10-13-17 Georgia:
Two weeks after Georgia agreed to pay $550,000 to a diabetic inmate who lost his leg, the prison doctor responsible for his treatment has informed her supervisor that she will resign.
Dr. Chiquita Fye will leave her position as medical director at Macon State Prison by the end of the month, according to an Oct. 1 letter she wrote to Dr. Billy Nichols, the medical director for Georgia Correctional HealthCare.
Fye’s letter gave no reason for her resignation, but it follows the state’s decision in September to settle the lawsuit filed by convicted murderer Michael Tarver alleging that his amputation was due to the doctor’s neglect. The settlement was reached a week before the case, in which Fye was the lone defendant, was scheduled for trial in federal court in Macon.
Fye’s decision also follows an Atlanta Journal-Constitution story that cited depositions and interviews in which six former healthcare workers at the prison contended that the Emory-trained physician at times withheld critical care because of her disdain for criminals. ..Continued..
October 13, 2017
Prison doctor resigns after lawsuit with amputee is settled
December 6, 2016
Sex offender argues mandatory ankle monitors are unconstitutional
As opposing attorneys argued the constitutionality of the Sex Offender Registry Review Board on Monday, several Georgia Supreme Court justices kept focusing on an aspect of the law that applies to the most dangerous predators: they must wear an ankle monitor for life but face no punishment if they don’t.
“So you’re telling us all the people subject to monitoring could just stop and nothing will happen?” Justice David Nahmias asked Monday.
“The point is to prevent future recidivism and it’s not punitive,” answered Rebecca Dobras, the assistant attorney general who argued in favor of the law. “What it’s supposed to do is allow the offender to know he’s being monitored.” Nahmias replied, “I don’t understand the point of having a regulation you don’t have to comply with. What a useless regulation if that’s what you’re saying it is.”
The justices were hearing a challenge to Georgia’s version of the federal Adam Walsh Child Protection and Safety Act, named for the 6-year-old Florida boy who was kidnapped from a shopping mall and murdered. The 2006 law, also known as the Sex Offender Registration and Notification Act, required states to: ..Continued.. by Rhonda Cook
January 20, 2016
Coweta man’s removal from sex-offender registry upheld
The Supreme Court of Georgia on Monday unanimously upheld a ruling that a Coweta man who pleaded guilty to child molestation in 1993 may be removed from the state’s sex offender registry.
Blake Randle pleaded guilty in Coweta County to one count of child molestation for touching the privates of a 10-year-old boy when Randle was 19 years old.
Randle received an eight-year sentence with the first three to be served in confinement followed by five years on probation. As a result of his conviction, he was required to register as a sex offender.
After serving his sentence and being released from probation in 2001, he filed a petition for release from the sex offender registration requirements in 2013.
Under Georgia law, a defendant may file such a petition if 10 years have elapsed since he completed his sentence, and if six criteria are met under another statute.
During a hearing, evidence presented showed that Randle had committed no other crimes, had completed all required sex offender treatment, had not violated probation and had “done well while on probation and as well in his treatment,” according to a summary of opinion released by the Georgia Supreme Court.
The opinion stated:
At 42 years old, Randle testified he had been physical custodian of his 14-year-old daughter for five years, had been working in the technology field for 15 years, provided for himself and his daughter, and had continued treatment after his probation ended because he “felt that it was very helpful.”
Randall testified that he wanted to be removed from the sex offender registry so his daughter would not be bullied by those who might find his registration online and because signs with his picture identifying him as a sex offender who “lives here” had been left in his yard, according to briefs filed in the case.
Under cross-examination, Randle admitted that given his victim’s age, the child likely had not enjoyed the touching.
Following the hearing, the trial judge granted Randle’s petition, noting that as a judge, he had never released someone from the sex offender registration requirements.
Because Randle’s offense had occurred 21 years earlier, and there had been no other incidents since then, the judge was “convinced that this will never happen again.”
In the Court of Appeals, the State then argued that Randle's act of touching necessarily resulted in the victim suffering “intentional physical harm,” and “contemplates conduct that goes beyond offensive and unwanted touching and involves the intentional infliction of physical pain or injury upon the victim.”
The dissent, on the other hand, concluded that intentional physical contact of any type constitutes “intentional physical harm” that would preclude an offender’s removal from the registry.
The State then appealed to the Georgia Supreme Court, which agreed to review the case to determine whether the Court of Appeals erred in its interpretation of “intentional physical harm.”
“The issue before us is whether the phrase ‘intentional physical harm’ in this context includes physical contact that, while offensive and unwelcome, resulted in no physical pain or injury,” the court said.
“We conclude that it does not, and we therefore affirm the Court of Appeals in its affirmance of the superior court’s order granting Randle’s petition for removal from the sex offender registry.”
Contacted Tuesday, Christa Kirk, attorney for Randle, said that she believes the court got it right – citing her belief that by limiting the definition of harm, it would make it impossible for anyone to ever be removed from the list.
“You have to be very careful in the law to change the definition of terms to suit how the prosecution moves forward with a case,” Kirk said.
“The argument was that this was a sex offender registry removal,” she continued. “Their argument wanted 'physical harm' to include touching, but there is no physical injury."
Regardless of the outcome, Coweta Circuit District Attorney Pete Skandalakis said that he respects the decision of the Supreme Court, and the issue of what constitutes physical harm was an important issue to tackle.
“This is an issue that was never really settled by the courts in Georgia so we decided to take it up and have the supreme court answer it,” Skandalakis said. “Many of us feel that even though a child may not be physically harmed, it’s an intentional injury to the victim, and they suffer long-lasting harm because of it.” ..Source.. by Clay Neely
November 3, 2015
Supreme Court tosses sex crime convictions on former Oconee teacher's aide
The Georgia Supreme Court announced Monday it has reversed computer pornography convictions against a former teacher’s aide and coach at Oconee County High School, but let stand one conviction of electronically furnishing obscene material to a minor.
The court set aside computer pornography and child exploitation convictions against Jeremy Wetzel, saying the prosecutor was “wrong to tell jurors that they could decide if in their opinion, his conduct should be deemed ‘an unlawful sexual offense against a child.’”
Wetzel, who was 24 at the time of his 2011 arrest, was accused of sending pictures of his genitals to a 15-year-old student at the school. After his conviction, a judge sentenced him to eight years with the first two years in prison. He was incarcerated from July 2013 until November 2014, when he was paroled from the Valdosta State Prison.
Wetzel was represented in the appeal by his father, attorney Michael Wetzel. The victim testified in the May 2013 trial that she and Wetzel never had any physical contact.
Wetzel’s challenges to his conviction on furnishing obscene material to a minor are without merit, and the conviction is affirmed, the court ruled. The court said that Wetzel should have known the girl was under the age of 18.
The photos came to light in December 2011, when the girl showed the photos to two friends, who in turn reported it to a teacher, according to court documents. Wetzel was brought before school administrators and fired. Authorities arrested him the next day.
“I was disappointed, but under the circumstances the conduct of the defendant was reprehensible,” Western Circuit District Attorney Ken Mauldin said.
The Supreme Court “took a very narrow view of the statue and we disagree with that.
“The one saving grace is the misdemeanor did stand,” Mauldin said. “It is an offense (for which) he is required to register as a sex offender and he will continue to do that.” ..Source.. by Wayne Ford
October 7, 2015
Georgia Supreme Court Hears Arguments Over Sex Offender Law
The Georgia Supreme Court heard arguments Monday over a state statute that dictates how “sexually dangerous predators” are classified.
Scott Gregory was designated a “sexually violent predator” in 2013, which is the highest risk designation and requires him to wear an electronic monitor for the rest of his life. Gregory was convicted for exposing himself and performing a sexually explicit act via webcam to an individual he believed was a 14-year-old girl, according to court documents.
Gregory claims he was denied his constitutional rights of due process after a Fulton County judge denied him a hearing to challenge his classification.
“It essentially amounts to a lifetime of house arrest,” said J. Scott Key, who represents Gregory. “We believe that any person who is going to be deemed a sexually dangerous predator for life should be entitled to a hearing.”
Georgia’s state statute on the classification of sexually dangerous predators says the court “may hold a hearing to determine the issue of classification.”
Mindy Park, an attorney for the state, said due process wasn’t violated.
“Even if we assume that due process is due, appellant [Gregory] has received it here in this case,” she said.
Gregory had the opportunity to have his classification re-evaluated, she said.
After the Sexual Offender Registration Review Board classified Gregory as a “sexually dangerous predator,” Gregory asked the board for a re-evaluation. After considering more evidence, the board again designated him as “sexually dangerous predator.”
Gregory then filed a petition for judicial review in Fulton County Court, but was denied a hearing.
The Georgia Supreme Court is expected to rule on the case by next spring. ..Source.. by Elly Yu
October 6, 2015
Threatening to post sex tape on Facebook is not a crime, court rules
Posts were intimidating and embarrassing but did not threaten actual violence.
A man handed six years for threatening a local Georgia court clerk that he would post a sex tape of her on Facebook had his conviction overturned by the state's Supreme Court. The justices ruled Monday that the Facebook postings did not constitute criminality or a "true threat" under the law, because the defendant did not express an "intent to commit an act of unlawful violence."
The case concerns a Georgia landlord named Lister Harrell who took to Facebook in 2013 and threatened a Dodge County court clerk that he would release a sex tape of her if, among other things, a bench warrant wasn't lifted over his failure to appear in court regarding alleged landlord violations. There was no sex tape, so the state's high court said that the post—along with a phone call to another clerk—may have been intimidating and embarrassing, but it did not threaten actual violence.
"While Harrell's speech might well be described as caustic and unpleasant it did not convey 'a serious expression of an intent to commit an act of unlawful violence,'" the court ruled (PDF).
The case comes amid a hodgepodge of nationwide court rulings on the topic as prosecutions for online rants—on Facebook to YouTube—are becoming commonplace. A divided US Supreme Court weighed in on the topic in June in a case concerning a federal threats statute. In that case, the justices said that the conviction of a Pennsylvania man named Anthony Elonis over alleged Facebook threats against an elementary school and estranged wife should be overturned.
"The jury was instructed that the Government need prove only that a reasonable person would regard Elonis's communications as threats, and that was error. Federal criminal liability generally does not turn solely on the results of an act without considering the defendant’s mental state," Chief Justice John Roberts wrote (PDF) for the majority.
The Georgia landlord's attorney, Thomas Jarriel, applauded the decision, noting that "in this country, you can say a lot things." ..Source.. by David Kravets
September 15, 2015
High Court Narrows Basis for Sexual Battery Charges Involving Children Under 16
Presaged by oral arguments in March during which both the state and the defense agreed that a trial judge's erroneous instructions to a jury had resulted in a flawed conviction, the Georgia Supreme Court has narrowed the legal standards under which a charge of sexual battery can be brought against a defendant accused of touching someone younger than 16.
The Supreme Court overruled a Court of Appeals opinion that would potentially criminalize even the most innocuous contact anyone might have with a child while changing a diaper or on a playground, the court ruled.
The ruling clarifies that, while no one under 16 can legally consent to sexual contact or activity, in the case of someone charged with sexual battery—which can mean any sort of contact with a person's private parts—the simple fact that the alleged victim was under 16 does not mean the contact was not consensual.
The ruling, while expected, is unlikely to spell much relief for the St. Marys man who brought the appeal: The same jury that convicted Patrick Watson on two counts of sexual battery against his daughter also found him guilty of child molestation against another girl, which earned him 15 years in prison. That sentence was also upheld by the Court of Appeals, and was not part of the high court's review.
But the opinion is likely to have far-reaching ramifications for other defendants, said Ross & Pines partner Noah Pines, who represents Watson and argued the appeal. Even though his client may not benefit from the ruling, the issue is one that he'd been aware of for some time and wanted to see addressed by the high court.
"Someone asked me, 'If it's not going to help your client, why appeal this?'" Pines said. "I did it because this is an important issue that I knew was out there, and because the Court of Appeals was wrong. It was the right thing to do."
"I'm very happy with this ruling," said Pines. "The Supreme Court picks cases where they know they can make a difference, and this gives me a little validation that my interpretation of the statute wasn't crazy."
The unanimous opinion was written by Justice Carol Hunstein, with a short concurrence by Justice David Nahmias noting that Brunswick Circuit Distract Attorney Jackie Johnson could re-file the sexual battery charges against Watson provided the proper jury instructions were issued, even though the "substantial sentence" he's already serving might weigh against such a retrial.
After the Supreme Court agreed to hear the case, Johnson's office filed a brief with the court conceding that Pines' reading of the law was correct and requesting that oral arguments be canceled, but the justices declined to do so. Atlanta attorney Andrew Ekonomou, who serves an assistant district attorney for Johnson's office and argued the state's case, found himself in the unusual position of agreeing with opposing counsel even as he defended the Court of Appeals ruling. ..Continued.. by Greg Land, Daily Report
May 12, 2015
Georgia High Court Says Lawyers Must Tell Clients of Plea Deal Impact on Parole
The Georgia Supreme Court has made it easier for criminal defendants who pleaded guilty to challenge their convictions on grounds of ineffective assistance of counsel by claiming in that their lawyers failed to inform them how their plea deals would affect their eligibility for parole.
The unanimous decision, which included the high court striking down its 16-year-old precedent on the issue, means that a man who pleaded guilty to a host of child sexual abuse charges may have a chance to withdraw his plea.
In 2011, Calvin Alexander pleaded guilty in Fulton County Superior Court to three counts of aggravated child molestation, two counts of statutory rape, three counts of child molestation and two counts of enticing a child for indecent purposes, according to the court's ruling. He was sentenced to 30 years on each aggravated child molestation count, with 15 years to serve and the balance on probation. He was also sentenced to 15 years on each of the other counts, and he was to serve all of them concurrently.
Alexander subsequently moved to withdraw his plea, arguing that his attorney had failed to advise him that, because he was being sentenced under Georgia's recidivist statute, he would be ineligible for parole.
Fulton County Superior Court Judge Wendy Shoob denied the motion, finding that Alexander had "knowingly, voluntarily, and intelligently" entered the plea. Alexander appealed, and in July 2014 Court of Appeals Judge Elizabeth Branch, joined by Judges Anne Elizabeth Barnes and Michael Boggs, upheld Shoob's order, writing that the court was constrained by a 1999 Georgia Supreme Court case, Williams v. Duffy, 270 Ga. 580.
In that case, a burglary defendant who was sentenced to 15 years after pleading guilty filed a habeas petition asserting ineffective assistance of counsel because his lawyer had failed to advise him he would be ineligible for parole. The trial court granted the petition and the government appealed.
A majority of the justices reversed the trial judge, ruling that parole eligibility "only has a collateral effect on a defendant's sentence and that an attorney's failure to advise a defendant of a collateral consequence cannot constitute ineffective assistance."
On Monday, Chief Justice Hugh Thompson wrote for the court that a 2010 U.S. Supreme Court decision made the Williams precedent "no longer good law."
Underlying these cases is the U.S. high court's 1984 ruling in Strickland v. Washington, which established a two-prong test to gauge whether a defendant's Sixth Amendment right to effective assistance of counsel has been violated. First a defendant must show that his lawyer's performance fell below the level required to constitute effective representation. The second prong mandates a showing that, if the representation had been effective, the outcome of the case may have been different.
When the Georgia Supreme Court decided Williams in 1999, Thompson wrote, the justices cited a U.S. high court ruling from the year after Strickland was decided for the proposition that there was no "constitutional requirement that a defendant be advised" of any "collateral consequences" for his plea to be valid.
A 2010 U.S. Supreme Court case, Padilla v. Kentucky, 59 U.S. 356, "required us to rethink our course," wrote Thompson. In that case, the U.S. court held that a lawyer who incorrectly advised his client, a Honduran national, that pleading guilty to a marijuana charge would not affect his immigration status violated his Sixth Amendment rights.
"Eschewing a direct versus collateral consequence analysis," Thompson wrote, "the [U.S.] Supreme Court held that the Sixth Amendment's guarantee of effective assistance of counsel protects a defendant from erroneous advice about deportation, and that a defendant establishes deficient performance under Strickland when he shows that counsel failed to accurately advise him about the automatic deportation consequences of a guilty plea."
In that same year, the Georgia Supreme Court declined to overrule Williams in another case, but "made it clear that Williams stood on shaky ground," Thompson wrote. In a subsequent case involving a man whose bid to withdraw his plea after he found out he would be required to register as a sex offender, the Georgia Court of Appeals—citing Padilla—"determined that a direct versus collateral consequence distinction does not control the scope of professional assistance required under Strickland," Thompson wrote.
"We agree … and hold that, whether a guilty plea gives rise to a direct or collateral consequence, when a criminal defendant seeks to withdraw a guilty plea on the ground of ineffective assistance of counsel, the ineffective assistance claim must be evaluated under the two-prong test," he wrote.
"We hasten to add that counsel's failure to offer advice concerning a collateral consequence will not rise to the level of constitutional deficiency in every instance," wrote Thompson.
But, he wrote, “when it comes to parole eligibility, we conclude that an attorney’s failure to inform his or her client that he or she would be ineligible for parole as a recidivist for the entirety of a lengthy prison sentence is constitutionally deficient performance.”
In an emailed statement, Fulton County District Attorney Paul Howard noted that Alexander still has to convince a judge that he was unaware of the consequences of his plea.
"Alexander's conviction has not been reversed, because he still has to prove on remand to the Superior Court of Fulton County that he was unaware that under a recidivist sentence, he would be required to serve his entire prison sentence and additionally, that if he had known, he would not have pled guilty, but would have insisted on going to trial," said Howard.
"This case stands for the proposition that ineffective assistance of counsel claims asserting that defense counsel failed to advise a client about the collateral consequences of a guilty plea will now be evaluated under the classic ineffective assistance of counsel standard found in Strickland v. Washington," Howard said. "Previously, such claims were not considered to be within the realm of areas in which a defense attorney could render ineffective assistance of counsel because such claims concerned topics which were not the direct result of a client's guilty plea, but only a 'collateral consequence' of the plea.
"The Court in Alexander v. State made clear that a defense attorney must advise a client that a recidivist sentence means the client will serve the entire prison portion of any sentence imposed, without the chance for parole on the prison portion of the sentence."
Alexander's appeal was filed by Kenneth Kondritzer of the Fulton County Public Defender's appellate section, and argued and briefed by his colleague T. Natasha Crawford.
Kondritzer said the opinion addresses situations he's dealt with previously.
"It clarifies this particular area," Kondritzer said. "Before, there was kind of an anomaly: the Williams v. Duffy decision was really inconsistent with more recent rulings, so this goes a long way toward clearing this up."
Kondritzer said the impact of the decision on defendants who have already pleaded and been sentenced under circumstances similar to Alexander's may be limited.
"It depends on the status of their case," he said. "Mr. Alexander filed a motion to withdraw his guilty plea. For people in prison, their only recourse would be to file a petition for habeas corpus, and they have a four-year limit to do that. It's not real clear whether this would apply to them in any case; that needs to be litigated." ..Source.. by Hugh P. Thompson
April 19, 2015
'State secrets' hide reasons for pardon of Savannah sex offender
Barry Davis pleaded guilty in Chatham County Superior Court in August 1995 to a charge of aggravated sodomy on a 4-year-old girl. Under the open-ended plea, he was sentenced to 10 years in prison with two to serve and the remainder on probation. He was required to register on the state’s sex offender registry.
Eighteen years later, the state Board of Pardons and Paroles granted Davis a pardon, and he stopped registering as a sex offender. His attorneys contend that is not a crime because of his pardon.
Chatham County’s prosecutors disagree.
On Feb. 26, 2014, a Chatham County grand jury indicted Davis for violating the sex offender registration statute for failing to update his new address with the Chatham County sheriff’s office.
For District Attorney Meg Heap and her chief assistant, Greg McConnell, the case has been an eye-opener. It began with the pardon. They received no notice it was even being considered and have been given no justification for it.
“We discovered a flaw,” Heap said, one she calls “the big black hole of no accountability, no transparency and no information.”
The five members of the pardons and paroles board, appointed by the governor, “hide behind state secrecy” in a world she found was dismissive bordering on arrogant.
Heap and McConnell spearheaded action with the Prosecuting Attorneys’ Council of Georgia in the recently completed session of the Georgia General Assembly to change the rules to craft a fix. House Bill 71 is awaiting Gov. Nathan Deal’s signature to become law.
That law would require the board to give victims and prosecutors the right to be heard on pending pardons and would bring openness to the process that has been lacking.
While prosecutors did not get all they wanted — the “state secrecy” remains — Heap said, “We’re pleased with what we have.”
How we got there
Davis, 57, who now lives in Charlotte, N.C., remains on a $4,500 bond under the Chatham County indictment as prosecutors and defense attorneys renew their sparring over the legal arguments involved.
Those issues before Chatham County Superior Court Judge Penny Haas Freeseman are not expected to reach a ruling before late summer. Even then, they face almost certain appeals by the losing party.
Davis was released from prison on July 15, 1997.
On Feb. 13, 2013 — 18 years after his conviction — he was pardoned by the Georgia Board of Pardons and Paroles. Davis then refused to comply with the state’s sex offender registry requirements, according to court documents.
In her statement of facts in the Davis case, which were filed with the court, Assistant District Attorney Lyndsey Rudder said Davis was pardoned on Feb. 13, 2013, “on the grounds that he was a law abiding citizens and had been rehabilitated; he was not pardoned on grounds of actual innocence.”
That same date, Davis “also received a restoration of his civil rights,” but “did not receive a full restoration of his civil rights” because the board did not restore his rights to possess a firearm.
In a footnote to that same document, Rudder said, “The board never states that a sex offender who has received a restoration of rights is relieved of the requirements of the sex offense statute.”
The prosecutor also said that on the day after his pardon, Davis renewed his sex offender registration at the Chatham County Sheriff’s Department.
He “was warned that regardless of his pardon he was required to continue (to) register as a sex offender,” the prosecution document said.
Then Davis moved to Charlotte, N.C., without notice to the local sheriff’s office.
On Jan. 22, 2014, Davis registered as a sex offender in Mecklenburg County, N.C., claiming he had just moved there, the state contends. He had been living there since March 15, 2013, the state contends.
The defense side
Meanwhile, Davis’ attorney, Assistant Public Defender Amy Ihrig, contends the parole board’s actions are not subject to review, even by a court, and that Davis’ prosecution should be dismissed as a matter of law.
Because he was pardoned, he is constitutionally protected from prosecution for the alleged crime, she argued.
In court documents responding to the prosecutor’s motion to unseal Davis’ file, now barred by “state secrecy,” Ihrig contended the pardon records were not relevant to the pending prosecution because the validity of the pardon was not something that can be determined by the district attorney or the courts.
In Georgia, “there exists a bar to review, either judicial or otherwise, of the validity of a pardon,” she wrote. “This is because the Georgia Constitution and the doctrine of separation of powers vests in the state Board of Pardons and Paroles the sole authority and power to issue a pardon.”
And she said, “Appellate courts of this state affirm that no other branch of government, including the judicial branch, has legal authority to address actions by the state Board of Pardons and Paroles.”
Her position is supported by Assistant Attorney General Rebecca Dobras who told Freesemann during an April 7 hearing that “they’re still our records. … (the board) still has an interest in keeping these records classified.”
She called them “confidential state records,” adding the district attorneys “have just been speculating on what may be in this file,” adding what the prosecutor wanted was not relevant.
“Why do you need the file?” she asked. “What do you hope to see?”
During the hearing, Rudder told Freesemann she needed to see the records “because I think there are absolutely could be an indication there was fraud inside the pardon” stemming from false information, etc.
Dobras responded that a pardon isn’t subject to judicial review, so it doesn’t matter what was said.
“It doesn’t matter what they reviewed. It doesn’t matter if there’s fraud. ... It doesn’t matter that they have allegations of fraud or allegations of incompetence, none of that matters,” Dobras said.
“The fact is he was pardoned. ... And even if you find they’re not confidential state secrets, they’re still irrelevant to the criminal proceeding at hand.”
The McConnell factor
McConnell, Heap’s chief assistant, is a 31-year veteran prosecutor who served four years with the Smyrna Police Department in Cobb County and is known for his dogged approach to cases.
He was incensed over the parole board’s failure to notify either local prosecutors or the victim’s family about Davis’ pardon and about the board’s repeated refusals to unseal Davis’ file to shed light on why they granted him a pardon.
McConnell testified before Freesemann this month that he has “at least five times” requested that the board unseal the record, most recently on Feb. 15.
For the prosecutors, the problem is twofold.
First, Heap said board members hide behind a “state secrets” veil that she said poses “a lack of transparency that just opens itself to fraud occurring.”
In the Davis case, she said, he went to the victim “under the guise of reconciliation and then tried to get her to recant what happened, but she refused.
“This is what the law needs to protect.”
Secondly, Heap said the board’s policies run counter to the state’s Victims’ Bill of Rights that make sure victims of crime have a voice throughout the criminal justice system.
“From arrest, bond, hearings, whatever happens, the victim has a right to be notified,” Heap said. “We were never told.”
For McConnell, it runs deeper.
He recalled sitting in his office one day when “out of the blue” he received a call from the Chatham County Sheriff’s office reporting that they had a registered sex offender (Davis) who said he did not have to register because he had a pardon.
“That was the first time I learned about it,” he said.
When he inquired, McConnell said, he was told the pardon was in the defendant’s file in the Chatham County Superior Court Clerk’s office.
When he asked further if the board would share the reason for the parole, he was given the “state secret” response.
On at least five occasions, all in writing and by certified mail to the board, McConnell’s requests were denied or ignored.
“They never informed the victims or prosecutors of an impending pardon,” McConnell said.
A pardon may be granted because an offender has been rehabilitated and determined to no longer be a threat or actual innocence has been established.
“We’d like to know what they looked at to determine that he’s been rehabilitated,” Heap said. “But we were told it is a state’s secret.”
“They can pardon whomever they choose, but we want to know who and when they have been pardoned.”
Recurring issue
The issue is not a new one.
After a hearing in February 2014, Chatham County Superior Court Judge Timothy R. Walmsley granted a defense motion to quash a prosecution subpoena for Albert Murray, the parole board’s chairman.
“The court finds that the requested documents are classified as a state secret pursuant (to law) and are thus exempted from disclosure,” Walmsley ruled.
He also determined the records were “not relevant” to the grand jury’s inquiry.
But Walmsley added, “The court has expressed reservations and concern with the current pardoning process and the apparent lack of notification to victims and the prosecuting attorneys.”
He urged the board to work with prosecutors “in possible pardon situations and to consider the likely effects on the victims and criminal process for failure to do so.”
He also “encourages” the board to reconsider its refusal to declassify the documents McConnell requested and ordered a copy of the board’s file be submitted to the court under seal.
Walmsley ruled the board’s records were not relevant to the grand jury proceedings, and the Court of Appeals in December dismissed the matter as moot because the grand jury had returned an indictment in the case.
BREAKOUT
WHAT OTHER STATES DO
A review of pardon and parole programs nationwide found that 40 states allow for gubernatorial pardons, either with a board making recommendations to the governor or those in which the governor acts alone.
In 10 states, systems similar to Georgia’s — a board of pardons and paroles with no oversight — are used. Those include Alabama, Connecticut, Minnesota, Idaho, Nevada, South Carolina, Texas and Utah.
In South Carolina, an offender required to register as a sex offender may only be removed from the registry if the pardon is based on a “finding of not guilty specifically stated in the pardon.”
In Texas, the duty to register as a sex offender is not affected by a pardon unless it is based on a “subsequent proof of innocence.” ..Source.. by Assistant District Attorney Lyndsey Rudder
February 2, 2015
Savannah men charged with pimping underage girls appear in court
2-2-2015 Georgia:
SAVANNAH, GA (WTOC) - Two Savannah men charged with pimping underage girls are scheduled to be in court Monday.
In all, six Savannah men were indicted in what is being called an "underage sex slave ring." Others have already pled guilty, and only two of them are scheduled to be in court on Monday.
Those two men, are charged with human trafficking and pimping several girls under the age of 18.
According to Metro Police Special Victims Unit investigators, the girls say they were given alcohol and marijuana and paid to have sex with several adult men at the same time on several occasions.
One plead guilty to pimping Monday morning and was sentenced to 20 years with one to serve. He will get time served and will be released from jail on Monday. He was also adjudicated under the first offender status, but will have to register as a sex offender.
The other is facing additional charges of statutory rape involving two other girls under the age of 16. His motion hearing will also take place Monday at the Chatham County Courthouse.
WTOC is in court awaiting the outcome of the hearing, and we will keep you updated on new developments in his case. ..Source.. by WTOC Staff
May 28, 2014
Pardoning a Sex Offender: No notification required
5-28-2014 Georgia:
We are learning about a shocking loophole in the Georgia legal system that could allow a convicted sex offender to never have to register with authorities again, and it's possible you would never know it happened.
When an inmate is considered for parole, notifications are sent out allowing the victims and the district attorney's office to have a voice about whether an inmate stays behind bars or not.
However, that's not the case for a pardon, and now we are dealing with a seemingly unprecedented case in the State of Georgia where a child sex offender has been pardoned and no one knew to stop it.
Now, no one seems to know how to deal with it.
Clara Gunter has spent most of her time trying to keep her son's memory alive.
"You don't ever really move on. You just exist from day to day," said Gunter. "It's been very, very hard on both my husband and myself. "
Her son, Tommy Gunter, was murdered back in 1987. The killer, Ronald Crozier, was convicted and sentenced for the crime. Despite the conviction, Gunter spends her time looking out for a notification that Crozier is up for parole.
"I thought that it was over. Then all of a sudden here it goes. And I've had several times I've had to keep him there," said Gunter.
That notification is her only hope of stopping the Board of Pardons and Paroles from letting her son's convicted killer out of prison.
"He'd be walking the streets today if it hadn't been for that. He was going to ease right out their front door."
But what happens when the Board of Pardons and Paroles takes action and no one has to know?
In 1995, former Chatham County resident Barry Davis pleaded guilty to a child sex crime against his own six-year-old daughter. He was sentenced to 10 years to serve and two years on probation.
About two years ago, Davis petitioned to be pardoned for the crime, a legal foregiveness by the state.
"This is a child molester. A convicted child molester, who orally sodemized a six-year-old little girl. We would have fought that vigorously," said District Attorney Meg Heap. "But we didn't know, and we didn't have a say. Nor did the victim's family."
According to the Georgia Board of Pardons and Paroles, there is no statutory notification requirements for pardons, meaning no one knew or had to know Davis was even up for a pardon.
In order to be considered for a pardon, the applicant must have completed his or her sentence, and be crime free for five years. The Board says it also conducts a background check and criminal history on these applicants.
According to the Board, Davis met all those requirements and was pardoned back in February of 2013.
The crime doesn't come off the person's criminal records, but the Board of Pardons and Paroles maintains Barry Davis never has to register again. The DA's office fundamentally disagrees and indicted Davis earlier this year for failing to update his address on the sex offender registry.
"I think this is very serious because the person who was pardoned was a child molester. And the victim's family was never notified and we were not notified and he was pardoned"
Davis is currently out on bond.
According to the DA's office, this is the first case in Georgia to address this issue, if a pardoned sex offender is required to continue to register.
The next court date for Davis' case will be June 26
Heap said she has been meeting with other district attorneys across the state, hoping to draft legislation to change the law making it a requirement to notified them of all pardons. ..Source.. by Alyssa Hyman
August 2, 2013
Cobb County man sues district attorney and others for wrongful prosecution
8-2-2013 Georgia:
COBB COUNTY, GA (CBS ATLANTA) - Leonard Swanagan, of Cobb County, filed a lawsuit Thursday against the Cobb County District Attorney's Office and other agencies for wrongful prosecution, stemming from his arrest and 2011 conviction for violating requirements of Georgia's sex offender registry.
An exclusive CBS Atlanta investigation found Swanagan was not supposed to be on the registry. After the investigation, then-Cobb County District Attorney Patrick Head later dropped the charges in 2012 after Swanagan was granted a new trial.
Swanagan said he was almost prohibited from filing the lawsuit because two Cobb County State Court judges had denied his application for a pauper's affidavit which would have waived the $300 filing fee. Swanagan claimed he was indigent because he lives off his Social Security payments of $695 a month.
After CBS Atlanta investigative reporter Jeff Chirico called Judge Kathryn Tanksley to ask why the affidavit was denied, Tanksley changed her mind and granted Swanagan a pauper's affidavit.
"It evidently had nothing to do with my paperwork. It had nothing to do with my financial situation. It had something to do with me suing Cobb County," said Swanagan.
Rachel Lazarus, staff attorney with Gwinnett Legal Aid said judges who deny pauper's affidavits, block access to the courts for low-income people.
"It's absolutely vital that we access the courts as a society because that's how we solve many of our problems," said Lazarus.
Tanksley's assistant explained that the judge had only reviewed Swanagan's income when she made her initial decision. Swanagan said that should have been sufficient to determine he is indigent.
"I thank God for you and CBS Atlanta," Swanagan told Chirico. "You really came through for me. Without your help, none of this would be possible."
In his lawsuit, Swanagan alleged that the Cobb County District Attorney's Office knew Swanagan did not have to legally register as a sex offender but prosecuted the case anyway.
Swanagan said he was incarcerated for 14 months and offered more than a dozen plea deals, all of which he rejected.
Swanagan was convicted in 2011 after he said none of the evidence he had proving his innocence was entered into court.
In September 2012, Head told CBS Atlanta News that he did not believe his office erred in prosecuting Swanagan.
Swanagan has also filed suit against the Cobb County Sheriff's Office, the Cobb County Adult Detention Center and the Georgia Department of Corrections Sentence Enforcement Unit. ..Source w/Video.. by Jeff Chirico
December 3, 2011
Hidden dangers: Do we know how safe our schools really are?
This is a high school, not a college. What lessons are our children learning from all schools?12-3-2011 Georgia:
Attorney Esther Panitch says she can obtain a reliable grid on police activity in any place in metro Atlanta because it is public information.
“But I cannot get an accurate one in schools because there is culture of hiding incidents and failure to report them,” she says.
Panitch says she is running headfirst into this culture in her legal representation of a 16-year-old Westlake High School student beaten so badly last month at school that he suffered a broken jaw and broken nose and underwent surgery.
Five schoolmates face criminal charges, and the Fulton district attorney has filed a motion to potentially prosecute the juveniles charged in this crime as adults.
Many questions remain about the school’s response in this case, including failing to call an ambulance for the bleeding victim and the 40-minute wait after the attack to call his mother.
On leave from work to nurse her son whose jaw remains wired, his mother says the brutal attack has opened her eyes to the constraints placed on teachers to report problems and the efforts to downplay school violence. In visits to the high school, she says she sees as many of 25 students roaming the hallways and acting up while classes are under way, despite surveillance cameras.
“When I asked teachers in the hallways why they weren’t saying anything, they told me there is no point, that the administration can see the kids on cameras. The kids are in total control,” says the mother, who has asked the media not to use her name to protect her son.
Panitch says “schools need to be in contact with the parents much faster and with more sensitivity to what has just happened to their children. In this case, it took going on the news to get anything from the school and the school board.”
Westlake, a Fulton school in southwest Atlanta, reported 69 fights last year resulting in 27 serious injuries, according to the district.
But can the public trust those numbers or any numbers about school violence?
The federal No Child Left Behind Act says that students attending “persistently dangerous” schools can transfer.
But many states, including Georgia, set the threshold so high for a “dangerous” school that it requires three years of serious violent crimes, or an inordinately high number of drugs or weapon offenses for a school to earn the designation.
State law requires school districts to report offenses that result in serious disciplinary action, including in-school and out-of-school suspension, expulsion and referrals to juvenile or court authorities.
However, the state Department of Education doesn’t validate the submitted data.
“We cannot verify the accuracy,” says DOE spokesman Matt Cardoza.
But Cardoza contends there is some screening.
“The annual discipline reports from school districts that are sent to us are signed off by and authorized by the local school superintendents as being accurate and our Safe and Drug-Free Schools staff members review the annual discipline reports to see if any schools have reported discipline offenses that would put them in the persistently dangerous category and they look for outliers in the data — 20 firearms in an elementary school — that may call to question the accuracy,” he says.
But many teachers contend schools are concealing what is occurring.
As one teacher on the blog said, “When pay and employment is based on the actions of kids and teens, then anything that negatively impacts pay and employment will be diminished. In today’s society, a school full of gun-toting, knife-wielding, fighting teens would be called a failing school, and the teachers and administrators would be blamed.”
“Not surprisingly, some schools became reluctant to report incidents or to downplay the violent aspects of some incidents,” says Tim Callahan, spokesman for the 82,500-member Professional Association of Georgia Educators.
Callahan cites the “blame-and-shame” strategy embedded in No Child Left Behind.
“The analogy that comes to mind is athletic. Rather than improve coaching, the athlete’s training regime or the athlete’s diet, NCLB simply developed more accurate stopwatches and posted the results on the scoreboard with the expectation that improvement would magically occur,” says Callahan.
“The only way it will get better is if we shine a light on it,” says Panitch, “so we can work together on fixing the crime problem rather than hiding it.” ..Source.. by Maureen Downey
July 29, 2011
Did Georgia Meet Sex Offender Registry Deadline? Thousands of Federal Dollars Could Be At Stake
It remains a mystery whether Georgia met a critical deadline this week to comply with a federal ruling known as the Adam Walsh Child Protection and Safety Act of 2006.
“We can’t say for sure at this point, we have packets arriving in droves,” said United States Department of Justice (DOJ) Spokeswoman Kara McCarthy. “It may take up to three months for us to go through all of the packets we have received.”
Wednesday was the deadline for the peach state and more than 30 others to implement the federal mandate that requires states to establish a sex offender registry for adults and juveniles that connects with a national registry.
“To date, 14 states, nine tribes and one territory have substantially implemented Sex Offender Registration and Notification Act (SORNA) requirements,” said Linda Baldwin, Director of DOJ’s Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking (SMART) Office, which administers SORNA. “We are reviewing as quickly as possible the materials submitted.”
DOJ has confirmed that Alabama, Delaware, Florida, Kansas, Louisiana, Maryland, Michigan, Mississippi, Missouri, Nevada, Ohio, South Carolina, South Dakota and Wyoming have substantially implemented SORNA, along with nine native American tribes and the U.S. territory of Guam.
States, tribes and territories that did not meet DOJ’s deadline this week will be denied different amounts of government funding for the year. The Walsh Act specifies that those that failed to substantially implement SORNA by the deadline would be subject to a 10 percent reduction in amount awarded to the jurisdiction under the Edward Byrne Memorial Justice Assistance Grant (JAG) program. Jurisdictions often use these formula grants to improve state and local criminal justice programs with an emphasis on violent crime and serious offenders. The Act also permits states and territories to potentially recoup the 10 percent reduction in a future fiscal year if it is demonstrated that these funds will be used to implement SORNA programs. Sources tell JJIE.org that $750,000, or 10 percent of the estimated $7.5 million of the JAG money allotted to Georgia this fiscal year could be at stake.
Sources with the Georgia Bureau of Investigation, Criminal Justice Coordinating Council (CJCC) and Georgia Department of Juvenile Justice (DJJ) have declined comment on the matter, with the latter deferring to a response from Gov. Nathan Deal’s office. “We’re awaiting a response from the governor’s office, DJJ spokeswoman Scheree Moore said. “We can’t comment until we hear back from them.”
CJCC Executive Director Barbara Lynn Howell did not immediately reply to requests for interviews, but indicated earlier this week by telephone that state officials had been assessing the cost of implementing the registry system versus the potential penalties faced for compliance failure. Sources close to JJIE.org have confirmed that the price tag for implementing the system could cost more than the revenue lost.
At issue also are concerns about whether juveniles should be required to be on a registry list at all. In fact, a document published as part of DOJ’s testimony in a hearing on the Walsh Act indicated that several states cited “juvenile requirements” as a barrier to complying with the Act.
SORNA sets minimum requirements for who to include on the registry and how long to include them. SORNA mandates that certain juvenile sex offenders be included, although a supplemental guideline issued by DOJ permits states to keep juvenile registrants on a non-public list.
Supporters of the sex offender registry legislation argue that non-compliance allows “dangerous” sex offenders to find the gaps and move around accordingly. Critics, however, believe that the danger in non-compliant jurisdictions is exaggerated. During an interview for an unrelated article earlier this week former DJJ Commissioner Garland Hunt affirmed that he believes both sides have strong arguments.
“I’m not sure the stance that the governor and DJJ are taking on that, so I prefer not to comment on that in particular,” he said. “But, I will say with sex offenders you have got to be very careful. You don’t want to stain somebody for life, so I think it should be looked at on a case-by-case basis. However, public safety is a great issue. If it’s determined that [a juvenile be listed on a registry] is what’s best for public safety, that has to be a priority.”
This week’s July deadline was the third in the slow move toward Walsh Act compliance. All states were granted a blanket extension by Attorney General Eric Holder in July of 2009. States were allowed to ask individually for extensions in 2010, and all but the initial four compliant states received one. JJIE.org will continue to update you as our request for interviews and requests are met. ..Source.. by Chandra R. Thomas
May 29, 2011
Boarding Sex Offender Wasn't the Sheriff's Idea
5-29-2011 Georgia:
VALDOSTA, Ga. (CN) - A Georgia sheriff is not liable for the acts of deputies who placed a registered sex offender in a boarding home located close to a school, church and day care, a federal judge ruled.
Timothy Winters claimed that sheriff's deputies for Lowndes County, Ga., forced him to let a registered sex offender live in his boarding home, despite the fact that the property was close to a school, church, park and day care facility. He claimed the sheriff's office failed to remove the boarder at his request.
The presence of the sex offender damaged his business and caused him emotional distress, Winters claimed in a complaint against the city of Valdosta and several officials, including Sheriff Chris Prine. Winters' complaint sought to hold Prine liable, in his official capacity, for the deputies' actions.
U.S. District Judge Hugh Lawson ruled that Prine was not responsible for the acts of his subordinates since he had not personally participated in the alleged unconstitutional conduct.
The court found that Winters failed to establish a causal connection between the sheriff's policies and the deputies' alleged misconduct. Though Winters alleged that Prine's custom or policy resulted in the violation of his constitutional rights, he could not point to a specific policy or custom, Lawson found.
Prine had also moved to dismiss the complaint on 11th Amendment immunity and improper-service grounds. The court declined to address these arguments, finding that Winters' failure to state a claim warranted dismissal of the complaint against Prine. ..Source.. by IULIA FILIP, Court House News
May 8, 2011
The ‘other side’ of sexual charges
5-8-2011 Georgia:
Public defender says he has to prove innocence
Mike McCarthy knows he faces a tough time in court when juries learn the case they’re going to hear involves alleged sexual abuse, especially of children.
“It concerns me with these kind of cases,” said McCarthy, the lead public defender for the Conasauga Judicial Circuit that includes Whitfield and Murray counties. “I can’t think of any other case from the defense side where you go in looking at the prospective jurors and as soon as the charges are read the ‘presumption of innocence’ and ‘guilty beyond a reasonable doubt’ — standard rules of law — go right out the window. You can see it in their eyes.”
McCarthy said “anger” and “predetermination” are the emotional obstacles he and his staff of public defenders most often encounter from jurors.
“There are other cases where you feel like you’ll get a fairer knock, but people feel more strongly about this issue, more than anything else,” he added.
McCarthy said he did not really want to get into a “point-counterpoint” debate in the press with District Attorney Kermit McManus, who detailed in an April 6 story in The Daily Citizen how the prosecution decides whether to move forward in cases of alleged criminal sexual activity toward children. McManus explained how a “team review” of sexual cases works. The review includes social services representatives, law enforcement personnel and court officers.
But McCarthy said there are other aspects to sexual abuse cases the public needs to know about. He said they include the unfairness of mandatory sentencing, the sex offender registry and the stigma that comes when a person’s name is published in a sexual allegations case — even when there’s an acquittal — that make sex crime cases so difficult to handle.
Fair sentencing?
Sentencing in sex cases is one area where McCarthy believes changes need to be made. Currently, “mandatory minimums” approved by the Georgia General Assembly in recent years dictate sentencing and tie judges’ hands and give more power to the prosecution, he said.
He mentioned a case that involved an 18-year-old male and a 15-year-old girl.
“They were at a local teen establishment, and it was a guy-meets-girl thing,” McCarthy detailed. “He thought she was 16 but she was 15. They start to make out and he’s got his hands under her clothes and they were caught by the owner. But there was no ‘crying out’ (for help) on her part.”
McCarthy said the responding police officer charged the 18-year-old with misdemeanor child molestation because he determined his conduct to be “immoral and indecent, possibly because of it happening in a public area, but a dark area.”
But he said the prosecution added an aggravated sexual battery charge, a felony, even though McCarthy said the police officer told him he didn’t agree with it.
“He was assigned to us, and this boy has a terrible choice. He can plead guilty to the child molestation charge — and the (mandatory) 25 years to life sentence (on the felony charge) will be dismissed — but he’ll get 12 months probation, be able to get ‘first offender’ status and be on the sexual offender registry for 12 months,” McCarthy explained. “Or, he can go to trial on the aggravated sexual battery charge, which means she couldn’t legally consent because of her age. The jury is not allowed to know of the minimum 25 years (of) mandatory prison time, probation for the rest of his life and perpetually being on the sex offender (registry).
“That’s one heck of a decision for a young kid to make.”
McCarthy said considering the options he had to suggest the young man plead guilty to the child molestation charge.
“I would have had a terrible time trying to sleep knowing that kid was going to prison for 25 years,” he said. “When you add a count like that, it makes people plead (guilty) ... I don’t think this was what the Legislature had in mind. You take discretion away from the judges and give it to the prosecutor. You let the prosecutor determine what kind of sentencing you’re going to have.”
After reviewing the case, District Attorney Kermit McManus gave a different account of what happened.
“The basic facts are that when the skating rink manager found them the girl had her pants down around her ankles, her panties are down and he’s (aroused),” McManus recounted. “When questioned, the girl said he penetrated her with his finger, and to us the appropriate charge is not just child molestation but aggravated sexual battery. Since 2006, child molestation has had a ‘Romeo and Juliet’ aspect to it, but aggravated sexual battery does not. We indict cases that are supported by the evidence.”
McManus said the defendant “freely and voluntarily” entered the plea.
He said charging decisions are “a whole separate issue” and added, “It’s a problem.”
“Sentencing structures for some crimes are draconian,” said McManus, “but that’s what the Legislature gave us.”
Not surprisingly, McCarthy is opposed to mandatory sentencing.
“If one year is the minimum and 30 (years) is the max, I want the judge to be able to compare that case with other cases,” he said. “Otherwise, I don’t think that’s justice.”
‘No grading’ on registry
McCarthy said another area of concern is the sex offender registry, where the name and photo of a teenage boy caught “fooling around” with his girlfriend can be placed alongside that of a convicted pedophile.
“There’s no grading,” McCarthy said. “You’re either on it or you’re not. And for that young guy it’s looked at unfavorably by potential employers.”
He said the “failure to register” aspect of being on the registry is unreasonable.
“There’s so many things to trip you up, and you can get (from) one to 30 years for failing to register or failing to register properly,” he began. “You have to check in within 72 hours of your birthday every year, whether you’re on probation or not.”
McCarthy did say those convicted of sexual crimes who get “first offender” status have to register as long as they’re serving their sentence, but can get off the list with successful completion of their probation.
The stigma of being accused
While McCarthy said facilities like the GreenHouse are certainly needed, he believes training for those who conduct interviews “should be the best.”
“To me the term ‘forensic’ means science, and I don’t think ‘forensic interviews’ are science,” he said. “It’s frightening to me how little it takes to convict someone of child molestation. If Tonya Craft (who was acquitted in a Catoosa County case of alleged child sexual abuse last year) didn’t have the resources that she did, she’d be serving a long prison sentence right now. I don’t want someone to get convicted just for the sake of a conviction, and not caring whether they’re guilty or not.”
McManus said contrary to some people’s perception, “We’re not making cases up to prosecute.”
“We go into analysis of every single case — especially at team review — to see if there is a fabrication,” he explained. “We look at ways not to prosecute. I’m not saying we’re abdicating our responsibility, but we have to convince ourselves (we can move forward). We have to prove (our case) beyond a reasonable doubt, but we also have to disprove the defense’s case.”
McCarthy said in the public’s mind, even if someone is acquitted of a sexual-related charge, that person may still be guilty.
“How do you get your name back?” he asked. “If you went to trial for child molestation and if the jury was to acquit, there would still be whispers — ‘maybe he got off on a technicality.’ I don’t know if you can ever completely clear your name. How can you get back to where you were before the accusations were made against you?
“Let’s don’t let zeal get in the way of constitutional rights — no one needs to be in prison for a crime they didn’t commit.” ..Source..
March 29, 2011
U.S. v. BEASLEY: On Remand from the United States Supreme Court
3-28-2011 Georgia:
Jimmy Joel Beasley appealed his conviction under 18 U.S.C. § 2250(a) for failing to register as a sex offender in Georgia under the Sex Offender Registration and Notification Act ("SORNA"). This Court affirmed his conviction based on prior precedent. United States v. Beasley, 361 F. App'x 86 (11th Cir. 2010). However, the Supreme Court granted Beasley's petition for writ of certiorari, vacated the judgment, and remanded Beasley's appeal for reconsideration in light of Carr v. United States, 560 U.S. ___, 130 S.Ct. 2229 (2010). Beasley v. United States, 131 S.Ct. 79 (2010).
Beasley's claim is that § 2250(a) is inapplicable to his failure to register in Georgia when he moved there from Mississippi in January 2007 because he moved to Georgia before an interim rule first rendered SORNA applicable to him.
Discussion
In passing SORNA, Congress sought to standardize the varied state sex-offender registries and enhance their effectiveness. See Carr, 130 S. Ct. at 2232. Under, § 2250(a), one who "(1) is required to register under [SORNA,] (2) . . . travels in interstate or foreign commerce . . . [,] and (3) knowingly fails to register" in the new state is eligible for up to ten years in prison for violating SORNA. Id. In Carr, the Supreme Court clarified that these three elements must be met in sequence. 130 S. Ct. at 2236. Thus, a defendant violates § 2250(a) only if he "becomes subject to SORNA's registration requirements . . . [and] thereafter travels and then fails to register." Id. at 2236 (emphasis supplied). In so holding, the Court rejected the argument that the first element is met when a defendant is convicted of the underlying sex offense regardless of when SORNA became applicable to him. Id. at 2235. Because the defendant in Carr traveled before SORNA took effect, Carr could not have been "required to register" under the plain meaning of § 2250(a).
In this case, Beasley was convicted of a state sex offense in Mississippi in 1985. Under Mississippi law, he maintained a current state registration through 2006. He then moved to Georgia in January 2007 and did not register in Georgia. His move to Georgia took place between the July 2006 enactment of SORNA and the February 2007 Attorney General opinion rendering SORNA applicable to him. See United States v. Madera, 528 F.3d 852, 857-59 (11th Cir. 2008) (holding that SORNA became applicable to offenders with convictions predating SORNA only after the Attorney General's February 2007 opinion).1 Although he had not traveled since SORNA became applicable to him, Beasley was prosecuted under § 2250(a).
We relied on United States v. Dumont, 555 F.3d 1288 (11th Cir. 2009), to reject Beasley's claim. Carr overruled Dumont to the extent that Dumont suggests that § 2250(a)'s elements do not have to be met in sequence. See Carr, 130 S. Ct. at 2234 n.1; Dumont, 555 F.3d at 1292. Carr makes clear that the travel must occur after the defendant becomes subject to SORNA.
In light of Carr, we reverse Beasley's conviction because he was not subject to SORNA's registration requirements when he traveled to Georgia and did not register. As the government concedes, Beasley did not meet the elements of § 2250(a) in sequence, as the statute requires under Carr. Accordingly, we vacate Beasley's conviction and remand for further proceedings.2
VACATED and REMANDED. ..Source.. United States Court of Appeals, Eleventh Circuit
November 23, 2010
Court: Defendants with limited English have right to interpreter
This decision defining "Due Process" is important for registrants of sex offender registries. If it is true (according to this decision) that, if one is not affluent with the spoken language (English in this case), a qualified interpreter must be provided, then it is also true that, FSOs -when registering- must have a interpreter affluent in LAW when they are forced to sign forms which are burdened with legal terms and constructions not readily apparent to the signer! Right! Providing one name and address (i.e., registration) is completely different than signing that one understands the law they are to follow....11-23-2010 Georgia:
Atlanta (CNN) -- Defendants with limited English-language skills have a constitutional right to court interpreters in criminal trials, the Supreme Court of Georgia ruled Monday.
The ruling came in a case involving a Mandarin Chinese speaker who was sentenced to 10 years in prison on two counts of cruelty to a child. Annie Ling, who had limited English language skills, did not understand that she had the option to plead guilty instead of going to trial and possibly facing a longer sentence, said the American Civil Liberties Union, one of two groups that filed a friend-of-the-court brief stating that denying a defendant an interpreter violates the U.S. Constitution and civil rights laws.
"The court acknowledged that we don't have two systems of justice in this country -- one for English speakers and another for everyone else," said Azadeh Shahshahani, director of the National Security/Immigrants' Rights Project at the ACLU of Georgia. "The constitutional guarantee of due process applies to everyone in this country, not just fluent English speakers."
Ling was arrested and charged with two counts of cruelty to a child. Her children were removed from the home and placed in foster care, according to court documents. After a 2008 trial, Ling was convicted of one count of cruelty to a child, and sentenced to 15 years, with 10 to serve in prison. The conviction was appealed to the Georgia Supreme Court.
The court agreed with the brief, in which the Legal Aid Society-Employment Law Center joined with the ACLU, that the Sixth Amendment and the due process clause of the 14th Amendment guarantee the defendant the right to an interpreter.
The Georgia Supreme Court also instructed all Georgia state courts to practice "vigilance in protecting the rights of non-English-speakers." ..Source.. by CNN
November 13, 2010
“Happy Birthday, Dear Murder Victim,” Says the Prosecutor w/Cake and Lighted Candles
From the Volokh Conspiracy bringing to our attention a recent Georgia Supreme Court Case.
Here’s what happened in the middle of a trial of parents for killing their child through child abuse (felony murder under Georgia law):
[T]he prosecutor, in the final moments of her concluding argument on behalf of the State, “clicked” her fingers at which signal one of the deputies in the courtroom turned out the lights and an associate prosecutor “popped out a cake out of a grocery bag” complete with eight candles, which were then lit with a lighter brought into the courtroom; the prosecutor and her associate then proceeded to sing to “dear Josef,” i.e., the deceased victim, the celebratory words to “Happy Birthday.”
The dissent (in Smith v. State, decided Monday by the Georgia Supreme Court) argued that this was prosecutorial misconduct that required reversing the convictions, even though the defense lawyer did not object:
There was no legitimate reason for what the prosecutor did. It was neither argument nor rebuttal, because there is nothing at all in the record about birthdays and birthday cakes to raise even the slightest possibility that the prosecutor was drawing a reasonable inference from the evidence presented or the arguments made by defense counsel. To the contrary, the evidence established that the victim’s family followed an austere lifestyle, including dietary restrictions, that eliminated the possibility of the victim experiencing the type of birthday event dramatized by the prosecutor. The prosecutor’s birthday production was not meant to be argument or rebuttal: it was a theatrical stunt spun out of pure fantasy. Its sole purpose was to prejudice the rights of appellants before the jury in an impermissible attempt to invoke the jury’s passions and divert the jury from the evidence. It offended the dignity and decorum of the court and violated every precept of professionalism and fair play. Yet the trial court did absolutely nothing. The event played itself out without the trial judge performing his duty to maintain decorum in the courtroom. Moreover, after observing this “‘preposterous’” performance, the trial court took no steps of any kind to minimize the prejudice. There was no rebuke to counsel; there was no direction to the jury to ignore the spectacle they had just witnessed; there was no charge to the jury that sympathy for the victim was to play no role in their verdict.The majority agreed the prosecutor’s behavior was improper, but concluded that the defense lawyer’s decision not to object was a strategic judgment, and therefore not grounds for reversal. (“Arora testified at the motion for new trial hearing that he made a strategic decision not to object to the ‘Happy Birthday’ song during closing argument. Specifically, Arora thought that the ‘Happy Brithday’ song was so ‘preposterous,’ ‘absurd,’ and ‘over the top’ that ‘it would turn the jurors off,’ and that he should not call any more attention to it by objecting to it.”) ..Source..
November 8, 2010
Ruling: Former Rome police officer must register as a sex offender
11-8-2010 Georgia:
The Georgia Supreme Court has ruled against a former Rome Police officer in his challenge of Georgia’s sex offender registration law.
Paul Wiggins, Jr., formerly an officer with the Rome Police Department, claimed that the Floyd County court’s requirement that he register as a sex offender as a condition of his probation was an illegal sentence.
According to briefs filed in the case:
In the summer of 2003, Wiggins was dispatched to a Holiday Inn in Rome due to possible underage drinking.
Six people, including a 16-year-old girl, were partying and another officer had already arrested two of them after finding crystal meth.
Wiggins vouched for the 16-year-old, saying he knew her father. At trial, the other officer testified he turned the girl over to Wiggins, who asked the girl to meet him at a convenience store.
She met Wiggins and then he drove her to a nearby park where, she testified, he told her to get on the hood of his patrol car and undress.
They had sex, and she testified that “it hurt.” Afterward, Wiggins took her back to her car and warned her not to tell, according to prosecutors. The girl then drove to the home of friends, who testified she was “crying” and told them she’d been raped.
They called 911, and she then went to the hospital where she was examined and detectives photographed the bruises on her legs. The GBI crime report positively identified the DNA as Wiggins’.
Wiggins later maintained at trial that the sex was consensual.
Wiggins was charged with rape, sodomy, sexual battery, false imprisonment, cruelty to children, false writings and statements and violation of his public oath.
In December 2003, a jury convicted him of child cruelty, false writings and violation of his oath of office but acquitted him of rape and the other charges. Wiggins appealed to both the Georgia Court of Appeals, which upheld his convictions, and the Georgia Supreme Court, which upheld all but the false writings conviction.
In 2007, he filed a petition for a writ of habeas corpus – a civil proceeding that gives convicted defendants another chance to challenge their conviction – but the habeas court denied him relief.
He then tried to appeal that ruling to the state Supreme Court, but this Court denied his petition.
In 2009, Wiggins filed a “Motion to Strike Invalid Condition of Probation and/or Correct Illegal Sentence.”
The trial court denied his motion, and he again appealed to the Supreme Court.
In his latest appeal, Wiggins argued that state law includes in the definition of a sexual offense a number of crimes, but cruelty to children is not one of them. Wiggins furthermore claimed that the registration requirement violates his constitutional rights, because the lifelong punishment exceeds the maximum sentence he could have received for the crimes he was convicted of.
In today’s unanimous decision, Justice Robert Benham writes that the jury found Wiggins had committed a sexual offense against a minor, “when it found appellant guilty of the crime of cruelty to children, which was described in the indictment as maliciously causing a child under the age of 18 cruel and excessive mental pain through sexual contact.
The high court rejected Wiggins’ constitutional challenges, citing its earlier decision this year in Hollie v. State, in which it ruled that lifetime registration is required by the sex of-fender registration statute and does not exceed the maximum penalty for the crimes a defendant was convicted of.
Furthermore, “[t]he sex-offender registry requirement is regulatory and not punitive in nature,” today’s opinion states. ..Source.. by Rome-News Tribune.com
