Sex Crimes

Michigan sex offender registration law held unconstitutional

On January 24, the Michigan Supreme Court ruled their respective Sex Offender Registration and Notification Act was unconstitutional. The ruling is fairly narrow though. The case ruling though highlights an incredible feature of modern jurisprudence concerning sex offender registration and notification: the court have allowed legislatures to pile new regulation upon upon obligation upon requirement on those previously convicted of sex offenses.

In the Michigan case:

On March 4, 1994, Boban Temelkoski pleaded guilty as charged to one count of second-degree criminal sexual conduct . . . Temelkoski was sentenced to three years of probation supervision, subject to the Holmes Youthful Trainee Act (HYTA). . . Under HYTA, certain young offenders between the ages of 17 and 20 may be assigned “youthful trainee” status and ultimately have their cases dismissed and their records sealed.

After his conviction, Michigan adopted SORNA.

SORA retroactively defined Temelkoski’s youthful trainee adjudication as a “conviction” that required him to register as a sex offender for 25 years. . . Over the following years, amendments to SORA imposed increasingly onerous restrictions on Temelkoski, including lifetime registration.

Similarly, Alabama adds new requirements every year. To give one outrageous example, a client of mine was a registered as a sex offender. His probation officer described him as a “model probationer.” He would attend his daughter’s high school softball games which occurred at various public schools in the county. In April 2016, the Alabama legislature passed a new regulation: sex offenders must get advanced permission to appear at any K-12 property and activity; the legislature made it effective immediately upon the Governor’s signature. The Governor signed the bill at 7am in the morning on Saturday. My client went to his daughter’s softball game that afternoon. No one informed him of the law. There was not notification from his probation officer or SORNA supervisor. In fact, they were unaware of the change. Nevertheless, he was indicted for felony violation of the new SORNA statute. Thankfully, we were able to have the felony charges dismissed with prejudice. See more about that case here.

However, because the courts have normally deemed all these restrictions as not punishment, this ever increasing list of requirements, restrictions, and obligations pills up. At some point, the courts must deem the system as moved over the line into punitive.

The Michigan case turned a very fine rationale: the State had made certain promises to Temelkoski through its then youthful offender statute. Perhaps, the same rationale would apply to Alabama. I currently have two appeals before the Alabama Court of Criminal Appeals challenging the constitutionality of the SORNA as applied to Alabama youthful offenders. (See here for discussion.)

 

Penn Supreme Court’s opinion that PennSORNA is unconstitutional stands after appeal to SCOTUS

The U.S. Supreme Court will not hear a challenge to a recent state court ruling that determined part of Pennsylvania’s sex offender registration law was unconstitutional.

Accordingly, SCOTUS will allow the PA ruling to stand.

In July, the Pennsylvania Supreme Court ruled that the 2012 update, which expanded the offenses covered under the law and changed how often and for how long some people must register, was punishment.

Prior to the ruling, the registry was generally considered a civil penalty, which allowed it to be imposed on people retroactively.

Finding that sex offender registration and notification rules are actually punishment has huge consequences. It means that a legislature cannot continue to impose more and more requirements onto those convicted of prior sex offenses. At present, convicted sex offenders are subjected to annual list of new requirements and legal obligations.

One federal district court declared Alabama’s law imposes for life “the most comprehensive, debilitating sex-offender scheme in the land, one that includes not only most of the restrictive features used by various other jurisdictions, but also unique additional requirements and restrictions nonexistent elsewhere, at least in this form.”

This articles details life as a sex offender and how the fiction that SORNA is not punishment is a legal fiction in Alabama.

McGuire was convicted of sexual assault in Colorado more than 30 years ago, before many of the modern punishments around sexual crimes were enacted into law, and his argument hinges on constitutional protections against punishments created after a crime is committed.

After serving three years in prison and another on parole, he was released in 1989. He did not find himself in trouble with the law again until 2010, when he moved back to his native Montgomery to be closer to his mother and family.

Upon returning to Alabama, McGuire went to a Montgomery police station to confirm if, as a convicted felon, he was in breach of any state laws. It was at the station he learned he had to register as a sex offender.

He couldn’t live with his wife, mother or brother in Montgomery, because the state required him to stay away from kids, schools and daycares. Soon he was jobless and living under a bridge, with “Criminal Sex Offender” stamped in red letters on his driver’s license.

“He feels like he’s in prison again, a prison without bars,”  said Phil Telfeyan, McGuire’s lawyer. “He is restricted where he can live, where he can take jobs. It’s like being a permanent prisoner.”

. . .Alabama’s sex offender laws are among the most stringent in the nation. Home to more than 11,000 registered sex offenders, Alabama is among four states that put sex offenders on a mandatory registry for life and the only state that puts the sex offender stamp on a driver’s license.

Currently, I have two appeals pending before the Alabama Court of Criminal Appeals attempting to convince the Alabama appellate courts that Alabama’s SORNA statute is punitive. See here for a discussion of those cases.

We have barely seen the full legal impact of the Nasser-gymnast sexual abuse cases: Over 140 girls claim he abused them.

I have not seen this covered very much on broadcast television but an horrifying case is playing out in a Michigan court room.

A sentencing hearing that started as four days and now is expected to last five days for former MSU doctor Larry Nassar continued today in Ingham County Circuit Court.

Nassar, 54, of Holt, pleaded guilty in November to 10 counts of first-degree criminal sexual conduct, with seven in Ingham County and three in Eaton County. The low end of his sentence will be between 25 and 40 years in prison, and the maximum sentence can be up to life.

The Michigan Attorney General’s Office, which prosecuted Nassar, said Thursday that it expects 120 women and girls to now give victim-impact statements. More than 140 women and girls have said Nassar abused them.

First, the criminal prosecution will likely not end in Michigan.

Nassar, 54, will almost certainly spend the rest of his life in prison. He has already received a 60-year prison sentence for child pornography charges and he will soon face sentencing in two Michigan counties for seven felony counts of criminal sexual conduct and three counts of criminal sexual conduct. All told, he could end up with prison sentences totaling 150 years to 200 years—and it’s possible he could be prosecuted for still other sexual crimes, including in Texas. Of course, for the more than 150 women who accuse Nassar of sexual assault under the perverted guise of “medical treatment”, no amount of prison time can account for the harm he caused.

UPDATE

After an extraordinary seven-day hearing that drew more than 150 young women to speak out publicly about sexual abuse they said was committed by Dr. Lawrence G. Nassar, the former team doctor for the American gymnastics team, a judge sentenced him on Wednesday to 40 to 175 years in prison.

Second, Nasser himself is already facing a pending civil lawsuit, too, by one victim. I have recommended this for sexual abuse victims. Unlike Nasser, most sex offenders likely will be released in their lifetime. Adult survivors of childhood abuse can still bring suit.

One of the things that has struck Foote the most in his line of work on behalf of victims of sexual abuse is the gaping power disparity that exists between the victims and their abuser. That can be the biggest impediment to bringing such allegations to light; so often, the accused’s status may deter victims from coming forward in the first place.

“The nature of abuse is such that they sort of feel powerless,” Foote said. “It takes a long time for people to come forward. It’s even more pronounced when you’re dealing with someone that’s powerful, well-respected, who works for or is associated with a big institution, and that’s really damaging for people.”

In these instances, Foote has witnessed an interesting phenomenon when victims do come forward, and, as is often the case, connect with each other. Even the simple act of uniting in solidarity, retaining counsel and filing the lawsuit itself, regardless of outcome, can have a cathartic and empowering effect. Several well-known gymnasts such as Raisman, McKayla Maroney, Gabby Douglas and, most recently, Simone Biles have spoken out about Nassar’s abuse and finding strength in rallying together with fellow victims.

The facts of the case have most legal scholars willing to believe there will be very serious consequences for all parties complicit in the abuse. Bringing those parties to account, as well as putting mechanisms in place to prevent it from happening again, needs to be the top priority.

Thirdly, and most interesting to watch, there are major institutions which have the ability to pay substantial sums. “More than 140 people have filed civil suits against the doctor and the institutions that employed him for so long, most notably USA Gymnastics and Michigan State University. Some of the victims’ coaches and administrators were aware of complaints against Nassar, but no actions were taken against him. The victims, all women, include notable US Olympians. Aly Raisman, Gabby Douglas, McKayla Maroney, and Jordyn Wieber, four members of the “Fierce Five” 2012 gold medal-winning team stated publicly that Nassar sexually abused them.

Legal responsibility for Nassar’s crimes doesn’t necessarily end with him. USA Gymnastics and Michigan State both employed Nassar for extensive periods of time. They were legally responsible for supervising his work and investigating allegations of misconduct. Both are defendants in federal and state lawsuits brought by Nassar’s victims, and both could ultimately pay many millions of dollars to Nassar’s victims.

These institutions had legal duties imposed by statute and general case to protect these girls:

“There should have been mechanisms in place to protect these young women when they came forward and there weren’t, and that’s going to give rise to liability,” said Angela B. Cornell, a clinical professor of law and founding director of the Labor Law Clinic at Cornell Law School. “If these allegations are proven, this is a very damning case. We’re not talking about the he said-she said scenario. … This is way beyond that. This is a very damning case at what appears to be every level.”

This should be a lesson to school boards, recreation leagues, and Upward programs. Under Federal Title IX law, any educational institution, whether it be K-12 or a university, is compelled to investigate any complaint of sexual abuse or sexual violence both promptly and equitably.

Fourthly,  the leaders from these institutions have incentive to settle quickly. Following the civil cases, others may be criminally charged:

Emails, notes and witness statements could all come to public light. Distinguished academic and professional careers could be destroyed. Even more threating, evidence could surface that leads to criminal charges of USA Gymnastics and Michigan State officials. Look at how the investigation into former Penn State football coach Jerry Sandusky led to criminal charges against Penn State president Graham Spanier. While the Sandusky case was different in many ways, the idea that senior university leadership could become embroiled in a criminal investigation is surely concerning to Michigan State’s leadership.

Relatedly,

Earlier this month, reports surfaced that the AG’s office is considering launching its own investigation to uncover how this abuse was allowed to go on for so long, whether Michigan State was aware of it, and if so, what it did when it became aware of such information.

I expect additional lawsuits to be filed, perhaps class actions. Suprisingly, I expect MSU and others want a class action. They don’t want to have to be embroiled in lawsuit after lawsuit. Per Maureen Carroll, an assistant professor at University of Michigan’s law school:

But whereas class- action suits are bound by a baseline of commonality among plaintiffs, with one person serving as the lead plaintiff on other plaintiffs’ behalf, this is not the case in the Nassar lawsuits, because not all of the victims sustained abuse in a similar set of circumstances. Some were MSU student-athletes, some were members of the U.S. National Olympic team program, for example.

Accordingly,

“The cases will settle. I doubt we’ll see any go to trial,” said Henning, who predicts that MSU will opt for a similar remedy to what Penn State did, called global settlements.

Global settlements would mean the university would identify as many victims as it can and make an offer to pay them.

“They’ll do what every institution wants to do, which is to put it behind them. You don’t need these kinds of articles. They’d much rather have their name in the news with Tom Izzo,” Henning said. “You want everyone talking about the basketball team, not Larry Nassar. And that’s going to probably require a pretty substantial payment.”

In the case of Penn State, recent reports indicate the university has paid out north of $100 million in settlements to victims of Sandusky. Washington, D.C.-based attorney Kenneth Feinberg, who also was involved in the September 11 victims fund, was involved in that process, so he understands what goes into determining whether the university finds that within its own best interests.

But at this point, MSU is litigating the claims:

On Friday, MSU filed a motion in federal court to dismiss the multiple lawsuits standing against the university, arguing that the university should not be a defendant in those suits for a variety of reasons: the statute of limitations, the protection under Federal Title IX law and the “immunity” the university believes its employees deserve.

And then there are the purely financial implications:

AT&T has suspended its sponsorship of USA Gymnastics in the wake of a sexual abuse scandal, the company announced on Tuesday.

AT&T joins Procter & Gamble, Hershey’s and Under Armour as sponsors that have left the beleaguered national governing body since December.

 

Court: Porn found in unallocated space cannot be proved to be “possessed” by the computer’s owner without other evidence.

You have no right to privacy in your computer if you turn it over to Best Buy, Geek Squad, or any other computer repairman. As this article shows,

The case against oncologist Mark Rettenmaier attracted national attention because it revealed that technicians at the Geek Squad’s central repair facility in Kentucky had been paid by the FBI and would tip off the FBI field office in Louisville when they spotted possible child pornography on computers. Computers taken to Best Buy stores around the country for repair are all shipped to the Kentucky facility.

The case also revealed that the repairmen were financially incentivized to look for illegal material.

But Rettenmaier’s attorney, James D. Riddet, discovered that the FBI made payments to some of the technicians who tipped them off to pornography, often about $500, and considered them “confidential human sources” in internal records.

But what was found by GeekSquad repairmen was not even illegal per se, but it still lead to criminal prosecution:

On Rettenmaier’s computer, a technician found one photo of a naked girl, believed to be 9 years old, in the “unallocated space” on Rettenmaier’s hard drive. It did not show the girl’s genitalia or any sex act. Unallocated space is where deleted data resides on a computer until it is overwritten by other data. But it often does not have metadata, such as when it was created, accessed or deleted, and because it lacks that information, courts have ruled that photos found in unallocated space cannot be proved to be “possessed” by the computer’s owner without other evidence.

Nevertheless, the FBI used this on photo as basis to obtain a search warrant for every other devise in Rettenmaier’s possession and house. The case ultimately dismissed because the search warrant failed to explain the basis of the warrant.

The judge noted that Kayle also failed to state that the image was found in the unallocated space of Rettenmaier’s computer and that three separate searches of the hard drive were done to find the image. “This one image of child erotica,” Carney said, “is simply not sufficient to search Dr. Rettenmaier’s entire home, the place where the protective force of the Fourth Amendment is the most powerful.”

New Sex Offender Requirements in Alabama

American courts have approved the practice of ever-increasing the punishment for sex offenses. Seemingly in every session of the Legislature, some new restriction or requirement is lopped into an already substantial set of notifications, registration, residential and employment restrictions, and other scarlet letters. In its last session, the Alabama Legislature passed such an additional requirement: Ala. Code § 15-20A-17:
(b)(1) No adult sex offender, after having been convicted of a sex offense involving a minor, shall enter onto the property of a K-12 school while school is in session or attend any K-12 school activity unless the adult sex offender does all of the following: (a) Notifies the principal of the school, or his or her designee, before entering onto the property or attending the K-12 school activity. (b) Immediately reports to the principal of the school, or his or her designee, upon entering the property or arriving at the K-12 school activity. and (c) Complies with any procedures established by the school to monitor the whereabouts of the sex offender for the duration of his or her presence on the school property or attendance at the K-12 school activity. For a public K-12 school, the local school board shall adopt a policy to effectuate this section. . . .Any person who violates … subsection (b) shall be guilty of a Class C felony.
A “K-12 activity” is defined broadly:

For the purposes of this subsection, a K-12 school activity is an activity sponsored by a school in which students in grades K-12 are the primary intended participants or for whom students in grades K-12 are the primary intended audience including, but not limited to, school instructional time, after school care, after school tutoring, athletic events, field trips, school plays, or assemblies.
This law is quite unnecessary. Any school board could pass whatever restrictions or regulations for a sex offender entering school board property. They own the land and can trespass any person from the premises just as any other land owner.
As I recently encountered, the prosecution of this statute may be stalled because the local school board has yet to pass “policy to effectuate this section.” Accordingly, its very possible that the statute is not in effect unless the local school board as passed policy “to effectuate” the statute. The statute employees the “effectuates” language in fact twice within the statute.
One, this is a perfectly normal mode of operation. 
Second, the language is quite unambiguous. The term “effectuate” means “to make effective.” But if its not clear, then t

Alabama Domestic Violence “Cooling Off” Holds are a Legal Fiction

Section 15-13-190, Code of Alabama makes special rules for persons arrested for crimes of domestic violence.

A person arrested for an offense involving domestic violence…may not be admitted to bail until after an appearance before a judge or magistrate within 12 hours of the arrest.

Compare that with the standard rules for bailbonds after arrest. See AL ST RCRP Rule 4.3

A person arrested without a warrant: (i) May be cited by a law enforcement officer to appear either at a specified time and place or at such time and place as he or she shall be subsequently notified of and may be released; or (ii) May be released by a law enforcement officer upon execution of an appearance bond or a secured appearance bond in an amount set according to the schedule contained in Rule 7.2, and directed to appear either at a specified time and place or at such time and place as he or she shall be subsequently notified of; or (iii) Shall be afforded an opportunity to make bail in accordance with Rules 4.3(b)(3) and 4.4.

An urban myth has developed that persons arrested on domestic violence charges cannot be bonded until after 12 hours of arrest. Section 15-13-190 does not say that; it merely eliminates the options for bond found in Rule 4.3(i) and 4.3(ii). Section 15-13-190 modifies the timeliness of presentation to a magistrate to 12 hours after arrest. Under Rule 4.3(a), a person arrested without a warrant must be presented to a magistrate or judge “without undue delay” and not to exceed 48 hours.  Alternatively, under Rule 4.3(b) a person arrested with a warrant or on complaint must be presented to a magistrate or judge “without undue delay” but not to exceed 72 hours.”

Accordingly, if arrested, don’t let them give you the “we-cant-release-you-for-twelve-hours” run around.

The violation of the speedy presentment requirement may be grounds to exclude evidence obtained after the violation (e.g. confessions, consents, admissions.

(However, I have actually obtained decent civil monetary settlements for clients who were detained for “investigation holds” but were not presented to a magistrate or judge “without undue delay.” Local law enforcement held them and would not let them go which means they were legally under arrest. Even if there is no formal arrest, a person is considered seized for Fourth Amendment purposes when, under the circumstances, a reasonable person would not believe himself free to leave. See Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988) Once arrested, the rights to bond and presentation to a magistrate arise. Deprivation of those rights is a unlawful imprisonment and civil rights violation.)

 

Man Wrongly Accused Of Rape by Police, Wants Apology

According to this article,

A man whose wedding was postponed because New York City police wrongly arrested him for rape says the ordeal has left him out of work and in legal debt up to his ears.

Cops were under pressure to collar the suspect or suspects behind a series of high-profile gropings and sex attacks that started in March in the area.

They thought Giraldo, a livery cab driver, was the perp terrorizing the neighborhood. He was spotted inside a Dunkin’ Donuts at 2:45 a.m. on June 4 — the same time that the rape victim was in the store, according to The Post.

The woman, 29, left the store after an alleged suggestive remark from Giraldo. Then, in her nearby apartment vestibule a man grabbed her by the neck, stripped off her clothing and raped her, NY1 says. Witnesses described seeing a car outside that police thought belonged to Giraldo.

Giraldo turned himself in when police released a surveillance photo of him, saying that he was the main suspect, TV station WPIX says.

He thought it would be a formality, because he had an alibi that he drove a passenger to John F. Kennedy Airport at the same time the attack occurred, The Daily News says.

But police interrogated him for hours, demanding that he confess. After standing in a series of lineups, cops said he would be arrested, The News reports.

Giraldo’s last hope for a speedy resolution were tests that could prove that his DNA didn’t match the samples recovered from the crime scene. Cops said it would take 72 hours to get the results.

But on June 8, the day Giraldo, a Colombian immigrant, was supposed to get married, he was arraigned in front of a judge on suspicion of rape.

Because he couldn’t afford the $100,000 bail, he was locked up on Rikers Island, the city’s jail. A judge released him without bail later, but he was transferred to an immigration detention center in New Jersey because he came to the United States on a tourist visa in 1999 and overstayed, The Brooklyn Ink says.

While Giraldo spent a month behind bars, the sexual deviant struck again, The Daily News reports.

When he was released from detention, he and his fiancee married in a civil ceremony.

On top of the criminal case against him, Giraldo had to worry about being deported.

The crucial evidence that would have cleared his name — the DNA test results — took months to complete. It was on Nov. 15 that prosecutors revealed they didn’t have a match from the genetic material and charges against Giraldo were dropped