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What's Up in the 8th

I had a pretrial with a prosecutor the other day on a failure to verify registration as a sex offender case, and commented on what a waste of time these are.  The prosecutor replied, somewhat defensively, "Well, at least they protect the public."

Well, no.  Sex registration laws are based upon two facts that are demonstrably untrue.  The first is that they protect children against molestation by strangers; in fact, the vast majority of sex assaults on children are committed by family members or close friends of the family.  The second is this passage in a 2003 Supreme Court decision:  "the rate of recidivism of untreated [sex] offenders has been estimated to be as high as 80%."  As this article explains, the sole basis for that statistic is a 1986 article in Psychology Today, which didn't provide any evidence to back up that assertion. 

And if you really want to get into the weeds about whether these laws protect the public, take a look at the 6th Circuit's decision last year in Doe v. Snyder on Michigan's sex offender registration law.  As I explained when I discussed the case, the short version is that after a full hearing where Michigan had an opportunity to provide evidence as to the efficacy of its sex registration laws, it came a cropper:  the court found the law "has, at best, no impact on recidivism."  At best; in fact, there's evidence that such laws are actually counter-productive.

Which brings us to the 8th District's decision last week in State v. Miller.  Miller pled guilty in 2016 to sexual battery -- reduced from rape -- for an assault he committed in 2001, when he was 14.  The trial court classified him as a sexual predator, and he appealed.

For good reason, it would appear.  At the hearing, a remnant of Megan's Law, the State has to prove by clear and convincing evidence that the defendant is likely to commit another sex offense.  That would seem to be a tall order; while Miller's criminal history included convictions for robbery, felonious assault, drug trafficking, and having weapons under disability, the sexual assault he'd committed 15 years earlier was his only sex offense.

Instead, the panel puts emphasis on the fact that Miller scored a "moderate to high" risk on the STATIC 99.  That's interesting, given that in previous decisions, like this one and this one and this one, the 8th has found that "the utility of the Static-99 evaluation as a diagnostic tool for individual risk assessment is open to question."  Of course, that's when it evaluated the risk as low.

Miller also relies on In re C.P., 2012 Ohio Supreme Court decision which held that Adam Walsh Law section providing for automatic lifetime registration of juvenile defendants was unconstitutional.  But that was under the AWA, which the court determined to be punitive; Megan's Law, which was applicable to Miller, was remedial, so there's no problem with making someone register as a sex offender for the next 50-plus years for an offense -- the only sex offense -- he committed when he was 14.

At least the public will be protected.

Van Patterson is charged with three rapes and convicted of two, and the first one gives the 8th an opportunity to look at pre-indictment delay in the wake of the Supreme Court's decision last year in State v. Jones.  It's a mixed bag.  The alleged victim was a 16-year-old girl.  She told her mother she'd been raped, and the mother took her to the hospital, then called the police a few days later and told them her daughter was lying.  The mother died before trial.

Patterson claims that the mother's death is the required proof of actual prejudice, but the panel isn't buying, because it's too "speculative":  "Patterson does not demonstrate a viable, tangible connection between what T.T.'s mother could testify to and his defense."

Well, here's a tangible connection.  This is the girl's mother.  She saw the girl right after the incident.  She took the girl to the hospital.  She had ample opportunity to see the girl and talk to the girl.  And after she had that opportunity, she called the police and told them the girl was lying.  Now, she may have had a number of reasons for doing that, but one of them may very well have been that she believed the girl was lying.

The flat statement to that effect isn't admissible, but you don't need a flat statement.  The State will have to call her as a witness, and you get to cross-examine.  It shouldn't take too much to get across to the jury from her testimony or even body language that she didn't believe the girl was raped.  And if she didn't believe it, the jury is unlikely to.

 Here's what Jones says:

A claim of actual prejudice should be scrutinized vis-à-vis the particular evidence that was lost or unavailable as a result of the delay and the relevance of the lost evidence and its purported effect on the defense.

And that's what you have to do with these cases:  you have to put the judges into the trial, explaining just how the evidence would have played out.

Some lawyers prefer a more laid-back approach, as was apparently the case in State v. RanceRance will never got a job at the carnival guessing people's ages:  he has sex with somebody he believes is 17, and she turns out to be 12.  He eventually agrees to plead to rape in exchange for the State dropping the life spec. 

Rape carries a mandatory prison sentence, but at the plea hearing Rance has some difficulty with that concept, and questions whether he can't get probation.  His lawyer chimes in that he'd indeed discussed probation with Rance.  The judge tells them that there's no question that rape is not probationable.  "I didn't think it was," the lawyer replied.  "I didn't really explain it to the client, but the court is explaining it now."

Good thing the judge was there, huh?


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