April 24, 2014

CA Supreme Court Decision Allows Sex Offenders in OC Parks

4-24-2014 California:

About 30 cities statewide, including 15 in Orange County, had passed sex-offender laws that are now invalidated by the Supreme Court’s action.

A decision made by the California Supreme Court Wednesday will, as a result, allow sex offenders to frequent parks and beaches across the state, including in Orange County.

The California Supreme Court declined to review a lower court's ruling that had struck down on laws that regulated sex offenders in Orange County.

"We're obviously disappointed that the California Supreme Court denied certification to hear this case," Orange County district attorney spokesperson Susan Kang Schroeder said.

"Predator bans" in Orange County had made it a crime for registered sex offenders to be in public parks, whether or not they had done something criminal.

"To us it was a no-brainer, to keep sex offenders away from children. Right now as the law states, unless they're on probation or parole, even if they have molested hundreds of children, they can still go in to parks," Schroeder said.

The Supreme Court decision Wednesday means that the local bans in dozens of California communities are trumped by state law and invalidated, as the 4th District Court of Appeal found in January.

About 30 cities statewide, including 15 in Orange County, had passed sex-offender laws that are now invalidated by the Supreme Court’s action.

"It concerns us," parent Vanessa Butt said. "As parents we want our kids to be safe. And It's scary that we have to constantly watch our kids."

In 2011, Orange County banned sex offenders from parks and beaches unless they had written permission from the sheriff.

But in 2012, a county court overturned the misdemeanor conviction of a sex offender, Hugo Godinez, for going to a company picnic at a Fountain Valley park and asked the appeals court to rule on the case and the legality of the regulations.

The appeals judges found that the rule conflicts with laws passed by the state that already provide a "comprehensive statutory scheme regulating the daily life of sex offenders." ..Source.. by Samia Khan and Beverly White

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April 23, 2014

Santa Maria attorney files sex offender lawsuit against Lompoc

4-23-2014 California:

A Santa Maria attorney has filed a complaint in federal district court on behalf of a Grover Beach resident against the city of Lompoc over a sex offender ordinance the city adopted, claiming it violates both the federal and state constitutions.

Attorney Janice Bellucci, who also serves as president of the California chapter of the nonprofit organization Reform Sex Offender Laws, filed the complaint on behalf of registered sex offender Frank Lindsay, 61, who serves as a board member for the chapter.

In 1979 Lindsay was convicted of lewd and lascivious acts with a child under 14, according to the State of California Department of Justice, Megan’s Law Sex Offender Database. He has no other subsequent felonies within the state of California according to the database.

“We filed the lawsuit because we are protecting the constitution,” Bellucci said.

The ordinance includes restrictions for registered citizens prohibiting them from being within 300 feet of schools, parks, public libraries, school bus stops and playgrounds.

Sex offenders who violate the ordinance are subject to punishment including incarceration up to one year and a fine of up to $1,000 for each day of violation, according to Bellucci.

“The Lompoc ordinance was adopted by the city on June 1, 2012. It violates the First Amendment, the Fifth Amendment and the 14th Amendment to the constitution,” Bellucci said.

“Our hope is that the city of Lompoc will repeal their ordinance,” she added. ..Source.. by Staff report

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Justices allow limited restitution for child porn victims

4-23-2014 Washington DC:

The Supreme Court on Wednesday made it somewhat easier for victims of online child porn to recover limited financial restitution from some of those who download their images.

The majority in the 5-4 ruling concluded that lower courts could use discretion in continuing to award damages, but restitution should be based on certain criteria.

Awards should be tied to the "proximate" harm inflicted by the sexual predator and those who later view the resulting pictures onlline.

The case involves "Amy Unknown," an unwilling if ubiquitous presence in one digital cave for more than 15 years.

Images of her childhood rape, sexual abuse, and other criminal acts at the hands of a relative have been widely distributed in the underground world of Internet child pornography.

"Of course the victim should someday collect restitution for all her child pornography losses," said Justice Anthony Kennedy. "But it makes sense to spread payment among a larger number of offenders in amounts more closely in proportion to their respective causal roles and their own circumstances so that more are made aware, through the concrete mechanism of restitution, of the impact of child-pornography possession on victims."

The case tested the interpretation and limits of a federal law designed to help those victims.

At issue was the level of proof -- or causal relationship -- prosecutors must show between the defendant's conduct and the victim's harm.

Lower courts have struggled to determine what share of damages should be paid in individual cases. ..Source.. by Bill Mears, CNN

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Can man be kept on sex offender list for life? SC Supreme Court to consider case

4-23-2014 South Carolina:

COLUMBIA, SC — The S.C. Supreme Court said Wednesday it will consider a case involving whether a man can be kept on South Carolina’s public sex offender registry for life.

In its two-page opinion granting a hearing, the high court reversed a decision by the S.C. Court of Appeals that in effect kept John Christopher Johnson on the sex offender registry for life.

Johnson won a 2011 circuit court decision in Florence County, where Judge William Seals noted that in Johnson’s case, “the requirements of life long Sex Offender Registry (are) wildly disproportionate to the underlying conduct.”

In his ruling, that judge also noted that the purpose of the sex offender registry is “to protect the public from sexual offenders who may re-offend” and he concluded that Johnson was not a candidate to re-offend.

The exact circumstances of Johnson’s case could not be readily ascertained Wednesday from available legal papers. Johnson’s lawyer, Elise Crosby, of Georgetown, could not be reached.

People on the sex offender list include child molesters, serial rapists and older teenagers who have consensual sex with a teen under the age of 16.

The case stems from a 2003 plea Johnson made in criminal court, when he pleaded guilty to committing a lewd act on “a child under the age of sixteen,” according to available court records.

He was sentenced to 10 years in prison, suspended upon serving 100 days in jail and two years’ probation. He was also required to register as a sex offender.

After finishing his probation, Johnson learned he was required to register as a sex offender for life, legal papers say.

In 2009, Johnson began a series of court actions, seeking to be removed from the lifelong status of a sex offender. ..Source.. by JOHN MONK

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April 22, 2014

Depositions taken in sex offender ordinance lawsuit

4-22-2014 Massachusetts:

Attorneys were in City Hall last week taking depositions in regards to a two-year-old lawsuit filed on behalf of area sex offenders by the American Civil Liberties Union.

“The City of Lynn has decided to depose some of the people involved,” said Miriam Mack with the ACLU. “We are still in the discovery phase.”

In April 2012 the ACLU filed a lawsuit against the city, challenging the legality of the city’s sex offender ordinance. The ordinance prohibits anyone deemed a Level 2 or Level 3 sex offender from living within 1,000 feet of a school, park or private or public recreational facility.

Level 3 sex offenders are convicted felons considered at high risk to re-offend. Level 2 offenders are considered a moderate risk to society.

Attorney John Kiernan, representing the city, confirmed there were depositions going on but said the suit is in a bit of a holding pattern. That might soon change, however.

Kiernan said he is anticipating a request for summary judgement will be filed in the very near future. A summary judgment is when a case is heard and judgment issued on the merits of the entire case without a full trial.

Mack said both sides are still gathering information, but there are some motions that the ACLU may bring forth on what she called “pure legal issues.”

Prior to the suit even being filed, Mayor Judith Flanagan Kennedy said she didn’t think the ordinance would hold up in court, based on pure legal issues. She called the ordinance too broad and even a preliminary projection made her wonder if there is anywhere in the city where an offender can live without violating the city’s ordinance. She also suggested that the city take a closer look into the specifics of what a more practical ordinance might look like.

Then-City Council President Tim Phelan called the ordinance “common sense” and said the ACLU’s argument was an example of political correctness going too far.

What a judge might say remains to be seen, and Mack declined to speculate as to when the ACLU might be ready for court.

“The purpose is to have the most information that we can, it’s the same for the city,” she said. “I can’t put a timeline on how long that might take.” ..Source.. by Chris Stevens

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US Supreme Court rules against area man in child porn case

4-22-2014 Ohio, Washington DC:

The U.S. Supreme Court rejected an appeal Monday from a Madison County man who claimed police violated the Fourth Amendment when they discovered more than 170,000 images of child pornography on his personal computer.

By doing so, the justices upheld an eight-year prison sentence of Donald Lemasters of London.

A state court of appeals last year ruled that while the Fourth Amendment protects Americans against unreasonable search and seizure, Lemasters had no reasonable expectation of privacy when he downloads information or photos from a subscriber.

The justices did not make any comment, but simply refused to hear Lemasters’ appeal. Lemasters pleaded no contest in 2012 to charges that he downloaded photos of nude children, with some involved in sexual acts. There was no evidence that Lemasters took any of the photos himself.

In 2011, a detective with a task force that investigates use of child pornography photos in the area asked a judge for an investigative subpoena to determine the user of an IP address suspected of downloading children’s pornography.

After learning the IP address belonged to Lemasters, Madison County sheriff officers obtained a search warrant and discovered the images on Lemasters’ computer and DVDs he had made from the images he downloaded.

In a separate case from Ohio, the justices vacated a ruling last year by the Ohio Supreme Court that upheld a 10-year mandatory sentence of David Willan of Akron for mortgage and securities violations.

The justices ruled that the state’s high court needed to consider a 2013 U.S. Supreme Court decision that a mandatory sentence needs to be considered by a jury before it can be imposed.

Andrea Whitaker, an attorney for Willan, said the ruling by the U.S. Supreme Court could lead to a much shorter sentence for Willan. ..Source.. by Jack Torry

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Court urges rewrite of state's child porn law

4-21-2014 New Mexico:

New Mexico’s highest court on Monday overturned more than two dozen convictions in separate child pornography cases in a ruling that drew sharp criticism from Republican Gov. Susana Martinez, a former prosecutor.

The state Supreme Court said the defendants can be charged with only one felony count of possessing child pornography despite having many pornographic images of children.

Martinez spokesman Enrique Knell said the ruling “will place children at risk.”

“Hundreds of children, including infants, can be repeatedly abused and exploited by these predators, with images and videos preserved on a single computer, and prosecutors should have the ability to charge those individuals with multiple crimes,” Knell said in a statement. “This decision allows predators to victimize kids over and over again, for an extended period of time, without fear of additional jail time.”

The court said state law is unclear about the circumstances under which prosecutors can bring more than one charge against someone for possessing multiple pornographic images of children.

In its 4-1 decision, the court recommended the Legislature rewrite the law against possession of child pornography.

Rick Tedrow, president of the New Mexico District Attorneys Association, said the ruling was a “major setback to the prosecution” of child pornography possession cases.

“In an era where such disturbing materials can be shared easily via digital Internet, it has been our goal to enforce punishment and to protect minor children,” said Tedrow, district attorney for San Juan County.

He said it’s unclear how the ruling will affect previously prosecuted cases in which offenders have been sentenced.

Tedrow said district attorneys will meet with Attorney General Gary King and law enforcement to consider how to handle cases until a change in law can be proposed to the Legislature next year.

The court, in separate cases from the Clovis area, said James Michael Olsson and William Ballard can each be charged with only one count of possession of child pornography.

Olsson pleaded guilty to six counts after initially being charged in 2005 with 60 counts and later having that increased to 152 counts. He was sentenced to eight years in prison. Authorities said he had photographs in three binders and images on a computer.

A jury convicted Ballard of 25 counts of child pornography possession in 2009, but the Court of Appeals later reduced the convictions to five counts. He had video files and digital photographs on a computer’s external hard drive, authorities said. Ballard was sentenced to 37 years in prison, with all but nine years suspended.

Possession of child pornography is a fourth-degree felony, with convictions carrying a sentence of up to 18 months in prison.

The court’s majority said state law doesn’t clearly indicate the “unit of prosecution,” such as whether there’s a separate violation of the law for possessing each individual pornographic photograph or digital image of a child in a prohibited sex act.

Because state law is “insurmountably ambiguous,” the court said it was applying the “rule of lenity” to decide the cases in favor of the two men and conclude that they could be charged with only one count of the crime — each count covering all of their pornographic images.

The justices recommended the Legislature change the law to reflect modern advances in technology that allow the electronic storage of large amounts of data and images.

The Court of Appeals had reduced Ballard’s convictions to five — one for each time he used his computer to download pornographic video clips and photographs of children. The state Supreme Court rejected that reasoning, however.

Justice Edward Chavez disagreed with the court’s majority decision and outlined his view of when prosecutors could bring multiple charges. ..Source.. by Barry Massey

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April 21, 2014

Appeals court rules against sex offender

See also: Appeals Court: Victims Can See Fla. Sex Offender's Plea Deal Discussion
4-21-2014 Florida:

Attorneys for underage victims seek to overturn ‘sweetheart plea.’

Underage victims of billionaire sex offender Jeffrey Epstein are entitled to correspondence between federal prosecutors and Epstein’s attorneys related to his sweetheart plea deal, a federal appeals court ruled Friday.

This is one more step in the fight by victims’ attorneys Brad Edwards and Paul Cassell to overturn the secret deal, which saved Epstein from facing serious federal charges and serving significant prison time.

If Epstein had been found guilty on federal charges, statutory penalties ranged from 10 years to life in prison.

Instead, the sealed pact was part and parcel of Epstein’s acceptance of a state plea deal. Epstein pleaded guilty to soliciting a minor for prostitution and soliciting prostitution. He received an 18-month sentence, in a vacant wing of the Palm Beach County Stockade, and was let out on work release six days a week for up to 16 hours a day.

Edwards and Cassell represent Jane Doe No. 1 and Jane Doe No. 2, who say the U.S. Attorney’s Office violated the Crime Victims’ Rights Act by signing the federal non-prosecution agreement in 2007 without notifying the victims. Their case is pending in U.S. District Court in West Palm Beach.

The 24-page published opinion says U.S. District Judge Kenneth Marra did not err in his June 2013 ruling, when he ordered the correspondence turned over to the victims.

'‘Sweetheart plea’

“We’re now going to get a complete picture of the negotiations that led to this sweetheart plea arrangement,” said Cassell, a former federal judge. “We think it will show the part of the discussion to keep the victims in the dark about what was happening. If that’s what the correspondence shows, we’ll use that as part of our argument for throwing out the plea.”

Cassell said he anticipates that 500 pages of correspondence should be released early this week.

The opinion by the three-judge panel ruled against Epstein’s arguments that the correspondence was protected by an attorney’s work-product privilege. The court says privilege was waived when attorneys voluntarily sent the correspondence to federal prosecutors during negotiations.

“Disclosure of work-product materials to an adversary waives the work-product privilege,” the ruling says.

The ruling also dismissed Epstein’s claims that a federal rule of evidence protects his plea correspondence. That rule applies only to defendants who withdraw a guilty plea. Because he pleaded guilty, that doesn’t apply, the ruling says.

“While respectful of the panel’s decision, given issues of overriding importance to the criminal justice system regarding the need for continued confidentiality for communications between defense lawyers and prosecutors, we will be petitioning the court of appeals for further review,” said Boston based attorney Martin Weinberg, who represents Epstein.

The U.S. Attorney’s Office failed to notify victims prior to striking a non-prosecution agreement with Epstein on Sept. 24, 2007, and didn’t tell them of the agreement’s existence for at least nine months, the ruling says.

On June 27, 2008, the U.S. Attorney’s Office told the victims that Epstein planned to plead guilty to state charges three days later. But federal prosecutors failed to disclose that his pleas to the state charges arose from his federal non-prosecution agreement and would bar federal charges.

Jane Does No. 1 and No. 2, who were, respectively, 12 and 13 at the time they were victimized,received confidential monetary settlements in civil cases.

They are among more than two dozen underage girls who filed lawsuits or settled claims against Epstein. All alleged they were lured to his Palm Beach mansion to give him sexually charged massages and/or sex in exchange for money.

“A well-connected billionaire got away with molesting many girls,” Edwards said. “These girls should at least know how and why he was able to get away with these crimes. This ruling will allow us access to the documents that will provide insight into how that happened. I suspect that the answers revealed by these documents will ultimately allow us to invalidate that agreement and permit prosecution of Mr. Epstein.” ..Source.. by Michele Dargan

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April 18, 2014

Judge rejects Steven Powell's request for state-paid sex offender treatment

4-18-2014 Washington:

Steven Powell's request to have the taxpayers pick up the tab for his court-ordered sex offender treatment was rejected Friday, in no small part because Powell conceded in court that his argument was flawed.

Judge Ronald Culpepper denied Powell's request during a quick hearing in Pierce County Superior Court.

Culpepper said it was clear, as had been argued by the state Attorney General's Office, that Powell had cited the wrong statute when he filed a motion April 2 requesting that the state pay for his treatment.

That law requires the state to provide in-custody treatment to defendants sentenced under a particular scheme. Powell, though, was not sentenced under that scheme
.

"I don't think that applies to you," Culpepper said.

Powell, who was released from prison late last month after serving 30 months for voyeurism, agreed.

"When I got out of prison, I was in a very limited sphere of contact, and I was not able to go to the law library," he said. "I concede the argument."

In his written motion that set up Friday's hearing, Powell said he should have received sex offender treatment while he was locked up and that state Department of Corrections officials made a mistake by not enrolling him in the program.

It was only right for the state to pay for the treatment now that he's out, Powell said in his motion.

Having lost that argument, Powell on Friday asked that some language be added to the order denying his request. He specifically wanted a notation that the state Department of Corrections had found him not amenable to treatment while he was incarcerated.

Culpepper declined to add the language after assistant state attorney general John Samson objected.

A Pierce County jury in 2012 convicted Powell of multiple counts of voyeurism. Prosecutors argued he surreptitiously photographed two school-age neighbor girls as they bathed and used the toilet in their home.

Evidence used to convict him was uncovered by detectives searching for clues in the disappearance and presumed murder of Powell's daughter-in-law, Puyallup native Susan Cox Powell.

She went missing from her Utah home in 2009, and authorities were investigating her husband, Josh Powell, when they searched his father's home.

Josh Powell, who moved to Pierce County after his wife's disappearance, killed himself and his and Susan Cox Powell's two young sons in February 2012. ..Source.. by ADAM LYNN

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