Sunday, September 7, 2008

PART ONE: Review of more than 700 appeals finds problems throughout the justice system

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More Injustice Here

This is old, but I am still posting it, because it's relevant.


Investigation turns up justice system problems

The Santa Clara County criminal justice system failed Miguel Sermeno.

Sermeno was arrested on felony hit-and-run charges after walking the half-block from his house to the scene of an accident. An overzealous deputy district attorney ignored evidence that pointed to a more likely suspect, instead winning a wrongful conviction.

The system failed Bobby Herrera.

Herrera pleaded guilty to assault for a shooting he did not commit, buckling to pressure from an incompetent lawyer who bled his family for thousands of dollars but never investigated the case. Even after the key witness admitted she falsely accused him, indifferent state appellate court justices let his five-year prison sentence stand without explanation.

The system failed Frederick Brown. Brown was sentenced to 26 years to life for possessing stolen property, after he hauled away a truck that had been stripped of parts as it sat idly near his home for a year. The trial judge refused to instruct the jury on a key point of law: Brown was not guilty if he believed the truck was abandoned.

The three cases are among hundreds examined in an unprecedented three-year Mercury News investigation of the Santa Clara County criminal justice system that shows a disturbing truth:

A dramatic number of cases were infected with errors by prosecutors, defense attorneys and judges, and those errors were routinely tolerated. In dozens of cases, the errors robbed defendants of their right to a fair trial. And in a small number of the very worst cases, they led people to be wrongly convicted.

The study reveals ``a basic truth about how the criminal justice system operates,'' said Laurie Levenson, a former federal prosecutor who teaches criminal law and ethics at Loyola Law School in Los Angeles. Levenson was one of seven experts in criminal procedures and ethics who reviewed the Mercury News findings. ``A lot of sausage gets pushed through that machine. Errors that help the prosecution are common. The uneven nature of criminal justice is a serious concern.''

The Mercury News began its investigation in late 2002, as concerns emerged about the quality of justice in a series of high-profile cases. To test how the system worked more broadly, the newspaper reviewed the records of five years of criminal jury trial appeals decided by the California 6th District Court of Appeal -- 727 cases in all. In addition, the newspaper uncovered about 200 cases of questionable conduct that were not part of the study period, by reviewing files and interviewing lawyers.

The result is an unparalleled look at the extent, nature and impact of errors in a criminal justice system.

The review established that in 261 of the appellate cases reviewed -- more than one in every three of the total -- the criminal trial had been marred by questionable conduct that worked against the defendant. In only about one in 20 cases did the defendant win meaningful relief -- either a new trial or a significantly reduced sentence -- from higher courts.

The problems occurred at every phase of a trial, and in every part of the system.

Prosecutors. In nearly 100 cases, the prosecution engaged in questionable conduct that bolstered its effort to win convictions, the examination revealed. Some Santa Clara County prosecutors withheld evidence that could have helped defendants, some defied judge's orders and some misled juries during closing arguments.

But they did not act in a vacuum. In an adversary system in which defense attorneys and judges are responsible for guarding against prosecutors' excesses, the newspaper study found, those checks on the system too often fall short.

Defense attorneys. In 100 cases, defense attorneys acted in ways that harmed their clients. In nearly 50 cases, the attorneys failed to take the most basic of measures, from properly investigating their case to presenting the evidence they gathered. Defense attorneys failed in dozens more cases to object as prosecutors or judges engaged in questionable conduct, in effect excusing the mistakes.

Trial judges. In more than 150 cases, judges made missteps or questionable rulings that favored the prosecution. Violating legal precedents, trial judges allowed evidence that unfairly tainted defendants and prohibited evidence that might have supported their defense. Repeatedly, judges failed to properly instruct jurors on legal principles, instead offering direction that made a guilty verdict more likely.

The appellate court. The 6th District Court of Appeal, the primary court of review for Santa Clara County cases, upheld verdicts in more than 100 cases even as it acknowledged errors had occurred. The appellate court simply concluded those errors made no difference in the outcome of the case. Sometimes those conclusions were appropriate, but a review of the appellate record and consultations with experts established that in more than 50 cases the court misstated facts, twisted logic and devised questionable rationales to dismiss the error.

In nearly all the cases, the 6th District designates its opinions as ``not to be published'' -- a distinction that means they are not to be cited as legal authority in subsequent cases, and thus have little relevance beyond the parties to a case. The Mercury News found that higher courts are extremely unlikely to review unpublished opinions, making the 6th District the final word on most criminal trials in Santa Clara County.

The unpublished designation also has served to shield the cases from outside review. Past academic and journalistic studies of criminal justice, here and elsewhere, have examined published opinions, even though they represent a tiny proportion of court decisions. The Mercury News review is unprecedented in its comprehensive analysis of criminal decisions, published and unpublished alike.

State court statistics show the 6th District over time has published a smaller portion of its criminal cases -- 2 percent -- than any other appellate district in the state. The statewide average is 4 percent.

Taken together, the Mercury News findings offer a picture of a system that often turns on its head the presumption that defendants are innocent until proven guilty. Prosecutors, defense attorneys, judges and appellate justices often act in ways that cause defendants' rights to be violated.

The newspaper study points to a ``skewed system that disproportionately bends over backward to help the DA win,'' said Bennett Gershman, a former prosecutor and professor of criminal law at Pace University School of Law who has written on prosecutorial and judicial ethics. ``Admitting and excluding evidence unevenhandedly and overlooking serious errors is not a pretty state of affairs if one is concerned about fair trials. Nor if one is concerned about the appearance of justice.''

Another outside check on the system -- media attention -- also has largely failed. The few defendants with money or connections often can command attention for their complaints against the system. But the overwhelming number of cases in the Mercury News examination, even involving the most serious allegations of error or misconduct, have received scant publicity, if any.

To be sure, the review established that the system usually works. Most of the county's more than 300 criminal jury trials annually are marked by judicial rulings that correctly interpret and administer the law, and prosecutors who faithfully follow court rules and judges' rulings. In most appeals, the justices properly apply the law to the facts before them. And even in cases tainted by error, there is rarely reason to doubt the guilt of those convicted.

But Gershman and other experts say the problems exposed in the Mercury News examination are serious and reflect a nationwide trend in criminal justice. The expansion of the rights of the accused identified with U.S. Supreme Court decisions through the term of Chief Justice Earl Warren in the 1950s and '60s has waned in recent years. The public mood, worried about crime and clamoring for more safety, is reflected in tougher laws and court decisions. Prosecutors and judges who fail to lock up violent criminals do so at their own political peril.

Defending conduct
• DA reiterates concern for ethics

It was not possible to compare Santa Clara County directly to other areas, because of the lack of similar studies in any other jurisdiction. But this county has long been conservative on law-and-order issues and prides itself on a remarkably low crime rate. The district attorney takes an aggressive approach to charging dangerous criminals, statistics show, and enjoys one of the highest conviction rates in the state. Judges in the county dismiss fewer cases than most of their counterparts elsewhere.

District Attorney George Kennedy and his assistants emphasize their concern for ethics and fairness, and say they have taken many steps to ensure that trial deputies care more about justice than about winning convictions at all costs. ``The tenor in the office, for fairness and ethics, is better than anywhere I know,'' Kennedy said.

His top assistant, Karyn Sinunu, reviewed with the Mercury News more than 100 cases in which concerns were raised about the prosecutor's behavior, and conceded that she was troubled by some of the conduct. But she said that in many instances, proper conduct was wrongly criticized, and that in other cases, the problems amounted to nothing more than honest mistakes.

But the Mercury News review uncovered a series of cases that raised more troubling questions about the conduct of prosecutors and whether the district attorney's office is doing enough to curb questionable behavior. While many errors were isolated incidents, others fell into patterns that suggested broader problems. And certain prosecutors engaged in questionable behavior in multiple cases, suggesting either sloppiness or a deliberate disregard for ethical rules. The Mercury News found repeated instances of troubling conduct in the career of one of the county's highest-profile prosecutors, Benjamin Field, including withholding evidence, making misleading arguments at trial and violating judicial orders.

Instances in which prosecutors, defense attorneys or judges err generally have little impact on the outcome of a case -- while any error raises, at least marginally, the likelihood of conviction, few cases go to trial without overwhelming evidence of guilt. But the Mercury News examination shows a number of cases in which the problems seemed to have greater impact.

``The system is built to tolerate errors,'' said Levenson, the former prosecutor. ``One problem is that errors increase the small risk that innocent people can be convicted. And no one can say for sure how often that happens.''

In 2003, two men convicted of Santa Clara County murders were set free amid judicial findings that police or prosecutor misconduct helped convict people who were probably innocent. One involved Glen ``Buddy'' Nickerson, who served 19 years before U.S. District Judge Marilyn Hall Patel overturned his conviction. The second was Quedellis Ricardo ``Ricky'' Walker, who spent nearly 12 years in prison before top prosecutors acknowledged that improper deals with unreliable witnesses had caused an injustice.

The newspaper probe identified several other cases in which doubts about guilt lingered after trials marred by questionable conduct. Some of those convictions were ultimately overturned in subsequent proceedings, although without the public notice the Walker and Nickerson cases drew. In two of those cases, the decision not to retry the defendant occurred as prosecutors reviewed concerns raised by the Mercury News.

After the Walker case, the district attorney's office took several significant steps, including mandatory training of assistants, to re-emphasize the need to be vigilant against wrongful prosecutions.

Kennedy said he has sought to guard against wrongful prosecutions since he took office in 1990. But, he said, the Walker case was a revelation to him. ``I thought before Ricky Walker that it was impossible'' for an innocent defendant to be convicted and lose a motion for a new trial. ``I thought it was impossible. Now I know that it isn't.''

Worst nightmare
• Mistakes lead to jail in hit-and-run case

The case against Miguel Sermeno is the system's worst nightmare: A series of misjudgments and mistakes led to the wrongful conviction of a man who was in the wrong place at the wrong time.

The yearlong ordeal began as Sermeno stood among a small crowd around the scene of an East San Jose hit-and-run in August 1995. A group of three bystanders thought he resembled the driver, and told police.

The investigating officer approached a frightened passenger who remained with the hit-and-run vehicle after the driver fled. He told her she could be locked up if she tried to cover up a crime, and asked whether Sermeno was the driver. She said yes, then quickly recanted.

Prosecutor Terence Tighe developed a theory that the passenger was lying to protect Sermeno because of their ``relationship,'' even though there was no indication the two knew each other. Tighe overlooked evidence suggesting the registered owner of the car was the driver who fled, and then withheld information that could have helped the defense find the owner.

The assistant public defender chose not to present testimony from the children who also were in the car -- and who maintained all along that Sermeno was not the driver.

The trial judge refused to accept as evidence a photograph of the registered owner of the car, and rebuffed the public defender's complaints that he had no opportunity to show the picture to the witnesses and ask whether the owner might have been the driver instead.

After Sermeno was convicted for a felony hit-and-run, evidence emerged casting further doubt on Tighe's theory that the passenger was protecting Sermeno and not the far more logical suspect: The car's registered owner, whom she had denied knowing, was the father of her newborn baby.

The prosecution opposed granting Sermeno a new trial nonetheless. His court-appointed appellate attorney, Sheri Cohen, became baffled by the system's unwillingness to recognize her client's innocence. ``When I would go to a party and talk to people about the case, they couldn't believe that this man had been convicted and that officials were fighting to keep him convicted,'' she recalled.

A 6th District panel affirmed the conviction but ordered a hearing to consider the impact of the public defender's failure to call the children in the car as witnesses.

Finally, supervisors in the district attorney's office elected to drop the charges rather than retry Sermeno. By then, more than two years had passed since Sermeno's conviction and he had long since served his eight-month term in jail.

But the district attorney's office never formally acknowledged his innocence. In a recent interview, after hearing a reporter recount the reasons to question Sermeno's guilt, District Attorney Kennedy responded: ``If you have concluded he is innocent, I accept that.''

Holding back
• Crucial evidence often withheld from defense

Few cases in the Mercury News' review were as thoroughly twisted by a series of transgressions as Sermeno's. But the review demonstrates that such errors widely infect criminal cases, from before the trial through the appeal.

Perhaps the most contentious area involves the obligations of prosecutors and defense attorneys to exchange evidence promptly before trial, a process called discovery.

These disputes often begin with a complaint from a defense attorney that prosecutors ignored their legal obligation to turn over material needed to prepare the defense case. In dozens of cases reviewed by the Mercury News, judges stepped in to order prosecutors to turn over additional evidence; often they chastised the prosecutors for not being more cooperative.

Discovery issues continue post-trial as well; 25 appellate cases reviewed by the Mercury News involved significant concerns that prosecutors withheld evidence that might have cast doubt on the defendant's guilt. Over and over again, defense attorneys learned only after the case was tried that prosecution witnesses had questionable backgrounds that cast doubt on their credibility; that scientific reports were not as conclusive as juries were led to believe; that there was evidence that someone other than the defendant had committed the crime.

To defense lawyers, such issues are especially troubling for two reasons. They complain there is no way to know the number of cases in which evidence that might have changed the outcome was withheld. And they express distrust about prosecutors' motives, suggesting some evidence is intentionally hidden.

But after reviewing the cases raised by the Mercury News, chief assistant district attorney Sinunu said evidence often was withheld not for nefarious reasons, but because of mistakes or because the prosecutor was not aware of its existence. Kennedy said he believes appellate defense attorneys regularly exaggerate claims of withheld evidence, in a desperate effort to overturn convictions. Kennedy and Sinunu both said that their office policy is to err in favor of turning over evidence and that attorneys who fail to do so are warned about such conduct.

Still, problems persist.

Apolonio Solorio spent five months in jail, accused of a February 2003 robbery at a liquor store in San Jose, after the store owner identified him as one of the culprits. It took defense attorney Andy Gutierrez months, and request after request, before a clear copy of a store videotape that captured the robbers was turned over. After the tape was digitally enhanced, the deputy district attorney quickly realized Solorio was the wrong man and moved to dismiss the charges.

It might seem an exceptional situation: A defendant's alleged crime is on videotape, and yet his attorney must fight to get this crucial evidence. But it wasn't exceptional for Gutierrez. Five years earlier, a similar thing happened when he represented Shehabeddin Elmarouk, charged with assaulting officers in the Santa Clara County jail.

The videotape that was initially provided showed only an inconclusive portion of the incident. Three weeks before trial, after six months of trying, Gutierrez obtained the full videotape, which showed the corrections officers brutally beating his client. A jury acquitted Elmarouk, who later received $110,000 after suing the county over the incident.

But when evidence of importance to the defense does not surface in a timely way, jurors are left with a misleading picture of the case as they deliberate.

Take the case of Mark Crawford, who had five prior drug-related convictions when he was arrested in January 1998. In his house, police armed with a search warrant found a duffel bag containing methamphetamine under a staircase. They also found drug paraphernalia elsewhere in the house and methamphetamine in Crawford's system.

Only one thing complicated the case. Inside the duffel bag were a motorcycle repair receipt and a traffic ticket, both bearing the name Richard Hara.

The prosecutor, Troy Benson, was undeterred. He called a police sergeant at trial to testify that drug dealers often stash false identity papers with their drugs.

The defense presented no evidence. In his closing argument, defense attorney Eben Kurtzman argued to the jury that the drugs belonged to Hara. Benson rebutted that argument by telling the jury, ``The fact is, you have no evidence that Richard Hara possessed these drugs. The only evidence that you have are two receipts. You have no evidence that Richard Hara ever lived in this house or was ever in this house.''

What Benson never did, he acknowledged to the Mercury News, was conduct inquiries into Hara. Neither did Kurtzman, who, like at least 18 other defense attorneys in cases reviewed by the Mercury News, failed to take simple steps to investigate or prepare for trial. He later said he did not hire an investigator because Crawford had no money for one.

Yet as an appellate attorney discovered after Crawford's conviction, there was plenty of easily obtainable evidence that the drugs may not have been Crawford's.

Witnesses were available to testify that Hara stayed in the apartment and that the duffel bag was his. And at the very time the charges against Crawford were pending, Hara himself was arrested in Santa Clara County for allegedly possessing methamphetamine. Months before Benson would hint to a jury there was no evidence that Hara existed, his office agreed to a deal that sentenced Hara to four months in jail and a required rehabilitation program. Benson said he did not know of Hara's arrest and therefore had no information to provide during discovery.

Asked by the Mercury News to review the case, top officials in the district attorney's office were not perturbed by evidence that Hara existed after all, and offered a new theory of the crime: Hara and Crawford probably were involved in drugs together, so the evidence implicating Hara did not necessarily exonerate Crawford.

To date no court has been willing to say that Crawford was denied a fair trial. He remains in prison, having never had the opportunity to present the evidence on Hara to a jury.

`Again and again'
• Frequency, nature of problems worry experts

Withholding evidence is just one of many types of questionable prosecutorial conduct documented by the newspaper review. In 37 cases, prosecutors or their witnesses revealed evidence that the judge had banned from the trial; in more than 40 cases, prosecutors misstated the law, disparaged the defendant or his attorney, or made other sorts of improper statements during closing arguments; in eight cases, prosecutors took advantage of judicial rulings, telling jurors that no evidence existed to support a defense argument when the truth was the judge had prohibited the defense from presenting the evidence.

In more than 50 other cases, judges endorsed the prosecutors' behavior, making the questionable conduct the judges' own responsibility.

Experts who reviewed the Mercury News findings said the number and nature of the issues involving prosecutors suggest that some of the conduct was deliberate -- or at least was not being effectively prevented. Of particular concern was some conduct that occurred in patterns.

``When you see something happening again and again, you have to question if it isn't happening by design,'' said Gershman, the law professor at Pace.

Prosecutors in nine cases trivialized ``reasonable doubt'' in ways that drew criticism from the appellate court. Using strikingly similar analogies, these prosecutors sought to convince juries that it was easy to overcome such doubt, comparing it to the minor doubt one might have about the risk of an accident when driving through a green light, or making a left turn, or getting on an elevator, or boarding an airplane.

In 16 cases, prosecutors or their witnesses revealed to juries that defendants were in custody, or on probation, or on parole, generally despite specific orders from a judge not to do so. Judges typically prohibit evidence that could bias the jury against a defendant when it has no direct connection to the crime.

Sinunu, the chief assistant district attorney, admitted that the improper disclosure of evidence does recur. But, she noted, sometimes it is inadvertent -- lawyers and witnesses on occasion blunder as they try to follow the rulings. And at times, she said, witnesses -- police and victims, especially -- wrongly think they are helping the prosecutor when they blurt out information the jury is not supposed to learn.

But after reviewing the Mercury News findings, University of California-Berkeley law Professor David A. Sklansky, a former federal prosecutor, said the number of such improper revelations seemed high. ``This is the type of thing that prosecutors should be able to stop if they wanted to, by making it clear to witnesses that it will not help and is improper to say.''

Asked about Sklansky's conclusion, Kennedy conceded it was ``a fair point.''

Another matter of concern, experts said, are cases in which a single prosecutor engages in a series of questionable actions. Such cases suggest, they said, that the deputy district attorney either did not respect ethical boundaries or had, in the heat of the courtroom battle, lost a sense of fair play.

In 2001, Joey Villarreal was charged with possessing methamphetamine for sale after the police found him with a duffel bag of drugs and, when patting him down, a pocketknife. Before trial, Judge Marliese Kim told Deputy District Attorney Sumerle Pfeffer Davis to instruct her witnesses that the knife was not to be mentioned.

Nevertheless, during trial, Davis asked a police officer what he found when he patted down Villarreal. He responded, ``I remember locating a large pocketknife in his pocket.''

Away from the jury, Davis told the judge she had failed to advise the officer of the judge's order.

But that was not Davis' only mistake. In a sharply critical ruling, the 6th District also found that Davis had failed to provide to the defense statements by Villarreal at the time of his arrest, and that she overstated, in opening and closing arguments, the amount of methamphetamine in evidence. Even as the appellate panel upheld the verdict, it stated that Davis' ``repeated failures -- to uphold her duties as an officer of the court -- were injurious to the dignity and integrity of our criminal justice system and raise questions about her ability or willingness to adhere to the laws of this state.''

Sinunu, the chief assistant district attorney, said that although Davis had erred at trial -- and had received training on courtroom conduct as a result -- officials in her office believed that the 6th District had unfairly exaggerated the error.

Excusing mistakes
• Appeals court routinely justifies alleged errors

Although the court's language in the Villarreal case was unusually sharp, its conclusion was typical. In a system in which errors can lead to disastrous consequences, the ultimate check on most questionable conduct -- the 6th District Court of Appeal -- routinely excuses it.

The 6th District, which covers Santa Clara, Santa Cruz, Monterey and San Benito counties, was carved more than two decades ago out of the 1st District Court of Appeal, which oversees the rest of the Bay Area. It has long been regarded as the most conservative appellate court overseeing an urban area in California -- a reputation stemming in part from the role of law-and-order Gov. George Deukmejian, a former attorney general, in appointing its first eight justices.

California does not routinely release detailed statistics on how its appellate courts handle cases, and the available statistics are difficult to compare because court practices vary. But a Mercury News computer analysis of 20 years' worth of appellate decisions shows that the 6th District upholds convictions in 97 percent of the cases it hears.

To reach that level, the Mercury News determined, the court often went to great lengths to minimize or explain away the errors that were alleged in many of those cases.

For example, the review found 30 cases in which the appellate court misstated the facts or the law in ways that bolstered the decision to affirm the conviction. In one case, the court contended two defendants on trial for assault did not challenge the assertion that they had attacked the victim, when the trial record clearly showed they denied the attack.

The mistakes occurred exclusively in unpublished decisions -- suggesting, to experts such as UC-Berkeley law Professor Stephen Barnett, that judges take less care with those cases. But the impact of not publishing may go beyond mere sloppiness.

Arlin Adams, a former federal appellate judge and special prosecutor, said he has ``long been concerned'' that judges give unpublished opinions short shrift. ``Writing an opinion for publication often forces the writer to analyze more carefully alleged errors,'' he said.

A Mercury News review documented just how powerful the unpublished designation can be in protecting a case from further scrutiny. By examining the opinions of the California Supreme Court over a 15-year period, the newspaper established that the state's highest court rarely reviews appeals in unpublished cases, given that the appellate court's decisions in those cases have no legal authority; during the past decade, the court has reversed only about two unpublished opinions of the more than 3,000 defense appeals it receives annually from all six appellate districts.

A rare reversal
• Justices acknowledge a damaging misstep

The case of Darcius Butler is the exception in which the 6th District concluded a single prosecution error was sufficient to order a new trial. In reaching that decision, the court acknowledged a crucial issue about the system: Small errors can lead to the wrongful convictions of people against whom there is not strong evidence of guilt.

A jury concluded Butler was the black man with braids who burst into a San Jose home in 2001 and terrorized Lisa Stuffel and her two children. Police initially came to suspect him after a witness identified Thomas Butler as a member of the robbery team and speculated that a robber she could not identify might have been his brother.

Darcius Butler, Thomas Butler's half-brother, had worn braids just weeks earlier. But neither the driver nor Stuffel's children could pick him from a photo lineup, though the children later identified him in court. Stuffel said the photo of Darcius Butler ``looks like'' one of the people who came into her home. But there was no physical evidence linking Butler to the crime, and relatives vouched that he had been at a party the night of the robbery.

As the prosecution was making its case in court, a police officer referred in testimony to Butler's parole agent; later, the prosecutor himself reminded the jury of ``Agent Houston.'' That violated a pretrial order from Judge Alden Danner that no references be made to Butler's criminal history -- he had been in prison on drug charges -- because it might bias the jury.

Danner told the jury to disregard the references, and Butler was convicted and sentenced to 17 years in prison.

But two years later, a 6th District panel overturned the verdict, ruling it was ``reasonably probable'' that Butler would have been found not guilty without the mention of his parole. In its analysis, the court focused not only on the error, but also on the questionable nature of the witness identifications. And in determining how strong the evidence was, the panel concluded that the jury also considered it ``a close case,'' citing the jury's three days of deliberations and its requests to review testimony. In the end, the trial was ``irreparably damaged'' by the mention of his parole status, the court said.

As prosecutors were considering retrying Butler, the case continued to erode: Butler passed a polygraph examination, the witnesses developed new doubts about their identifications, and two of Butler's co-defendants said he was not part of the robbery team. The Mercury News brought the growing questions about the evidence to supervising officials in the district attorney's office, which undertook a re-examination of the case.

Ultimately, prosecutors offered Butler a deal that he took shortly before Christmas 2004: Plead guilty to false imprisonment and get out of prison immediately.

Supervising Assistant District Attorney David Tomkins said he remains convinced of Butler's guilt, despite the court's ruling and the problems with the evidence. Defense attorney Patrick Kelly is no happier.

Although colleagues offered Kelly congratulations on winning freedom for Butler, he told a reporter, ``I feel horrible about it. I believe my client was innocent, and that makes it impossible to feel good about this outcome.''

Refusing to act
• Court says most errors are too small to matter

The Butler case stands out as one of the rare instances in which the appellate court was concerned enough about the evidence of guilt to overturn the verdict. More commonly, the court concludes the evidence is so overwhelming that whatever errors marred the trial do not matter.

The Mercury News' analysis of five years of appeals showed that in at least 107 instances, the court agreed that a prosecutor, defense attorney or judge had erred, but it called the errors harmless. In 79 other instances, the appellate court said there was no need to determine whether an error had occurred, because it would have been harmless anyway.

The U.S. Supreme Court has made clear that some level of error is acceptable: Defendants are not entitled to perfect trials, an impossible goal, but to fair trials.

But experts note there are dangers when a court routinely upholds convictions in the face of serious errors. For one thing, the appellate court is doing less than it might to discourage misconduct. If the appellate court, for instance, regularly finds that trivializing reasonable doubt is harmless, prosecutors are not necessarily deterred from doing so.

Even worse is the danger that the justices may wrongly assess the impact the errors had on the case. Not only is it difficult to determine how much an error influenced the jury, but justices also may misjudge the strength of the case themselves because of evidence that was excluded or wrongly included.

Nowhere is the court's tendency to shrug off errors more striking than in cases that involved heinous, high-profile crimes, where a reversal might lead to the release of a dangerous criminal.

One powerful example is the appeal of Sonya Daniels, a Milpitas resident whose young son, Jory, starved to death in 1994. The case was shocking, and created outrage in the community.

Daniels was tried along with her husband, Brian. The two were convicted of second-degree murder and sentenced to 15 years to life in prison. But both the trial and appellate courts reacted contemptuously to Sonya Daniels' argument that her role in Jory's death could not be considered without appreciation for her status as a battered wife.

In a three-month trial in 1998, the jury heard a sordid story of child abuse. Jory, 5, weighed 19 pounds at the time of his death and was so thin that the shape of his bones could be seen through his skin.

The jury heard that Jory and his younger brother often complained of being hungry and were sometimes denied food and water as punishment. They also heard that the abuse had a long history -- as an infant, Jory had been removed from his parents because of a fractured skull and leg.

But an equally sordid tale was not told at trial. Sonya Daniels claimed she experienced extreme abuse at the hands of her husband, including rape, sodomy and beatings with a belt. Once, angry over her refusal to have an abortion, she said, Brian Daniels had locked her in a closet and deprived her of food and water for three days.

A 1991 state law encourages judges to admit testimony about Battered Women's Syndrome and its effects on the behavior of victims of domestic violence, but Superior Court Judge Thomas Hastings ruled that law did not apply in this case. He refused to permit a psychotherapist who specialized in family violence to testify that Sonya Daniels had been battered so severely that she was not aware of the danger to her children, and that she lived in fear that made her incapable of protecting them.

In a highly emotional scene, the prosecutor repeatedly asked Sonya Daniels why she failed to protect her son from starvation, knowing she could not mention her claims of abuse. Over and over, Hastings reprimanded her and threatened contempt as she complained that she was not allowed to answer.

Her attorney, James Leininger, continued to complain to Hastings. But Leininger's efforts, which later drew a rebuke from the appellate court for showing ``appalling disrespect'' to the judge, failed to persuade Hastings to change his ruling.

But Sonya Daniels' difficulties in presenting her defense were just beginning. After both she and her husband were convicted of second-degree murder, Leininger introduced her parents to another attorney, Brenda Malloy, who Leininger contended would be a good choice for the appeal. She would turn out to be a better choice for Leininger than for Sonya Daniels.

Malloy told her it would cost $25,000 for the appeal, and months later, according to court records, the first $10,000 was countersigned and deposited in Leininger's account.

Malloy filed an appellate brief on Sonya Daniels' behalf that was thoroughly lacking in legal research, offering only the barest indication of past court decisions that would normally be the heart of any appeal. The attorney general, in a rare step, argued that the appeal's discussion of the battered-woman issue was not coherent enough to warrant a response.

Then, on July 21, 2001 -- the day that the case was scheduled for oral argument before a panel of justices -- Malloy failed to show up altogether, and the argument went ahead without Sonya Daniels being represented.

Malloy was out of the country at the time, and was being investigated by the State Bar of California concerning allegations of shoddy representation of other Santa Clara County defendants. She eventually gave up the practice of law, state records show, after the state bar disciplined her as a result of its investigation.

Reached in Ireland, Malloy twice hung up when a reporter asked about the Daniels case. Leininger did not return phone calls.

Sonya Daniels found a new attorney days after the oral argument, but the 6th District would not permit her to file a new brief.

Seven weeks later, the appellate court issued its opinion, one that stands out even for a court that has routinely dismissed appeals. Even as it sharply criticized the work of Leininger and ridiculed the appeal of Malloy, the three-justice panel rejected the idea that better legal work might have made a difference.

The court said it would consider the question of whether Hastings improperly restricted Daniels' defense even though Malloy's brief was below ``the standards of competent appellate counsel,'' because at least she had ``presented some discernible arguments.''

But it rejected other issues Malloy sought to raise, saying her woeful submission did not merit consideration on those issues.

The court went on to endorse Hastings' ruling barring the battered-woman defense, and to affirm the convictions of Brian and Sonya Daniels. Sonya Daniels appealed without success to the California Supreme Court and has now turned to federal court.

The 6th District rulings ``completely distorted the process,'' said Janice Lagerlof, who now represents Sonya Daniels. ``Instead of hearing the issues properly argued, they made up what the arguments should have been, and then answered those arguments. Sonya Daniels was kept from defending herself at trial, and then 6th District denied her the chance to present her case on appeal.''

OR - Neighbors say no to forensic patients

View the article here


Some living nearby object to facility's plan to create six transitional homes

Two Salem artists who live near Oregon State Hospital are objecting to state plans to move dozens of criminally committed psychiatric patients, possibly including sex offenders, into six transitional homes on the state hospital grounds.

Andries Fourie, a sculptor who teaches art at Willamette University, has sent protest letters to Gov. Ted Kulongoski (Contact), Senate President Peter Courtney, House Speaker Jeff Merkley (Email) and Salem Mayor Janet Taylor (Email).

Fourie, who can see the cottages from his home along 24th Street NE, fears that the transitional homes will jeopardize neighborhood safety.

"These plans appear to have been made with little more than a deliberate and callous disregard for the safety of neighboring residents," he wrote in an Aug. 22 letter to Kulongoski. "Why would anyone in their right mind place sex offenders right next to a neighborhood that is filled with children and many elderly people who live alone."

Fourie also wrote that "there is no such thing as a 0 percent recidivism rate, and that it is only a matter of time before one of the patients in the planned transitional units uses their newly gained freedom and ready access to the adjacent community to perform the kind of act that they were institutionalized for in the first place, and the victim will be a child, a woman or an elderly person from the neighborhood. When that kind of tragedy occurs, the state will have to bear the blame."

Jonathan Bucci, also a resident on 24th Street and a sculptor and painter who is the collection curator at Willamette's Hallie Ford Museum of Art, has similar concerns about the cottages. He characterized the state's plan to create clustered transitional homes adjacent to the central Salem neighborhood as "a Petri dish experiment."

Top hospital officials confirmed that six cottages will open as transitional units early next year. In all, 36 patients will be housed in the cottages. All or most of the occupants will be forensic patients — people who committed crimes and were judged "guilty except for insanity."

Officials said the transitional program is designed for low-risk, high-functioning patients who have progressed in treatment and are nearing their hospital discharges. Most of them take stabilizing medication to manage their mental illness.

Staff members will be on duty around the clock in the cottages, officials said. The units will be locked at night and equipped with alarm systems to alert employees to any unauthorized patient departures.

Faced with neighbor opposition to the transitional units, hospital Superintendent Roy Orr said Friday that he intends to set up additional meetings with residents to further explain the program and "to also humanize the work we do here and demystify it to some extent. That's a big piece of this."

Asked whether the hospital might pull the plug on the planned program, Orr said that's not an option.

Fourie said he might ask neighbors to join his protest.

"We need to see if the hospital will be amenable to taking our concerns seriously," he said. "If they don't, then I suppose we will have to sort of try to organize the neighborhood. Hopefully, we won't need to. I mean, I have a full-time job, I teach at the university. I have no real interest in being a community activist. I've never done anything like this before."

Controversy continues

Hospital officials tried to ease concerns about the transitional units during an Aug. 19 meeting attended by Fourie, Bucci and other neighbors. But their safety assurances failed to defuse the controversy.

"For the most part, I was more disturbed by what I heard than heartened by it," Fourie said, "because they confirmed that there will be forensic patients in there, including sex offenders."

The hospital's forensic program has about 450 patients who committed crimes and were found guilty except for insanity, resulting in stints of psychiatric care rather than incarceration in state prisons or county jails. Their crimes range from theft to sex offenses and murder.

Hospital officials confirmed that the transitional cottages could house an unspecified number of sex offenders.

"Potentially, there could be sex offenders, but 'sex offender' is a pretty broad term, and it's really a red flag to everyone in the public," said Maynard Hammer, the hospital's deputy superintendent. "Some of our sex offenders committed one act back in their teens and they're now in their 30s or 40s.

"That's certainly not the focus of putting folks in there. It's based on treatment level, risk analysis of how well they function and how successful they're likely to be."

Opposition to the transitional housing program comes as the state is moving forward with long-awaited plans to build a new $250 million psychiatric facility to replace the existing 125-year-old institution.

The transitional program is expected to take some of the patients now occupying minimum-security wards in the hospital's decaying J Building. State plans call for preserving the oldest part of the J Building and incorporating it into the new complex. Other parts of the J Building will be razed to clear the way for the planned state-of-the-art facility.

Fourie said his opposition to the planned transitional units doesn't mean that he objects to the state hospital replacement project.

"It's not as if we're saying, 'we don't want the hospital there,' " he said. "The hospital was there long before us. I've only lived here less than a year. But at the same time, they really need to respect our need for peace of mind and safety. I don't think there's a community anywhere that would volunteer for the privilege of living right across the street from that kind of transitional housing."

Troubled history

More than two dozen cottages are scattered across the south and southwest section of the hospital's sprawling 144-acre campus. In a bygone era, hospital administrators and other high-ranking employees resided in some of the stately homes.

Today, some cottages have occupants, others stand vacant. Varied uses for the cottages include office space for hospital financial operations, offices for nonprofit agencies and at least two group homes for former hospital patients and other community-based mental-health clients.

The group homes are run by Marion County and the Shangri-La Corp., a Salem-based nonprofit agency.

Remodeling work now is being done on the six cottages that will become transitional units for forensic patients.

Hammer noted that the planned transitional program isn't a new concept. In the 1990s, the hospital ran a three-cottage program that housed 26 forensic patients. It was scrapped during state budget cuts in 2001-03.

"We've had these kinds of programs operating there since probably the mid-1990s, and to my knowledge there's never been a problem," Hammer said.

More than 20 years ago, however, one of Salem's most notorious killers murdered two people and buried their bodies — one in a garden behind a state hospital cottage — all while on approved passes issued by hospital therapists.

In 1986, Robert Langley was enrolled in a hospital program for mentally disturbed prison inmates. He convinced his therapists that he was a model patient and worthy of frequent, unsupervised passes. His activities while freed on passes included selling drugs and committing two murders.

In December 1987, Langley bound and strangled Anne Gray of Salem. He buried her body in a muddy hole behind a North Salem house where his aunt once lived.

Four months later, Langley used a baseball bat to bludgeon to death Larry Rockenbrant in a garage on state hospital grounds. A prosecutor later told a jury that Langley and Rockenbrant knew each other and that Langley had told him about Gray's murder. Langley then killed Rockenbrant to keep him silent.

On April 13, 1988, Langley buried Rockenbrant's body in a cactus garden behind a cottage on the hospital grounds. The makeshift grave was marked with a sign reading: "Cottage 18 garden. Please don't touch."

Langley now is on Death Row at the Oregon State Penitentiary. The hospital treatment program that granted him liberal pass privileges no longer exists. It was canceled years ago.

Community opposition

The brewing controversy about the transitional units on the state hospital campus follows uproars that occurred during the past year in Oregon cities where citizen protests derailed or delayed plans to open community-based residential facilities for forensic patients coming out of the state hospital.

Community dissent to planned or existing facilities for former forensic patients erupted in Albany, Cornelius, Milwaukie and Hillsboro.

Meanwhile, the state faces pressure to create additional community facilities for patients to go once hospital therapists have determined that they no longer need to be institutionalized.

In January, a scathing report by the U.S. Department of Justice asserted that patients deemed ready to leave the hospital often languish in crowded wards, breeding anger and despair among patients eager to re-enter society.

"The detrimental effect on individual patients of this prolonged waiting and frequent rejection is documented repeatedly in their clinical records," stated the report. "Patients' despair, anger and agitation about having been turned down by community providers become a part of their illness."

A governor-appointed task force has been examining the legalities and controversies surrounding the siting of community facilities for former forensic patients. The panel is charged with making recommendations to the governor and the 2009 Legislature.

Although anti-group-home sentiment has flared in some cities, state statistics show that few forensic patients commit new crimes after being conditionally released from the state hospital.

Statewide, about 380 former forensic patients are living in Oregon communities while on conditional release. They are subject to strict monitoring by the state Psychiatric Security Review Board and live in varied types of housing, ranging from apartments to adult foster homes and secure residential treatment facilities.

From 1997 to 2007, 2.2 percent of conditionally released patients have been arrested for new felony crimes. In comparison, nearly 30 percent of released Oregon prison inmates commit new crimes that land them back behind bars within three years.

Call for education

In Salem, public concerns about hospital security and safety were heightened this summer when a forensic patient made a headline-grabbing escape.

On July 11, Salem police arrested escapee Michael Sands, 27, after he overpowered a staff member and bolted from a locked psychiatric ward. He allegedly carjacked a vehicle in West Salem, rammed a police car, assaulted an officer and had to be subdued with Taser shocks.

Even before Sands escaped, Salem Mayor Janet Taylor had raised concerns about having a large mental institution in the city's core.

Taylor previously tried but failed to persuade state leaders to move the hospital replacement project to the city's fringe. She relented when state officials refused to budge on their decision to build the new 620-bed complex on the existing campus.

Taylor, in responding to Fourie's recent letter of complaint about the planned transitional cottages, said she sympathized with his distress but felt powerless to alter state plans.

"I have been speaking out publicly on this issue since January of this year," she wrote back to Fourie. "I really felt that the new hospital should be built in a different location that was not in the middle of a residential area. I have been continually dismissed by the State of Oregon leadership.

"Needless to say, I understand and sympathize with your situation."

In a subsequent e-mail to the Statesman Journal, Taylor said that she had asked Salem City Councilor Bruce Rogers "to head up this effort on group homes around the State Hospital as I am very deep in economic development efforts and don't want to lose focus on this important area."

Rogers, who served on a panel that reviewed hospital security in the wake of Sands' escape, said he understands the hospital's rationale for creating the transitional units. At the same time, he said, hospital officials and mental-health administrators need to do a much better job of informing the public about plans to expand the statewide network of community-based facilities for patients coming out of the state hospital.

"I support the state hospital," Rogers said. "Do I support community-based mental health? I don't have a good answer for that. I don't understand that whole program. Some days, I think it's like new math. I don't know if it's working or not.

"The state of Oregon has to do a better job of educating communities, all communities, not just Salem, about what community-based mental health is. They just have to do it." or (503) 399-6709

IL - Tickling kids gets lawyer banned from park by judge

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A judge on Friday banned a local attorney from a Glen Carbon park after police charged the man with asking people whether he could tickle their children.

Glen Carbon Police charged Charles R. Douglas, who has a law practice in Glen Carbon, with four misdemeanor counts of disorderly conduct. He is accused of talking to people at Miner Park about wanting to tickle children.

Douglas, 58, told a reporter that for years he has done a "tickle monster" routine with children and that it's "a joking thing that I do." He said he enjoys seeing children laugh and smile, and never touches a child without permission from a parent.

Douglas said the charges are "the most ridiculous thing I've ever seen." He said he's considering lawsuits against the police and against the people who made reports to police.

After the charges were filed, Madison County Associate Judge Steve Stobbs ordered that Douglas not enter Miner Park. Douglas said he goes to the park to walk, for exercise.

Douglas said he was booked Friday and released with a notice to appear in court later.

Contact reporter Brian Brueggemann at or 692-9481.

MI - No indecency charges filed for 6-year-old

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What about spanking the child on the butt and punishing them like in the old days?  No parent wants to do anything to their child or spank them anymore, because this hysteria could land them in prison for a long time.  And there is something wrong with that, big time, IMO.


A Livingston County juvenile court attorney-referee declined to authorize gross indecency charges against a 6-year-old boy, whom prosecutors say exhibited "very sexualized behavior" toward a classmate.

The prosecutor's office has 21 days to decide if it will appeal attorney-referee Stacy Combs' decision, which came last week.

"We're taking a look at it; we haven't made a decision yet," Prosecutor David Morse said.

Howell attorney Carolyn Henry, who represents the boy and his family, declined to comment.

According to a police report, a Hartland Consolidated Schools employee reported to police June 18 that a 5-year-old girl was "sexually assaulted" by the 6-year-old boy while attending school.

The girl told authorities that the older boy does "disgusting stuff," including saying things and putting scissors down the front of his pants or on his clothing.

The girl said the boy also rubbed himself in class and exposed himself by opening the door to the bathroom and telling everyone to look at him. She also claimed the boy lifted her shirt while they were on the playground and touched her chest, behind and privates.

"This, to me, is very sexualized behavior," Assistant Prosecutor Marilyn Bradford said.

As a result of the girl's claims, the prosecutor's office sought a petition in Livingston County Circuit Court's juvenile division against the boy for two counts of gross indecency.

Morse said the decision was made for two reasons.

"Our purpose was to bring services into the family to make sure that if there were any problems, it could be dealt with, and to ensure that anyone else around him would be safe," he said, noting that, typically, cases like this do not result in criminal conviction.

As an example, Morse cited the two Howell school boys charged in juvenile court with sexually assaulting a boy on a bus. Their case resolutions were crafted to get the boys services while giving them no criminal record, he said.

Frank Vandervort, a clinical assistant professor of law with the University of Michigan's Child Advocacy Law Clinic in Ann Arbor, said juvenile courts were established with the idea it would be a civil proceeding, not criminal, to provide children services they might need.

However, that argument no longer holds true because the treatment, or punishment, is more severe, Vandervort said. As an example, he said, children who have age-appropriate sexual behavior problems — such as touching kids inappropriately — are being labeled sex offenders and are required to register on the sex offender registry.

In some cases, that stigmatization can become a self-fulfilling prophecy, Vandervort said, leading nonpredatory children to truly become sex offenders.

"Kids play doctor all the time — show me yours, I'll show you mine; that's natural," he said. "It becomes unnatural and learned when children are aggressive" with sexual behavior problems.

Experts say children under age 7 cannot form criminal intent, but Michigan law does not make a distinction between adult standards and child standards for judging criminal responsibility.

"Under Michigan law, theoretically, a child 5 or 6 can be charged and convicted of any crime," Vandervort, said. "There's nothing in the law that prohibits it. ...

"The Legislature really ought to look at that and establish a lower limit for criminal responsibility," he said. "There's no reason to believe a child who is 7 years old has the ability to form criminal intent."

Historically, the law has generally considered that children age 6 or younger could not have criminal responsibility while children age 14 and older are assumed to know right from wrong, Vandervort said. Criminal intent among children ages 7-13 was determined based on the child's background, understanding and maturity, he said.

However, today's society is in a period of "hysteria" in reference to sexual offenders, and, as a result, children who are too young to understand the criminal charge are "hauled into court" on sex-related offenses, Vandervort said.

The treatment the child receives should not result in a criminal record and sex offender treatment, but age-appropriate cognitive behavioral treatment that teaches really young children how their behavior is socially unacceptable, Vandervort said.

Contact Daily Press & Argus reporter Lisa Roose-Church at (517) 552-2846 or at

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ME - John Doe cases are challenge to registry Sex offenders from years past file lawsuit to prevent public disclosure of their names

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And they say these laws are not punishment!  Why don't you try living with the same laws for a while, then tell me that?


For the past 24 years, John Doe, who lives in Augusta, says he has led a blameless life as far the Maine judicial system is concerned.

But his 1984 conviction for gross sexual assault triggered a letter from the state in June warning him he had five days to register as a convicted sex offender.

Instead, he consulted an lawyer, who filed a lawsuit in Kennebec County seeking to keep Doe's real name off the public registry and, consequently, off the Internet.

Doe is not alone in fighting what they sex offenders say is an unfair additional punishment for sentences served long ago.

In separate cases, 25 sex offenders from across the state, all filing under the pseudonym John Doe, also are challenging the state's Sex Offender Registration Notification Act, seeking the ability to retain their relative anonymity. The files were made available for public view this week.

Their cases have been consolidated in Kennebec County Superior Court, assigned to Justice Michaela Murphy. The John Doe cases are in the discovery phase with the plaintiffs scheduled to give documents to the court and to the state.

Convicted of sex offenses between Jan. 1, 1982, and 1992, they maintain that registration under the state's sex offender law violates their constitutional rights and puts an additional criminal penalty on crimes committed up to 26 years ago.

In 2005, the state law was expanded to encompass those convicted of sex offenses since 1982. Prior to that, it reached back to 1992.

Most of the John Does say they've lived lives free of sex offense convictions for the past 16 to 26 years, and ask why they're now viewed as threats to society.

"Almost 26 years after being convicted of a sex offense, (John Doe II) receives correspondence from the Maine State Police, State Bureau of Identification, saying he's classified as a lifetime registrant," attorney Darrick Banda said in court documents.

Sex offenders who have registered say the notoriety -- fostered by public access to their records through the Internet and occasionally by posting their photos and offenses in municipal buildings -- has cost them jobs, work, housing and opened them to public scorn and shunning.

In two cases, it's cost them more. In April 2006, two sex offenders on the state's registry were murdered by a Canadian man who targeted sex offenders. Police said he had used a computer to search for sex offenders in Maine and other states.

The first John Doe lawsuit challenging the registration was filed in Kennebec County in 2006, and made its way to the Maine Supreme Court. The lawsuit was sent back to the superior court for more fact-finding. Since then, at least 23 more challenges were filed.

Eleven of the men are already listed on the registry, 12 are unregistered, and the status of the remaining men is unclear in court documents.

Personal information identifying the men has been removed from the court file, which contains thousands of pages.

In her most recent ruling, Murphy allowed one defendant -- John Doe XXIV, of Androscoggin County, convicted in 1990 of unlawful sexual contact with a 13-year-old -- to refrain temporarily from registering as a sex offender.

In rulings over the past few months, the judge has allowed a handful of others to remain unregistered until the issue is resolved.

"Neighbors will try to get me to leave the neighborhood. I feel violence against my person if my name is paced on the sex offender registry," one man wrote in a July 28 affidavit accompanying the complaint.

He also said the registration could affect his family's plans to adopt a baby.

"Probate Court (which handles adoptions) will have my full criminal record whether or not I am a registered sex offender, but we fear that my appearance on the registry will cause us to lose the opportunity to adopt," he said.

James Mitchell, who represents 14 of the John Does, wrote to the judge in August saying that while the consolidated case is being conducted under pseudonyms, eight of his clients have their names posted on the Internet through the registry.

"Those who disobeyed the law and refused to register are now, ironically, entirely anonymous, while those who complied with a law that is almost certainly unconstitutional are proceeding anonymously in court while suffering daily the indignities this case is designed to avoid," he said.

The Does' attorneys say the consequences of registering are numerous.

One John Doe "is a productive member of society who worked almost continuously from 1985 until he went on the registry," his attorney, James Mitchell wrote in court documents.

After registering, the man lost his job and has been unable to find full-time unemployment, according to Mitchell.

"He has suffered indignities such as being shouted at and called a pervert when he greeted a former friend while shopping with his wife in a Hannaford store. At a gas station, someone drove by and spit on his window, shouting an epithet as he drove off. An unknown woman in a Kmart store pulled her child out of the aisle, exclaiming to the child not to go near people like 'him.'"

Another plaintiff, who lives in Androscoggin County, says that, in addition to having his information posted on the state registry and the Internet, local police put his identification in the newspaper twice a year and come to his home once a month to check on him.

"Within 30 days of the first publication, his construction business diminished significantly, his income was cut in half and he is unable to take his children to school, movies or the park," Mitchell said.

The state, through Deputy Attorney General Paul Stern, maintains all the convicted sex offenders should follow the law and register.

"The primary dispute here appears to be whether public information regarding almost 3,000 sex offenders in the state can be made more accessible to the public via the Internet, or whether these offenders shall remain anonymous except to those able to expend additional time and resources to obtain information by other available means," he wrote to the court.

"If the Maine courts decide to enjoin the operation of the Registry or the Internet posting of registrants, then Maine will stand alone in the entire country, making Maine the refuge for countless sex offenders who wish to conceal their criminal pasts from neighbors, landlords, employers, and potential future victims."

He said "the linchpin of this case is the retroactive application of the provision of (the law) that requires the state Bureau of Identification to maintain a publicly accessible Internet site" with information about convicted and registered sex offenders.

Stern's filing's noted vast public interest in the site, which he said has chalked up some 13 million views of offenders.

The Maine Supreme Court, meanwhile, is looking at an appeal of a June decision by a district court judge who found that the Sex Offender Registration and Notification Act of 1999 is unconstitutional.

In a criminal case in Lewiston District Court, Judge Valerie Stanfill ruled in favor of Eric Letalien and dismissed a complaint brought by the state against him for failing to register under that statute.

Letalien, 33, was convicted of gross sexual assault in 1996.

In her ruling, Stanfill said the law "violates the ex post facto clauses of the Constitutions of the United States and of the State of Maine."

She ruled that the effect of the law was punitive rather than civil.

Mitchell said a ruling in the appeal could affect the John Doe cases.

"If the law court says she is wrong, that doesn't necessarily mean that the whole statute is wrong," he said. "If the law court says she is right, it doesn't mean that the whole statute is unconstitutional."

Betty Adams -- 621-5631 -