Never forget those who have died because of various sex offender laws.
Showing posts with label .Minnesota. Show all posts
Showing posts with label .Minnesota. Show all posts

September 10, 2016

Minnesota Supreme Court Holds Man Accused of Soliciting Child for Sex Over the Internet May Raise Mistake-of-Age Defense

9-10-2016 Minnesota:

A Minnesota criminal statute makes it a strict liability crime to solicit a minor to engage in sex. What if the solicitation is made over the internet to somebody who misrepresents themselves to be 16 or older (the age of consent in Minnesota)? Traditionally, courts have treated sex offenses involving minors as coming within the realm of strict liability; as the statute is intended to protect the minor from sexual exploitation and injury, the defendant can’t raise a claim of mistake of age or of his sincere belief that the person who he was inviting to engage in sex was old enough to consent, even if the minor misrepresented his or her age.

In State of Minnesota v. Moser, 2016 Minn. App. LEXIS 59 (Aug. 8, 2016), however, the Minnesota Court of Appeals decided that this strict liability approach could not be used for internet solicitations where there was no face-to-face contact between the solicitor and the child, and where the child had represented to the solicitor that she was 16 or older.

Police received a report that a 14-year-old girl had been solicited for sex on-line, and she identified the defendant, age 42, as the solicitor. The solicitation took place on Facebook. Moser and the child never met in person. Early in their on-line dialogue, the girl told Moser she was 16.

Although Moser repeatedly asked her to send pictures, she kept putting him off. They discussed masturbation, and Moser referred to meeting for sex. At one point, he said: “What are you doing tonight?” and then “When can I meet you and [expletive] that awesome [expletive] of yours?” ..For the full story, access the September 2016 issue of LGBT Law Notes..

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September 7, 2016

Why Jacob Wetterling's Killer Won't Face Charges in His Death

9-7-16 Minnesota:

The man who confessed Tuesday to abducting and killing 11-year-old Minnesota boy Jacob Wetterling in 1989 accepted a plea deal on a single child pornography charge and will never be charged with the boy's murder.

The maximum sentence for the child pornography charge is 20 years, and federal prosecutors have vowed to ask for the maximum. Still, a federal prosecution source tells PEOPLE it's possible Daniel Heinrich, 52, may never walk the streets a free man again.

After serving his 20-year sentence, Heinrich could be committed to a high-security facility through the state's sex offender program, the source explains. "He may not ever be released from custody – that would obviously be a good thing," says the source.

In his confession Tuesday, Heinrich – who led investigators to Jacob's remains last week – provided disturbing details about the autumn night Jacob vanished.

He admitted to wearing a mask and abducting Jacob at gunpoint as the boy rode his bike home with his brother and a friend. Jacob was handcuffed in Heinrich's car, and was driven to a wooded area where he was sexually assaulted.

"What did I do wrong?," the confused child apparently asked Heinrich, who later shot Jacob in the head before burying the boy's body in a gravel pit.

He said he returned to the crime scene a year later to dig up the child's remains, moving them to a second shallow grave.

Heinrich was arrested last October and charged with 25 federal child pornography counts after investigators recovered 19 binders and several hard drives containing images of minors in sexual situations.

"He was also into what's called 'morphing,' where he would print out graphic images and then, cut a child's face out of a picture and put it on bodies of other children," the source says.

While the plea agreement has been criticized as too lenient, the source tells PEOPLE none of the prosecutors involved in the negotiations that led investigators to Jacob's remains "are second guessing" the decision to cut a deal.

"He is not getting away with murder," the source says. "It wasn't a choice we really had. It was a bittersweet moment, but we got there."

Closure for Jacob's Parents Was Goal, Says Prosecution Source
The goal for the prosecution, the source explains, was to provide some closure for Jacob's parents while resolving a murder mystery that had detectives baffled for nearly three decades.

"It is important that people understand this was a difficult negotiation that took almost a year to finalize," the source tells PEOPLE. "Heinrich's attorneys contacted us on Aug. 26 and said, 'We think he's willing to talk about Jacob.' Now, he'd never admitted to us this was something he had been involved in, but his lawyers were saying that he could show us where he put Jacob. Part of this negotiation was he wouldn't face murder charges. It was important to him for some reason that he not be charged with murder."

The source says that Heinrich's willingness to talk put prosecutors in a peculiar position. They didn't have Jacob's body, so they couldn't file murder charges against Heinrich for the killing.

"The choice wasn't to try him for murder or not, it was to bring Jacob home or not," the source explains.

According to the prosecution source, even if Heinrich had been tried for Jacob's killing and a jury eventually convicted him for the crime, a judge would have been barred from imposing a lengthy prison term because the judge would have been forced to abide by the less-stringent sentencing guidelines that existed back in 1989.

"Under the state sentencing guidelines from the time he committed the crime, he would have received 17 to 18 years if convicted," the source explains. "He'll be getting 20 years for the charge he pleaded to, and then there's the possibility civil commitment will be imposed. Even without that civil confinement, you're still looking at a lengthier sentence than if he was convicted of Jacob's murder."

As part of that agreement, Heinrich had to give a full confession.

According to the source, Jacob's parents were consulted about the deal's terms ahead of time, and signed off on the agreement.

"It was important to everyone working this the case that Jacob's parents understand what was happening and why, and it was important to us that they were supportive," the source explains. "Now, they can give him a proper burial."

Jacob's remains were recovered from a farm in Paynesville, Minnesota, on Aug. 31, authorities have said.

After his arrest last October, investigators were able to establish a DNA link between Heinrich and the sexual assault of a 12-year-old boy just nine months before Jacob vanished.

Heinrich was questioned by authorities shortly after Jacob disappeared, but he had long denied any involvement in the child's abduction.

Under the terms of his deal, Heinrich also had to confess his involvement in the sexual assault of the 12-year-old. He will face no charges for that offense. ..Source.. by Chris Harris

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September 3, 2016

Suspect leads authorities to Wetterling remains

9-3-16 Minnesota:

"Our hearts are broken," Patty Wetterling said in a text to the Star Tribune. "We have no words."

A lead suspect in the 1989 disappearance of Jacob Wetterling has led authorities to human remains — remains the boy’s mother says are those of her long-lost son.

“Our hearts are broken,” Patty Wetterling texted to the Star Tribune this morning. “We have no words.”

A source with direct knowledge of the case confirmed to the Star Tribune that the remains are those of the 11-year-old boy whose disappearance almost 27 years ago shocked the state. Danny Heinrich, a suspect in the disappearance, reportedly agreed to cooperate and provide information about the location, according to authorities.

KSTP first reported that the remains were found at an undisclosed location in central Minnesota and that DNA tests are being conducted.

Heinrich has been in federal custody since late October, when authorities arrested him on charges of receiving and possessing child pornography. He was indicted in December on a total of 25 child pornography charges — five from October, plus an additional 20 related to possessing and receiving child pornography both in print and digital images. Some of the material featured children under the age of 12.

The child pornography case against Heinrich began building last summer, while authorities searched his home looking for evidence in both Jacob’s abduction and a separate kidnapping and sexual assault involving a 12-year-old boy in nearby Cold Spring, Minn., nine months before Jacob disappeared. ..Continued.. by Jenna Ross, David Chanen and Jennifer Brooks Star Tribune staff writers

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December 7, 2015

U.S. Supreme Court rejects appeal of MN priest’s sexual assault conviction

12-7-15 Minnesota:

The U.S. Supreme Court denied an appeal from a Minnesota priest who was convicted of having sex with a female parishioner.

Without comment, the justices declined to take up the case of the Rev. Christopher Wenthe. He was appealing his 2011 conviction on third-degree criminal sexual misconduct for having sexual contact with the woman when she had sought spiritual counseling from him.

The conviction said Wenthe, who formerly served at Nativity of Our Lord in St. Paul, violated the state’s clergy sex statute when he had a sexual relationship with a 21-year-old female parishioner.

The law makes it a felony for a priest to have sexual contact with anyone who is seeking or receiving spiritual advice or comfort in private.

Wenthe admitted during his trial in Ramsey County District Court to having a 15-month sexual relationship with the woman. But he maintained he wasn’t providing the woman with spiritual aid during that time.

His attorneys acknowledged that the relationship was forbidden by the church – but they said it was legal.

Wenthe’s case has been bandied about in the Minnesota court system for years: He was convicted in 2011, and the state Court of Appeals and the Minnesota Supreme Court have each considered Wenthe’s appeals twice.

The most recent ruling came in July from the Minnesota Supreme Court, which reinstated Wenthe’s conviction after the Appeals Court had thrown it out. That’s the decision Wenthe was appealing to the U.S. Supreme Court.

Wenthe had been sentenced to a year in the Ramsey County workhouse and was released early for good behavior. ..Source..

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September 23, 2015

Unprecedented lawsuit filed on behalf of child sex exploitation victim

9-23-15 Minnesota:

Rare case seeks monetary damages for rape ordeal.

Panyia Vang was a 14-year-old aspiring singer living deep in Laos’ countryside in 2006 when a much older man from Minnesota flew to her home and offered her a music video audition.

After a 12-hour bus ride to the capital city of Vientiane, Thiawachu Prataya took the shy girl to a hotel room and brutally raped her.

Vang, who soon found herself pregnant and bound to a traditional Hmong marriage with Prataya, moved to Minnesota with her father. There, Prataya, then 43, threatened to deny her visitation rights to their child unless he could continue to have sex with her.

In late 2010, Vang met Twin Cities attorney Linda Miller, who immediately recognized that the strong young woman in her office had an extraordinary case that could help break through the legal roadblocks faced by young sex exploitation victims in confronting their perpetrators.

Miller, who has handled dozens of human trafficking cases in her long legal career, has filed an unprecedented lawsuit that attempts to recover monetary damages for violations of federal laws regarding child sex tourism and trafficking. She also is discussing the case with the U.S. attorney’s office in hopes of federal charges.

Miller has the support of many local and state Hmong advocacy groups that hope to end the tradition of child marriage among some in the Hmong community.

“This is just an enormous issue,” Miller said. “Her young life and innocence was crushed. It’s ruining so many people’s lives in Minnesota.”

Der Yang, Prataya’s lawyer, said it would be inappropriate for her to comment on a pending suit. The case has come before U.S. District Judge Joan Ericksen, who is reviewing a summary judgment motion filed by Miller. If Ericksen’s ruling goes in Miller’s favor, the case would end with a financial award and wouldn’t go to trial. Vang has asked for $450,000 in damages, the minimum amount allowed under the statute for the three criminal counts alleged in the suit.

The legal picture

Miller’s law firm brought the suit in 2011 under Masha’s Law, a 2006 federal statute that gives children the right to sue anyone who produces, distributes or possesses their pornographic images. The act is named for a 5-year-old who was adopted from a Russian orphanage by a man who began sexually abusing her the night she arrived in the U.S. Masha’s Law also allows the plaintiff to sue anyone who has downloaded the pornographic images.

Prataya admitted to all of the elements of child sex trafficking and child sex tourism under Masha’s Law, the suit said. He lived in Minnesota and traveled to Laos in 2006, and he had repeated sexual contact with Vang that he paid for.

In court documents, Prataya claimed he didn’t know Vang was a minor. In a deposition, he said he wasn’t worried if she was 12 or 13, because that’s why he paid her family $5,000 to be his bride. He said the sex was consensual.

Miller’s suit got a boost from a 2013 federal Court of Appeals ruling that reinstated the convictions of two South Dakota men who had tried to pay for sex with minors over the Internet. The ruling now allows consumers, not just suppliers of commercial sex acts, to be prosecuted under the federal trafficking statute.

Former South Dakota U.S. Attorney Brendan Johnson, who prosecuted the case, said Miller’s suit is unique because victims rarely go after their perpetrators for financial damages. Her suit has good legal standing to succeed, he said. ..Continued.. by David Chanen Star Tribune

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May 12, 2015

Appeals court: Ex-cop should get more time for sex assaults

UPDATE: The real reason for resentencing. Notice there was a Plea Agreement with a sentencing range in it. Now plea agreement must be approved by the judge before (or at sentencing), where the defendant has an opportunity to object if the judge did not go along with the plea agreement as written. The high court likely used the plea agreement departure as a basis for requiring resentencing. See link to the decision.
5-12-15 Minnesota:

A former Minneapolis police officer who sexually assaulted young teenage girls he met on the Internet could be spending more time in prison.

Siding with the state, the Minnesota Court of Appeals on Monday reversed and remanded a decision made last May in Anoka County District Court to sentence Bradley Schnickel to 2-1/2 years to be served concurrently for five felonies, according to an unpublished opinion filed by the higher court.

The sentence was a significant downward departure from sentencing guidelines in Schnickel's plea agreement, which called for an 8-1/2-to-12-year range.

The ruling means Schnickel's case will go back to Anoka County District Judge James Cunningham for resentencing.

It was unclear when or how a new sentence would be issued. "That is the part that is less than crystal clear right now," said Assistant Anoka County Attorney Paul Young.

Fred Bruno, Schnickel's attorney, said he expected to file new arguments for a low sentence based on the feedback provided by the appeals court.

"We are back to square one, and I will be looking at all possible options for my client," Bruno said. "We still think we can get a sentence that is appropriate."

Schnickel, 34, pleaded guilty in February 2014 to second-degree criminal sexual conduct, third-degree criminal sexual conduct, attempted third-degree criminal sexual conduct and two counts of electronic solicitation of a minor.

The father of two used an alias to troll social media sites for young teenage girls. After establishing contact, he began sexually charged conversations with the girls online, often sending them pictures of his genitalia. In two cases, he persuaded the teens to have sex with him.

He was employed as a police officer in Minneapolis at the time. The Minneapolis Police Department fired him shortly after his February 2013 arrest.

Cunningham said the remorse Schnickel displayed for his actions and his amenability to sex-offender treatment warranted the lower sentence, according to court documents.

The Anoka County attorney's office appealed the sentence in November, arguing that 2-1/2 years did not match the severity of Schnickel's crimes and that Cunningham's basis for a sentencing departure was not supported by law.

Bruno disagreed and said at the time that Cunningham's decision was within his legal bounds. He called the prosecutors' appeal "buyer's remorse."

Bruno added in his legal brief that there was sufficient evidence to warrant Cunningham's departure beyond Schnickel's amenability to treatment. He said his client also displayed remorse and took responsibility for his actions by enrolling in a sex offender treatment program.

The higher court agreed with the state, finding, among other things, that the lower court erred by relying on "offender-related factors" to justify the downward departure. Essentially, that Schnickel's remorse and amenability to treatment were not reasons to impose a lighter sentence than guidelines called for.

The appellate court concluded that "the district court improperly relied exclusively on offender-related factors to support its downward departure."

Schnickel was scheduled to begin his supervised release in late June from the Minnesota Correctional Facility in Lino Lakes, according to the Minnesota Corrections Department website. ..Source.. by Sarah Horner

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April 28, 2015

Patty Wetterling leaving post at Department of Health

4-28-15 Minnesota:

Patty Wetterling is leaving her position as director of a Minnesota Department of Health program that works to prevent sexual violence.

Wetterling announced her departure Tuesday in a news release. She said she will be leaving May 1 after more than seven years on the job.

The health department's Sexual Violence Prevention Program works to change the social norms and attitudes that contribute to sexual violence.

"My life has been about sexual violence prevention for over 25 years and I will continue to work towards a world where children have the right to grow up safe and follow their dreams," Wetterling stated.

Her son, 11-year-old Jacob Wetterling, was abducted at gunpoint near St. Joseph in 1989. He has never been found.

Wetterling said she plans to take time to reflect on what's next. She will continue consulting with Fox Valley Technical College on law enforcement training and child abuse prevention conferences.

She also will remain chairwoman of the board of directors for the National Center for Missing and Exploited Children. by Kirsti Marohn

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April 22, 2015

Minnesota Supreme Court Rules In Favor Of Sex Offender

4-22-15 Minnesota:

The Minnesota Supreme Court has ruled in favor of a convicted St. Paul sex offender who argued that a jury, and not a judge, must decide his risk-level status.

The decision could affect the statuses of several Level-III sex offenders in the state.

Ge Her, 35, was released from prison in 2003 after serving time in a 1998 conviction for third-degree criminal sexual conduct, conspiracy to commit criminal sexual conduct and committing a crime for the benefit of a gang.

Her was adjudicated delinquent in the case, which involved the rape of two girls who were 13 and 14 at the time of the crime.

The Department of Corrections decided Her — before his release — was a high-risk, level-III sex offender, which he never challenged.

He moved to a new residence in 2008 and did not register as a predatory offender. Her was charged and sentenced to 16 months in prison and also received a 10-year conditional release term.

Her filed a motion five years later to change his sentence, arguing that the Sixth Amendment of the U. S. Constitution requires a jury to decide his high-risk status beyond a reasonable doubt. The Court of Appeals affirmed the district court’s decision.

He then took the case to the Minnesota Supreme Court, which sided with him, reversing the Court of Appeals decision and vacating his conditional release term.

The district court has also been remanded, and they must reassess Her’s case in light of the Supreme Court’s opinion. ..Source.. by CBSMinnesota

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October 23, 2014

Minnesota Supreme Court issues harsh ruling over probation sentence in rape case

10-23-2014 Minnesota:

The state Supreme Court vacated the sentence of 30 years’ supervised probation given to Jose Arriaga Soto Jr.

In a rare and harshly worded ruling, the Minnesota Supreme Court said Wednesday that a lower court judge erred in sentencing a particularly violent rapist to probation rather than the recommended 12 years in prison.

Justice David Lillehaug opened his 21-page opinion by saying that district courts have a great deal of discretion in sentencing. And the state high court rarely holds that it has been abused, he said.

“But rarely is not never,” he continued. “This is such a rare case.”

The state Supreme Court vacated the sentence of 30 years’ supervised probation given to Jose Arriaga Soto Jr. Polk County District Judge Jeffrey Remick now must conduct additional fact-finding on whether the recommended 12-year sentence should be imposed or if a departure from the guidelines is justified.

Soto was 37 when he beat and raped a woman for two hours after drinking all night in an East Grand Forks apartment in 2012. Soto pleaded guilty to first-degree criminal sexual conduct.

A co-defendant who was involved in the rape to a lesser degree than Soto received 12 years in prison, the opinion noted in its many criticisms of the ruling.

A presentencing report said Soto had minimized his actions without taking responsibility and blamed the victim. At his sentencing, he apologized to her. The opinion notes, in a tempered outrage, the horrors of the assault for the victim:

“Soto committed a forcible and violent assault against an intoxicated and thus particularly vulnerable person. The assault lasted approximately 2 hours and the victim was repeatedly subjected to multiple penetrations by two men. Soto slapped the victim’s face, choked her, and caused several injuries.”

The opinion noted the Legislature and the Sentencing Guidelines Commission have determined a sentence of 12 years in prison is “presumed to be appropriate” for someone with Soto’s criminal history who commits such a rape.

The victim’s vulnerability, the multiple forms of penetration and other particular cruelty that may be involved suggests that an upward departure on the case could have been appropriate, the opinion says.

Remick said it was the most difficult case “of this nature” that he had considered. He sentenced Soto to 12 years in prison, but he then stayed the sentence, saying the rapist was amenable to probation and a proper candidate for outpatient treatment.

As the ruling came down Wednesday, Soto was in jail in Polk County awaiting a probation violation hearing after being terminated from a sex offender treatment program. Kathryn Lockwood, one of his attorneys, said there could be many reasons his participation ended, such as missed appointments.

Lockwood also said she believes the lower court acted well within its discretion in placing Soto on probation and doesn’t agree with the Supreme Court ruling.

The opinion also noted that Soto’s co-defendant, Ismael Hernandez, was “arguably less culpable than Soto — he left the room shortly after the sexual assault began,” but he went to prison for the presumptive sentence of 12 years.

Three of the seven justices dissented from Lillehaug’s opinion. Alan Page wrote that the district court relied on factors generally recognized by the higher court as potentially relevant considerations in determining whether probation was appropriate for Soto.

“While another [district] court or the members of our court might have arrived at a different conclusion, that alone does make this situation the ‘rare case’ warranting our intervention,” wrote Page, who was joined in his dissent by Chief Justice Lorie Gildea and G. Barry Anderson.

Last year, the state Court of Appeals reversed Soto’s sentence and instructed the district court to impose the 12-year term.

Steve Simon, emeritus professor of clinical education at the University of Minnesota Law School, called the ruling very unusual.

“Abuse of discretion is seldom, seldom used to overturn a lower court decision,” Simon said. “Judges have a tremendous amount of discretion. But the reasons [cited by Remick] in this case don’t make any sense.”

Even though probation wasn’t recommended in Soto’s pre-sentence report by a probation officer or an evaluator from a sex offender treatment program, Remick placed him on supervised probation for 30 years. The judge emphasized Soto’s age, lack of serious criminal record and family support. He also said the crime was primarily caused by alcohol and that Soto’s attitude in court was largely respectful and that “this particular type of event seems largely out of character.”

Lillehaug’s opinion challenged all the factors Remick listed for Soto’s amenability to probation, finding that he drew false or inappropriate conclusions in considering them. He said the judge should have argued that Soto was “particularly” amendable, the legal standard used to justify the departure of staying a presumptive sentence. ..Source.. by DAVID CHANEN

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October 5, 2014

25 years later, Minnesota case inspires child protectors

10-5-2014 Minnesota:

Jacob Wetterling seemingly dropped off the face of the earth nearly a quarter-century ago, but efforts to find answers to his unsolved kidnapping continue among his family, classmates and friends striving to make the world a safer place for children.

“There was a sense that Jacob never was able to demand justice, so we’re doing it for him,” said Alison Feigh, a fifth- and sixth-grade classmate of Jacob’s who now is program manager of the Jacob Wetterling Resource Center in Minneapolis. “It is the reason I have this job.”

Feigh, who has made it her career to fight to end the abduction and abuse of children, said during a phone interview, “So much of this work is to break the cycle. Our generation can do a better job. We hope we can keep the fire going.”

The depth of Feigh’s dedication is not lost on Patty Wetterling, the mother of the 11-year-old boy a masked man kidnapped at gunpoint on Oct. 22, 1989, near St. Joseph, Minn., in one of the more notable abductions in recent decades. ..Continued.. by MIKE TIGHE

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February 12, 2013

Dark Times Ahead for Sexual Offenders in Minnesota: The POR-CPS Pipeline

2-12-2013 Minnesota:

In the Land of 10,000 Lakes, life will be a lot more difficult for more than 25,000 sexual offenders.* A small change in MN statutes went into effect in 2012, with broad-reaching consequences. Even after guys successfully complete treatment, conditions of probation, and a minimum ten years of SO registration, they will now be subject to ongoing child protection investigations, potentially for life.

The changes in state laws now flags everyone who is currently on the MN Predatory Offender Registry (POR), and every offender who has EVER been on the POR, as fitting the new definition of threatened sexual abuse of a child. With a few new sentences, the legislature has created sweeping new mandates for reporting to county child protective services (CPS) any current or former predatory offender living in a household with children or having any unsupervised contact with children.

The POR-CPS pipeline was perhaps intended to target anyone who has sexually abused and is living in a household with kids. But it goes far beyond that. The definition of predatory offenses in Minnesota includes many crimes other than criminal sexual conduct. But the assumption underlying these new statutes is that all predatory offenders are perpetually at risk for sexually abusing children, and they should not be unsupervised around kids. As the laws are currently written, the POR-CPS pipeline never ends – even after POR expires. By status, sex offenders are now subject to CPS review for life.

I became aware last fall that something had changed after receiving requests from CPS workers for documentation that former juvenile clients had completed sex offender treatment - in some cases 10 or 20 years ago. Reviewing new statutes, consulting with colleagues, and talking with specialists at MN DHS, the impetus for these new CPS inquiries emerged. 

 It appears the legislative changes began with state efforts to comply with CAPTA, federal legislation that provides state grants for child protection. The new legislation had little discussion among legislators or participation by stakeholders. It appears legislators and policy makers did not consider the ramifications of implementing this careless piece of legislation. After quietly going into effect in August 2012, virtually no one recognized the logistical quagmire that had been created. The outcome includes ...continued... by Jon Brandt, MSW, LICSW

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October 9, 2012

Appeals court says area man never should have served sentence

10-9-2012 Minnesota:

MANKATO — For nearly a year Jeremiah Booth has been spending most of his time in a prison cell in Faribault serving a 68-month sentence that never should have been issued.

When the sentence was ordered by Blue Earth County District Court Judge Kurt Johnson in October 2011, Booth’s attorney, Bradley Peyton, argued Johnson didn’t have the authority to send Booth to prison for the juvenile offense.

Booth, now 25, was a 15-year-old boy when he sexually assaulted children under the age of 13 in Blue Earth County. He was 24 when Johnson issued his sentence.

Johnson disagreed with Peyton and sent Booth to prison anyway. That decision was recently overruled by a Minnesota Court of Appeals decision that said Booth should be released.

The case is complicated, partially because it involves a rarely used court program that allows teens to remain on probation in juvenile court while an adult sentence hangs over their head, Peyton said. And the ruling is based on a technicality likely resulting from an administrative oversight, also something that happens very rarely, he said.

“It’s one of the very few cases I’ve ever been involved in where a procedural error occurred. It isn’t like TV where it happens all the time. It’s one of those rare cases where procedure wasn’t followed, but everyone has the right to have the court follow the rules.”

Teen charges

Booth was 15 when he started sexually assaulting children in 2002, but he was 17 before the assaults came to light. Prosecutors originally wanted to charge him as an adult but reached a plea agreement where Booth was given a 68-month adult prison sentence that was stayed as long as he completed treatment. The agreement also allowed the case to remain in juvenile court as long as the prison sentence wasn’t imposed.

The problems with Booth’s case began in 2006 when it was sent to Olmsted County, which is where Booth was going through treatment. It is common for juvenile cases to be moved to where a person is living after a sentence is imposed.

About a year later, in September 2007, Booth’s probation agent requested a probation violation hearing because Booth hadn’t been successful in treatment. At that time the Olmsted County judge found that Booth would still benefit more from treatment than incarceration. Booth had both mental and behavioral issues that would require treatment for the rest of his life and placement “in adult prison would be counter productive,” the judge said.

The judge revoked Booth’s juvenile probation and placed him on adult probation with a recommendation for sex offender treatment. Booth, who was 20 at that time, then made a request through his attorney to have the case moved back to Blue Earth County for adult sentencing. The request was granted Nov. 28, 2007, but the Olmsted County judge issued an order saying a sentencing hearing should happen within two weeks.

That hearing didn’t take place.

Instead an order was issued Jan. 15, 2008, requiring Booth to remain in jail until he could be placed at a treatment center called Alpha House in Minneapolis. That order and several more that dealt with funding for the treatment said they were coming from the “Juvenile Division” of Blue Earth County District Court, the Court of Appeals ruling said.

Treatment ends again

Booth was sent to Alpha House in September 2008 because funding had become available and there was an opening. During a hearing at that time, Booth’s attorney pointed out that there had never been a hearing or sentencing order after Booth was transferred to Blue Earth County. By then Booth was 21 years old and, without the order, was technically done with juvenile probation.

Johnson said a modified sentencing order would come later.

The appeals court ruling said there is no record of a modified order being issued or an adult sentencing hearing taking place after Booth was sent to Alpha House.

Booth’s case didn’t come before Johnson again until August 2011, which is when another probation revocation hearing was requested. Booth had been making progress in treatment during the three years he was there, but he had been terminated from the program because staff found child pornography on his cellphone.

During a probation revocation hearing in October 2011, Booth’s probation officer told Johnson there weren’t any other treatment options. She also said Booth would be a threat to society if released.

Peyton declined to address the probation allegations during that hearing. He said, because no adult sentencing order had been filed years earlier, the case should have been closed. Peyton also filed a motion to dismiss the charges and have Booth released from jail immediately.

The Court of Appeals ruling said Johnson didn’t have the authority to send Booth to Alpha House, much less prison three years later, because Booth’s probation period had ended when he turned 21.

Release still unlikely

Peyton credited the staff working with public defenders in Blue Earth County with finding the problems with Booth’s case. In a time of budget cuts and staff shortages, it’s difficult to find the time needed for a growing case load, he said.

It’s also a challenge to make sure everything happens correctly in all the other areas related to criminal justice, which are facing funding and staffing shortages of their own.

“When they handed me the file, they had already pointed out all these issues,” Peyton said while dealing with other cases at the Blue Earth County Justice Center. “There’s so many moving parts to what we do up here, it’s amazing how many times the I’s get dotted and the T’s get crossed.”

Booth is still in prison because the Department of Corrections hasn’t received a court order for his release. District courts have 37 days from the day of the appeals court ruling to send the order, said John Schadl, Department of Corrections spokesman.

Prosecutors could appeal to the Supreme Court, but that isn’t likely because they didn’t file a brief or response for Booth’s appeal. Assistant Blue Earth County Attorney Chris Rovney didn’t respond to a call requesting comment for this story.

The child pornography allegedly found on Booth’s phone also resulted in felony charges being filed in Hennepin County. That case has not been resolved, so Booth would likely be sent to jail there to await a bail hearing if he is released from prison.

The Court of Appeals ruling also pointed out that Booth will be required to register as a predatory sex offender because he was found guilty of sex crimes in juvenile court. ..Source.. by Dan Nienaber

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September 4, 2012

Court of Appeals: Computer ignorance in child porn case is no excuse

9-4-2012 Missouri:

A case from the Minnesota Court of Appeals today shows how technology is challenging the definitions of particular crimes.

The case involves a Plymouth man, who used a file sharing program --LimeWire -- to download hundreds of pornographic movies, some of which involved minors. A Minneapolis police investigator traced the IP address to Timothy McCauley, who was later convicted of possession and dissemination of child pornography. The latter is a much more serious charge.

In the LimeWire program, anything downloaded to a private computer is automatically available to other users of the same file-sharing program. McCauley insisted he deleted any of his movies with children in it, but he was convicted of dissemination of the porn by virtue of the fact it was available on his computer for others to download. He was given an eight-year sentence.

Today, the Minnesota Court of Appeals upheld the dissemination conviction despite McCauley's claim that he didn't intend to distribute his downloaded material.

In today's decision, Judge Margaret Chutich wrote that Minnesota requires those convicted of disseminating child pornography to know that they are doing so, and McCauley should have known, even though McCauley claimed he was "computer ignorant."

"LimeWire was widely billed as a "file-sharing" program, and McCauley had used the software for over three years, downloading hundreds of files. The entire reason LimeWire existed was to allow users to share files.

The program's default installation screens, which McCauley had to click through to download LimeWire, described LimeWire as 'the most advanced file sharing program on the planet' and clearly informed the user that '[f]iles you download will also be shared with other users running LimeWire.'

Further, to download a file after a search, McCauley had to either select each file he wanted or choose 'select all.' The program did not automatically download files--McCauley had to take affirmative action after reviewing his search results. As he admitted, many of the files retrieved through those searches had titles clearly suggesting they contained child pornography.
Judge Chutich said making the videos available via LimeWire "suggests a wholly different criminal objective" than possessing the videos, which is itself a crime.

The full opinion (available here) also carries another obvious lesson: Someone can always see what you're downloading.

LimeWire was shut down by court order in October 2010. ..Source.. by Bob Collins

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July 25, 2012

Judge certifies sex offender suit as class action

7-25-2012 Minnesota:

St. Paul, Minn. — A federal judge ruled today that a challenge to Minnesota's sex offender program can be tried as a class action suit.

The class action suit involves about 600 sex offenders who have been indefinitely detained by the state beyond their sentences. U.S. District Judge Donovan Frank ruled that hearing each case individually would have been an "enormous drain" on resources.

Sex offenders committed to the program have completed their prison sentences. They're being held under Minnesota's civil commitment law.

Bill Lubov is the attorney for Clarence Opheim, who is the only civilly committed sex offender to be provisionally released from a prison-like facility to a halfway house. Lubov said the judge's ruling will likely draw greater attention to the legal challenge.

"Whereas a single lawsuit would maybe only have peripheral interest to the general community, a lawsuit that affects an entire group of people certainly has the potential to draw the attention of everyone, especially considering the political stakes," Lubov said.

Previously, courts have ruled that the program is constitutional. But the lawsuit argues the state has not provided adequate treatment to offenders, and that Minnesota's civil commitment law is unconstitutional. ..Source.. by Jon Collins, Minnesota Public Radio

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June 30, 2012

British Court Blocks Sex Criminal's Removal to US

This case clearly shows the fundamental differences in rights: European "European Convention for the Protection of Human Rights and Fundamental Freedoms" and in the U.S. "Universal Declaration of Human Rights." As well as HUMAN RIGHTS IN THE ADMINISTRATION OF JUSTICE: PROTECTION OF PERSONS SUBJECTED TO DETENTION OR IMPRISONMENT" (Scroll down to this). His dual citizenship permits him to claims rights under foreign documents.
6-30-2012 National, Minnesota:

Britain's High Court on Thursday blocked a U.S. government bid to extradite a sex criminal to Minnesota, saying the state's restrictive treatment program for sex offenders was far too draconian.

Judges Alan Moses and David Eady endorsed 43-year-old Shawn Sullivan's appeal against extradition after U.S. authorities refused to guarantee that Sullivan wouldn't be placed in Minnesota's civil commitment program, which provides for the indefinite detention of people found to be "sexually dangerous."

The judges said that commitment to the program would be in "flagrant denial" of Sullivan's human rights.

Sullivan, a dual U.S.-Irish citizen, is accused of raping a 14-year-old girl and sexually molesting two 11-year-olds in Minnesota in the 1990s. He escaped to Ireland as prosecutors prepared to file charges, and while staying there was convicted of sexually assaulting two 12-year-old girls.

Authorities finally caught up with him two years ago in London, where he'd moved using an Irish passport that spelled his last name in Gaelic as "O'Suilleabhain."

The British judges made clear in an earlier decision that they would have supported Sullivan's extradition had it not been for the sex treatment program, which they described as among the toughest in the United States.

The Minnesota program, which began in the mid-1990s, allows civil courts to commit a person for sex offender treatment if a judge decides the person is sexually psychopathic or sexually dangerous. As of April 1, 641 people were in the program.

The High Court justices outlined a litany of concerns, noting that offenders don't have to be mentally ill to be committed; their offenses don't have to be recent; and in some cases, those placed in the program don't even have to have been convicted of any crime.

The judges added they'd seen no evidence that anyone had ever been released from the program since it began in its current form in 1988.

"There is a real risk that if returned, Mr. Sullivan will be the subject of an order of civil commitment," the judges said in the June 20 decision, adding that placing him in the program would be a flagrant denial of his rights.

They gave U.S. officials a week to guarantee that Sullivan wouldn't be enrolled in the program, but when no assurances were made, the extradition proceedings were dropped Thursday.

The program has been criticized for holding people indefinitely. A 64-year-old man became the first person to be granted a provisional discharge in more than a decade earlier this year when he was allowed to move into a Minneapolis-area halfway house. Only one other person was ever released from the program, and he was soon taken back into custody on a violation.

In Minnesota, two county prosecutors said they were disappointed by the decision. The statement from Hennepin County Attorney Mike Freeman and Dakota County Attorney James Backstrom said it was "not in the interests of public safety" for them to commit to keeping Sullivan out of the program.

They said they would pursue criminal prosecutions if he returns to the US.

Peter Wold, Sullivan's criminal defense attorney in Minnesota, said the British judges had balked at the prospect of indefinite detention. "That offended them, and it should offend a lot of people, to have the prospect of people being committed with no end in sight," he said.

Michael Hall III, the attorney representing the three alleged victims in Minnesota, said it was unfortunate that Sullivan wouldn't be held accountable by law enforcement.

"Now, really the only avenue available to his victims in the U.S. is through the civil courts," he said.

Hall's clients sued Sullivan in January. Sullivan's attorney had asked that the case be put on hold pending a decision on extradition on criminal charges, but Hall said he anticipated the lawsuit would now go forward.

Hall said he expected a civil jury to award "significant punitive damages" against Sullivan — though he conceded there could be difficulties enforcing a judgment if Sullivan remains in Britain. ..Source.. by RAPHAEL SATTER

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April 1, 2012

Minnesota's million-dollar inmates

4-1-2012 Minnesota:

James Vogel knew he had it coming in 2009 when an Aitkin County judge sentenced him to five years in prison for his sixth drunken-driving conviction. What gave him pause was the mysterious lump in his gut -- a bulge the size of a football -- and who was going to take care of it.

The lump turned out to be a rare form of non-Hodgkins lymphoma. Terminal. Five years average life expectancy.

Yet, at the direction of the Minnesota Department of Corrections, Vogel soon started receiving the best medical care in America: a year of intensive chemotherapy, then a trip to the Mayo Clinic for nearly a month to receive a sophisticated bone-marrow transplant.

By the time he left Mayo in August 2010 and headed back to prison in Oak Park Heights, Vogel, now 52, was on his way to being what state corrections officials describe as a "million-dollar prisoner."

Vogel's treatment epitomizes a pair of forces bearing down on Minnesota's corrections system: Soaring medical costs and a rapidly aging prison population. More than one in 10 Minnesota inmates is now over age 50 -- a share that has doubled in the past decade -- and increasingly many of them need specialized treatment for costly illnesses such as cancer, diabetes and heart disease. More than 550 offenders are serving life sentences; at an average age of 40, most face at least 30 more years in prison before they have any chance of parole.

With a medical budget that has tripled in the past decade, to $68 million last year, the Corrections Department faces politically sensitive questions -- among them the matter of providing expensive, sophisticated medical care to offenders who have committed heinous crimes, at a time when many Minnesotans are struggling to afford basic care and health insurance.

"The aging curve in prison is crushing when it comes to costs, just like the one for the general public, and it won't get any better," said Sen. Tony Lourey, DFL-Kerrick, whose district includes a correctional facility and the secured treatment center for the state's sex offenders.

Nan Larsen, the Corrections Department's medical director, is often asked by legislators why prisoners are afforded care that those on the outside would find difficult to obtain. A direct, tough-minded administrator, she has an answer:

"Their punishment is that they are separated from us, from society and from their families -- but not from our care."

Besides, Larsen notes, inmates like Vogel have unique status. As a prisoner in the United States, he is a member of the only class of Americans with a constitutionally guaranteed right to health care, as determined by the U.S. Supreme Court.

Vogel, a construction worker from Grand Rapids, Minn., understands the paradox.

"I probably would not have gone to see a physician, or had the cancer found as soon as it was, if I hadn't been arrested," he said in an interview at Stillwater prison. "I'll admit that. So there's a level of gratitude over the treatment I've received."

Prisoners elderly at 50

When Vogel became a million-dollar inmate, he joined a select group of convicts who need highly specialized care -- at cost of more than $14 million just last year.

They've lived hard lives and pushed their bodies to the breaking point. In Minnesota, a prisoner at 50 is considered elderly, with the medical problems of someone 60 or older.

A snapshot of inmate health is sobering:

More than 80 percent are considered chemically dependent, and nearly 20 percent are estimated to be hepatitis C-positive. Decades of smoking, boozing and drug use have pushed their hearts, livers and kidneys to the edge of failure.

Obesity, hypertension and diabetes are common.

More than 20 percent of the men and nearly 70 percent of the women are on psychotropic medications.

Just to treat prisoners with cancer, the department has spent more than $14.4 million over the past five years. Four prisoners now await stem-cell transplants.

Cardiac care -- ranging from heart bypass grafts and stents to pacemakers -- has cost nearly $2 million over the past four years.

On a recent morning deep inside the maximum-security Oak Park Heights prison, 16 prisoners were laid out in a semi-circle with tubes needled into their arms. Some of the most violent men in the state were hooked up for thrice-weekly, three-hour dialysis sessions to cleanse their failed kidneys.

Although they're a comparatively small number of prisoners, their care costs have doubled in the past four years and will only go higher. Currently, the dialysis program costs more than $560,000 a year. The number of dialysis patients is expected to double by 2020 and cost $1.8 million.

Currently, nine prisoners with hepatitis-C are deemed candidates for a special drug that has shown remarkable success over a 12-week regimen. The Corrections Department says it would cost $40,000 per treatment, a total of $360,000 if each prisoner is givn the drug.

And finally, when prisoners are considered so ill that they must be hospitalized, the daily rate for a room and routine care is $5,000.

Price tag: $49 billion

Across the country, many states are struggling with the same burden. The nation's prison population has almost tripled in the past two decades, to nearly 1.6 million inmates, due mainly to tougher sentencing guidelines; overall corrections spending has grown fivefold, to $49 billion in 2008, according to the Pew Center on the States.

Nationally, the number of prisoners over age 65 nearly doubled in the past decade, reaching more than 26,000 in 2010, according to a recent study by Human Rights Watch. Medical costs for older inmates range from $8,500 to $11,000 per person per year, the report found.

"Prisons were never designed to be geriatric facilities," said Jamie Fellner, the report's author. "Yet, U.S. corrections officials now operate old age homes behind bars."

To control costs in Minnesota, the Department of Corrections contracts its prison care to a national, for-profit health provider called Corizon, formerly Correctional Medical Services. This year, DOC will pay Corizon $28 million to provide basic care to prison inmates, up $9 million from 2006.

Corrections officials say the relationship is saving taxpayers tens of millions of dollars; while public health care spending in Minnesota has increased an average of 8 percent annually over the past six years, the department says it has been able to keep its cost growth to about 5.5 percent using privatized care for prisoners. But inmates complain of long delays between the time their illnesses are diagnosed and when they get treatment.

Larsen notes that, while some inmates get the finest care available in Minnesota, others are denied services that are routinely covered by the health insurance of people on the outside.

By her count, there are more than 65 health insurance mandates for which the average citizen on private health insurance can receive coverage. They include certain kinds of cosmetic surgery, breast reconstructive surgery, wigs for hair loss and removal of port wine birth marks.

"The DOC does not provide this level of coverage," Larsen said.

Offenders, she added, receive a "community standard'' of care consistent with standards established by the state Board of Medical Practice.

"If an offender can live safely and participate in [prison] programming with a hernia, and it is not causing pain and not interfering with daily living, the [prison] doctor may not authorize treatment," Larsen said.

On borrowed time

..For the rest of this story: by StarTribune

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March 12, 2012

The case of the predatory offender and the unshoveled sidewalk

This is a great case because finally we see Judges seeing the nonsense presented to convict offenders and the court says, NO conviction!
3-12-2012 Minnesota:

An unshoveled sidewalk is not enough evidence to send a man to prison for two years for failing to register as a predatory offender.

The Minnesota Court of Appeals today overturned the conviction of Joey Nelson of Pine County, who was convicted in a one-day trial after authorities said he was no longer living at his apartment in the county and had moved elsewhere. Registered offenders are required to notify officials five days before moving to another area.

The case shows how easy it can be to send an offender back to prison on the thinnest of evidence.

The authorities became suspicious after Nelson was stopped by police in Texas on February 9, 2010. An investigator for the Pine County Sheriff's Office visited Nelson's home the same day and found an unshoveled sidewalk after a snowfall. On the investigator's testimony, Nelson was sent to prison.

But the Court of Appeals said prosecutors didn't provide any evidence of a new address for Nelson. "Rather, the state simply asked the jury to infer that Nelson had a new primary address based on evidence that Nelson did not appear to be present at his registered primary address on February 9, 2010," the court said.

Far from reasonable doubt, it said, there were other circumstances that could explain Nelson being in Texas on a given day, and an unshoveled sidewalk in Pine County:
A second reasonable inference is that Nelson simply was visiting Texas on a short-term basis and was intending to return to Pine City to continue living at his registered primary address. That a person is present in Texas does not necessarily imply that the person has moved his or her primary residence to Texas. Many persons who are not residents of Texas surely are present within that state on any given day.

A third reasonable inference is that Nelson had a secondary address in Texas where he regularly or occasionally stayed overnight when he was not at his primary address in Pine City. But there is no requirement for persons required to register under section 243.166 to register secondary addresses located outside of Minnesota. See Minn. Stat. § 243.166, subd. 4a(a)(2), (b); see also id., subd. 1a(i) (defining secondary address).

A fourth reasonable inference is that Nelson had departed from his registered primary address without any intention to return but with an intention to either become homeless or to search for a new primary address. Such a person is required by section 243.166 to register, but that requirement springs from a subdivision other than subdivision 3(b), which is the statutory basis of the offense charged in this case. See Minn. Stat. § 243.166, subd. 3a. The state did not attempt to prove that Nelson had violated the requirements of subdivision 3a.
Unanswered in the decision, of course, is how a properly-instructed jury of reasonable people couldn't see the several possibilities constituting "reasonable doubt." ..Source.. by MPR News

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March 11, 2012

Judge dismisses two cases because of excessive delays

3-11-2012 Minnesota:

Sixth District Court Judge Robert Macaulay dismissed two different criminal cases in Carlton County Court Tuesday “with prejudice” because the county attorney’s office had repeatedly failed to provide discovery [evidence] to defense attorney Terri Port Wright.

Sixth District Court Judge Robert Macaulay dismissed two different criminal cases in Carlton County Court Tuesday regarding Minnesota Sex Offender Program (MSOP) client Sarprio B.B. Doranti “with prejudice” because the county attorney’s office had repeatedly failed to provide discovery [evidence] to defense attorney Terri Port Wright. When a case is dismissed “with prejudice,” it generally means that prosecutors cannot file any new charges regarding the allegations.

Although Doranti was originally scheduled for jury trial on a number of different charges Tuesday morning, the trials were not held and Macaulay heard arguments on Port Wright’s motion to dismiss two of the cases, one which had dragged on since October 2009, the other since February 2010.

According to the criminal complaint on the February 2010 charges – which included felony terroristic threats as well as misdemeanor damage to property, misdemeanor indecent exposure and misdemeanor dangerous weapons ¬– on Feb. 17, 2010, Doranti was a patient in the high security unit of the MSOP-Moose Lake facility when staff observed him damaging the walls by scraping them and rubbing ink and feces on them.

He allegedly had at least two metal shanks, which he had sharpened to a point (which appeared to be made out of metal from an eyeglasses case and a nail clipper). He proceeded to make numerous threats of harm toward any nearby security staff. The complaint also states that when two female staff members tried to reason with him, he threatened to kill one and blow up her home and exposed himself to the other, while masturbating.

According to court officials, Macaulay granted the motion to dismiss all of the above charges as well as the October 2009 charge of felony terroristic threats “for failure to comply with the court rules and Judge Wolf’s order for discovery set in December.”

According to Port Wright, she had asked the county attorney’s office for discovery multiple times since she began representing MSOP clients in late summer of 2010.

“Some of these cases are 28 months old. We were in court on omnibus cases eight times on some,” Port Wright said after the hearing, indicating that the failure of the prosecution to share the evidence with the defense was partly to blame for the delays. “Then Judge Wolf set a drop-dead deadline of Dec. 21 for turning evidence over and there was still nothing.”

James Ross argued the case for the county attorney’s office Tuesday, although the cases were originally handled by Dennis Genereau Jr., who left the county attorney’s office in October to take a position as county coordinator. Within two months of Generau’s leaving, another long-time assistant county attorney, Nichole Carter, also resigned, leaving the county attorney’s office seriously understaffed. Although Carlton County Commissioners authorized County Attorney Thom Pertler to hire one new assistant county attorney, that process is ongoing.

Neither Ross nor Pertler was available for comment on the Doranti cases as the Pine Journal went to press. ..Source.. by Jana Peterson, Pine Journal

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March 1, 2012

Lawsuits underscore MSOP’s legal jeopardy

3-1-2012 Minnesota:

Judges are starting to take seriously constitutional complaints about the Minnesota Sex Offender Program

In June Joseph Thompson, a civilly committed sex offender, filed a 57-page complaint on his own behalf in U.S. District Court alleging that the conditions of his confinement are unconstitutional. Thompson cited strip searches, confiscation of personal property and inadequate medical care as evidence that his confinement at a facility in Moose Lake is illegal. Such pro se court filings — often crude and poorly argued — are routinely dismissed as lacking merit.

But in January, U.S. Magistrate Judge Jeffery Keyes ruled that Thompson’s complaint had sufficient merit to entitle him to appointed legal representation. Specifically, the judge determined that a dozen of Thompson’s claims — including that he was wrongly denied adequate treatment and subjected to cruel and unusual punishment — warranted additional legal scrutiny. Keyes appointed the firm of Gustafson Gluek to represent him in subsequent proceedings.

“Although Plaintiff has the threshold ability to articulate his claims and to communicate effectively with the Court,” Keyes wrote in his opinion, “this Court believes that the complexity of the constitutional issues and Plaintiff’s lack of legal knowledge will present him with such disadvantages that appointment of counsel would substantially benefit the Court and Plaintiff.”

Dayton cited looming constitutional challenge

Last month Gov. Mark Dayton cited constitutional concerns in a letter to House leaders outlining why his administration is not opposing the provisional release of Clarence Opheim from the Minnesota Sex Offender Program (MSOP) despite a criminal history that includes molesting 29 boys. Opheim is likely to become just the second MSOP enrollee ever granted a provisional release from the program. The first individual violated the terms of his release, was returned to the program and eventually died while civilly committed.

“In the 18 years since the law was passed, not a single patient has yet been successfully released from such civil commitment,” Dayton wrote in the letter to House Speaker Kurt Zellers and Majority Leader Matt Dean, defending his administration’s decision. “This situation is now being used in a court proceeding, which claims that these people are being confined in legal institutions for life without the legal authority to do so. Again, were this challenge to succeed, it would have very serious ramifications for public safety.”

While Dayton is undoubtedly seeking political cover on a volatile issue, the Thompson lawsuit and others serve to underscore the constitutional perils facing the MSOP if it continues to operate without ever releasing individuals. A judge could determine that the program violates the rights of enrollees and order that all 600-plus individuals be released.

More likely, perhaps, is a scenario similar to what played out in Washington State. In 1994 a federal judge determined that the state’s civil commitment program for sex offenders was operating in violation of the Constitution. That resulted in a 13-year injunction during which the state’s civil commitment program was required to make annual reports to the courts on the adequacy of its mental health treatment programs. At one point the court imposed a contempt fine of $50 per day per patient for infractions but stayed the financial penalties in recognition of the program’s progress.

“It’s a real risk,” said Eric Janus, dean of the William Mitchell College of Law and an expert on civil commitment proceedings. “What the odds are is a little hard to say. In my judgment every year that goes by with no one being released, or only a few, increases the risk because it provides stronger and stronger evidence that the non-punitive purpose of this program is actually a sham.”

Teresa Nelson, an attorney with the Minnesota chapter of the American Civil Liberties Union, points out that Minnesota’s civil commitment statute was initially given clearance by the courts based on the promise that sex offenders would be given a legitimate chance at rehabilitation and release. “If that treatment and that whole process is a sham, at some point a court is going to say, wait a minute, we don’t have to just look at what the intent was, we can look at what you’re actually doing,“ Nelson said.

OLA report noted grounds for challenge

Adding to the legal jeopardy is a report released last year by the Office of the Legislative Auditor that found widespread problems with the MSOP. Criticisms of the program included inadequate access to treatment, disparate treatment of potential enrollees across the state and lack of lower-cost alternatives to civil commitment. “Without releases, Minnesota is susceptible to lawsuits challenging the adequacy of the treatment program,” the report concluded. In fact, Keyes cited the legislative auditor’s report extensively as evidence of problems with the MSOP in his findings in the Thompson case.

“I just think that that provides such weight and credibility that even these pretty inartful pro se complaints begin to take on substance,” Janus said. “If there is a good lawyer with some resources who has an opportunity to do discovery, there’s a really strong case that can be put together that’s very damning.”

The lawsuit that will bear watching in the coming months, however, is not the one filed by Thompson. The Gustafson Gluek firm was also appointed to work on another pro se filing with 14 named plaintiffs, including Keven Scott Karsjens, who are confined to the Moose Lake facility. That case is expected to move forward as a class action lawsuit and deal with claims similar to those raised by Thompson. “That’s going to be sort of the vehicle for all of the claims,” said David Goodwin, an attorney with Gustafson Gluek who is working on the case. “Once it becomes a class, we’re going to aim to represent everybody at Moose Lake.”

Multiple constitutional claims

The Karsjens complaint details a litany of purported constitutional issues with the MSOP, including punitive strip searches, strict limits on personal property, living conditions that mirror prison conditions and inadequate treatment. “The real mission of the MSOP now is institutionalization, preventative detention and punishment,” the complaint reads. “There is no rehabilitative purpose.” The lawsuit is seeking an injunction prohibiting the state from continuing to engage in unconstitutional practices. It also asks for damages in excess of $750,000. (An amended complaint is slated to be filed this week, but it’s not expected to alter the general character of the claims.)
That lawsuit is not the only one that could have potential ramifications for the MSOP. A 2009 federal case brought by the ACLU on behalf of six MSOP enrollees also alleges that they are subjected to illegal strip searches and seizures of personal property. The case was dismissed last year, but the plaintiffs have appealed. Oral arguments are expected to take place in May before the 8th Circuit Court of Appeals. Nelson argues that ultimately the Legislature will need to overhaul the state’s policies for dangerous sex offenders before the perils of legal liability will be significantly reduced.

“It’s very easy for legislators to kind of pander to public sentiment,” Nelson said. “It’s much more difficult to implement good public policy and make sure that you’re following the Constitution and make sure you’re doing what you said you would do when you passed the law.” ..Source.. by Paul Demko

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February 13, 2012

House Majority Leader questions pending release of convicted sex offender Clarence Opheim

2-13-2012 Minnesota:

ST. PAUL, Minn. — A civilly committed sex offender will leave the Minnesota Sex Offender Program in St. Peter within three weeks. On Friday, a panel of three judges issued a written order allowing 64-year-old Clarence Opheim's provisional release to a secure halfway house.

Republican legislators say they want to know why the Department of Human Services didn't oppose Opheim's release. They'll hold hearings this week in an attempt to get an answer.

Republican House Majority Leader Matt Dean says he's shocked that DFL Gov. Mark Dayton's administration would allow Opheim to live outside the tight circle of razor wire that surrounds state facilities for civilly committed sex offenders.

"We can sure ask the department and the governor to reconsider," said Dean. "Holy cow. If this person were to reoffend and we didn't say anything, we would certainly not be doing our jobs.

"This is not a person that if they were to reoffend, that we would look back on and say, 'Boy, no one saw any warning signs.'"

Opheim has confessed to 100 criminal sexual acts committed against dozens of boys as young as 8. Records show he would gain the trust of children in his northeast Minneapolis neighborhood by offering them candy and pop.

Opheim completed a prison sentence, but judges found him too dangerous to release and committed him to the Minnesota Sex Offender Program. Opheim spent nearly 20 years in the program undergoing voluntary treatment.

A year ago, Department of Human Services staff evaluated Opheim and found he was still in the high-risk range to commit a serious sex offense again. Majority Leader Dean says that shows Opheim is a danger to public safety.

"It's not what I think about Mr. Opheim, it's what the agency said -- that he is a threat and shouldn't be let go," said Dean. "That's not Matt Dean's opinion, that's the department's opinion."

So, Dean wants to know, what changed in a year? The answer involves a new report on Opheim from an independent, court-appointed evaluator -- Dr. James Alsdurf.

Alsdurf, a Wayzata psychologist, has been involved in Minnesota sex offender proceedings for decades. He says this is the first time he's endorsed a civilly committed offender's provisional release.

Alsdurf says he analyzed data and read hundreds of documents about Opheim, He then interviewed the Opheim for three hours and wrote a 14-page report.

"This is a rigorous process," said Alsdurf. "This isn't a flip of the coin. This isn't casual and it is done really with as much rigor that I think you can do it with."

Gov. Dayton has pointed out that the Minnesota Sex Offender Program is vulnerable to court cases that charge the program is unconstitutional because it's never released anyone. He says the whole program could be lost if such a court case were successful.

Civil commitment is also expensive. There are currently 635 people in the state sex offender program, and each of them cost the state $317 per day. By comparison, it costs Minnesota about $86 a day to keep someone in state prison.

In response, the Department of Human Services has worked with sex-offender advocates to build a community-based program that could handle the treatment and security needs of sex offenders once considered too dangerous for release.

Eric Janus, president and dean of William Mitchell College of Law, says the courts have been waiting for such a program.

"We have three judges who have plenty of experience in this, and have never let anybody out before," noted Janus. Now they've said, 'OK, you've got your ducks in a row, we're going to do it. Just like Wisconsin's done it, just like New York's done it, just like Texas has done it."

Once released, Opheim will wear a GPS monitor, get substance abuse treatment, and be under 24-hour security. Human Services commissioner Lucinda Jesson says those precautions, and the opinions of Alsdurf and other experts, convinced her not to oppose Opheim's release.

But Jesson says she'll make clear to legislators Wednesday that releasing Opheim was the court's decision.

"The benefit of having a hearing on this is I think it will make clear what the process is for provisional discharge," said Jesson. "If the Legislature, having learned what the process is, wants to try to change that -- I mean they're the Legislature, they can make the laws. But until they change the laws, I'm going to follow the ones that we have today."

Jesson also points out state law says that civilly committed sex offenders are eligible for release once they have completed treatment. ..Source.. by Rupa Shenoy, Minnesota Public Radio

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