12-6-15 New Mexico:
New Mexico tribal leaders say the decision in a long-running Indian law case that will be heard Monday by the U.S. Supreme Court could impair their ability to govern themselves.
“It’s sad. It’s a direct attack on tribal sovereignty and Native American rights, and it’s plain wrong,” said Joe Talachy, governor of Pojoaque Pueblo.
He was referring to the case involving Dollar General Corp., a multibillion-dollar business with 12,396 stores in the United States, and the federally recognized Mississippi Band of Choctaw Indians. At issue is whether tribal courts can exercise civil jurisdiction over non-Indians for wrongs committed on their lands.
In 2000, Dollar General opened a store on land leased from a tribally owned company. Three years later, the store manager allegedly sexually assaulted a 13-year-old tribal member who was in a job-training program. When the U.S. attorney declined to pursue a criminal case, the teen sued Dollar General and the employee in tribal court for $2.5 million. The company contested the tribal court’s jurisdiction all the way to the Fifth Circuit Court of Appeals, losing each time.
The U.S. Supreme Court agreed in June to hear an appeal of the rulings, raising fear among the tribes that it was looking to make a broad decision that could further restrict tribal authority. And, tribal advocates say, the court’s decisions overall under Chief Justice John Roberts have not been particularly friendly to Native Americans.
Santa Fe lawyer Bryant Rogers, who represented the Choctaw tribe in this case, and many others will be handing off the oral arguments to Neal Katyal, a former acting solicitor general of the United States who has argued 25 cases before the Supreme Court. Rogers will be on hand for the arguments.
The case involving Dollar General comes after years of efforts by tribes to hold onto their authority over non-Indians.
In 1978, the U.S. Supreme Court ruled that tribal courts do not have power over non-Indians in criminal matters, although Congress said in 2013 that tribes can have special jurisdiction over non-Indians who commit domestic violence in Indian Country.
Another U.S. Supreme Court case in 1981 said tribal sovereignty includes the power to use “some forms of civil jurisdiction over non-Indians on their reservation,” such as those that arise from contracts and leases or cases in which Congress has specifically consented.
The Mississippi Band of Choctaw Indians maintains that current case law doesn’t require specific consent to tribal jurisdiction and that there is implied consent because of the relationship between the store and the assault.
Dollar General believes that express consent to tribal jurisdiction is required, and in September, it was joined by six states, including Oklahoma, that argued in a friend-of-the-court brief that there were too many uncertainties in tribal courts for non-Native defendants to get a fair trial.
The brief said many tribes don’t have a fully written code for a court system.
But Edward Gehres, who heads a tribal business legal practice in Washington, D.C., said the Choctaw courts are relatively sophisticated and able to handle cases such as this one. Moreover, the federal government, which is supporting the tribes in the Dollar General case, has been a fairly strong supporter of the growth of tribal courts in recent years. There is even a tribal lawyers association, which held its first conference last month in Michigan.
Tribes are worried about how the Supreme Court’s ruling on jurisdiction in this case could impact all sorts of issues on their lands — from toxic waste dumping and destruction of cultural property to marijuana grows and meth labs. The ruling also could affect unauthorized grazing, hunting and fishing, and illegal tree cutting.
“Tribes have a way to deal with it. The feds are not going to do it. The state is not going to do it,” Gehres said.
He pointed to a recent case in which a non-Indian woman was sued in tribal court for damages from a forest fire she started accidentally in Arizona when her car broke down and she got lost. The U.S. attorney refused to prosecute the case.
The National Congress of the American Indian said in a court brief in the Dollar General case that in many instances, “Non members go unpunished more often than not. Simply put, non-Indian criminals believe they can act with impunity on Indian lands.”
The brief said the express consent standard for tribal civil jurisdiction over nonmembers “would depart radically from current standards established by this court’s jurisprudence and is, quite simply, unworkable.”
Jurisdiction in cases like this one is “most critical to a tribe’s ability to self govern its own people, territories and resources,” the brief stated.
Talachy said the issue of non-Indian offenders avoiding consequences for crimes on tribal lands is a common problem in New Mexico. If the tribes have no recourse against non-Native offenders, they will not be prosecuted, and “the federal government rarely has the resources,” he said. “It’s only fair we get to do that. Otherwise, we have offenders walking around with nothing against them. It’s been proven in Indian Country.”
He said he could think of three serious crimes recently on tribal land, including rape, in which the U.S. attorney declined to prosecute. “Historically, Native Americans were oppressed and raped, and it’s still happening today. It’s plain wrong. If we lose, we lose all recourse and especially our ability to protect our women. It would be a complete disaster.”
But there’s also downside to an all-out tribal win, Talachy pointed out. His tribe, like many, does business with big companies such as McDonald’s, Dairy Queen and other vendors who lease space from them. But in the future, if the court says the tribes have jurisdiction over non-Indians in tort claims, those interests might be reluctant to do business with them.
“This Dollar General case is going to turn bad for Indian Country either way,” Talachy said.
Lawyers watching the case closely believe that a broad ruling is more likely if Dollar General wins. But a win for the tribe is likely to be more narrow, meaning tribes’ civil jurisdiction would continue to be tested.
“The stakes for the tribe and frankly for all of Indian Country are the future of its judiciary to have power over certain actions of non-Indians within the boundaries of the reservation,” Gehres said.
The Supreme Court’s decision is expected next year. ..Source.. by Anne Constable
December 6, 2015
Indian law faces challenge as sex assault case heads to high court
April 22, 2014
Court urges rewrite of state's child porn law
New Mexico’s highest court on Monday overturned more than two dozen convictions in separate child pornography cases in a ruling that drew sharp criticism from Republican Gov. Susana Martinez, a former prosecutor.
The state Supreme Court said the defendants can be charged with only one felony count of possessing child pornography despite having many pornographic images of children.
Martinez spokesman Enrique Knell said the ruling “will place children at risk.”
“Hundreds of children, including infants, can be repeatedly abused and exploited by these predators, with images and videos preserved on a single computer, and prosecutors should have the ability to charge those individuals with multiple crimes,” Knell said in a statement. “This decision allows predators to victimize kids over and over again, for an extended period of time, without fear of additional jail time.”
The court said state law is unclear about the circumstances under which prosecutors can bring more than one charge against someone for possessing multiple pornographic images of children.
In its 4-1 decision, the court recommended the Legislature rewrite the law against possession of child pornography.
Rick Tedrow, president of the New Mexico District Attorneys Association, said the ruling was a “major setback to the prosecution” of child pornography possession cases.
“In an era where such disturbing materials can be shared easily via digital Internet, it has been our goal to enforce punishment and to protect minor children,” said Tedrow, district attorney for San Juan County.
He said it’s unclear how the ruling will affect previously prosecuted cases in which offenders have been sentenced.
Tedrow said district attorneys will meet with Attorney General Gary King and law enforcement to consider how to handle cases until a change in law can be proposed to the Legislature next year.
The court, in separate cases from the Clovis area, said James Michael Olsson and William Ballard can each be charged with only one count of possession of child pornography.
Olsson pleaded guilty to six counts after initially being charged in 2005 with 60 counts and later having that increased to 152 counts. He was sentenced to eight years in prison. Authorities said he had photographs in three binders and images on a computer.
A jury convicted Ballard of 25 counts of child pornography possession in 2009, but the Court of Appeals later reduced the convictions to five counts. He had video files and digital photographs on a computer’s external hard drive, authorities said. Ballard was sentenced to 37 years in prison, with all but nine years suspended.
Possession of child pornography is a fourth-degree felony, with convictions carrying a sentence of up to 18 months in prison.
The court’s majority said state law doesn’t clearly indicate the “unit of prosecution,” such as whether there’s a separate violation of the law for possessing each individual pornographic photograph or digital image of a child in a prohibited sex act.
Because state law is “insurmountably ambiguous,” the court said it was applying the “rule of lenity” to decide the cases in favor of the two men and conclude that they could be charged with only one count of the crime — each count covering all of their pornographic images.
The justices recommended the Legislature change the law to reflect modern advances in technology that allow the electronic storage of large amounts of data and images.
The Court of Appeals had reduced Ballard’s convictions to five — one for each time he used his computer to download pornographic video clips and photographs of children. The state Supreme Court rejected that reasoning, however.
Justice Edward Chavez disagreed with the court’s majority decision and outlined his view of when prosecutors could bring multiple charges. ..Source.. by Barry Massey
April 18, 2014
Rael campaign to donate $25 possibly contributed by sex offender
Two Albuquerque Republican lawmakers defending Gov. Susana Martinez following a highly critical magazine profile this week attacked some Democrats for alleged “hypocrisy.” One of those under attack was gubernatorial candidate Lawrence Rael.
“In a finance report filed just this week, Lawrence Rael accepted a contribution from Larry Neely, a convicted sex offender who now travels the country opposing child sex offender laws, including Megan’s Law,” said the news release from Republican state Reps. Paul Pacheco and Monica Youngblood. “This pro-sex offender activist has even testified against sex abuse bills in front of the New Mexico Legislature. … Why would this man support Lawrence Rael and why would Rael accept his support if he’s such a defender of women’s rights?”
A spokesman for the Rael campaign said Thursday that the campaign contribution in question was for $25 and that Rael would contribute that amount to the CASA (Court Appointed Special Advocates) program, which helps crime victims.
“Lawrence would not knowingly take money from a convicted sex offender,” said Kyle Armstrong. The campaign received money from more than 500 donors during the last reporting period, Armstrong said.
He said the first the campaign had heard of the contribution was in a New Mexican article Thursday morning.
There was a link in the Pacheco/Youngblood news release to an October 2013 story in the New York Times quoting a man named Larry Neely, who was convicted of multiple counts of sexual indecency with a child dating to 2003. Neely had a attended a conference in Los Angeles for a group that believes laws aimed at all sex offenders are unconstitutional and ineffective.
According to the Reform Sex Offender Laws Inc. website, there is a New Mexico resident named Larry Neely listed as part of the group’s administrative team. The website says Neely also is on the board of the New Mexico chapter of the group.
There are several people named Larry Neely listed in Albuquerque, so it’s not clear that Rael’s contributor is the same one associated with the group. The state sex offender registration does not list anyone with that name.
But whether or not the contributor is the same Larry Neely, Armstrong said Rael would make the donation to CASA.
A contributor with the same name also donated $10 to secretary of state candidate Maggie Oliver and $25 to the Conservation Voters New Mexico Action Fund. ..Source.. by Steve Terrell
December 5, 2013
Was this man RAPED -under the color of law- MULTIPLE times?
12-5-2013 New Mexico:
4 On Your Side investigates traffic stop nightmare
This 4 On Your Side investigation looks into the actions of police officers and doctors in Southern New Mexico.
A review of medical records, police reports and a federal lawsuit show deputies with the Hidalgo County Sheriff's Office, police officers with the City of Deming and medical professionals at the Gila Regional Medical Center made some questionable decisions.
The incident began January 2, 2013 after David Eckert finished shopping at the Wal-Mart in Deming. According to a federal lawsuit, Eckert didn't make a complete stop at a stop sign coming out of the parking lot and was immediately stopped by law enforcement.
Eckert's attorney, Shannon Kennedy, said in an interview with KOB that after law enforcement asked him to step out of the vehicle, he appeared to be clenching his buttocks. Law enforcement thought that was probable cause to suspect that Eckert was hiding narcotics in his anal cavity. While officers detained Eckert, they secured a search warrant from a judge that allowed for an anal cavity search.
The lawsuit claims that Deming Police tried taking Eckert to an emergency room in Deming, but a doctor there refused to perform the anal cavity search citing it was "unethical."
But physicians at the Gila Regional Medical Center in Silver City agreed to perform the procedure and a few hours later, Eckert was admitted.
What Happened
While there, Eckert was subjected to repeated and humiliating forced medical procedures. A review of Eckert's medical records, which he released to KOB, and details in the lawsuit show the following happened:
1. Eckert's abdominal area was x-rayed; no narcotics were found.Throughout this ordeal, Eckert protested and never gave doctors at the Gila Regional Medical Center consent to perform any of these medical procedures.
2. Doctors then performed an exam of Eckert's anus with their fingers; no narcotics were found.
3. Doctors performed a second exam of Eckert's anus with their fingers; no narcotics were found.
4. Doctors penetrated Eckert's anus to insert an enema. Eckert was forced to defecate in front of doctors and police officers. Eckert watched as doctors searched his stool. No narcotics were found.
5. Doctors penetrated Eckert's anus to insert an enema a second time. Eckert was forced to defecate in front of doctors and police officers. Eckert watched as doctors searched his stool. No narcotics were found.
6. Doctors penetrated Eckert's anus to insert an enema a third time. Eckert was forced to defecate in front of doctors and police officers. Eckert watched as doctors searched his stool. No narcotics were found.
7. Doctors then x-rayed Eckert again; no narcotics were found.
8. Doctors prepared Eckert for surgery, sedated him, and then performed a colonoscopy where a scope with a camera was inserted into Eckert's anus, rectum, colon, and large intestines. No narcotics were found.
"If the officers in Hidalgo County and the City of Deming are seeking warrants for anal cavity searches based on how they're standing and the warrant allows doctors at the Gila Hospital of Horrors to go in and do enemas and colonoscopies without consent, then anyone can be seized and that's why the public needs to know about this," Kennedy said.
Search Warrant Concerns
There are major concerns about the way the search warrant was carried out. Kennedy argues that the search warrant was overly broad and lacked probable cause. But beyond that, the warrant was only valid in Luna County, where Deming is located. The Gila Regional Medical Center is in Grant County. That means all of the medical procedures were performed illegally and the doctors who performed the procedures did so with no legal basis and no consent from the patient.
In addition, even if the search warrant was executed in the correct New Mexico county, the warrant expired at 10 p.m. Medical records show the prepping for the colonoscopy started at 1 a.m. the following day, three hours after the warrant expired.
"This is like something out of a science fiction film, anal probing by government officials and public employees," Kennedy said.
No Comment
KOB reached out to the attorneys representing the defendants in the lawsuit and all declined to comment on the situation. The attorneys said it's their personal policy not comment on pending litigation.
4 On Your Side Investigative Reporter Chris Ramirez cornered Deming Police Chief Brandon Gigante.
"As the police chief what reassurances could you give people when they come through your town that they won't be violated or abused by your police officers?" Ramirez asked Chief Gigante.
"We follow the law in every aspect and we follow policies and protocols that we have in place," Chief Gigante replied.
"Do you think those officers in this particular case did that?" Ramirez asked.
Gigante didn't answer, instead he referred Ramirez to his attorney.
The Lawsuit
David Eckert is suing The City of Deming and Deming Police Officers Bobby Orosco, Robert Chavez and Officer Hernandez.
Eckert is also suing Hidalgo County Hidalgo County Deputies David Arredondo, Robert Rodriguez and Patrick Green.
Eckert is also suing Deputy District Attorney Daniel Dougherty and the Gila Regional Medical Center including Robert Wilcox, M.D and Okay Odocha, M.D. ..Click for Source and for court documents.. by Chris Ramirez
September 20, 2013
BrdsNBz: New Mexico teens can text sex questions to hotline
It's like sexting, but with benefits.
New Mexico teens have an alternative to their parents when it comes to sexual health questions. And it comes in a form they're familiar with: text messaging.
Appropriately named "BrdsNBz, the service launched this month allows teens to text sexual health questions to a hotline. Within 24 hours, a health expert will text back a private, nonjudgmental response.
"Talking about the birds and the bees -- sexual health -- is almost always awkward for parents, teens and sometimes both of us," state health officials say.
The service, available in Spanish and English, targets teens between ages 13 and 19.
Is there a different standard for girls online?
New Mexico is among the top three nationally in teen birth rates, said Valerie Fisher with the state health department.
"I have an 11-year-old. I try to explain things to him, and he's like, 'Mommmm, stop!' so I understand," Fisher said. "This is a great tool. It educates teens, they learn some things maybe they didn't know and it even helps them ask their parents better questions."
Although teenage pregnancy rates in the U.S. are at historic lows, they are substantially higher than other Western countries.
"Teen birth rates fell at least 15% for all but two states during 2007--2011— the most recent period of sustained decline," the Centers for Disease Control and Prevention says.
The pregnancy rate for girls ages 15-19 dropped to 31.3 per 1,000 in 2011, a record low for the United States.
But experts say the drop does not mean the issue is no longer a priority.
Other states offer similar services for teens.
North Carolina launched a BrdsNBz program in 2009. California has its own service, HookUp 365247, which is loosely based on the same concept. It provides teens who text the number with weekly sexual health tips and the nearest reproductive health clinics.
In New Mexico, parents can text their questions as well. ..Source.. by CNN, Faith Karimi
September 9, 2013
Civil Rights Group Calls for DA Kari Brandenburg to Vigorously Prosecute Vigilantes
Reform Sex Offender Laws Inc. (RSOL) calls on Bernalillo County District Attorney Kari Brandenburg to follow the recommendation of the Albuquerque Police Department and vigorously prosecute Emilio Chavez III and all others responsible for the savage beating of Dylan Maho on September 5th. According to police reports, Mr. Chavez has proudly admitted to administering “street justice” to an accused Peeping Tom.
Brenda Jones, RSOL’s Executive Director, condemned the vicious attack on Mr. Maho that sent him to the hospital barely alive. She noted that vigilantism is on the rise all over America and that the greatest documented increase seems to be directed at citizens listed on sex offender registries.
Jones stated, “Sex offender registries are increasingly used as hit lists. Just last week a registered sex offender was beaten to death on the streets of Baltimore. A few weeks prior, a man and his wife were both brutally murdered in their home in South Carolina. Her offense was that she was married to a person listed on the South Carolina sex offender registry.” ..continued.. by RSOL
March 22, 2013
Sex Offender Watch Getting Easier and Easier
$400,000 to tell folks where former offenders sleep for a few hours of the day/night. Talk about a waste of money, this is classic. Lets see, what about murderers, car thieves, DUI convictions etc all those that are far more likely to affect live in the community. $400,000 to do what a deck of index cards can do.3-22-2013 New Mexico:
Keeping tabs on area sex offenders is getting easier and easier. Just ask Lt. Harry Hall, a veteran public safety officer from the Cibola County Sheriff’s Department.
“The information was already accessible,” Hall said on Wednesday. “Now it is super-accessible with OffenderWatch.”
A sex offender watch website promotes sex offender awareness. Creation of the website was paid for by a $400,000 federal government grant, according to Hall.
All sex offenders in Cibola County are required to report to Hall. Keeping tabs of sex offenders has been part of Hall’s duties since 2001. “The system has changed dramatically since I started,” Hall explained.
Hall said, currently, there are 51 sex offenders in the county. Forty-one are in the public system while the other 10 require a website that is only accessible to Hall and other state officials.
“This new system is amazing,” Hall said. “As soon as an offender walks in the my door and informs me that he has moved, I can update the system as he or she is walking out the door.”
Hall noted that half of the offenders in Cibola County are required to report to him once a year, the other half every 90 days.
Depending on the offense, some offenders are in the system for 10 or 20 years or even a lifetime. For example, if a person is guilty of criminal sexual penetration in the third or fourth degree, they are required to be in the sex offender system for 10 years. If a person is guilty of the same crime in the first, second or third degree - aggravated, the offender is in the system for life.
If an offender moves, he or she is required to report it to Lt. Hall within 10 days.
“I guess the goal is paperless,” said Hall. “The system makes my job easier.”
In 1995, the state began to require Sheriff Departments to keep tabs on sex offenders. The new responsibility came with no funds, according to Hall.
OffenderWatch, the company which created Cibola County’s Sex Offender Watch website, is creating similar sites for more than 1,000 agencies nationwide.
The Pueblo of Laguna and the Navajo Nation have their own sex offender website, while the Pueblo of Acoma does not, according to Hall.
Sheriff Johnny Valdez said, “Our office is pleased to provide OffenderWatch for the citizens of Cibola County. OffenderWatch is the nation's leading registered sex offender management and community notification tool with hundreds of agencies in dozens of states utilizing it.
“OffenderWatch is updated instantaneously throughout the day as offender addresses and other offender information is updated in our office. You may enter any address in the county and see real-time information on the publishable offenders within the specified radius of the address you enter.” ..Source.. by Donald Jaramillo
January 11, 2013
Proposed bill to ban sex offenders from social media cites meets criticism
1-11-2013 National:
A proposed state law that would ban all registered sex offenders from using social media websites such as Facebook is being called unconstitutional by advocates of sex-offender law reforms.
The bill, introduced by state Rep. Nate Gentry, R-Bernalillo, would restrict registered sex offenders from using any instant messaging or chat room websites that “the sex offender knows allows a person who is under eighteen years of age to access or use.”
A first offense, according to the bill, would be a misdemeanor, and any subsequent offenses would be prosecuted as fourth-degree felonies.
Gentry said Thursday that the bill was created in response to what he called a growing number of instances around the country in which minors have been targeted by sex offenders through websites such as Facebook, Twitter and Google+.
“There have been many instances throughout the country where convicted sex offenders have lured children into unsafe situations using social media,” Gentry said.
The proposed bill has already received criticism from organizations such as Reform Sex Offender Laws of New Mexico. Lloyd Schwartz, the organization’s president, said Thursday that the bill is “overly broad” and “doesn’t take into account that many of the people on the registry didn’t commit a crime against a minor.”
“This has been a grandstand issue that’s been taken to the courts around the country and dismissed as unconstitutional,” Schwartz said.
Nebraska, Louisiana and Indiana have enacted laws similar to Gentry’s proposed law — and in Louisiana and Nebraska, laws banning sex offenders from social media websites have been deemed unconstitutional.
Senior U.S. District Judge Richard Kopf in Nebraska said in October 2012 said that legislatures need to “concentrate on demonstrated risk rather than speculating and burdening more speech than is necessary — use a scalpel rather than a blunderbuss,” the judge told the Lincoln Journal Star.
On the other hand, U.S. District Judge Tanya Walton Pratt of Indiana upheld a similar law in Indiana, ruling that “Social networking, chat rooms, and instant messaging programs have effectively created a ‘virtual playground’ for sexual predators to lurk,” according to The Washington Post.
Gentry said he modeled his bill after the Indiana law that Pratt upheld in June 2012.
“We’re trying to protect our kids here,” Gentry said.
Santa Fe Police Sgt. Andrea Dobyns, head of the Crimes Against Children Unit, said she thinks the proposed law is a “great idea” and would aid law enforcement in preventing predators from targeting minors.
“I can’t tell you how many cases that we’ve seen with known predators using chat rooms,” Dobyns said.
In a study conducted by Harvard University in 2008, minors identified about 48 percent of sexual solicitors as being other adolescents, and only 4 percent to 9 percent being adults older than 21. The study found that 44 percent of Internet-initiated sex crimes were committed by family members, and 56 percent were committed by people known to the victim offline.
“In other words,” the study states, “the threat of Internet-initiated sex crimes committed by strangers appears to be extremely exaggerated.”
However, according to a national study in 2010, in 82 percent of online sex crimes against minors, the offender used the victim’s social networking site to gain information about the victim’s likes and dislikes, according to the Journal of Adolescent Health.
Sex offenders on probation or parole in New Mexico are already prohibited from using social media sites through the state Department of Corrections. In most cases, sex offenders are sentenced to five to 20 years of probation and parole after their term of incarceration.
Schwartz argues that extending probation regulations into the rest of a person’s life strips the person of their First Amendment right to free speech. ..Source.. by Nico Roesler
May 1, 2012
Lawyer critical of sex offender address checks
Given the US Marshalls have no jurisdiction to do home address checks of state offenders, this is definitely a form of something close to harassment. State registrants only have to speak to state law enforcement and can simply decline to speak to any federal officer. What a waste of taxpayer funds... (See this PAGE, scroll down to US Marshals section)5-1-2012 New Mexico:
A Santa Fe lawyer is blasting the U.S. Marshals Service plan of going door to door to verify the addresses of convicted sex offenders in New Mexico. KOB Eyewitness News 4 broke the story last week of "Operation Cleanup."
Marshals plan to check the addresses of the nearly 3,000 registered sex offenders in the state as a matter of public safety.
Santa Fe lawyer Jason Flores-Williams, and the group Reform Sex Offender Laws New Mexico, have concerns about the plan.
Flores-Williams said other law enforcement agencies already check addresses of sex offenders, and wonders why federal authorities are getting involved in something delegated to the state.
"This is nothing more than another gutting of the constitution--a government publicity stunt designed to harass and intimidate that does nothing to enhance public safety," Williams said.
He is telling sex offenders who are not under supervision that they may videotape any encounter at their home with law enforcement and they should get the names of officers who visit.
U.S. Marshals told KOB they have no plans to enter homes. They said they do not have to go inside to check addresses.
They also said they are not conducting the operation on their own. According to the U.S. Marshals, "Operation Cleanup" is an ongoing joint effort between the Marshals Service and state, county and local agencies.
Marshal Conrad Candelaria responded to the plan as a "publicity stunt." He told KOB Monday that he is insulted hearing that. Marshal Candelaria said it is not a stunt to hold people accountable for horrendous acts against families and children.
He also said the Marshals Service also works hard to bring fugitives to justice, including chasing and capturing those who flee to Mexico. ..Source.. by Joe Vigil, KOB Eyewitness News 4
March 26, 2012
NM Supreme Court takes up case of what constitutes a sex offender
3-26-2012 New Mexico:
SANTA FE — If a man convicted of a sex crime in California moves to New Mexico, is he required to register as a sex offender?
The New Mexico Supreme Court on Monday heard arguments in such a case, a clash between the state’s law enforcement system and a 65-year-old man named Bruce D. Hall. Hall pleaded no contest 13 years ago in California to the misdemeanor of “annoying or molesting a child.”
New Mexico prosecutors say he touched the genitals of three young boys when lifting them. California still lists Hall on its sex offender registry, but says his whereabouts are unknown.
In fact, Hall moved to Las Cruces, where he did not register as a sex offender. This led the district attorney’s staff in Dona Ana County to charge him in 2008 with a fourth-degree felony and to try to compel him to register as a sex offender. Hall lost in district court, then appealed and won his case.
The New Mexico Court of Appeals ruled that he did not have to register as a sex offender in New Mexico because the state has no equivalent law to the one he was convicted of breaking in California. Now it is the state that is appealing, asking the New Mexico Supreme Court to reverse that decision.
B. Douglas Wood, a state public defender, argued Hall’s case before the Supreme Court. Hall himself was not in the courtroom. Wood said the Supreme Court would have to legislate from the bench to rule against Hall.
Wood said the state Legislature had restricted sex-offender registrations to those convicted of at least one of 11 specific crimes in New Mexico or equivalent crimes in other states.
The California crime of annoying or molesting children is not on the books in New Mexico and there is no equivalent law, Wood said.
Margaret McLean, an assistant attorney general, countered that New Mexico does indeed have a similar law — criminal sexual contact of a minor. She said the state Court of Appeals incorrectly ruled that the crimes were not equivalents of one another.
Clearly, McLean said, the ruling in Hall’s favor was contrary to the Legislature’s intent of protecting children by requiring sex offenders to register when they move into the state. Supreme Court Justice Richard Bosson questioned McLean on that point.
Bosson said it would have been easy for the New Mexico Legislature to simply say that all people convicted of sex crimes in any jurisdiction had to register. But, Bosson said, lawmakers did not cast the net that wide, instead writing the law to encompass equivalent crimes.
But Chief Justice Charles Daniels said New Mexico law already allows for convictions of people who solicit children for sexual purposes or attempt to touch them. Therefore, even someone who did not touch a child inappropirately can still be a sex offender under New Mexico law.
“Aren’t we chasing a shadow, a false issue” over whether the state has equivalent laws to what Hall did in California? Daniels asked.
McLean said that was exactly the point. Neither state allows the sort of conduct that led to Hall’s no-contest plea in California, she said.
But Wood said the Legislature never intended for all offenses elsewhere to require sex-offender registration in New Mexico. What if, he said, a state passed a law making it a sex crime to look at Playboy magazine? Would New Mexico be bound to register those people as sex offenders? Justice Patricio M. Serna said Wood’s argument was not relevant.
The issue, Serna said, was whether both California and New Mexico had created sex-offender registries to protect children from predators. Wood again pointed to the appeals court ruling, which found that New Mexico has no equivalent law to the one that Hall was convicted of.
“... The fact that both statutes may serve similar purposes is in no way controlling,” Chief Judge Celia Foy Castillo wrote in the appellate court’s decision. “Because the statutes differ on the essential element of touching or application of force, we hold that they are not equivalent under the Sex Offender Registration and Notification Act.”
Next the Supreme Court must decide whether to let that ruling stand or overturn it. The Supreme Court may not reach a decision for several months. ..Source.. by Milan Simonich
March 8, 2012
Governor vetoes bill on child killings, says it actually would weaken law
3-8-2012 New Mexico:
SANTA FE -- Gov. Susana Martinez on Wednesday vetoed a crime bill that she said actually would have undercut district attorneys in high-stakes cases.
The bill as first drafted permitted sentences of life in prison without possibility of parole for those convicted of first-degree murder of a child.
But Martinez said amendments to the bill by the Senate Judiciary Committee created something different by allowing exceptions based on the age of the killer and the particulars of the crime.
Martinez, a former district attorney, said one effect of the rewritten bill could have been lighter punishment for certain killers.
For instance, she said, if a 17-year-old murdered a police officer in the line of duty, the amended bill would shield the killer from a life prison term without parole.
Martinez said in her veto message that she would have supported the original bill, but could not accept the changes to it.
The sponsor, Sen. Mary Jane Garcia, said she did not believe amendments to her bill made the legal system less strict.
"I'm devastated," Garcia, D-Dona Ana, said of the veto.
Garcia said her intent was simple: She wanted to target predatory child killers, such as the murderer of Adam Walsh in Florida. Walsh was 6 years old when somebody abducted him from a mall and murdered him.
Serial killer Ottis Toole subsequently confessed to killing the boy, though he recanted and died without being tried in Walsh's death.
Garcia said those who prey on the children younger than 13 should face the harshest penalty available in New Mexico -- life in prison without the chance of parole. New Mexico legislators outlawed the death penalty in 2009.
Garcia said she did not know if the governor vetoed on the bill because of their political disagreements over driver's licenses for illegal immigrants or forced retention of third-graders who are in the bottom tier on reading tests.
But Martinez, in her veto message, applauded Garcia for the original bill. Martinez said the amended version simply had holes in it.
As originally drafted, the bill would have made life without parole possible for Tiffany Toribio, who pleaded guilty to suffocating her toddler son, then burying him at a playground in Albuquerque, Martinez said.
But, she said, an amendment to Garcia's bill said the punishment of life without parole depended on the child being "forcibly abducted."
"Clearly, Ms. Toribio did not forcibly abduct her son before she intentionally killed him," Martinez said.
Garcia said she had not intended her bill as one to heighten punishments for abusive parents. She said she wanted to strengthen the law so that child predators who kill could never get out of prison.
Sen. Gerald Ortiz y Pino, D-Albuquerque, was one of two senators who voted against the bill. He said he did not understand the logic of increasing sentences based on the narrow circumstances that Garcia outlined. ..Source.. by Milan Simonich Texas-New Mexico Newspapers
January 20, 2012
US appeals court says sex offenders have right to libraries
1-20-2012 New Mexico:
DENVER (Reuters) - A federal appeals court ruled on Friday that a policy barring registered sex offenders from public libraries in Albuquerque, New Mexico, was unconstitutional, a decision that could have reverberations across the nation.
"The First Amendment includes a fundamental right to receive information," a three-judge panel of the Denver-based 10th U.S. Circuit Court of Appeals wrote.
"By prohibiting registered sex offenders from accessing ... public libraries, the city's ban precludes these individuals from exercising this right in a particular government forum," the court said.
But the panel left open the possibility of allowing restrictions less stringent than an outright ban.
The case stemmed from a 2008 "administrative injunction" by then-Mayor Martin Chavez, who ordered city libraries to send letters to registered sex offenders holding library cards to tell them they were no longer allowed in libraries.
The policy was challenged by the American Civil Liberties Union (ACLU) on behalf of a sex offender who until the mayor's action frequently used the city's libraries to check out materials and attended lectures and meetings there.
Friday's decision could have nationwide implications, as the state of Iowa, three cities in Massachusetts and jurisdictions in North Carolina and Texas all have tried to enact some sort of sex offender library ban, according to an Indiana University law school article.
The opinion upholds a 2009 decision by U.S. District Judge Christina Armijo of New Mexico, who ruled the city went too far with its "complete and wholesale ban." The city appealed.
The appellate court noted in its 44-page ruling that the case "presents us with a difficult issue" because of the city's goal to protect the public versus First Amendment rights.
"We are sympathetic to the city's desire to ensure that its public libraries provide a safe, welcoming environment for its patrons, especially children," the judges wrote.
"We therefore are especially mindful that registered sex offenders, whom studies have confirmed have a considerable rate of recidivism, may threaten to shatter the peace and safety of this environment."
Recidivism, as mentioned here [see appellate court decision], is relying on a 2003 US Sup court case (Smith v Doe). Unbeknownst to that court, they were unintentionally misled on recidivism rates. The explanation can be found HERE (which explains a error made way back in 1997 in a Prentky recidivism study, and has been carried forward by many folks since then. In that Prentky ERROR explanation it shows how the US Sup court (Smith v. Doe - 538 U.S. 84 (2003)) was misled.) But for that error, and the unfortunate Dep't of Justice publishing more current recidivism statistics 8-months after the 2003 decision, it is very possible there would not be registration as we know it today.However, the judges said city officials failed to look at other less restrictive approaches, including designating certain hours for sex offenders, requiring them to check in with library staff or restricting areas of the library that they could use.
Albuquerque Assistant City Attorney Gregory Wheeler said the city had adopted a less restrictive policy following the district court's ruling, so Friday's decision will have little immediate impact.
Nevertheless, the city is analyzing the ruling to decide whether to appeal to the U.S. Supreme Court, he said, adding, "We are always looking for ways to provide more protection."
Peter Simonson, executive director of the ACLU of New Mexico, hailed the ruling.
"People have a First Amendment right to receive public information, and the government needs to explicitly justify its actions if it's going to infringe on such a fundamental right, Simonson said in a statement. ..Source.. by Keith Coffman
October 23, 2011
Human traffickers eye kids for more profit
10-23-2011 New Mexico:
Sometimes the girls haven't even reached puberty, but they are already being forced to have sex with men who could be their grandfathers.
Such sexual exploitation of children and teens — many of whom have been trafficked through New Mexico casinos and truck stops — is a growing profitable industry, Tina Frundt told social workers, lawyers and law enforcement personnel Thursday during an anti-trafficking training session at the New Mexico Law Enforcement Academy off Jaguar Drive.
"Drug dealers are stopping the selling of drugs to sell children, because they make more money," said Frundt, executive director and founder of Courtney's House, a nonprofit organization in Washington, D.C., that serves teen victims of sexual trafficking.
Since its inception three years ago, Courtney's House has assisted more than 500 teens, Frundt said — all U.S. citizens.
The average age of girls who come into Courtney's House is between 10 and 13 years. Some cases have involved boys as young as 6 to 8 years old.
Data from a national survivor's hotline indicates that 86 percent of victims were sexually abused before they were trafficked, Frundt said. "This is not just a foreign national issue, it's not just a U.S. citizen issue, it's an issue of children being bought and sold."
Pimps, who sometimes are family members, demand that the children and teens in their power make anywhere from $1,000 to $3,000 per day on weekdays and at least $3,000 per day on weekends.
Who has the money to pay for these sexual acts? Teachers, judges, congressmen, diplomats and law enforcement officers are among the list of people the children report. The majority of the "buyers" are Caucasian men, Frundt said.
It's also true, she said, that counter to common belief, sexually exploited children are not all runaways or in foster care. Some "live in mansions."
In recent years, Frundt has found that Latino gang members from the Salvadoran Mara Salvatrucha 13 (MS-13) are behind some of the sexual trafficking of minors.
Not many sexual trafficking cases have been uncovered in New Mexico since a 2008 law was passed that punishes human traffickers. One, in 2010, involved a Bernalillo couple sentenced for trafficking and prostituting two 18-year-old girls who eventually escaped from the home they were being held in and called police.
Carol Horwitz, the Santa Fe Police Department's domestic and sexual violence liaison, said the kind of training Frundt provided is necessary to help police and first responders identify a possible sexual trafficking victim.
"Victims of human trafficking are never going to self-disclose," Horwitz said. She added that Santa Fe, with its large tourism industry, needs to be aware of this issue. "We have to look at what's going on at Cathedral Park, downtown, everywhere."
Santa Fe police Lt. Louis Carlos said officers are always being trained for this scenario, especially first responders. They also have a human trafficking handbook they can access.
For Teresa Candelaria, a forensic interviewer for minors at Solace Crisis Treatment Center, hearing Frundt's presentation made her realize her interviewing strategy was going to change to be more reassuring.
"I knew it wasn't going to be the same. It's probably not going to be in our building, not in our interview room, it's not going to be the same kind of structure," Candelaria said.
Frundt said she has worked with other organizations to help sexually abused children, but finally decided to start her own to make it survivor-focused. "I wanted to offer the kind of help that should have been offered to me, but it wasn't."
Anyone aware of a case of sexual trafficking should call the national survivor hotline at 1-888-261-3665 or 911. ..Source.. by Sandra Baltazar MartÃnez
August 31, 2011
Bingaman: New Mexico Communities to Benefit from DOJ Grants
Take note of the grant awarded. I spoke of the "Implementation Grant" in my commentary Revisiting SORNA's Implementation Cost and Non Compliance 10% Penalty Arguments. Apparently "Implementation Grants" are still available. Likely for those states that followed the annual filing required by SORNA.8-31-2011 New Mexico:
WASHINGTON – U.S. Senator Jeff Bingaman today announced that several New Mexico communities have been awarded grants through the U.S. Department of Justice (DOJ).
"The funding awarded through these grants will help improve the safety of New Mexico residents," Bingaman said.
The New Mexico Department of Public Safety was awarded a $400,000 grant to enhance jurisdiction-wide implementation of the Sex Offender Registration and Notification Act (SORNA), which includes the development and implementation of training for law enforcement personnel responsible for sex offender activities as they relate to SORNA implementation.
Additionally, the following organization/communities were awarded funding through DOJ's Drug Free Communities Support Program, which helps facilitate citizen participation in local drug prevention efforts: ..Source.. by Sen. Jeff Bingaman
May 18, 2011
Advocates push back against New Mexico’s sex-crime laws
5-18-2011 New Mexico:
To the casual observer, Lloyd Swartz looks like every other middle-aged guy hosting a yard sale on a Saturday afternoon in May. From the driveway of his modest adobe house, Swartz and his wife preside over a jumble of construction equipment, furniture, clothing and knickknacks. He greets potential customers with a broad smile, a strong handshake and a booming laugh. But Swartz is also the president of an organization called Reform Sex Offender Laws in New Mexico.
“I’m a registered sex offender,” Swartz says bluntly. “I got in trouble when I was 17 years old, in Texas.”
Swartz, who was convicted of sexual assault in 1987, spent 10 years on probation.
“I did something stupid when I was a kid,” Swartz says. But after serving his sentence, he says, “I’d moved on with my life; I’m not even thinking about it.”
But in 2000, New Mexico amended its sex offender laws to require all convicted sex offenders—even those who, like Swartz, were convicted and sentenced long before the registry was created—to register with the New Mexico Department of Public Safety.
“They come knocking on my door [saying], ‘You have to register,’” Swartz recalls. “I said, ‘What do you mean? How can that be constitutional?’” For Swartz, that moment was a catalyst: He realized that even sex offenders didn’t deserve to be judged forever, and he wanted to fight for that realization.
“The story of my life is not what I did when I was 17 years old,” Swartz explains. “What have I done since then? I’ve made scientific discoveries; I’ve built businesses; I’ve raised a family. These are the things that make me who I am.”
So Swartz founded RSOLNM, began attending conferences and ultimately started talking to state legislators about what he considers a major crisis in the state’s criminal justice system.
“I learned it was bigger than me, bigger than my family and my problem,” Swartz says. “This crisis is destroying our country. It is affecting every man, woman and child, whether they know it or not, in a myriad of ways.”
He’s not the only one who thinks so.
Santa Fe lawyer Jason Flores-Williams uses the phrase “abjectly unconstitutional” to describe Swartz’ experience of being added onto the sex-offender registry even after he had completed his sentence.
“It would be like you get a speeding ticket going 27 miles per hour in a 25 [mile-perhour zone],” Flores-Williams explains. “You get an $80 ticket; you say ‘OK, fine, sucks for me’—but then, four years later, they come back and say, ‘Anybody who did that four years ago now has to do these three things and pay a $300 ticket.’ It’s unconstitutional.”
Flores-Williams is currently defending two clients with similar issues. Taken to an extreme, he says, strict residency requirements and public sex-offender registries can limit convicted sex offenders’ options to the point that they’re no longer able to contribute to society.
Flores-Williams cites the case of Charles Mader, an Albuquerque sex offender jailed this month for violating residency requirements when he failed to report that he had moved from a dumpster to a homeless shelter, as a perfect example.
“If a person is living without therapy, proper medication [or] treatment—and they’re living in a dumpster or a homeless shelter—then they’re just going to get worse,” Flores-Williams says. “This person is not going to become better and have a chance at reintegrating himself into society. It’s going to exacerbate the problem.”
Swartz is inclined to agree. “We can’t oppress millions of people, give them no hope at all and think everything’s going to be hunky-dory [and that] these people are not going to be pushed into committing other crimes,” Swartz says. “Not only is the system not working, but it’s actually endangering us by pushing people to the fringe.”
New Mexico’s online database lists 78 convicted sex offenders (77 of them men) living in the city of Santa Fe and 2,458 statewide—but DPS Law Enforcement Records Assistant Bureau Chief Regina Chacón tells SFR that, because certain nonviolent crimes are not listed online, the state’s actual total for convicted sex offenders is 2,776.
“The people on the website are [convicts of] violent crimes against children and adults,” Chacón explains. Most sex crimes, from rape to child pornography, are considered violent crimes; two exceptions, Chacón says, are incest and statutory rape.
But just because a sex offender is listed online—or convicted at all—doesn’t necessarily lead to recidivism.
A 2003 US Department of Justice study encompassing more than 9,600 male sex offenders released from prison in 1994 found that only 5.3 percent were rearrested for sex crimes. Among all convicted criminals released that year, by comparison, a whopping 67.5 percent were rearrested, and 46.9 percent were reconvicted.
But Swartz sees that as another reason the registry doesn’t work.
“Why are we registering people [as sex offenders] for 25 years to life?” Swartz wonders. “It makes absolutely no sense.”
Flores-Williams also says the broadbrush approach New Mexico takes to registering sex offenders is unfair.
“There’s a really wide range here,” Flores- Williams says. “There’s the violent sexual predator; that’s a person who needs to be addressed in very specific ways. But what about the 20-year-old who dates a 16-yearold?” he wonders. “It’s not the best thing, but it sure as hell is very, very different from a guy who rapes and kills a 4-year-old.”
During the 2011 legislative session, Rep.
Moe Maestas, D-Bernalillo, introduced a bill to reduce the amount of time a person convicted of fourth-degree criminal sexual contact with an adult would be assigned to the registry, from life to 10 years—but based on that change, Gov. Susana Martinez vetoed the bill. Chacón says DPS supports the veto.
Diana McWilliams, the executive director of Santa Fe’s Solace Crisis Treatment Center, acknowledges that the current system is flawed.
“It is almost like a no-win situation, because either you’re tromping on someone’s civil rights because you’re trying to make a law that applies to everyone, or you’re leaving big gaps or loopholes,” McWilliams says. But in spite of the current system’s imperfections, she says, the registry is a valuable tool.
“We’re just glad that there are some tools for victims to keep track of their offender,” McWilliams says. Still, she adds, “It is unfortunate that we have to have a black-and-white law when there’s a lot of gray in dealing with human behavior.”
But to Dan Smith, a convicted sex offender who spoke only on condition of anonymity because he fears being ostracized, ‘unfortunate’ is a gross understatement.
“Society has an impression that these kinds of crimes are so horrible that the people who commit them are beyond redemption,” Smith tells SFR. “No politician, no lawmaker would ever champion the cause to revisit the harshness of these laws, because they know they’d never get elected to office again.”
As a result, Smith says, many sex offenders—regardless of the nature of their crime—are placed on the state’s registry, where everyone from prospective employers to acquaintances can see what they’ve done.
“It’s like losing pieces of my life,” Smith says. “Even if I’m a bad person, I think I have the same right of any other alleged criminal to have a chance to get those pieces of my life back if, after the alleged crime, I’m not a threat to society.”
Smith offers an analogy in the penalties for murder.
“If you take a person’s life,” Smith says, “the laws, the sentencing and the possibility of getting out of prison if convicted are wide and varied—but murderers have the opportunity to pay their debt to society and come away free.”
But as a sex offender, he says, “You can never be free.” ..Source.. by ALEXA SCHIRTZINGER
September 3, 2010
Bingaman: New Mexico Communities to Benefit from Department of Justice Grants
9-3-2010 New Mexico:
WASHINGTON – U.S. Senator Jeff Bingaman today announced that three New Mexico communities will benefit from federal funding awarded through the U.S. Department of Justice (DOJ).
The Pueblos if Cochiti and Zuni were awarded funding through the DOJ's Sex Offender Sentencing, Monitoring, Apprehending, Registering and Tracking (SMART) Office, which provides grants to help state, local and tribal jurisdictions in implementing and/or enhancing sex offender registration and notification programs.
"This grant funding will help protect New Mexicans," Bingaman said.
The following organization/communities were awarded:•$166,500 - Pueblo de Cochiti: Funding will be used to plan, develop, and implement a sex offender registration program...Source.. US Senator for New Mexico, Jeff Bingaman
•$73,686 - University of New Mexico: New Mexico Statistical Analysis Center (NMSAC) will continue a study on reentry initiatives in New Mexico corrections and the attitude of staff toward the offenders participating in these programs.
•$51,128 - Pueblo of Zuni: Funding will be used to plan, develop, and implement a sex offender registration program.
