Prosecutors in the Northern District of California would be well advised to not bring charges for failure to register under SORNA, only to drop the charges shortly after extensive briefing on the matter. That does not make for a happy judge. From Law.com:
Assistant U.S. Attorney Denise Barton learned that lesson this week, when Northern District of California Judge William Alsup ordered her to explain why the government decided to dismiss a sex offender registry prosecution less than two weeks after Alsup had sorted through extensive briefing on the statute's constitutionality.
In court Wednesday, Alsup kept his voice low and made sure to describe prosecutors in the office as "excellent." But the judge seemed disturbed that Barton pushed hard to detain defendant Gary Hardemann in December, only to toss the case this week.
"You went after him hammer and tongs to keep him in custody," Alsup said. The judge released Hardemann even after Barton claimed he was a danger to the community, and that more counts were coming.
"When you are charging a case, I urge you to be ready to go to trial," said Alsup, who will preside over a rare capital trial later this month.
Barton acknowledged Alsup's frustration, but said the dismissal became necessary after a newly discovered legal hurdle arose in recent weeks. Prosecutors then doubted their ability to prove the case, she said.
"We did what we believed was the responsible thing," said Barton, who coordinates the office's sex crimes prosecutions.
According to Hardemann's federal public defender, Daniel Blank, the case appears to be the first in the Northern District of California brought under the recently passed Sex Offender Registration and Notification Act. Hardemann was convicted of two state law sex crimes in the 1980s, which were expunged. Still, the government contends Hardemann is required to register under SORNA, and that he failed to do so.
Blank sought to dismiss the indictment with various challenges to the statute, including a facial attack invoking the Commerce Clause. Alsup turned him down.
After that ruling, though, the government grew unsure of whether Hardemann technically moved out of San Francisco in 2007. Changing residences triggers SORNA's reporting requirements, Barton said. Since Hardemann went to Mexico for a few months -- but returned to San Francisco -- Barton said she and others in the office doubted their proof.
Still left unsettled is the fate of Alsup's constitutional analysis.
"I think that was a close call," the judge said. "I ruled in the government's favor, but I had it in the back of my mind that Mr. Blank would take it up on appeal and the 9th Circuit would sort it out."
Not surprisingly, Barton thought Alsup should let the order stand, while Blank said he should withdraw it. Alsup took the matter under submission.
"I'm concerned with having that opinion out there. Somebody may put more weight on it than it deserves," he said.
The judge closed by reminding prosecutors of their immense power over citizens that "don't have the same resources" as the government.
"Please proceed with caution and good judgment," he said.
H/T: Sex Offender Research.
The system is broke. There is no protection of fundamental rights. There is no guilty beyond reasonable doubt. This is a rare confession of how the system really works.
"I think that was a close call," the judge said. "I ruled in the government's favor, but I had it in the back of my mind that Mr. Blank would take it up on appeal and the 9th Circuit would sort it out."
Does this judge have any idea of what it takes to defend yourself in a criminal trial, or appeal a conviction? Yes, he has a federal public defender but they are not a happy camp of people. They are completely outgunned by the prosecutors who have the benefit of strict liability federal crimes, vast resources, and sentencing laws that would make Stalin proud. It appears that the federal prosecutors also have the bias of the court.
The stressed out, media-bedazzled judge must have let that comment slip, as he prepares for the big show -- the capital crime case. It was a rare moment of honesty. However the whitewashing of prosecutor behavior is just business as usual.
"In court Wednesday, Alsup kept his voice low and made sure to describe prosecutors in the office as "excellent." "
Posted by: lawdoc | February 09, 2009 at 08:29 PM