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An Orlando federal judge has ordered the release of two jailed, out-of-state sex offenders who moved to Florida, ruling that part of the Adam Walsh Act requiring their registration is unconstitutional.
U.S. District Judge Gregory Presnell on Friday ruled that the 2006 federal law requiring state sex offenders to register with law enforcement officials when they move across state lines was largely a local issue.
The ruling, made in two unrelated sex-offender cases pending in Orlando, led to the dismissal of charges against Robert D. Powers, 43, and Tommy William Buckius, 60, both of Orlando. Powers was released Friday from the Seminole County Jail, but Buckius remained in the Orange County Jail.
Powers was convicted in 1995 in South Carolina of sexual assault, freed in 1997 and later arrested for failing to register as a state sex offender. In 2002, he registered in North Carolina, but absconded in 2005 and did not register with Florida authorities when he repeatedly visited Orlando in the late 1990s and lived with his mother in 2007.
Buckius, who pleaded guilty to the attempted rape of a 13-year-old Ohio girl in 1986, was freed from prison there in 2000 and later registered as a sex offender. He previously was convicted of assault with intent to commit rape in Texas in 1973, court records show. But in November 2006, Buckius moved from Liverpool, Ohio, and did not notify local authorities of his new address. He was documented living in Orlando as early as March 2007 and arrested in February 2008.
Assistant Federal Public Defenders Michelle Smith and Stephen Langs argued that Congress lacked the authority to force state sex offenders solely convicted of local offenses to register. Powers had an IQ of 68, a second-grade reading level and did not understand state sex-offender forms he had signed, Smith argued.
They also contended both men were convicted of crimes before the new law was passed and should not be subjected to them. But federal prosecutors argued that an Attorney General's rule applied to sex offenders before the new took effect in 2007.
Known as the Sex Offender Registration and Notification Act, it was passed in honor of Adam Walsh, a South Florida boy murdered in 1981. It was designed to help identify up to 200,000 unaccounted sex offenders nationwide.
Failing to register carries a prison term of up to 10 years. The law requires states to notify all sex offenders in or out of prison about the federal provision, but Florida has yet to comply with the new federal rules deadline of July 2009.
"The Adam Walsh Act was enacted with a commendable goal — to protect the public from sex offenders," Presnell wrote. "However, a worthy cause is not enough to transform a state concern (sex offender registration) into a federal crime."
Ironically, three other Central Florida federal judges have upheld the law's constitutionality in other cases, though one last year said he wished he could have dropped the case the next day if the suspect had registered. He sentenced the suspect to probation.
Presnell's problem with the federal law centered on the "mere unrelated travel in interstate commerce" to link it with local, criminal conduct. Such reasoning would subject virtually all criminal activity to federal scrutiny, he wrote.
"Surely, our founding fathers did not contemplate such a broad view of federalism," Presnell wrote.
Roger Handberg, head of the U.S. Attorney's Office in Orlando, said his office was reviewing the ruling and had not yet decided whether they will appeal.
Jim Leusner can be reached at 407-420-5411 or email@example.com.
Friday, April 18, 2008
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Video available at the site. More harassment from apparently using the registry to locate the sex offenders. The reporter says there is no law against how many offenders can live somewhere, as long as it's beyond 2000 feet, which this is. So it's a WITCH HUNT to get them to move. They are obeying the law. California registry states the following, which they have done:
Legal and Illegal Uses. The information on this web site is made available solely to protect the public. Anyone who uses this information to commit a crime or to harass an offender or his or her family is subject to criminal prosecution and civil liability.
By JAMES BURGER, Californian staff writer (firstname.lastname@example.org)
Kern County supervisors have taken up the fight against several Union Avenue hotels which house registered sex offenders near Casa Loma Park.
On Tuesday, county attorney Bernard Barmann will give supervisors the legal boundaries within which they can fight that fight.
He will also deliver a proposed ordinance that would take a broad view of what a school or “child-sensitive” use is. Sex offenders would be prohibited from being on, or within 300 feet of, any child-sensitive use.
Violating that boundary would be a misdemeanor and be punishable by a six month jail term or a $1,000 fine — or both.
Supervisors directed Barmann, in March, to draft language that would expand the local provisions of Jessica’s Law — piece of legislation that prevents registered sex offenders from living within 2,000 feet of schools and parks.
Barmann’s report to the board, a summary of which was published Thursday, outlines three options the board can choose to follow in addressing the concerns about the location of the sex offenders.
- The board could enact the proposed ordinance — but it would apply only to sex offenders convicted after the ordinance is passed. It is not legal for the county to create an ordinance which creates additional limitations on where current sex offenders can live, Barmann states in his memo.
- The board could wait to act until after the California Supreme Court rules on legal challenges to Jessica’s Law.
- In either of the above cases, the board could contact the office of Gov. Arnold Schwarzenegger and asking him to direct the California Department of Corrections and Rehabilitation to relocate the registered sex offenders on Union Avenue to “less populated and child-sensitive areas.”
Supervisor Michael Rubio, who represents the area in question, said he will be “spearheading the more aggressive approach.”
“I don’t want to sit back and wait for the courts,” Rubio said. “The reason I want to move quickly is because we’ve got dangerous people living to where children congregate.”
Rubio also said he would push for incorporated cities to also adopt the county’s tougher proposed ordinance.
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As an 8-year-old girl lay bleeding from a rape so brutal she would need emergency surgery, her stepfather called his boss to say he wouldn't be at work. He also asked how to remove blood stains from a white rug.
After that, by 7:40 a.m., he called a carpet cleaning company to set up an urgent appointment for bloodstain removal. Chemicals found later indicated he tried to clean the carpet himself.
Eventually, at 9:18 a.m., Patrick Kennedy called 911 to say that his stepdaughter had just been raped.
Kennedy, who lived outside of New Orleans, claimed neighborhood boys did it, and the girl backed him up. But the evidence pointed not to them but to him, and later she told her mother, and much later police, that when she had awakened to that terrible morning, her stepfather was atop her.
It takes no more than a cold reading of the facts for the viscera to want death for the man who did this, so horrific was the physical and, no doubt, psychic damage he inflicted.
As emotionally satisfying as that might be, allowing the death penalty for rape, even child rape, is wrong, if what you want is to help the victim.
Convicted and sentenced to die, Kennedy is asking the U.S. Supreme Court to declare Louisiana's 1995 law allowing execution for child rapists unconstitutional.
But just because the high court is limited to the issue of constitutionality doesn't mean columnists are.
So, before we get to constitutionality, consider an argument filed by advocates for the sexually abused who take a position that may surprise you.
Social workers who counsel raped children and nonprofit groups devoted to combating sexual assault say states do victims more harm than good when they allow capital punishment for child rape.
For one thing, the law encourages the rapist to kill the victim, as he would have little to lose and might get away with the crime by killing the only witness to it.
So argues a friend-of-the-court brief filed by the National Association of Social Workers, the National Alliance to End Sexual Violence and related organizations.
"What's the incentive to keep the victim alive?'' asks Judy Benitez, executive director of the Louisiana Foundation Against Sexual Assault.
If the victim survives, reports the crime and the accused goes to trial, "Louisiana's law would greatly magnify the trauma that child victims already experience while participating in the criminal justice process,'' the social workers say in their brief.
Years of Appeals
A death penalty case brings more publicity, more pretrial hearings, more post-trial hearings and years and years of appeals, thus requiring the child to relive the trauma time and again and delaying healing.
Nor is healing helped along by the guilt that can come with putting your father, your stepfather, your mama's boyfriend, your teacher or your minister on death row.
But the biggest concern is that a law like this makes the already serious problem of underreporting even worse.
"Victims are inhibited from coming forward out of shame, guilt, fear of being punished and fear that the abuser will retaliate against the victim or other family members,'' the brief says. Underreporting is most common when the abuser is a relative, family friend or otherwise close to the victim, as is the case in 70 percent of child sexual abuse cases.
So anywhere from 67 percent to 90 percent of child sexual abuse goes unreported, according to multiple studies over the past decade, as cited by the brief.
"Often the victim has ambivalent feelings toward the offender,'' Benitez says. "They want the sexual abuse to stop, but very often they don't want the offender to go to jail, much less get the death penalty.''
And when no one reports what happened, the molester goes on molesting.
"That's no justice for anybody,'' Benitez says.
This case presents one of those counterintuitive situations where tough-on-crime legislation backfires.
You might find another example if you ask your district attorney about mandatory minimum sentences. In Georgia, prosecutors in the mid-1990s were finding ways around a new law requiring 10-year minimum prison terms for seven specific crimes. Then-Governor Zell Miller lambasted them -- and judges, too --for skirting the law he promoted.
Likewise, when Californians voted in 2006 on "Jessica's Law,'' forbidding registered sex offenders from living within 2000 feet of a school or park, opposition came from an unlikely foe, the Child Molestation Research and Prevention Institute.
"Jessica's Law sounds good and is well-intentioned,'' the group says, but it is "severely misguided'' and "will likely decrease safety for children.''
That is because sex offenders are less likely to re-offend when they have stable lives and can reside in an area sufficiently populated to have treatment available. Residency requirements interfere with that.
As for child rape, at this week's Supreme Court arguments, justices who focused on other matters cut Kennedy's lawyer off when he twice tried to mention the social workers' viewpoint.
The main question for the court is whether it is cruel and unusual and therefore unconstitutional to impose a death penalty for a crime in which no one died. Is the sentence proportional to the crime?
I think not. What is more, allowing rape to be punished by death invites a throwback to the racist sentencing of decades past that made black men far more likely to be executed for rape than whites. It also flies in the face of irrefutable evidence that juries sometimes send innocent people to death row.
All that aside, if the Supreme Court says such laws can stand, then those who counsel young victims of rape, those who try to detect the crime and catch the rapists, will have an even tougher job on their hands.
(Ann Woolner is a Bloomberg news columnist. The opinions expressed are her own.)
To contact the writer of this column: Ann Woolner in Atlanta at email@example.com.
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Was the opinion issued Friday by the Iowa Supreme Court an expansion or a clarification of the state's existing residency requirements for sex offenders? At the end of the day, according to some members of law enforcement, it doesn't matter one way or another.
"The law does little to protect children and young adults," said a veteran Iowa Sex Crimes Task Force leader who requested a name not be used. "It was a 'warm fuzzy' law that made lawmakers look good, and let parents breathe easier. All it really does is provide a false sense of security. It's a farce that's difficult to enforce and probably has the end result of making the general public less safe."
On Friday the Iowa Supreme Court rejected a challenge to the state's residency law for sex offenders that requires those convicted of crimes with a minor to live at least 2,000 feet away from a school or child care facility. The case involved Polk County resident Floyd Wright, who was convicted of statutory rape in 1977. Wright served his sentence but never had to be listed on the state's sex offender registry because his offense took place nearly 20 years before the registry existed.
When the building Wright lived in was sold, he was forced to move to a new location. Since he was on probation for driving while barred, Wright informed his probation officer of the address change. It was the probation officer who informed Wright that the 1977 offense would prohibit him from moving to the new location, which was within the 2,000 foot buffer.
Wright filed suit in district court on the grounds that the residency restriction did not apply to him because he was never required to be on the Iowa Sex Offender Registry. He also argued that the residency requirement violated his constitutional right to find adequate and reasonable housing.
The district court ruled that the vague law included all who had ever been convicted of sex crimes with a minor. The Iowa Supreme Court upheld the district court ruling on appeal and added that Wright's constitutional claims were moot, given that he could live in areas not covered by the residency restrictions and continue to engage in many community events and activities.
"In my experience the sex offender residency restrictions have had the opposite of the intended affect," the officer said. "Our best defense against individuals with a higher re-offense risk assessment is to know where they are within the community. Because the residency requirement often severely limits available housing, many sex offenders -- even some required by law to be on the registry -- are choosing not to report their current location."
Because the law was written to include all sex offenders, even those who were convicted several years ago or those who have been dropped from the registry, the officer said that landlords and law enforcement are left with few tools to enforce the residency restriction.
"Anyone can view the Iowa Sex Offender Registry, and I know many landlords within the required buffer zones do check for potential renters on it," the officer said. "How does a landlord or a parent check if the offender isn't required to register? When we do find offenders living in restricted areas, it is often a result of a secondary offense -- drug possession, disorderly house."
When asked who could be held liable if someone convicted of a sex crime against a minor moved into a restricted area and then committed another offense against a minor, the officer couldn't provide an answer.
"I don't know," the officer said. "The perp, of course, would bear the criminal burden. But, I don't know if there is grounds for a civil suit against the property owner or against local jurisdiction. That's another question for the court."
It was many of these same types of concerns that led Iowa County Attorneys Association Executive Director Corwin Ritchie to issue a statement against sex offender residency restrictions in December 2006. Citing statistics that 80 percent to 90 percent of sex crimes against children are committed by a relative or acquaintance; research showing no correlation between residency restrictions and reduction of sex offenses against children; and observations by law enforcement that residency restrictions cause offenders to become homeless, change residences without notice, register false address or disappear, Ritchie argued that the restriction should be replaced with "more effective measures that do not produce the negative consequences that have attended the current statute."
The more effective measures, according to the ICAA statement, are:
- A statute creating defined protected areas that sex offenders would be prohibited from entering except in limited and safe circumstances. Such areas might include schools and child care facilities. Entrance to these areas would be allowed only for activities involving the offender's own child and only with advance notice and approval.
- The restriction should cover offenses against "children" (under age 14) rather than "minors" (under age 18).
- The statute should specifically preempt local ordinances that attempt to create additional restrictions on sex offenders.
- Any restriction that carries the expectation that it can be effectively enforced must be applied to a more limited group of offenders than is covered by the current residency restriction.
- Sex offender treatment both inside and outside of prison should be fully funded and improved.
- Measures should be enacted that aim at keeping all young people safe from all offenders. This should include programs that focus on the danger of abuse that may lie within the child's family and circle of acquaintances.
- Recognize that child safety from sex offenses is not amendable to simple solutions by creating a Sex Offender Treatment and Supervision Task Force to identify effective strategies to reduce child sex offenses.
"These observations of Iowa prosecutors are not motivated by sympathy for those committing sex offenses against children, but by our concern that the legislative proposals designed to protect children must be both effective and enforceable," Ritchie wrote. "Anything else lets our children down."
Parents who worry about sex offenders harming their children should do at least two things, according to the Sex Crimes Task Force officer: "Parents need to consider that sex offenders don't just sit, looking out their front window, and waiting for a child to walk by. They are members of the community and are perfectly capable of getting in a car or on public transportation and traveling to places throughout the city or neighboring city. Parents also need to understand that people who sexually abuse children don't have 'a look' or 'a way' about them. Most children aren't snatched from a public place. Unfortunately, most sexually abused children suffer the crime at the hands of someone known to them."
While the Supreme Court action clarified which sex offenders are restricted by the current residency requirements, it did not impact those sex offenders who lived within the "safe zones" prior to the law being passed. Those sex offenders, under "grandfathering," can continue to live at their current residences, regardless of proximity to protected facilities.
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By Judy Hodgson
I've been here a week and a half, sitting through jury selection, and I've learned a few new things about our justice system. For instance, I already knew the difference between direct and circumstantial evidence, but I didn't know, as the judge patiently explained at least four or five times, that the two are equally valid. If someone comes into the courthouse dripping wet, stamping his feet and shaking his umbrella, and tells you it's raining, it's reasonable to accept that as fact.
There was another judicial concept potential jurors were having trouble with: You have to be able to look at the defendant and presume him to be innocent until you hear all the evidence, go into the jury room and begin deliberation. Why was this so difficult? Because we were not looking at an alleged burglar or sobered-up drunk driver who recently found Jesus. The guy sitting there is charged with possession of child pornography (illegal) and — infinitely more offensive — molesting two 10-year-old boys who were expected to testify. The judge and both attorneys warned jurors the pornographic videos we would be viewing would be explicit and even disgusting, "But you can't just turn your head and not watch." You have to listen to all the testimony and view the evidence.
There were more than a few — I lost count — potential jurors who said, "But he must have done something or he wouldn't have been arrested." "They didn't just randomly snatch him off the street." "If this were any other type of case, your honor ... I have kids."
The initial pool of more than 200 jurors dwindled at first due to the expected length of the trial, six to eight weeks, and again because of answers we had to provide on the lengthy questionnaire. One question read: Have you or anyone you know ever been involved in a sexual molestation incident?
The number of people answering yes was a little startling. I had become friendly with one woman sitting next to me. We talked over several days of jury selection about her daughter, her husband, her work. When she got in the jury box, with hands folded in her lap, she quietly told the story of a girl, about 5 or 6, who was repeatedly molested by her two older brothers, until one day the boys inexplicably stopped. She said she was that girl. No, she never told her parents. She ended up on the final jury panel, but others who told their stories were excused. There was one man who kept clenching and unclenching his fists as he told about a male predator who had stalked his son, now grown, when his son was 10 and playing Little League. Another had a father, he kept insisting, who had been "falsely" accused of molestation but forced by his own family to plead guilty just to bring an end to the nightmare. Television shows could not compete with the drama in that courtroom those early days in February. This was real and it was gritty.
As we finished the first week, the 12 in the jury box were deemed acceptable to attorneys for both sides. It was a good panel that included some pretty smart people: several teachers (one who spoke six languages), a retired chemistry professor from Humboldt State, a retired journalist who used to edit copy for the Journal a few years back. The 40 or so of us remaining in the leftover jury pool gave a little cheer at the prospect of being dismissed. Then the judge reminded us of the need for four alternates.
Back in court after a holiday weekend, the examination of potential jurors began again. The judge repeatedly asked could you be fair and impartial? Two beefy law enforcement types were excused after they admitted they'd give extra weight to any testimony from their brothers in blue. After an hour or so, it looked like we had three acceptable alternates. Then my name was called. I sat in the chair of Alt Juror No. 4.
Yes I had been a juror before, 30 years ago. Criminal case. On a scale of one to 10 (one being super-terrific), what do I think of the judicial system? I gave it a cynical "four." Why? The system favors the wealthy. Plea bargains. And don't get me started on what damage Bush has done to our legal system. Yes, I'm called almost every year for jury duty but I am always excused because I'm a reporter. Well, not because I'm a reporter, but because I know so many people involved. In this case: some of the cops, the district attorney (but not the deputy trying the case), Judge Watson, the school superintendent who may testify. I've written lots of stories and even opinion over the last 27 years involving molestation cases — the pedophile teacher, the priest who liked young boys he took camping, the foster father/molester of a girl who was eventually murdered but not by him. (Surely you don't want me? I added silently.)
"You know serving as an alternate juror can be pretty frustrating," said the defense attorney, continuing his questioning of me. You have to sit through all the same testimony just like the other jurors, but you don't get to go into the room to deliberate. You don't get to decide the case. You just have to be ready in case someone gets sick or there's an emergency.
"Yes, I know," I heard myself say. But what I was really thinking was I'm a reporter. I can write about it. Not during the trial, of course. I'll keep a daily journal of notes at night. After all, it's an important case on a topic I've covered many times during my career but never from the point of view of a juror.
"Will you all stand and raise your right hand."
Kindly Judge Bruce Watson, with his raspy, permanently damaged vocal cords, made it sound like a job reasonable people could do. Presume defendant innocent. Hear evidence presented in court. Determine facts. Yes, don't worry. It's OK to take into consideration a witness's background, training, motivation, believability — all of the above — in determining whether they are lying or telling the truth. Apply law to the facts and — presto! — render a verdict. Piece of cake.
All that went out the window today. This was day one: opening statements. Opening statements are not evidence, we were reminded. They're just a road map of what the evidence would show. Unfortunately, there was more than one road map.
First up was the slightly rumpled, graying Deputy DA Arnie Klein, a recent transplant from Los Angeles, who kept peering at us over his bifocals. He told us of the victims, "Boys will be boys." We would learn that apparently the two accusers, those young rascals, may have been involved in a series of 911 prank calls that tied the county's emergency system in knots for weeks in early 2007, but they weren't on trial for that. And they were being raised by their grandmother because the mother had some major drug issues and had lost custody of her sons a couple of times, once for sharing her marijuana with them on their eighth birthday. But the mother wasn't on trial either. The defendant, we were told, is the one on trial for a number of alleged crimes, including possession of pornography involving children, and, after a long period of time befriending the boys, repeated molestation.
Road map No. 2 was presented by the defense attorney, Glenn Brown. He told us his client, the defendant, age 23, was an Eagle Scout and assistant leader of his Boy Scout Troop who, yes, befriended many neighborhood boys — and girls — in the trailer park where they all lived, teaching them computer skills, handing out keys to his shed adjacent to the trailer he lived in so they could use his computer to play games when he wasn't around. He was especially close to the two boys, twins. He was a father substitute even, taking them camping, helping with their homework and getting them involved in scouting. Why? Because he, too, had a drug-addled mother, an absent father, and was raised by his grandmother.
Today we learned how easy it is to download highly specialized pornography. (PTHC means pre-teen hard core.) The first witness was a computer expert. His testimony was taken out of order because he's in high demand and has to be elsewhere soon. Today we really got into the nuts and bolts of file-sharing, how you can erase files and even reinstall a computer's operating system in its entirety, but guess what? The files are still there!
And what did the inspector find on some of the six different computers and two extra hard drives seized as evidence in this case? Pornography, including child pornography, all of which had been erased — or so the user may have thought. Oh, and the detective found user accounts for the defendant and the two 10-year-old alleged victims among others.
Watching the boys' mother testify was painful for everyone in the courtroom, not just her. Most of us jurors have children, some of us grandchildren. That two boys should have such a rough start in life — father in prison, mother on drugs, boys in and out of foster care, finally placed with their ill grandmother — would make a stone weep. But that broken woman did tell a compelling story — when she was possibly telling the truth — of her growing suspicion that the boys' relationship with the defendant was too close. Unnatural. She said she and her own mother, the boys' legal guardian, fought a lot, and were often estranged — something about a restraining order barring her from the trailer park. But for months prior to the defendant's arrest, the mother kept trying to tell the grandmother she was worried about this overly friendly neighbor, one who was so close to the grandmother and the boys he had daily contact and often walked into their home without knocking. The boys' mother had a nasty nickname for him. She called him that "pedophile fairy backup caller" because he was so willing to watch the boys for the grandmother when she had a doctor's appointment or wasn't feeling well.
We wrapped up the day with a CHP guy, the one who was heading a team investigating a rash of 911 prank calls. The team had descended upon a local school April 5, 2007, to interview the twins, who were suspects. But as soon as the lieutenant heard words about a possible molestation from one of the boys, he pulled the plug on the 911 investigation and called in the sheriff.
I heard a story on NPR recently reporting about the growing percentage of children today in the United States who are being raised by their grandparents. Today one of those grandmothers took the stand on the second floor of the county courthouse. She had been given custody of the boys in 2005. It had been a rough couple of years prior. Both her husband and her own mother, who were very close to the boys, died just a few months apart and she had been depressed. She had chronic health problems, diabetes and bad knees. That year she also suffered a toxic infection that caused her kidneys to nearly shut down. The boys were a handful, yes, and she was eternally grateful for this friendly neighbor, the defendant Matthew Christopher Davis, who would pick up the boys from school sometimes. He took them to scout meetings. He fixed her computer. He even helped the boys with math.
"I used to know how to multiply fractions, but I forgot. It's just gone," she said almost in tears. (Several jurors nodded sympathetically.)
Her relationship with her own daughter, the boys' mother, was terrible — drugs. And there were periods of time the daughter was banned from the home. But not the night of April 4, 2007. That was the night when John Doe No. 2, one of the twins, went to scouts with Davis while his brother stayed behind. The mother testified earlier, and the grandmother confirmed, that the boys' behavior had grown progressively worse since the previous summer. John Doe No. 2 had frequent and serious headaches that doctors could not diagnose nor treat. The twins were fighting more and more. It was that night of April 4, 2007, in his brother's absence, that John Doe No. 1 told his mother his story for the first time. The mother told the grandmother and together they agreed to wait until the boys' regularly scheduled counseling session after school the next day to report their fears of molestation to someone who could do something about it.
Detective Troy Garey, lead investigator, told the court about events leading up to the arrest of the defendant about 6 the next evening, April 5. A team of investigators, closing in on possibly some the 911 pranksters, went to the boys' school in the early afternoon. The grandmother arrived to pick the boys up for counseling but when she encountered the police, she decided it was as good a time as any. She turned to grandson No. 1 and told him to tell the officer what he had told his mom the night before. And he did.
An undercover cop was the next witness, leading us through two painful days of evidence seized at the defendant's home. First was a music CD hand-labeled "(John Doe No. 2) and Matt's Music to Get Horny By." We not only had to listen to the entire CD of explicit rap songs, we were each provided with a printout of lyrics so we could read along. The prosecutor was clearly torturing us.
Things got decidedly worse.
In his second day of testimony, Mr. Undercover guy, who I may have seen pushing a rusty shopping cart a time or two in Old Town, played downloaded pornographic clips off one of the defendant's homemade DVDs. I can describe what we saw that day since trials are open to the public and anyone could have wandered in. But I can't yet express an opinion since we'd been admonished not to form any before deliberation begins. What we saw was sex — oral sex, anal sex and lots of boys. And then there was one five-minute video clip of a girl, 8 or 9 years old, with an older man and an older woman. They molested the girl under bright lights while the camera rolled.
A friend of mine said he recently sat on a molestation jury. The alleged victim was 5 years old. When she took the stand, she fell apart, unable to testify, ending the trial.
John Doe No. 1 is now 11. It's been almost a year since the last incident allegedly took place. I had seen him in the hall, kind of playful and goofy, but that day on the stand he was solemn, nervously glancing around, sweaty, occasionally dropping his head. He told about getting taken away from his mother, coming to live with his grandmother, and meeting Matt at the trailer park when he was 9 or 10. He told us about camping with his twin brother and Matt, going to scouts with Matt, learning how to tie knots with Matt, placing prank pizza calls with Matt (order a pizza for your neighbor unawares then laugh when the guy tries to deliver and collect). He told us about spending time in the computer shed adjacent to Matt's house almost daily, staying overnight sometimes, playing video games, listening to music, learning how to make prank 911 calls with Matt, watching pornography with Matt, masturbating with Matt and worse. (Davis was charged with sodomy.)
On cross examination, No. 1 admitted to lying previously but he said he was now telling the truth. He said he was scared of getting in trouble so he lied about any knowledge of the 911 calls (yes, he made some), about when he denied he, too, had been molested (he had), and basically, he was easily confused about facts, dates, details, leading to ... contradictions. Make no mistake, the job of the defense attorney during cross exam is to stroll around the courtroom, reach into his pocket every once in a while and sprinkle seeds of doubt. He was very good at it, especially when his witness is an 11-year-old sometimes-liar.
The twins are not identical. No. 1 is big for his age, taller and heavier than his brother, slow in his answers. (His grandmother called him a "sweet, gentle" boy.) He can barely read. No. 2 appears to be like a younger brother, yet smarter, quicker and crisp and direct with his answers. The district attorney began slowly, asking him what happens when you lie. "You get in trouble." What happens when you tell the truth? "You don't get in trouble but someone else gets in trouble." He couldn't stop himself from glancing nervously at the defendant.
No. 2 loved Matt, he told the court. Matt loved him. Matt was his best friend.
Then No. 2 testified about what happened when Davis took him and his brother camping at Swimmer's Delight late in the summer of 2006. He said that he and Davis had a sexual encounter after his brother went to sleep. He went on to describe later encounters in the shed, where he said they played video games, watched pornography and listened to rap music.
The prosecutor asked him about the pornographic movies they watched in the shed. He said that they watched them several times a week. One movie, he said, was about a little girl and her parents.
To me, they were actors in that video, but to No. 2, they were a real family. I had mentally prepared myself to sit through the sordidness of this trial. Today was tough.
Cross exam of No. 2 continued from the previous Friday. Attorney Brown sprinkled more seeds, but to me, it was like peeling an onion with more and more translucency emerging from the witness. Apparently the twins had been formally questioned at least a half a dozen times by someone of authority over a period of 12 months since that day all hell broke lose and Matthew Davis was arrested. Two videotaped CAST interviews (the multi-agency Children's Assault Task Force) occurred that first week. They were interviewed six months later by the District Attorney's office as the case proceeded toward trial, and several times more as the trial approached.
During jury instructions, the judge said we may believe all of the testimony of a witness, some of it, or even none of it. I choose some. No. 2's answers were linear in a way, revealing more in each interview, things he didn't want to tell about his best friend, secrets he said Davis had told him never to tell.
Finally No. 2 was excused. Next on the stand was a trailer park neighbor who added an odd piece of corroborating evidence. The neighbor took his wife-to-be and her three daughters camping at Swimmer's Delight in the summer of 2006. When Davis and the twins unexpectedly showed up he offered to share his prime campsite with them near the water but Davis declined, choosing a more private location. That was the night, according to No. 2, he had his first sexual encounter with Davis in the tent.
All was not seriousness in and out of the courtroom. One morning the jurors were chatting loudly and laughing as the judge gaveled the session to order. "I see the Stockholm Syndrome has set in," he observed wryly. True enough. Many of us had made friends over the weeks we spent together. On one coffee break we agreed to get together after the verdict for a beer to celebrate the end of this god-awful trial.
As the people's case continued, we heard from a handwriting expert that yes, Davis was the one who labeled DVD discs "male porn" and the CD titled "Music to get Horny By," burned about a month prior to his arrest. An evidence technician testified where certain items were found (the multiple cell phones, some used to call 911, in Davis's couch where he slept). A nurse practitioner instructed us on the Tanner Scale of sexual maturity, how one could tell the approximate ages of the children on the pornographic videos as well as the sexual maturity of the accusers who had testified. She also examined both boys after the defendant's arrest, finding a bruise and some swelling on the rectum of No. 2.
Another witness, one for the defense, was taken out of order. She was a 911 dispatcher in Eureka during the time of a high volume of 911 prank calls. Then we listened to Julia (not her real name), a neighbor girl who testified that John Doe No. 2 made 911 calls in Davis' presence while Davis laughed.
March 7, 10-11
We actually heard from the defendant. He didn't exactly take the stand, but he had voluntarily given two lengthy statements, which the prosecutor was happy to play for us, that resulted in hours of video and hundreds of pages of transcript. The first interview was the night of his arrest. He was nervous but not unconfident, and he outright fibbed about several things. (Q. What kind of pornography is on those DVDs? Girls, boys? A: "Oh, girls!" Q: Any knowledge of 911 calls? A: "No!") He fully expected to get out of jail that night once he explained everything and his friend, an older scout leader, posted bail. Whatever the two boys were saying, well, it was his word against theirs but he wouldn't call them liars since they were his friends. He said their mother was putting them up to making false accusations because she was jealous of his relationship with the boys and basically, she hated him.
It was a very different Matt Davis on video the following Monday after spending four days in jail. He was tired, scared and the confidence gone. He said other inmates were ridiculing him for cooperating with the investigation. About that pornographic magazine found in the shed? He blamed one of the boys for bringing it over and leaving it, just like he tried to plant some drugs in the shed once in a baggie. His mother told him to do it to get Davis in trouble.
Two parts of that second interview stayed with me. One was the defendant's account of how child pornography relates to the scout oath, at least in his mind — why pornography might be ... healthy. ("It seems like 'mentally awake' could be somewhere in there, or perhaps pornography in general ... mentally awake, morally strong. It seems like that's the closest thing to scouting that I could tie something like that into.") The second was his intentions toward the boys. He wanted to guide them and seemed locked in a battle with the mother for their affection, especially John Doe No. 2. "As time went on I became attached to these kids ... and they became attached to me. They would say, uh, I love you, Matt." He said the struggle with the mom over the boys grew and worsened "over the last three months ... and I lost."
The defense attorney was up to bat. He recalled several investigators to re-grill them about inconsistencies in the boys' stories from one interview to the next. He also landed a few punches of his own: The prosecution had claimed victim No. 2 suffered from severe headaches that coincided with the onset of the alleged molestation, the summer of 2006. The only relief for his pain was hot showers, which he took several times a day. The headaches and the frequent showers apparently disappeared after the defendant's arrest, according to the boy, his mother and grandmother. But medical records show that the headaches actually began in 2005. In addition, even though the boys said they saw Davis masturbate frequently in the shed and "clean up" with a towel and tissues, no forensic evidence of sperm was found. (I thought this point irrelevant anyway because the defendant himself on videotape admitted he regularly masturbated in the shed.)
There was also a parade of character witnesses: Three fellow scouts saying they never saw inappropriate behavior and Davis was a good guy. Two father-figure scout leaders who guided Davis from the rank of Cub through Eagle Scout to assistant leader of Troop 27 said his character was exemplary. One of them, Ed O'Meara, said young scouts loved Davis. He was "a pied piper of little kids." (Under cross exam of witnesses by the prosecution, it was revealed that Troop 27 leaders had never had training in child abuse until February of this year, just weeks prior to trial, even though there is a Guide to Safe Scouting, specifically dealing with the prevention of child abuse and a rule that adult leaders are forbidden from sharing a tent with their young charges.)
Davis' grandmother testified on March 16 about the tough life he had in Los Angeles until he moved to Eureka to be raised by her and her late husband. At least three jurors had tears in their eyes as we broke for coffee.
We were almost done. Jury instructions came first. There were 43 pages. My mind began to blur, but then I remembered as an alternate I wasn't going into that room to deliberate unless I was needed.
The prosecutor summed up his case. The defendant had continual access to the victims. He gained their trust, exerted strong parental-like control over them. (In one taped phone call Davis told No. 2, "All I want is your love, buddy.") Then with his "sick sense of perverted love," he began molesting them, a crime that takes place in private. No witnesses. There is no "innocent interpretation" of the mountain of evidence, Klein said. You just have to find "lewd and lascivious conduct" three times over three months "and he's cooked."
The defense attorney begged to differ. Every detail of the boys' testimony "has changed over time," especially No. 1 who couldn't tell a story the same two times in a row. The boys had been exposed to pornography at their grandmother's house, anyway, via cable TV. The physical evidence was thin — he actually said "zero" — and the testimony presented merely gave "impressions" of guilt, not guilt. In other words, reasonable doubt.
I kept my cell phone near in case I was needed. I was informed of the hours the jurors were working: until 2 p.m. this day, noon the next. I was surprised it was taking so long. Three days passed and they broke for the weekend. On Tuesday, March 25, I finally got the call that a verdict was in and I drove to the courthouse.
There in the hallway were my fellow jurors waiting for court to reconvene, looking subdued and avoiding much eye contact with me or with each other. I approached a few of them and handed out my business cards, reminding them I am a reporter and would be writing a story. Most declined to talk. One said, "It was tough. I just hope nobody gets thrown under the bus." In other words, we made a decision together and we should stick together.
Although the headline in the Eureka Reporter the next day read, "Scout Leader Found Guilty," that was only part of the story. He was found guilty of possessing child pornography. He was found guilty of lewd and lascivious conduct, a significantly lesser charge by iteself. He was found not guilty of the greater crime of repeated molestation over a period of three months with someone under the age of 14 (with an age difference of more than 10 years between the perpetrator and the victim).
There was no beer celebration at the end of the trial. The attorneys like to talk with jurors immediately after a case to obtain feedback on how to improve. Only a few jurors could be cornered since most headed to the courthouse exits as quickly as possible. While defense attorney Brown spoke with one juror, I followed Klein into a side room to debrief another who was resigned to the verdict but clearly not happy. The jury started out with three jurors — him included, he told us — who felt the defendant was guilty of the repeated molestation charge, two who wanted to acquit on all charges and everyone else in between. Seeds of doubt grew.
"In the end, I felt half a loaf was better than a hung jury."
Matthew Davis' sentencing hearing is scheduled for April 30. However, on April 9, Glenn Brown, Davis' defense attorney and the chief of the Humboldt County Conflict Council's Office, filed a motion for a new trial. In the motion, Brown alleges that Deputy District Attorney Arnie Klein introduced material at trial that had not previously been disclosed to the defense.
During the trial, Davis' neighbor — the one that had testified about seeing Davis and the victims at Swimmer's Delight — related a story his young daughter had told him about seeing the defendant in the shed, handling a pair of boxer shorts. The neighbor said he believed the shorts belonged to one of the victims. In court documents, this is referred to as "The Boxer Shorts Incident." The neighbor testified that after the incident the did not want his daughter to return to the shed.
In his motion for a new trial, Brown writes that the first time the defense had heard of "The Boxer Shorts Incident" was at trial. Brown contends that bringing up the incident amounted to "prejudicial prosecutorial conduct." If the Judge rules in favor, the case would have to be tried all over again.
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A Winona County jailer cleared of charges he solicited sex from a 15-year-old girl over the Internet was sentenced to probation Thursday for sending sexually explicit photos to the teen.
Nathan Miller Dobbelmann, 26, was sentenced to two years of supervised probation for the gross misdemeanor and was ordered to register as a sex offender. He must also pay a $300 fine and not use computers or the Internet for “inappropriate purposes,” including pornography and dating services.
Attorneys for both the defense and prosecution met in the judge’s chambers before the hearing to mete out details of his sentence.
At specific issue were statements Dobbelmann made to an agent conducting a pre-sentence investigation after his guilty plea on Feb. 8, said Judge Jeff Thompson. During that interview, Dobbelmann maintained he was innocent of any wrong-doing, even after testifying under oath that he was guilty of transmitting obscene material to a child, Thompson said.
According to his testimony, Dobbelmann sent four sexually explicit photos via e-mail in July 2007. Under the screen name, “hottestsingleman,” Dobbelmann came into contact with a girl, who told him she was 15 years old, and asked to get together to have sex, according to the criminal complaint. Dobbelmann told her that was OK as long as she didn’t tell anyone, the complaint states.
His attorney, Rich McCluer, asked Dobbelmann on Thursday to reaffirm his guilt for the judge. During the questioning, it was revealed that the 15-year-old victim had been ambiguous about her age. At different points in their relationship online, she said she was 16, 18 and 19 years old. McCluer argued this led Dobbelmann to have no idea who he was really interacting with.
“It could be a 42-year-old man sitting in his underwear,” McCluer speculated.
Nonetheless, Dobbelmann admitted that no matter who received the sexually explicit photographs and because he didn’t know who it was, it was wrong for him to do it.
Thompson accepted the reaffirmation and read Dobbelmann’s sentence.
Contact Kevin Behr at (507) 453-3524 or firstname.lastname@example.org.
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BOISE -- An Ada County jury has convicted a former Montana mayor of rape.
Eugene Ray Cobell, 72, is the former mayor of Browning, Montana.
Ada County prosecutors say he was charged with one count of forcible rape and one count of forcible penetration with a foreign object of a 20-year-old woman during a visit to a family member's Garden City home in November 2007.
The jury convicted Cobell of both counts after listening to three days of testimony. Deliberations last about four hours.
During the trial, Cobell testified the sexual contact with the woman was consensual.
Judge Mike Wetherell revoked Cobell's bond after the guilty verdicts and ordered him to be placed in the Ada County Jail until his June 5 sentencing hearing.
Cobell faces up to life in prison and $100,000 in fines. He will also have to register as a sex offender for the rest of his life.
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A death-penalty case argued before the U.S. Supreme Court this week marks the latest constitutional challenge to an ongoing, nationwide crackdown on sex criminals.
From California to North Carolina, a flood of litigation has accompanied an expansion in the scope and severity of penalties imposed by local, state and federal lawmakers on those who commit sex crimes.
Penalties for molesters and other sex criminals have toughened considerably in recent years and now include execution in at least five states, chemical castration in eight states and the use of technology to monitor offenders’ every move in more than half the states.
In some instances, punitive measures are limited only by lawmakers’ imaginations. In Louisiana, for example, a proposal being debated this legislative session would forbid offenders from wearing masks on Halloween or Mardi Gras. In New Jersey, a new state law prevents molesters and others from surfing the Internet unless it is for work-related purposes; Florida and Nevada have similar laws.
The recent legal challenges take aim at laws that sex criminals say violate constitutional guarantees, including privacy, due process and protection from cruel and unusual punishment. Supporters of the laws say they are necessary to protect children from predators who are capable of committing brutal crimes.
One such brutal crime, the rape of a young child, is at the center of a closely watched case from Louisiana argued April 16 at the nation’s highest court. The justices heard an appeal from a 44-year-old inmate who claims it is unconstitutionally cruel and unusual for the state to execute him for raping his then-8-year-old stepdaughter a decade ago.
Lawyers for the inmate, Patrick Kennedy, say the death penalty for child rapists is cruel and unusual, in part because only four other states (Montana, Oklahoma, South Carolina and Texas) allow it, while similar laws in Florida and Georgia may be invalid after court or legislative action. They stress that only Louisiana actually has sentenced child rapists to death, and only in two cases, and that the Supreme Court already has struck down the death penalty for those who rape adults.
“Evolving standards of decency,” however, should allow for the execution of such criminals, lawyers for Louisiana counter, noting that child rapists are universally acknowledged as being among the worst of the worst.
Attorneys general from nine states (Alabama, Colorado, Idaho, Mississippi, Missouri, Oklahoma, South Carolina, Texas and Washington) filed a brief supporting Louisiana’s side in the case. Missouri Gov. Matt Blunt (R), who has pushed for the death penalty for child rapists, joined legislators from his state in a separate brief supporting Louisiana.
Despite the attention drawn by the Louisiana case, the ultimate punishment is far from the only punishment that sex criminals are challenging as excessive.
In Georgia and Ohio, sex criminals have successfully challenged residency restrictions that forbid them from living within 1,000 feet of schools or other common gathering places for children. California’s highest court also is considering whether to strike down zoning laws that could make huge swaths of the state off-limits to offenders.
In Missouri’s Supreme Court, a convicted sex offender is challenging aspects of the state’s practice of “civil confinement,” which has allowed him to be held indefinitely in a treatment program for a crime he committed in 1983 and for which he finished serving time years ago. More than 20 states allow civil confinement after it was upheld by the U.S. Supreme Court in separate decisions in 1997 and 2002.
The 4th U.S. Circuit Court of Appeals, meanwhile, is preparing to hear arguments on the constitutionality of the Adam Walsh Child Protection and Safety Act, a wide-reaching federal law that requires all states to dramatically toughen penalties for sex criminals by July of next year, or risk losing funding from a congressional grant program. A trial judge ruled against parts of the law last year.
A broad spectrum of critics — including civil-rights organizations such as the American Civil Liberties Union and Human Rights Watch, law enforcers, prosecuting attorneys and even some victims’ assistance groups — has criticized some of the recent local, state and federal laws aimed at sex criminals.
Many say the laws are more about political opportunism than public safety. Elected officials recognize that they can appeal to voters by piling up penalties on a widely detested criminal population that has few advocates willing to stand up for its rights, critics say.
“It’s still an easy, no-lose-politically situation,” said Corey Rayburn Yung, a professor at John Marshall Law School in Chicago and author of a weblog, Sex Crimes, that reports on trends in sex-offender legislation.
But politicians who support the measures say they are simply reflecting the will of their constituents, who want to crack down on sex criminals.
“Most people who talked with me about it said they would have been rougher (on sex criminals),” Georgia state Rep. Amos Amerson (R) said of the state’s residency restrictions.
Amerson recently voted to revise and reinstate restrictions that the Georgia Supreme Court ruled unconstitutional last November. The revisions now are on the desk of Gov. Sonny Perdue (R), who has until May 15 to sign them into law. Opponents have predicted a new round of litigation if Perdue approves the restrictions.
In Iowa, where a law preventing sex offenders from living within 2,000 feet of schools and other gathering places is considered among the toughest in the nation, the state supreme court twice has upheld the statute.
But a coalition of groups, including sheriffs and county attorneys, has lobbied the Legislature to repeal the measure, claiming it wastes public resources trying to track molesters who are essentially made homeless because of the rules. In a sign of the political difficulty of that lobbying effort, however, opponents of the residency restrictions have decided to wait until next year to ask legislators to reconsider.
“This is an election year, and so we have consciously backed off it,” said Corwin Ritchie, executive director of the Iowa County Attorneys Association. Ritchie said the issue was “held hostage to politics.”
Meanwhile, the federal Adam Walsh Act is likely to face more litigation than any other statute because of its breadth. The law requires some juvenile offenders as young as 14 to be included in online registries and retroactively applies new registration requirements to offenders who have been out of prison for years.
Sarah Tofte, a Human Rights Watch researcher who has studied sex-offender laws and advocates for a comprehensive approach that focuses on treatment, said she thinks it is unlikely that lawmakers will back away from tough new laws — despite the mounting legal challenges.
She noted that the federal Second Chance Act signed by President Bush this month — which eases convicts’ re-entry into society by focusing on rehabilitation — does not apply to sex offenders, who are viewed by the public and by legislators as immutable, lifelong criminals.
“I think it’s going to be quite a while until we let sex offenders be treated like other ex-offenders,” Tofte said.
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KANSAS CITY -- A retired Kansas City police officer was arrested on child pornography charges.
Peggy Becker, the wife of the former officer, turned him in to police. Becker told KMBC's Lara Moritz that she was shocked by what she found on the family's computer.
"It was very difficult, because I love my husband and I love my family, and I tried to weigh which was more important. I couldn't overlook it," Becker said.
Police said Neil Becker admitted to modifying family pictures of his stepdaughter, a neighbor girl and other family members into photos of them having sex with him. The children were not physically violated.
According to court documents, Neil Becker told detectives that he didn't think he was doing anything wrong because it was his fantasy.
"I was just totally shocked when I found them, because No. 1, it involved my daughter, my sister and I. The mere volume of pictures... " Peggy Becker said.
"I was aghast. I took them to my son and he said, 'That's just wrong. You're not supposed to see your mother like that,'" said Debbie Schuller, Peggy Becker's sister.
Police searched the Beckers' house on Wednesday.
"When the tactical guys came, he couldn't believe what they were doing to him after 25 years of faithful valor and service to the police department," Peggy Becker said.
"Neil, he's a retired Kansas City police officer, and he knew better. I just don't believe he didn't know it was wrong," Schuller said.
Neil Becker was charged with four counts of possession of child pornography and one count of sexual exploitation of a minor.
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MADISON - A former Monroe County sheriff's lieutenant who admitted having sexual contact with a mentally ill female inmate pleaded guilty to misconduct in office on Thursday and was sentenced to 18 months in prison.
David Schaldach, 61, was a supervisor in the Monroe County Jail when he allegedly had sexual conduct with the female prisoner at least twice in 2002. The criminal complaint said the inmate suffered from a variety of mental health conditions.
The complaint alleged that Schaldach would give the inmate free gum, candy bars, crackers and more time out of her jail cell in exchange for oral sex two to four times a week in the jail conference room at night.
Schaldach, who had been charged with abuse of an inmate, was ordered by Circuit Judge Todd Ziegler to spend 18 months in prison followed by a year on extended supervision, the state Department of Justice said.
- So why is this person not being labeled a sex offender and have to be on the registry? This was a sex crime! Because he's a cop, that is why!
Schaldach retired from the sheriff's department after a 25-year career at the end of 2002.
His attorney John Matousek did not immediately return a message from The Associated Press seeking comment.
Schaldach is also named in a civil lawsuit filed by the woman in U.S. District Court on April 4.
In that lawsuit, the woman seeks at least $2 million in damages alleging that Schaldach caused her extreme emotional stress, pain, suffering and injury.
Also named in the lawsuit are former Sheriff Charles Amundson and former Undersheriff John Cram, who are accused of knowing about the abuse but doing nothing to stop it.
Cram declined Thursday to comment about the lawsuit and said he did not have an attorney. Amundson has an unlisted number and could not be reached for comment.