'San Antonio Four' Found Completely Innocent in Child Gang-Rape Case

11-25-16 Texas:

After 15 years in prison, the women known as the “San Antonio Four” have been exonerated in a criminal case that upended their lives. Convicted in 1998 of gang-raping two little girls, the women have been found completely innocent.

As CNN reports, Elizabeth Ramirez, Kristie Mayhugh, Cassandra Rivera, and Anna Vasquez were initially found guilty of raping Ramirez’s two nieces. All four women had refused plea deals and testified to their innocence. Ramirez said she could not fathom “how they could even think of me doing something like that.”

But the nieces, ages seven and nine at the time, had confided to their grandmother that the women had twice sexually assaulted them while staying at Ramirez’s house. Although their police statements were inconsistent, medical expert Dr. Nancy Kellogg insisted that the girls had sustained vaginal injuries that seemed to have been caused by “painful trauma.” The court thus leaned more heavily on this medical testimony and brushed aside the variations in the girls’ accounts. ..Continued.. by Rachel Vorona Cote

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Pardoned for the Sex Crime He Never Committed

8-26-2016 Missouri:

He was accused of an unspeakable crime he did not commit. For 27 years, Earnest Leap of Oakview, Missouri, has lived with the ugly label of child molester. With his name on a public sex offender list, word quickly spread that he had sexually abused his own son and admitted it in court.

The facts of Leap's case make it clear that his experience could happen to anyone who's in the midst of a contentious child custody case.

In the fall of 1989, following an antagonistic divorce, a judge ruled that Earnest and Karen Leap would share custody of their sons, 5-year-old Brodie and toddler Josh. Primary custody was awarded to Earnest, so the boys would live most of the time with their father.

Brodie Leap, now 32, remembers his mother's "incessant" cajoling to get him to say that his father had sexually abused him. Leap, motivated by a terrible guilt, has spent much of his adult life trying to undo the damage.

Hauled into court to face child abuse allegations, Earnest Leap took the flawed advice of his public defender and pleaded no contest to the charge. The deal included no jail time, a guarantee that record of his plea would disappear in three years and, most important to Earnest, it spared his son from having to testify. Back then there was no such thing as a sex offender registry.

Then, in 1994, a new federal law required every state to establish a public registry listing every person convicted of a sex crime. Leap was forced to register as a sex offender in Missouri and remain on the registry for the rest of his life. His world began to fall apart, his movements limited by rules that an offender may not be in proximity to or live near minors. Imagine going through life having to dodge schools, malls, parks, theaters or even ice cream stores.

For decades, both Brodie and Josh Leap have campaigned to clear their father's name, calling him "the most supportive and positive force" in their lives.

Finally, their efforts paid off. On Aug. 19, Missouri Gov. Jay Nixon issued a full and complete pardon for Earnest Leap. He got the call and heard the news he must have longed for: complete exoneration. He was pardoned for the crime he never committed.

"I'm still overwhelmed," Leap, 57, told the Kansas City Star after the call. "I am just really, really thankful," he said.

The governor wrote that chief among the reasons he granted the pardon was the fact that Brodie Leap had never wavered from his insistence that he lied all those years ago, at the urging of his mother. (When contacted recently, Karen Leap — now Karen Harris — continued to maintain that the molestation occurred, saying: "It happened. ... My son would not have lied to me back then. I don't know why Brodie is lying now.") Sadly, neither son has a relationship with their mother.

I've written in this space before about the senseless way in which these registries are maintained. Officials should focus on tracking career pedophiles and those who produce and trade child pornography. Instead, state registries are overflowing with the names of those convicted of drunkenly urinating in public, or those involved in so-called Romeo and Juliet crimes (consensual sex between underage teens that is prosecuted as statutory rape). Just because the parents of a 16-year-old girl want her 17-year-old boyfriend to be punished doesn't mean the state should participate in ruining a young man's life.

The trend does seem to be shifting ever so slowly. Last year, the California Supreme Court declared that certain sex offender living restrictions in San Diego County were unconstitutional. The New York State Court of Appeals struck down an ordinance that banned sex offenders from living near schools. The Massachusetts Supreme Judicial Court struck down restrictions to sex offenders living near schools and parks, and a judge compared the restrictions with two of the darkest restrictions in our country's history — the Native American reservations and the Japanese-American internment camps.

As the Leaps' marriage was dissolving in the late '80s, President Reagan's former labor secretary, Ray Donovan, was found not guilty of fraud and grand larceny. He famously asked, "Which office do I go to to get my reputation back?

As Earnest Leap knows, it's mighty hard to undo 27 years of public perception. Where does he go now for relief from nearly three decades of undeserved punishment? ..Source.. by Diane Dimond

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Wrongly convicted brothers each get $750,000 in compensation

9-3-15 North Carolina:

RALEIGH, N.C. (AP) — When two brothers were released after three decades of wrongful imprisonment, they struggled to adapt to an outside world neither had experienced since they were teenagers. The older one has managed to adjust and keep his "head up high," but the younger one, according to his family, is a broken man.

On Wednesday, the state of North Carolina sought to make amends, awarding each man $750,000 for the time they spent behind bars after they falsely confessed to taking part in the killing of an 11-year-old girl.

Henry McCollum, 51, appeared calm as a state official approved the maximum payout under the law to him and half-brother Leon Brown, 47. Brown did not attend the hearing; he is in the hospital, suffering from mental health problems including post-traumatic stress disorder, the brothers' lawyer said.

McCollum and Brown were released last September after a judge threw out their convictions, citing new DNA evidence that points to another man in the 1983 rape and slaying of Sabrina Buie. McCollum had been the longest-serving inmate on North Carolina's death row. Brown had been sentenced to life in prison.

They were pronounced innocent in June by Gov. Pat McCrory, who issued pardons that made them eligible for compensation.

McCollum, who has been living with his sister in the Fayetteville area, said the money will enable him to support himself and help his family.

"My family, they have struggled for years and years," he said. "It's hard out there for them, and I want to help them."

Their attorney said the money will be put in a trust and invested so that the brothers can live off the earnings and won't have to work.

North Carolina is among 30 states that have laws for compensating people wrongfully convicted, according to the Innocence Project. But North Carolina stands alone with its Innocence Inquiry Commission, set up to investigate disputed cases. It performed the DNA testing that set the brothers free.

Sabrina's body was found in a soybean field in rural Robeson County, with a cigarette butt, a beer can and two bloody sticks nearby.

Attorneys for the two brothers say that they were scared teenagers with low IQs and that investigators berated them and fed them details about the crime before they signed confessions saying they were part of a group that killed the youngster. McCollum was 19, Brown 15.

But the DNA on the cigarette didn't match either one of them, and fingerprints on the beer can weren't theirs either. No physical evidence connected them to the crime.

The current district attorney for Robeson County, who didn't prosecute McCollum and Brown, has said he is considering charging the man whose DNA was found on the cigarette butt. That man is in prison for another murder.

McCollum listed some of the things he enjoys about freedom: "Being out here, to be able to breathe the air. To be able to walk around as a free man. To be able to walk down that street with my head up high."

Meanwhile, Brown has been hospitalized at least six times in the last year for mental health problems that include hallucinations and deep depression, attorney Patrick Megaro said.

Both men were bullied and attacked behind bars, and Brown was sexually assaulted repeatedly by other inmates, according to a lawsuit brought by Megaro against county authorities and others.

The brothers were initially given death sentences. In 1988, the state Supreme Court threw out their convictions and ordered new trials. McCollum was again sent to death row, while Brown was found guilty of rape and sentenced to life.

The Associated Press normally does not identify victims of sexual assault, but Megaro said Brown and his family were willing to make the information public to show how he suffered.

The men's sister, Geraldine Brown, said her brother Leon is "really sick" from his time in prison.

"He did not go in that way," she said. "They snatched him from my mother as a baby." ..Source.. by JONATHAN DREW

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Judge overturns sex assault conviction of ex-UI student

7-2-2015 Iowa:

IOWA CITY – A judge has overturned the conviction of an imprisoned former University of Iowa honors student who is charged with raping a fellow student, citing misconduct by the prosecutor and errors by his defense lawyer.

Evan Pfeifer didn't get a fair trial because a prosecutor asked witnesses improper questions to shore up the alleged victim's credibility, and his defense lawyer gave him ineffective counsel, Judge Douglas Russell ruled Wednesday. Russell vacated Pfeifer's conviction on third-degree sexual abuse and ordered a new trial.

"Justice has finally prevailed," said Pfeifer's father, Scott Pfeifer, who drives six hours every weekend to visit his son in prison and contends he's been falsely accused.

Johnson County prosecutors, who have 30 days to file an appeal, had no immediate comment.

Pfeifer, now 22, has been serving a 10-year sentence at the Fort Dodge Correctional Facility after a jury found him guilty in November 2012. His current attorney, Gary Dickey, praised Russell's ruling and said he would immediately seek Pfeifer's release on bail.

Then an 18-year-old freshman from suburban Chicago, Pfeifer was charged with raping a woman early on Oct. 3, 2010 on the university's Pentacrest lawn in the center of campus. He has contended that the sex was consensual.

The woman, a fellow university student, testified that she met Pfeifer while walking home after a night of partying and heavy drinking. She contended that after they were talking, Pfeifer put his hand over her mouth, held her down and had intercourse with her against her will. She went to the hospital later that morning for a sexual assault examination — a nurse noted she was upset but had no physical injuries — and didn't immediately contact police.

About two weeks later, the woman saw the man she believed assaulted her. Her sister followed him into a dormitory and got Pfeifer's name. The woman looked up Pfeifer on Facebook, and made a police report about a month after the incident. Testing later showed that DNA found on her underwear matched Pfeifer's profile. Pfeifer was kicked out of school after a disciplinary hearing, then arrested and charged.

Russell said the trial came down to whether the woman was credible, particularly because Pfeifer's trial attorney, Mark Brown, advised his client not to take the stand. The only other witness was a passing student who initially believed they were having consensual sex but asked the woman whether she had been raped after seeing her sobbing minutes later.

During the trial, prosecutor Anne Lahey asked the examining nurse whether the woman's demeanor was consistent with someone who had suffered trauma. The nurse said yes. Lahey also asked a detective whether his investigation's findings were consistent with the woman's report, and he said yes. Both questions were "clearly improper" under longstanding case law and could have unfairly prejudiced jurors against Pfeifer, Russell ruled.

"Lacking any other useful eyewitnesses to bolster the victim's credibility, the prosecutor chose to proceed by asking improper questions to achieve her goal," Russell wrote.

Brown should have objected to both questions and failed to do enough to attack the woman's credibility, Russell wrote. Brown should have consulted with experts to investigate issues such as the effect of alcohol on memory and false allegations of sexual abuse, he added. Taken together, the issues "render the jury verdict unreliable" and give a reasonable probability that the trial would have ended differently.

Scott Pfeifer called the ruling a bright spot after 4½ years of "pure misery and hell," choking up as he recalled that Pfeifer recently missed the funeral of a grandmother with whom he was once very close. He described his son as a bright, caring young man who once wanted to become a doctor. ..Source.. by Ryan J. Foley

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Lubbock, Texas, unveiling statue of man who wouldn't take 'freedom on the cheap'

9-17-2014 Texas:

Even while imprisoned for a rape he didn't commit, Tim Cole never stopped acting like a big brother.

"He would send us letters, telling us what classes to take, telling us to look out for a subscription to Money magazine he was sending us," brother Cory Session remembers.

Cole was a student at Texas Tech when he was convicted and sentenced to 25 years in prison for the 1985 rape of 20-year-old Michele Mallin.

In 2009, DNA would exonerate Cole, but not until a decade after he died in prison, at age 39, from heart complications related to his asthma.

To those who loved him, Texas can never right the false conviction, but the Lubbock City Council wants to make sure Cole and his case are not forgotten. The city unveiled a statue of the Fort Worth native across the street from the Texas Tech campus on Wednesday afternoon and dedicated the area where the bronze likeness will stand as the Tim Cole Memorial Park.

Behind bars, Cole refused to lose faith, telling his sister Karen Kennard -- the only African-American enrolled at Texas Tech's law school at the time -- not to give up pursuing her law degree.

"I still believe in the justice system, even if the justice system doesn't believe in me," he once wrote in a letter.

Kennard finished her degree and went on to become the city attorney for Austin, Texas.

His brotherly attitude extended beyond his kin as well. His family wouldn't learn about it until later, but Cole used the money he earned from his GI Bill to make thousands of dollars in charitable donations from behind bars.

"He knew he couldn't help himself, but he could help other people," Session said.

Cole always maintained his innocence, even after he was offered parole in exchange for admitting to the rape. He never confessed, and in 2007, Texas inmate Jerry Johnson -- who didn't realize Cole had died eight years before -- wrote to Cole, confessing the rape and offering to submit to DNA testing to clear Cole's name.

"Tim had the integrity to say, 'I won't confess to something I didn't do,'" former Lubbock City Councilman Todd Klein said. "He refused to take his freedom on the cheap."

That legacy is just one of the reasons Cole will be memorialized at one of Lubbock's busiest intersections.

Klein was instrumental in seeing that the sculpture was erected. He felt it was important, he said, to "remind us of this teachable moment" in the city's history.

"The government has enormous power to take one's life or liberty," Klein said. "When we make a mistake we should admit to it. We should make amends where we can."

The bronze statue, standing at least 13 feet tall, depicts Cole's torso facing the area where the crime occurred. Cole's gaze will be fixed on the vicinity of Texas Tech's law school, where future prosecutors, defense attorneys and judges will be reminded that humans are fallible and that fact must remain at the top of their minds as they pursue their law careers, Klein said.

Texas Gov. Rick Perry, state Attorney General Henry Abbott and state Sen. Wendy Davis, as well as friends and family of Cole, were among the attendees at Wednesday's dedication.

Perry pardoned Cole in 2010. Two years later, on the anniversary of Cole's exoneration, the state constructed a historical marker that was placed at his gravesite.

Perry spoke at Wednesday's dedication, saying, "The story of Tim Cole is a story of inspiration and grace."

Mallin, the rape victim who picked Cole out of a lineup that led his wrongful conviction, was also expected to be in attendance.

After realizing her mistake, she helped to get Cole's name cleared and has since developed a relationship with Cole's family.

Session recalled how when his mother was still alive, she told Mallin, "You're a victim, just like my son was."

Davis told the story of her first meeting with Ruby Cole Session. It was during her first week in the Texas Legislature in 2009.

"She was a person of diminutive stature but a giant in every other way," Davis remembered, "She pressed into my chest a photograph of her son, Tim Cole. She put a face on this issue . . . urging me in making sure that his life and his death meant something for others."

Ruby Session died last year, making Wednesday's statue dedication bittersweet. Though she had the opportunity to sue the state in the wake of her son's exoneration, Session said his mother only wanted people to remember her son.

"He left here with his head bowed and his arms and legs in shackles," Session said, "Today he returns standing tall, uncompromised. But not unsung." ..Source.. by Stephanie Gallman, CNN

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Bonner man acquitted of child sex charges

9-17-2014 Missouri:

After a two-day trial and several hours of deliberation Thursday, a Missoula jury exonerated Chad Lee Briggs, a 36-year-old Bonner mechanic who was one of seven people accused of attempting to have sex with a 12-year-old girl during a December sex sting.

The two-day undercover operation, orchestrated by several law enforcement agencies, nabbed seven people, including Briggs’ former girlfriend Jenna Davis, who is accused of setting up a sexual encounter between the fictitious girl and Briggs.

Prosecutors claimed Briggs and Davis responded to a posting on Craigslist last Dec. 18, advertising a 12-year-old girl available for sex. A female undercover agent posed as the fictitious girl’s aunt, and in communicating with the seven alleged perpetrators, she claimed she would make her young niece available for sex, according to court documents.

Davis allegedly told the officer that Briggs would be interested in helping the girl lose her virginity. “She said that Briggs had been involved in a prior sexual encounter with an underage girl and it had been a positive experience,” the affidavit stated.

It went on to claim that Briggs also called the undercover detective, assuring her that he would supply condoms and “be gentle with the 12-year-old.”

But the Missoula County District Court jury sided with Briggs and his attorney, Lisa Kauffman, finding the single father not guilty of a single felony count of sexual abuse of children.

“The state failed to prove that Chad had any knowledge that there was actually a 12-year-old there for sex,” Kauffman said Friday in a phone interview.

Briggs’ case was the first of six remaining cases to go to trial; Davis is due for a court appearance next week.

*****

In another phone interview, Briggs claimed the advertisement didn’t explicitly say anything about an underage person and he initially contacted the advertisement’s author on Dec. 17 out of concern. He asked the author to clarify what they meant.

“When they posted the age (of the girl), I didn’t respond back,” Briggs explained Friday. “Actually, I thought they were committing a crime to begin with — that’s why I flagged the ad to alert the Craigslist administration.”

He told Davis about the advertisement and the following day when Davis arrived at his home for dinner, the pair began arguing. Without his knowledge, Davis had sought out the Craigslist advertisement and started communicating with the undercover detective, he said.

“I didn’t know this conversation was going on,” he said. “That evening I was going to run across the street to get a gallon of milk, and she wanted to go for a ride.”

“I am not sure what her intentions were really going on in her head,” he added.

Kauffman said her client had no knowledge that he and Davis were going to meet an adolescent. But Davis, she said, passed the gas station where Briggs planned to buy milk and then Albertsons as well, while furiously texting.

“On the drive in, I was getting suspicious of what was going on,” he said. “The detective sent a picture (of herself.)”

At that point, three blocks away from the residence, Briggs said he realized that Davis was attempting to set up a sexual encounter with the aunt of the fictitious child and he claims when he got on the phone with the detective, she led the conversation and there was no mention of a child. When he got to the address, he reluctantly got out of the car and walked to the home. He said the detective led him inside, where he was arrested and taken into custody.

Briggs spent his last paycheck bailing himself out of jail, but didn’t have a life to come home to.

Child and Family Services took his daughter away and he lost his job as a mechanic at Paws Up Resort. He also lost his dog, his house, his truck, his girlfriend. He said people – random strangers – would yell at him at the gas station and in grocery stores.

But now, after the jury’s verdict, he’s ready to forgive and move on with his life.

“There’s a lot of anger there,” he said. “Time heals everything. If I keep being angry, I would never be happy with myself.” ..Source.. by Kathryn Haake

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Appellate court tosses McHenry County sex conviction; former Big Brother can't be retried

9-9-2014 Illinois:

In a rare decision, the Illinois Appellate Court overturned a McHenry County sex abuse case, and said that because the evidence leading to a conviction was insufficient, the case can’t be retried.

Leonard W. Puccini, 54, formerly of Bull Valley, was convicted in May 2013, and accused of spanking the naked posterior of a young boy he once mentored through the Big Brothers Big Sisters program in McHenry County. He spanked the 12-year-old boy, prosecutors said, for the purpose of sexual gratification.

After a bench trial, McHenry County Judge Michael Feetterer agreed, and later sentenced Puccini to five years in prison.

At the trial, two witnesses testified Puccini also had sexual encounters with them when they were young boys. Puccini never was charged with any incidents relative to their testimony. He was not related to, but otherwise had known the alleged victims, and he did not meet them through the youth mentor program.

Feetterer allowed their testimony at trial, but the appellate court said he shouldn’t have. The alleged acts were too dissimilar and overly prejudicial.

“In fact, [the] defendant’s conviction rests entirely on other-crimes evidence,” the opinion read.

The opinion, written by Appellate Judge Ann Jorgensen continued: “There is great risk here that [the] defendant was convicted based on the uncharged, unproved and remote allegations, rather than the evidence supporting the charged crime.”

The appellate court further found, that without their testimony, there lacked proof beyond a reasonable doubt, meaning that under the double jeopardy clause, Puccini can’t be retried.

Trial courts, Jorgensen wrote, are typically cautious when admitting a defendant’s other criminal acts.

“Generally, the risk associated with the admission of other-crimes evidence is that it might prove ‘too much,’ rendering the fact finder inclined to convict the defendant simply because it believes that he or she is a bad person deserving of punishment.”

Puccini had been serving time at Graham Correctional Center. He was eligible for parole in April 2016, but could be released soon, his attorney said. His attorney said they would seek his release this week.

Local prosecutors can appeal the high court’s decision, or ask the case to be taken up by the Supreme Court, though there’s no guarantee the high court will take it. What local prosecutors ultimately decide to do could effect how soon or whether Puccini walks.

When reached Monday, Assistant State’s Attorney Michael Combs wouldn’t comment on his office’s next move.

“The only statement I’m going to make is that we respect the opinion of the appellate court,” said Combs, who also is Criminal Division Chief.

Puccini hired high-profile appellate attorney Kathleen Zellner, who also is handling Mario Casciaro’s appeal for his murder conviction in the death of missing Johnsburg teen Brian Carrick.

Zellner called Puccini’s prosecution an “overreach.”

“It’s unusual to get an outright reversal,” Zellner said. “[The appellate court] usually sends the case back for a new trial. It’s very unusual, and it means the evidence was weak or nonexistent.”

The high court heard oral arguments just a week before rendering its decision Sept. 5. ..Source.. by CHELSEA McDOUGALL

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Brothers cleared of murder, rape charges after 30 years in prison

9-3-2014 North Carolina:

LUMBERTON, NC (WMBF) – Two half-brothers who were convicted for raping and killing an 11-year-old girl in North Carolina 30 years ago have been cleared of all charges and will be released from jail Tuesday night.

Henry McCollum and Leon Brown, now middle-aged, were locked up when they were in their teens. The details of the death of Sabrina Buie that led to their conviction are graphic.

Multiple times during Tuesday's hearing, details were brought up regarding foreign objects shoved down Sabrina's throat. Found during an autopsy, these items included her underwear and a stick, believed to be pushed down her throat until she suffocated.

Just one month after her brutal rape and murder, a similar incident occurred in the area. The half-brothers were already behind bars, while a man named Roscoe Artis was questioned for the second case. According to Sharon Stellato, the Associate Director of the North Carolina Innocence Inquiry Commission, Artis knew details about Sabrina's death that were not public knowledge.

While on the stand, Stellato said at one point Artis claimed he wouldn't wake up in the middle of the night, leave his home at one or two in the morning to harm the girl, then return home to go to bed. Stellato's point was Artis was never told Sabrina's time of death.

Stellato and the North Carolina Innocence Inquiry Commission became involved in the case when Leon Brown wrote a letter to the Commission asking for help to prove his innocence. Stellato said Brown and his half brother, Henry McCollum, always maintained their innocence throughout the years.

The Commission presented new DNA evidence that it believes connects Artis to the rape and murder of Sabrina Buie. Stellato said he even admitted to knowing the 11-year-old, that he saw her often when she would ride her bike past his house, even bringing him cigarettes from a nearby store.

Details discussed of his interview show he was caught in inconsistencies with his story after Sabrina was found murdered. Artis is currently serving a life sentence for the murder that happened the month after her death, which McCollum and Brown were found guilty of 30 years ago.

"They had that man's finger prints, they didn't go through with it, and that allowed another man to go free and kill someone else," said Joseph Morrison, Brown and McCollum's cousin.

Tuesday's re-trial also focused on the low IQs of McCollum and Brown, showing they had elementary-level reading and writing skills at the time they signed a long written confession into the death of 11-year-old Sabrina Buie.

After hours of evidence being presented, the judge called for a break before hearing the closing arguments. The family called out ‘I love you' to the brothers before a tense silence covered the courtroom. After closing arguments, the judge made an announcement that the family waited decades to hear: the brothers were being cleared of their charges, they were being freed.

The courtroom broke out into applause. Family members cried, they embraced, they rejoiced. They also pined for the life the two brothers lost while behind bars. Their mom died just last year, never knowing if her son's would be proven innocent.

"I'm sad but I'm glad they're coming home. It took 30 years, we waited, was patient, we've been through a lot, we just want them to be home and happy again," said Morrison through tears after hearing the judge's decision.

Morrison said the system failed the brothers, the system failed the little girl killed.

"For them to be convicted for 30 years, never should have happened. And for those who lost their little girl, never should have lost them," said Morrison.

The brothers have to return to the facilities they are being held in to be processed before being released to their families, finally free after 30 years. ..Source.. by WMBF News Staff

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From convicted sex offender to millionaire, man gets new life

8-1-2014 Texas:

Michael Phillips has been spending most of his time these days living in a tiny room in a no-frills northeast Dallas nursing home.

Until recently, he had a roommate who slept in a bed 2 feet away, and staff brought him three square meals a day.

Only a few hours passed each day in which he didn't think about his burden of four decades: being a convicted sex offender.

That was before Friday, when Phillips was officially exonerated by Dallas County District Attorney Craig Watkins' Conviction Integrity Unit, which determined via DNA testing that he was falsely convicted. The state will now pay him handsomely for its mistake.

It was a first-of-its-kind exoneration in that Phillips wasn't clamoring for vindication. As was the case when he accepted a plea deal in 1990, he felt that his race would preclude him from getting a fair shake in the justice system, so he just accepted his plight.

After entering his plea, Phillips, a 57-year-old African-American who grew up in New Orleans, served 12 years in a Texas prison for the rape of a 16-year-old white girl at a Dallas motel where he'd worked as a maintenance man.

Confined to a wheelchair due to his battle with sickle cell anemia, Phillips has been out of jail since 2002. He has been living in nursing homes the past few years as his health has spiraled downward.

Though he's been out of prison for 12 years, he considers his life one long sentence, as he was forced to wear the branding of a convicted sex offender.

In his first week as a free man, Phillips is overjoyed and struggles to put his emotions into words, instead pointing to the spirituality that helped him cope all these years.

"A-W-E doesn't describe the feeling. I don't know if they got a word that describes how I feel. To have a leash taken off my neck and off my ankle, I know how my ancestors felt when they got free," he said.

Falsely Accused

According to the Dallas Police Department report from September 28, 1990, the victim was awakened by a man wearing a black and white ski mask.

While struggling with the man and biting his hand several times, the victim told police, she pulled up her assailant's mask and recognized him as Phillips, a man she had seen living at the motel.

The following month, detectives showed the victim a six-picture lineup, and she again identified Phillips as the man who raped her. ..Continued.. by Jason Morris, CNN

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Federal prosecutors appeal child porn acquittal

11-26-2013 Mississippi:

JACKSON, Miss. (AP) — Federal prosecutors are asking the 5th U.S. Circuit Court of Appeals to order a new trial for a Mississippi man acquitted on child pornography charges.

A three-judge panel of the 5th Circuit is scheduled to hear arguments on Dec. 4 in New Orleans.

In 2012, James William Smith sought a new trial in a child pornography case arguing that the court made numerous errors. Instead, U.S. District Judge Sharion Aycock in Aberdeen, Miss., threw out the conviction and acquitted James William Smith of the charges.

Smith had been convicted of one count of possessing child pornography.

In asking for a new trial, Smith claimed the court made numerous mistakes, like allowing prosecutors to remove two blacks from the jury pool and allegedly allowing improper jury instructions.

The indictment in the case said Smith had movies of child porn on his work computer in Tupelo in 2011.

In her ruling, Aycock said the government failed to prove Smith knew the images were on the computer. She said evidence showed Smith and another person who had access to the computer were not at work when the government said the images were downloaded.

"To the extent the government introduced these records to prove that Smith had knowledge and access to the images," Aycock wrote, "the proof is just as likely" that the other person did, as well.

Aycock said trial testimony also revealed that Smith often left the computer logged in under his own username when no one was using the computer.

The government failed to prove beyond a reasonable doubt that Smith knowingly possessed the illegal materials found on his computer, Aycock said, adding it is just as likely that the other person downloaded the child pornography onto the computer, as Smith did.

Smith faced up to 10 years in prison upon conviction.

In its appeal to the 5th Circuit, Assistant U.S. Attorney Paul Roberts asked for the jury verdict to be reinstated and the case sent back to Aycock for sentencing.

"Smith's fanciful deconstruction of the evidence ignores the role of the jury as fact finder and encourages this court to be a 'super fact finder,' rejecting the jury's verdict. The District Court improperly engaged in this foray ... and this court should correct the District Court's error," Roberts wrote.

"The evidence was placed squarely before the jury. The jury made its credibility choice against Smith. There was nothing about the verdict or the conduct of the trial that denied or prejudiced Smith's 'substantial rights,'" he said.

Smith's attorney argued in briefs that if the 5th Circuit finds Aycock erred, it "should remand to the trial court for consideration of the merits of the motion for new trial."

"If the government is correct that the trial judge improperly weighed the evidence in granting acquittal, it seems likely she would grant a new trial if this court finds acquittal is not appropriate," Smith's attorney, Julie Ann Epps of Canton, said in briefs. ..Source.. by SFGate.com

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Exoneration lists expose causes for wrong convictions in Jefferson County and across nation

5-20-2012 Alabama & National:

Five men from Jefferson County and 12 others convicted but later cleared in Alabama courts are listed on a new national exoneration registry designed to highlight the issue of wrongful convictions and explain why they happen.

The registry, compiled by the University of Michigan Law School and the Center on Wrongful Convictions at Northwestern University School of Law, profiles 873 cases from January 1989 through February 2012. The registry is available to the public online: now available HERE.

Each convicted defendant was later cleared through DNA, confession by the real criminal or other circumstances. Most involved murder and sexual assault cases.

The cases highlight the legal pitfalls that can lead to wrong convictions, said authors of a study based on the registry, Samuel Gross and Michael Shaffer.

"The more we learn about false convictions, the better we'll be at preventing them -- or if that fails, finding and correcting them as best we can after the fact," Gross said in a statement.

The study found that bad eyewitness testimony was a factor in 94 percent of the exonerations, either because a person mistakenly identified the defendant or lied to put him behind bars.

Alabama, with one federal and 16 state exonerations on the registry, ranked 14th nationally for total false convictions. Broken down per capita, Alabama ranked 10th nationally, according to the report.

But the study's authors said the numbers can be misleading, because states like Alabama, Illinois and Michigan with larger Death Row populations and organizations dedicated to ferret out wrongly-convicted people will be disproportionately represented.

Also, cases such as homicide and sexual assault, which often involve DNA evidence and result in longer sentences, are more likely to provide the means and time needed to prove the wrong person was convicted, the study found.

Nearly 6 in 10 of the people on the registry were cleared by DNA. It took an average of 12 years from conviction and 13 years from arrest for them to find justice, the study found.

Alabama Attorney General Luther Strange said he has confidence in the integrity of state criminal proceedings.

"The many safeguards in place provide sufficient opportunity to correct the very few errors that are made," he said in a statement. "Sixteen errors out of tens of thousands of convictions does not indicate a systemic problem but rather supports the high degree of accuracy in our proceedings."

High number

The study's authors concluded the actual number of wrong convictions is much higher.

Gross and Shaffer intentionally defined exoneration narrowly, only listing on the registry cases the authors identified in which a court, prosecutor, or governor found post-conviction evidence of innocence persuasive enough to drop the charge, release the defendant, order a new trial that resulted in acquittal or issue a pardon.

"It is clear that the exonerations we found are the tip of an iceberg," said Gross, a University of Michigan law professor and editor of the registry. "Most people who are falsely convicted are not exonerated; they serve their time or die in prison. And when they are exonerated, a lot of times it happens quietly."

More than 90 percent of the exonerated defendants are male. Half are black.

About 15 percent of the exonerations involved people who confessed to crimes they did not commit. Often these were juveniles or mentally-disabled defendants, the study found.

The study also found the main factors behind wrong convictions varied by crime:

Murder: Perjury or false accusations were found in nearly two-thirds of those exonerations. Official misconduct, from suggestive interview techniques to fabrication of evidence, also was found in more than half of those cases.

Adult sexual assaults: Mistaken witness identification was involved 80 percent of the time, and was especially prevalent when victim and defendant were different races. Nearly 4 in 10 cases also involved false or misleading forensic evidence.

Child sex abuse: The accuser most often made up the crime, the study found. Official misconduct also was found in more than one-third of the cases.

Many child-abuse exonerations stemmed from what the authors called the "hysteria cases" of the 1980s and 1990s. They included prosecutions such as the McMartin Preschool case in California in which several adults were charged with molesting dozens of children in what proved to be false accusations.

Robbery: Mistaken eyewitness identification was found in 80 percent of those exonerations.

Gross and Shaffer said the justice system needs to be more careful that mistakes are not made on the front end, and more open to genuine evidence of innocence post conviction. Alabama's attorney general, however, said the courts provide sufficient safeguards to correct genuine mistakes.

"The courts remain open to considering strong evidence of actual innocence," Strange said. "Oftentimes, post conviction courts are flooded with weak theories of innocence rather than actual evidence supporting innocence."

Jefferson County

Here are the cases of five men convicted in Jefferson County Circuit Court who are listed in a new national registry of exonerations:

Freddie Lee Gaines: Charged in a 1973 double homicide, he was acquitted in one death and convicted in the other. Gaines was released for good behavior after 11 years in prison. Five years later, in 1990, another man confessed to the crimes. Gaines received $1 million in state compensation, but was not pardoned until 2005.

Dale and Ronnie Mahan: Convicted of a 1984 kidnapping and rape, Dale was sentenced in Bessemer to 35 years and Ronnie received life without parole as a habitual offender. They were released after nearly 14 years when testing that was not available before trial showed they did not leave DNA found on the victim. She still maintained she was attacked by two men, but admitted she had sex with a man other than her husband earlier that day.

Louis Griffin: After his arrest on federal racketeering charges, the New York street gang member took credit for a 1992 drug-debt slaying in Birmingham. But when he and another man went on trial in Birmingham in 1997, Griffin said he made it all up to get a lighter sentence in his federal case. Both men were convicted, with Griffin getting a death sentence and the other man a life term. Griffin won a new trial in 2000 and was acquitted in 2001, but went to federal prison for the racketeering case.

Wesley Quick: Charged in the 1995 shooting deaths of two teens near Pinson, his first prosecution ended in mistrial due to juror misconduct. He was convicted and sentenced to death in 1997, but won a new trial and was acquitted in 2003. The trial judge then sentenced Quick to 76 years in prison after he pleaded guilty to three burglaries, including one in which the murder weapon was stolen. ..Source.. by Eric Velasco -- The Birmingham News

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Marine's sex assault conviction tossed as prosecution questioned

3-9-2012 Washington:

An appeals court has thrown out the sexual assault conviction of a Marine in yet another example of the growing legal questions sparked by the U.S. military's newly aggressive stance on rape.

Nicholas Stewart, a Marine Corps captain, became one of the first to be convicted under a controversial 2006 law that allowed the military to seek charges of sexual assault if the victim was "substantially incapacitated" from drinking too much alcohol.

Stewart, 33, served more than a year out of a two-year prison sentence and was registered as a sex offender for a crime the appeals court now says he didn't commit.

"I am grateful for this long-awaited proof of the integrity of our judicial system," said Stewart, who was 29 at the time of his conviction. "I look forward to continuing to serve our country and our Marine Corps."

McClatchy Newspapers detailed Stewart's case in a series of stories about questionable rape prosecutions by the military.

The Court of Appeals for the Armed Forces said in its ruling Tuesday that the military judge had given the jury improper instructions that, in essence, required the jury to determine whether Stewart was guilty of the same crime twice.

The jury found him not guilty of one charge but then had to reconsider its own verdict when it deliberated over a second charge, which was essentially the same sexual assault allegation, the court concluded. The judge "created the framework for a potential double jeopardy violation," the judges wrote, referring to the constitutional clause of the Fifth Amendment that bars citizens from being tried for the same crime twice.

"As a result of the military judge's instructions, (the jurors) were placed in the untenable position of finding Stewart both guilty and not guilty of the same offense," the judges wrote.

The case also highlighted a little known but common problem with prosecuting many military rape allegations. In many cases, both the accuser and the accused are partying together and drinking excessively. As a result, memories often are blurry and little or no physical evidence of an assault exists.

Stewart, a fighter pilot who served in Iraq, was accused of sexually assaulting a longtime friend after she had been drinking at a party. She had had sexual relations with the Marine previously, but not intercourse. The woman herself told Stewart she didn't feel "forced" to have sex. "I can't even say I told you 'No,'" she wrote in an email that came out in court.

But she maintained she had drunk so much alcohol that she couldn't have possibly consented to sex. She didn't remember the entire encounter but Stewart asserted she did consent.

Armed with the new law, the military decided to prosecute the case even though an attorney whose job was to evaluate the evidence had recommended that the military commander dismiss the charges because of lack of evidence.

Stewart's civilian lawyer, Charles Gittins, said this week's ruling raises broader concerns about whether the military is pursuing such prosecutions for the wrong reasons. Pressed by the woman's parents to take legal action, Stewart's commander sent the case to a court-martial to let a jury decide instead of telling them that there was not enough evidence to go forward.

"The commander had a legal expert telling him that he should not pursue it but he did anyway," Gittins said. "The only reason you do that is if there's political pressure."

The Office of the Judge Advocate General of the Navy declined on behalf of the prosecution to answer questions about the legitimacy of the original decision to charge Stewart. Jennifer Zeldis, a spokeswoman, said her office is still considering whether to appeal the decision.

But if the ruling becomes final, she said, Stewart cannot be prosecuted again.

A McClatchy Newspapers analysis late last year found that the military is prosecuting a growing number of rape and sexual assault allegations, including highly contested cases that would be unlikely to go to trial in many civilian courts. However, many of the accused aren't being convicted of serious sex crimes, prompting concerns that the military is prosecuting cases that should not be sent to trial because of questions about the evidence.

The problem in Stewart's case also arose because of confusion over the 2006 law, which shifted the burden of proof to defendants who were claiming the sex was consensual. In an effort to address what could have been an unconstitutional burden on defendants, Congress revised the law once again late last year, but experts say those changes don't completely clear up the confusion. ..Source.. by MARISA TAYLOR

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Court throws out child rapist’s failure-to-register conviction

Decision is relevant only to this defendant and the facts of his case.

2-24-2012 Massachusetts:

BOSTON — The state supreme court has ruled in favor of a convicted child rapist, saying there was insufficient evidence for a lower court judge to convict him of failing to register as a sex offender in Brockton.

Tracy K. Kateley, 55, whose address is currently listed as 554 Washington St., Whitman, was sentenced to lifetime parole after a judge in Brockton District Court convicted him of failing to register in Brockton in 2007.

The Supreme Judicial Court issued a ruling Friday that reverses that conviction. The justices said there wasn’t enough evidence to support the conviction.

In 2006, a judge in Quincy District Court placed on file a guilty finding against Kateley for failing to register as a sex offender in Randolph.

He was convicted in Oregon in 1998 of rape and abuse of a child and indecent assault and battery on a child.

He is registered as a Level 3 offender in Massachusetts, the kind considered most likely to re-offend. ..Source.. by The Enterprise

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COMMONWEALTH vs. Tracy K. KATELEY.

SJC-Previous search terms10905.Next search terms

December 5, 2011. - February 24, 2012.

Sex Offender. Sex Offender Registration and Community Notification Act. Constitutional Law, Sex offender, Parole. Due Process of Law, Sex offender, Parole. Parole. Evidence, Sex offender.

COMPLAINT received and sworn to in the Brockton Division of the District Court Department on December 11, 2007.

The case was heard by Julie J. Bernard, J.

After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.

Jason Benzaken for the defendant.

Mary E. Lee, Assistant District Attorney, for the Commonwealth.

Beth L. Eisenberg, Radha Natarajan, & Larni S. Levy, Committee for Public Counsel Services, for Committee for Public Counsel Services, amicus curiae, submitted a brief.

Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.

IRELAND, C.J.

After a jury-waived trial in the District Court, the defendant was convicted of failing to verify his sex offender registration information by refusing to provide certain secondary addresses, and was sentenced to lifetime parole. See G.L. c. 6, § 178H. The Appeals Court, in an unpublished memorandum and order issued pursuant to its rule 1:28, affirmed. Commonwealth v. Kateley, 78 Mass.App.Ct. 1115 (2010). We granted the defendant's application for further appellate review. The defendant argues that the judge erred in denying his motions for a required finding of not guilty because there was insufficient evidence to convict him. He also makes several arguments concerning whether the judge properly imposed lifetime parole and whether the criminal complaint provided him with proper notice, including a claim that his constitutional rights were violated because the penalty of lifetime parole was not properly alleged in the complaint. Because we conclude that there was insufficient evidence to convict the defendant, we reverse. In light of this conclusion, the other issues the defendant raises are moot. However, because there appears to be some confusion concerning whether the complaint properly alleged that the defendant could face lifetime parole, we address it briefly.

Statutory scheme. "The Legislature adopted G.L. c. 6, §§ 178C-178O, an extensive statutory registration scheme for sex offenders, in order to protect the public from 'the danger of recidivism posed by sex offenders' and to aid law enforcement officials in protecting their communities by providing them with information.... A convicted sex offender must register with the [sex offender registry] board [ (board), which then] determines the offender's classification level." Commonwealth v. Rosado, 450 Mass. 657, 659-660 (2008), quoting Doe, Sex Offender Registry Bd. No. 3844 v. Sex Offender Registry Bd., 447 Mass. 768, 769 (2006). See G.L. c. 6, §§ 178E & 178K (2).

There are three classification levels. Commonwealth v. Rosado, supra at 660. "Level two and level three sex offenders must verify their registration information with the board annually in person at the local police department in the city or town where they live." Id., citing G.L. c. 6, § 178F 1/2. Relevant here is that the registration information must include the offender's home address and any "secondary addresses." G.L. c. 6, § 178F. "Secondary addresses" are defined as where an offender "lives, abides, lodges, or resides" for fourteen days or more in a calendar year other than the "sex offender's primary address," or for four or more "consecutive or nonconsecutive days in any month [other than the] sex offender's permanent address." G.L. c. 6, § 178C.

In addition, pursuant to G.L. c. 6, § 178E (i ), an offender intending to move out of the Commonwealth must notify the board in writing no later than ten days before such move. General Laws c. 6, § 178F 1/2, first par., modifies these provisions by requiring a level two or level three sex offender to notify the local police department in person.

Pursuant to G.L. c. 6, § 178H (a ), an offender may not knowingly fail to register, to verify registration information, to provide notice of a change of address, or to provide false information. Any agency that has custody of a sex offender must inform the offender, before his release, of the duty to register. G.L. c. 6, § 178E (a ). The penalty for violating the registration requirement depends on the offender's classification level, the underlying sex offense, or whether the conviction is a second and subsequent conviction. G.L. c. 6, § 178H (a ). Relevant here is that a sex offender who is convicted of violating the statute and "who has been adjudicated or convicted of any of the offenses set forth in [§§ ] 13B, 13F, 22A, 23, 24B and 26 of [G.L. c.] 265 or ... a like violation of the laws of another [S]tate ... shall ... be punished by a term of community parole supervision for life." G.L. c. 6, § 178H (a ) (1), second par., as amended through St.2006, c. 139, § 26.

Facts and procedure. The Commonwealth's case was based, in relevant part, on documents admitted in evidence and the testimony of a Brockton police detective, who was the sex offender registration coordinator for the Brockton police department.

In 1998, the defendant pleaded guilty to sex offenses in Oregon. In 2006, for reasons not pertinent here, the defendant had been in the custody of the Norfolk County Correctional Center. On his release on September 1, 2006, the defendant signed a form acknowledging that he had been informed of his duty to register. G.L. c. 6, § 178E (a ). That form stated that an offender had the duty to provide a ten-day notice to the board if he planned to move. That day, the defendant filled out his initial sex offender registration form at the Brockton police department. At that time, he checked the box indicating that he was a level two sex offender, listed an apartment at 167 Newbury Street as both his permanent and temporary address, and provided a telephone number. He listed his daughter as his closest living relative, and indicated that her address also was the apartment at 167 Newbury Street.

The detective made several unsuccessful attempts to verify the defendant's address by visiting the apartment and knocking on the door. On May 24, 2007, he attempted to telephone the defendant using the number the defendant had provided, but also was unsuccessful. The detective then went to the apartment; the defendant was there. He asked the defendant for an accurate telephone number and to verify his address. The defendant provided a different telephone number and stated that he stayed at the apartment. He also said that he "stay[ed] elsewhere" but refused to tell the detective the other address.

On May 29, the detective tried to telephone the defendant using the new number, but again was unsuccessful. On May 30, the detective returned to the apartment. The defendant was not there, but the defendant's daughter and infant granddaughter were. The detective was allowed to enter the apartment. He testified at trial that it was a one-bedroom apartment. He also testified that it appeared to him that the defendant did not live there.

On June 18, the detective met with the defendant and asked again for his other address. The defendant refused to provide it. The detective did not have any other specific information that the defendant stayed elsewhere; he had not seen the defendant elsewhere; and he did not conduct any extended surveillance or any other investigation to determine whether the defendant had a secondary address within the meaning of the statute.

The documents show that the defendant appeared and complied with the annual registration requirement on July 10, 2007. On that date, the form shows a typewritten X in the box indicating that the defendant was a level two sex offender; all other information was written by hand. The box indicating that the form was an annual registration was marked. The form appears to bear the detective's signature as a witness. [FN1]

The detective testified and documents reflect that, on July 17, the defendant returned to the Brockton police department and filled out another sex offender registration form indicating that he lived at 167 Newbury Street. The box on the form indicating that it was an annual registration was not marked and, for the first time, the defendant checked the box indicating that he was a registered sex offender "in [a]nother State" and wrote the word "Mass" in the line asking which State. At that time, his picture and fingerprints were taken. The detective stated that the defendant said he would not say whether he was living somewhere else. [FN2]

On July 17, the defendant also sent a letter to the board stating, "due to a family situation I have to immediately return to Oregon." It stated that future correspondence from the board could be sent to him in care of what appears to be a family member, at a specific address in Oregon.

The board sent a copy of the defendant's letter to the Brockton police department in August, 2007. See G.L. c. 6, § 178E (i ) (on receipt of notice of offender's intention to move out of State, board shall transmit notice to appropriate police department). However, because the detective did not learn of it until January, 2008, he returned the apartment in December, 2007. The tenant who answered the door did not know the defendant or his family. The detective applied for an arrest warrant, charging the defendant with failure to register. The defendant was arrested in Brockton on August 29, 2008.

At trial, the defendant called three witnesses. His daughter testified that she had a two-bedroom apartment and that the defendant lived in the apartment, slept on a couch in the living room, and had "[t]wo small duffel bags" of belongings in the closet near the front entrance to the apartment. She stated that she had shown the bags to the detective. The daughter also testified that she moved out of the apartment in November, 2007. The defendant's girl friend testified that the defendant possessed few belongings because, before he moved into the apartment, the pair had traveled around the country while living in her truck. A former neighbor and friend of the defendant's daughter testified to details that supported her statement that the defendant lived at the apartment.

In its closing argument, the Commonwealth argued that, on June 18, the defendant admitted that he lived elsewhere and therefore he had the obligation to report his secondary address. Concerning July 17, the Commonwealth argued that the defendant also did not list any secondary address or an out-of-State address in Oregon. The Commonwealth argued that these failures on the part of the defendant constituted a failure to verify his address and failure to provide accurate information.

The judge found that on June 18 and July 17, the defendant knowingly failed to verify registration information. Specifically, she found that, although the defendant lived at the apartment, he failed to "verify any other potential residence ... or places that he frequents." The judge noted that when the defendant sent the letter to the board informing them that he was moving to Oregon, he knew he had an obligation to provide ten-day notice to the board of his intention to do so. Nevertheless, she did not find him guilty on that ground, only for failing to register. [FN3] Although the judge's recitation of her findings is not entirely clear, we infer that she made her findings concerning the June 18 and July 17 incidents consonant with the Commonwealth's closing argument. That is, on June 18 the defendant had a secondary address in Massachusetts that he did not report, and on July 17 he had a secondary address in Massachusetts and an address in Oregon that he did not report. It is important to note that the judge implicitly rejected the Commonwealth's argument that, in failing to report these addresses, the defendant also provided false information to the board.

Discussion. 1. The defendant argues that there is insufficient evidence to convict him of failing to verify his registration information. We agree.

We begin by noting that the defendant makes several arguments concerning the interpretation of the statutory language, including whether the judge erred when she stated that there is a duty under the statute to verify "any other potential residence" or "places that [an offender] frequents"; whether the statute requires anything more than an annual reporting of information and, therefore, there was no duty to verify an address on June 18 (or July 17); and whether the failure to verify registration information prong of the statute encompasses the duty to report a secondary or intended address. For purposes of our analysis, we will assume, without deciding, that the judge's interpretation of the statute was correct. In addition, we do not address arguments concerning whether the defendant provided the requisite ten-day notice of his intent to move because the judge explicitly did not find him guilty of violating that statutory provision. See note 3, supra.

Under the statutory scheme, in order for the Commonwealth to prove beyond a reasonable doubt that the defendant failed to provide a secondary address, it had to show that the defendant stayed at an address other than the apartment for either fourteen days in a calendar year or for four or more days in a month. The only evidence that the defendant may have had a secondary address was his statements to the detective that he stayed "elsewhere." There was no investigation that could have established a second address or the number of days he stayed there. [FN4]

The Commonwealth argues that the defendant's statements are corroborated by the fact that he "apparently" gave the detective false telephone numbers and by "the appearance that he did not live at the [apartment]." We are not persuaded by the latter argument, because the judge found that the defendant lived at the apartment. See note 3, supra. Moreover, the telephone numbers are not evidence of the critical issue: how often the defendant stayed elsewhere. Therefore, even assuming, arguendo, that the telephone numbers were a kind of admission in the same way that his statements were, the "fundamental question is what [they] proved." Commonwealth v. Gray, 80 Mass.App.Ct. 98, 102 (2011). We conclude that the defendant's statements and the telephone numbers are insufficient evidence to establish beyond a reasonable doubt that he failed to register a secondary address within the specific requirements of the statute. "[A] conviction [may not] rest upon the piling of inference upon inference or conjecture and speculation." Commonwealth v. Armand, 411 Mass. 167, 170 (1991).

Concerning the failure to list the Oregon address on his registration form on July 17, we begin by rejecting the Commonwealth's assertion that the defendant fulfilled his annual obligation to register and sent his letter to the board on the same day, July 17. As discussed, the documents show that the defendant fulfilled his annual registration duty on July 10. Although he does not list an Oregon address on his form on July 17, and did not inform the Brockton police department of his move to Oregon, he did check off the box listing Massachusetts as another State where he was a registered sex offender. Moreover, there was no testimony contradicting that the defendant was living at his daughter's apartment when he went to the Brockton police station on July 17. The only evidence concerning the exact day he moved to Oregon was the daughter's testimony that he was in Oregon at the end of July, "[a]round the 20 something," and the sex offender registration form the defendant subsequently filled out in Oregon indicating that he had arrived on July 21.

In addition, although G.L. c. 6, § 178F 1/2, first par., states that a level two sex offender must inform the local police department in person of an intention to move out of State, no form admitted in evidence (including the forms signed by the defendant) indicates that only the local police department must be informed. Instead, the document from the Norfolk correctional facility that the defendant signed on September 1, 2006, acknowledging that he was informed of his duty to register, stated an offender must inform the board of an intention to move. The other forms stated that an offender must inform the board or the police department. The letter from the board states that the board "and/or the Police Department (level 2 and 3 offenders)" must be notified which, we conclude, makes the obligation less than clear and reasonably could be read to mean that reporting to the board was sufficient. Given these facts, we cannot say that the Commonwealth proved beyond a reasonable doubt that the defendant knowingly failed to verify his potential address in Oregon by informing the board rather than the police department of his intention to move to Oregon. The department has an obligation to inform sex offenders of a duty to give notice of an intent to move. G.L. c. 6, §§ 178E (a ) & 178F 1/2. We suggest that the forms and letter from the board be revised to reflect clearly and accurately how an offender should fulfil that duty.

The judge erred in denying the defendant's motions for a required finding of not guilty.

2. Under the statutory scheme, an offender who violates the registration requirement could face community parole supervision for life (CPSL). G.L. c. 6, § 178H (a ). The defendant argues that the complaint was deficient under art. 12 of the Massachusetts Declaration of Rights because it failed to allege that the defendant was a level two sex offender, and that he had been convicted of one of the requisite offenses that could result in CPSL. Although this issue is now moot, we exercise our discretion to consider it because it is an issue of importance. Commonwealth v. McCulloch, 450 Mass. 483, 486 (2008), and cases cited. There seemingly is some uncertainty whether the art. 12 analysis of enhanced penalty set forth in Commonwealth v. Pagan, 445 Mass. 161, 169- 170 (2005) (Pagan ), applies to violations of the registration requirement.

The Legislature intended that CPSL serve as an "enhanced penalty for sex offenders." Commonwealth v. Renderos, 440 Mass. 422, 429 (2003). We have held that, under art. 12, "[i]f a defendant is made susceptible to a prescribed statutorily enhanced penalty because of a former conviction, the predicate offense must be alleged in the complaint or indictment [and proved]." Pagan, supra at 169. See Ring v. Arizona, 536 U.S. 584, 600 (2002), quoting Jones v. United States, 526 U.S. 227, 243 n. 6 (1999) ("[U]nder the Due Process Clause ... any fact [other than prior conviction] that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt").

Pagan concerned CPSL for certain qualifying repeat sex offenders. Pagan, supra at 165-167. See G.L. c. 265, § 45; G.L. c. 275, § 18. [FN5] We conclude, and the parties do not dispute, that the same art. 12 analysis is implicated here because, as discussed in Pagan, supra at 168-169, the enhanced penalty of CPSL is mandatory. Accordingly, under G.L. c. 6, § 178H (a ), the predicate condition or offense for imposing CPSL (here, sex offender classification or prior conviction of certain sex offenses) must be alleged in the charging document.

The complaint issued against the defendant in this case first tracked the language of G.L. c. 6, § 178H (a ), by setting forth the four ways an offender could be guilty of failing to register. [FN6] Concerning the potential punishment for failing to register, the complaint stated, in relevant part:

"(PENALTY: ... Lifetime community parole supervision is also required upon conviction if: [1] defendant has been categorized as a level [two] or [three] sex offender, or [2] defendant's underlying offense was G.L. c. 265, §§ 13B, 13F, 22A, 23, 24B or 26 ... or a like offense in another jurisdiction ...)" (emphasis added).

See G.L. c. 6, § 178H (a ) (1), second par., and (a ) (3). [FN7]

The Commonwealth argues that the language contained in the parenthetical properly alleges requisite "facts": that if the defendant is a level two sex offender or his underlying offenses in Oregon were "like offense[s]" within the meaning of the statute he could face CPSL.

The language of the complaint tracks the statutory provision but does not specifically allege that this defendant is a level two sex offender or identify the "like offense[s]" committed in Oregon that could result in CPSL. In Commonwealth v. Fernandes, 430 Mass. 517, 518, 522 (1999), indictments against two defendants as "repeat offenders" were attached to indictments for distributing cocaine and stated that one defendant had been convicted of "a similar offense" and that the other defendant had been convicted of "manufacturing, distributing, [or] dispensing ... a controlled substance." Id. at 524-527 (Appendices A and B). We concluded that the repeat offender indictments were sufficient because the defendants only had to look to the indictment charging distributing cocaine to understand the drug offense that brought them under the repeat offender provision of the statute. Id. at 522. Here, however, the complaint against the defendant charged a violation of the duty to register, a statute that is not the same as the alleged predicate offense or condition (here, prior conviction of certain sex offenses or sex offender classification) that could result in CPSL. Therefore, we conclude that the complaint issued against the defendant in this case did not meet the requirements of art. 12. [FN8] See generally id. at 521-522.

Judgment reversed.

Judgment for the defendant.

FN1. The date the defendant complied with the annual registration requirement is important to our analysis because, as discussed infra, the Commonwealth hinges some of its argument on the assertion that the annual registration occurred on July 17, 2007.


FN2. The detective characterized the defendant's behavior as "confrontational" and "uncooperative" when he refused to provide a second address on June 18 and July 17, 2007.


FN3. The judge found as follows:

"I find, given the credible testimony that was presented ... the Commonwealth has met its burden beyond a reasonable doubt that on both June 18 and July 17, 2007, the defendant knowingly failed to verify registration information. There was evidence presented and I find credible from the witnesses, he was living at [the apartment], but he had an obligation to verify any other potential residence, which he did not, or places that he frequents. That's an obligation
as a sex offender. And it's also clear to me, given that these forms were dated the same date and that he wrote that letter [concerning moving to Oregon] to the [board] that he knew he had the intention to leave the [Commonwealth] and he had an obligation to report that. But I'm finding him guilty of failing to register--failing to knowingly verify registration information on both June 18 and July 17, 2007."


FN4. The Commonwealth called no other witness to attest to any alternate address. The detective testified that on July 17 he spoke on the telephone to the defendant's girl friend and that she would not provide any information about where they were living. On cross-examination, he stated that he did not recall whether she denied that the defendant was living with her or stayed with her. The defendant's girl friend testified for the defense that the defendant never stayed at her house. She explained that she lived with her mother, who would never allow the defendant to stay overnight with her. The girl friend testified that, occasionally, she would sleep at the apartment instead.


FN5. In Commonwealth v. Pagan, 445 Mass. 161, 172-173 (2005), we held that G.L. c. 275, § 18, was unconstitutionally vague.


FN6. The complaint stated: "On December 10, 2007, being a registered sex
offender, as defined in G.L. c. 6, § 178C, who was required to register pursuant to G.L. c. 6, §§ 178C-178P: (1) did knowingly fail to register; or (2) did knowingly fail to verify registration information; or (3) did knowingly fail to provide notice of a change of address; or (4) did knowingly provide false information, in violation of G.L. c. 6, § 178H (a )."


FN7. The parties argue whether the language of G.L. c. 6, § 178H (a ) (3), stating that any level two or level three sex offender who is convicted of violating the obligation to register "shall ... be subject to community parole supervision for life [CPSL]" means that CPSL is mandatory rather than permissive. The basis for the argument is that the other two provisions, G.L. c. 6, § 178H, (a ) (1) and (2), state that an offender "shall ... be punished by a term of [CPSL]." We need not address this issue here. We assume, without deciding, that the provision means mandatory CPSL.


FN8. Under the Federal and State Constitutions, the fact finder must make specific findings concerning whether the defendant fell under the enhanced penalty portion of the statute. See Ring v. Arizona, 536 U.S. 584, 600 (2002), quoting Jones v. United States, 526 U.S. 227, 243 n. 6 (1999); Commonwealth v. Pagan, supra at 169. We note that, here, there were no explicit findings of fact made by the judge before CPSL was imposed on the
defendant.

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Santa Clara County experiencing surprising spike in deadlocked juries in molestation trials

12-19-2011 California:

When child molestation suspect Joseph Conversa first faced a Santa Clara County jury last month, one juror's initial reaction was hardly unusual: "Oh, you sick pig."

But not only did that juror and 10 others ultimately decide he was not guilty, the San Jose man's case also became the latest in a surprising trend: Juries have deadlocked or acquitted defendants in 43 percent of the county's child molestation trials this year.

In contrast, all but one or two such trials in a typical year end in a conviction. Yet out of 21 child molestation trials so far this year, jurors acquitted one defendant and hung in eight other cases.

"It's shocking," said defense attorney and former prosecutor Charles J. Smith, of the unusually large number of juries that have not found accused sex offenders guilty.

Some legal experts say the spike in mistrials raises questions about whether prosecutors are being too aggressive in pursuing cases with relatively weak evidence, thereby risking false convictions. Others praise prosecutors for going to trial on behalf of victims and blame factors such as the "CSI effect" -- the impact of TV shows that foster unrealistic demands for forensic proof -- on cases that often lack physical evidence.

However, most experts agree the mistrials are a positive sign that Santa Clara County jurors have been able to set aside their revulsion for pedophiles in general to judge each case on its merits, even if they can't agree on a result. In Conversa's mistrial, the jury wound up voting 11-1 earlier this month in favor of finding him not guilty of raping a 10-year-old relative.

"I went in naturally thinking, 'Oh, you sick pig,' " Juror No. 11 said in an interview after the trial. But the woman, who asked that her name not be used, ended up voting to acquit him. "Now I think the prosecutor is going to have to do some real tap-dancing to get a jury to believe it."

Local defense attorneys said the current supervising attorney of the prosecution's sex-crimes team is more likely to bring stiffer charges and less prone to settle cases than his predecessor.

District Attorney Jeff Rosen denied the office might be filing weak cases. He said the series of mistrials could be a fluke; however, he said he would keep an eye on the situation to see if the trend continues.

"If it happens again next year, maybe there is something we need to address about jury selection," he said. "But a lot of times, people are retried and convicted."

According to figures provided by the District Attorney's Office, prosecutors are deciding whether to retry six of the cases in which the jury deadlocked, including a single mistrial from last year. They settled one case and dismissed two. All of the cases involved children younger than 16, and did not include statutory rape charges, which can be tough to make stick. The final votes in each case also varied considerably.

"We have had cases that were 11-1 for guilty, 11-1 for not guilty, and many in-between possibilities," said Steve Fein, a special assistant district attorney who oversees the sexual assault team.

In the most recent case involving the 10-year-old girl, prosecutors are weighing whether to retry Conversa, 32. He has been in jail for three years since his arrest on five felony counts of sexually assaulting the child and possession of child porn, and he faces more than 40 years to life if he is convicted.

Smith, the former prosecutor, said most district attorneys in the Bay Area wouldn't retry a child molestation case with that unfavorable a margin.

"If it were 11-1 or 10-2 in favor of guilty, you could just say, 'Well, that was just a weird jury,' " he said. "But if it's the other way around, prosecutors usually need new evidence or some valid reason, like they can prove a defense witness was lying in the first trial."

Rosen said his office takes the victim's wishes into consideration, and also weighs the seriousness of the charges, among other factors.

Interviews with three jurors in Conversa's trial -- including the lone juror who voted to convict -- offer a glimpse of how a jury can disagree.

The jury was made up of four women and eight men. They heard testimony from the child, now 13, and Conversa himself, as well as from his grandmother, friends and a former co-worker. The girl reported the rape three weeks after she said it occurred; there were no eyewitnesses or physical evidence. The prosecution offered clear-cut evidence that Conversa had child pornography on his laptop. However, Superior Court Judge Linda Condron would not allow the defense to present evidence that Conversa's older brother, who lived in the same house, pleaded guilty last year to possessing child porn.

The girl's mother invoked her Fifth Amendment right not to testify on the grounds it might incriminate her after evidence turned up that she may have been involved in an effort to help the older brother defraud unemployment.

The three jurors agreed they were not swayed by the personalities or performance of the lawyers. For Juror No. 5, a woman in her 30s, it came down mostly to the girl's testimony and the child porn, including sites on his favorites list.

"I don't think a child of that age would have the wherewithal to make it up and express it through the texts and voice mails by pleading with her mom to call her right away the way she did," the woman said.

She also didn't believe the defendant, despite positive testimony by his grandmother that Conversa moved in to help care for his severely ailing grandfather.

In contrast, jurors No. 11 and No. 3 said the defense raised reasonable doubt about who may have looked up the porn; the laptop was used by everyone who lived in the home, including a teenage boy and his friends, as well as by visitors, including Conversa's older brother.

Both jurors found the absence of medical evidence troubling, given the girl's description of the assault. Both also came to believe the girl had a motive to make up the story -- to get Conversa kicked out of the house. The child testified that she had a friend who was also sexually assaulted, which raised the possibility in these jurors' minds that she could have modeled her story on her friend's account.

They also found Conversa's testimony that he was innocent believable. Juror No. 11, who previously served on a jury that convicted two men of killing a homeless man, pledged to raise money for his defense if he is retried -- and to attend the trial daily.

Juror No. 3 didn't go quite that far, but she also came to believe Conversa didn't do it.

"If we're wrong, it would be horrifying for him to go free," Juror No. 3 said. "But our job as jurors was to go with the 26 pieces of evidence, and that's what we did." ..Source.. by Tracey Kaplan

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Sex offender not guilty of collecting urine in public bathroom

2-17-2011 Ohio:

Prosecutors proved Alan Patton tampered with a restroom in a Lewis Center Burger King last October, but they couldn’t prove he did it to collect urine, a judge ruled Wednesday.

After about 45 minutes of deliberation, Delaware Municipal Judge David P. Sunderman found the 59-year-old Dublin man guilty of criminal mischief, but acquitted him on a more serious misdemeanor charge of unlawful collection of a bodily substance.

Patton, who had previously requested that Sunderman, not a jury, try him, faces a maximum 60 days in jail and $500 fine. The unlawful collection charge carried a maximum penalty of six months and jail and a $1,000 fine. The charge was made possible through a law passed last year specifically inspired by Patton’s history of collecting and drinking the urine of young boys in Central Ohio public restrooms.

Delaware County Sheriff’s deputies testified Patton, who is a registered sex offender, spent about an hour in the restaurant’s bathroom during the 70 minutes he was there on Oct. 29. He also waited about 40 minutes in the restaurant before placing an order. Dep. Brian Blair, who was there with his 3-year-old son to eat, testified that Patton left the bathroom carrying a bag.

However, prosecutors had no physical evidence supporting the unusual charge, Sunderman said. Blair did not see what was in the bag, and while Blair testified he heard Patton rustling paper in a closed bathroom stall and smelled a strong odor of urine, he did not directly observe him drinking or possessing urine.

“I understand the defendant was in the bathroom for an unusually long period of time, and there is no question in my mind that he was tampering with the toilet,” Sunderman said. “But, there’s simply no evidence he collected anything.”

Det. Dan Otto testified that Patton had a pair of plastic gloves and a plastic bag in his possession when he was arrested. But the sheriff’s office did not test the items, and Otto acknowledged during cross-examination there was no evidence linking them to the Oct. 29 incident.

Municipal assistant prosecutor Joe Schmansky asked that a presentence investigation be performed before Sunderman decides how to punish Patton.

“It certainly is an unusual case given the (unlawful collection charge),” Schmansky said. “I think the court needs to know a little more about Mr. Patton’s background and what happened in his life that led him to be in the bathroom on Oct. 29.”

In his closing argument, Schmansky acknowledged since no one witnessed what Patton was doing in the bathroom’s stall, and since there were no security cameras in the bathroom, the prosecution’s case was completely circumstantial.

“We don’t know exactly what Mr. Patton was doing in there. But we have enough circumstantial evidence for the court to easily draw the inference that Mr. Patton set up a method of collecting whatever fecal matter… or whatever somebody might put in that toilet bowl,” Schmansky said.

Public defender Chris Soon said that all the prosecution could prove is that Patton spent a lot of time in the bathroom, which is not a crime.

Patton, who wore a grey sweater over a grey button-up dress shirt and dark slacks, did not testify during the trial. He did not speak at all in court, and through Soon, declined to comment to reporters afterward.

A new court date has yet to be set. Patton remains free on bond, although he is subject to GPS monitoring and is not permitted to enter schools, libraries or public restrooms while the case is pending.

Patton is required to register as a sexual predator after a 1994 Franklin County gross sexual imposition conviction. He has a long history of the kind of behavior prosecutors described in his most recent criminal charges.

In 2006, Patton admitted to drinking the urine of young boys and told police that he’s been doing it for more than 40 years. He was sentenced at that time and banned from public restrooms.

On June 14, 2008, he again was arrested for placing plastic wrap on toilet seats and foam cups in urinals of a men’s room at Dublin’s SportsOhio. He was convicted in September 2008 of criminal mischief for that crime.

Patton’s long-standing unusual behavior frustrated the local law enforcement community, who could only repeatedly charge him with criminal mischief. So, legislators created a new law last year.

Under that law, which took effect on Sept. 17, the charge of unlawful collection of a bodily substance for nonmedical purposes becomes a felony if the same person is convicted of committing the crime a second time. ..Source.. by ANDREW TOBIAS

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