Thursday, May 20, 2010

CA - Convicted Rapist Cut GPS Anklet, Tried to Kidnap Girl

Original Article

Like I've said a gazillion times, if a person is intent on committing a crime, no amount of laws or monitoring will prevent it, and, being homeless or forced into homelessness, adds to the hopelessness. And he almost succeeded.

05/20/2010

By JESSICA GREENE

Grateful girl: "I might have ended up in a lake somewhere dead, cut in pieces."

A convicted sex offender from Napa County is back in police custody after cutting off his GPS tracking device and allegedly trying to kidnap a young girl in Southern California.

_____, 32, is a homeless man and registered sex offender who served time for rape. Police say he grabbed 13-year-old _____ on Tuesday as she was walking home from school in Southern California.

Police arrested _____ Wednesday night after a short car chase near San Diego. He had made his way to the San Diego area where he stole a purse from one woman and then used a knife to try and kidnap the teenage girl, cops said.

Thee girl fought back and says she cut her hand as she tried to pull the knife away from _____.

"I might have ended up in a lake somewhere dead, cut in pieces." _____ said. "I don't know. I'm just grateful I did what I did."

_____ faces robbery charges and attempted kidnapping charges and is also a wanted parole offender.
- What is a parole offender?


OH - A peak inside Bodyke?

Original Article

05/20/2010

I mentioned a couple of weeks ago that the Ohio Supreme Court still hasn’t come down with its decision in State v. Bodyke, the case challenging the constitutionality of the Adam Walsh Act, despite having held oral argument on the case back in November. Oral argument in another case last week, State v. Richey, brought some of those issues back up again, and perhaps gave a glimpse of the various justices’ thinking.

Richey pled no contest to sexual imposition, a third degree misdemeanor, back in 2006. Two years later, Richey found himself reclassified as a Tier I sex offender under the AWA, and asked that his plea be vacated.

Most of the attacks on AWA has centered on the due process and ex post facto problems in changing the rules after the game’s been played: people who’d not been subject to any registration requirements, or had completed them, now found themselves subject to new requirements. There’s another argument, though, based on the provision in the US Constitution which prohibits a state from enacting legislation which “impairs the obligations of a contract ”: A plea bargain is a contract between the parties, and additional terms can’t be imposed after the contract is entered into. Richey went a little further and argued that he could not have made a “knowing, intelligent, and voluntary” guilty plea if the legislature could subsequently amend the law to impose new and more dire consequences upon that plea.

There may be some basis for that argument; I know of one case where a pre-AWA plea was entered into with the express stipulation that the defendant would not be classified as a sex offender. Unfortunately, Richey’s case doesn’t present nearly as solid a basis for that claim: he was classified as a sex offender under the pre-AWA law. Justice O’Connor bailed out Richey’s lawyer in oral argument by suggesting that his best argument was not that AWA lengthened Richey’s reporting requirements, but that it dramatically increased the penalty for failing to registration: under the old law, such failure was the same degree as the underlying crime, which here was a third-degree misdemeanor. Under the AWA, failing to register is at least a fourth-degree felony.

O’Connor’s comment is interesting for another reason. Justice O’Donnell argued that the trial judge was under no obligation to advise Richey of anything regarding registration as a sex offender, since registration is regarded as “remedial,” not punitive. In fact, that argument has been the lynchpin for upholding past sex offender laws, in both the Ohio and US Supreme Courts: you don’t get into the due process and ex post facto arguments if you’re talking about a civil, not criminal, matter.

Of course, the argument that prohibiting somebody from living where they want, requiring them to show up at the sheriff’s office every now and then and putting them in prison if they don’t, and putting their pictures up on the Internet and declaring them pariahs isn’t “punitive” has become increasingly tenuous. Everybody bought the first time the Ohio Supreme Court looked at sex offender laws in State v. Cook in 1998, but by the time the Court examined the immediate precursor to AWA a decade later in State v. Ferguson, three justices — Lanzinger, Lundberg Stratton, and Pfeifer — had jumped off the “it’s only remedial” boat. Put O’Connor in that camp, and you’ve got the four votes to limit AWA to prospective application.

There’s another card in play here: the US Supreme Court’s decision two months in Padilla v. Kentucky (discussed here), where the Court held that a lawyer may have rendered ineffective assistance by telling his client that there would be no immigration consequences to a guilty plea, when in fact it resulted in deportation proceedings against the client. It’s not a perfect fit — the voluntary nature of the plea is at issue in Richey, while Padilla concerns ineffective assistance of counsel — but there’s room for arguing some overlap, as Justice Lundberg Stratton brought up. Deportation is unquestionably a civil proceeding, and although Ohio has a law which specifically requires a non-citizen to be advised there might be immigration consequences following a plea, many states do not, and in the absence of such a law those consequences are deemed “collateral,” and do not have to be part of the plea colloquy. Yet the civil nature of the proceedings and their collateral status did not deter the Padilla court from concluding that the defendant had to be properly advised of them.

What’s more, the Padilla opinion noted that the immigration consequences could be far more severe than those of the underlying conviction, an argument which applies with equal force to Richey’s situation, as noted by Justice Lanzinger: the requirement registering as a sex offender for the next fifteen years, and facing imprisonment for 6 to 18 months if he doesn’t, is much more significant than the 60 days he served in jail for the sexual imposition.

As I said, Richey’s case isn’t the best set of facts for this argument, and ordinarily I wouldn’t want to predict the outcome. But I think there’s a decent chance of the whole case being mooted. As Justice O’Connor pointed out in the first minute of oral argument, if Bodyke holds that AWA can’t be applied retroactively, that takes care of Richey’s problem. Given some of the comments in Richey, that might just happen.


OH - Ohio Supreme Court tips hand on sex offender classification law?

Original Article

05/20/2010

By Jeffrey M. Nye

Today’s ruling from the Ohio Supreme Court in State v. Clayborn, 2010-Ohio-2123 [PDF] may offer some insight into whether the Court will strike down the Adam Walsh Act, which reclassified sex offenders and in many cases extended indefinitely their reporting or registration requirements.

The issue in Clayborn was simply the amount of time in which an offender who is classified under the Adam Walsh Act has to appeal. Appellate Rule 4 states that in a criminal case, a party has 30 days after entry of judgment to appeal. But in a civil case, a party has up to 30 days after being served with notice of the entry of judgment. In other words, in a civil case if the clerk fails to serve notice of the judgment under Civ.R. 58(B), the appeal time is extended, but in a civil case it’s not. The Court held that sex offender classifications under the Adam Walsh Act can only be appealed under the more stringent criminal rule, not the more lenient civil rule.

What does this have to do with the validity of the Act itself? Good question. The Adam Walsh Act, also known as R.C. Chapter 2950, required the state to re-classify all existing sex offenders into one of three new tiers. The reporting requirements for each tier were significantly more stringent than the prior reporting requirements. For example, an offender who had been convicted of a sexual battery may have been previously classified as a sexual offender and ordered to register annually for ten years. Under the Adam Walsh Act, that person (so long as they were still within that ten-year notification period) would be classified as a Tier III offender and would have to register every 90 days for life.

Many offenders have challenged the law as unconstitutional. A variety of theories are usually trotted out, including the separation of powers doctrine, equal protection, double jeopardy, and plea-bargain-as-contract. Particularly relevant here, though, is that the petitioners usually argue that the Adam Walsh Act violates the prohibition on retroactive laws in the Ohio Constitution (Article II, Section 28) or the ex post facto clause in the U.S. Constitution (Article I, Sections 9-10).

To my knowledge, all Ohio appellate courts have rejected these arguments to date. They tend to rely on the 1998 Ohio Supreme Court case of State v. Cook (83 Ohio St.3d 404), in which the Court approved the sex offender classification law enacted in 1997, known as Megan’s Law. The Cook Court held, among other things, that the sex offender law was a “merely remedial” law, and not a “substantive” law. The Court explained that “the General Assembly’s purpose behind R.C. Chapter 2950 is to promote public safety and bolster the public’s confidence in Ohio’s criminal and mental health systems,” and further found that “[t]he statute is absolutely devoid of any language indicating an intent to punish.” As directly and bluntly as possible, the Court said that “R.C. Chapter 2950, on its face, clearly is not punitive.”

Merely remedial” and “not punitive” are other ways of saying “civil, not criminal.” In other words, the Cook Court’s approval of the classification system is based on a finding that the sex offender registration was a civil statute, not a criminal statute.

The significance of the Clayborn holding should be evident: the Court has now said, at least for purposes of protecting appellate rights, that the Adam Walsh Act must be treated as a criminal statute, not a civil statute.

Challenges to the Adam Walsh Act are pending before the Court right now. In November, for example, the Court heard argument in In re: Darian J. Smith, in which the petitioner contested the validity of the Adam Walsh Act on ex post facto and retroactivity grounds (docket available here). The decision in Clayton may indicate a tendency to strike down the Adam Walsh Act, or at least its retroactive application.


When the Feds Decide Who's Sexually Dangerous

Original Article

05/20/2010

By Wendy Kaminer

In what will likely be one of her last victories as solicitor general, Elena Kagan persuaded the Supreme Court to embrace an expansive vision of federal power that should agitate right-wing advocates of freedom and small central government, but probably won't, because U.S v Comstock, involved the power to detain people deemed "sexually dangerous" under the popular Adam Walsh Child Protection and Safety Act. (It passed the House and Senate by voice vote in 2006 and was quickly signed into law by President Bush.)

Best known for establishing a national sex offender registry (of highly questionable fairness and effectiveness) and promulgating standards for state registries, the Adam Walsh Act also provided for the indefinite "civil commitment" of federal prisoners who have completed their sentences but are considered likely to commit sex offenses if released. People who trust the federal bureaucracy and believe officials will use this power accurately, fairly, and in good faith may feel protected by it; others should worry about a government authorized to detain its citizens indefinitely, without jury trials, based on speculations about their future dangerousness.

Who qualifies as "sexually dangerous" under this statute? By what process are people indefinitely committed? Virtually any federal prisoner, including ones who have not been imprisoned for sex offenses, may be targeted for civil commitment. (Since convictions "for violent and non-violent sex offenses constitute less than 2 percent of all federal convictions," the National Association of Criminal Defense Attorneys stresses the statute provides for "potential commitment of a significant number of persons with no criminal history of sexual misconduct" and even persons with no prior convictions for any crimes, like material witnesses being detained by the attorney general.) Once targeted, people are entitled to a hearing before a federal judge (or magistrate), but their alleged future dangerousness need not be proved beyond a reasonable doubt. And, while the judge must find that the prisoner "has engaged or attempted to engage in sexually violent conduct or child molestation," that finding (as Justice Thomas noted in dissent) "can be established by ... clear and convincing evidence that the person committed a sex crime for which he was never charged." In other words, the government is empowered to imprison (or "civilly" commit) people indefinitely without bothering to try them in criminal court or in any other proceeding in which they are afforded the rights of a defendant in a criminal case, even if they have never been convicted of any sex crimes.


MN - Minnesota Court of Appeals Holds State Court Has No Civil Confinement Authority over Minnesota Chippewa Tribal Members

The Minnesota Court of Appeals decision is here

The court’s syllabus:

The state does not have jurisdiction pursuant to Public Law 280 to civilly commit an enrolled member of a federally recognized Indian tribe as a sexually dangerous person under the Minnesota Commitment and Treatment Act (Flow Chart). But in the absence of express congressional consent, the state does have jurisdiction to civilly commit an enrolled member of a federally recognized Indian tribe as a sexually dangerous person under the commitment and treatment act where, as here, federal law does not preempt state jurisdiction and exceptional circumstances exist.


OK - Paper's Error Caused Threats, Couple Says

Original Article

05/20/2010

By JOE HARRIS

OKLAHOMA CITY (CN) - A couple says they were threatened and automatic weapons were fired near their house after a newspaper incorrectly listed their address as the home of a sex offender. The couple sued the Guthrie News Reader and its corporate parent in Oklahoma County Court.

Roy Nelson and Susan Ryan say they've heard automatic gunfire and people have driven by and shouted at them after the News Reader incorrectly listed a registered sex offender as living at their home.

The plaintiffs have lived on a rural dirt road 7 miles off the main highway for more than 10 years. They say traffic in front of their house was heavier than normal in the 36 hours after the erroneous story was published.

Ryan says she spoke with the newspaper's managing editor on June 15, 2009, the day after it printed the list. She said the newspaper admitted the mistake and she requested that it print "a conspicuous correction of their mistake and that it be made in the Sunday edition."

But the newspaper ran a "non-conspicuous correction in the obituaries section" of a Wednesday edition, and refused to print the correction in the Sunday paper, the plaintiffs say. And they say the paper left the incorrect report on its Web site.

They say the false report has caused them to fear for their safety.

"Because of the extreme emotional distress, anxiety, fear and physical sickness the wrongful accusation has caused both Roy Nelson and Susan Ryan, they continue to see a doctor and counselor to help them cope with the wrongful accusations that have poisoned their reputation in the community," the complaint states.

They seek damages for negligence and libel, from the News Reader and Newspaper Holdings Inc. They are represented by Thomas Ryan.


OK - Some Oklahoma Sex Offenders Living In Hotels

Original Article

05/19/2010

By Alex Cameron

OKLAHOMA CITY -- Thousands of Oklahomans may unintentionally be putting themselves -- and their kids, especially -- at risk, as they travel across the state and across the country. It's not because they're flying in unsafe airplanes or driving on faulty tires, but because they're checking into hotels and motels without first checking the guest list.

When picking a neighborhood or apartment building to live in, many people will check the local sex offender registry to find out if there's anyone they need to avoid, but who would think to check for sex offenders in their hotel?

Even Wes Bledsoe (pictured), who makes a practice of checking for sex offenders in nursing homes, hadn't thought of it. But it was, in fact, while performing one of those routine address checks that he discovered something unusual.

"I kept seeing this one address popping up," Bledsoe said.

When he googled the address, it brought up a link to a local hotel. It was a shocking discovery, he said, and just the tip of the iceberg.

Further research revealed scores of Oklahoma sex offenders, who are required to register their address with local police and the department of corrections, clustered in dozens of budget hotels and motels across the state.
- Of course they are! The laws make it impossible for them to live at their home with family or friends, so they are forced to find the next best thing, hotels and motels.  It's not rocket science!

When we visited one of those hotels recently, the owner acknowledged that sex offenders had been staying here.

"Last month I had three or four of them," said Ike Llani, who is a hotel owner.

It is not illegal for sex offenders to stay in hotels, as long as they're located outside the areas prohibited for sex offenders, and Llani's hotel is.
- They are living their legally, but out comes Wes Bledsoe and the mob to force them to leave, but where are the pitch forks?

There's also nothing in the law preventing hotels from accepting sex offenders, or requiring them to notify guests that sex offenders are staying there. The truth is, Llani said, he wasn't even aware until recently that some of his extended stay guests were sex offenders. But now that he does know, and now that Mr. Bledsoe is drawing negative attention to the issue, he said he is moving them out.

"I have to take care of my business, I'm trying to clean up the place," Llani said. "I don't have very many now -- two of them I'm aware of and I already given them notice to leave the place."

Llani said there are other hotel operators, however, who will be happy to take their money, which Bledsoe said concerns him.
- Mr. Bledsoe, where in the hell do you expect them to live?  Maybe they should all move in next to you?

"How many parents are thinking, 'You know what -- there could be a sexual predator or a sex offender that's living under the same roof?'" Bledsoe said.
- Yeah, it could be your own husband, wife or children.

While it might come as a surprise to parents that sex offenders are living in hotels, it's no surprise to police.

"We have 50 to 60 offenders that are registered in hotels or motels," said Oklahoma City Police Cpt. Jeffrey Becker.

Becker and his sex offender registration unit understand that the state's geographic restrictions for sex offenders (cannot reside within 2,000 feet of any school, park, playground or commercial daycare) leave very few places where they can reside legally.

"We have a mapping program that tells us about 85 percent of the actual addresses in Oklahoma City are prohibited for offenders to register at," Becker said. "So we've developed a map that we give to offenders that shows the buffer zones of the prohibited area; that allows them to then go out and find an address that's not prohibited."

Still, that can be easier said than done.

"Joe" is a sex offender who said he has no choice, really, but to live in a tent on the side of the road. He lived for a couple of months in a hotel, but when he lost his landscaping job, he couldn't afford the hotel and had to look elsewhere. He said he has a sister who was willing to take him in, but, legally, it wasn't possible.

"She's close by, but she's within 2,000 feet [of] a school, and a park, so there's no way that I could be living with her," Joe said.

Mark Pursley is Joe's probation officer.

"It's frustrating for us--how do you supervise a homeless sex offender?" Pursley said.

He understands the concern about sex offenders living in hotels, but he said the geographic restrictions are making the problem worse for everyone -- making more offenders homeless, causing more of them to stop registering, stop getting treatment, and thus making them more likely to reoffend.

"If the lawmakers took an honest look at the research out there they'd immediately get rid of residential restrictions, because we know that residential restrictions lead to recidivism -- we know that, and yet we're enforcing it every day," Pursley said.
- It's to a point now, even if the residency restrictions were not in place, people would still look up on the online registry, find someone living close by, and then bust out the mob to kick them out.  The registry needs to be taken offline, the public has shown over and over again, they cannot handle the information in an adult manner, without vigilantism.

Prosecutors and police officers said they agreed that the current restrictions are too strict and are counter-productive.

But state lawmakers overwhelmingly support geographic restrictions for sex offenders and, in fact, are trying to tighten them up still more. Given that fact, and their admitted desire to be "tough on crime," they may be receptive to what Bledsoe said will be an appeal to do something about this problem he's uncovered.
- Yeah, they don't want to come out saying these laws are wrong, because it could ruin their career, so they jump on the bandwagon, exploiting the issue, to help themselves look better to the public, and to save their own rear ends.  They don't care about facts, that is obvious, they just care about themselves!

"All we're suggesting is this -- that there's awareness," Bledsoe said. "That you can make a decision about the safety of your children and your loved ones whenever you're staying in a hotel or motel."
- You are so full of it, you are doing this, so you can exact your revenge on those you hate, and to stir up the mob.

Law enforcement officials said there's certainly nothing wrong with parents being able to know if sex offenders are living in a hotel or any other place, but they said it's important for them not to lose sight of the bigger threat: more than 90 percent of sexual abuse cases of children are committed, they said, not by the stranger staying down the hall in their hotel, but by someone the child knows.