Sex Crimes

Sex Offender Cited for Two-Way Mirrors

A Colorado sex offender was recently cited for installing two two-way mirrors in a town tri-plex. From the Watch:

Darin Flora, 38, was cited with a summons for criminal attempt to commit unlawful sexual contact, a class 2 misdemeanor. He was not arrested and is set for a court date on July 13 at 8:30 a.m. at the Montrose County Justice Center.

Flora is a registered sex offender with the Montrose County Sheriff’s Office, which could “probably have some consequences” if he is found guilty, Lillard said.

The Montrose Sheriff’s Office said Flora served time in the county jail in 2003 after being convicted for three instances of being a peeping tom, peering into people’s homes without their knowledge. He has to re-register as a sex offender every year, said a department spokesman.

Lillard said Flora was a maintenance worker who was working as a subcontractor for Colorado West Property Management, which manages the property at 1001 North First St., where the mirrors were found, one looking into the apartment’s shower, the other looking into the bedroom.

The mirrors were found when Jim Waters and his two female roommates moved into the apartment last Thursday and were shocked to discover a two-way mirror in the bedroom and the shower.

I'm not sure if the story is being precise, but given the facts as described, it seems odd that he is charged with attempt to commit unlawful sexual conduct (especially given his past convictions for being a peeping tom). I wonder if the statute is unusually broad or if there is more to the story.

Justice Department's SMART Case Law Update #23

As previously noted, the Justice Department's Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering and Tracking (SMART) occasionally posts updates on case law developments in the sex offender realm. You can view the latest update here. Here are some of the cases from Update #23:

Hansen v. Marr, 2009 U.S. Dist. LEXIS 5239 (D. Neb. January 26, 2009)

Petitioner filed a Habeas Petition, claiming that he was “in custody” for Habeas purposes because he was required to register as a sex offender.  The court disagreed, stating that “where sex offender registration statutes are remedial, rather than punitive, the registration requirements…do not satisfy the ‘in custody’ requirements” for a Habeas Petition.

Ward v. Tennessee, 2009 Tenn. Crim. App. LEXIS 43 (Jan. 14, 2009)

In this Habeas petition, the court found that the requirement to register as a sex offender is a collateral consequence of the underlying criminal conviction. The trial court did not commit plain error by failing to advise him of the requirement.

People v. Mosley, 168 Cal. App. 4th 512 (Nov. 19, 2008)

Mosley was convicted by a jury of assault, but acquitted at trial of committing a sex offense against a minor.  The trial court, based on its own fact-finding, ordered him to register as a sex offender, and thus submitting him to the residency restrictions in place in California.  The Court of Appeals held that the residency restriction is punitive (per Mendoza-Martinez) and, therefore, Apprendi requires a hearing where facts supporting the imposition of the residency requirement are proven beyond a reasonable doubt to a jury.

Colorado Woman Allegedly Rapes Adult Man

A 53-year-old Colorado woman has been arrested over allegations that she drugged a 50-year-old male friend and then raped him. TMZ has more. You may read a copy of the police report here. From the Daily Camera:

A 53-year-old Longmont woman was arrested Wednesday on suspicion that she drugged a male friend during a backyard barbecue and then raped him, police said.

Janice Lynette McCarl was booked into the Boulder County Jail at 7:40 p.m. Wednesday on suspicion of sexual assault, a class-three felony.

Longmont police Cmdr. Tim Lewis said reports of female-on-male rape are very rare; one victims’ advocate said this was only the second local instance she could remember happening within the past decade.

Lewis said McCarl is accused of having inappropriate sexual contact with a 50-year-old male friend.

“She allegedly took unwanted advantage of this friend in a manner he did not want or approve of,” Lewis said.

The man told detectives the incident happened on Nov. 9 at his Longmont house and involved “unwanted penetration.”

Colorado Newspaper Says "Naked Pumpkin Run" Streakers Are Not Sex Offenders

A Colorado newspaper is running an editorial asking that a dozen streakers who were arrested in Boulder's annual Naked Pumpkin Run not be charged with indecent exposure, as it "carries the penalty of having to register as a sex offender."  From The Rocky Mountain News:

You would have thought that, after letting 60 birthday-suited cyclists pedal through the streets of Boulder in June, that city's police chief would have turned the other cheek when it came to the 10th annual Naked Pumpkin Run.

But whereas none of the daytime World Naked Bike Ride participants (who protested America's dependence on foreign oil) were charged with a crime - "I think the police department tries to reflect the values of our community. . . . I think our community values are pretty tolerant of civil disobedience," Boulder police Chief Mark Beckner told The Daily Camera after the mass spokes streak - the pumpkin heads could face serious punishment that doesn't fit the prank.

As partygoers lined the Pearl Street Mall close to 11 p.m. on All Hallow's Eve, more than 100 nude runners donned pumpkins on their craniums for a traditional sprint in the buff. This time, though, a dozen of the streakers were cited for indecent exposure - a Class 1 misdemeanor that carries the penalty of having to register as a sex offender.

This would be an unusually harsh punishment for a group of revelers who included research scientists and University of Colorado students. Colorado's criminal code defines indecent exposure as knowingly flashing one's genitals in a circumstance "likely to cause affront or alarm" to the viewer. Since the late-night Pearl Street crowd was there to view the run, it's likely there was much more amusement than alarm.

If the pumpkin runners had been charged with public indecency, they would not face the stigma of being on a sex offender registry. But ironically, the criteria for public indecency - having sex or masturbating in public are among them - may be even less appropriate than indecent exposure for the nonsexual streaking that haunted Boulder.

The saga of the naked pumpkin streakers has revealed much more than sprinters' derrieres; it has also revealed the need for a legal exemption. A college prankster clearly should not be tarred with the same sex-offender status as a pervert flashing his private parts at vulnerable victims.

You think? Of course, there are a lot of other sex offenders that are completely unlike child molesters and rapists. Yet, the one-size-fits-all approach embodied in registries and residency restrictions ignores these differences. I don't think what is needed is a "legal exemption" as much as letting judges handle the decisions to put people on registries and/or apply banishment-type punishments. The lack of discretion combined with the one-size-fits-all approach create injustices on a regular basis. It just happens that the case of a few streakers garners more sympathy because most "sex offenders" don't want to make their story anymore public than it already is.

Federal Judge Resigns Over Allegations By Former Prostitute

U.S. District Judge Edward W. Nottingham Jr. has submitted his resignation to President Bush because of allegations that the Judge asked a prostitute to mislead investigators regarding their relationship. TalkLeft has more. From The Denver Post:

A series of sexually charged allegations over the past year, including a recent claim by a prostitute that Chief U.S. District Judge Edward W. Nottingham Jr. had asked her to mislead judicial investigators about their weekly trysts, prompted Nottingham to resign his lifetime commission Tuesday.

"He is deeply remorseful for his actions," Nottingham's lawyer wrote in a public statement that didn't specify exactly what those actions were or whether any of the publicized anonymous claims are true. "He is also embarrassed and ashamed for any loss of confidence caused by those actions and attendant publicity and sincerely apologizes to the public and the judiciary."

Nottingham submitted his resignation to President Bush and said it had become clear that leaving the bench was the only way to put the matter behind both him and the court where he had worked for almost 19 years.

The resignation came as Chief Judge Robert Henry of the 10th U.S. Circuit Court of Appeals was in the midst of investigating Nottingham for misconduct.

Henry, in a statement of his own, acknowledged for the first time the breadth of the investigation, which began last fall after a complaint arose from testimony in Nottingham's divorce case about how he spent thousands of dollars in one night at a Denver strip club.

Since that initial complaint, 9News has reported that Nottingham's name emerged as a client in an investigation of a Denver prostitution ring and that a prostitute had complained to the 10th Circuit that Nottingham had asked her to mislead judicial investigators about their relationship. The prostitute's identity remains secret.

"The Judicial Council, through its appointed special committees, conducted a thorough and extensive investigation, interviewed many witnesses, considered voluminous documentation and conducted two hearings," Henry wrote in a statement issued Tuesday. "At this critical time in the investigation of these multiple complaints of misconduct, Judge Nottingham has stepped down, effective immediately, as chief judge of the district of Colorado, has ceased judicial duties and has resigned his commission as a United States district judge effective Wednesday, Oct. 29, 2008."

Nottingham left the bench last week, turning a drug trial over to another judge, and has not been in court this week.

Jeff Dorschner, spokesman for the U.S. attorney's office in Colorado, said he could not comment on whether a criminal investigation into Nottingham's conduct is underway.

Nottingham's resignation won't have a serious impact on criminal cases pending before the court, though it could result in some minor delays, Dorsch ner said.

A statement from the U.S. District Court for Colorado said that Judge Wiley Y. Daniel would step up to become chief judge, overseeing the operation of the courthouse and the bench.

Daniel becomes the first African-American judge to be appointed chief judge at the U.S. District Court of Colorado.

In the statement on behalf of the court, Nottingham's colleagues lauded his leadership, particularly in advancing technology and including electronic courtroom evidence presentation and case filings.

"Throughout his judicial career, Judge Nottingham worked tirelessly to ensure that his courtroom and case- management practices were premised on the law and applied fairly to all who appeared before him," the statement said.

After working as a judicial clerk, private attorney and a federal prosecutor, Nottingham was appointed to the bench Nov. 27, 1989, by President George H.W. Bush.

Colorado Senator Calls for Federal Judge's Resignation

U.S. Senator Ken Salazar (D-CO) is publicly urging Chief U.S. District Judge Edward Nottingham Jr. of the District of Colorado to resign over allegations that he tried to persuade a former prostitute to lie about paying her for sex to investigators. TalkLeft has a post suggesting that the Judge will in fact resign. Judge Nottingham is probably best-known for presiding over the trial of former Qwest chief executive Joe Nacchio. From The Denver Post:

Democratic U.S. Sen. Ken Salazar urged Chief U.S. District Judge Edward Nottingham Jr. to resign today, a day after allegations surfaced that he tried to get a former prostitute to lie to investigators about paying her for sex.

Nottingham called in sick to work this week, and his six-day criminal trial was taken over by another judge.

A source close to the judge says he is contemplating resignation, but as 5 p.m. passed on the East Coast, the clerk of the U.S. District Court had not received a notification from Nottingham or the White House of a resignation this afternoon.

If a federal judge resigns, the judge must notify the White House first. Calls to the White House inquiring about Nottingham were not returned today and Thursday.

Nottingham and his attorney did not return calls for comment today.

9News reported that a former prostitute from an escort service filed a complaint against Nottingham with the 10th Circuit Court of Appeals last week, saying that he asked her to lie about how they met and that he paid her for sex.

The court was already investigating Nottingham on other ethical complaints involving strippers, escorts, and an argument he had with a woman in a wheelchair over a handicapped-parking spot.

Jeff Dorschner, spokesman for the U.S. Attorney's Office in Colorado and Kathleen Wright, spokeswoman for the Denver FBI, both said they could not confirm or deny that a criminal investigation of the judge was underway.

Colorado School District to Conduct Sex Offender Checks on Volunteers

School volunteers in one Colorado city will soon have their names "cross checked with a sex-offender registry."  Because the registries are publicly available, the checks should not cost schools "anything but staff time." From The Daily Camera:

Boulder Valley School District leaders said earlier this month that they would consider changing their policy to require staff members to run volunteer names through free sex-offender databases. This week, officials said they’re moving forward.

“It’s not a question of if,” said Becky McClure, assistant superintendent of human resources. “It’s more the pragmatism of how that will be done.”

McClure said it makes sense to have staff members at individual schools check sex-offender registries for their volunteers. The added check will require more work for some schools than others, McClure said, but because the registries are public, cross-checking sex-offender lists shouldn’t cost schools anything but staff time.

Eric Maxfield started the discussion about stricter background checks this school year after his son returned from his first day of kindergarten at Louisville Elementary School and mentioned volunteers in his classroom. Maxfield said he wanted to know more about the non-licensed adults working with his son and learned the district doesn’t have a blanket background-check policy for its volunteers.

“Predators are opportunists by nature,” Maxfield said. “When there’s a glaring gap in an inconsistent policy, that’s where they operate.”

Maxfield said he wants the district to conduct full background checks for all its volunteers — like it does for licensed staff members and teachers.

Boulder Valley officials have said it’s too expensive and time-consuming to do full fingerprinting and background inspections for its thousands of volunteers, and Maxfield said the sex-offender checks are better than nothing.

“To me, that’s a minimum,” he said.

If the checks are truly free, this is a preferable way to address the school volunteer system. It certainly beats the system they have in Philly.

Around the Web

Sentencing Law and Policy has a post discussing a new article on SSRN entitled: Banishment of Sex Offenders: Individual Liberties, National Rights and the Dormant Commerce Clause, Environmental Justice, and Alternatives.  You can view the article here.

The Denver Post has an interesting article discussing the problems involved with "implementing some of the requirements of the [Adam Walsh Act] — such as making the names and addresses of juvenile sex offenders available on the Internet."  Specifically, the article mentions that Colorado state officials have "met for more than a year to decide whether to comply with the Adam Walsh Act by July or lose $240,000 in federal funding," which the article states "may be worth losing the money since it could cost more to fulfill the law's requirements."

The Iowa Supreme Court has ruled that a sex offender "was not discriminated against when he was charged with violating a residency rule that he claimed was not in effect when he bought his house."  The man, who was convicted in 1997 as a sex offender, bought a home within 2,000 feet of a school in 2005.  He was later charged for violating the residency restrictions, but he argued that "there was a federal court injunction in effect when he purchased the house."  You may view the decision here. HT: How Appealing.

Porn for Convicts

The rule seems to be no porn for prisoners, but yes porn for freed sex offenders. First, the Florida Supreme Court held that, applying the rule of lenity, a sex offender could not be convicted of violating probation conditions related to porn (HT: How Appealing):

We review a statute that requires judges to impose conditions of probation on sexual offenders. At issue is whether the statute prohibits sexual offenders serving probation or community control from possessing any pornographic material at all or only such material relevant to the offender’s deviant behavior. In the decision below, Kasischke v. State, 946 So. 2d 1155, 1159 (Fla. 3d DCA 2006), the Third District Court of Appeal held that offenders cannot possess any such material. Its decision expressly and directly conflicts with the Second District Court of Appeal’s decision in Taylor v. State, 821 So. 2d 404, 405-06 (Fla. 2d DCA 2002), which held that a condition prohibiting the defendant from “viewing, owning, or possessing obscene, pornographic, or sexually explicit material,” must relate to the defendant’s “particular deviant behavior pattern.” We have jurisdiction to resolve the conflict. See art. V, § 3(b)(3), Fla. Const. Because, as the Third District acknowledged, the statute “is undeniably susceptible to multiple and irreconcilable interpretations,” 946 So. 2d at 1157-58, we apply the rule of lenity. We therefore quash the decision below and approve the Second District’s decision in Taylor.

However, a Supermax inmate was not so lucky (HT: How Appealing):

Plaintiff has failed to established that the Ensign Amendment, or its implementing regulation, 28 C.F.R. § 540.72, violate his First Amendment rights either facially or applied to him, and therefore the declaratory relief sought in his First and Third Claims for Relief is DENIED. The Clerk will forthwith enter judgment in favor of Defendants and against Plaintiff on the First and Third Claims for Relief, dismissing those claims with prejudice. Plaintiff has failed to established that the defendants’ determination that the publications rejected as alleged in his Fourth, Fifth, Sixth and Eighth Claims for Relief were improperly excluded under the Ensign Amendment, or its implementing regulation, and therefore the declaratory relief sought in his Fourth, Fifth, Sixth and Eighth Claims for Relief is DENIED. The Clerk will forthwith enter judgment in favor of Defendants and against Plaintiff on the Fourth, Fifth, Sixth and Eighth Claims for Relief, dismissing those claims with prejudice.

Around the Web

After more than a decade of rumors and innuendo, "DNA tests have reportedly cleared the family of JonBenet Ramsey of involvement in the 6-year-old Colorado beauty queen's murder in 1996."  Boulder County District Attorney Mary Lacy said the tests point to an 'unexplained third party' and that prosecutors don't consider any member of the Ramsey family a suspect.  The DA also apologized in a letter to the girl's father, John Ramsey, for any role that her office may have played in contributing to "the public perception that you might have been involved in this crime."  The Associated Press, TalkLeft and Crime and Consequences have more.

Although the State of Vermont has not sentenced anyone to death in more than 50 years, the man charged with abducting a 12-year-old girl "could become the second Vermonter to end up on federal death row in recent years."  Vermont Law School professor Michael Mello, who is an expert on the death penalty, noted it could be the first time federal prosecutors seek the death penalty using changes to federal law included in the Adam Walsh Act of 2006.  According to Mello, "[w]hat the Adam Walsh amendment was intended to do, in effect, is to make virtually any kidnapping with death resulting a federal capital offense."  Federal prosecutors allege that the girl's uncle is responsible for the abduction.

Wisconsin necrophiliacs beware, the state Supreme court held today that the state's rape law bans sex with dead bodies.  According to the majority opinion, "a reasonably well-informed person would understand the statute to prohibit sexual intercourse with a dead person."  Two dissenting justices said the law was intended not to ban necrophilia but to permit rape charges when the victim was also murdered. An attorney for one of the defendants' notes that the charges have yet to be proven. For more, see the Associated Press article. If the subject weren't so completely distasteful, the fact pattern would present a nice Criminal Law exam question illustrating differing approaches to statutory interpretation.

The National Review has several new editorials online concerning the recent Kennedy decision.  One by Andrew C. McCarthy is entitled: Some Evolution: The fraudulent 'consensus' behind the Supreme Court's child-rape ruling.  Another by Anthony Dick is entitled: Constitutional Torture: Standard judicial malpractice.