Thursday, November 20, 2008
Read another opinion here
By Bob Egelko, Chronicle Staff Writer
SANTA ANA -- A voter-approved law prohibiting sex offenders from living within 2,000 feet of a school or a park amounts to additional punishment for the offenders' original crimes, a state appeals court has ruled in a case that could affect thousands of parolees.
The ruling Wednesday by the Fourth District Court of Appeal in Santa Ana was the first by a California court to find that the residency restrictions in Proposition 83, a November 2006 initiative, are not just public safety measures but would also punish ex-offenders by forcing them out of their homes.
Prop. 83, called Jessica's Law by its sponsors, imposes "traditional banishment under another name," the court said.
The ruling leaves the law in effect but could limit its application. The U.S. Constitution forbids laws that retroactively impose criminal penalties or increase punishment for past offenses.
A lawyer for four men who are challenging Prop. 83 before the state Supreme Court said Thursday that the ruling should prevent the state from imposing the residency restrictions on parolees who committed sex crimes before the ballot measure passed.
The attorney, Ernest Galvan, said the state now is applying the 2,000-foot buffer zone requirement to any former sex offender who has been paroled since Prop. 83 passed, even if the parolee committed a sex crime many years earlier and was serving a sentence for an unrelated crime. He said at least 2,000 parolees fall into that category, and the number is growing by hundreds each month.
"You can't criminalize conduct after it's already happened, can't increase the punishment, because everyone's entitled to notice of what's criminal now," Galvan said.
Lisa Page, spokeswoman for Gov. Arnold Schwarzenegger, said the administration is reviewing the ruling. "The governor strongly supports Jessica's Law and keeping families and children safe," she said.
Prop. 83, approved by 70 percent of the voters, increased sentences for various sex crimes and also barred all registered sex offenders - whose crimes range from forcible rape to indecent exposure - from living within 2,000 feet of a school or park where children regularly gather.
State law previously prohibited only convicted child molesters from living within a quarter-mile of a school. Prop. 83 makes most densely populated areas of California off limits to paroled sex criminals, including nearly all of San Francisco.
The state initially sought to apply the residency restrictions to all 90,000 registered sex offenders in California, but federal judges ruled that it did not cover anyone paroled before Prop. 83 passed.
In the case pending before the state Supreme Court, the four parolees say the residency restrictions are an unconstitutional retroactive punishment and an unreasonable parole condition. They say the limits should be applied only to those who committed crimes against children.
In Wednesday's ruling, the appeals court overturned the residency restrictions on an Anaheim man, Steven Lloyd Mosley, who was convicted in 2007 of assaulting a 12-year-old girl four years earlier but acquitted of committing a lewd act. The trial judge nevertheless concluded that Mosley had committed a sex crime, ordered him to register with police as a sex offender and barred him from living within 2,000 feet of a school or park.
In a 3-0 ruling, the court said the judge's order would have been valid if the Prop. 83 requirements were simply nonpunitive measures to protect the public. But because they have an "overwhelmingly punitive effect," the court said, they can be imposed only after a jury trial and conviction for a sex crime. That also means the restrictions can't be applied retroactively.
The law forces many parolees to leave their homes and leaves them under "constant threat of ouster" from their new residences if a new school or park opens nearby, said Justice Raymond Ikola.
CARMEL - Putnam County will finally be implementing its new Child Safety Zone Law this December, despite a warning from the county's legal department that the law might not stand up to a constitutional challenge.
Members of the Putnam Legislature's Protective Services Committee, consisting of Terry Intrary, Mary Ellen Odell and Mary Conklin, discussed the tough bill for nearly two hours last week with District Attorney Adam Levy as well as representatives of the Putnam Sheriff's Department, Putnam Probation Department, Department of Social Services and the county's Department of Law.
Although the law was enacted on April 28, it has never been enforced. County officials were concerned that court decisions issued on similar laws in communities throughout New York and New Jersey challenging its constitutionality would add an unnecessary cost to Putnam taxpayers.
However, when two dozen proponents of the Child Safety Zone legislation attended the meeting and urged lawmakers to approve the mandate and forward it to the full legislature, the committee agreed to pass the legislation along.
Levy told the audience: "As a father of three young children, it is extremely important to me that children remain safe in their homes. As District Attorney, I must weigh my emotions with the constitutionality of the law proposed because as a taxpayer the last thing I want to see is a law, enacted with good intentions, be struck down following a pricey and lengthy challenge in court. None of us wants sex offenders living next to our children, but we must tread cautiously because under the Constitution sex offenders have rights and can't be prejudiced against."
Levy commended the legislators - especially Tony Hay - for "starting us rolling on the right path. We can look at our sister jurisdictions and determine what was done right, and what went wrong. Let's not repeat others mistakes. A law must be created that adds teeth to the New York State Law to better protect our children and families across Putnam County."
County Attorney Karen Lee urged that the county differentiate between levels of sex offenders. She also urged them to add a grandfather clause allowing those sex offenders already living or working within 1,000 feet of a school or place where children congregate to remain.
Intrary, a retired Carmel Police officer and resident of Kent who chairs the Protective Services Committee, said the original Putnam law would not stand the challenge of a lawsuit because the county didn't differentiate between levels of sex offenders. "Personally, (I believe) Level 2 and Level 3 sex offenders should never be freed from prison. That's my feeling but there are constitutional rights for living in the USA. We live by laws and when our counsel tells us the Putnam law has too many holes in it like water running through a screen, we must re-think the legislation by making it tougher to stand the test of a high court after being challenged by the American Civil Liberties Union," he said.
Putnam County currently has 42 registered sex offenders residing within its borders. Probation Director Gene Funicelli told the audience that sex offenders were a "high risk population. We keep them on a very tight leash."
Neil Platt of Southeast warned if the grandfather clause was eliminated "Putnam County will be giving sexual predators a free pass."
Jean Noel of Lake Carmel, who told the group about how her daughter was nearly abducted by a sexual predator 20 years ago, charged the county was "legislating out of fear of a challenge. Has a challenge ever been successful? A grandfather clause gives the community no safety. This is a county of the free but where are our rights?"
The legislation bars only Level 2 and Level 3 registered sex offenders from residing, working or entering within 1,000 feet of areas designated as child safety zones. Sheriff Donald Smith identified such areas or facilities as schools, parks, playgrounds, child care facilities and other places frequented by children.
Smith said "Putnam County was committed to protect its children from dangerous offenders through a process that is efficient, practical, and constitutional."
Levy charged that sex offenders "put the fear of God in all parents and grandparents in our communities. The Putnam law is practical, effective and constitutional. It will protect our families."
By Sylvester Brown Jr. - ST. LOUIS POST-DISPATCH
What do you do when a sobbing man calls and tells you his life is cracking like a fractured goblet, that he's "at the end of his rope"?
Probably nothing, if that man is a convicted child molester.
Twelve years ago, Patrick Clark, 43, pleaded "no contest" in Florida to a "lewd and lascivious act" with a girl under 16. Clark says he was innocent then and is no sex offender today.
If I had a nickel for every time an ex-con professed innocence … Clark didn't gain my sympathy. His fiancée, Linda, a mother with a teenage daughter, however, did.
"I trust Patrick 100 percent, and my daughter loves him," Linda told me. "He can't clear his name. He can't get a job, and he can't live with me because the state doesn't allow sex offenders to be in the home with minors. I just hate to see a good man go down like this."
After Patrick was charged in Florida, he called his father, John Clark of Eureka. His father talked to a Florida attorney who felt the charges of inappropriate touching were suspect. However, the lawyer feared Patrick might face jail time if the case went to trial.
The lawyer, John Clark said, convinced him that Patrick would most likely receive probation and a "suspended imposition of sentence," which means, with no repeat incidents, the conviction would be publicly erased.
Patrick said he followed his father and lawyer's advice and pleaded "no contest." He received two years' probation and a "suspended imposition of sentence." It was the safest way to settle the matter and move on, he said.
Patrick was wrong.
In the mid-1990s, Florida and other states, including Missouri, implemented Sex Offender Registration laws. All 50 states have registration and tracking systems that require convicted sex offenders to register. Florida adopted a retroactive amendment requiring that anyone who had been "convicted, pled guilty" or, like Patrick, pleaded "no contest" to a sexual offense after Oct. 1993 had to register. Missouri requires anyone who registered in another state to register here as well. Failing to do so amounts to a felony. Sex offenders are on the lists for a lifetime.
Patrick's father, John Clark, 82, has regrets.
"If I believed for a second that Patrick had relations with that girl, I would have been with the prosecutors, nailing his (expletive) to a wall," he said. "If this law had been in force at the time, I would have told Patrick, 'the heck with it, we're going to trial.' "
Patrick never registered in Florida but his name was added to the sex offender list after his sentence was suspended. That listing Patrick says, cost him his job at Disney World in 1999.
Patrick returned to Missouri in 2000. He's been working odd jobs — window washing, home repair and carpentry work — but hasn't found anything steady.
In 2003, Patrick was involved in a car accident in Des Peres. A year later, his father received a letter from state officials demanding that his son register as a sex offender. Patrick called his lawyer in Florida, who told him Missouri had no jurisdiction on a case disposed of in another state.
The attorney was wrong, according to Eric Selig, an attorney with Rosenblum, Schwartz, Rogers & Glass in Clayton: "If another state required that you register, Missouri requires that you register," he said.
Patrick turned to Selig's firm hoping it could help him avoid registering as a sex offender.
"I served my two years, this case was supposed to go bye-bye. This is not what I agreed to."
Tony Rothert, legal director with the regional ACLU office, empathizes with those in Patrick's position. Revisions to sex offender statutes have raised serious "constitutional issues," he said. The ACLU is arguing several sex-offender cases before the courts. If the accused plead "no contest," they may wind up on a list forever. Rothert maintains that expanded restrictions force more people into trials. Selig also worries about victims reliving horrific crimes during trials and judges with no power to settle cases they feel pose no danger to children.
"We want the law to be meaningful. We don't want so many restrictions that people who deserve the chance, can't make a living, feed their families or rejoin society," Rothert said.
Selig worked out a deal with registry officials in St. Louis County. If Patrick posted bond and registered, there would be no fines or charges against him.
Patrick declined the offer, Selig said. His client told him indefinite placement on a sex offender list is "absolutely unacceptable."
Even if he feels it's an injustice, if Patrick wants to avoid jail, he must register, Selig said, adding: "The law is the law, in Missouri."
The crack in the goblet had spread a little deeper when I spoke with Patrick on Wednesday. With a shaking voice, he spoke of attorneys who have abandoned him, police who want to lock him up and losing Linda, the woman he described as "the only bright spot" in his life.
What can be done for a man at the end of his rope?
Very little, it seems, if that man was ever considered a child molester.
By Denise Nix, Staff Writer
Jurors on Tuesday acquitted a man who was arrested by Hawthorne police during a televised online predator sting.
Thomas Snodgrass, 24, of Culver City was found not guilty of two charges by an Airport Courthouse jury that deliberated a little more than a day.
Snodgrass was arrested on April 6, 2007, after he engaged in a nearly 40-minute sexually explicit online chat with someone he believed was a 13-year-old girl.
He was actually talking with a detective, who was being filmed by CourtTV, now truTV.
Snodgrass was arrested at a gas station at Inglewood Avenue and El Segundo Boulevard, where he had arranged to meet the fake girl.
He was charged with contacting a minor on the Internet to commit a sexual offense and an attempted lewd act on a child.
Snodgrass' attorney, Deputy Public Defender Ann Maloney Dawidziak, argued to the jury last week that her client did not intend to have sex with the girl and that the case is based on illegal entrapment by the police. Dawidziak said she believes the jury reached the correct verdict.
"For a police department to accept any financial benefit from a TV producer in exchange for making on-camera arrests for a television series seems to raise issues of fairness and public policy," Dawidziak said. "Furthermore, the timing, action and drama which contribute to a successful TV show may be antithetical to good police work."
Deputy District Attorney Lisa Houle had argued to the jury that Snodgrass' own words, both during the chat and his admissions to officers, showed he knew what he was doing was wrong.
"The unfortunate reality of a verdict like this is that it sends a message to the public that what the defendant did was not a crime," Houle said. "In cases like this one, that is a very dangerous message to send."
Snodgrass was one of 12 men arrested as part of the sting, which lasted several weeks.
Ten of the men have made deals with prosecutors in which they got probation, usually several months in jail and orders to register as sex offenders and undergo counseling in exchange for pleading no contest. One other man has not made a deal and is scheduled to go to trial in January.
- You see, they accepted plea deal, and are in jail. This man took it to trial, and is free.
By BETTY ADAMS - Staff Writer
AUGUSTA -- A trial is likely in a case where 30 Maine people convicted of sex offenses decades ago seek to keep their pictures, addresses, educational sites, and workplaces off the Internet.
Justice Michaela Murphy said Wednesday in Kennebec County Superior Court that she expects the challenge to the state's Sex Offender Registry and Notification Act to go to trial.
"The law court seemed to require this court to look at each individual plaintiff and make a decision on each individual plaintiff," Murphy told the 16 attorneys in the court room. Each attorney represented anywhere from one to 14 sex offenders known publicly as John Does 1 through 30, and four more lawyers represented the defendants -- state, county and municipal officials.
The John Does have sued the state, district attorneys, sheriffs and police chiefs, seeking to remain relatively anonymous. The criminal convictions are public record. Most of those convictions, however, predate the state registration law, which has raised ex post facto questions.
The complex civil case has already seen two rulings from the Maine Supreme Judicial Court, and more are anticipated. The issue of reconfiguring the registry also is being looked at by a legislative committee.
Maine's law says people sentenced for most sex offenses on or after Jan. 1, 1982, must register as 10-year registrants or lifetime registrants. Previously, registration was required of those sentenced on or after June 29, 1992.
The John Does say registration and the subsequent public posting of their personal information and convictions on the Internet will subject them to irreparable harm, public disdain, possible job loss and certain business loss.
Several say they would be prohibited under local ordinances from attending events at schools their children attend.
Murphy heard arguments Wednesday in eight cases where the John Does want to remain off the registry while the court proceedings are under way. She has granted that request in some cases so far. She also set up a schedule to handle for future proceedings.
She postponed arguments in one case where the plaintiff, who is suing without a lawyer, did not appear.
"This is a bit unusual because he is appearing under a pseudonym," Murphy told the two women there on his behalf. "He defaults if he's not here."
Attorney Leonard Sharon, representing three men asking for temporary relief from the registration requirement, said his clients were convicted after 1982, and "have had no subsequent conduct that would place them on the sex offender registry."
He said two of them have young children and all three men work in the community. "The harm they would suffer would be irreparable," he said.
Attorney Ronald Bourget said his client, who was convicted 18 years ago of attempted gross sexual assault, has custody of his young daughter, an arrangement approved by state officials, and attends various school events.
Bourget asked Murphy to consider the interest and impact on the girl if her father appears on the registry.
Bourget told the judge the man would have to tell everyone in at a youth basketball event he was on the registry.
"It would be terrible for the child," Bourget said.
Laura Yustak Smith, an assistant attorney general who argued on behalf of all the defendants, told the judge the John Does focus on one aspect of the registry law.
"What they complain about most is Internet posting," Yustak Smith said. She said it remains unclear about whether the posting causes the difficulty or the fact that the person has been convicted of a sex crime.
"Registration itself should be OK under this court's decision and others across the country," she said. Yustak Smith said the registration law is designed to "protect the public from potential danger" and that the posting enhances public access to the information.
Attorney Gary Prolman said his client, who was sentenced in 1994 for a sex offense committed two years earlier, has no other criminal record and does not pose a danger to the public. If registration was a requirement in 1994, he said his client might have opted to go to trial rather than plead to a sex offense.
"People who entered agreements back then may not have if they thought they would have to register down the road," said Prolman. "Maybe he would have been acquitted."
Betty Adams -- 621-5631
View the article here
By DANIELLE CAMILLI - Burlington County Times
MOUNT HOLLY — A suspended Moorestown police officer pleaded innocent yesterday to sexually assaulting three girls on multiple occasions over the past eight years.
Robert Melia Jr., 38, also pleaded innocent to charges of official misconduct and animal cruelty. He appeared in court with his attorney, but said nothing.
Last month, Melia was indicted with his former girlfriend, Heather Lewis, 33, of Pemberton Township on multiple counts of aggravated sexual assault, aggravated criminal sexual contact, criminal sexual contact, endangering the welfare of a child, sexual assault and one count of invasion of privacy.
Lewis pleaded innocent last week.
Lewis and Melia are due back in Superior Court before Judge Thomas S. Smith, Jr. in January. If convicted of all charges, both face life in prison.
The 45-count indictment stems from incidents with three girls at Melia's Cottage Avenue home in Moorestown between June 2000 and January 2008, authorities said.
Also, authorities allege Melia engaged in sex acts with cows at an undisclosed location in Southampton in 2006. According to court document, investigators found video of the incident and other pornographic materials when they searched Melia's house in April.
Melia is free on $410,000 bail. Lewis remains in custody at the county's Minimum Security Facility in Pemberton on $300,000 bail.
The Moorestown Police Department suspended Melia, a patrolman, immediately after his arrest in April. He has been with the department since 2000.