Sex Crimes

Student Post - Links to Sex Crimes to Follow Texas Suspects

A recently published article in the Wall Street Journal talks about a new law that was put into effect on September 1, 2009 in Texas. This new law allows prosecutors and parole boards, for the first time in the history of this country, to see DNA evidence that links a suspect to an old sexual assault, even though the statute of limitations has expired on the case and the suspect was never tried. Previously, there would be no record linking the suspect to the old crime.

This new law has its supporter, who are optimistic that suspects in those old cases, of which the statute of limitations has run, will face more vigorous prosecutions and sterner parole boards should they find themselves in trouble with the law again.

On the other hand, the newly enacted law has its opponents, who believe that the new law robs alleged suspects of their due-process rights. From the article:

This article tracks a woman named Desirée Wood, who was raped more than twenty years ago, whose attacker was never caught and obviously never sentenced for the crime that he committed. DNA evidence was collected after her rape twenty years ago, and was processed in 2008, as part of the Dallas Police Department Sexual Assault Cold Case Program, which focuses on cases that are too old to prosecute.

The results of the DNA evidence was entered into a national crime database and matched the profile of a Louisiana man who has been in and out of prison for burglary and other small offenses.  Under the new law, the DNA results will be attached to his criminal file maintained by the Texas Department of Public Safety.

Even though this Louisiana man will never be charged with the rape of Ms. Woods, some form of justice may be done. If this man should happen to find himself in trouble with the law in the future, and happens to be released on parole, this attachment to his file might impact his terms of parole, i.e. strengthening the terms by the Parole Board.

One opponent of the law, The ACLU, is concerned that it could punish suspects without the benefit of due process. After objections from the ACLU, the proposed law was revised to allow only law-enforcement agencies to access DNA information linking someone to an old sexual assault. The law also allows suspects to petition for removal of the information from their files if they believe it has been wrongly included. The ACLU of Texas does not support the legislation, however, it withdrew its formal opposition to the bill after the revision was made to limit the use of the evidence to old sexual assault cases.

In my opinion, I seem to be torn between the two proposed views of this law. On one hand, I feel as if this law allows a sense of justice to be served. Additionally, it also provides a sense of closure for the victims involved.

On the other hand, I feel as if this law does rob alleged suspects of the constitutionally protected right of due process. These alleged suspects do not have a means of defending themselves when there is a match in the computer database. The only thing that the law does allow is for suspects to petition for removal of the information from their files if they believe it has been wrongly included, but that does not sound like due-process to me. Additionally, there are cases where the opinions of the alleged suspect and the alleged victim are contradicting and even though there was DNA to put the alleged suspect at the scene with the alleged victim, what if it was not rape, the alleged suspect would still be tagged a rapist.

I believe that this new law is a step in the right direction, but it definitely needs to be refined to provide the alleged suspect with due-process of the law, which each and everyone of us would want and deserve.

Almost a Sex Crime: Lawyers and Clients

Above the Law has a post about whether attorneys should be allowed to have sex with their clients. The post mentions that California and Texas are considering banning sex with clients in most situations. The proposed language is very similar to Rule 1.8(j) of the ABA Model Rules of Professional Conduct provides that a "lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced." The Illinois Supreme Court has adopted this rule effective January 1, 2010. From Above the Law:

The California State Bar Association is considering a change to the professional rules of conduct to “prohibit sex with clients unless they are spouses or the relations preceded the lawyer-client relationship,” according to The Recorder. The Texas Supreme Court is suggesting the same type of thing in the Lone Star state, according to the Texas Lawyer.

The American Bar Association generally frowns on lawyers getting into their clients’ briefs. The argument against taking discovery to the bedroom is that sexy time undermines an attorney’s ability to give objective advice and to keep his or her interest from limiting that of the client.

On the other hand, regulating bed behavior potentially violates a lawyer’s privacy and the right to freedom of association.

ATL readers, we turn the debate over to you. Is it okay for lawyers to be their clients’ master debaters and masturbators? Moving beyond the theoretical, how many of you have actually had to grapple with this? Take our polls and hear some stories, after the jump.

When we write about lawyer-client sex here at ATL, it’s usually of the problematic variety. See the story of Stanford grad James Tipler, who made his clients pay their legal fees with sexual favors. Or the story of 72-year-old personal injury attorney Allen Isaac who wanted a blow job as part of his retention fee. Or the story of Washington state divorce lawyer Lowell Halverson who was disciplined by the Washington Supreme Court for repeatedly having affairs with his emotionally distraught clients.

Justice Department's SMART Case Law Update #29

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 #29:

U.S. v. Moran, 573 F.3d 1132 (11th Cir. 2009)

Moran had been convicted of a state-level sex offense against a 4 year-old girl in 1994. He was convicted of being a felon in possession of a firearm, and properly ordered to register as a sex offender as a condition of supervised release.

U.S. v. Pendleton, 2009 U.S. Dist. LEXIS 85347 (D. Del. Sept. 18, 2009)

Pendleton was convicted of two sex offenses: one in New Jersey in 1992, and one in Germany in 2006. He was deported to the United States as a result of his conviction in Germany and transferred his probation supervision to the State of Delaware, where he listed a particular ‘mail drop’ address as his resident address. He did not live at that address. With an interesting discussion of the authority of the SORNA final guidelines, the court held that “where a defendant uses an address as a mail drop and repeatedly holds that address out as his legal address, the defendant ‘resides’ at that address for the purposes of 42 U.S.C. §16913(a).”

Ex Parte Harbin, 2009 Tex. Crim. App. LEXIS 1206 (Sept. 16, 2009)

Harbin was convicted of four sex offenses in California, in 1988, 1994, 1995 and 1996. The Texas court held his two convictions for annoying or molesting a child (1994 & 1996) do not require registration in Texas. His other two convictions (lewd and lascivious acts with a child and sexual battery) will require registration.

Kansas v. Coman, 2009 Kan. App. LEXIS 823 (Aug. 28, 2009) (previously discussed here)

Even though bestiality was not an offense specifically listed as requiring registration, it was properly captured under Kansas’ catch-all provision as a “sexually motivated” offense requiring registration.

People v. Luansing, 176 Cal. App. 4th 676 (Aug. 11, 2009)

Where Luansing was convicted of oral copulation with a minor, it was a denial of equal protection to mandate sex offender registration, based on the decision in People v. Hofsheier, 129 P.3d 29 (2006).

People v. Nichols, 176 Cal. App. 4th 428 (2009)

Nichols was required to register as a sex offender and failed to update his resident address information, absconded from parole supervision, and his whereabouts were unknown for 8 months. He was appropriately sentenced to a three-strikes sentence, and it did not violate the 8th Amendment of the U.S. Constitution.

47 IQ, 100 Years in Prison

A teen with a 47 IQ was sentenced to 100 years in prison after pleading guilty in a sex abuse case involving his six-year old neighbor. From MSNBC

Aaron Hart, 18, of Paris, was arrested and charged after a neighbor found him fondling her stepson in September. The teen pleaded guilty to five counts, including aggravated sexual assault and indecency by contact, and a jury decided his punishment.

Lamar County Judge Eric Clifford decided to stack the sentences against Hart after jurors settled on two five-year terms and three 30-year terms, The Dallas Morning News reported Wednesday.

 

The judge said neither he nor jurors liked the idea of prison for Hart but they felt there was no other option.

Hart has an IQ of 47 and was diagnosed as mentally disabled as a child. He never learned to read or write and speaks unsteadily.

Despite being a target of bullies, he was courteous, well-behaved and earned money by doing chores for neighbors, supporters said. His parents say he'd never acted out sexually.

Jurors said they sent the judge notes during deliberations in February, asking about alternatives to prison, but didn't get a clear answer. They believed the judge would order concurrent sentences, jurors said.

District Attorney Gary Young said he sympathized with Hart's situation but stands by his decision to prosecute on five counts. Prosecutors commonly pursue several charges for a single incident to see which the jury will support.

Young said a diversion program was not an option since the law doesn't allow that for serious felonies.

Newspaper Article Examines Juvenile Sex Offender Registration in Texas

The Houston Chronicle is running an interesting article discussing Texas' problem with juvenile sex offenders.  Children as young as ten years old can be registered as sex offenders, a label which can last a decade. From the article:

Samantha Portwood is marking the days on her calendar until Sept. 30. That's the day her 24-year-old son's name and picture is expected to be removed from the state's sex offender registry.

For the past decade, her son Dale has lived under public scrutiny for a crime he committed when he was 12. He inappropriately touched a 7-year-old girl at his baby sitter's house and was charged with aggravated sexual assault. After completing two years of therapy and probation, he had to register as a sex offender, which shocked his parents.

Her son isn't alone. About 3,600 people on the state's registry were added as juveniles, according to the Texas Department of Public Safety, which administers the registry. Eleven were 10 years old when they registered.

The registry has 26 juveniles who are currently 13 to 16 years old, according to state records. Of the more than 340 juvenile registrants who live in Harris County, three are currently 16 years old, records show.

Many people are not aware that juveniles can be registered as sex offenders in Texas. State legislators made registration mandatory for adults and juveniles when they established the sex offender registry in 1991. Texas does not have a minimum age for juvenile registration, but the minimum age for prosecution is 10.

TX Law Bypasses Statute of Limitations For Old Sex Assualt Cases

The Wall Street Journal has an article about a new Texas law which allows prosecutors and parole boards to link DNA evidence to suspects in sex assault cases, despite the fact that the statute of limitations has expired and the suspect was never tried. From the article:

Supporters of the law, the first of its kind in the country, hope it means that suspects in those old cases will face more-vigorous prosecutions and sterner parole boards should they find themselves in trouble with the law again. Opponents say the law could rob suspects of due-process rights.

The new Texas law was conceived and championed by a small group of rape survivors who had joined a Dallas Police Department support group launched as part of the city's cold-case project. Reopening old cases also can reopen emotional wounds, and though the women were grateful the police were trying to identify their attackers, for many that wasn't enough.

The law has its critics. The American Civil Liberties Union is concerned that it could punish suspects without the benefit of due process. After objections from the ACLU, the proposed law was revised to allow only law-enforcement agencies to access DNA information linking someone to an old sexual assault. The law also allows suspects to petition for removal of the information from their files if they believe it has been wrongly included.

The ACLU still has concerns about how the information could be used. "This is something we will definitely be monitoring to make sure there aren't negative unintended consequences," said Rebecca Bernhardt, policy director of the Texas ACLU.

Texas Gov Vetoes Sex Offender Registry Reform Bill

Texas Governor (and potential seceder) Rick Perry vetoed a bill which would have given young sex offenders the opportunity to have their names removed from the state sex offender registry. From the El Paso Times:

Aaron Jernigan had just started college at age 18 and was planning a career as a music teacher when he met a girl at a party and his whole world changed.

Now 25, Jernigan finished a four-year prison sentence instead of a four-year degree.

He is trying to get on with his life, but a year out of prison he still cannot find work and has had to move twice because he will forever carry with him the black mark of a registered sex offender.

"I was pretty much just a regular old kid in high school," he said. "And they kinda threw away the key on me."

Last week, Gov. Rick Perry vetoed a bill that would have given people such as Jernigan the chance to try to have their names removed from the Texas sex offender registry. Perry said the measure approved by legislators failed to protect young victims.

For Jernigan and other sex offenders like him, who got involved with young people close to their own age, the veto was a disappointment and a setback.

If Texas is seeking to comply with SORNA, I'm not sure that this outcome wasn't inevitable. 

H/T: Sentencing Law & Policy.

Judge Kent Reports To Prison

Judge Samuel Kent entered a federal prison medical facility in Massachusetts beginning a 33-month sentence stemming from years of predatory sexual assaults on two federal courthouse employees.  From the Houston Chronicle:

Kent, the first federal judge to enter prison since 1991, has refused to immediately resign his post triggering rare House impeachment proceedings to remove him and cut off his $174,000 annual salary.

The House Judiciary Committee unanimously urged House action last week after graphic testimony about his sexual assaults from two victims, case manager Cathy McBroom, 50, and legal secretary Donna Wilkerson, 45.

Kent’s lawyer, Houston attorney Dick DeGuerin, told the Houston Chronicle on Monday that Congress was trying “to strip a United States district judge with eighteen years of honorable service of his hard-earned retirement and medical benefits because he's pled guilty to lying about his relationship with his long-time personal secretary.”

DeGuerin said lawmakers wanted to “publicly posture while spending more taxpayer money on the impeachment process than the cost of allowing Judge Kent his retirement and medical benefits.”

Terry W. Yates, who serves as Wilkerson’s attorney, said “while Sam Kent's imprisonment does bring some closure to Donna Wilkerson, it does not come with vindication, but instead, with a sense of sadness at the human tragedy that his life has become.”

H/T: Sentencing Law & Policy.

House Impeaches Judge Kent

Former federal judge Samuel Kent was impeached in the House by a 389-0 vote. The Senate is expected to convene a trial in the next few weeks. You can view our earlier coverage of Judge Kent here and here. Sentencing Law & Policy, How Appealing, and the ABA Journal have more. You may view the actual impeachment resolution here. From the ABA Journal:

Not a single representative spoke on the imprisoned jurist's behalf, and the vote on the first of four articles of impeachment was 389-0, reports the Houston Chronicle. All four were swiftly approved in roll call votes that took only 30 minutes to complete.

The charges accuse the Texas-based judge of abusing his power by sexually assaulting two female court workers and lying about his conduct to authorities.

It is the first time since 1989 that a federal judge has been impeached. A speedy Senate trial is now expected, and could begin next month.

As detailed in earlier ABAJournal.com posts, the 59-year-old Kent pleaded guilty in February to obstruction of justice in a matter related to his admitted nonconsensual sexual conduct concerning the two court workers. He began serving his 33-month sentence on Monday, at a prison medical facility in Ayer, Mass.

“This is the first time a federal judge has been convicted of a felony, has reported to prison and has still not resigned from his office. This shows how deep Judge Kent’s audacity truly runs,” Goodlatte said.

House Judiciary Committee Recommends Impeaching Judge Kent

ABA Journal reports that a House Judiciary Committee has referred four articles of impeachment against U.S. District Judge Samuel Kent based on allegations of sexual misconduct. Earlier Kent coverage is available here. From the ABA Journal:

A House Judiciary Committee task force has taken a first step that could lead to the impeachment of U.S. District Judge Sam Kent based on accusations of sexual misconduct and false statements about his actions.

Kent has been sentenced to 33 months in prison following his guilty plea for obstruction of justice.

The panel referred four articles of impeachment against the Galveston, Texas, judge to the full House Judiciary Committee, according to the Houston Chronicle and the Galveston County Daily News. The Chronicle describes the vote as “a hurry-up bid” to stop Kent from collecting a judicial paycheck before he reports to prison on June 15.

Kent has submitted his resignation—but it won’t take effect until June 1, 2010, a move designed to allow him to continue to collect his $174,000 annual salary and health benefits in the meantime.

Kent had entered the guilty plea to obstruction as part of a plea bargain in which he admitted to nonconsensual sexual contact with two court employees. The first two articles of impeachment refer to the sexual misconduct and the second two refer to false statements made to federal appeals court investigators.