Sex Crimes

Nebraska Supreme Court Rules In Favor of Sex Offender

A helpful reader sent word that the Nebraska Supreme Court ruled in favor of a sex offender finding that a lower court improperly determined the duration of the defendant's sex offender register. You may read the opinion in State v. Ways, 279 Neb. 1 (2009) here. From the Journal-Star:

John Ways Jr. was convicted of pandering in 1996 and served two years in prison. He has clashed with authorities since, having been sentenced in 2004 to six years in federal prison in an explosives and firearms case and engaging in a long-running feud with Lincoln officials over a now-defunct strip club he owned. A dancer there was convicted in 2003 of performing sex acts with a dog.

Last December, Lancaster County District Judge Robert Otte sentenced Ways to 56 days in jail for contempt of court related to his 1996 pandering conviction. Prosecutors brought that charge after Ways failed to register with the state as a sex offender, as a different judge had ordered in 2002. That order came after prosecutors discovered Ways did not register as a sex offender when he was released from prison in 1998.

In its ruling Friday, the Nebraska Supreme Court said the lower court didn't have the authority to determine the duration of Ways' registration. State regulations typically govern which offenders must register as sex offenders and for how long.

Halloween Sex Offender Roundup

Here is a (spooky?) collection of Halloween sex offender news stories from around the web:

From Sentencing Law & Policy, we learn that certain Alabama sex offenders are required to attend an educational meeting on Halloween night which will feature "updates on sex offender laws, the Adam Walsh Act and rehabilitation opportunities, as well as training for employment."

Law enforcement officials in Omaha, Nebraska report that they will be paying extra attention to sex offenders on Halloween night. Officials are encouraging parents to check the online registries to know who lives where.

Meanwhile in Missouri, registered sex offenders are required to stay at home from 5 to 10:30 pm on Halloween, absent "just cause" to leave. The ban remains in effect despite a 2009 study that found "no significant increases in sex crimes on or around Halloween after an examination of crime data looking at non-familial sex crimes from 1997 to 2005 against children 12 years old and younger."

Floridian sex offenders also cannot participate in trick or treating at their homes and must display a "No Candy Here" sign on their front doors.

In California, sex offenders who are not on parole or probation are allowed to put up Halloween decorations in their yard, despite objections from neighbors.

Justice Department's SMART Case Law Update #27

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 #27:

Doe v. Keathley, 2009 Mo. LEXIS 131 (June 16, 2009)

Petitioners were all convicted of sex offenses prior to any sex offender registration requirement for said convictions.  The court held that 42 U.S.C. §16913(d) applies directly to these state-convicted petitioners (and at least one military-convicted offender) and directly imposes a registration requirement on them.  Because of this direct application of federal law, the court held that there are no State Constitutional concerns, and that the petitioners were required to register.  A previous decision from the Missouri Supreme Court, Doe v. Phillips, 194 S.W.3d 833 (Mo. 2006), had prohibited registration for anyone convicted for conduct prior to the enactment of Missouri’s sex offender registration scheme based on Missouri’s Constitution.
 
Doe v. Massachusetts, 2009 Mass. App. LEXIS 724 (June 5, 2009)
 
Doe was convicted of two sex offenses in 1984 and was incarcerated for a year.  In 2005 he was classified as a level two sex offender based exclusively on those two convictions.  The court held that he was entitled to a hearing as to his level of current dangerousness, so as to determine if he should be required to register as a sex offender.
 
State v. Germane, 2009 R.I. LEXIS 68 (June 2, 2009)
 
In rejecting Germane’s challenges (due process, separation of powers, and ex post facto) to the registration and notification law, the Rhode Island Supreme Court engaged in a lengthy and helpful discussion of the legal issues at hand, including how the state utilizes the STATIC-99.

State v. Durrett, 2009 Wash. App. LEXIS 1285 (June 1, 2009)

Durrett was a homeless sex offender who was required to report weekly to the sheriff’s office for registration purposes.  There were two separate weeks where he failed to register.  He could only be prosecuted for one count of failure to register, as they constituted only one unit of prosecution.
 
White v. Dexter, 2009 U.S. Dist. LEXIS 46360 (May 20, 2009)

Making some factual distinction between this petitioner in this case and the one in Gonzalez v. Duncan, 551 F.3d 875 (9th Cir. 2008) (holding an imposition of a “third-strike” sentence as cruel and unusual punishment for a failure to register conviction), the court denied White’s Habeas petition.

People v. Ranscht, 173 Cal. App. 4th 1369 (May 15, 2009)
 
Ranscht was convicted of one count of sexually penetrating a minor.  Because he was similarly situated to an offender convicted of unlawful sexual intercourse—the only distinguishing factor between the offenses being the nature of the intent which must be proven—it was a denial of equal protection to require him to register as a sex offender.  An ‘unlawful sexual intercourse’ conviction in California makes the requirement to register discretionary, rather than mandatory.
 
State v. Payan, 765 N.W.2d 192 (Neb. 2009)

Nebraska has a procedure by which a person can be deemed to have committed an “aggravated offense”, which requires lifetime registration.  That determination is one that is made by the trial court judge.  The court held that the Court’s determination is sufficient for making a determination regarding registration, as that is civil in nature.  However, relying on the Apprendi case (Apprendi v. N.J., 530 U.S. 466 (2000)), the court held that the determination regarding community notification was punitive in nature and required a jury determination that an offender, in fact, committed an “aggravated offense.”

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.

Supreme Court Denies Cert. for Case Involving Ban of "Rape"

The U.S. Supreme Court denied certiorari in a case (previously discussed here and here) involving a Nebraska judge who banned the word 'rape' in a criminal trial for sexual assault. The victim later sued the judge and appealed to the 8th Circuit Court of Appeals, who denied her claim. From The Associated Press:

Lawyers for Tory Bowen had argued that Lancaster County District Judge Jeffre Cheuvront violated their client's constitutional rights by barring her from using such words as "rape kit" and "victim" during her testimony in the trial. The judge said he banned the language because was concerned about the accused's right to a fair trial.

While restricting Bowen's testimony, Cheuvront allowed attorneys for Pamir Safi to use such words as "sex" and "intercourse" to describe the encounter between Safi and Bowen.

Bowen says Safi sexually assaulted her in October 2004 while she was too intoxicated to give consent. Safi maintains the sex was consensual.

The Associated Press usually does not identify accusers in sexual assault cases, but Bowen has allowed her name to be used publicly because of the issue over the judge's language restrictions.

Bowen attorney Wendy Murphy said in an e-mail Monday that she was disappointed but not surprised by the high court's decision.

"Tory Bowen and this case will forever be known as the beginning of reform on this important issue, because we laid the groundwork for the inevitable day when judges will stop making such ridiculous rulings," Murphy said.

A mistrial was declared in Safi's first trial in November 2006 when the jury deadlocked. Bowen said afterward that the judge's ban had a negative effect on her testimony, causing her to pause to ensure her words didn't violate the order.

Cheuvront declared a second mistrial in July 2007 during jury selection, citing news coverage and public protests on Bowen's behalf.

The decision to deny cert. isn't at all surprising given the procedural disposition of the case. Because the victim, and not the defendant, was denied the ability to say "rape" during the trial, the case is not the result of a criminal appeal. Instead, the case arose from a subsequent civil suit by Bowen against the judge. That sort of litigation is just doomed to fail. Perhaps, if proposals like that of Paul Cassell, are enacted, victims might have a greater role in the criminal process. However, as of now, concerns like those of Bowen are largely unable to be properly litigated.

Around the Web

An attorney for Sen. Larry Craig (R-ID) has asked the Minnesota Court of Appeals to allow Sen. Craig to "withdraw his guilty plea to disorderly conduct after his arrest in a sex-sting operation at an airport men’s room last year." Sen. Craig did not attend the hearing.  The Minneapolis Star Tribune has more.

TalkLeft has an interesting post discussing a convicted sex offender in Connecticut who had technical issues with his GPS device while on supervision.  The post notes that, "[f]or about 15 minutes on September 3, the device did not indicate that Pollitt was at his sister's home. That was all it took for Rell to demand that Pollitt be returned to prison immediately -- no investigation, no hearing, just lock him up. The governor's press release, demanding immediate incarceration for the 'apparent' violation, all but accuses Pollitt's family of lying when they said he didn't leave the premises."  The GPS device apparently failed.  Governor Rell's press release may be viewed here.

Legislative hearings concerning Vermont's criminal justice system will "likely result in a recommendation for stiffer mandatory minimum sentences for the most egregious sex offenders," according to the chairman of a key senate committee.  Sen. Dick Sears, head of the Senate Judiciary Committee, said that longer sentences for "habitual" offenders offer state prosecutors an opportunity to apply more severe charges in appropriate cases.  Sen. Sears stated that, "I think the committee will be looking at strengthening laws, in terms of lengths of sentences, as well as a bigger focus on prevention programs."

Around the Web

A Wisconsin appellate court has ruled that "[p]olice who videotaped a man having sex with his comatose wife in her nursing home room violated his constitutional rights."  The man visited his wife, a stroke victim, at a nursing Home in Wisconsin.  According to the article, "[t]he ruling means prosecutors cannot introduce the videotapes as evidence in their case against [the man], who is charged with felony sexual assault for having intercourse with his wife without her consent at least three times in 2005."

An Arizona sex offender "who posed as a 12-year-old boy to enroll in Arizona schools has pleaded guilty to seven criminal charges ... and will go to prison for more than 70 years, a prosecutor said."  The man, who was 30, wore heavy pancake makeup to pose as a 7th grader named Casey.   The New York Times, Arizona Republic and Associated Press have more.

How Appealing reports that the Second Circuit Court of Appeals has affirmed an entry of summary judgment "against minor females who filed a federal civil rights action alleging they were sexually abused by the then-Mayor of Waterbury, Connecticut."  How Appealing notes that the case involves former Waterbury Mayor Philip Giordano, "who was previously convicted in federal court on seventeen of the eighteen criminal counts against him, including two counts charging him with acting under color of law to deprive these plaintiffs of their constitutional rights to be free from unwanted sexual abuse."  You may view the ruling here.

A Nebraska judge is being asked to decide "whether to return pornography to a convicted sex offender who says the state has no right to keep it."  The man is currently serving a probation sentence after being convicted in a case in which he was accused of propositioning two teenage boys.  The man has made a legal motion to have his computer and equipment returned to him, as they are no longer needed for evidence.

A federal judge in Nevada has issued a permanent injunction that "bars the state of Nevada from applying two new sex offender laws retroactively."  U.S. District Judge James Mahan noted that the laws, as applied to several sex offenders represented by the ACLU of Nevada, are unconstitutional. Judge Mahan however declined to rule on whether the new laws may be applied to those convicted of sex offenses in the future. SL&P has more.

Around the Web

How Appealing reports that the 8th Circuit Court of Appeals has upheld the dismissal of a lawsuit against a Nebraska judge who banned "rape" and other words in a sexual assault trial.  The 8th Circuit's per curiam opinion is available here.

A Public Defender mentions a couple of news stories that discuss the lack of rehabilitation for sex offenders and the problems with GPS monitoring in the state of Connecticut. 

The Associated Press reports that Texas law enforcement agents have raided the grounds of a polygamist compound, after receiving information about a girl, who allegedly had a baby at 15 with a 50-year-old man.  The man was convicted last year of conspiracy to commit sexual conduct with a minor. He was ordered to register as a sex offender for three years while he is on probation.

A Nevada judge has struck down Nevada’s new sex offender laws as they relate to juveniles.  The law being challenged is based on the federal Adam Walsh Act, which "lumps teenage sex offenders 14 and older in with adults when it comes to certain punishments and requires that many of those juvenile offenders be included in Internet sex offender registries." Nevada's new laws would be applied retroactively, "meaning anyone who was at least 14 years old and convicted of a crime against a child after July 1, 1956, is subject to the new regulations."

The Georgia Senate has unanimously voted to "place new restrictions on the copying and inspection of sexually explicit material involving minors used as courtroom evidence."  The bill is seen as a response to a state prosecutor in the Genarlow Wilson case who released copies of the video showing Mr. Wilson engaging in sex acts with two underage girls.  The prosecutor argued that the state's open records law required him to release it to anyone who requested it, but a U.S. Attorney labeled it child pornography and ordered him to stop.  As I was one of the vocal critics of the prosecutor at that time, I'm happy to see the Legislature take steps to ensure such a release doesn't occur in the future.

Sentencing Law and Policy reports that the "Georgia General Assembly has passed legislation reinstating residency and work restrictions on registered sex offenders."  The move comes after the Georgia Supreme Court struck down part of the state's sex offender residency restriction last year on a takings theory. 

Around the Web

CrimProf Blog has an update about the female teacher from Nebraska that fled to Mexico with her 13-year-old student.  The teacher has been arrested and turned over to the FBI.

On a related note, FindLaw is reporting that governors and state legislative leaders are attempting to crack down on teacher sexual misconduct following the AP investigation, mentioned earlier.

The Dallas Morning News has an article concerning the effect Texas' ordinances have on restricting where sex offenders can live.  According to the article, the laws appear to have little, if any, effect.

Height as a Mitigating Factor

Maybe Randy Newman was wrong (at least if you are a short sex offender):

A judge had valid reasons for sentencing a 5-foot-1 sex offender to probation, even though she cited the offender's height as part of her rationale, the Nebraska Court of Appeals ruled Tuesday.

An examination by a clinical psychologist and the results of a test used to determine the risk that Richard W. Thompson would reoffend both indicated that Thompson, 52, is neither a pedophile nor a sexual predator, the court said.

District Judge Kristine Cecava of Cheyenne County sentenced Thompson last year to 10 years of probation for sexually assaulting a 13-year-old girl.

"So I'm sitting here thinking this guy has earned his way to prison, but then I look at you and I look at your physical size. I look at your basic ability to cope with people and, quite frankly, I shake to think what might happen to you in prison because I don't think you'll do well in prison," Cecava said in court, according to a court transcript of the hearing.

The sentence prompted national criticism. Attorney General Jon Bruning appealed the sentence to the Nebraska Court of Appeals and sought a prison term for Thompson.

The ruling is available here.

HT: How Appealing