Recently in Sex offenses Category

The Sex Offender Registration and Notification Act (SORNA) expressly gives the Attorney General authority to specify its applicability to offenders convicted before enactment.  So does the act apply to pre-enactment offenders by its own force, without AG action?  Not surprisingly, the US Supreme Court answered that question no in Reynolds v. United States.  It sent the case back to the Third Circuit to decide if the AG had validly specified such application.

Dominique "Teflon" Strauss-Kahn has escaped another prosecution.  Pierre-Antoine Souchard and Angela Charlton have this story for AP.

This incident in question 8 years ago, as described by Tristane Banon, was attempted rape.  The statute of limitations is 10 years.  "The Paris prosecutor's office said -- without offering details -- that Strauss-Kahn admitted during questioning to actions that qualify for the lesser charge of sexual assault." But that charge has a 3 year statute, which has run.

So they can't charge him with any more than he admitted to, no matter what the victim says?  Apparently they are not going to.

The consolation, I suppose, is that admitting to sexual assault means his political career is over, even in France.

Update:  Now DSK's lawyers deny even the lesser sexual assault.  AP story here.

From time to time, I have offered gentle reminders to our friends in the defense bar about what I view as missteps in defense work.  But this time, they've gone too far.

Yes, I know they have a half-way plausible argument to make  --  indeed, more plausible than a lot of stuff you hear from criminal defense  --  but this case reminded me once more why I was happy to take a scruffy salary as a prosecutor instead of going for the big bucks trying to make somebody's "dream team." 

Charles Stimson and Maya Noronha of Heritage Foundation have this paper regarding compliance with the Sex Offender Registration and Notification Act (SORNA). 

There is a lot of misinformation in the public domain regarding SORNA and its "requirements."[21] Some jurisdictions oppose implementation based on a false understanding of what SORNA contains or requires. Opponents of SORNA and the Adam Walsh Act have perpetuated these myths in order to delay or frustrate implementation.

Ryanne Colbert has this article in the Journal of Criminal Psychology titled "Discrimination Needed: The Over-Inclusive Definition of Who is a Sex Offender."  Here is the abstract:

Sex offenders and the laws concerning them represent a highly controversial and emotionally charged issue. Current efforts of legislation in the United States to manage the increasing number of sex offenders being arrested and eventually released back into communities are inadequate to manage such a large population of offenders, and the effects of registration and notification laws are more detrimental than beneficial to the communities they intend to protect. This paper discusses the notion that a significant cause of the problem relates to the overly broad standards that are used to define who is to be charged as a sex offender. The term "sex offender" needs to be reserved for those individuals who best represent the meaning of the term, and the resources available for this issue should be directed towards the effective management of those offenders instead of being spread so thin amongst so many offenders who do not pose a serious threat to society that none of them are sufficiently supervised after release from incarceration. Furthermore, laws and Federal guidelines regarding sex offender legislation needs to be based on empirical research findings instead of uniformed public pressure.

Sometimes it's argued that sexual predator civil commitment proceedings are too broad because they often don't include any assessment of physical limitations of the offender.  An offender may become physically disabled, yet none of the current risk assessment instruments take this factor into account.  A recent case out of Minnesota demonstrates why even physical disability doesn't mean no risk.

The unpublished decision In the Matter of the Civil Commitment of: James Adam Roth, 2011 WL 3241892 (2011) provides the backdrop. James Roth was confined to a wheelchair since the age of three.  Yet as an adult he managed to sexually assault at least four victims.  After eight years in prison, the state moved to have him civilly committed under the state's sexual psychopath statute.  Roth claimed that the district court erred by finding him "highly likely" to engage in harmful sexual conduct of released because he is "physically incapable of physically forcing anyone to do anything"  and because his prior sex crimes relied upon the assistance of others.

The appellate court disagreed:

Appellant's argument is not supported by the record. Neither the experts nor the district court concluded that he is highly likely to engage in acts of harmful sexual conduct based upon other people's conduct. Rather, Dr. Gilbertson testified that appellant has historically shown an ability to manipulate other people to help him commit his sexual crimes. Further, Dr. Henning testified that appellant's physical disability does not lower his risk of reoffense. The Project Pathfinder evaluator who interviewed appellant wrote in his report that,

although appellant's  extreme physical disability limits his mobility and his capacity to engage in any harmful acts ... he has historically demonstrated an ability and willingness to manipulate or use others to commit sexual abuse and numerous other criminal acts. So his disability is clearly not a protective factor, nor does it appear to mitigate the risk of any type of criminal recidivism. 

The district court also found that appellant "did not play a passive role in these sexual assaults." The experts agreed that, in light of appellant's ability to manipulate others to assist in the commission of his crimes, his disability does not minimize his dangerousness to the population or the risk of further offenses. Appellant himself admits in his brief to this court that "[a]ll of the experts agreed Appellant's ability to manipulate people is what makes him dangerous," conceding the role of his own agency in his harmful sexual conduct. After interviewing and testing appellant and considering his history, the experts concluded that appellant is highly likely to reoffend. Their conclusions were not based upon the imputation of anyone else's crimes to appellant. Thus, the record contains clear and convincing evidence that appellant is highly likely to reoffend.

Cynthia Hubert and Sam Stanton have this article in the Sacramento Bee about interviewing the children in a case where a private elementary school principal is accused of molestation.  The infamous McMartin Preschool case of the 1980s remains the exemplar of how not to do it.

Joseph Ax and Jennifer Golson have this article for Reuters on possible defense strategies in the DSK case.  Trashing the victim is high on the list, despite the shield law.  Then, there are two suggestions from academics:

At the same time, the defense could try to emphasize Strauss-Kahn's own character, arguing he was not the sort to commit sexual assault, said Todd Berger, who teaches criminal law at Rutgers University School of Law at Camden.

Or his lawyers could point to Strauss-Kahn's troubled history with women -- among other reports, a French journalist accused him of trying to force himself upon her in 2002, and his affairs have long been considered an open secret in France -- as evidence that he suffers from mental illness, said James Cohen, a professor at Fordham University School of Law.

I would suggest he not try both of those tactics before the same jury.  Actually, either one would bring in evidence of DSK's "troubled history," a history I noted here might not be admissible in the prosecution's case in chief.  The second tactic would require the defense to bring the evidence in itself; the first would open the door to that evidence in rebuttal.

The US Supreme Court decided a crime-related civil procedure case involving qualified immunity in Ortiz v. Jordan, No. 09-737.  Lawyers for officers need to appeal denial of summary judgment before trial, not after.  After trial, they need to ask for judgment as a matter of law under FRCP 50(b) to take that issue up on appeal.  Opinion by Justice Ginsburg 6-3-0.  Justices Thomas, Scalia, and Kennedy do not think the Rule 50 question is properly presented.

The Court granted certiorari in two criminal cases:

The Michigan SG continues on a roll with Howes v. Fields, No. 10-680 addressing Miranda questions left hanging in Maryland v. Shatzer last term.  When a prisoner is in prison or jail for an unrelated offense, under what circumstances is he in "custody" for Miranda purposes when he is brought out from the general population and questioned by police officers?  When Miranda was still new, Mathis v. United States, 391 U.S. 1 (1968), a characteristically terse Hugo Black opinion, arguably decided that custody is custody.  Justice White thought that was a "cavalier" conclusion.  Subsequent decisions, including Shatzer, cast some doubt on Mathis, but the Sixth Circuit in Fields thought the state court opinion was an unreasonable application of it.

Reynolds v. United States, No. 10-6549, is a challenge to the Sex Offender Registration and Notification Act (SORNA), including a federalism challenge that Congress exceeded the bounds of its enumerated powers.  Third Circuit opinion rejecting the challenge is here.

For those of you who occasionally tune in to Sentencing Law & Policy, and in particular to some of the commenters on that site, it will come as no surprise to learn that prosecutors are fascist thugs who manufacture evidence to put innocent people behind bars, usually for the purpose of torturing them.  The torture is undertaken, inter alia, by such sinister means as refusing to replace their 18" TV's with 24" TV's.  Amerika has no shame!

Still, Elizabeth Smart, fresh from testifying at the trial of the fellow who abducted her at knifepoint at age 14 and then raped her for the next nine months, seems to have a different outlook.  According to her father, she was so inspired by the prosecutor's work in her case that now, at age 23, she wants to go to law school to become..........

A prosecutor.

Today Show interview is here.

To all our readers who pursue this honorable if not particularly well paid profession, a special hat-tip today. 

Jennifer Dobner reports for AP:

Elizabeth Smart waited more than eight years for the word she heard Friday.

"Guilty," the court clerk said, after a federal jury deliberated five hours to convict street preacher Brian David Mitchell of snatching Smart from her bed, at knifepoint in the dead of night, and forcing sex on her while he held her captive for nine months.

Smart smiled as the verdict was read, while a bedraggled, bearded Mitchell sat at the defense table, singing hymns with his hands before his chest, as if in prayer.

"I hope that not only is this an example that justice can be served in America, but that it is possible to move on after something terrible has happened," Smart said, after she walked arm-in-arm with her mother through a crush of media.

*                               *                              *

Jurors did not buy the insanity defense, finding him guilty of kidnapping and unlawful transportation of a minor across state lines for the purposes of illegal sex. The sex charge was based on Mitchell taking her for five of the nine months to California.

Mitchell could face up to life in prison when he is sentenced on May 25.

Don Thompson reports for AP that a forthcoming report from the California Department of Corrections and Rehabilitation will recommend repeal of the 2000-foot residency restriction in the 2006 initiative known as Jessica's Law.  Registered sex offenders are not allowed to live within 2000 feet of a school or park.  There is no link to the actual report in any of versions of this story I was able to find online, so we will probably have to wait for the official release next week to find out what it actually says.

A 2000 foot radius circle is a 3/4 mile diameter circle.  Plot one of those over every school and park on the map of a densely populated city, and you will find you have nearly covered the map.  Exiling sex offenders from the urban centers to the countryside is not a good idea, especially for those who live in the countryside.  Nor is making them give up regular residences and join the homeless population.

CJLF warned in its pre-election analysis of Jessica's Law that this provision might be struck down, and that has happened preliminarily at the trial court level.  See Nov. 4 News Scan and linked story.  However, we must take or leave initiatives as a package, and this ill-considered provision was necessary to enact the remainder of this important law.

This would not be necessary if the California Legislature would represent the views of the people on criminal law.  It does not, though.  The Legislature is firmly in the control of the Democratic Party, the California Democratic Party is firmly in the control of the thug-hugger left, and the public safety committees of both houses are stacked with anti-law-enforcement majorities.  Bills that would pass by a landslide if the people could vote on them and would probably pass the Legislature if they got to the floor are routinely killed in committee.  So we must resort to the initiative, with all its faults, again and again.

Democracy, it is said, is the worst form of government except for all the others.  In California, we take that a step further.  Direct democracy is the worst form of democracy except for the other one.

Can a defendant be convicted of attempted rape of a child where the alleged victim is actually a fictitious character created by police?  The Washington Supreme Court today answered affirmatively in State v. Patel: 

Patel intended to have sex with a 13-year-old girl. . . [I]t does not matter that that he could not have completed the act.

[The defendant's] argument is similar to that of a thief who tries to pick an empty pocket and argues that he cannot be convicted of theft because he could not have completed the crime.

The AP has this story.

Here is another case from the Cases You Have to Look Up Just for the Name file. (The file is getting thick.)

I'm not a big fan of including the defendant's alias in the official case name. Nonetheless, both prosecutors and defense lawyers do it. Case 10-7012 in the United States Supreme Court (a defendant's certiorari petition) is titled Stephen M. Levy, aka Reallybad@aol.com, aka Steve Levy v. United States.

So how bad is Reallybad?

The Ninth Circuit today decided in United States v. George, No. 08-30339:

The registration requirement under SORNA [the Sex Offender Registration and Notification Act] required [George] to register as a sex offender in the State of Washington, even though Washington had not implemented the statute. SORNA's registration requirements are a valid exercise of congressional power, and do not violate the ex post facto clause of the Constitution.