California Criminal Defense Lawyer Blog

Today on Around the Square we take a look at some of hysteria-driven responses that are manifesting themselves in laws that go way beyond what we've seen before. We also found an amusing story involving a cop who believes that honesty is the only policy, and an interesting case from the Pacific northwest that tackles the issue of prosecutorial discretion.

This entry on Crime Scene Blog shows just how far some people would go with respect to the laws on sex crimes. Once again, we completely agree that sex offenders should be punished for their crimes, but the extreme sentences suggested in this petition borderlines on panicky hysteria fueled by "if it bleeds, it leads" headlines and news reports. According to this petition, a 19-year old who has sex with a minor deserves life imprisonment or capital punishment! (Crime Scene Blog, June 12, 2008)

In order to provide equal justice under the law, and to have punishment that is appropriate for the crime, we petition for a minimum of life in prison with no possibility of parole, and, or, Capital punishment for a first time offender. Included in “Jessica’s Law” is a provision that would require all released pedophiles, child abusers, past and present, to wear a GPS monitoring device to ensure that law enforcement can be informed of their whereabouts.

The Daily Kos informs us about a bill currently in Congress that would substantially expand the reach of CODIS, the federal database that catalogs the DNA profiles of criminals at the federal and state levels. One amendment to the bill would require all felons to provide DNA regardless of the crime committed, and another amendment would give states cash incentives to take DNA samples from all arrestees of violent and sex crimes, even at the misdemeanor level. (Daily Kos, June 12, 2008)

Schiff’s amendment would give states cash incentives to begin collecting DNA from anyone arrested for a violent or sex crime, including misdemeanor sex offenses. As the ACLU has argued time and again, innocent people do not belong in a criminal database. Currently, most states do not take DNA from people who have yet to be convicted of a crime, unless that DNA sample is required for an investigation, in which case you can easily get a warrant or court order to obtain it. Including arrestees would dramatically expand the state and federal DNA databases to include vast numbers of innocent people, and would necessarily exacerbate racial disparities that already exist in these databases.

Sex Offender Issues blog linked to a DOJ policy paper from last year that details some of the myriad problems that sex offenders face when attempting to re-enter society. The statistic that 10-20k offenders are released annually as municipalities are making it increasingly difficult for them to live and work there is a compelling one. We also found it interesting that sex offenders are significantly less likely to offend than other released criminals in the first three years out of prison. This flies in the face of the current mood surrounding this issue - see this article for an example of the misinformation floating around. (Center for Sex Offender Management, February 2007)

Facilitating successful reentry is always a challenging endeavor, but with sex offenders specifically, several unique dynamics and barriers make the transition even more difficult. For example, myths about sex offenders and victims, inflated recidivism rates, claims that sex offender treatment is ineffective, and highly publicized cases involving predatory offenders fuel negative public sentiment and exacerbate concerns by policymakers and the public alike about the return of sex offenders to local communities. Furthermore, the proliferation of legislation that specifically targets the sex offender population – including longer minimum mandatory sentences for certain sex crimes, expanded registration and community notification policies, and the creation of “sex offender free” zones that restrict residency, employment, or travel within prescribed areas in many communities – can inadvertently but significantly hamper reintegration efforts.

The next story is a bizarre case of where a campus police officer attempted to get a job with his local force, and felt compelled to be completely honest while taking the polygraph test. He was asked if he had ever had sexual contact with underage girls and whether he possessed child pornography, and amazingly, he answered yes to both. He must have really wanted the job! (Police Link, June 13, 2008)

U.S. Attorney Catherine Hanaway outlined the details Thursday, a day after Cook pleaded guilty in federal court in St. Louis of one count of possession of child pornography. Such a conviction typically results in a prison term of four or five years. She said Cook's candor during the polygraph was stunning. "By all accounts he pretty much just gave it up," Hanaway said. "It does not often happen that people just give it all up in the first conversation." Phelps County Prosecuting Attorney Courtney George speculated that Cook answered honestly to avoid failing the test, administered by a Rolla officer.

This is an interesting case from Washington state where the issue of whether a legislature through its lawmaking powers can prescribe what crime someone is charged with has arisen. A woman charged with several sex crimes is attacking the constitutionality of a law requiring one of her charges to be classified as 'predatory,' which carries a significantly harsher sentence. She is arguing that this mandate represents an unconstitutional usurpation of prosecutorial discretion. It will be interesting to see how this plays out. (Tacoma News-Tribune, June 15, 2008)

MacDonald argued, among other things, that lawmakers overstepped their authority by mandating that prosecutors must add the predatory allegation against all teachers charged with first-degree child molestation against a student. Case law establishes that prosecutors have broad discretion to decide which crimes should be filed in which cases, MacDonald argued in her pleadings. “While the Legislature has the power to create new crimes such as first-degree child molestation committed by a teacher against a student, the prosecutor, not the Legislature, has the discretion to determine when a defendant should be charged with such a crime,” she wrote.

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Today in Around the Square we take a look at an article from Kentucky that gives some important information about the sexual abuse cycle that offenders face without treatment. We also consider several articles about the growing trend for local municipalities to restrict where sex offenders can go. It's getting to the point where, in some places, they can't go much of anywhere. And some are starting to fight back.

First, we consider an article about sex offenders located in Kentucky. The interesting part of the piece is where the author discusses the sexual abuse cycle. We wish there were more articles like this so that people would see that sex offenders often suffer from a treatable disease. The typical kneejerk response of "predator!" is missing here, and that's refreshing from a mainstream media article. (The Morehead News, June 10, 2008)

The sexual abuse cycle involves secrecy, denial and isolation and unfolds in the following way:

(1) Emotional pain
Low self-esteem
Focus on self
Low empathy

(2) Unhealthy fantasies
Masturbation
Pornography

(3) Dissatisfaction

(4) Thinking about acting out fantasies

(5) Distorted thinking
Excuses to offend
Alcohol and drug abuse

(6) Seemingly unimportant decisions
Plotting and planning the offense

(7) High risk situation

(8) Selecting and grooming the victim

(9) Offending

(10) Temporary Relief

(11) False Promises/The cover up

(12) Stop for a while

(13) Emotional pain returns

Another article from Easton, PA, discusses a proposed ordinance in that town that would limit the areas where a sex offender may live. Critics of such broad residency restrictions are pointing out that by forcing sex offenders further into rural areas, an unintended consequence that arises is that the offender is less likely to get the assistance he needs in the form of law enforcement and treatment resources that may actually contribute to recidivism. (The Express-Times, June 11, 2008)

Moyer, who is also a member of the National Alliance to End Sexual Violence, said she can empathize with a community looking to do whatever it can to protect its children. Probation officials certainly wouldn't want a recently paroled sex offender living next door to a day care, she said. But as residency restrictions become more prevalent, offenders will find themselves living in more rural areas with less law enforcement, fewer treatment resources and the isolation that increases the chances of recidivism, Moyer said. "You want to make their lives as manageable and accountable as possible," she said. Several victim advocates, including Moyer, recount stories of paroled sex offenders in Florida, which has a statewide residency prohibition, moving to a bridge underpass because of limited housing options. "What you most don't want to do is to have a recently released sex offender associating with other offenders," Moyer said. "It just seems to fly in the face of what we know about sex offenders."

Here's yet another example of the further isolation that convicted sex offenders are facing from our nation's lawmakers. They're extending their overbroad reach even into nursing home facilities. (KOCO.com, June 10, 2008)

Gov. Brad Henry signed first-in-the-nation legislation Tuesday that takes registered sex offenders requiring long-term care out of standard nursing homes to prevent assaults, rapes and murders by offenders who live in the same facilities as their victims. Flanked by more than a dozen supporters of the bill, Henry ceremoniously signed it into law after praising the efforts of elder rights advocate Wes Bledsoe to protect elderly nursing home residents from high-risk sex offenders convicted of such crimes as rape, crimes against nature and a variety of other offenses.

Some offenders have had enough. A John Doe in Westbrook, Maine, has decided to challenge the constitutionality of a town ordinance making it illegal for a sex offender to be within 2500 feet of any place where children may gather. (American Journal, June 12, 2008)

The crux of the argument against this regulation is whether it is “constitutionally permissible” to enforce a new law on sex offenders who committed their crimes before the law existed. “The question is, how do you apply these things retroactively?” Dale said. “They're saying you can't do it.” According to Dale, similar suits have been pursued over the past few years, and not just in Maine. “This is a phenomenon across the country,” he said.

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Today on Around the Square we take a look at just how difficult it can be for registered sex offenders to find housing, any housing, and how they sometimes have to deal with problems even for doing something legal like putting up cameras on their property. We also take a look at a story that questions the efficacy of all the public money put into tracking sex offenders - is the public really getting the bang for its buck? Finally we also examine what happens to the students at a high school where a popular athlete is accused of a sex crime. Enjoy.

A no-loitering ordinance seems like an easy proposition for many registered sex offenders who often struggle simply to find adequate housing. This story from Fargo, ND, exhibits just how difficult it can be for offenders to find a place to live. We might give up too after being denied 38 times. (WCCO - June 1, 2008)

North Dakota and Minnesota have programs to provide transitional housing for sex offenders after their release from prison. In Fargo, Ellric Giroux and Andy Perhus are living in a Fargo apartment after being turned down a combined 38 times when they tried to find place to live. Barb Breiland, the program manager for the North Dakota Sex Offender Specialist Unit, said the state leases the apartment as transitional housing. For $7 a day, including utilities, "it beats living on the street," said Giroux, who was homeless for a year in Minneapolis.

Keeping the theme, the St. Petersburg (FL) Times asks the same question, Where is a Sex Offender to Live? (St. Petersburg Times, May 15, 2008)

Nobody wants them. No matter the city, no matter the street, nobody wants a sex offender in the neighborhood. But the fact is, 9 of 10 people in Pinellas, Hillsborough and Pasco counties live within a half-mile of a sex offender. With more than 2,600 offenders in the three counties, they live virtually everywhere.

Joe Coffie, an admitted Level 2 sex offender in New York, has caused all kinds of hysteria over his legal decision to put security cameras on the outside of his house. (WWNY, May 30, 2008)

Coffie says that he installed the cameras for safety and security only and not to spy on his neighbors. He also claimed that there was drug activity on the street and he was within his legal rights to place the cameras on his home. The Watertown Police say that he is within his rights and that their hands are tied. However, there are families with children that live on Bronson Street and concerned residents want to know what Coffie is videotaping and if their children are at risk. Michael Cooke, a concerned parent and resident, says something has to be done. “If something doesn’t get done…something is going to happen to one of these kids. I’m might be my kids, it could be the ones across the street,” she said.

We so often hear of all these various tracking mechanisms and databases that the public wants law enforcement to use to keep tabs on registered sex offenders, but we rarely think about the real costs of such tools. This report from Wichita, Kansas, shows that there are significant and real costs associated with these often-overbroad measures that may not result in more effective policing. (Kansas.com, June 3, 2008)

It will cost Sedgwick County about $415,000 a year to make sure criminal offenders live where they say they live, money the county manager says could be better spent to put more deputies on patrol. On Wednesday, county commissioners will consider authorizing a new "offender registration unit" to comply with state and federal laws that require the sheriff's office to keep tabs on people convicted of a wide range of sex, drug and violent offenses. County Manager William Buchanan said the county will do what it must to comply, but he's not convinced the effort will do much more than make people feel safer. "If you're going to spend these kinds of dollars, I guess I'd rather see (law enforcement) people on the streets targeting these types of crimes," he said.

Finally for today, this story also out of St. Petersburg, Florida, exhibits how the cattiness and rumormongering in the high school environment can get completely out of whack when a sexual assault by a popular football player is involved. (St. Petersburg Times, June 1, 2008)

Last month, a 15-year-old girl at Dixie Hollins High accused an 18-year-old football player of sexually assaulting her on a school bus while two others stood lookout. Rumors flew through the halls of the school. Students spread the name of the girl, despite laws prohibiting authorities from releasing her identity. They circulated a petition saying she was promiscuous and a willing participant. Some even blamed her for ruining the lives of the football players, who are well known and liked by their peers.

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An AP report Friday showed that ten states have taken action in the past few months to crack down on sexually abusive teachers in our nation's schools. This comes on the heels of a previous AP study that found 2570 educators had lost their teaching credentials or otherwise been sanctioned from 2001-05 because of sexual allegations involving students. The report goes on to state:

While the vast majority of America's roughly 3 million public school teachers are committed professionals, a disturbing number have engaged in sexual misconduct. When faced with evidence of abuse, administrators sometimes fail to let others know about it, and legal loopholes let some offenders stay in the classroom. Experts who track sexual abuse say the problem is even bigger than those numbers suggest. Underreporting is common, they say, because victims often are ostracized and accusations are difficult to prove. Governors, state education officials and lawmakers have led the push for new measures, which include tougher penalties for teachers who abuse students, punishment for administrators who fail to properly oversee their faculty, and an effort to train an entire state's corps of teachers to recognize potential abusers in their midst.

These measures include Maine legislation that will require school districts to share information on a teacher disciplined for any reason, including sexual abuse, as well as a Utah law that will permanently revoke the license from any educator guilty of sexual abuse. Several other loopholes have also been closed off or severely curtailed in various states:

1. Backroom deals. Florida's new ethics law for teachers bars school districts from entering into confidential agreements with teachers who get in trouble. Such deals crop up around the country, allowing schools to remove a problem teacher but letting that educator quietly move on to another district or state.

2. Failing to report. Kentucky's law raised the stakes for officials who fail to report allegations of abuse, bringing 90 days in jail for a first offense and up to five years in prison for repeat violations.

3. Problem teachers returning to the classroom. Colorado would require any teacher who lost a license for sexual misconduct to promise never to teach again. The measure awaits Gov. Bill Ritter's signature. Virginia closed a gap that made it possible for teachers who abuse students to be hired by another school district in the time between when they are fired and when the state Education Department is notified.

4. South Carolina looked beyond punishment, instead creating a statewide training program that aims to instruct 10,000 teachers, administrators, guidance counselors, coaches and school nurses on how to prevent, identify and report cases of abuse.

Now, don't get us wrong, we are 100% behind the notion that sexually abusive educators have absolutely no business working in our childrens' schools. If a teacher thinks that he/she should be dating (or worse) someone in their teens (or worse), then he/she should face the appropriate consequences, including job-related sanctions as well as possible criminal charges. These people do not belong in the educational system, no matter how well they can explain Chaucer or teach derivatives. But what bothers us is the last paragraph of the report:

The training will focus not only on stopping sexual predators but on preventing simply inappropriate relationships, said schools Superintendent Jim Rex. Sometimes young, naive teachers do improper things, with no ill will toward the student, and get into trouble, such as texting students' cell phones or giving them a ride home. "So much of what schools do is based on trust. Not only must kids trust their teachers, but parents have to trust those teachers too," Rex said. "And schools have to earn that trust each and every day."

We've all heard of doctors practicing defensive medicine - ordering up myriad tests to cover every base in an effort to avoid liability - but we're afraid that the educational climate is getting to a tipping point where teachers are practicing defensive mentoring. As we think back to our nascent years, we recall that our very best teachers were those who were indeed willing to cross an invisible barrier and give us that extra attention we sought or needed, the pat on the back when things weren't going well, or the ride home when our parents got stuck at work.

Granted, in our case the pat on the back never turned into a hand on the ass, but it is a shame that we're losing this teacher-student relationship that goes beyond the in-class pedagogy in the name of fighting sexual abuse. Clearly, the one-tenth of one percent of bad apple teachers are resulting in a significantly devalued education for the rest of our children.

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Today marks the first installment of a new piece called Around the Square that we'll be posting periodically (hopefully a couple of times a week) that will capture some of the interesting stories out there percolating in the news feeds and blogosphere that may not rise up to the level of a full posting, but are still worth briefly writing about. We're calling it Around the Square because we often feel as if we're a lonely town crier screaming at the top of our lungs about the obvious and apparent injustices placed on those accused of sex crimes, while the restless and bloodthirsty mob is gathering nearby with pitchforks and torches in tow.

We start with a story from Hamilton, NJ, where a popular high school football coach seems to be getting railroaded by the local prosecutor for pulling a female student away from a 6-year old that she was harassing. He has been charged with criminal sexual contact for allegedly rubbing against the 18-year old student's buttocks while pulling her away. (The Trentonian, Trenton, NJ - June 1)

Carl Jordan, 39, has been charged with criminal contact following an incident in April when his groin allegedly rubbed against an 18-year-old female student’s buttocks. Jordan’s attorney, Robert Wills, said the U.S. Naval Academy grad pulled the female student away from a 6-year-old boy whom she was allegedly harassing. Saying Jordan “did nothing wrong,” DiStephano concluded his public statement by noting that the incident occurred out in the open and not “behind closed doors.” As DiStephano sat down, local residents clapped their hands in a round of approval.

Remember our post from Friday critiquing the KIDS Act bill currently in Congress? Apparently the great state of Tennessee has already decided to require sex offenders to submit their email addresses and IM screen names, effective July 1st. (Eyewitness News, Memphis, TN - May 28, 2008)

Starting July 1st, Tennessee sex offenders are required to report their e-mail addresses, user names, and screens names to Tennessee’s Sex Offender Registry. Lawmakers created the new requirement for sex offenders during this year’s legislative session in Nashville. Police say the requirement will make it easier for them to spot sex offenders trolling for prey online.

Did you know that Arizona is using GPS devices to track some sex offenders, and they have been doing so since 2006? We didn't either. But apparently they are, costing Arizona taxpayers $180 a month for the tracking devices. If a device enters an "exclusionary zone," a signal is immediately sent to the offender's probation officer. (GPS News Update & GPS Review - June 1, 2008)

In each case, the child molesters are told there are certain areas where they can't go, Sanders said. If they go into an "exclusionary zone," the ankle bracelet sounds an alarm and immediately notifies his probation officer.If the probation officer thinks it's necessary, he or she can immediately call the police, Sanders said.Exclusionary zones could include playgrounds, school yards and victims' neighborhoods.

Sex Offender Research blog is preaching to the choir with its recent posting of an academic article from the University of Manchester in the UK. It's key finding on sex offender reintegration into society? It's lacking.

The process of reintegration of offenders after release from prison, or during a community sentence, is a key aim of criminal justice policy. This article provides details from recent research that investigated the barriers and opportunities to employment for sex offenders. The authors describe the barriers that are faced by sex offenders and the anxieties that employers experience when employing sex offenders. The authors conclude that the approach taken by the State is less than reintegrative and serves to increase the barriers and reduce the opportunities for employment for sex offenders.

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By Alexis Moore(Marcella Chester)
Are any of us that ignorant to believe that all of the sex offenders in the country are listed in the sex offender's registry? We know that not all domestic abusers will be listed in the database; however, some method of prevention is ...read more: Support for AB 1771: Myra Spearman a survivor's point of view

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Like so many other states, California has a registered sex offender housing crisis on it's hands. KFWB's Lori Kelman says no one wants them, and state officials don't know what to do about that...read more: KFWB's series on 290 crisis

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A jurisdiction in California may join Illinois and New York in barring sex offenders from driving an ice cream truck:. Boratbearicecream_1161708771_5 Last July, Perris residents learned that a registered sex offender was working as an ... read more: Beware of the Ice Cream Truck

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Peggy Phaklides, a litigation manager for ASH, said in January the hospital is considering appealing Smith's civil judgment. read more: CA- Murdered ASH patient worried about alleged killer who just lost major court appeal

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By Eric Swedlund A convicted sex offender attempted to abduct a 4-year-old girl from Santa Cruz Catholic Church Sunday morning but was stopped by alert...read more: Attempted abduction of girl, 4, thwarted

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Since when is it a crime to talk to children? The guy isn't a sex offender, has no criminal record and was under no order not to speak to children...read more: Widespread ire over decision to arrest Folsom man

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Washington will at this point require DNA samples from all registered sex
offenders only. Other states are targeting even juveniles and illegal
immigrants.... read more: DNA profiles can clear up crimes

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There, according to allegations in a lawsuit, Presenti masturbated and had oral sex with boys who stayed overnight in the infirmary...read more: Abuse was common in religious orders

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After conducting a 12 month in-depth study of illegal immigrants who committed sex crimes and murders for ...read more: Dark side of illegal immigration

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Tehama County Supervisor Ron Warner is a member of the California State Association of Counties' sex offender working group that monitors legislative bills regarding sex offenders...read more: Sex offenders moving to rural counties

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Arthur Price, 39, of Bellevue, Ohio, has been charged with a sex crime: putting his erect penis through the middle of his own picnic table on his own property, with no one watching—but three blocks from a school!
Read more about Police: Man Had Sex With Picnic Table
Between January and March 2008 Mr. Price, with no prior record of sexual assault on any other steel and plastic objects, or on children or on adults or on anything else, apparently violated Ohio sex laws when he made love to his picnic table on a number of occasions, both inside his house and outside his house on his deck.

A neighbor’s DVDs show Mr. Price making love to the table, first in his living room, to climax, and then lugging his picnic table out to his deck, where he repeatedly confirmed his passion and commitment with multiple climaxes—as the neighbor’s DVDs confirm.

Criminal problem? The poor guy was doing this whatever-nonsense was 3 blocks from an elementary school and this is America with a prosecutorial disease of needing to show how protective we are of our children, especially when it comes to ANYTHING relating to sex.

[Editorial note: the author is one of the few California criminal defense lawyer who has spent over a decade in third-world countries—and as a result he is appreciative of the U.S. criminal justice system compared to most others; for instance, he spent many hours and too much money helping Australian, New Zealand, and American drug defendants in Thailand jails (where oral and anal sex is permitted if the jailers get to participate or at least watch].

The victim, lacking English-speaking skills, and the arresting officers not speaking table talk, had no comment to the arresting officers and will not be put on the witness stand.

This post appears on my blog on April’s Fools Day—but it is not a joke; this is real, this is Ohio; this is America.

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The California Supreme Court ruled last week that a SVP (sexually violent predator) could avoid civil commitment otherwise required by Welfare & Institutions Code section 6600 et seq. under certain circumstances.

Under People v. Smith (2004) 32 Cal.4th 792, 796-799 (Smith), a person can be civilly committed as a SVP after serving his full prison term if he has been convicted of certain crimes and a jury finds he may engage in sexually violent behavior in the future.

In this case the defendant had been convicted in 1982 of four counts of oral copulation on a child under 14 and one count of sodomy of a child under 14; again, in 1988 he was convicted of 15 counts of committing lewd and lascivious acts on a child under 14.

Seven years later he was released on parole and three years later, in 1998, he completed parole. When he moved away from California to New York the following year he sent a change of address card to the Long Beach police, but it was not received (?!).

Failing to keep California authorities informed led to his arrest in New York and his return to the Golden State for five years in state prison. At this point the Los Angeles D.A. (for the first time) decided the defendant should be placed into civil custody as a SVP when he completed the five years.

However, meanwhile, Smith was appealing the conviction and he won! The Supremes apparently decided the police might have received that change of address card after all, or at least it was a close enough question to make the court wonder if five years in state prison was the appropriate consequence of a mail mishap.

So Smith won—but the D.A. STILL DEMANDED HE BE PUT INTO CIVIL CUSTODY AS A SVP immediately because the D.A. could demand it. By that I mean this: the D.A. “could” because, incredibly, the operative language reads: “An SVP petition shall not be dismissed on the basis of a later judicial or administrative determination that the individual’s custody was unlawful, if the unlawful custody was the result of a good faith mistake of fact or law.”

In this case our California Supreme Court made a decision that may lack political correctness but it absolutely was the right decision. The court concluded that, despite the above italicized language, it was not going to let the People (the D.A.’s office) twist the meaning of the language into something different than what the legislators must have intended (or what the Supremes thought was fair).

Accordingly, the court held an SVP commitment in this case was not authorized, reversing the Court of Appeal.

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Posted In: Bay Area Cases , California Cases , Crime and Punishment , Sentencing , Sex Crimes

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