5-20-2-13 Florida, National:
Kaitlyn Hunt could be forced to register as a sex offender and face up to 15 years in jail in Florida, where the age of consent is 18. Hunt's family is desperate to get the charges dropped and say the unnamed girl's family is out to ruin Kaitlyn because of her sexual preference.
A female 18-year-old was arrested on two felony charges for her same-sex relationship with a 15-year-old classmate and expelled from high school, and now her family wants the charges dropped as she faces life as a convicted sex offender.
Kaitlyn Hunt of Palm Bay, Florida is charged with two counts of lewd and lascivious battery on a child ages 12 to 16 for having an ‘intimate’ relationship with the unnamed girl.
Hunt and the girl began dating at the start of the school year while Hunt . They played on the basketball team together and Hunt’s mother, Kelley Hunt-Smith says that both she and the girl’s parents knew about the relationship.
But then Hunt turned 18 and, according to Hunt-Smith, the girl’s family decided to press charges against Hunt for her ‘intimate’ relationship with their 15-year-old daughter. In Florida, the age of consent is 18.
First, says Hunt’s father Steven, Kaitlyn was dropped from the basketball team because of her relationship. Then, on February 16, Hunt was arrested at her family’s home for ‘lewd and lascivious battery.’ The girl’s parents also petitioned to have Hunt expelled from school.
At first they were unsuccessful, but eventually Hunt sent to a separate school.
‘After two separate judges ruled that Kaitlyn could finish her senior year with her peers, her girlfriend's parents appealed to the Indian River County School Board, who expelled Kaitlyn sent her to the alternative school,’ writes Hunt-Smith in a Facebook post.
Hunt remains allowed to officially graduate with her Sebastian River High School classmates, however.
Hunt has been offered a plea deal from the Florida state’s attorney’s office. If she takes it, she'll receive two years of house arrest and a year probation.
Without the deal, Florida law says Hunt could receive 15 years in jail and must register as a sex offender.
All, says Hunt’s mother, because of her daughter’s ‘mutual consenting relationship.’
‘They are out to destroy my daughter,’ Hunt Smith told the Examiner. ‘They feel like she “made” their daughter gay. They see being gay as wrong and they blame my daughter. Of course, I see it 100% differently. I don’t see or label these girls as gay. They are teenagers in high school experimenting with their sexuality – with mutual consent. And even if their daughter is gay, who cares? She is still their daughter.’ ...continued... by Daily Mail Reporter
Monday, May 20, 2013
Girl, 18, slapped with two felony charges and expulsion for same-sex relationship with 15-year-old classmate
5-20-2-13 Florida, National:
Saturday, May 18, 2013
5-18-2013 Washington DC:
WASHINGTON – The federal government has sharply scaled back a controversial effort to keep dangerous sexual predators in prison past their sentences after losing more than half the detention cases it filed.
The U.S. Justice Department has said its program is critical for protecting the public, but it has been beset by problems since it began seven years ago. Most of its attempts to keep accused predators locked up have failed. Along the way, it kept dozens of men in prison for years without a hearing, relied on medical determinations that proved faulty and faced a succession of legal battles over whether it even has the power to keep people locked up indefinitely.
Even as courts are increasingly signing off on that power, prosecutors are using it far less.
Neither prosecutors nor prison officials could explain why that pace has slowed. Lawyers for some of the detainees say the government appears to be focused on bringing stronger cases it's more likely to win. "They're being much more careful in the cases they're certifying," said William Webb, a Raleigh lawyer who represents several of them.
In the first two years of the program, which began in 2006, court records show the U.S. Justice Department asked judges for permission to keep 86 men locked up after prison psychologists concluded they were too dangerous and mentally ill to safely be released. In the past year, it has tried to detain only nine, including one man prosecutors had previously tried and failed to keep in prison.
Justice Department lawyers anticipate filing more cases soon. Thomas G. Walker, the U.S. attorney in Raleigh, N.C., where nearly all of the cases are filed, said he expects "a steady flow of new cases," probably totaling 15 to 20 a year — still less than half the pace when the program began.
Ed Ross, a spokesman for the federal Bureau of Prisons, whose psychologists and lawyers make the initial decision about which prisoners should be detained, said he "can't speculate as to why the numbers have declined." He said the agency has not changed the way it makes those decisions, though he said the process is guided in part by federal court opinions clarifying the diagnoses and evidence that the law requires.
The detention effort targets the most dangerous and mentally ill among the thousands of convicted sex offenders serving time in federal prison. It allows prosecutors to seek a court order that will keep them in prison until psychologists or a judge decides it's safe to let them out.
"This is a very serious matter, and you don't want to do this except in cases where it's crystal clear that it's necessary," said Fred Berlin, the director of the Sexual Behaviors Consultation Unit at the Johns Hopkins Hospital. "If we're going to do it, we have to be very careful about it. You don't want to just put people in a place where they stay indefinitely."
One recently filed case involves a man who had broken into a house and sexually assaulted a 7-year-old girl, who was sent to federal prison for an unrelated gun possession charge; another involves a man serving a five-year prison sentence for trying to lure someone he thought was a 13-year-old girl into a sexual relationship. Psychologists diagnosed both as pedophiles and concluded that both should remain in prison.
Defense lawyers said they find the case against Michael McBride particularly troubling. Prison officials certified that McBride was "sexually dangerous" in 2011, the first step in the legal process that leads to indefinite detention. Prosecutors dropped the case six months later and released him, in part because their own outside expert concluded that he didn't meet the legal requirement to be detained.
Three months after that, McBride was kicked out of a New Hampshire halfway house for yelling at staff members. That was enough for a judge to send McBride back to prison, where officials again decided that he should be detained, citing much of the same evidence they had relied on a year earlier.
"It really just illustrates that nobody knows what's going to happen to them, even if they get out," said Suzanne Little, a federal public defender in Raleigh.
Prison officials also are making a second attempt to recommit prisoner Frederick Springer, even though a judge concluded last year that he wasn't sufficiently dangerous to be detained under the law. The new case has not yet been filed.
Officials have acknowledged that the predator law has not worked out like they hoped. Since Congress approved the Adam Walsh Act, prosecutors have persuaded federal judges to commit only 51 of the 132 men whose cases have been resolved by federal courts. Seventy-two cases ended after judges found insufficient evidence or prosecutors dismissed their cases. Many of those decisions were the result of flimsy evidence or flawed psychological assessments. A handful of cases are pending.
The department's more recent cases have fared better; prosecutors win more than they lose. Courts have since untangled most of the legal delays that left detainees to wait years for a hearing. Walker said his lawyers have "worked diligently to move these matters to resolution," though he acknowledged "we have more work to do."
Court records and interviews suggest that some of the people the government has successfully committed have refused to participate in treatment. One has gone to court to complain that his condition "regressed" so badly since he was committed that officials put him on suicide watch. ..Source.. by Brad Heath, USA TODAY
Friday, May 17, 2013
I have always been fairly frank with my kids. I started the difficult conversations about things like sex, sexuality, drugs, and peer pressure when they were very young. As they grew older, the conversations evolved and I felt confident that they were comfortable talking to me. So, I patted myself on the back, thinking I'd done my job well.
Last year, though, I was blindsided when someone in my family was sentenced on charges of possession of sexually explicit material. This was a difficult conversation I never thought to have with my kids — a conversation about child pornography and sexual predators.
"Stranger Danger" Isn't Always From a Stranger
Sure, I taught my kids about "stranger danger" and I'd read stories about kids being charged with possession of sexually explicit materials as a result of sexting, but this was different. This was personal.
I had to explain to my two older kids why they wouldn't be having any more contact with their relative, and (thankfully) confirmed they hadn't been victimized in any way.
This was a conversation about someone they knew, loved, and trusted, which, as Circle of Moms member Barb S. points out, is the scary thing about this type of situation. Though her circumstance was a little different, she's right when she says, "He's not the creepy stranger danger that everyone fears will hurt their child."
Talking About the Circle of Trust
When you consider that the National Child Traumatic Stress Network reports that in three quarters of reported cases of sexual abuse involving a child, the perpetrator is a family member or someone in that child's "circle of trust," I can't imagine why I hadn't had this conversation with my kids sooner.
So, I sat down with my teenager and told her what was going on. I asked her flat out whether or not she'd been exposed to any inappropriate imagery or touched in an inappropriate way. I talked to my younger child about what child pornography is and how it exploits children. We talked about things we should have talked about a long time ago.
Why Didn't I Have the Tough Conversation Sooner?
Why hadn't I had this conversation before? To be honest, I was one of the people a member named Roberta refers to when she says, "You'd be surprised at how many people live with their head in the sand, always thinking it will never happen in 'their' family."
I didn't think my kids would ever come in contact with a sexual offender, despite knowing the odds. I was a better mother than that. I was naive. I was arrogant. I was wrong.
It was a very difficult conversation, but it was also a real eye-opener to me that these things can happen to anyone and kids need to know about this stuff so they feel comfortable talking to their parents.
Continuing the Conversation
It's been over a year now, and we've continued to have an ongoing dialogue about the issue. I've learned that my daughter has friends who were not so lucky to have their parents talk to them about sex offenders in their "circle of trust."
Not everybody in my family agrees with my decision to talk to my kids openly about this, but I'm glad I did. As Barb says, "This should never be kept a dirty little secret." ..Source..
Thursday, May 16, 2013
ST. LOUIS (CN) - A group of convicted sex offenders who fought back when Missouri tried to restrict what they could do on Halloween are not entitled to legal fees, the 8th Circuit ruled.
Under the 2008 Halloween Statute, Missouri said that every Oct. 31 all registered sex offenders would have to avoid "all Halloween-related contact with children," post a sign saying that there was no candy at their homes, and spend most of the night in their houses with the outside lights off.
Six individuals who had previously been convicted of sex offenses challenged the rules as unconstitutional, but the law was in force on Oct. 31, 3008, after the 8th Circuit tossed an injunction .
That year, Missouri charged Charles Raynor with violating the Halloween Statute, but a circuit court dismissed the charge because it found that the law violated the state's prohibition on retrospective laws since Raynor's conviction predated enactment of the Halloween Statute.
Later the Missouri Supreme Court considered Raynor's case with another sex offender named in the court documents as F.R.
The federal court stayed its consideration of the six offenders' case pending the conclusion of the state-court case. In January 2010, a majority of the Missouri Supreme Court concluded that the Halloween Statute violated the state Constitution as applied to Raynor.
Since enactment of the Halloween Statute also predated the convictions of any of the anonymous plaintiffs in the federal case, Missouri conceded that it would be unconstitutional to prosecute any of them, and the case was dismissed as moot.
The court ordered the John and Jane Does to bear the costs of the federal action, but found that they were entitled to about $22,000 iin attorneys' fees as prevailing parties.
A three-judge panel of the 8th Circuit affirmed dismissal but reversed the award of fees last week.
"The dismissal on mootness grounds in the instant case was not the result of the Does prevailing on the merits of any of their claims," Judge Roger Wollman wrote for the court. "Instead, it was the product of a voluntary change adopted by the officials' in the face of the Missouri Supreme Court's decision in F.R. Under these circumstances, the Does are not entitled to prevailing party status simply because the voluntary change in conduct is recognized in an order of dismissal."
Chief Judge William Jay Riley and Judge Michael Melloy joined the opinion. ..Source.. by JOE HARRIS
SEX offenders are seen by the community as the scum of the Earth. They are considered to be monsters, people who should be abandoned by the community, locked up for a very long time, placed on a sex offenders register and, if they are ever released, monitored for life.
Recently, we read in the Herald Sun that new technology will mean that these heinous offenders will have tracking devices attached to them, so if they're not in jail, "we" know where they are.
But is there a better way? Does placing someone's name on a sex offenders register protect the community? Does putting an ankle bracelet on someone make our children safer? Let's look at some facts.
The Victorian Law Reform Commission's 2011 report on the Sex Offenders Registration Scheme found that there is little evidence to suggest that registration schemes are an effective means of reducing child sexual abuse because they deter offending. In fact, the report found that most sex offences are committed by people with no previous convictions for offences of that type.
Importantly, the report found that details about people who might be potentially dangerous reoffenders sit alongside those of offenders who pose no risk of harm, with police and child protection authorities having no reasonable means of allocating risk ratings, and investigative resources, to particular offenders. Despite that, at the current rate of increase, there will be approximately 10,000 registrations by 2020.
No doubt the new, you-beaut, whiz-bang one-size-fits-all tracking scheme will also grow like topsy with, as the Herald Sun reports, sex offenders, arsonists and boozers being monitored 24/7. That should make us all feel safe - shouldn't it?
The reality is quite different. Recently in Indianapolis in the US the systems at a GPS tracking company crashed.
Believe it or not, police throughout the nation had to scramble and lock up 16,000 criminals until the problem was solved. And of course GPS monitoring relies on someone actually watching and understanding the signals being transmitted from the device. As critics of the system in Vancouver make clear, GPS monitoring does not alert corrections officers when an offender commits an offence, but merely indicates their location.
Again, I suspect, as with the registration scheme there will be no reasonable means of allocating risk and investigative resources. While the policy might, during a 24-hour news cycle, have the objective of making people think the Government is tough, and will make everyone safer from these deviants, it's not and it won't.
There is a better way, but it's hard and it involves the community not abandoning these people.
Circles of Support and Accountability, or CoSA, is a community-orientated, restorative justice-based reintegration program that assists people in their effort to re-enter society after a period of incarceration for a sexual offence. It exists in Nova Scotia, Canada as well as in some parts of the UK and USA.
A "circle" involves three to five trained volunteers from the community who commit themselves to forming a circle around, supporting and holding accountable the offender or "core member".
The circle meets regularly to facilitate the core member's practical needs such as access to medical services, assistance with housing and employment and providing emotional support. In return, the core member commits to open communication with the circle regarding his identified risk factors, problematic behaviour and day-to-day problems in an effort to end his offending and increase public safety.
The motto of CoSA is No more Victims: No one is Disposable. Early evaluations suggest that the approach works with massive reductions in recidivism, or reoffending rates, compared with offenders not involved in a "circle".
Yes, it's easy to dispose of people who commit crimes, but to do so places a big financial burden on all of us, and to what end? Crime rates rise while our prison population escalates and more money is spent on registers and tracking people.
If the community is serious about wanting to be safer and reducing crime, then surely we have to do more than just listen to the "tough on crime" rhetoric of our politicians. It's hard, but we have to get involved.
As a CoSA volunteer said: "I used to be like everyone else. I hated these guys. Then I met one. He's a human being. Once I understood that, I could not turn my back on him. I hate what he's done but if he's willing to do his part, I'm willing to be there to help him. I don't want there to be any more victims."
And shouldn't that be the bottom line? ..Source.. by Rob Hulls was Victoria's attorney-general and now is director of RMIT's Centre for Innovative Justice
5-16-2013 4th Circuit:
Danny Carter shocked colleagues when the Hampton, Virginia, jailer posted a picture of his boss’s opponent in the sheriff’s race on his Facebook page along with a link to the contender’s website.
The post, made almost four years ago because Carter clicked the “Like” button on the “Jim Adams for Hampton Sheriff” page, is now the subject of a federal appeals court argument over whether the U.S. Constitution’s First Amendment protects one-click, online endorsements of a person, idea or product.
A three-judge panel of the U.S. Court of Appeals in Richmond, Virginia, is set to hear today from lawyers for Carter and Facebook Inc. (FB) seeking to reverse a lower-court ruling that a Facebook “Like” isn’t protected speech, and that Carter, consequently, couldn’t bring a retaliation lawsuit after he was fired from the department.
“If the decision is allowed to stand, that would be very important in a negative sense,” Gregg Leslie, a lawyer at the Reporters Committee for Freedom of the Press, said in an interview. “When you say you like something just by clicking on it, it’s no different than saying ‘I agree with this position.’ It’s impossible to believe the Fourth Circuit won’t say that’s expression.”
Facebook, in a March 20 filing asking the appeals court for time to argue, said it has a “vital interest” in ensuring that speech on Facebook and other online communities “is afforded the same constitutional protection as speech in newspapers, on television and in the town square.”
Hitting the ‘Like” button on a candidate’s website or Facebook account is no different than putting up a front-yard campaign sign, which the U.S. Supreme Court held in 1994 was protected by the First Amendment, the Menlo Park, California-based company said in a separate filing.
Carter, 40, along with five other former government employees, sued Hampton Sheriff B.J. Roberts when they were fired from their jobs after Roberts won re-election in 2009. They claim Roberts retaliated against them for supporting Adams in violation of their rights to political affiliation and rights to speak as citizens on issues of public concern.
U.S. District Judge Raymond Jackson in Norfolk, Virginia, on April 24, 2012, dismissed the lawsuit, rejecting the plaintiffs’ First Amendment claims.
He ruled that simply liking a Facebook page didn’t amount to “a substantive statement” that warrants constitutional protection.
Jackson pointed out that two federal court decisions in 2011 holding that constitutional protections extended to Facebook involved actual statements posted on a user’s page.
“The court will not attempt to infer the actual content of Carter’s posts from one click of a button on Adams’s Facebook page,” Jackson, appointed by Democratic President Bill Clinton, wrote in his decision. “For the court to assume that the plaintiffs made some specific statement without evidence of such statements is improper.”
Jackson’s ruling was criticized by constitutional lawyers who said he ignored the fact that other protected speech on the Internet, such as uploading a video or donating money to a campaign, are done with one click of a button.
“You are expressing the relevance of a message and that’s good enough,” Eugene Volokh, a law professor at the University of California at Los Angeles, said in an interview.
Roberts said in a deposition that he doesn’t use Facebook, and found out about Carter’s Facebook support for Adams from someone else. He contends Carter and the other employees weren’t fired for their opposition to his campaign. Rather, they were let go for performance or other reasons.
Traditionally, the effect of the speech on the listener is what determines whether it’s protected, Marc Zwillinger, an Internet privacy and security expert, said in an interview.
In regards to Carter, Roberts “heard he liked another candidate so it wasn’t ambiguous to the sheriff,” Zwillinger said.
Robert McGee, a captain in the sheriff’s department, said in a deposition in the case that he and his colleagues were “basically shocked” that Carter’s photo appeared on Adams Facebook page as a supporter -- a result of having clicked the “Like” button.
Jeff Rosen, a lawyer for Roberts, said even if the court finds clicking “Like” to be protected speech, Carter can’t prove retaliation because his wife, who also works for the sheriff, wasn’t fired even though her picture appeared in Carter’s Facebook profile photo that posted to the opponent’s page. Facebook users can attach any photo or image as their profile picture and his included his wife.
“He has to prove that act was the predominant reason he wasn’t reappointed,” Rosen, of Pender & Coward PC in Virginia Beach, Virginia, said in an interview. “How can he do that when he also posted his wife’s picture.”
The case is Bland v. Roberts, 12-1671, U.S. Court of Appeals for the Fourth Circuit (Richmond). ..Source.. by Tom Schoenberg
BOISE -- This year marks the 20th year of Idaho's Sex Offender Registry, so KTVB looked at what's changed in those two decades and whether the registry is serving its intended purpose 'to protect communities'.
Since its creation and adoption in 1993, the registry has become more controversial, mostly for two reasons: The high level of public access to the information, and because every offender is listed, without classifications.
Changes in laws prompted changes in the registry
"Back then it was different. There was a different mentality, and it wasn't a big deal," Dawn Peck, Manger of ISP Bureau of Criminal Identification, said.
Peck has been involved with the registry since it began on July 1, 1993.
"At that time, it was just a little half page form that the offender filled out that said where they were living and what they were convicted of. And it was an honor system," Peck said.
Since then, a lot of changes have been made. In 1998, registration became mandatory for convictions for crimes from rape to enticing a child over the Internet. In 1998, there were around 1,800 registered offenders, and now there are nearly 4,000 registered offenders statewide. In the mid-2000s, ISP put every offender online, making it simple to find who's on the list and where they live.
"Back in the initial days of the registry and clear up until the late 2000s, [if you wanted information on an offender] you had to fill out a form and you had to give your address and your drivers license number to get the information," Peck explained.
Offender: 'I really feel that the system, other than the list, was good to me'
Larry Robinson lives with his wife outside of Boise. He's been on the registry since it began. He was registered because he was still under Corrections supervision (probation) when the list was created in 1993.
"You have this mark of Cain on your forehead and you just can't get away from it," Robinson said. "People from my church found that I was on that up here. I went out with this outdoor group for nine years. Somebody found I was on it, and boom, I was out of the group."
Robinson offended three decades ago. He admits sexually abusing a young female family member off and on for years.
"Aside from the fact that I am truly, completely repentant for my past deed, I don't want to get into the system again," Robinson said.
Robinson says jail time, treatment and religion changed him years ago, and his victim has forgiven him. But he says forever, his neighbors will know, and sometimes judge, him, by his old actions.
"I richly deserved to face my issues. I absolutely believe that the jail time was a good thing for me because it brought me to my knees, and that brought me to Jesus Christ," Robinson said. "[But] If you have a proven track record of socially and legally acceptable behavior, I don't believe that should go on indefinitely like it does."
ACLU: Registries punish people unconstitutionally
"Rather than have an assessment on the front end of whether or not they're going to reoffend, they just go into this blanket registry," ACLU of Idaho's Executive Director Monica Hopkins said.
The American Civil Liberties Union disagrees with having sex offender registries in general, and particularly disagrees with public registries with no differentiation of severity of crime. They say the registries deny offenders due process rights.
"You have everything from you know minor sex crimes to very egregious sex crimes and they all go in the same registry," Hopkins said. "Something that started as a regulatory thing so law enforcement could know where individuals were is now a punitive thing that lasts way beyond someone paying their debt to society back."
Prosecutors, police still use registry for enforcement and monitoring
"We use it quite frequently," Canyon County Prosecutor Bryan Taylor said. "The registry helps, but the registry only tells you where they're supposed to be. You need the boots on the street to actually enforce it and make that compliance."
Taylor's office has a unique set-up with an investigator in the office helping deputies track down non-compliant offenders and helping with prosecution.
"Over the last two years since we implemented this procedure, a lot of them now know that we're looking and watching and monitoring them, so they're becoming much more compliant than they had been in the past," Taylor said. "About two years ago, we had a number of failure to register cases, and now that number has dropped because people are actually being where they're supposed to be."
Does the registry prevent sexual abuse from happening?
While some justice experts believe the registry ups awareness, and cuts re-offending, many say it doesn't do much to curb first-time offenses. Critics say the amount of violent sexual crimes are as high or higher than before the registry. KTVB found forcible rape rates (accounting for population growth) in Idaho, for example, fell the first few years of the registry but haven't been that low again.
"That's what we need to focus on, is not just being aware of who an offender is, but let's really focus on how to not have a victim," Ada County Sheriff Gary Raney said.
Raney believes the registry responds well to the public demand for access to the information, especially after a north Idaho murder, kidnapping, and sexual abuse case shocked the state. The victims were strangers to now-convicted killer Joseph Duncan.
"I think the highlight was around the time of the Joseph Duncan offense in northern Idaho when everybody realized, you could be there, not doing anything. You're child's just fine and suddenly your world changes in a flash," Raney said. "That can happen, and I think the sex offender registry offers people just a little bit of comfort about knowing who their neighbors are."
Sheriff: Keeping a public registry is a balancing act
Raney says monitoring and awareness is likely the best deterrent to offenders from committing another abusive act, but says there is more to consider with the registry.
"On the flip side of it, there have been cases when this sort of vigilantism, if you will. Of people trying to push a sex offender out of the neighborhood. We know that research says when sex offenders are socially destabilized, they're actually more likely to recidivate, so we try to find the balance between the two," Raney said.
And while Raney says the registry points out who's been caught before and monitoring them helps prevent re-offending, he says the real concern needs to be on who's likely to really be a danger initially or again. For example, victims are much more likely to know their abuser, than not.
"That's the difference that I think is often misleading to people is who should we really be concerned about? Who just happens to be on the registry because of something in the past? We really need in the criminal justice system and in the legislature to be able to solve that and make a more clear distinction," Raney said.
Raney and the Idaho Sheriff's Association work with legislators on this very issue. In fact because of their work, this summer, you'll start seeing more changes to the registry statewide to increase public access. You'll be able to sign-up for notifications of when a particular offender moves -- or if someone moves into your neighborhood. ..Source.. by Jamie Grey
Wednesday, May 15, 2013
A Portage County trial court erred by not using Megan’s Law to classify a sexual offender, according to a recent 11th District Court of Appeals opinion.
Dale Brandon was indicted in 2007 on one count of gross sexual imposition and one count of attempted rape with an attempted child rape specification. He pleaded guilty to gross sexual imposition, but then later filed a motion to vacate the plea.
After he failed to appear for a January 2009 hearing, a warrant was issued for Brandon’s arrest, according to court records. He was found in Las Vegas, where he was held pending extradition.
Before being extradited, Brandon filed a pro se motion to withdraw his guilty plea. The appellant showed up with counsel to an August 2009 hearing. The trial court, which had previously overruled the pro se motion, proceeded to sentencing
Brandon appealed the judgment, and the 11th District remanded the issue for a proper hearing on his motion to vacate.
On remand, the trial court granted the motion to vacate in February 2011. Brandon then entered an Alford Plea to one gross sexual imposition count and one count of failure to appear. He was sentenced to four years in prison and classified a Tier II sexual offender, pursuant to Senate Bill 10, which went into effect on Jan. 1, 2008.
Brandon argued the trial court was required to instead have classified him pursuant to Senate Bill 5, or Ohio’s Megan’s Law, the classification scheme that existed at the time of the offense.
In Brandon’s case, the sexual offense occurred on July 29, 2007.
“Because appellant committed his offense before Senate Bill 10s effective date of Jan. 1, 2009, the trial court erred in applying Senate Bill 10 to him,” 11th District Judge Timothy P. Cannon wrote in a 3-0 opinion.
The appellate court also found merit in Brandon’s other assignment of error - that the lower court failed to award him credit for time spent in a Nevada jail awaiting extradition on the underlying charges.
Cannon pointed out that the 11th District previously held in State v. Painter (No. 2009-A-0016, 2009-Ohio-4929), that a defendant is entitled to credit for time spent awaiting extradition. The state has the burden to establish a defendant is not entitled to credit.
“In this matter, the trial court expressly declined to award credit for the 13 days appellant was awaiting extradition in Nevada,” Cannon stated. “From the bench, the court observed: `We can’t credit you out of state time, that’s the whole problem, that’s why you don’t get credit. That’s dead time when you’re held in Vegas.’
“Pursuant to Painter, the trial court erred when it concluded it was without authority to give credit for out-of-state time served. We therefore reverse the trial court’s judgment on this issue and remand the matter to the trial court for the purpose of determining whether applicant’s confinement in Nevada arose from the Ohio offense and, if so, to recalculate appellant’s sentence in light of the jail-time credit to which he would be entitled.”
Appellate judges Cynthia Westcott Rice and Colleen Mary O’Toole concurred.
The case, cited State v. Brandon, No. 2012-P-0016, was posted April 29. ..Source.. by TRACEY BLAIR, Legal News Reporter
A judge has ruled not all areas of Bell's Point Campground should be considered a 'public park', dismissing charges against a convicted sex offender who admitted to staying at the campground last summer.
“It's a satisfactory conclusion to a difficult matter,” said Eric McCooeye, the man's lawyer.
William Ayotte, 43, pleaded not-guilty at a trial in March where he was accused to breaching a court order imposed in 2008 after he was convicted of sex offences involving two 13-year-old girls.
Ayotte was prohibited from, among other places, “a public park or swimming area where persons under the age of 16 years are present or can reasonably be expected to be present.”
While Ayotte acknowledged staying at the campground, which is owned by Garden River First Nation, he told the court in March that he remained at his campsite and only went to the water to launch his boat and go for a ride. He testified he never was in the playground or swimming area and took along a portable toilet so he wouldn't have to use the campground's communal toilets or showers.
Ontario Court Justice Melanie Dunn found, in a written decision released Wednesday, that Ayotte did not breach the order because he did not attend the playground or swimming area at Bell's Point. She said those areas would be public parks and public swimming areas, as described in the order, but noted Ayotte confined himself to his campsite.
“One cannot reasonably expect children to wander upon their personal campsite. One can expect other persons to remain off of their site. It is akin to a motel or hotel room,” Dunn wrote.
Earlier in her decision, Dunn pointed out that swimmers are not allowed at the boat launch, which is separate from the swimming area at Bell's Point, due to safety concerns.
“However desirable it may be to keep those convicted of sexual offences against children from all public places where persons under a specified age may be nearby such as hotels, malls or even grocery stores, that is not what Parliament intended when drafting section 161,” Dunn wrote. ..Source.. by Michael Purvis
Tuesday, May 14, 2013
Child molester doesn't have to buy Upper Milford property from the victim's parents.
A Lehigh County couple who say a neighbor who admitted molesting their child should be forced to buy their property apparently won't get their wish.
County Judge Michele A. Varricchio has shot down the Upper Milford Township couple's unusual request that sex offender Oliver Larry Beck be required to purchase their $235,000 property, according to court records.
Varricchio issued the order last week, explaining that forcing a sex offender to buy the home of a victim living in his neighborhood would "open the proverbial floodgates."
"This court finds it against public policy to require a defendant to purchase a plaintiff's property in a nuisance case," Varricchio wrote.
The judge added that ordering the home purchase would "impose almost limitless liability on a property owner by every other neighbor who claims difficulty selling his or her property, regardless of the proximity to the alleged nuisance."
Varricchio was ruling on preliminary objections in a lawsuit filed against Beck, along with Beck's wife and mother.
The couple whose daughter was molested by Beck filed the suit in December asking a judge to order Beck to buy their home and pay for the child's pain and suffering and for other damages. They claim the property is virtually unmarketable.
The victim's parents, identified only by their initials in court records, are seeking in excess of $350,000 for the home, for moving expenses and damages.
They still are eligible to seek damages for their child's suffering and for the loss in value of their property, although Varricchio said they are not entitled to be paid for the total value of the property.
Varricchio's order says that that the victim's family should amend the lawsuit to provide details and proof of the loss in the value of their property.
"There is no doubt that the parents have a right to enjoy their own residence and property without the invasion and interference caused by [Beck]," Varricchio wrote. "Property rights are protected by the United States Constitution, but the equal protection clause affords both plaintiffs and defendants that protection."
Diane Sodano, the Bucks County attorney who filed the suit, said she couldn't comment on the order because the case is ongoing. She was unable to say whether her clients would eventually appeal any of the judge's ruling.
There is some scientific evidence that sex offenders lower property values.
Two economics professors at Columbia Business School in 2008 studied the effect, finding that the value of homes within one-tenth of a mile of a sex offender dropped by an average of 4 percent.
The suit accuses Beck of sexual assault, infliction of emotional distress, fraud and negligence, among other claims. It also names as defendants Beck's wife and mother, claiming both knew or should have known of Beck's attraction to young children.
Beck, now 65, pleaded guilty in 2011 to indecent assault of a child under 13 and served time in prison. He is out of prison, but under Megan's Law must register as a sex offender for the rest of his life.
Investigators said that in February 2011, Beck lured the victim, then 7 years old, into his house by saying he wanted to show her a bear's head mounted in his basement. After telling the girl to feel the bear, Beck told her to take off her shirt and pants and then assaulted her, according to court records.
Beck's attorney, Robert J. Magee of Allentown, wrote in a court brief that the demand for the home purchase was "not appropriate or authorized under a legal or equitable theory." He added that the victim's family is still able to use and enjoy the property.
He added, "This is just a type of injury that allows for no recourse, an injury without a remedy."
Varricchio also dismissed the couple's request that Beck pay their attorneys' fees. In addition, she dismissed a claim against Beck's wife that she be held partly liable for their property value loss. ..Source.. by Patrick Lester, Of The Morning Call
5-14-2013 New Hampshire:
Homeless people evicted from land in Concord
Three homeless people have filed a lawsuit against the state after they were kicked off of public land in Concord.
They had been living there for several months because they said there is nowhere else to go. They said they represent more than 150 people who are in the same situation.
"We stumbled on it. We liked it. We camped -- three weeks later they are putting signs up saying no camping here," said Wendell Ford, who is homeless.
Ford, a registered sex offender, who found himself homeless after his release from prison, is one of five men who lived there.
While their camps are not clearly visible from Hazen Drive, the new signs posted by the state are.
The homeless in Concord were already told to leave areas they have frequented for years -- land behind the Everett Arena is now abandoned, as well as the area near the railroad tracks referred to as "the tubes."
"Where can the homeless go? They are pushing all the homeless out of the area," Ford said.
So, three of the men who now live on this land decided to take their concerns to court. They enlisted the help of attorney Barbara Keshen, who has filed a lawsuit suing the state.
"They are trying to live peacefully and out of the way and trying to be good neighbors," Keshen ..continued... by WMUR9.com
Monday, May 13, 2013
5-13-2013 DC Circuit:
The thorny question of how to calculate restitution to victims of child pornography came back before the U.S. Court of Appeals for the D.C. Circuit last week, with the U.S. Department of Justice defending a proposed formula.
Friday's arguments marked the second time the court considered the case of Michael Monzel. Monzel pleaded guilty to one count each of distribution and possession of child pornography. A trial judge ordered Monzel to pay $5,000 to a victim known by the pseudonym "Amy," but on remand from the D.C. Circuit reduced the award to zero, finding the government didn't produce evidence on how much of Amy's losses he caused.
The government appealed, arguing U.S. District Judge Gladys Kessler was wrong to reduce the award and that its proposed formula – dividing a victim's total losses by the number of individuals found criminally responsible and then adjusting based on certain factors – represented a fair solution. Monzel's lawyer, Federal Public Defender A.J. Kramer, said the formula was arbitrary and that Kessler was right to reduce the award after the government presented no evidence linking his client to specific losses.
Courts across the country have struggled to find a consistent way to calculate damages in child pornography cases. As lawyers on both sides noted, there are often an unpredictable number of defendants, especially if the images are distributed online, and it can be difficult to know the extent an individual defendant who viewed or possessed an image was responsible for harming the victim.
Judge Brett Kavanaugh told Patty Stemler, chief of the appellate section of the Justice Department's criminal division, that he was interested in reaching a decision that would apply to similar cases in the future. However, the court expressed concern that under the government's formula, individuals convicted earlier would bear more of a burden. Stemler said the amount owed by each defendant would be lowered as needed until a certain threshold.
Kavanaugh asked if the Justice Department had recommended legislation to Congress addressing the restitution issue. Stemler said they were working on it, but had yet to submit something.
Specific to Monzel's case, Judge Judith Rogers asked Stemler why the government didn't provide more information to Kessler on remand estimating Amy's losses that could be attributed to Monzel. Kessler had called the estimates stale, Rogers said. Stemler said the government was never asked for more information and followed the D.C. Circuit's first decision saying Kessler could request more evidence or a formula. ...continued... by Blog of Legal Times