br />
<br />
II. Conclusion<br />
<br />
The district court committed plain error by restricting Mr. Burns's contact with his daughter without the required findings. Thus, we remand for reconsideration of the supervised-release condition requiring Mr. Burns to obtain permission from the probation office before he can contact S.B.eAdvocatehttp://www.blogger.com/profile/09569822127629044435noreply@blogger.com0tag:blogger.com,1999:blog-3078557354121089469.post-3234661373320924472015-07-31T09:13:00.000-04:002015-07-31T09:22:43.881-04:00Doe v Foster et al<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhOeiKEZtFJDfQvB1eGCauQwwsuQp-l7g63qWQ1PfwGXyhyphenhyphenN8Dz10LoR2ghLJdgozg18Yk7z-gs5ai-MLPhJGBdbiWyUDMnnqQx8Z8-dHGP7JgI71YUWV7vGdlVHILny-sb6BTuf3Pba8Y/s1600-h/a-lawsuit.jpg"><img style="float:right; margin:0 0 10px 10px;cursor:pointer; cursor:hand;" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhOeiKEZtFJDfQvB1eGCauQwwsuQp-l7g63qWQ1PfwGXyhyphenhyphenN8Dz10LoR2ghLJdgozg18Yk7z-gs5ai-MLPhJGBdbiWyUDMnnqQx8Z8-dHGP7JgI71YUWV7vGdlVHILny-sb6BTuf3Pba8Y/s200/a-lawsuit.jpg" border="0" alt=""id="BLOGGER_PHOTO_ID_5218083808154194978" /></a> <span style="font-family: trebuchet ms; color:#ff0000;"><b> This action is in court right now, no decision yet.</b></span><br />
<br />
<b>4-21-15 New Hampshire:</b><br />
<br />
In April 2015, the ACLU of New Hampshire <a href="http://aclu-nh.org/wp-content/uploads/2015/04/Amended-Complaint.pdf">filed a lawsuit</a> to block enforcement of RSA 651-B:4-a – a law passed in 2009 that restricts the legal and constitutionally-protected speech of all registered sex offenders in New Hampshire. Similar laws in California, Nebraska, Georgia, and Michigan have been struck down.<br />
<br />
RSA 651-B:4-a requires anyone who is a registered sex offender – even people with decades-old, low-level offenses like misdemeanor lewdness and people whose offenses were not related to the Internet – to turn over a list of all their online identifiers to law enforcement. While the law is written very unclearly, this likely includes email addresses, usernames and other identifiers used for online political discussion groups, book and restaurant review sites, forums about medical conditions, and newspaper or blog comments — all innocent online speech that has nothing to do with criminality. Under the law, more than 2,700 Granite staters must immediately provide this information to law enforcement, and must report any new accounts before they are even used, even if the new screen name is their own real name. Violations can result in years in prison.<br />
<a name='more'></a><br />
RSA 651-B:4-a’s online speech regulations are overly broad and violate the First Amendment, both because they prohibit anonymous speech and because the reporting requirements burden all sorts of online speech.<br />
<br />
“The ability to speak freely and even anonymously is crucial for free speech to remain free for all of us,” said Gilles Bissonnette, Legal Director at the ACLU-NH. “Preventing predatory behavior on the Internet is a worthy goal, but this law won’t get us there. And there’s no evidence that the law has prevented a single crime in the last 6 years it has been in effect.”<br />
<br />
“Requiring people to give up their right to speak freely and anonymously about civic matters is unconstitutional, and restrictions like this damage robust discussion and debate on important and controversial topics,” said Bissonnette. “When the government starts gathering online profiles for one class of people, we all need to worry about the precedent it sets.”<br />
<br />
Even before this law was passed in 2009, New Hampshire’s sex offender statute was already very broad. <a href="http://aclu-nh.org/in-a-victory-for-fundamental-fairness-the-nh-supreme-court-rules-that-retroactive-lifetime-registration-requirement-is-unconstitutional-as-applied-to-aclu-client/">And the New Hampshire Supreme Court in early 2015 concluded that the state’s retroactive, lifetime registration requirements were “punitive in effect” and therefore unconstitutional as applied to one petitioner</a>. New Hampshire has the tools to determine who presents a risk to public safety and who doesn’t – but this statute applies to everybody, no matter what the risk.<br />
<br />
On April 24, 2015, the ACLU filed <a href="http://aclu-nh.org/wp-content/uploads/2015/04/1391597-1-2378.pdf">a motion for a temporary restraining order and a motion for a preliminary injunction</a> asking the Court to prevent enforcement of the statute. That motion will be consolidated with a hearing on the merits, which is likely to take place in the fall of 2015.<br />
<br />
Cooperating Attorney: Jon Meyer of Backus Meyer & Branch LLP<br />
<br />
Legal Documents: <a href="http://aclu-nh.org/wp-content/uploads/2015/04/Amended-Complaint.pdf">Amended Complaint</a>; <a href="http://aclu-nh.org/wp-content/uploads/2015/04/1391597-1-2378.pdf">TRO/PI Memorandum of Law</a><br />
<br />
<a href="http://aclu-nh.org/doe-v-foster-et-al/">..Source..</a> ACLU NH<br />
eAdvocatehttp://www.blogger.com/profile/09569822127629044435noreply@blogger.com0tag:blogger.com,1999:blog-3078557354121089469.post-8617852889319163662015-07-31T08:29:00.001-04:002015-07-31T08:32:36.725-04:00John Doe v New Hampshire<div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg8yyRYlLBAv9iY1DvO15WHYRk7weZsDzipyppw8Xib_5j31bVoxt_d78Rkz1jWutfPrYmZ1icj3qVUDG-xd3oSA-CmjUCf4qWb7V5E8oB281Q6y7ROMpTbk0umldmuUoPufQBO4F-VmkfW/s1600/a-court.jpg" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg8yyRYlLBAv9iY1DvO15WHYRk7weZsDzipyppw8Xib_5j31bVoxt_d78Rkz1jWutfPrYmZ1icj3qVUDG-xd3oSA-CmjUCf4qWb7V5E8oB281Q6y7ROMpTbk0umldmuUoPufQBO4F-VmkfW/s200/a-court.jpg" /></a></div><b>2-124-2015 New Hampshire:</b><br />
<br />
<a href="http://cases.justia.com/new-hampshire/supreme-court/2015-2013-049-0.pdf?ts=1423753313">John Doe v. New Hampshire</a><br />
<br />
Petitioner John Doe appealed a superior court order granting summary judgment to the State on his declaratory judgment action. In that action, petitioner sought a ruling that RSA chapter 651-B was unconstitutional as applied to him, because it violated the prohibition against retrospective laws and the due process clause of the State constitution. <br />
<br />
Petitioner pled guilty to two counts of aggravated felonious sexual assault which occurred in 1983 and 1984. On January 1, 1994, the petitioner became subject to registration as a sex offender. According to the petitioner, he was not aware of this requirement until 2004, but since then he has complied with all of the registration requirements. <br />
<br />
Since an injury in 2006, the petitioner has been permanently disabled. He must use a cane to get around and he must use a scooter to travel any significant distance. Due to his injury and subsequent disability, the petitioner’s physicians have recommended that he obtain public housing in order to meet his medical needs. The petitioner sought housing through the Manchester Housing Authority and was initially approved. However, his approval was revoked because of his status as a registered sex offender. <br />
<br />
Upon review, the Supreme Court found that RSA 651-B was intended by the Legislature as regulatory, <span style="color:black;background-color:#ffff04">but due to petitioner's disability and difficulties with housing, the statute exceeded "simply burdening or disadvantaging the petitioner, and we can no longer find that the effects are 'de minimus.'"</span> "Absent the lifetime-registration-without-review provision, [the Supreme Court] would not find the other effects of the act sufficiently punitive to overcome the presumption of its constitutionality." <br />
<br />
The Supreme Court further concluded that the act could be enforced against petitioner consistently with the constitutional prohibition against retrospective laws <span style="color:black;background-color:#ffff04">only if he was promptly given an opportunity for either a court hearing, or an administrative hearing subject to judicial review, at which he was permitted to demonstrate that he no longer posed a risk sufficient to justify continued registration.</span> <br />
<br />
<span style="color:black;background-color:#ffff04">The Court therefore affirmed in part, reversed in part, and remanded for further proceedings. </span>eAdvocatehttp://www.blogger.com/profile/09569822127629044435noreply@blogger.com0tag:blogger.com,1999:blog-3078557354121089469.post-32683597901383077882015-07-08T15:49:00.000-04:002015-07-27T14:21:51.797-04:00USA v James<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhxTb3D0mVPSMgDyP1wEJaD1rwJ_en5YUTd-43NFZ6aGkigQ98N7E4yEbsQUTNQwHQGhnbdHyrvKQDCn8H4ufjbSa1c2XTG1tRyjcjEd-NW7_MJY2ltTINeV_GI3C5a-v_Dr-nysa40AxU/s1600-h/a-court.jpg"><img style="float:right; margin:0 10px 10px 0;cursor:pointer; cursor:hand;" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhxTb3D0mVPSMgDyP1wEJaD1rwJ_en5YUTd-43NFZ6aGkigQ98N7E4yEbsQUTNQwHQGhnbdHyrvKQDCn8H4ufjbSa1c2XTG1tRyjcjEd-NW7_MJY2ltTINeV_GI3C5a-v_Dr-nysa40AxU/s200/a-court.jpg" border="0" alt=""id="BLOGGER_PHOTO_ID_5190353195411568114" /></a> <b>2-13-15 Arkansas:</b><br />
<br />
<a href="http://www.leagle.com/decision/In%20FCO%2020150707140.xml/U.S.%20v.%20JAMES">USA v James</a><br />
<br />
Edwin James appeals his sentence of lifetime supervised release and <span style="color:black;background-color:#ffff04">certain conditions of supervised release</span> imposed by the district court after James pleaded guilty to failing to register as a sex offender, in violation of 18 U.S.C. § 2250, as is required by the Sex Offender Registration and Notification Act (SORNA), 42 U.S.C. §§ 16901-16991. <span style="color:black;background-color:#ffff04">We affirm in part and reverse in part</span>.<br />
<br />
... ... ...<br />
<br />
<center><b>Court reversed on Special Condition 6</b></center><br />
First, we address Special Condition 6, which states that "<span style="color:black;background-color:#ffff04">[t]he defendant shall have no access to the internet, or any device capable of accessing the internet to include a computer and/or cell phone without the permission of the probation officer</span>.<br />
<br />
" There is no evidence in the PSR or any other source in the record of James ever using the internet, much less using the internet for unlawful purposes. See United States v. Springston, <a href="http://www.leagle.com/cite/650%20F.3d%201153">650 F.3d 1153</a>, 1156 (8th Cir. 2011) (vacating a restriction on internet access because "[t]he record . . . is devoid of evidence that [the defendant] has ever used a computer for any purpose") vacated on other grounds, Springston v. United States, <a href="http://www.leagle.com/cite/132%20S.Ct.%201905">132 S.Ct. 1905</a> (2012); United States v. Crume, <a href="http://www.leagle.com/cite/422%20F.3d%20728">422 F.3d 728</a>, 733 (8th Cir. 2005) (vacating a restriction on computer use and internet access because "the record is devoid of evidence that [the defendant] has ever used his computer for anything beyond simply possessing child pornography"). <br />
<br />
<span style="color:black;background-color:#ffff04">The government concedes that this special condition should be vacated, and we agree.</span>eAdvocatehttp://www.blogger.com/profile/09569822127629044435noreply@blogger.com0tag:blogger.com,1999:blog-3078557354121089469.post-77639479656880046052015-06-24T08:47:00.000-04:002015-07-08T15:32:12.568-04:00California transplant wins appeal in sex registry case<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhxTb3D0mVPSMgDyP1wEJaD1rwJ_en5YUTd-43NFZ6aGkigQ98N7E4yEbsQUTNQwHQGhnbdHyrvKQDCn8H4ufjbSa1c2XTG1tRyjcjEd-NW7_MJY2ltTINeV_GI3C5a-v_Dr-nysa40AxU/s1600-h/a-court.jpg"><img style="float:right; margin:0 10px 10px 0;cursor:pointer; cursor:hand;" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhxTb3D0mVPSMgDyP1wEJaD1rwJ_en5YUTd-43NFZ6aGkigQ98N7E4yEbsQUTNQwHQGhnbdHyrvKQDCn8H4ufjbSa1c2XTG1tRyjcjEd-NW7_MJY2ltTINeV_GI3C5a-v_Dr-nysa40AxU/s200/a-court.jpg" border="0" alt=""id="BLOGGER_PHOTO_ID_5190353195411568114" /></a> <b>3-10-2012 New Mexico:</b><br />
<br />
SANTA FE — Does a convicted sex offender in California have to register with the government if he moves to New Mexico?<br />
<br />
The New Mexico Court of Appeals said one such man did not, setting the stage for another courtroom confrontation this month.<br />
<br />
Bruce D. Hall, about to turn 65 years old, is the defendant in the middle of this storm over laws and protection of children. Hall is a marked man as a sex offender in California but, so far, not in New Mexico.<br />
<br />
Court records show that Hall in 1999 was convicted in California of "annoying or molesting children," a misdemeanor. An assistant attorney general in New Mexico stated in a brief that Hall touched the genitals of three young boys.<br />
<br />
Hall moved to Las Cruces, but did not register as a sex offender. This led to his indictment in 2008 for violating New Mexico's Sex Offender Registration and Notification Act.<br />
<br />
Hall said that, despite his criminal record, he was not obligated to register as a sex offender. What he did in California was not a sex offense in New Mexico, he argued.<br />
<br />
He said he could not be subjected to the registration law and asked that the charge against him be dismissed.<br />
<br />
District Judge Douglas Driggers of Doña Ana County rejected Hall's motion. Hall entered a conditional guilty plea, but preserved his right to appeal.<br />
<a name='more'></a><br />
He did and last year he won his case before the state Court of Appeals. A three-member panel of judges found that California and New Mexico had similar laws on sex crimes, but still said Hall was absolved from being listed as a sex offender in New Mexico.<br />
<br />
"... The fact that both statutes may serve similar purposes is in no way controlling," Chief Judge Celia Foy Castillo wrote in the decision. "Because the statutes differ on the essential element of touching or application of force, we hold that they are not equivalent under the Sex Offender Registration and Notification Act.<br />
<br />
"And the defendant is not required to register as a sex offender in New Mexico based on his California conviction for annoying or molesting a child."<br />
<br />
The court also reversed Hall's felony conviction for failing to register.<br />
<br />
State Attorney General Gary King has appealed the ruling. One of his assistants, Margaret McLean, writing a brief on behalf of the state, said the appeals court's decision in Hall's case could have wide and damaging consequences.<br />
<br />
"The possibility that a safe haven for sex offenders in New Mexico is adopted cannot be overstated," she said.<br />
<br />
King has asked the New Mexico Supreme Court to overturn the ruling and require Hall to register as a sex offender. Oral arguments before the Supreme Court will be occur March 26.<br />
<br />
Hall is being represented by a public defender, who said in his brief that the appeals court ruled correctly.<br />
<br />
In sum, Hall's lawyer argued that New Mexico has no statute against "annoying or molesting a child," so he cannot be a sex offender in this state.<br />
<br />
But McLean said New Mexico has a comparable law to California's, giving it a ready means of prosecuting men who molest boys.<br />
<br />
In her brief, she even offered this hypothetical example: A man at the New Mexico State Fair quickly pulls down the pants of three boys and touches their genitals. McLean said New Mexico would prosecute such a predator for "criminal sexual contact of a minor."<br />
<br />
As for the particulars of the states' two statutes, they need not be exact matches to justify Hall having to register as a sex offender, she said.<br />
<br />
"Elements of the crime are different. This difference is not fatal" to New Mexico's sex registration law, McLean wrote in the brief.<br />
<br />
Sen. Mary Jane Garcia, one of the state Legislature's leaders in writing laws to protect children, said she was alarmed at the appeals court's decision.<br />
<br />
"I am going to be watching this case as it moves ahead. I don't want New Mexico being seen as a haven for those who prey on children," Garcia said.<br />
<br />
She said Megan's Law, built from a California case, was a basis for certain New Mexico statutes approved in the 1990s to protect children from sexual predators.<br />
<br />
Indeed, the California attorney general's website that lists sex offenders is called Megan's Law.<br />
<br />
Hall is still listed as a sex offender on the California site. But beside his photograph is a red check mark.<br />
<br />
He has been in violation of his California registration requirements since March 29, 2006, according to the California attorney general. That coincides with the time he moved to New Mexico.<br />
<br />
Hall is not listed on New Mexico's website of sex offenders. The New Mexico Supreme Court will decide whether Hall belongs there.<br />
<br />
If the Suprme Court finds that Hall does not fit the definition of a sex offender, Garcia and other legislators may take up the job of rewriting state laws.<br />
<br />
Santa Fe Bureau Chief Milan Simonich can be reached at (505) 820-6898. His blog is at nmcapitolreport.com<br />
<br />
The case at a glance<br />
<br />
<a href="http://www.leagle.com/decision/In%20NMCO%2020121206246.xml/STATE%20v.%20HALL">STATE OF NEW MEXICO v. BRUCE HALL</a>eAdvocatehttp://www.blogger.com/profile/09569822127629044435noreply@blogger.com0tag:blogger.com,1999:blog-3078557354121089469.post-37871528924090309812015-06-24T08:32:00.000-04:002015-06-24T10:31:04.644-04:00Judge orders D.C. to pay record $9.2 million in wrongful conviction case<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhxTb3D0mVPSMgDyP1wEJaD1rwJ_en5YUTd-43NFZ6aGkigQ98N7E4yEbsQUTNQwHQGhnbdHyrvKQDCn8H4ufjbSa1c2XTG1tRyjcjEd-NW7_MJY2ltTINeV_GI3C5a-v_Dr-nysa40AxU/s1600-h/a-court.jpg"><img style="float:right; margin:0 10px 10px 0;cursor:pointer; cursor:hand;" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhxTb3D0mVPSMgDyP1wEJaD1rwJ_en5YUTd-43NFZ6aGkigQ98N7E4yEbsQUTNQwHQGhnbdHyrvKQDCn8H4ufjbSa1c2XTG1tRyjcjEd-NW7_MJY2ltTINeV_GI3C5a-v_Dr-nysa40AxU/s200/a-court.jpg" border="0" alt=""id="BLOGGER_PHOTO_ID_5190353195411568114" /></a> <b>2-28-15 Washington DC:</b><br />
<br />
A D.C. Superior Court judge ordered the District government Friday to pay a record $9.2 million in damages to Kirk L. Odom, 52, who <a href="http://www.washingtonpost.com/local/crime/kirk-l-odom-officially-exonerated-dna-retesting-cleared-him-in-dc-rape-robbery/2012/07/13/gJQAuH3piW_story.html">was wrongfully imprisoned for more than 22 years</a> in the rape and robbery of a woman in her Capitol Hill apartment in 1981.<br />
<br />
The amount, set by Judge Neal E. Kravitz, is the second — and largest — award in a case tried before a District judge under the District’s wrongful conviction law, which was approved in 1980. It also is one of the largest non-jury awards in an exoneration case in the United States.<br />
<br />
“Mr. Odom spent more than twenty-two years of what should have been the prime of his adult life behind bars for a crime he did not commit,” Kravitz wrote in a 37-page opinion that recounted Odom’s “profound” physical and psychological <a href="http://www.washingtonpost.com/local/crime/exonerated-inmate-seeks-compensation-from-dc-for-his-pain-distress-in-prison/2014/11/04/5f7fb362-6448-11e4-bb14-4cfea1e742d5_story.html">suffering over the decades</a> that included <span style="color:black;background-color:#ffff04">several prison rapes, his diagnosis with HIV — the virus that causes AIDS — suicide attempts, depression and family estrangement</span>.<br />
<br />
“It was readily apparent to the court at trial that Mr. Odom is only a shell of the young man he was at the time of his wrongful conviction, and only a shell of the grown man he would have become had he not been wrongly convicted and unjustly imprisoned,” Kravitz wrote.<br />
<br />
In an interview , Odom, who was 18 at the time of the crime, said he welcomed word of the award from his attorneys, but added, “They can’t pay me enough money to give me back the years that I’ve lost.”<br />
<a name='more'></a><br />
Odom, who lives in Southeast Washington with his wife of nearly 10 years, whom he met at an HIV support group, said he is attempting to reconnect with his adult daughter, born weeks before his original trial. “I’m just kind of continuing to move on with my life. It’s hard, but we’re working on it together, which is a good thing,” he said.<br />
<br />
Odom’s case is among what are expected to be several civil claims against the District by former prisoners exonerated through DNA evidence.<br />
<br />
The Washington Post has reported that Odom is one of five D.C. men convicted of rape or murder whose charges have been vacated since 2009 because they were based on <a href="http://www.washingtonpost.com/local/crime/convicted-defendants-left-uninformed-of-forensic-flaws-found-by-justice-dept/2012/04/16/gIQAWTcgMT_story.html">erroneous forensics and testimony by an elite unit of FBI hair experts</a>.<br />
<br />
Odom was exonerated in July 2012 after DNA testing showed that he was innocent and that another man — a convicted sex offender — committed the crime for which he was tried and sentenced in 1982 and incarcerated until 2003.<br />
<br />
Since December 2009, DNA results have cleared Donald E. Gates, then 58, of a rape and a murder for which he had spent 28 years in prison. D.C. Superior Court judges have also exonerated two other men, Santae A. Tribble and Kevin Martin.<br />
<br />
Another murder conviction, that of Cleveland Wright, was vacated, and his attorneys with the Public Defender Service for the District of Columbia continue to ask the court to declare him innocent. <br />
<br />
The ruling by Kravitz, appointed to the bench in 1998 by Bill Clinton, is the first time in two decades a prisoner’s claim under the D.C. Unjust Imprisonment Act has been decided by a judge at trial, and comes as courts around the country are coming to terms with how to respond to a growing number of DNA and other types of exonerations.<br />
<br />
In ruling that under the D.C. law, prisoners have six months from their exoneration — and not their incarceration — to file suit, and that they can seek damages for time spent on parole as well as in prison and for physical and emotional injuries, Kravitz’s opinion could help establish a precedent for other District cases.<br />
<br />
Kravitz spent pages starkly enumerating Odom’s suffering, which experts called “extreme,” caused by more than 20 years “enduring a world of deprivation permeated by sexual and physical violence and the terror it bred — a world in which he had no privacy, no control over his activities, no connection to his family and friends, and no opportunity to work or to raise his only daughter.”<br />
<br />
Odom’s insistence that he was innocent led to a psychotic episode while he was imprisoned, and was repeatedly challenged when he was paroled as a registered sex offender, Kravitz wrote. His sexual victimization, HIV condition and sex offense conviction fed feelings of shame, stigma and distrust, similar to symptoms experienced by prisoners of war, the judge stated.<br />
<br />
<br />
By Spencer S. Hsu February 28 at 11:46 AM<br />
<br />
A D.C. Superior Court judge ordered the District government Friday to pay a record $9.2 million in damages to Kirk L. Odom, 52, who was wrongfully imprisoned for more than 22 years in the rape and robbery of a woman in her Capitol Hill apartment in 1981.<br />
<br />
The amount, set by Judge Neal E. Kravitz, is the second — and largest — award in a case tried before a District judge under the District’s wrongful conviction law, which was approved in 1980. It also is one of the largest non-jury awards in an exoneration case in the United States.<br />
<br />
“Mr. Odom spent more than twenty-two years of what should have been the prime of his adult life behind bars for a crime he did not commit,” Kravitz wrote in a 37-page opinion that recounted Odom’s “profound” physical and psychological suffering over the decades that included several prison rapes, his diagnosis with HIV — the virus that causes AIDS — suicide attempts, depression and family estrangement.<br />
<br />
“It was readily apparent to the court at trial that Mr. Odom is only a shell of the young man he was at the time of his wrongful conviction, and only a shell of the grown man he would have become had he not been wrongly convicted and unjustly imprisoned,” Kravitz wrote.<br />
<br />
In an interview , Odom, who was 18 at the time of the crime, said he welcomed word of the award from his attorneys, but added, “They can’t pay me enough money to give me back the years that I’ve lost.”<br />
<br />
Odom, who lives in Southeast Washington with his wife of nearly 10 years, whom he met at an HIV support group, said he is attempting to reconnect with his adult daughter, born weeks before his original trial. “I’m just kind of continuing to move on with my life. It’s hard, but we’re working on it together, which is a good thing,” he said.<br />
<br />
Odom’s case is among what are expected to be several civil claims against the District by former prisoners exonerated through DNA evidence.<br />
<br />
The Washington Post has reported that Odom is one of five D.C. men convicted of rape or murder whose charges have been vacated since 2009 because they were based on erroneous forensics and testimony by an elite unit of FBI hair experts.<br />
<br />
Odom was exonerated in July 2012 after DNA testing showed that he was innocent and that another man — a convicted sex offender — committed the crime for which he was tried and sentenced in 1982 and incarcerated until 2003.<br />
<br />
Since December 2009, DNA results have cleared Donald E. Gates, then 58, of a rape and a murder for which he had spent 28 years in prison. D.C. Superior Court judges have also exonerated two other men, Santae A. Tribble and Kevin Martin.<br />
<br />
Another murder conviction, that of Cleveland Wright, was vacated, and his attorneys with the Public Defender Service for the District of Columbia continue to ask the court to declare him innocent.<br />
<br />
The ruling by Kravitz, appointed to the bench in 1998 by Bill Clinton, is the first time in two decades a prisoner’s claim under the D.C. Unjust Imprisonment Act has been decided by a judge at trial, and comes as courts around the country are coming to terms with how to respond to a growing number of DNA and other types of exonerations.<br />
<br />
In ruling that under the D.C. law, prisoners have six months from their exoneration — and not their incarceration — to file suit, and that they can seek damages for time spent on parole as well as in prison and for physical and emotional injuries, Kravitz’s opinion could help establish a precedent for other District cases.<br />
<br />
Kravitz spent pages starkly enumerating Odom’s suffering, which experts called “extreme,” caused by more than 20 years “enduring a world of deprivation permeated by sexual and physical violence and the terror it bred — a world in which he had no privacy, no control over his activities, no connection to his family and friends, and no opportunity to work or to raise his only daughter.”<br />
<br />
Odom’s insistence that he was innocent led to a psychotic episode while he was imprisoned, and was repeatedly challenged when he was paroled as a registered sex offender, Kravitz wrote. His sexual victimization, HIV condition and sex offense conviction fed feelings of shame, stigma and distrust, similar to symptoms experienced by prisoners of war, the judge stated<br />
<br />
Kravitz also provided one model for determining compensation, calculating damages at $1,000 per day of Odom’s incarceration, $250 per day of his time spent on parole and $200 per day between his exoneration and trial, citing Odom’s “serious and continuing” psychological injuries.”<br />
<br />
In a statement, D.C. Attorney General Karl A. Racine said his office is reviewing Kravitz’s order.<br />
<br />
Attorneys for the city had argued in Odom’s trial in November that he should be granted no more than the $1.1 million in federal damages he already received, because his case was handled by the U.S. attorney’s office, which conducts almost all criminal prosecutions in the city.<br />
<br />
“We have great sympathy for Mr. Odom,” Racine said. “However, we respectfully believe that the District should not have to pay the amount ordered in a case in which it was not involved in prosecuting or convicting the plaintiff, and in which the federal government has already paid Mr. Odom the maximum amount identified by Congress for his incarceration.”<br />
<br />
In his opinion, Kravitz concluded that the D.C. Council clearly intended its legislation to offer remedies beyond what was provided by federal law.<br />
<br />
One of Odom’s attorneys in his civil damages suit, Anna Benvenutti Hoffmann, of the New York City law firm Neufeld, Scheck and Brustin, said, “It’s troubling to see the District try to disclaim moral and legal responsibility for Mr. Odom’s wrongful conviction.”<br />
<br />
Hoffman added, “The District created the Unjust Imprisonment Act because it recognized the moral obligation D.C. has to an innocent person investigated by D.C. cops, convicted in a D.C. court by a D.C. jury, sentenced by a D.C. judge, and who spent many years wrongly incarcerated in a D.C. prison.”<br />
<br />
Odom’s exoneration claim was led by Sandra K. Levick, chief of special litigation at the Public Defender Service.<br />
<br />
In 2007, Nancy Gertner, then a federal judge in Massachusetts, awarded $102 million to four men and their survivors. The men were convicted of a mob murder they did not commit. <a href="http://www.washingtonpost.com/local/crime/judge-orders-dc-to-pay-record-91-million-in-wrongful-conviction-case/2015/02/27/f54edaa6-beea-11e4-8668-4e7ba8439ca6_story.html">..Source..</a> by Spencer S. HsueAdvocatehttp://www.blogger.com/profile/09569822127629044435noreply@blogger.com0tag:blogger.com,1999:blog-3078557354121089469.post-90813769410706255352015-06-24T08:26:00.001-04:002015-06-24T10:31:26.729-04:00Carbondale approves settlement in lawsuit<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhOeiKEZtFJDfQvB1eGCauQwwsuQp-l7g63qWQ1PfwGXyhyphenhyphenN8Dz10LoR2ghLJdgozg18Yk7z-gs5ai-MLPhJGBdbiWyUDMnnqQx8Z8-dHGP7JgI71YUWV7vGdlVHILny-sb6BTuf3Pba8Y/s1600-h/a-lawsuit.jpg"><img style="float:right; margin:0 0 10px 10px;cursor:pointer; cursor:hand;" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhOeiKEZtFJDfQvB1eGCauQwwsuQp-l7g63qWQ1PfwGXyhyphenhyphenN8Dz10LoR2ghLJdgozg18Yk7z-gs5ai-MLPhJGBdbiWyUDMnnqQx8Z8-dHGP7JgI71YUWV7vGdlVHILny-sb6BTuf3Pba8Y/s200/a-lawsuit.jpg" border="0" alt=""id="BLOGGER_PHOTO_ID_5218083808154194978" /></a> <b>3-17-15 Pennsylvania:</b><br />
<br />
CARBONDALE — A lawsuit against Carbondale moved one step closer to settlement after city council approved a $50,000 payment.<br />
<br />
In a suit filed last year, Leo Conway of Archbald claimed his son, Patrick, was among 15 sex offenders registered under Megan’s Law in the city but the only one forced to move under an ordinance that precluded registered sex offenders from living within 2,500 feet of a school, park or other areas where children might gather.<br />
<br />
In July 2012, Mayor Justin Taylor contacted the Conways’ landlord and advised him that Patrick Conway’s presence violated the city’s ordinance and directed him to evict the men, according to the lawsuit. Mr. Conway argued a 2011 state Supreme Court decision in another case made Carbondale’s law unconstitutional.<br />
<a name='more'></a><br />
The ordinance, which first passed in 2007, was amended in 2013 to include only individuals classified as “sexually violent predators” by the Pennsylvania State Police Megan’s Law Registry.<br />
<br />
At their meeting Monday, council voted unanimously to approve $50,000 toward the settlement with the Conways. An additional $10,000 will be paid by Allied World Assurance Co., which city solicitor Frank Ruggiero said has also covered the city’s litigation costs.<br />
<br />
“Generally speaking anytime you can settle something before going to a full trial it benefits everyone,” Mr. Taylor said following meeting.<br />
<br />
The payment must be approved by the plaintiff’s lawyer, which Mr. Ruggiero expected in the next few weeks. <a href="http://thetimes-tribune.com/news/carbondale-approves-settlement-in-lawsuit-1.1849170">..Source..</a> by LUKE RANKEReAdvocatehttp://www.blogger.com/profile/09569822127629044435noreply@blogger.com0tag:blogger.com,1999:blog-3078557354121089469.post-17531266356223218642015-06-24T08:01:00.002-04:002015-06-24T10:31:49.965-04:00Henry Ford College settles suit with sex offender<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhOeiKEZtFJDfQvB1eGCauQwwsuQp-l7g63qWQ1PfwGXyhyphenhyphenN8Dz10LoR2ghLJdgozg18Yk7z-gs5ai-MLPhJGBdbiWyUDMnnqQx8Z8-dHGP7JgI71YUWV7vGdlVHILny-sb6BTuf3Pba8Y/s1600-h/a-lawsuit.jpg"><img style="float:right; margin:0 0 10px 10px;cursor:pointer; cursor:hand;" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhOeiKEZtFJDfQvB1eGCauQwwsuQp-l7g63qWQ1PfwGXyhyphenhyphenN8Dz10LoR2ghLJdgozg18Yk7z-gs5ai-MLPhJGBdbiWyUDMnnqQx8Z8-dHGP7JgI71YUWV7vGdlVHILny-sb6BTuf3Pba8Y/s200/a-lawsuit.jpg" border="0" alt=""id="BLOGGER_PHOTO_ID_5218083808154194978" /></a> <span style="font-family: trebuchet ms; color:#ff0000;"><b> See earlier story: <a href="http://www.pressandguide.com/articles/2012/07/31/business/doc5017cc6ae2026601904167.txt">Sex offender suing HFCC for kicking him out</a> and <a href="http://www.michigansexcrimeattorneys.com/2012/08/henry-ford-community-college-f.html">Henry Ford Community College Faces Suit After Kicking Sex Offender Out</a> and <a href="http://www.clickondetroit.com/news/Sex-offender-with-high-GPA-wants-back-into-college/15633820">Sex offender with high GPA wants back into college </a> (Attorney <a href="http://www.godwinlegal.com/">Shaun Godwin</a>) </b></span><br />
<br />
<b>5-5-15 Michigan:</b><br />
<br />
A convicted sex offender who sued a suburban Detroit college over his dismissal settled the case for $36,000.<br />
<br />
An agreement obtained by The Associated Press says the payment came earlier this year from Henry Ford College’s insurer. In exchange, Michael Branch has agreed to stay away from the Dearborn campus.<br />
<br />
Branch claimed his rights were violated when the school removed him in 2011, despite good grades in a heating-and-cooling program. But in court filings, Henry Ford said his enrollment was terminated because of parole requirements. Branch had to stay away from minors and child-care facilities<a href="http://www.detroitnews.com/story/news/local/wayne-county/2015/05/05/sex-offender-college/26910655/">.</a><br />
<br />
Henry Ford denied wrongdoing but settled the lawsuit solely for “business reasons.” Branch was convicted of having sex with a 15-year-old girl in 2004. by The Detroit NewseAdvocatehttp://www.blogger.com/profile/09569822127629044435noreply@blogger.com0tag:blogger.com,1999:blog-3078557354121089469.post-90676957963357623222015-06-18T15:48:00.000-04:002015-10-11T10:21:09.186-04:00Illinois high court: Comcast must reveal anonymous commenter<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEim3_vTI3vug6iUMd_2vhxU3EKEAwaRQIsUh02Y7pwDZ2ox_vPXQcVOy1DjM_CNTFV3VaS_3fgF8WeEYUYQZQsVxPXdEEGD4b6vOmI-ytzqlac6Ns3RaXWIDFS7z1WT99Y41X7CLCm3BMuC/s1600/a-info-post.jpg" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" height="137" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEim3_vTI3vug6iUMd_2vhxU3EKEAwaRQIsUh02Y7pwDZ2ox_vPXQcVOy1DjM_CNTFV3VaS_3fgF8WeEYUYQZQsVxPXdEEGD4b6vOmI-ytzqlac6Ns3RaXWIDFS7z1WT99Y41X7CLCm3BMuC/s200/a-info-post.jpg" width="200" /></a> <b>6-18-15 Illinois:</b><br />
<br />
SPRINGFIELD, Ill. The <a href="http://www.illinoiscourts.gov/Opinions/SupremeCourt/2015/118000.pdf">Illinois Supreme Court</a> has affirmed a lower court opinion ordering Comcast Cable Communications to identify a subscriber who posted an anonymous message suggesting a political candidate molests children.<br />
<br />
The court said Thursday that the internet service provider must identify the subscriber who commented on a 2011 article in the Freeport Journal Standard about Bill Hadley's candidacy for the Stephenson County board.<br />
<br />
The commenter, who used the online name "Fuboy," wrote that "Hadley is a Sandusky waiting to be exposed" because he can see an elementary school from his home. The comment was an apparent reference to former Penn State football coach Jerry Sandusky who was convicted of child sex abuse in 2012.<br />
<a name='more'></a><br />
Hadley filed a defamation lawsuit against the commenter and subpoenaed Comcast demanding that it identify the subscriber. <a href="http://www.wndu.com/news/headlines/Illinois-high-court-Comcast-must-reveal-anonymous-commenter-308182601.html">..Source..</a> by WNDU.com<br />
<br />
<hr><br />
Hadley v. Subscriber Doe, 2015 IL 118000<br />
<br />
Appellate citation: 2014 IL App (2d) 130489<br />
<br />
JUSTICE BURKE delivered the judgment of the court, with opinion.<br />
Chief Justice Garman and Justices Freeman, Thomas, Kilbride, Karmeier, and Theis concurred in the judgment and opinion.<br />
<br />
This appeal is concerned with discovery in a defamation case. At the time the statement at issue was posted on the internet, the Sandusky sexual abuse scandal had dominated the national news for weeks. Jerry Sandusky was a coach with the famed Penn State football program. It was alleged that he had abused young boys sexually.<br />
<br />
The plaintiff in this Stephenson County case was a former member of the county board when, on December 28, 2011, the Freeport Journal Standard published an online newspaper article entitled “Hadley returns to county politics. Candidate stresses fiscal responsibility.” The article discussed plaintiff’s decision to again seek election to the county board. Online readers could post comments and one of them, the defendant here, used the name “Fuboy” to post the following comment “Hadley is a Sandusky waiting to be exposed. Check out the view he has of Empire from his front door.” A school named Empire Elementary School is located in Freeport.<br />
<br />
Hadley thought he had been defamed and filed suit. However, he did not know the name of the defendant. He sought a court order directing Comcast Cable Communications, Fuboy’s internet service provider, for the revelation of Fuboy’s identity. Plaintiff proceeded under Supreme Court Rule 224, which provides for discovery to identify persons who may be responsible in damages to a plaintiff. The circuit court granted the relief requested, issuing an order directing Comcast to provide the identification and last known address of the unknown defendant. The appellate court affirmed.<br />
<br />
The test for whether this relief was proper is whether a plaintiff’s claim can survive a motion to dismiss. If it can, the rule’s requirement that identification of the defendant is “necessary” has been met. Both the circuit and appellate courts viewed the statement as defamatory per se for imputing commission of a crime. In this decision the Illinois Supreme Court said that, in its context, the comment is not reasonably capable of an innocent construction. Also, it cannot be characterized as a mere expression of opinion rather than of fact, because the statement has a precise and readily understood meaning, is verifiable, and signals factual content.<br />
<br />
The courts below were correct in determining that the “necessity” required for relief under the supreme court’s discovery rule was present here. The disclosure order, and the appellate court’s affirmance of it, were upheld.eAdvocatehttp://www.blogger.com/profile/09569822127629044435noreply@blogger.com0tag:blogger.com,1999:blog-3078557354121089469.post-59909667949526161402015-06-15T14:20:00.000-04:002015-06-15T14:21:37.805-04:00Prepping to pee in park wasn’t perverted, jury says<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhxTb3D0mVPSMgDyP1wEJaD1rwJ_en5YUTd-43NFZ6aGkigQ98N7E4yEbsQUTNQwHQGhnbdHyrvKQDCn8H4ufjbSa1c2XTG1tRyjcjEd-NW7_MJY2ltTINeV_GI3C5a-v_Dr-nysa40AxU/s1600-h/a-court.jpg"><img style="float:right; margin:0 10px 10px 0;cursor:pointer; cursor:hand;" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhxTb3D0mVPSMgDyP1wEJaD1rwJ_en5YUTd-43NFZ6aGkigQ98N7E4yEbsQUTNQwHQGhnbdHyrvKQDCn8H4ufjbSa1c2XTG1tRyjcjEd-NW7_MJY2ltTINeV_GI3C5a-v_Dr-nysa40AxU/s200/a-court.jpg" border="0" alt=""id="BLOGGER_PHOTO_ID_5190353195411568114" /></a> <b>11-22-2013 California:</b><br />
<br />
Pinching a homeless guy for pointing Percy at the park instead of the porcelain was ultimately pointless because it wasn’t perverted, a San Francisco Superior Court jury said this week.<br />
<br />
The homeless defendant, Miguel Hernandez, was accused of flashing a mother and her 4-year-old child on August 11 when he pulled out his penis to, by his account, pee at Franklin Square Park on Bryant and 16th streets. The 29-year-old woman said she thought the 38-year-old Hernandez had an erection when he swung his male equipment within her view — but Hernandez told the jury he only turned because he heard an eruption of noise from a nearby soccer game and wanted to see who scored.<br />
<br />
Hernandez — who wound up on the streets recently when he lost his job as a wine buyer — told investigators he thought everyone nearby was too absorbed in the game to notice what he was doing. He then took off his shoes and sat down to also watch the game, his defense attorney said. That’s where police officers who’d been summoned by the outraged mother arrested him.<br />
<a name='more'></a><br />
The jury on Wednesday took one hour of deliberations, after a two-day trial, to find Hernandez not guilty of a misdemeanor count of indecent exposure.<br />
<br />
“Mr. Hernandez may have made an unwise decision about where to urinate, but that innocent mistake should not brand him for life as a sex offender who preys upon women and children when it simply isn’t true,” San Francisco Public Defender Jeff Adachi said in a statement.<br />
<br />
Prosecutors gracefully absorbed their case being flushed, saying two days of court proceedings were worth the effort.<br />
<br />
“It was a public park, and it was a mom with a 4-year-old,” said district attorney spokesman Alex Bastian. “That’s why we took it to trial. But we respect the jury’s decision.” <a href="http://blog.sfgate.com/crime/2013/11/22/peeing-in-park-wasnt-perverted-jury-says/">..Source..</a> by Kevin Fagan eAdvocatehttp://www.blogger.com/profile/09569822127629044435noreply@blogger.com0tag:blogger.com,1999:blog-3078557354121089469.post-87703580542634161252015-06-05T14:01:00.002-04:002015-06-05T14:03:22.766-04:00Rosin v Monken<div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiiERH7FaBoXMXgfwJ23y_FRk5xBwYgZR_RVa1eWkqAgVk1JYSVXamT1o2cMZWJ1H8M2NpDEKEbwwju2S-s0A2LIa3Isl5xVvo2b5Ngxey30V5WGw52iepCysaUBfZ0_YpFfEE5vCjh2k-A/s1600/a-unfavorable.jpg" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" height="134" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiiERH7FaBoXMXgfwJ23y_FRk5xBwYgZR_RVa1eWkqAgVk1JYSVXamT1o2cMZWJ1H8M2NpDEKEbwwju2S-s0A2LIa3Isl5xVvo2b5Ngxey30V5WGw52iepCysaUBfZ0_YpFfEE5vCjh2k-A/s200/a-unfavorable.jpg" width="200" /></a></div><b>3-17-2010 New York, Illinois:</b><br />
<br />
<a href="http://www.leagle.com/decision/In%20FCO%2020100317092.xml/ROSIN%20v.%20MONKEN">Rosin v Monken</a><br />
<br />
After he was required to register as a sex offender in Illinois, Mitchell Rosin brought suit under 42 U.S.C. § 1983, alleging that the defendants failed to give full faith and credit to the March 27, 2003 judgment of a New York court. In that order, the court accepted <span style="color:black;background-color:#ffff04">a plea agreement that did not require Rosin to register as a sex offender in New York</span>. <br />
<br />
He contends <span style="color:black;background-color:#ffff04">that Illinois is constitutionally required</span> to give effect to the New York judgment and thus cannot, on the basis of that order, <span style="color:black;background-color:#ffff04">force him to register as a sex offender within its jurisdiction</span>. The district court granted defendants' motion to dismiss, finding that the registration requirement in the New York order was merely stricken, which left the order silent on the subject. <br />
<br />
<span style="color:black;background-color:#ffff04">Since the plea agreement did not purport to prevent any state other than New York from registering Rosin as a sex offender, and because any such provision would have been ineffective even if it had been included, we affirm.</span><br />
<br />
<hr><br />
The purpose of the Full Faith and Credit Clause "was to alter the status of the several states as independent foreign sovereignties, each free to ignore obligations created under the laws or by the judicial proceedings of the others, and to make them integral parts of a single nation throughout which a remedy upon a just obligation might be demanded as of right, irrespective of the state of its origin." Baker v. General Motors Corp., 522 U.S. 222, 232, 118 S.Ct. 657, 139 L.Ed.2d 580 (1998) (quoting Milwaukee County v. M.E. White Co., 296 U.S. 268, 277, 56 S.Ct. 229, 80 L.Ed. 220 (1935)). By virtue of its "exacting" operation with respect to judgments, the Full Faith and Credit Clause results in "the judgment of the rendering State [gaining] nationwide force." Id. at 233, 118 S.Ct. 657. The primary operational effect of the Clause's application is "for claim and issue preclusion (res judicata) purposes." Id. at 233, 118 S.Ct. 657.<br />
<a name='more'></a><br />
<span style="color:black;background-color:#ffff04">These observations are unremarkable. But it is a profound mistake to jump from them to the conclusion that New York can dictate the manner in which Illinois may protect its citizenry.</span> Illinois's recognition of the New York order does not carry with it an obligation that Illinois enforce that order in the manner which it apparently prescribes. True, it is generally no defense for a state to decline to [599 F.3d 577] recognize a foreign judgment on account of its public policy. See Baker, 522 U.S. at 233, 118 S.Ct. 657 (noting that "our decisions support no roving `public policy exception' to the full faith and credit due judgments") (emphasis original). But an important exception exists. In Baker, the Supreme Court made clear that the Full Faith and Credit Clause cannot be used by one state to interfere impermissibly with the exclusive affairs of another. Baker, 522 U.S. at 239 n. 12, 118 S.Ct. 657 (holding that a Michigan judgment was not entitled to full faith and credit because it impermissibly interfered with Missouri's control of litigation brought by parties who were not before the Michigan court).<br />
<br />
Illinois need not dispense with its preferred mechanism for protecting its citizenry by virtue merely of a foreign judgment that envisioned less restrictive requirements' being imposed on the relevant sex offender. Illinois, as a state of the Union, has police power over the health and welfare of its citizens. See Barbier v. Connolly, 113 U.S. 27, 31, 5 S.Ct. 357, 28 L.Ed. 923 (1885) (observing that a state's police power permits it to enact laws promoting "the health, peace, morals, education, and good order of the people"); United States v. Salerno, 481 U.S. 739, 747, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) ("There is no doubt that preventing danger to the community is a legitimate regulatory goal."). The Supreme Court has regularly upheld states' exercise of their police powers to protect their citizens against sexual predators. See, e.g., Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003); Kansas v. Hendricks, 521 U.S. 346, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997). As in Baker, the New York court in the present case "cannot command obedience elsewhere on a matter the [New York] court lacks authority to resolve." Baker, 522 U.S. at 240, 118 S.Ct. 657. New York has no authority to dictate to Illinois the manner in which it can best protect its citizenry from those convicted of sex offenses.<br />
<br />
Nor is this a case in which a state's police power conflicts with the U.S. Constitution or an Act of Congress, for this would require state law to give way by virtue of the Supremacy Clause. See, e.g., Morris v. Jones, 329 U.S. 545, 552-53, 67 S.Ct. 451, 91 L.Ed. 488 (1947). The Full Faith and Credit Clause was enacted to preclude the same matters' being relitigated in different states as recalcitrant parties evade unfavorable judgments by moving elsewhere. It was never intended to allow one state to dictate the manner in which another state protects its populace. This being the case, there is no tension between Illinois's police power and the Full Faith and Credit Clause here. As a result, New York could promise Rosin only that he would never have to register as a sex offender within its own jurisdiction. Rosin could not bargain for a promise from New York as to what other states would do based on his guilty plea to sexual abuse in the third degree, for New York had no power to make such a promise.<br />
<br />
<hr>eAdvocatehttp://www.blogger.com/profile/09569822127629044435noreply@blogger.com0tag:blogger.com,1999:blog-3078557354121089469.post-63110968616451680032015-05-28T14:06:00.001-04:002015-05-28T14:11:56.307-04:00An Unjust Bargain: Plea Bargains and Waiver of the Right to Appeal<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEim3_vTI3vug6iUMd_2vhxU3EKEAwaRQIsUh02Y7pwDZ2ox_vPXQcVOy1DjM_CNTFV3VaS_3fgF8WeEYUYQZQsVxPXdEEGD4b6vOmI-ytzqlac6Ns3RaXWIDFS7z1WT99Y41X7CLCm3BMuC/s1600/a-info-post.jpg" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" height="137" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEim3_vTI3vug6iUMd_2vhxU3EKEAwaRQIsUh02Y7pwDZ2ox_vPXQcVOy1DjM_CNTFV3VaS_3fgF8WeEYUYQZQsVxPXdEEGD4b6vOmI-ytzqlac6Ns3RaXWIDFS7z1WT99Y41X7CLCm3BMuC/s200/a-info-post.jpg" width="200" /></a> <b>5-28-15 National:</b><br />
<br />
<b>Abstract</b><br />
<br />
The U.S. Supreme Court estimates that at least ninety percent of criminal convictions are based on guilty pleas. Frequently, criminal defendants are required to waive their appellate rights as a condition of the plea bargain. <br />
<br />
The Supreme Court has not addressed the validity of these waivers, but most federal and state courts to address the issue hold them enforceable when they are made knowingly and voluntarily.<br />
<br />
A minority of states grant defendants the statutory right to appeal adverse determinations on motions to suppress evidence following the entry of a guilty plea. <br />
<br />
California and New York hold that this additional appellate right may be waived in a plea agreement. <br />
<br />
<span style="color:black;background-color:#ffff04">This Note asserts that waivers of this specific right should not be enforceable <b><u>because such waivers are often extracted under coercive circumstances</u></b> that violate due process and contract law principles.</span><br />
<br />
Furthermore, waivers of this right contravene legislatures’ interest in efficiency by encouraging defendants to proceed to trial solely to preserve their claims of error for appeal. <a href="http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=3121&context=bclr">..Full Paper..</a> by Alexandra W. Reimelt<br />
eAdvocatehttp://www.blogger.com/profile/09569822127629044435noreply@blogger.com0