SexCrimeDefender

WAYS TO GET OFF THE SEX OFFENDER REGISTRY

There have been two recent developments which potentially relieve an individual from a duty to register under Maine’s Sex Offender Registration Law, 34-A M.R.S.A § 11201 et seq. “SORNA”). On September 11, 2009, new legislation went into effect which allows certain individuals to apply to be deregistered. On December 22, 2009 Maine’s Law Court issued an opinion in the case of State v. Letalien, 2009 ME 130 which expanded the category of those not required to register. I. LEGISLATIVE CHANGES On September 11, 2009 the following legislation went into effect in response to legislative concerns about the ex post facto nature of the SORNA scheme: 1. Exception. Notwithstanding section 11202, a person sentenced on or after January 1, 1982 and prior to June 30, 1992 is not required to register under this chapter if that person submits to the bureau, in a form to be determined by the bureau, documentation to establish the following: A. The person was finally discharged from the correctional system prior to September 1, 1998; B. The person's convictions do not include more than one Class A sex offense or sexually violent offense or more than one conviction in another jurisdiction for an offense that contains the essential elements of a Class A sex offense or sexually violent offense, whether or not the convictions occurred on the same date; C. At the time of the offense, the person had not been previously sentenced in this State as an adult or as a juvenile sentenced as an adult for a sex offense or a sexually violent offense; D. At the time of the offense, the person had not been previously sentenced in another jurisdiction as an adult or as a juvenile sentenced as an adult for an offense that contains the essential elements of a sex offense or a sexually violent offense; E. Subsequent to the commission of the offense, the person has not been convicted of a crime under Title 17 or Title 17-A in this State that is punishable by imprisonment for a term of one year or more; and F. Subsequent to the commission of the offense, the person has not been convicted under the laws of any other jurisdiction of a crime that is punishable by a term of imprisonment exceeding one year. This paragraph does not include a crime under the laws of another jurisdiction that is classified by the laws of that jurisdiction as a misdemeanor and is punishable by a term of imprisonment of 2 years or less. 2. Duty continues. A person's duty to register continues until the bureau determines that the documentation meets the requirements of this section and any rules adopted by the bureau. 3. Costs. A person who submits documentation under this section is responsible for the costs of any criminal history record checks required. 4. Restoration of registration status. The registration obligation of a person sentenced on or after January 1, 1982 and prior to June 30, 1992 that is discharged pursuant to this section is restored by any subsequent conviction for a crime described in subsection 1, paragraph E or F. 34-A M.R.S.A. § 11202-A One key difference between the relief from the duty to register in 34-A M.R.S.A. § 11202-A and the Law Court’s decision in Letalien, described below, is that the registrant must take affirmative actions to deregister. II. State v. Letalien On December 22, 2009 the Law Court issued an opinion in the matter of State v. Letalien, 2009 ME 130 which had significant impact in determining who is subject to registration. The Court specifically acknowledged the extensive legislative and judicial history of sex offense registration in Maine. The Court spent considerable time analyzing the ex post facto arguments against various forms of SORNA statutes which had been previously upheld in various U.S. Supreme Court and Maine Law Court decisions. The Law Court ultimately concluded in Letalien that Maine’s SORNA statute was unconstitutional as applied to certain defendants. The Court ultimately concluded that the SORNA statute was at least in part unconstitutional as an ex post facto law as applied to certain offenders: To summarize, we conclude: (1) For ex post facto purposes, SORNA of 1999 is properly evaluated on its face, and not in relation to how it has been applied against any individuals. Our suggestion to the contrary in Doe v. District Attorney, 2007 ME 139, 932 A.2d 552, is overruled. (2) The prohibition on ex post facto laws in the Maine Constitution, Me. Const. art. I, § 11, is coextensive with the corresponding prohibition in the United States Constitution, U.S. Const. art. I, § 10, cl. 1. (3) The retroactive application of the lifetime registration requirement and quarterly in-person verification procedures of SORNA of 1999 to offenders originally sentenced subject to SORA of 1991 and SORNA of 1995, without, at a minimum, affording those offenders any opportunity to ever be relieved of the duty as was permitted under those laws, is, by the clearest proof, punitive, and violates the Maine and United States Constitutions’ prohibitions against ex post facto laws. [¶64] Because the Legislature, in its upcoming session, may wish to consider revisions to SORNA of 1999 to address the registration of offenders originally sentenced subject to SORA of 1991 and SORNA of 1995, we postpone the effective date of our mandate to March 31, 2010. See M.R. App. P. 14(c). State v. Letalien, 2009 ME 130 (emphasis added).

New scanners break child porn laws

No doubt everyone has seen this via Drudge but an intersesting accident at the intersection of security and civil liberties nonetheless:

The rapid introduction of full body scanners at British airports threatens to breach child protection laws which ban the creation of indecent images of children, the Guardian has learned.

Privacy campaigners claim the images created by the machines are so graphic they amount to "virtual strip-searching" and have called for safeguards to protect the privacy of passengers involved.

 . . .

They also face demands from civil liberties groups for safeguards to ensure that images from the £80,000 scanners, including those of celebrities, do not end up on the internet. The Department for Transport confirmed that the "child porn" problem was among the "legal and operational issues" now under discussion in Whitehall after Gordon Brown's announcement on Sunday that he wanted to see their "gradual" introduction at British airports.

. . .

The decision followed a warning from Terri Dowty, of Action for Rights of Children, that the scanners could breach the Protection of Children Act 1978, under which it is illegal to create an indecent image or a "pseudo-image" of a child.

Useful U.S. Sentencing Commision Training

The U.S. Sentencing Commission has put out a powerpoint presentation that hits a bunch of current topics related to child pornography sentencing and related isses like proper probation conditions, restrictions on internet usage and other sundry details that often arise.  I commend it to you here.  The cites to circuit caselaw are particularly useful.

Knowing Downloads

I am analyzing whether a client in one of my current cases "knowingly" downloaded a certain number of images for sentencing purposes.  In researching the question I came accross this useful framework used by the 3d Circuit.

More difficult is the question whether Miller received the images knowingly. Other courts, confronting this question, have deemed at least four factors relevant to this inquiry: (1) whether images were found on the defendant's computer, see United States v. Irving, 452 F.3d 110, 122 (2d Cir.2006); (2) the number of images of child pornography that were found, see id. (finding defendant's possession of 76 images relevant); (3) whether the content of the images "was evident from their file names," United States v. Payne, 341 F.3d 393, 403 (5th Cir.2003) (finding "number of images in [defendant's] possession, taken together with the suggestive titles of the photographs" established knowing receipt); and (4) defendant's knowledge of and ability to access the storage area for the images, see Romm, 455 F.3d at 997-1001 (addressing defendant's ability to access cache files in hidden subdirectory); cf. Kuchinski, 469 F.3d at 861-63 (same). We summarize the evidence bearing on these four factors:

      (1) The government adduced no direct, forensic evidence that the images were downloaded onto Miller's computer. Agent Kyle testified that it was his "educated guess" that Miller downloaded the images onto the zip disk via the internet, perhaps by trading them in a chat room or by searching for them on a website. A. 195. However, Agent Kyle went on to testify, the government had no proof from Miller's hard drive that supported this hypothesis. Agent Price, on cross-examination, acknowledged that, despite the FBI's use of forensic software designed to recover deleted material from hard drives, the FBI had discovered no evidence that Miller's computer had been used to upload or download child pornography.(fn12) Agent Price further testified that there was no evidence that Miller ever used search engines to locate child pornography websites, or that such websites had ever been visited from Miller's computer (the FBI's investigation did reveal, however, that two websites containing adult pornography had been visited from the computer). Agent Price also acknowledged that there was no evidence that Miller ever participated in email exchanges or online chat rooms that pertained to child pornography. Finally, Price acknowledged that there was no evidence that Miller used a "wiping" or "eliminator" program to clear his hard drive of evidence that files had been downloaded. A. 296-97.

      (2) The second factor, the number of images of child pornography found, likewise does not weigh in the government's favor in light of the overwhelming number of adult images that were found. The government presented evidence pertaining to only twenty of the 1200-1400 images found on the zip disk, and the District Court subsequently determined, in the process of sentencing Miller, that only eleven of these images constituted child pornography. Miller contended that he was unaware of the existence of these images and, significantly, Miller volunteered the password of the zip disk to Agent Kyle, cautioning him that the disk contained pornography. Miller also presented evidence that 586 of the images were copied onto the disk at periodic intervals over a seven-hour period, suggesting that they were not individually viewed when they were being copied. Agent Price's rebuttal to this suggestion was that Miller may have first downloaded the images onto his hard drive, or that of another computer, before copying them onto the disk. This possibility puts sharp light, however, on the facts that no forensic evidence of child pornography was found on Miller's hard drive, and that there was no evidence adduced that another computer may have been used to download the images.

      (3) Nor does the third factor, whether the content of the images "was evident from their file names," weigh in the government's favor. Several of the images were embedded with the names of websites that possibly advertised child pornography, but - according to Agent Kyle's and Smith's testimony - this does not suggest that the images were obtained from those websites. Moreover, these website names would not be seen unless a person opened and viewed the files. While there is strong evidence that Miller eventually came to view some of the images of child pornography that were on the disk,(fn13) and thus to knowingly possess the images, this evidence does not lend much support to the inference that Miller knowingly downloaded the images.

      (4) Turning to the fourth factor, whether the defendant had knowledge of and an ability to access the storage space for the images, it is clear that Miller had access to the images on the zip disk. Indeed, Miller admitted to storing image files, including adult pornography, on the disk. In this respect, the facts of this case are more akin to the facts of Romm, 455 F.3d at 997-1001, where the court found that the defendant's knowledge that he could access cache files supported the inference that he knowingly possessed the files, than to the facts of Kuchinski, 469 F.3d 853, 861-63, where the court rejected this inference because the defendant was unaware of, "and concomitantly lack[ed] access to and control over the existence of the files." In contrast to the facts before us, however, the defendant in Romm had stored images of child pornography on the hard drive of his computer, albeit in a subdirectory that was difficult for a typical computer user to access. The Romm court acknowledged that "[n]o doubt, images could be saved to the cache when a defendant accidentally views the images, as through the occurrence of a `pop-up,' for instance." 455 F.3d at 1000. However, the court concluded that this "[wa]s not the case" in Romm's circumstance: "By his own admission . . ., Romm repeatedly sought out child pornography over the internet. When he found images he "liked," he would "view them, save them to his computer, look at them for about five minutes [ ] and then delete them." Id. By contrast, Miller has consistently denied that he knowingly viewed or had any interest in viewing child pornography. 

  Beyond the facts relevant to these four factors, however, the evidence presents a fifth factor that may support the jury's determination: the number of occasions that the images were copied onto the zip disk. Smith testified that the images copied onto the zip disk on October 13, 2002, were likely transferred automatically. However, images of child pornography were also copied onto the disk on subsequent dates. Specifically, according to their dates created, the eleven images that the District Court determined to actually be child pornography were copied to the zip disk on October 13, October 29, December 17, and December 20, 2002. A reasonable juror might have concluded, from this evidence, that Miller copied the images on more than one occasion.

United States v. Miller, 527 F.3d 54 (3rd Cir. 2008)

A Response to Ms. Pope

Ms. Pope, in responding to my post on age of consent laws really misses my point.  First, this is a blog by a criminal defense lawyer-not a political partisan (at least in this context).  When I say I think the use of sex education activities by state actors in a consensual statutory rape case would be interesting-I mean exactly that.  It is purely schizophrenic for the state to on the one hand be teaching youngsters that sexual choices are purely their own, how to put on condoms and here's some free birth control for middle schoolers and on the other that some other person should be criminally charged for having sex with that same middle schooler.  

BUT WHILE WE'RE ON THE TOPIC:

I'll stack 1950's family stats against 21st century family stats  any day of the week.  While some conservatives can be fairly characterized as hypocritical on the subject of sex, hypocrisy at least has the benefit of recognizing that there is a "true north" even if the particular person holding the compass lacks the moral strength to stay on the path.  The alternative is no common path and no set of common sense rules to guide us to a happy family life.  Rules which the Left loves to portray as outmoded religious mores with no application in the modern world, restrictive, patriarchal or whatever are rules which at their core are common sense rules for living life in the particular corner of the animal kingdom which we inhabit.

To more directly answer Ms. Pope who says I slam feminists despite feminists "single handedly being responsible for making teenage girls aware of the awesome costs and responsibilities of becoming sexually active"  I ask this:  At what point does Ms. Pope say they took on that role?  When that point is then fixed, let's look at the illegitimacy and abortion rates before and after and see which social scheme was the more effective.

Progress on the Sex Offender Registry

This was signed into law by the Governor on June 11, 2009.  While not perfect and still a continuation of the ex post facto scheme (which has been upheld by the Law Court)-but progress nonetheless.  In sum, some offenders can petition to get off the registry.  It is as yet unclear how this bill may affect the pending cases before the Law Court on the constitutionality of the registry.

An Act To Improve the Use of Information Regarding Sex Offenders

Be it enacted by the People of the State of Maine as follows:

PART A

Sec. A-1. 17-A MRSA §261, sub-§1,  as enacted by PL 2007, c. 393, §1, is amended to read:

1.   A person is guilty of prohibited contact with a minor if that person:

A.  Has previously been Was convicted on or after June 30, 1992 of an offense under this chapter or chapter 12 against another person who had not in fact attained 14 years of age or has previously been was convicted on or after June 30, 1992 in another jurisdiction for conduct substantially similar to that contained in this chapter or chapter 12 against another person who had not in fact attained 14 years of age; and

B.  Has a duty to register under Title 34-A, chapter 15, subchapters 1 and 2; and

C. Intentionally or knowingly has initiates direct or indirect contact with another person who has not in fact attained 14 years of age.

Violation of this subsection is a Class E crime.

Sec. A-2. 17-A MRSA §261, sub-§2,  as amended by PL 2007, c. 518, §6, is further amended to read:

2.   A person is guilty of prohibited contact with a minor in a sex offender restricted zone if that person:

A.  Has previously been Was convicted on or after June 30, 1992 of an offense under this chapter or chapter 12 against another person who had not in fact attained 14 years of age or has previously been was convicted on or after June 30, 1992 in another jurisdiction for conduct substantially similar to that contained in this chapter or chapter 12 against another person who had not in fact attained 14 years of age; and

B.  Has a duty to register under Title 34-A, chapter 15, subchapters 1 and 2; and

C. Intentionally or knowingly has initiates direct or indirect contact in a sex offender restricted zone with another person who has not in fact attained 14 years of age.

Violation of this subsection is a Class D crime.

Sec. A-3. 17-A MRSA §1152, sub-§2-C,  as amended by PL 2003, c. 711, Pt. B, §13, is repealed.

Sec. A-4. 17-A MRSA §1204, sub-§1-C,  as amended by PL 2005, c. 488, §5, is repealed.

PART B

Sec. B-1. 34-A MRSA §11201,  as amended by PL 2003, c. 711, Pt. C, §4 and affected by Pt. D, §2, is further amended to read:

§ 11201. Short title

This chapter may be known and cited as the "Sex Offender Registration and Notification Act of 1999." The purpose of this chapter is to protect the public from potentially dangerous registrants and offenders by enhancing access to information concerning those registrants and offenders.

Sec. B-2. 34-A MRSA §11202,  as repealed and replaced by PL 2005, c. 423, §1, is further amended to read:

§ 11202. Application

This Unless excepted under section 11202-A, this chapter applies to:

1. Maine.   A person sentenced in this State on or after January 1, 1982 for a sex offense or a sexually violent offense as an adult or as a juvenile sentenced as an adult; and

2. Other jurisdictions.   A person sentenced in another jurisdiction as an adult or as a juvenile sentenced as an adult:

A. At any time of an offense that requires registration in the jurisdiction of conviction pursuant to that jurisdiction's sex offender registration laws or that would have required registration had the person remained there; or

B. On or after January 1, 1982, of an offense that contains the essential elements of a sex offense or sexually violent offense . ; or

C.  At any time for a military, tribal or federal offense requiring registration pursuant to:

(1) The Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, also known as the Jacob Wetterling Act, Section 170101 of the Violent Crime Control and Law Enforcement Act of 1994, Public Law 103-322, as amended; or

(2) The Adam Walsh Child Protection and Safety Act of 2006, Public Law 109-248.

Sec. B-3. 34-A MRSA §11202-A  is enacted to read:

§ 11202-A.  Exception

1.  Exception.   Notwithstanding section 11202, a person sentenced on or after January 1, 1982 and prior to June 30, 1992 is not required to register under this chapter if that person submits to the bureau, in a form to be determined by the bureau, documentation to establish the following:

A.  The person was finally discharged from the correctional system prior to September 1, 1998;

B.  The person's convictions do not include more than one Class A sex offense or sexually violent offense or more than one conviction in another jurisdiction for an offense that contains the essential elements of a Class A sex offense or sexually violent offense, whether or not the convictions occurred on the same date;

C.  At the time of the offense, the person had not been previously sentenced in this State as an adult or as a juvenile sentenced as an adult for a sex offense or a sexually violent offense;

D.  At the time of the offense, the person had not been previously sentenced in another jurisdiction as an adult or as a juvenile sentenced as an adult for an offense that contains the essential elements of a sex offense or a sexually violent offense;

E.  Subsequent to the commission of the offense, the person has not been convicted of a crime under Title 17 or Title 17-A in this State that is punishable by imprisonment for a term of one year or more; and

F.  Subsequent to the commission of the offense, the person has not been convicted under the laws of any other jurisdiction of a crime that is punishable by a term of imprisonment exceeding one year. This paragraph does not include a crime under the laws of another jurisdiction that is classified by the laws of that jurisdiction as a misdemeanor and is punishable by a term of imprisonment of 2 years or less.

2.  Duty continues.   A person's duty to register continues until the bureau determines that the documentation meets the requirements of this section and any rules adopted by the bureau.

3.  Costs.   A person who submits documentation under this section is responsible for the costs of any criminal history record checks required.

4.  Restoration of registration status.   The registration obligation of a person sentenced on or after January 1, 1982 and prior to June 30, 1992 that is discharged pursuant to this section is restored by any subsequent conviction for a crime described in subsection 1, paragraph E or F.

Sec. B-4. 34-A MRSA §11203, sub-§1-A,  as amended by PL 2005, c. 423, §2, is further amended to read:

1-A. Conditional release.   "Conditional release" means supervised release of a registrant or an offender from institutional confinement for placement on probation, parole, intensive supervision, supervised release for sex offenders, supervised community confinement, home release monitoring or release under Title 15, section 104-A or Title 17-A, chapter 54-G.

Sec. B-5. 34-A MRSA §11203, sub-§4,  as amended by PL 2003, c. 711, Pt. C, §9 and affected by Pt. D, §2, is further amended to read:

4. Law enforcement agency having jurisdiction.   "Law enforcement agency having jurisdiction" means the chief of police in the municipality where a registrant or an offender expects to be or is domiciled. If the municipality does not have a chief of police, "law enforcement agency having jurisdiction" means the sheriff of the county where the municipality is located. "Law enforcement agency having jurisdiction" also means the sheriff of the county in an unorganized territory.

Sec. B-6. 34-A MRSA §11203, sub-§4-A,  as amended by PL 2005, c. 423, §3, is further amended to read:

4-A. Risk assessment instrument.   "Risk assessment instrument" means an instrument created and modified as necessary by reviewing and analyzing precursors to a sex offense, victim populations of a registrant or an offender, living conditions and environment of a registrant or an offender and other factors predisposing a person to become a registrant or an offender, for the ongoing purpose of identifying risk factors.

Sec. B-7. 34-A MRSA §11203, sub-§4-D,  as enacted by PL 2003, c. 711, Pt. C, §11 and affected by Pt. D, §2, is amended to read:

4-D. Residence.   "Residence" means that place or those places, other than a domicile, in which a person may spend time living, residing or dwelling. Proof that an offender has lived in the State for 14 days continuously or an aggregate of 30 days within a period of one year gives rise to a permissible inference under the Maine Rules of Evidence, Rule 303 that the person has established a residence for the purposes of registration requirements imposed by this chapter.

Sec. B-8. 34-A MRSA §11203, sub-§4-E  is enacted to read:

4-E.  Offender.   "Offender" means a person to whom this chapter applies pursuant to section 11202.

Sec. B-9. 34-A MRSA §11203, sub-§5,  as amended by PL 2003, c. 711, Pt. C, §12 and affected by Pt. D, §2, is further amended to read:

5. Ten-year registrant.   "Ten-year registrant" means a person who is has complied with the initial duty to register under this chapter as an adult convicted and sentenced or a juvenile convicted and sentenced as an adult of a sex offense.

Sec. B-10. 34-A MRSA §11203, sub-§6, ¶B,  as repealed and replaced by PL 2003, c. 711, Pt. C, §13 and affected by Pt. D, §2, is amended to read:

B. A violation under former Title 17, section 2922; former Title 17, section 2923; former Title 17, section 2924; Title 17-A, section 253, subsection 2, paragraph E, F, G, H, I or J; Title 17-A, section 254; former Title 17-A, section 255, subsection 1, paragraph A, E, F, G, I or J; former Title 17-A, section 255, subsection 1, paragraph B or D if the crime was not elevated a class under former Title 17-A, section 255, subsection 3; Title 17-A, section 255-A, subsection 1, paragraph A, B, C, G, I, J, K, L, M, N, Q, R, S or T; Title 17-A, section 256; Title 17-A, section 258; Title 17-A, section 259; Title 17-A, section 282; Title 17-A, section 283; Title 17-A, section 284; Title 17-A, section 301 , subsection 1, paragraph A, subparagraph (3), unless the actor is a parent of the victim; Title 17-A, section 302, unless the actor is a parent of the victim; Title 17-A, section 511, subsection 1, paragraph D; Title 17-A, section 556; Title 17-A, section 852, subsection 1, paragraph B; or Title 17-A, section 855; or

Sec. B-11. 34-A MRSA §11203, sub-§6, ¶C,  as amended by PL 2005, c. 423, §5, is further amended to read:

C. A violation in another jurisdiction that includes the essential elements of an offense listed in paragraph B . ; or

Sec. B-12. 34-A MRSA §11203, sub-§6, ¶D  is enacted to read:

D.  A conviction for a military, tribal or federal offense requiring registration pursuant to:

(1) The Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, also known as the Jacob Wetterling Act, Section 170101 of the Violent Crime Control and Law Enforcement Act of 1994, Public Law 103-322, as amended; or

(2) The Adam Walsh Child Protection and Safety Act of 2006, Public Law 109-248.

Sec. B-13. 34-A MRSA §11203, sub-§7,  as amended by PL 2005, c. 423, §6, is further amended to read:

7. Sexually violent offense.   "Sexually violent offense" means:

A. A conviction for one of the offenses or for an attempt to commit one of the offenses under former Title 17-A, section 252; under Title 17-A, section 253, subsection 1; Title 17-A, section 253, subsection 2, paragraph A, B, C or D; former Title 17-A, section 255, subsection 1, paragraph C or H; former Title 17-A, section 255, subsection 1, paragraph B or D, if the crime was elevated a class under former Title 17-A, section 255, subsection 3; Title 17-A, section 255-A, subsection 1, paragraph D, E, E-1, F, F-1, H, O or P; or

B. A conviction for an offense or for an attempt to commit an offense of the law in another jurisdiction that includes the essential elements of an offense listed in paragraph A . ; or

C.  A conviction for a military, tribal or federal offense requiring registration pursuant to:

(1) The Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, also known as the Jacob Wetterling Act, Section 170101 of the Violent Crime Control and Law Enforcement Act of 1994, Public Law 103-322, as amended; or

(2) The Adam Walsh Child Protection and Safety Act of 2006, Public Law 109-248.

Sec. B-14. 34-A MRSA §11203, sub-§8,  as amended by PL 2005, c. 423, §7, is further amended to read:

8. Lifetime registrant.   "Lifetime registrant" means a person who is has complied with the initial duty to register under this chapter as an adult convicted and sentenced or a juvenile convicted and sentenced as an adult of a:

A. Sexually violent offense; or

B. Sex offense when the person has a prior another conviction for or an attempt to commit an offense that includes the essential elements of a sex offense or sexually violent offense. For purposes of this paragraph, prior conviction means a conviction that occurred at any time. More than one conviction may occur on the same day. Multiple convictions that result from or are connected with the same act or that result from offenses committed at the same time are considered one conviction unless the offenses were committed against more than one victim. "another conviction" means:

(1) For persons convicted and sentenced before September 17, 2005, a conviction for an offense for which sentence was imposed prior to the occurrence of the new offense; and

(2) For persons convicted and sentenced on or after September 17, 2005, a conviction that occurred at any time. Convictions that occur on the same day may be counted as other offenses for the purposes of classifying a person as a lifetime registrant if:

(a) There is more than one victim; or

(b) The convictions are for offenses based on different conduct or arising from different criminal episodes.

Sec. B-15. 34-A MRSA §11222,  as amended by PL 2005, c. 683, Pt. B, §28, is further amended to read:

§ 11222. Duty of offender to register

1. Notification by court, the department, the bureau or a law enforcement agency.   The court shall determine at the time of sentencing if a defendant is a 10-year registrant or lifetime registrant. A person who the court determines is a 10-year registrant or lifetime registrant shall register according to this subchapter. An offender has a duty to register under this chapter after notification has been given to the offender by a court of jurisdiction, the department, the bureau or a law enforcement agency. A court shall notify the offender at the time of sentence of the duty to register pursuant to this chapter. Notification of the duty to register under this chapter also may be given to the offender at any time after the imposition of sentence.

At any time, the bureau may correct the term of a registration erroneously assigned to an offender or registrant. In such instances, the bureau shall notify the offender or registrant, the district attorney and court in the jurisdiction where the conviction occurred and the law enforcement agency having jurisdiction where the offender or registrant is domiciled, resides, is employed or attends college or school, if applicable.

1-A. When duty to register must be exercised.   Following determination by the notification by a court , the department, the bureau or a law enforcement agency under subsection 1, a registrant an offender shall register as follows.

A. If the registrant offender is sentenced to a wholly suspended sentence with probation or administrative release, or to a punishment alternative not involving imprisonment, the duty to register is triggered at the time the person commences in actual execution of the wholly suspended sentence or at the time of sentence imposition when no punishment alternative involving imprisonment is imposed, unless the court orders a stay of execution, in which event the duty is triggered by the termination of the stay.

B. If the registrant offender is sentenced to a straight term of imprisonment or to a split sentence, the duty to register is triggered by discharge or conditional release.

C. If the registrant offender is committed under Title 15, section 103, the duty to register is triggered by discharge or conditional release under Title 15, section 104-A.

D.  If the events stated in paragraphs A to C have passed, an offender must register within 5 days after having received notice of that duty from a court, the department, the bureau or a law enforcement agency.

E.  Proof that the name and date of birth of the person notified of the duty to register pursuant to this chapter are the same as those of a person who has been convicted of an offense requiring registration pursuant to this chapter gives rise to a permissible inference under the Maine Rules of Evidence, Rule 303 that the person notified of the duty to register is the same person as that person convicted of the offense requiring registration.

1-B. Duty to notify law enforcement agency.   A registrant who has a duty to register pursuant to this subchapter An offender shall notify the law enforcement agency having jurisdiction in those areas where the registrant offender is domiciled, resides, works or attends school within 24 hours of becoming a domiciliary or a resident or beginning work or attending school. If the location is a municipality with an organized municipal police department, the law enforcement agency having jurisdiction is the municipal police department. If the location is a school having an organized police department, the law enforcement agency having jurisdiction is the campus police department. If the location is neither a municipality nor a school with an organized police department, the law enforcement agency having jurisdiction is the sheriff's department.

2. Responsibility of ensuring initial registration.   The department, the county jail or the state mental health institute that has custody of a registrant required to register under this subchapter an offender shall inform the registrant offender, prior to discharge or conditional release, of the duty to register. If a registrant an offender does not serve a period of institutional confinement, the court shall inform the registrant offender at the time of sentencing of the duty to register. The department, county jail, state mental health institute or court shall:

A. Inform the registrant offender of the duty to register and obtain the information required for the initial registration;

A-1. Inform the registrant offender of the requirement to notify the law enforcement agency having jurisdiction pursuant to subsection 1-B;

B. Inform the registrant offender that if the registrant offender changes domicile or changes residence, place of employment or college or school being attended, the registrant offender shall give the new address to the bureau in writing within 5 days and shall notify the law enforcement agency having jurisdiction within 24 hours;

C. Inform the registrant offender that if that registrant offender changes domicile to another state, the registrant offender shall register the new address with the bureau and if the new state has a registration requirement, the registrant offender shall register with a designated law enforcement agency in the new state not later than 5 days after establishing domicile in the new state;

D. Inform the registrant offender that if that registrant offender has part-time or full-time employment in another state, with or without compensation, for more than 14 consecutive days or for an aggregate period exceeding 30 days in a calendar year or if that registrant offender enrolls in any type of school in another state on a part-time or full-time basis, the registrant offender shall give the bureau the registrant's offender's place of employment or school to be attended in writing within 5 days after beginning work or attending school and if the other state has a registration requirement, shall register with the designated law enforcement agency in the other state;

E. Obtain fingerprints and a photograph of the registrant offender or the court may order the registrant offender to submit to the taking of fingerprints and a photograph at a specified law enforcement agency within 3 days if the fingerprints and photograph have not already been obtained in connection with the offense that necessitates registration; and

F. Enforce the requirement that the registrant offender read and sign a form provided by the bureau that states that the duty of the registrant offender to register under this section has been explained.

2-A. Duty of registrant sentenced from June 30, 1992 to September 17, 1999 to register.   Notwithstanding subsection 1 and except as provided in subsection 2-B, a person coming within the definition of a 10-year registrant or lifetime registrant who has been sentenced on or after June 30, 1992 but before September 18, 1999 for a sex offense or a sexually violent offense shall register either as a 10-year registrant or lifetime registrant, whichever is applicable, with the bureau by September 1, 2002 if the duty to register has been triggered under subsection 1-A, paragraph A, B or C , unless sooner notified in writing of a duty to register under subsection 1-A, paragraph A, B or C by the bureau, the department or a law enforcement officer, in which case the person and the offender has been notified of the duty to register by a court of jurisdiction, the department, the bureau or a law enforcement agency. The offender shall register with the bureau within 5 days of notice.

2-B. Duty to register for new crimes.   For a person otherwise subject to subsection 2-A who has been sentenced for a crime added by an amendment to the definition of sex offense or sexually violent offense in section 11203 since September 1, 2002, if the duty to register has been triggered under subsection 1-A, paragraph A, B or C , that and the offender has been notified of the duty to register by a court of jurisdiction, the department, the bureau or a law enforcement agency, that person shall register as a 10-year registrant or a lifetime registrant, whichever is applicable , with the bureau by June 1, 2005, unless sooner notified in writing of a duty to register under subsection 1-A, paragraph A, B or C by the bureau, the department or a law enforcement officer, in which case the person . The offender shall register with the bureau within 5 days of notice.

2-C. Duty of registrant sentenced from January 1, 1982 to June 29, 1992 to register.   Notwithstanding subsection 1, a person who meets the definition of a 10-year registrant or a lifetime registrant who has been sentenced on or after January 1, 1982 but before June 30, 1992 for a sex offense or a sexually violent offense shall register either as a 10-year registrant or a lifetime registrant, whichever is applicable, with the bureau by October 15, 2005 if the duty to register has been triggered under subsection 1-A, paragraph A, B or C , unless sooner notified in writing of a duty to register under subsection 1-A, paragraph A, B or C by the bureau, the department or a law enforcement officer, in which case the person and the offender has been notified of the duty to register by a court of jurisdiction, the department, the bureau or a law enforcement agency. The offender shall register with the bureau within 5 days of notice.

3. Transfer of initial registration information to bureau and FBI.   The department, county jail, state mental health institute or court within 3 days of receipt of the information described in subsection 2 shall forward the information to the bureau. If the court orders the registrant offender to submit to the taking of fingerprints and a photograph at a specified law enforcement agency, the law enforcement agency shall submit the fingerprints and photograph to the bureau within 3 days. The bureau shall immediately enter the information into the registration system, notify the law enforcement agencies having jurisdiction where the registrant offender expects to be domiciled and reside and transmit the information to the FBI for inclusion in the national FBI sex offender database.

4. Verification.   During the period a registrant is required to register, the bureau shall require the registrant to verify registration information including domicile, residence, place of employment and college or school being attended. The bureau shall verify the registration information of a 10-year registrant on each anniversary of the 10-year registrant's initial registration date and shall verify a lifetime registrant's registration information every 90 days after that lifetime registrant's initial registration date. Verification of the registration information of a 10-year registrant or lifetime registrant occurs as set out in this subsection.

A. At least 10 days prior to the required verification date, the bureau shall mail a nonforwardable verification form to the last reported mailing address of the registrant. The verification form is deemed received 3 days after mailing unless returned by postal authorities.

C. The registrant shall take the completed verification form and a photograph of the registrant to the law enforcement agency having jurisdiction within 5 days of receipt of the form.

D. The law enforcement agency having jurisdiction shall verify the registrant's identity, have the registrant sign the verification form, take the registrant's fingerprints, complete the law enforcement portion of the verification form and immediately forward the fingerprints, photograph and form to the bureau.

5. Change of domicile, residence, place of employment or college or school being attended.   A An offender or registrant shall notify the bureau in writing of a change of residence, domicile, place of employment or college or school being attended within 5 days and shall notify the law enforcement agency having jurisdiction within 24 hours after changing that domicile, residence, place of employment or college or school being attended.

A.  If the offender or registrant establishes a new domicile, residence, place of employment or college or school being attended in the State, the bureau shall notify, within 3 days, both the law enforcement agency having jurisdiction where the offender or registrant was formerly domiciled or resided or was employed or enrolled and the law enforcement agency having jurisdiction where the offender or registrant is currently domiciled, residing, employed or enrolled.

B. If the offender or registrant establishes a domicile, residence, place of employment or college or school being attended in another state, the bureau shall notify, within 3 days, the law enforcement agency having jurisdiction where the offender or registrant was formerly domiciled or resided or was employed or enrolled and the law enforcement agency having jurisdiction where the offender or registrant is currently domiciled, residing, employed or enrolled.

Sec. B-16. 34-A MRSA §11223,  as amended by PL 2005, c. 423, §19, is further amended to read:

§ 11223. Duty of person establishing domicile or residence to register

A person sentenced at any time for a military, tribal or federal offense requiring registration pursuant to the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, also known as the Jacob Wetterling Act, Section 170101 of the Violent Crime Control and Law Enforcement Act of 1994, Public Law 103-322, as amended; or the Adam Walsh Child Protection and Safety Act of 2006, Public Law 109-248; or in a jurisdiction other than this State who is required under that jurisdiction to register pursuant to that jurisdiction's sex offender registration statute or would have been required to register if the person had remained in the jurisdiction or, if not so required, who has been sentenced on or after January 1, 1982 for an offense that includes the essential elements of a sex offense or a sexually violent offense shall register as a 10-year registrant or lifetime registrant, whichever is applicable, within 5 days and shall notify the law enforcement agency having jurisdiction within 24 hours of establishing domicile or residence in this State. The person shall contact the bureau, which shall provide the person with the registration form and direct the person to take the form and a photograph of the person to the law enforcement agency having jurisdiction. The law enforcement agency shall supervise the completion of the form, take the person's fingerprints and immediately forward the form, photograph and fingerprints to the bureau.

Sec. B-17. 34-A MRSA §11224, sub-§1,  as enacted by PL 2005, c. 423, §20, is amended to read:

1. Time.   A person who has been sentenced at any time for a military, tribal or federal offense requiring registration pursuant to the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, also known as the Jacob Wetterling Act, Section 170101 of the Violent Crime Control and Law Enforcement Act of 1994, Public Law 103-322, as amended; or the Adam Walsh Child Protection and Safety Act of 2006, Public Law 109-248; or in a jurisdiction other than this State and who is required under that jurisdiction to register pursuant to that jurisdiction's sex offender registration statute or would have been required to register if the person had remained in that jurisdiction or, if not so required, who has been sentenced on or after January 1, 1982 for an offense that includes the essential elements of a sex offense or a sexually violent offense shall register as a 10-year registrant or lifetime registrant, whichever is applicable, within 5 days and shall notify the law enforcement agency having jurisdiction:

A. Within 24 hours of beginning full-time or part-time employment, with or without compensation, for more than 14 consecutive days or for an aggregate period exceeding 30 days in a calendar year in this State; or

B. Within 24 hours of beginning college or school on a full-time or part-time basis in this State.

Sec. B-18. 34-A MRSA §11225-A, sub-§6,  as enacted by PL 2005, c. 423, §22, is amended to read:

6. Relief from duty to register.   The following provisions apply to an offender's, a 10-year registrant's or a lifetime registrant's duty to register.

A.  A An offender's or a 10-year registrant's duty to register for a period of 10 years pursuant to subsection 2 is not required if the circumstances triggering the registration requirements under section 11223, section 11224 or both no longer exist.

B.  A An offender's or a lifetime registrant's duty to register for the duration of that person's life pursuant to subsection 4 is not required if the circumstances triggering the registration requirements under section 11223, section 11224 or both no longer exist.

C. If the underlying conviction in this State or in another jurisdiction that triggers the registration requirement is reversed, vacated or set aside, or if the offender or registrant is pardoned for the crime, registration is no longer required.

Sec. B-19. 34-A MRSA §11227, sub-§6,  as repealed and replaced by PL 2005, c. 423, §23, is amended to read:

6. Affirmative defense.   It is an affirmative defense that the failure to comply with a duty imposed under this chapter or a rule adopted pursuant to this chapter resulted from just cause , except that a person to whom section 11222, subsection 2-A, 2-B or 2-C applies may not raise a defense under just cause that the person was not aware of the registration requirement.

Sec. B-20. 34-A MRSA §11227, sub-§7  is enacted to read:

7.  Permissible inference.   Proof that the name and date of birth of the person charged with a violation of this section are the same as those of a person who has been convicted of an offense requiring registration pursuant to this chapter gives rise to a permissible inference under the Maine Rules of Evidence, Rule 303 that the person charged with a violation of this section is the same person as that person convicted of the offense requiring registration.

Sec. B-21. 34-A MRSA §11228,  as enacted by PL 2003, c. 371, §12, is amended to read:

§ 11228. Certification by record custodian

Notwithstanding any other law or rule of evidence, a certificate by the custodian of the records of the bureau, when signed and sworn to by that custodian , or the custodian's designee, is admissible in a judicial or administrative proceeding as prima facie evidence of any fact stated in the certificate or in any documents attached to the certificate.

Sec. B-22. Retroactivity. This Part applies retroactively to January 1, 1982.

Legislation on Residency Restrictions and Registration

Well, its some progress.  From the Bangor Daily News:

AUGUSTA, Maine — Legislation that would restrict a community’s ability to control where sex offenders live in town is headed to the full Legislature after a last-minute compromise received a favorable vote in committee on Friday.

A second bill that would allow some sex offenders to petition to be left off the statewide registry also won the endorsement of the Criminal Justice and Public Safety Committee.

As originally introduced, LD 385 would have prohibited municipalities from enacting local ordinances that restricted how close convicted sex offenders could live to schools, parks and other places where children congregate. Bill supporters said such laws, while well-intentioned, further punish sex offenders who have served their time and could result in a total ban on sex offenders within some towns.

...

The version that received an “ought to pass” vote from a majority of the committee would allow towns to prohibit sex offenders from living within 750 feet of public or private schools.

Towns could also extend that prohibition to areas around other municipal-owned properties, such as parks. Additionally, the bill would only apply to adult sex offenders convicted of felony offenses against children under age 14.

...

Kate Dufour of the Maine Municipal Association said while her group and its members won’t be happy with the 750-foot limit, at least the bill preserves some level of local control.

...

The measure seeks to address criticisms that Maine’s sex offender registry is doubly punitive because it forces people to retroactively register long after they have finished serving time for their offenses. LD 1157, sponsored by Sen. Stanley Gerzofsky, D-Brunswick, does not automatically remove anyone from the registry. Instead, the bill would allow anyone convicted between Jan. 1, 1982, and June 29, 1992, to petition to not be listed in the searchable registry. To be eligible, the person must not be a repeat violent offender, must have been discharged from jail before Sept. 1, 1998, and cannot be convicted of subsequent felonies.

...

The current bill does not seek to create such a tiered system, however.

With respect to the first bill creating safety zones, I see two positive aspects: (1) The towns cannot just make up any crazy zone they want and  (2) The restriction appears to be targeted at sex offenders with a history of attraction to children under 14-as opposed to 15 year olds or adults. 

With respect to the second bill filtering sex offenders off the registry between 1982 and 1992, I wish it were stronger.  While at least the legislature ismaking someattempt totackle an injustice that ispolitically toxic, I see a number of issues:

1.  The bill still seems to require an application by thoseeligible to be taken off the registry.  No beurocrat is going to want to stick their neck out to be the one that allows someone to be removed from the registry that could turn out to be a repeat offender.  Just make the proposed new filter automatic-not discretionary;

2.  If this legislation passes it could have some interesting effects on the current litigation challenging the statute.  At least some-if not many-of the plaintiffs may nolonger have standing.  The court may otherwise be at least mindful, if not influenced, by the curent legislative direction.  Recently the State requested a stay of discovery for some of the latter Plaintiffs in that matter for the reason that it had the sense that the earlier tranche of Plaintiffs was further along the process and the decision in that tranche may well controll the final outcome of the case for all Plaintiffs.  As an interesting aside the cases have been styled "State v. John Doe I, II, III" etc.  When we got to roman numeral number XXX there was some official hesitaion given the subject matter.

3.  While the statute does not create a tiered system for those offenders after 1992 at least there is some effort at gradation for thosebefore 1992.  I think the problem still remains for those convicted later that should be entitled to some privacy based on the nature of the particular offense.  But hey, its progress.

A Random Thought on the Age of Consent

In all states there is an age below which someone cannot consent to sexual activity.  The age varies from state to state.  In Maine the age is 14 or 16 depending on the age of the older partner. In all states that I am aware of the fact that a sexual act may have been purely consensual in the plain meaning of the term is no defense. 

The logic behind both the age of consent and the lack of defense of consensuality make perfect sense.  No one could reasonably posit that a 6 year old could consent to sex with a 60 year old.  That said, the age of consent becomes an arbitrary line in the sand that really has no relation to the reality of many relationships.  Forexample, I recently defended a case in which my simpleton 35 year old client had a relationship with his 15 year old neighbor who was clearly capable of consenting and in fact seemed to have initiated the relationship.  She seemed far more intellectually capable than my client. 

It also makes sense not to have a defense that could result in a scenario where my hypothetical 60 year old client points to a few innocent statements by the 6 year old victim that they enjoyed the oral sex as evidence of consensuality (child victims will often confess to the investigator that they enjoyed the encounter).

ALL THAT SAID

I have increasingly been intrigued by the increasingly explicit and aggressive sex education classes that many school systems are pushing as a matter of policy.  A light survey of headlines on the controversies surrounding these programs suggests that schools (state actors) are increasingly condoning either implicitly or explicitly sex amongst the very young.  If I may flag my own politics for a moment, it appears that the feminist, pro-abortion, free condoms for all crowd has taken over the school system.  In my own home state, for example, one recent school system now provides birth control for middle schoolers.

It occurs to me that a fun defense to try would be to wait for the appropriate case-a 15 year old in the right school system who is having factually consensual sex with an older person. I would then argue that the state is estopped from relying on the age of consent statute because the victim had been taught by the state that she could consent to sex, that they provided birth control to her and that they taught that sexual decisions were within her own purview.  I would then argue that the state is estopped from raising an age of consent defense.

Just a thought and one I would welcome some feedback on.

Adam Walsh Act in the Crossfire

In Maine the Adam Walsh Act is seen (from the defense perspective) as an improvement over the current state of affairs.  While it may be just as draconian in some respects, the AWA at least holds open the possibility, in theory, of an evaluation to see if a registrant is an ongoing risk and assess whether offenders should have to register.  There are other improvements over the current state of law here as well.

This New York Times article details a variety of challenges to the AWA from both the prosecution and defense perspective.  I have previously written of the defense challenges-particularly the Commerce Clause theories.  I was unaware that there was any pushback for such localized concerns as Alaska's where someone in the remote bush might have totravel by bushplane to register.  AWA does not create any allowances for this sort of problem.  At heart, I am an ardant federalist and state's rights kind of guy.  As a defense lawyer, however, I see the states' temptation to constantly ratchet up the severity of these laws as well as my clients' efforts to deal with the patchwork of state laws as they may happen to move around.  I have seen the AWA as a worthy attempt to balance the inevitability of a registration law with the need for consistency and fairness to offenders.  It would certainly be an improvement in my home jurisdiction.  Perhaps AWA needs a rewrite to allow a bit more state flexibility

Things NOT To Wear To Court

Occasionally some people so transcend cluelessness that it approaches the sublime.  The most common example I have seen is the Defendant charged with OUI (DWI) who wears a Budweiser t-shirt to court. Recently, though, I saw a Defendant charged with domestic violence assault wear a "Tapout" brand "wife-beater" style t-shirt.  For the uninitiated"Tapout" is a brand associated with Ultimate Fighting mixed martial arts.

Both of these examples pale in comparison to a recent faux pas by a client who was recently headed to court to plea and be sentenced for raping his two underage stepdaughters.  The client, an enormously obese man, with plenty of area for a billboard wore a t-shirt with a pirate motif of two phallicly positioned crossed cutlasses over the caption "Prepare to Be Boarded."  It was a classic moment.  The t-shirt got turned inside out!

What a difference some favorable facts make!

I was recently involved in a computer solicitation case in which my client was accused of enticing a "13 year old" (who in reality was a cop) to a location under one of our local bridges.  The investigation began when a 14 year old created a myspace page advertising himself as 22 and would have testified that he advertised himself as being as much as 31.  When the cop took over the chat he told my client that he was 13 to which my client said that he thought he was 21.  The cop responded "I lied."  The defense was that my client was simply showing upto see the actual age of the person before rejecting the encounter.

I liked this defense and while it may have been a bit "out there" thought we had decent oddsof success.  We elected to proceed jury waived.  On the day of trial we struck a deal which avoided both a felony conviction and registration as a sex offender.  The Bangor Daily article is here.

I was intrigued when just a few days later the same judge who reluctantly accepted the plea in my case sentenced a computer enticement case as follows:

Gordon D. Lovely was sentenced to five years in prison with all but one year suspended also was sentenced to two years of probation and ordered to register as a sex offender for 10 years after his release . . ..

. . .

Lovely pleaded guilty Friday to one count of solicitation of a child by a computer, a Class C felony that carries a maximum penalty of five years in prison and a maximum fine of $5,000. In a plea agreement with prosecutors, the more serious Class B felony charge of attempted gross sexual assault was dismissed, Roberts said.

A tip to Bangor police that an 11-year-old-girl was being asked online to meet an adult male led investigators to Lovely....A Bangor police detective posing as the girl, according to Roberts, took over the online conversations with Lovely. When Lovely showed up late last year expecting to meet the girl, he was arrested.

PS: I get such a kick out of the way I get demonized in the "comment" sections. 

What Women Want

One of the constant and ongoing challenges of the defense attorney in sex cases is to figure out a rationale explanation for seemingly irrational and otherwise assaultive behavior.  The possible permutations or human sexual desire, regrets and motivations is to put it mildly-complex.  For the attorney dealing with these cases it is important to be able to tap into normally hidden human sexual desires,beliefs or stereotypes within the psyche of the average juror.

Consequently I was interested in the research presented in this New York Times article of the same headline as this post.  I insert a block quote showing the objective research in question but the whole article is far ranging and interesting

The participants sat in a brown leatherette La-Z-Boy chair in her small lab at the Center for Addiction and Mental Health, a prestigious psychiatric teaching hospital affiliated with the University of Toronto, where Chivers was a postdoctoral fellow and where I first talked with her about her research a few years ago. The genitals of the volunteers were connected to plethysmographs — for the men, an apparatus that fits over the penis and gauges its swelling; for the women, a little plastic probe that sits in the vagina and, by bouncing light off the vaginal walls, measures genital blood flow. An engorgement of blood spurs a lubricating process called vaginal transudation: the seeping of moisture through the walls. The participants were also given a keypad so that they could rate how aroused they felt.

The men, on average, responded genitally in what Chivers terms “category specific” ways. Males who identified themselves as straight swelled while gazing at heterosexual or lesbian sex and while watching the masturbating and exercising women. They were mostly unmoved when the screen displayed only men. Gay males were aroused in the opposite categorical pattern. Any expectation that the animal sex would speak to something primitive within the men seemed to be mistaken; neither straights nor gays were stirred by the bonobos. And for the male participants, the subjective ratings on the keypad matched the readings of the plethysmograph. The men’s minds and genitals were in agreement.

All was different with the women. No matter what their self-proclaimed sexual orientation, they showed, on the whole, strong and swift genital arousal when the screen offered men with men, women with women and women with men. They responded objectively much more to the exercising woman than to the strolling man, and their blood flow rose quickly — and markedly, though to a lesser degree than during all the human scenes except the footage of the ambling, strapping man — as they watched the apes. And with the women, especially the straight women, mind and genitals seemed scarcely to belong to the same person. The readings from the plethysmograph and the keypad weren’t in much accord. During shots of lesbian coupling, heterosexual women reported less excitement than their vaginas indicated; watching gay men, they reported a great deal less; and viewing heterosexual intercourse, they reported much more. Among the lesbian volunteers, the two readings converged when women appeared on the screen. But when the films featured only men, the lesbians reported less engagement than the plethysmograph recorded. Whether straight or gay, the women claimed almost no arousal whatsoever while staring at the bonobos.

Nothing in particular about any particular type of case leapt out at me but rather it struck me as useful information to tuck away.

Child Porn Victory

State v. T.J.

 

In 2006 the Defendant’s then wife went to the police station and reported that her husband was cruising websites showing child pornography.  The police seized the computer and found said pornography.  A divorce ensued, now ex-spouse retained control of the family home and their relatively modest assets.  There was a prepubescent stepdaughter also in the home.   The now ex-wife stated she did not have access to that computer.  

 

As the police would not release a forensic copy of the hard drive for investigation, my expert and I travelled to the Maine crime lab in the spring of 2007 to view the computer.  We discovered that within an hour after the wife had been to the police station that the computer and these websites had been accessed.  There would have been some testimony that my client may have been out of the home at that time.  We also discovered distinctive photographs that appeared to be both personal and to have no association with my client.  We could not definitively determine the origin of the photographs.  That’s what we had going into the eve of the first trial.

 

On the night before the first trial it was disclosed that there was a second computer and that there were emails on the seized computer suggesting that the ex did have access.  Although we had already picked a jury and the trial was scheduled to start the next morning it was obvious we should have access to the second computer and a chance to examine it.

 

There were initially two issues upon exam of the new computer:

1.        Was there a trail that would explain how certain AOL emails which appeared to originate from the couple’s common email address and which were clearly from/to the ex-wife appeared on his computer consistent with her earlier statement that she had no access to his computer.

2.       Would we find anything else interesting.

 

The ex wife’s  computer was obtained in late August 2008- over two years after the initial report of the child pornography.  We obtained a forensic copy of the hard drive.  We picked a second jury and then my computer expert found-among other things- that the new computer had been wiped clean with special software about the same time that the police were requesting access to it from the ex.  The second thing that was very interesting was that someone had been using the second computer as recetly as August of 2008 to access very similar sites to the ones my client was accused of cruising.  My client had been out of the home for well over a year at that point.

 

We submitted the expert report on Wednesday of the week before trial pursuant to a court order.  The DA dumped the case the Monday of the week of trial.

DHHS "Substantiation" Hearings Described

The power of the Department of Health & Human Services to intervene in families lives on the thinest of suppositions never ceases to amaze me. Prior to a few years ago if the Department sent a letter "substantiating" you as a sex offender or a danger to children there was very little practical recourse. From that point forward the Department would require the subject of the letter no to have contact with children-even their own natural children who were not subject to any allegations (i.e. a man accused of sexual contact with a 15 year old unrelated girl might be prohibited from living with his 3 year old son or his natural teenage daughter). There would not need to be a court order because the prohibition would be phrased in such a way that if the "suggestion" were not followed the Department would seek an ex parte court order snatching the children and placing them in a foster home. These determinations would be made by a typically young social worker fresh out of social work school and her Department supervisor. The choice for the target of the letter and their family is to obey the Department's directives and kowtow to their every whim or face the near certain prospect of a court order snatching their children until some distant point in the future. It is unfortunate that those charged with second guessing the Department tend to be self selecting for traits similar to social workers ("I just want to protect the children" or "Children don't lie"). "Substantiation" is a status whereby the Department gets to maintain a record of the alleged issue forever instead of having to destroy it within 18 months as they must do otherwise. Substantion suggests that the event(s) actually occured. While not made public, substantiations are shared with people /organizations that have a need to know. For example if you want to become a school bus driver or day care worker the Department will search its database of substantiated offenders. Recently a new term has enetered the Department lexicon-"indication." Indication suggests that the event(s) may have occured but that the Department doesn't have the level of proof necessary to get to "sustantiation." The Department wants, however, to save a record of the encounter so as to bolster their case later should another problem occur. The Department will then offer an "indicated" status which is not supposed to be used for job clearance purposes but which can be used in future investigations. That is the theory-I suspect in practice there is very little distinction between substantiation and indication. Once a letter has been recieved from the Department "substantiating" or "indicating" an individual then the individual has 30 days to appeal. The appeal process at this stage is relatively simple and consists of a letter requesting an appeal. An internal supervisor then reviews the paper documentation of the case and does a rubber stamp approval. A letter is then sent to the individual upholding the original finding. The individual then can appeal to an internal DHHS hearing. This hearing more closely resembles a formal court proceeding with subpoena powers and a formal record of the proceedings, including tape recordings. The Department is represented at the hearing by the Maine Attorney General's office. Although I have not had an opportunity to challenge the provision, children relevant to the proceeding may not be subpoena'd by the defense and any such hearsay statements are typically admissable. A decision is rendered by an employee of the DHHS who is a hearing officer acting as an administrative judge. These hearing officers are typically former caseworkers. After a decision is rendered by the hearing officer, the decision is reviewed by a further supervisor and then either accepted or rejected. Suprisingly I have had some success at this level. A recent case consisted solely of the allegation that my client, a foster grandfather figure, had sexually molested his "grandaughter" based on the statement by the 4 year old that "pop-pop took a rat out of my butt with rat clippers." Based on this nonsensical statement and absolutely no other evidence my client was substantiated through the hearing officer level. As I was preparing to file an action in District court, the head of DHHS rejected the finding and the case ended. The proceedure I have described above is a few years old and I am not aware of any cases that have been tested through the District Court level. Often the clients find themselves in some additional trouble, they give up or they run out of money. After the hearing decision

FCI Butner Sex Offender Traetment Program Information Sheet

I recieved this Download Im3511_20080208_150032 about FCI Butner's Sex Offender Treatment Program recently.  I note it was updated in 2001 but doubt it has changed that much.

Julie Amero Pleads to a Disorderly Conduct

Julie Amero, the Connecticut substitute teacher who was charged with child endangerment, pleaded guilty to a single misdemeanor count of disorderly conduct for a $100 fine.  I have blogged about this case and have linked to others who have. (I'll link in later when I have time!).

The cases ultimate disposition is fully described in Wired Magazine here.  I was startled to see (although I don't know why nowadays) that she has her own Wikipedia page.

I was recently involved in a case in which I obtained a plea offer in a case which knocked down multiple counts of child rape to a no jail time misdemeanor.  The client had passed a polygraph and I had gotten some very interesting information about the child and his family.  The judge refused to accept the plea on the grounds that if the case was that weak it should be dismissed rather than enter even a nominal plea and if it wasn't that weak that there should be a trial. 

I appreciate the judge's position but I often have heartburn with those sorts of judicial second-guessing of plea bargains.  It was the client's call whether to accept a nominal plea vs. roll the dice on a verdict.  As is so often the case, the client elected for the safe bet.  Can and should the client ultimately prevail at trial-sure?  Could he be convicted on the very same evidence (a he said, he said case)-sure.  This is always a tough call and I respect the client's decision (and its always their decision)either way. 

The system is imperfect and it sounds like Ms. Amero finally got ground down and just wanted to put the mess behind her.  Based on my 3d hand reading of the evidence I don't think she should be convicted despite the fact that she was convicted during the first trial.  Would the second trial have carried the day?  Who knows.  Its the best court system in the world and still grossly imperfect and always will be.

New to the Sex Crime Blogosphere

I welcome Sex Offender Issues to the sex crime blogosphere.  I had not noticed this site before for some reason but they have great and serious content.

The Legislature totters toward "Improvement"

There are some legislators who understand the need for changing the SORNA system but I fear the politics of being "soft" on sex offenders will sink any efforts at meaningful reform.

From the Kennebec Journal:

The Committee on Criminal Justice & Public Safety met Monday at the Department of Public Safety offices in Augusta for a briefing on Sex Offender Registration and Notification Act.

In the second of three informational meetings, the panel heard from Bumby as well as from officials in four other states where policymakers have grappled with similar issues.

"We either reinvent the wheel or take a day and bring in the experts," Sen. Bill Diamond, D-Windham, said. "This should enhance the effectiveness of what we're trying to do."

Diamond, Senate chairman of the committee, said the committee is dealing with three issues:

* legal challenges of Maine's retroactive registration requirement filed by sex offenders;

* the federal Adam Walsh Act, which is aimed at expanding the national sex offender registry and keeping track of sex offenders no matter which state they live in, while increasing penalties for crimes against children; and

* a tiered system to classify offenders based on offense or risk to reoffend or both.

"We have our hands full," Diamond said.

Canadian Prisoner Exchange

While often more applicable to drug cases, it can be very helpful to have the option for Canadian clients to have the option of going back home on a "prisoner exchange."  Essentially, after serving 1 year in an American jail, a Canadian can apply to be exchanged for an American prisoner (in the Federal System).  Attached is the Canadian Embassy's publication on the prisoner exchange program.  Another key aspect of the program is that the U.S. Attorney has to agree-so it helps to have been on their good side before sentencing. 

Download canadian_prisoner_program.pdf

How To Lose a Rape Trial

In August 2008 we finally came to the state charges for rape, assault and witness tampering.  The same issues of credibility were in play and the case was much easier for us as the more concrete evidence that killed us in the federal gun case were not relevant to the rape case.  It was to be a classic he said/she said contest.

At first the case unrolled beautifully.  The victim's lack of credibility was on full display.  The state handed me a bonus early on when they forgot to ID the defendant as the perpetrator which is an essential element that the state has to prove.  Then disaster struck.

My client began making noise about representing himself.  I knew that if I raised the ID issue at the close of the state's case that the judge was likely to allow the State to reopen to prove the case.  I also believed that the judge knew that the ID had not been approved based on some discussion during an ex parte discussion in chambers (done with state approval).  The reason for the ex parte discussion was to discuss my client's increasingly difficult behavior and the possibility of him representing himself.

When we came back in I made a tactical decision that I had to raise the ID issue and do a premature motion to acquit rather than have the client throw it away by confronting witnesses directly himself.  I did so and the judge agreed state was allowed to reopen. I was fired shortly after.  My client began to question our shortest simplest witness and seemed to realize he was over his head and so rehired me.  The ID issue was gone.

We proceeded through the rest of our witnesses and we were still doing well on the merits.  The client made a last minute decision to represent himself.  As I called his name he swept about 100 pounds of paper from the defense table and threw the table toward the bench.  The client was tackled by four bailiffs and the jury was evacuated.  I moved for a mistrial but the prosecutor was prepared with a copy of the federal judge's order denying my mistrial motion in the Federal gun case when the client had a lesser outburst in front of that jury.  The state judge accepted the order as precedent.

We rested. 

At closing, I argued the credibility issues described in my previous post on the federal gun charges.  Amazingly, the jury was out for over four hours (not the 5 minutes everyone anticipated after the outburst).  Several notes indicated that they were hung on the rape charge although it became apparent that they agreed on the assault charge early on.  Finally they came back guilty on all  counts.

In sum, due to the client's lack of control we threw away a guaranteed win on the ID issue, a probable win on the merits and any hope of a lenient sentence (yet to be determined).