Never forget those who have died because of various sex offender laws.
Showing posts with label ( .News-Courts. Show all posts
Showing posts with label ( .News-Courts. Show all posts

December 12, 2017

In bizarre case, 4th Circuit panel finds forced erections unconstitutional

12-11-17 Virigna:

A federal appeals court ruled Tuesday in favor of a Virginia man who, as a teen, was once ordered by a lower court to be photographed while masturbating in the presence of armed police officers.

That warrant was ostensibly part of an ongoing sexting investigation into the then-teen, Trey Sims, who had exchanged explicit messages with his then-15-year-old girlfriend. Her mother reported the incident to the Manassas City Police Department in January 2014.

Eventually, the detective assigned to the case, David Abbott, obtained a signed warrant to take photographs of Sims’ naked body—including “the suspect’s erect penis”—so that he could compare them to Sims’ explicit messages.

When this bizarre effort was unsuccessfully attempted, Abbott then obtained a second warrant authorizing police to escort Sims to a hospital for an “erection-inducing injection.” This injection ultimately never took place after massive public outcry. ..Continued..

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October 24, 2017

COA: Churches aren’t school property; sex offenders can attend

10-24-17 Indiana:

Three convicted Boone County sex offenders can return to their church congregations after the Indiana Court of Appeals determined that churches are not considered “school property,” so state statute cannot prohibit the offenders from going to church, even when children are present.

The appellate court handed down that decision Tuesday in John Doe 1, et al., v. The Boone County Prosecutor, in his official capacity, et al., 06A01-1612-PL-2741. The case dates to 2015, when the Indiana General Assembly passed the “unlawful entry by a serious sex offender” statute, Indiana Code section 35-42-4-14. That statute prohibits “serious sex offenders” from accessing school property.

According to the statute, “school property” is defined as any “nonprofit program or service operated to … benefit children who are at least three years of age and not yet enrolled in kindergarten.” Based on that language, the Boone County prosecutor sent a letter to all registered sex offenders in the county informing them they could only attend church if their churches do not offer classes or services for young children. ..Continued..

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October 20, 2017

Judge strikes down Kentucky’s social media ban for sex offenders

10-20-17 Kentucky:

Frankfort Kentucky’s registered sex offenders have the constitutional right to use Facebook, Twitter and other online social media, a federal judge ruled Friday.

Ruling in a lawsuit brought by a Lexington child pornography defendant identified only as “John Doe,” U.S. District Judge Gregory Van Tatenhove struck down Kentucky’s sweeping restrictions on Internet access for registered sex offenders.

“This is a very important decision,” said Scott White, a Lexington attorney who represented Doe. “The laws effectively deprived anyone on the sex offender registry of access to the most effective forms of communication that we have today. It was a complete suppression of speech.”

One law prohibited sex offenders from using social networking websites or instant messaging or chat rooms that potentially could be “accessible” to children — which is to say, much of the Internet. The other law required sex offenders to keep their probation or parole officers updated on all of their email addresses and various online identities. ..Continued..

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September 27, 2017

Child molester should not have been barred from watching porn or Facebooking, court says

9-27-17:

A Pierce County Superior Court judge was wrong to prohibit a child molester from using social media, sexually explicit materials and sexually oriented 900 numbers, an appeals court decided.

Those conditions of the man’s sentence were among those reversed Tuesday when Division II of the Washington State Court of Appeals ruled they weren’t directly related to the crime.

A jury convicted 23-year-old Derek John Dossantos of first-degree child molestation and indecent liberties, for inappropriately touching a girl in the pool of a Tacoma apartment complex in 2013. She was 8 at the time, and he was 18.

Superior Court Judge John Hickman sentenced Dossantos to five years, eight months in jail in 2015 as part of a Special Sex Offender Sentencing Alternative, which also required him to undergo sex offender treatment. ..Continued..

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September 13, 2017

Coffman will appeal federal ruling declaring sex offender registry unconstitutional

9-13-17 Colorado:

DENVER, Co. - Colorado Attorney General Cynthia Coffman will appeal the recent federal ruling declaring the state's sex offender registry unconstitutional.

Two weeks ago, a federal judge ruled in favor of three convicted sex offenders, who claimed the online registry was a form of cruel and unusual punishment because it extended punishment beyond prison or jail time and probation.

The judge also said the registry served more to punish the plaintiffs for past crimes than as a public safety measure and that it negatively affected the plaintiffs' ability to live and work, as well as put them in danger of attacks or verbal abuse.

Coffman did not initially announce whether she would appeal the ruling, but in statement given exclusively to KRDO Newschannel 13 late Tuesday, a spokesperson said her office will proceed with an appeal on behalf of the Colorado Bureau of Investigation, which maintains the registry.

“I am surprised by the court’s decision, and think the ruling contains several legal errors which we will now address on appeal,” Coffman said.

Coffman also pointed out that the U.S. Supreme Court has previously found that sex offender registration laws are tools to protect the public, not a form of additional punishment. ..Continued..

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August 1, 2017

8th Circuit says Nebraska's sex offender list doesn't apply to boy

8-1-17 Nebraska:

The 8th Circuit Court has ruled in favor of a 15-year-old boy whose family sued the Nebraska State Patrol to keep him from being put on the state's sex offender registry for a juvenile case in Minnesota.

Attorney Joshua Weir, who represented the boy and his family, said Monday that common sense finally prevailed.

He said he didn't realize that the State Patrol was putting minors — whose cases were handled in juvenile court in other states and who later moved to Nebraska — on the public registry until this case came up.

It never made any sense, Weir said.

Nebraska's registry excludes juveniles prosecuted in Nebraska unless they were prosecuted criminally in adult court. Minnesota's juvenile registry isn't public.

From the start, the Nebraska Attorney General's office conceded that if the boy had done in Nebraska exactly what he did in Minnesota, he wouldn't have been required to register as a sex offender. ..Continue..

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July 28, 2017

Cumberland County DA Freed to request U.S. Supreme Court review of sex offender decision

7-28-17 Pennsylvania:

Roughly two weeks ago the Pennsylvania Supreme Court deemed the state’s current sex offender registration law to be punishment and ultimately barred by both the state and federal constitutions when applied retroactively.

That decision may now end up under review from the highest court in the country.

Cumberland County District Attorney David Freed said Friday his office would ask the Supreme Court of the United States to review the decision, which was handed down on July 19.

Freed contends the state court was split on whether the state constitution provides protections independent of the federal constitution, leaving the door open for possible review by the U.S. Supreme Court. ..Continued..

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June 19, 2017

SCOTUS Rules NC Statute Restricting Internet for Sex Offenders Violates First Amendment

6-19-17 North Carolina:

In the United States Supreme Court unanimous decision in Packingham v. North Carolina, the Court found that the state statute, NCGS § 14-202.5, making it a felony for registered sex offenders to access commercial social networking sites, violated the First Amendment. This outcome was predictable given the then-eight Justices' skepticism during the oral arguments in February. Recall that Packingham was convicted of the North Carolina felony for his Facebook page on which he wrote " Thank you Jesus. God is good" regarding a result on his parking ticket.

The Court's majority opinion by Justice Kennedy, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan, is a mere 10 pages. The Court not only stresses the breadth of the North Carolina statute, but highlights the role of the Internet in "our modern society and culture" as vital to the First Amendment: ..Continued..

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June 6, 2017

A law that turned loving parents into child molester’s ruled unconstitutional by federal judge

5-20-17 Arizona:

Arizona – Flipping the burden of proof from the state to the defendant in criminal prosecutions is the crux of this illegitimate law. In a report by Slate, “Last September, the Arizona Supreme Court issued a stunning decision interpreting the state’s child molestation law to criminalize any contact between an adult and a child’s genitals. In a 3–2 ruling, the court found that the law encompassed entirely innocent conduct, such as changing or bathing a baby. Arizona, the court held, could convict an adult for touching an infant’s genitals—which carries a prison sentence of five years—without proving sexual intent. Instead, under the law, the accused had the burden of proving that (they) had no sexual intent to a jury and by a preponderance of the evidence. As the dissenters noted, the ruling turned ‘parents and other caregivers’ in the state into ‘child molesters or sex abusers under Arizona law.'”

Fortunately for adults who were unjustly branded “molesters” for simply changing diapers or similar, a federal court recently intervened and ruled the Arizona law unconstitutional. In a lengthy ruling, U.S. District Judge Neil V. Wake explained how the law violated the Due Process Clause of the 14th Amendment.

Under current Arizona law, a person is guilty of molestation if they, “intentionally or knowingly … touch[es] … any part of the genitals, anus or female breast” of a child “under fifteen years of age.”

The glaring problem is the law doesn’t state touching must be for sexual gratification – basically labeling anyone who changes a diaper as… you got it – a child molester. Furthermore, it switches the burden of proof to the defendant – requiring they prove the touching was not sexual in nature.

Judge Wake’s ruling overturned the criminal conviction of Stephen May, a swimming instructor who was found guilty of inappropriately touching four children. A jury found May guilty of touching the children, but not sexually, since the law didn’t require that finding. May was sentenced to 75 years in prison. May isn’t the only Arizonan to unjustly suffer under the law; Judge Wake noted the state has prosecuted plenty of parents, and successfully convicted some, for what may be totally innocent behavior. Those persons will likely ask a federal court to vacate their sentence. ..Continued..

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May 20, 2017

Arizona prison officials cannot read inmates' legal mail: appeals court

5-20-17 Arizona:

A federal appeals court on Thursday declared unconstitutional Arizona's policy of letting state prison officials read inmates' outgoing mail to their lawyers.

Reversing a lower court ruling, the 9th U.S. Circuit Court of Appeals said Arizona's authorization of a page-by-page review of death row inmate Scott Nordstrom's legal mail violated his Sixth Amendment right to correspond confidentially with his lawyer, and his First Amendment right to free speech.

The office of Arizona Attorney General Mark Brnovich, which represented the Arizona Department of Corrections, did not immediately respond to requests for comment. A lawyer for Nordstrom did not immediately respond to similar requests.

Nordstrom sued after a prison officer allegedly rebuffed his request to stop reading a letter addressed to his lawyer. The official allegedly said he was authorized to scan the content and told Nordstrom, "Don't tell me how to do my job."

Writing for a 3-0 appeals court panel, Circuit Judge Milan Smith said Arizona had a legitimate interest in prison security, and that prison officials could inspect outgoing mail for "suspicious features" such as escape maps or contraband.

But he said it was "unduly intrusive" for officials to read outgoing legal mail addressed to licensed lawyers, because there was no evidence of a threat.

"The ends do not justify the means," Smith wrote. "Confidential legal correspondence, free from unreasonable censorship and the chilling effect of excessive monitoring, remains an important avenue of communication for inmates."

The appeals court returned Nordstrom's case to U.S. District Judge David Campbell in Phoenix "to craft a decree based on the evidence of actual risks in Arizona state prisons."

The case is Nordstrom v Ryan et al, 9th U.S. Circuit Court of Appeals, No. 16-15277. ..Source..

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May 3, 2017

Court: Teens Can Be Kept on Sex-Offender Registry for Life

5-3-17 South Carolina:

South Carolina's Supreme Court has ruled that the state can continue to require some teens convicted of serious sex crimes to appear on a public sex-offender registry and wear an electronic monitor for the rest of their lives.

COLUMBIA, S.C. (AP) — South Carolina can continue to require some teens convicted of serious sex crimes to appear on the state's public sex-offender registry and wear an electronic monitor for the rest of their lives, the state Supreme Court ruled Wednesday.

A boy from Spartanburg County who was 15 when he sexually assaulted a 5-year-old boy and ended up on the registry challenged the law.

The justices had already ruled that it was legal to list juveniles for life on a registry that can only be viewed by law enforcement. Wednesday's ruling extends that to the public registry on the State Law Enforcement Division's website .

The teen's lawyer said being publicly branded a sex offender and electronically monitored for the rest of his life is too harsh a punishment, citing the U.S. Supreme Court's ban on the death penalty for anyone under age 18.

The justices, however, said the Legislature was well within its power to pass a law that treats juveniles and adults differently in criminal punishment, but establishes the same requirements for the registry. They noted that the registry's goal is to protect the public.

"If the requirement that juvenile sex offenders must register and must wear an electronic monitor is in need of change, that decision is to be made by the Legislature — not the courts," Associate Justice John Kittredge wrote.

The teen was convicted in Family Court of first-degree criminal sexual conduct with a minor, and a judge ordered the lifetime monitoring. ..Source.. by AP

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April 25, 2017

Court finds in favor of man who challenged convictions

4-25-17 New Hampshire:

CONCORD, N.H. The New Hampshire Supreme Court has sent the case of a man found guilty of breaching his sex offender registration requirements back to a trial judge to vacate most of his convictions and sentence.

Max Wilson, of Antrim, was sentenced to 5 ½ years in prison in 2015. He was looking after a teenager. State law prohibits registered sex offenders from volunteering care, instruction or guidance of a minor. He was found guilty of four counts of prohibition from child-care services.

The court said in a ruling Tuesday a judge was wrong to rule against a defense motion alleging double jeopardy and sent the case back.

Wilson had cared for the boy in Concord and Hopkinton in 2014. He agreed to mentor him after the death of his grandfather and didn't disclose his criminal history to the family. ..Source.. by AP

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April 24, 2017

Judge finds sex offender ordinance unconstitutional

4-24-17 Wisconsin:

Village has loosened restrictions in response to suit

MILWAUKEE — A federal judge Monday found unconstitutional Pleasant Prairie’s initial ordinance that largely banned registered child sex offenders from residing in the village.

The village amended its ordinance three months after the offenders filed suit in June 2016, but U.S. District Judge J.P. Stadtmueller ruled that did not make moot the issues the offenders raised with the first ordinance.

In granting summary judgment to the nine plaintiffs, Stadtmueller found the village imposed restrictions on where the offenders could live without considering any studies or data regarding the safety risk that posed to other residents.

“The village has admitted that the ordinance was based on its own conjecture about the dangers posed by sex offenders,” Stadtmueller wrote in the 19-page order.

Village Administrator Michael Pollocoff testified in a deposition that the ordinance’s goal was to reduce the number of child sex offenders living in the village.

The ordinance may be counterproductive to citizen safety, as Pollocoff admitted that turning child sex offenders into outcasts had “more deleterious (or harmful) impacts.”

The ordinance the Village Board passed in April 2016 prohibited child sex offenders from residing within:

— 3,000 feet of any school, day care center, park, playground, church or athletic field or place where minors congregate.

— The village unless they lived there at the time of their most recent offense.

The result of the ordinance made 90 percent of the village off-limits to offenders, with the remaining 10 percent largely non-residential. Most of the low-income housing, which was all the plaintiffs could afford, was excluded.

Stadtmueller rejected the village’s claim that the new ordinance made a suit challenging the old one moot, stating the plaintiffs’ claims that they suffered stress as a result of the threat posed by the initial ordinance, the fear of homelessness and the difficulties in attempting to find a new residence. ..Continued.. by Kevin Murphy

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April 18, 2017

Appeals Court Rejects 'Shockingly High' 19-Year Sentence for Child Porn Collection

4-18-17:

The 2nd Circuit says the recommended prison term was "substantively unreasonable."

When Joseph Jenkins went on vacation in May 2009, he brought his collection of child pornography with him. That decision led to a prison sentence so severe that a federal appeals court yesterday deemed it "substantively unreasonable" in a decision that shows how mindlessly punitive federal sentencing guidelines for child pornography offfenses have become.

Canadian border agents found Jenkins' child pornography on a laptop and a thumb drive as he was driving from his home in Geneva, New York, to his parents' summer house in Quebec. After Jenkins skipped bail in Canada, he was charged under U.S. law. In 2014 he was convicted of possessing and transporting child pornography, and a federal judge sentenced him to nearly 19 years in prison, followed by 25 years of supervised release. Given the nature of Jenkins' crimes, the U.S. Court of Appeals for the 2nd Circuit ruled, the judge "went far overboard."

The 2nd Circuit's decision illustrates the impact of congressional edicts that call for stiff sentencing enhancements based on factors that are routine in child pornography cases. Jenkins' criminal history was limited to a single misdemeanor, he did not produce or distribute child pornography, and his crimes did not involve contact with minors. Yet U.S. District Judge Glenn Suddaby calculated that the recommended sentence was 210 to 262 months, thanks mainly to enhancements for using a computer, for possessing more than 600 images (with each video counting as 75 images), for possessing images of prepubescent children, and for possessing images featuring masochistic, sadomasochistic, or other violent content. "These enhancements," the 2nd Circuit notes, "have caused Jenkins to be treated like an offender who seduced and photographed a child and distributed the photographs and worse than one who raped a child." ..Continued.. by Jacob Sullum|

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April 15, 2017

Fairfield child molester successful in eviction challenge

4-15-17 California:

FAIRFIELD — The 1st District Court of Appeal in San Francisco sided Friday with a Fairfield child molester who successfully challenged his 2013 eviction from the Fairfield Housing Authority’s Section 8 housing assistance program.

Magid Mokatish, 57, had been receiving money from the program since 1998. He sent the housing authority a letter in 2013 bemoaning his inability to find a suitable home “in part due to my registration requirement.” Mokatish was referring to his sex offender registration that was the result of his committing lewd acts on two children in 2004.

The housing authority decided to terminate Mokatish’s housing voucher assistance in spite of previously recertifying his annual eligibility eight times, each with knowledge that he was a registered sex offender.

The housing authority claimed Mokatish’s felony conviction of committing lewd acts on a child of 14 or 15 years of age amounted to a violation of a regulation barring program participants from engaging in violent criminal activity. An administrative hearing officer and then Judge Michael Mattice rejected arguments from Mokatish’s lawyer that the child sexual assault crime did not add up to violent criminal activity.

Among other things, Mokatish’s lawyer pointed out that while regulations bar registered sex offenders from being admitted to the Section 8 housing program, there were no regulations requiring participants be terminated because they became a registered sex offender.

The divided Court of Appeal ruling pointed out that lewd or lascivious conduct does not necessarily involve the use or threatened use of force or automatically amounts to criminally violent abuse.

The ruling ordered Mattice to reverse his previous decision and directed the Fairfield Housing Authority to pay for all of Mokatish’s legal costs. ..Source.. by Jess Sullivan

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Local sex offender law ruled unconstitutional

4-15-17 New York:

BUFFALO, N.Y. (WKBW) - A Cheektowaga law created more than a decade ago to serve as a tougher version of New York's sex offender law. Now, it's being called unconstitutional.

Cheektowaga council member Alice Magierski says the local law extended the distance any level sex offender could live from a school or park from 1,000 feet to 1,500 feet. The law also casts a wider net on locations to include more kid-friendly destinations.

A state appeals court recently ruled the the local law is unconstitutional, saying it conflicted with state law. Under the ruling, police no longer have the power to enforce the local law, but members of the council say they plan to hold a public meeting to let neighbors decide if the law should stay on the books.

"We have no intent whatsoever that this isn't going to be monitored by the police department...it is absolutely completely monitored but within the guidelines that we now have to follow," Councilwoman Magierski tells 7 Eyewitness News.

Magierski says the law was overturned just a few months ago, and she's unsure what prompted the law to face an appeals court. The public hearing is set for April 25 in Cheektowaga. ..Source.. by Cierra Johnson

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April 11, 2017

Judge orders 3 off sex offender registry

4-11-17 Indiana:

Three men who moved to Indiana and were required to put their names on the state’s sex offender registry are likely to win their lawsuit that claims they wouldn’t face that requirement had they lived in Indiana all their lives, a judge ruled, ordering their names removed.

Judge Richard Young last week ruled in favor of Brian Hope, Gary Snider and Joseph Standish, holding they are likely to prevail in their federal lawsuit in the U.S. District Court for the Southern District of Indiana. Young granted a preliminary injunction barring authorities from enforcing the Indiana Sex Offender Registration Act against the plaintiffs.

The suit brought by the American Civil Liberties Union of Indiana argues that SORA’s application to them violates the Equal Protection Clause of the 14th Amendment and implicates the right to travel, and Young found the plaintiffs are likely to prevail on those claims. He did not reach the plaintiffs’ ex post facto argument.

Based on their crimes, the Department of Correction determined each plaintiff was an offender against children and a serious sex offender, and that Snider and Standish qualified as sexually violent predators.

Indiana’s Sex Offender Registry dates to 1994, and each of the plaintiffs’ convictions came prior to the registry’s enactment, or was an offense that didn’t require reporting at the time of conviction. Young wrote that had the plaintiffs not crossed state lines, they would not be required to register under Wallace v. State, 905 N.E.2d 371 (Ind. 2009), which prohibited the application of SORA to offenses predating the registry.

Hope was convicted of an Indiana offense and the other two plaintiffs were convicted in Michigan. After Hope left the state and returned, and the other two men moved to the state, they were told they would have to register as sex offenders for life. Young rejected the Department of Correction’s argument that finding for the plaintiffs would make Indiana a “safe haven” for sex offenders.

“Defendants’ proposed justification — preventing persons from relocating to Indiana in order to avoid registration requirements — has absolutely no applicability to (plaintiffs). SORA is therefore overbroad with respect to this interest,” Young wrote.

“When the Plaintiffs arrived in Indiana they were not afforded the same status as persons who had resided in Indiana all along. As a result of the DOC’s policies, long-term Indiana residents who have never travelled out of state are treated differently than new Indiana residents. This differential treatment offends the fundamental right to travel,” he wrote.

“Plaintiffs have a strong likelihood of success on the merits of their Equal Protection and right-to-travel claims.”

The case is Brian Hope et al. v. Commissioner of the Indiana Department of Correction, et al., 1:16-cv-02865. ..Source.. by IL Staff

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April 8, 2017

Sex offender won't have to pay victim $13,000 restitution after Utah Supreme Court overturns order in 2003 crime

4-6-17 Utah:

The Utah Supreme Court has overturned a judge's order requiring a sex offender to pay his victim for the wages she lost as a result of his abuse in 2003.

Scott C. Wadsworth, who sexually exploited a teenage girl, had been ordered by a judge to reimburse the victim almost $13,000 in wages she lost when depression caused by the offense led to problems at work and a reduction in her hours.

In a 5-0 ruling handed down Tuesday, the court said the version of the state's Crime Victims Restitution Act in effect at the time Wadsworth was ordered to reimburse the teen made lost income available only in cases in which the offense led to bodily injury.

(The act was amended in 2016, and restitution for lost income resulting from an offense is no longer restricted to cases involving bodily injury. The Supreme Court's opinion was governed by the previous version of the act.)

According to court documents, Wadsworth met his victim, then 14, in an online chat room in July 2003 and the two chatted online and talked on the phone. The then-34-year-old man sent the girl pornographic images and once went to her home, where they engaged in a sex act, the documents say.

Wadsworth was charged in late 2003 with 26 offenses involving his conduct with the teen and later pleaded guilty under a plea deal to three charges — sexual exploitation of a minor, unlawful sexual activity with a minor and enticing a minor over the internet. He fled before his scheduled April 2005 sentencing and was caught in July 2009, then sentenced in 3rd District Court six months later to 1 to 15 years in prison.

At a restitution hearing in 2010, his victim testified that the crime, as well as the reminder of what had happened after Wadsworth's arrest, caused her deep depression and difficulties on the job. Wadsworth was ordered to pay $12,934 in lost pay from 2009 and 2010 and $6,500 for counseling costs.

Wadsworth appealed the lost-income part of the restitution order and was turned down at the Utah Court of Appeals in a 3-0 ruling issued in 2015. On Tuesday, the Supreme Court reversed the appeals court.

The justices noted that the Crime Victims Restitution Act said judges should consider six categories in calculating restitution for economic loss. Until last year, the category at issue covered lost income "if the offense resulted in bodily injury to a victim."

In Wadsworth's case, prosecutors did not allege the victim had suffered bodily injury, only that the crimes led to her depression and impacted her ability to work.

The Supreme Court opinion said the "if" clause was key and "means what it says — 'income lost by the victim' may be considered only 'if the offense resulted in bodily injury.' "

Wadsworth was paroled from prison in August 2015. ..Source.. by PAMELA MANSON

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April 5, 2017

Child molester released after analysis of law

See also Federal judge rules molestation statute 'grievous threat to due process of law' and U.S. judge knocks down Arizona's child-molestation law, orders ex-teacher released and Federal Judge Rules Arizona’s Diaper Changing Child Molestation Law Is Unconstitutional See Court Decision: May v. Ryan
4-5-17 Arizona:

PHOENIX — Calling the statute a “grievous threat to due process of law,” a federal judge has released a convicted child molester after ruling the law imposes unconstitutional burdens on defendants to prove their innocence.

In an extensive analysis of the issue, Judge Neil Wake said someone can be convicted of molesting for the “intentional and knowing” touching of the private parts of a child. But the law says a defendant can seek to escape conviction by proving that touching “was not motivated by a sexual interest.”

But Wake said that turns the law on its head.

He said it is the legal obligation of prosecutors to prove all elements of a crime. And that, said Wake, means it's up to the prosecutor to prove that the person touched the child with a sexual intent, not for the person, already arrested, to prove otherwise.

Wake said the Arizona law instead criminalizes “wide swaths of conduct with no element of the crime to differentiate between culpable, innocent and constitutionally protected conduct.”

“By prohibiting 'touching, fondling or manipulating' of a child's private areas, Arizona's child molestation law criminalizes sexual fondling of children, sitting a child down in a chair, diapering and bathing an infant, medical treatment and religious circumcision alike,” the judge wrote.

The ruling is at odds with what the Arizona Supreme Court decided last year when it rejected a similar challenge to the law. In that case, which the U.S. Supreme Court on Monday refused to review, the Arizona justices said prosecutors are “unlikely to charge parents, physicians and the like” when the evidence shows that the touching was not done with a sexual intent.

Wake said that clearly isn't the case, citing other cases, including one from Pima County, where a father was brought up on charges bathing his child, only having to defend himself in court.

“Just trusting the government to do the right thing is poor dressing for constitutional wounds,” Wake wrote.

The ruling resulted in the immediate release last week of Stephen E. May, convicted in 2007 on five counts of child molesting. He was sentenced to consecutive 15-year terms for each for incidents in Mesa that the attorney general's office, which sought to uphold the convictions, said involved touching two girls and a boy through clothing or bathing suits.

But this may not be the last word. The attorney general's office is asking the 9th U.S. Circuit Court of Appeals to overturn what Wake did and send May back to prison.

The decision also drew an angry reaction from Maricopa County Attorney Bill Montgomery whose agency prosecuted May in the first place. He said Wake's ruling shows an “outright disrespect” for last year's Arizona Supreme Court ruling, the ruling the U.S. Supreme Court left intact.

Wake, however, said that was “the first time anywhere in the country” that a court had concluded that people charged with molesting have the burden of proving they had no sexual intent. And he specifically criticized the state's high court for concluding that there's nothing wrong with shifting the burden.

“The state Supreme Court implies that any law may intentionally and expansively sweep innocent conduct within its prohibition by omitting traditional and common sense elements of the offense — leaving it to the selected defendants to prove their innocence,” Wake wrote.

“There is a grievous threat to due process of law from making defendants disprove their own state of mind for conduct that is not wrongful in any sensible way without a bad mental state,” the judge said.

Wake also rebuffed claims by attorneys for the state that lawmakers have complete and unfettered authority to decide both the elements of a crime and what are affirmative defenses that someone charged can raise.

“The state's stance is antithetical to the very requirement of proof beyond a reasonable doubt,” the judge wrote. “Deference to the legislature's discretion ends when it offends some principle of justice so rooted in the traditions and conscience of our people to be ranked as fundamental.” ..Source.. by HOWARD FISCHER

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April 1, 2017

Yooper barred from visiting home county by court

UPDATE 4-3: see Judge bans man from returning to his hometown
4-1-17 Michigan:

BARAGA (AP) — A Michigan man (Yooper) can’t go home again — maybe for as long as nine years.

The unusual restriction was upheld this week by a federal appeals court. When Eugene Rantanen is released from prison this year, he can’t set foot in his home county, Baraga, while under the supervision of a probation officer.

Rantanen was convicted of a sex crime in 2009. He has twice been returned to prison for violating conditions of supervised release.

Rantanen admits that Baraga, a remote and sparsely populated area in the Upper Peninsula, isn’t a good place for him to deal with drug and alcohol problems. He said he doesn’t want to live there, but he objects to being banished for years.

Rantanen, 28, said he won’t be able to visit his elderly mother or attend funerals and family events. He’s a member of the Keweenaw Bay Indian Community.

“Family connections, tribal relations and religious practices are all important supports to a person who has addiction issues,” his lawyer, Elizabeth LaCosse, said.

The appeals court acknowledged that “exile is not a pleasant experience.” But it said Rantanen has a history of bad decisions when using drugs and alcohol.

“It may well be that a clean break from Baraga County is necessary,” Judge Danny Boggs wrote for a three-judge panel.

The restriction was ordered by U.S. District Judge Paul Maloney, who said he might revisit Rantanen’s supervised release after five years. The appeals court said Maloney could consider easing the restriction in a family emergency. ..Source.. by Oakland Press

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