Austin Criminal Defense Lawyer & Attorney : Jamie Spencer Law Firm : DWI, DUI, Drug Possession : Serving Georgetown, Round Rock, San Marcos, Travis, Williamson, and Hays County, Texas

It’s refreshing when an elected politician speaks the truth, especially when they don’t mean to.

There was a segment on McNeil Lehrer this evening titled “Housing Sex Offenders,” which chronicled the very real problems with various versions of Jessica’s Law that have sprung up around the country.

The name “Jessica’s Law” started in Florida, based on the name of a victim, but is now the de facto name given by the media to various and sundry laws dealing with sex offenders.

The report focused on California sex offender residency restrictions. California’s fairly new law prohibits registered sex offenders from living within 2000 feet of parks, playgrounds, schools, etc. Sounds like a great idea but problems in this regard have been well documented.

PBS showed a map of Los Angeles with all the prohibited living places in red. At first, it’s easy to tell that literally almost every place in Los Angeles is covered; and then the announcer let’s us know that the places that are ‘OK’ are almost all business and commercial.

The point of this is not to make folks’ hearts bleed for sex offenders. But let’s acknowledge what the real point of these laws is. Or better yet, let’s hear from San Diego County District Attorney Bonnie Dumanis, who when asked by the reporter the perfunctory ‘where are they supposed to go?’ replied:

The real intent of Jessica’s Law is to put people that violate children and others in prison and keep them there.

Bravo! We’ve convicted and sentenced the offender, but he’s served his time and now we want to put him back before he reoffends. The constitution prohibits us from going back and adding time to his sentence, so…

Let’s make it literally impossible for him to live anywhere legally. Then we charge him with that violation, and the problem is solved.

For anyone out there that reads this, and is nodding their head, “Yes, that makes perfect sense”… I’m not sure any amount of logic or reason will convince them of the underlying fundamental unfairness of such a system.

On an off note, for the few of you have inquired as to whether I have retired from blogging, apparently the answer is ‘No, it was just a vacation (from blogging only) and I’m back’.

• Email This
• Print
• Comments (18)
• Trackbacks

There’s been nationwide coverage of the judge who granted probation to a sex offender “because he was too short” to go to prison. Or, at least, that’s how it was covered in the media. Some of the reports about the recent appeal affirming the sentence, like this one by the AP’s Josh Funk, have come closer to hitting the mark:

A judge had valid reasons for sentencing a 5-foot-1 sex offender to probation, even though she cited the offender's height as part of her rationale, the Nebraska Court of Appeals ruled Tuesday.

One important distinction between Funk’s first sentence, and what I remember about the initial coverage, is the addition of the information that the defendant’s height was only part of the judge’s rationale. Other factors?

An examination by a clinical psychologist and the results of a test used to determine the risk that Richard W. Thompson would reoffend both indicated that Thompson, 52, is neither a pedophile nor a sexual predator, the (appellate) court said.

OK. So now we know there’s more to the story.

But wait a minute…it’s still somewhat outrageous, isn’t it? Why would the judge take height into consideration at all? And exactly how did the judge take height into consideration?

"So I'm sitting here thinking this guy has earned his way to prison, but then I look at you and I look at your physical size. I look at your basic ability to cope with people and, quite frankly, I shake to think what might happen to you in prison because I don't think you'll do well in prison," [the judge] said in court, according to a court transcript of the hearing.

1) I understand why this was reported the way it was based on the judge’s words, and 2) I’ll admit I’m speculating here, but that’s the reason for the title of this post: Reporters on the crime beat need to be able to talk to local lawyers, especially in cases like this where it seems like there’s something really out of the ordinary, and even nonsensical going on.

I think (but admit I can’t prove) that this is the missing key to the story:

Judges like to lecture Defendants before putting them on probation.

That’s it. Explains everything really. I don’t know anything about Nebraska’s sentencing procedures, but let’s assume, based on the PSI (pre-sentence investigation) that this defendant qualified for and was very likely to receive probation. I think it’s a reasonable assumption that the judge was trying to scare the defendant, and probably says something similar about the perils and dangers of prison to everyone.

Any good criminal defense lawyer in Austin would be able to tell you that District Court judges in Travis County frequently lecture felony defendants who are going on probation about (a) walking the line (b) staying out of trouble (c) I’ve got you under my thumb…basically just saying “you better behave now”. And I’m sure that is probably true everywhere.

In fact, it’s a good thing. No, not all of my clients need to be ‘scared straight’. But some of the probably do. Probation is not a slap on the wrist. And if the defendant violates the terms of his felony probation, he is looking at the possibility of prison time. Even for so called ‘minor violations’. A reminder from the judge probably doesn’t hurt.

From Doug Berman’s entry over a year ago when the case was first reported, here’s some more of that judge’s lecture:

"I want control of you until I know you have integrated change into your life," the judge told Thompson. "I truly hope that my bet on you being OK out in society is not misplaced."

That confirms my suspicions about the “controversy”. It fits right into the ‘scared straight’ theory.

As for crime reporters? Well, for those who didn’t want to focus solely on the sensational and almost silly aspects of the story, I believe a call to a defense lawyer who practiced in front of that judge may have elicited a fuller picture of what was going on. And while a defense attorney might not want to be quoted, perhaps a line could have been inserted to the effect of:

“According to some defense attorneys, the judge may simply have been trying to not-so-gently remind the defendant that he would be closely monitored, and that he would regret being sent to prison if he violated his probation.”

After all, while “Judge Loses Her Mind” is a great headline, isn’t the point of journalism to give a complete and accurate picture of the story to the readers?

• Email This
• Print
• Comments
• Trackbacks

Grits for Breakfast pointed me to a very interesting new blog “Just Rants and Raves” written by a guy being supervised on a Dallas County sex offender probation. I hope to see more “probation blogs” pop up, because I think it will be instructive for everyone in the system. I’m sure that our local Austin criminal defense bar would find them fascinating. (If it’s not obvious, I’ll point out that not many defense lawyers have actually been on probation.)

The probation blogger was convicted of online solicitation of a minor, which is not listed under Chapter 21 Sexual Offenses, but instead Chapter 33 Computer Crimes of the Texas Penal Code. (Read his first post for his description of the offense, and the ensuing court case.)

One of the comments on Grits’ post asks:

So, there's a law that says you can't meet an underage person over the internet? Meeting someone underage is equivalent to statutory rape? A sex offense has been committed when 2 parties meet? Fine line to entrapment, no?

I realize we have similar laws to prevent homicides: as in you can get nailed for attempted murder by actively developing a plot to kill someone...but this seems different. You have to be looking into someone's head to apply the law.

Well, I’d encourage a reading of the statute itself, because more than just meeting someone underage is required. But, yes, it also involves looking at the defendant’s intent because it requires the element of “intent that the minor will engage in sexual contact, sexual intercourse, or deviate sexual intercourse with the actor or another person”. Usually the state’s attempt to prove this part involves the saved conversations that have been recorded over email, instant messaging, or chat rooms.

As for entrapment? As I’ve blogged about previously, entrapment requires that the inducement by the state was of such a nature that a normally law abiding citizen would have succumbed to it, and committed the offense. I doubt a lot of jurors will publicly agree that they would have gone out and tried to meet the underage girl for these purposes (even the ones that might have).

• Email This
• Print
• Comments
• Trackbacks

Kudos to the Indianapolis Star Newspaper for including the text of the Sixth Amendment alongside a story about the conviction of a sex offender being overturned.

Perhaps the most important quote in the story (likely to be missed by the casual reader) is

He now faces a retrial in Hamilton County.

This defendant (let’s assume he is guilty) will not be “getting away with it”, which is what I suspect the prevailing reaction of readers will be. He will simply face retrial on the same charge, but with all the protections all American citizens face when they are accused.

The “kudos” are for whatever journalist or reporter decided to quote the text of the Sixth Amendment for readers to see along with the substantive story itself. I applaud any effort to educate the American public about their rights, even when those rights apply to people they inherently and instinctively abhor. The rights they take away from the guilty, are the rights they take away from you when you are innocent but accused.

• Email This
• Print
• Comments
• Trackbacks

A scary story reported by the Toledo Blade about what sounds to me like a "no due process" branding of citizens with the label of sex offender.  The Corrections Sentencing blog pointed me to this story in the local Ohio newspaper, which includes the quotes:

A recently enacted law allows county prosecutors, the state attorney general, or, as a last resort, alleged victims to ask judges to civilly declare someone to be a sex offender even when there has been no criminal verdict or successful lawsuit.

and

A civilly declared offender, however, could petition the court to have the person's name removed from the new list after six years if there have been no new problems and the judge believes the person is unlikely to abuse again.

OK.  So from the frist part I gather someone in Ohio thinks it's a good idea to brand someone a Sex Offender, without a trial or even a civil lawsuit?  Does the accused even get to know he is about to be labeled a Sex Offender, or is this some sort of crazy ex parte hearing?  What standards does a judge use to label this person a Sex Offender?  Can the accused present his side of the story?

The second quote, however, lets us know it's OK because, if someone who has a grudge against you gets a judge to label you a pervert, you have a possible remedy... 6 years down the road.

There's probably more to this legislation than the paper is reporting, or at least I hope so.  But if their reporting is even 50% accurate, this sounds downright Orwellian.

• Email This
• Print
• Comments
• Trackbacks

§ 21.01. DEFINITIONS. In this chapter:

(1) "Deviate sexual intercourse" means:

(A) any contact between any part of the genitals of one person and the mouth or anus of another person; or

(B) the penetration of the genitals or the anus of another person with an object.

(2) "Sexual contact" means, except as provided by Section 21.11, any touching of the anus, breast, or any part of the genitals of another person with intent to arouse or gratify the sexual desire of any person.

(3) "Sexual intercourse" means any penetration of the female sex organ by the male sex organ.

(4) "Spouse" means a person to whom a person is legally married under Subtitle A, Title 1, Family Code, or a comparable law of another jurisdiction.

• Email This
• Print
• Comments
• Trackbacks

§ 21.01. Definitions

§ 21.06. Homosexual Conduct

§ 21.07. Public Lewdness

§ 21.08. Indecent Exposure

§ 21.11. Indecency with a Child

§ 21.12. Improper Relationship between Educator and Student

§ 21.15. Improper Photography or Visual Recording

• Email This
• Print
• Comments
• Trackbacks