Saturday, June 6, 2009

Editorial: Fighting crime by creating it

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The government is trying to protect children from sexual predators online. It goes without saying that that’s a good thing and part of the government’s job of looking after public safety. But it is going about it in a way that creates crimes, and there ought to be a better way.

The U.S. attorney for Oregon has just reported on another such case. A former postal carrier from Pasco, Wash., has been sentenced in federal court and will serve nearly four years in prison after he reports in September.

The man, the government says, “came to the attention of law enforcement authorities after he began chatting online with a Washington County sheriff’s detective posing as a 14-year old girl. Many of the chats were overtly and graphically sexual in nature.”

It’s worth noting that while the pervert might have —probably would have — found a real victim before or after this case, the particular crime for which he was sentenced would not have occurred if the sheriff’s detective had not encouraged it.

So the guy — unworthy character that he no doubt is — will serve time for a crime that didn’t actually happen, one that could not have happened being that the victim was a figment in the criminal’s mind.

Law enforcement says there’s no other way to catch online predators. But what about working on the side of preventing children from becoming victims — not by having sheriff’s detectives engaging in dirty talk on the Internet but by keeping closer tabs on the sites where such illicit contacts can be made?

Kids have no business being on those sites, no more than the adults who would take advantage of them. Maybe the first avenue of attack ought to be to persuade or force parents to control what their children do online.

As difficult as that might be, it would be less morally ambiguous than having law enforcement trolling for potential predators by posing as prey and then participating in setting up what would be a crime if it actually took place.

WA - Former CPS director sentenced to 10 years for child molestation

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_____ leaned into the podium, his head lowered and the blue jail jumpsuit draping off his thin frame.

The 67-year-old former Child Protective Services director told the court he did not understand how he could spend 36 years of his life defending children, including his own, and now stand guilty of raping a 9-year-old girl and molesting another girl of the same age.

I’ve broken a sacred trust not only with these children, but those who love them,” he said Friday. “I broke their hearts. ... I am sorry for what I’ve done.”

_____ pleaded guilty to first-degree child rape and first-degree molestation last year for “numerous” times when he touched the two girls inappropriately, according to court records. He admitted his conduct in a plea agreement recommending an alternative sentence of one year in jail as well as sex offender therapy and supervision upon release.

Superior Court Judge Mark McCauley rejected the recommended Special Sex Offender Sentencing Alternative on Friday, saying _____ deserved prison despite pleas from the victims’ families to grant treatment.

I have really struggled with this decision,” the judge said. “There was such a trust. There are multiple victims. His conduct went on for years.”

McCauley sentenced _____ to a minimum of 10 years to life in prison with annual reviews to determine whether he can ever be released.

_____’s eyes dropped to the table. His supporters in the audience wept softly.

These crimes, from my point of view, are horrific crimes,” McCauley said, noting he had given substantial prison sentences to other offenders who never even touched a child.

The judge said the victims and their families have to live with the consequences of _____’s actions for the rest of their lives. He said he is also concerned about any chance _____ could re-offend, despite his age.

I just can’t in good conscience grant a (sentencing alternative),” McCauley said.

Court records stated _____ first acknowledged he had touched the girls inappropriately when confronted by their parents in January of 2008. He was charged with raping one girl and molesting the other.

The state Department of Social & Health Services said he worked for Child Protective Services for 36 years and retired in 2000. He supervised social workers, but rarely interacted with children.

_____ was arrested in March of 2008 and unanswered questions about other possible victims delayed his sentencing for months.

Deputy prosecutor Katie Svoboda said everyone involved should be better off with the long case finished.

It took a lot of work,” she said. “This is a hard case and a hard call (by the judge).”

Svoboda had joined the defense in recommending the alternative sentence with therapy, but said a prison sentence was “well-warranted.”

Defense attorney Brett Purtzer called a polygraph examiner and a psychotherapist to the stand Friday to testify about _____’s chances of benefiting from treatment.

If Mr. _____ is not an individual that qualifies for (the alternative sentence),” Purtzer argued, “then that person does not exist.”

The attorney presented several letters of support for _____ and one of the victim’s parents asked the court to allow for treatment instead of prison.

_____ said he had taken full responsibility and wanted the chance to understand why he had done such things. He believed the alternative sentence and treatment would give him that chance.

This (sentencing alternative) truly is a privilege,” McCauley told him. “There’s no right to go through this treatment.”

MA - Court gives sex offender another chance

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Finally someone actually listening for once.  There is also a poll at the article above, go there and take it.


BOSTON - The state Appeals Court has given new life to a convicted sex offender’s effort to be removed from the state registry.

The man, who is referred to only as John Doe in a ruling issued Friday by the Appeals Court, was convicted of attacking and trying to rape a woman in Quincy in 1984 and was sentenced to a year in jail.

He wants to be removed from the state’s sex offender registry. The man argued that he had no prior convictions before the 1984 case, and hasn’t had any since. He says he poses no risk and shouldn’t have to continuing registering as a sex offender.

The sex offender registry board denied the man’s request, saying that although he only posed a “low risk,” he committed a sexually violent crime and therefore has to register as a sex offender for the rest of his life.

The Appeals Court sent the case back to the registry, saying that the hearing examiner who considered the man’s case must elaborate on whether he poses any risk of reoffending or danger to the public.

BOSTON -- The Massachusetts Appeals Court has ruled the state must weigh the entirety of a sex offender's life, including what role alcohol might have played in the original crime, when determining if he must register as an offender for life.

The case involves a man convicted of assault with intent to rape in 1984 after leaving a Quincy bar. Since then the man, not identified in court papers, has given up drinking and stayed out of trouble.

The Sex Offender Registry Board argued the man should be required continue to register with police as a level one sex offender, but the man argued he no longer poses a risk.

The court ordered the board to reconsider its decision, taking into account the man's life since his arrest, before determining that he is still a risk.

If the board again concludes the man presents an ongoing risk to commit another sex offense, it must show what facts support that conclusion, the court said.

The mere fact of the original offense is not enough to require the man to continue to register more than two decades later, according to court.

The court said the board should consider a number of factors before making its decision, including the man's past troubles with alcohol and his efforts to turn his life around, before determining if he presents an ongoing risk, the court said.

"These include, for example, the role alcohol may have played in the offense (and Doe's subsequent abstinence); the fact that Doe has no previous or subsequent history of sex offenses; his medical, vocational, and living situation; and any other factors that would bear on the predictive value of Doe's twenty-five year old crime," the court ruled.

Ultimately, the sex offender board must show that the man presents a "cognizable risk of re-offense," not merely a "hypothetical or speculative potential risk," the court said.

If the board determines the man has a low risk of re-offense, and therefore should be required to register, it must define what "low" means and show some evidence to back up that finding.

"The term 'low' must be given a reasonable interpretation; it should not be taken to mean 'anything more than no,"' the court said.

The decision further chips away at the state's 1999 sex offender law, which requires anyone convicted of a sex crime to register with police for the rest of their lives.

The Supreme Judicial Court last year ruled that low-level sex offenders convicted before the law was enacted have the right to a hearing to show they are no longer dangerous. That ruling came in the case of a man convicted of rape in 1979. He served two years of probation and committed no other crimes. In 2003 he was told he must register as a level one sex offender every year for the rest of his life.

The court found applying the law retroactively to a man whose crime occurred two decades earlier violated his constitutional rights.

The lawyer for the man in the most recent case, Elizabeth Caddick, says the Appeals Court decision goes a step further by giving Sex Offender Registry Board hearing officers discretion when deciding if someone must continue registering.

"The court is saying now that hearing officers can ignore the law and follow the state constitution," Caddick said.

The crime occurred July 2, 1984 after the man left the bar and began following a woman he did not know.

After she turned down his offer to walk her home, the man pushed her into some bushes, tried to kiss her as she struggled, slapped her several times, pinned her down and reached under her shirt and tore her bra. The woman was able to free herself and passers-by alerted police.

The man pleaded guilty to assault with intent to rape and indecent assault and battery and was sentenced to a year in jail.

After the assault, according to court papers, the man attended a detoxification program and has not had a drink for more than two decades. The man has worked as a pressman for a Massachusetts newspaper since 1983 and has maintained good relationships with his children.

WA - If you show butt clevage, you might be a sex offender, soon.

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Yakima cracking down on thong underwear

YAKIMA — The Yakima City Council is cracking down on what an ordinance delicately refers to as "cleavage of the buttocks."

Responding to a proliferation of coffee stands with baristas wearing see-through clothing, thongs and other scanty apparel, the council this week approved minor changes to the city's indecent exposure law.

The Yakima Herald-Republic reports that Mayor Dave Edler had wanted the changes under the city's adult business ordinance. But city legal staff warned that trying to place coffee stands under that law could lead to legal challenges.

The change approved by the council means that anyone in public wearing see-through apparel, a thong or a G-string — regardless of whether they are working at a coffee stand — could be prosecuted for a misdemeanor violation.

NY - Ruling allowing Taser use to get DNA may be nation’s first

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Police 'arrest innocent youths for their DNA', officer claims


By Thomas J. Prohaska

LOCKPORTIt is legally permissible for police to zap a suspect with a Taser to obtain a DNA sample, as long as it’s not done “maliciously, or to an excessive extent, or with resulting injury,” a county judge has ruled in the first case of its kind in New York State, and possibly the nation.

Niagara County Judge Sara Sheldon Sperrazza decided that the DNA sample obtained Sept. 29 from Ryan S. Smith of Niagara Falls — which ties him to a shooting and a gas station robbery— is legally valid and can be used at his trial.

Smith was handcuffed and sitting on the floor of Niagara Falls Police Headquarters when he was zapped with the 50,000- volt electronic stun gun after he insisted he would not give a DNA sample.

He already had given a sample, a swab of the inside of his cheek, without protest the previous month. But police sent it to the wrong lab, where it was opened and spoiled. Prosecutors who had obtained a court order for the first sample went back to Sperrazza, who signed another order without consulting the defense.

Defense lawyer Patrick M. Balkin denounced the ruling in an interview with The Buffalo News.

They have now given the Niagara Falls police discretion to Taser anybody anytime they think it’s reasonable,” he asserted. “Her decision says you can enforce a court order by force. If you extrapolate that, we no longer have to have child support hearings; you can just Taser the parent.”

A police officer said that when Smith was ordered by officers to give his DNA, he adamantly refused.

I ain’t giving up my DNA again. I already gave it up once. I’ll sit in jail. I ain’t giving it up. You’re going to have to Tase me,” the officer’s report stated.

The officer wrote that he then applied the stun gun to Smith’s left shoulder, a “drive stun” that is regarded as less painful than shooting electric prongs into a person, which is the usual Taser approach. Smith then consented to the sample, and he was arrested on a contempt of court charge.

In her ruling, Sperrazza cited numerous legal precedents and the state’s Criminal Procedure Law, allowing the use of reasonable force to carry out a court order.

Although there are no New York cases specifically dealing with using a Taser to accomplish that, the judge did find a Wyoming case where a court ruled it was legal to use a Taser to force a suspect to open his hand for a search.

Balkin and other lawyers familiar with the case say they know of no other case in the country in which a Taser was used to gather DNA.

The decision Wednesday in Niagara County stunned Balkin, who admitted in court that he hadn’t been carrying out trial preparation, such as seeking an expert to review the DNA test results.

It’s my fault,” Balkin told Sperrazza. “I truly thought it was going to be suppressed.”

Balkin thought a victory on the Taser issue would lead to the dismissal of the 24-count indictment against Smith, 21, of Grove Avenue.

Sperrazza granted a postponement of Smith’s trial to Aug. 10.

Smith is charged with shooting a man in the groin July 27, 2006, after allegedly invading his ex-girlfriend’s home, tying up her two children and forcing the woman to take him to the shooting victim’s home.

He is also accused of taking part in the Dec. 24, 2006, armed robbery of a Sunoco station in Niagara Falls. A codefendant in the robbery, Christopher T. Walker Jr., now 21, pleaded guilty and is serving a 10-year state prison sentence.

DNA was found on a can of pop taken from Smith’s ex-girlfriend’s refrigerator and on a glove dropped at the gas station. It matched a sample he had to give after a previous assault conviction, and prosecutors sought another sample from Smith to confirm the findings.

Our case is mostly DNA,” Deputy District Attorney Doreen M. Hoffmann said.

She also said she didn’t agree with Balkin that suppressing the DNA sample would have led to the dismissal of the indictment.

There is a surveillance video of the gas station robbery, Hoffmann revealed in court.

Balkin said he also was most concerned about Sperrazza’s reasoning that she didn’t have to go through a courtroom procedure for the second DNA sample because Smith had not objected to the first one.

The court waived my client’s due process,” the defense lawyer said.

Testimony at a hearing last month partially contradicted the incident report written by Officer George McDonell, who used the Taser on Smith.

Sperrazza wrote in her ruling, based on police testimony, that when Smith refused to give another sample, Detective Lt. William Thomson phoned Hoffmann about it, and Hoffmann “instructed him that they could use the minimum force necessary to obtain the sample.”

But McDonell wrote in his report, “It was relayed that officers could use any means necessary to secure the sample.”

Sperrazza said the police should have arrested Smith first and brought him to court to be warned about the penalties for noncompliance with a court order.

McDonell testified that he used the Taser for 1z to two seconds. Another officer testified that the data readout on the Taser showed it was on for as long as four seconds.

Court papers filed by Smith’s civil attorney, Christopher O’Brien, assert that Smith was zapped three times and lost consciousness. McDonell’s report says, “Suspect complained of no injury and none was observed.”