Missouri would publish online identities of sex offenders

Rep. Tom Dempsey, of St. Charles is expected to sponsor a bill in the next session which would require all domain names, instant message names and e-mail addresses of registered sex offender to be posted in a public database.

Sex offenders would only be permitted to use their registered online identifiers. Any violation of the law would be a class D felony.

On the positive side, this law would allow people to check up on suspicious usernames, in hopes of avoiding contact with children by sex offenders.

Enforcement could be a problem, however, for both practical and legal reasons.

Practical Problems:

In announcing the bill, Gov. Blunt noted that MySpace.com recently deleted the user pages of 29,000 registered sex offenders. It goes, almost without saying, that MySpace only deleted the pages of the sex offenders who used their real names (either because they were stupid or perhaps because they weren’t doing anything wrong).

Many of those 29,000 will (by now) have opened new MySpace accounts under fake names and effectively gone underground.

This bill will suffer the same problem. Sex offenders can setup phoney email accounts all day long and no one will know. They know it will decrease their chance of getting caught, and if they do get caught committing a sex crime, the class D felony for failing to register will be the least of their problems.

In addition to AVOIDING sex offenders, beneficiaries of the registry would be child porn and other internet spammers who could use the list to find and target customers. Just kidding.

Legal Problems:

Whether the bill is effective or not, Rep. Dempsey will have to be careful crafting a bill. Here’s why:

  • Missouri’s Constitution provides, “that no . . . law . . . retrospective in its operation . . . can be enacted.” Mo. Const. art I, sec. 13. “A retrospective law is one which creates a new obligation, imposes a new duty, or attaches a new disability with respect to transactions or considerations already past.” Doe v. Phillips, 194 S.W.3d 833 (Mo banc, 2006)
  • It seems that the registration requirement would create a “new obligation” on anyone who committed a registry crime. That’s unconstitutional if applied to anyone whose crime was committed before the effective date of this bill (presumably Aug 28, 2008).
  • As to the ban on using an unregistered username, that would seem to qualify as a “new disability.” So that sounds unconstitutional too.

If this is correct, this new law could not apply to any current sex offenders, but only to those who may join the rolls in the future.

How to prove you are smarter than a U.S. Senator

Within the sad story of Idaho Senator Larry Craig trolling a public men’s room in search of a good time, there is a lesson for anyone accused of a crime.

The senator’s first mistake was selecting a toilet stall occupied by an undercover vice cop. The senator began the encounter by trading glances with the officer through a crack in the door. The officer noted the senator’s distinctive blue eyes. The senator entered the adjacent stall and took a seat. He began making foot signals which the officer interpreted as an invitation for sexual activity. The cop responded with encouraging foot signals of his own. The senator then ran his fingertips under the stall divider. This foreplay ended when the cop flashed his badge under the divider and made the arrest for peeping and disorderly conduct (offensive, obscene conduct in a public place)

But the senator’s next mistake was in negotiating with the prosecutors on his own and cutting a deal to plead guilty to the disorderly conduct. He was not represented by an attorney and signed a guilty plea saying that he really was guilty and “I make no claim that I am innocent.”

In comparing what Craig did alongside the Minnesota statutes, it appears that prosecutors would have had a tough time in getting a conviction. I have seen a jury acquit a defendant who went much further, grabbing an undercover Jefferson City cop’s crotch in a park. The jury seemed bothered by the fact that the cop had “played along” or invited the contact by his words or actions.

And it was pretty clear, in that case, that if the cop had not responded positively to the park pervert, the defendant would not have made physical contact.

  • Note: I’m not criticizing the undercover cop here. It’s probably the last duty he wants. After enough telephone complaints come in, his captain is bound to select somebody to serve as “bait” for the homosexual men who haunt public restrooms. And usually the captain selects him. It’s a thankless, almost impossible assignment. People make jokes. Then they remark about how officer was the obvious choice for the job. But the jury does not laugh, they just set the suspect free.

In the case of Senator Craig, the same thing happened. The senator made what the cop says is the foot signal for men’s room sex. The cop appears to signal back that he’s willing. After that, the senator had to believe that his advances were welcome (in which case, they were legal).

The senator should have hired an experienced Minnesota criminal defense attorney to evaluate his case and represent him in court and to negotiate with the prosecutor. He might well have gotten the whole thing dismissed. He might have beaten it at trial. He couldn’t have done any worse than what he did.

Robert Guest is former prosecutor who noted in his blog, I WAS THE STATE: “Craig regrets his decision to plead guilty and is now claiming innocence. He also regrets not having an attorney at his court appearance. If Craig is innocent he would not be the first defendant to plead guilty to a crime he did not commit.”

The lesson is that when you are accused of any crime, it’s your chance to prove you are smarter than a U.S. Senator. Get to a lawyer, an experienced criminal defense lawyer. And do it quickly.

The Fallacy of True Believers

Scott Greenfield, in his Simple Justice, a New York Criminal Defense blog, picked up my brief point in the previous post and ran it into the end zone. I hope you will go now and read this well-thought-out post on the rot that spreads from the “true believers,” on both sides of the courtroom.

Prosecutors take special note: blind defense attorneys screw over just one client at a time, but over-zealous, win-at-all-costs prosecutors corrupt themselves and smear their fellow prosecutors.

If you lose the public trust, you might as well quit. As Scott Greenfield says, your job is not to win, but to do justice.

Two sides of a coin: Cheatin’ prosecutors and blind defense attorneys

Today, I attended a federal criminal trial and as I walked in with another defense attorney I looked around the courtroom for a seat. It wasn’t especially crowded but everybody in the spectators’ section was sitting on the right-hand side of the room.

I looked to find a seat and started to cross to the other side for several reasons.

  • There were lots of empty seats, so I could have my pick.
  • It was the same side that the jury was on. That means that every argument, every witness and every exhibit would play to that side of the courtroom.
    • You could see real good.
    • You could hear real good.

Right then, the other attorney stops me, points to the more crowded side and says: “We should sit on THIS side to show support for the defendants.”

I said,”What? Are they friends of yours?”

“No.”

“Let me ask you this,” I said. “Do you actually want ALL defendants to be acquitted? I mean even the ones who are not your clients? We DO have to live in this town.”

“Well we just should,” the attorney replied. So we sat with the defendant’s wives and baby mamas. It was not a big deal and the microphones were loud enough. It just got me thinking.

I was a Missouri state prosecutor for fourteen years and during that time I was always wary of rooting too much for the home team. Sure, if it was my case, I’d bust my tail trying to win the conviction, and usually I did. Even so, I kept a small prayer in my head that if I was wrong, the defendant would be acquitted.

I felt that the kind of prosecutor who must win at all costs is the same kind who would bury evidence that was troublesome to their case. It happens. And nobody else knows.

Now that I am on the defense side, the rules are a little different. You really do go all out for your client. I’ve seen so many stupid cop tricks, I’ll be a skeptic forever. Let’s just say you’ve got to test and inspect everything.

But it never pays to be too much of a cynic. I’ll give the client a sympathetic ear, but I do him no favor by pretending there is only one side to a story: his.

Above all, I want a jury to believe me when I tell them something. I want them to see me playing fair.

Only an idiot tries to trip up a truthful witness with tricks designed to flush out a liar. When it’s over, the witness looks better than ever and the defense attorney looks a like a failed bully. And dishonest. Which is really too bad, because he probably really believed the witness was a liar. Why? Because he was a cheerleader instead of an advocate.

Guiliani: Freedom is Slavery

I have never understood why the federal government needs any laws (especially criminal laws) for things that can be adequately handled by the states themselves.

I’ve always believed the constitution strikes a nice balance between our freedom and government intrusion, and so am naturally opposed to giving up any more freedoms.

But if we do, let’s admit that we are trying to trade liberty for security. Every time I read this quote from the former NYC mayor it makes me uneasy. He seems to believe that freedom is the willingness to submit to tyranny:

” . . . Freedom is not a concept in which people can do anything they want, be anything they can be. Freedom is about authority. Freedom is about the willingness of every single human being to cede to lawful authority a great deal of discretion about what you do.”

Rudy Orwell Guiliani
March 20, 1984 1994

Tasers: Safety measure or Electronic attitude adjustment?

Anyone who spends time on the interent will run into videos showing the use of a taser on a violent or uncooperative person.

Go to Youtube and search for tasers. You can see plenty of drunks receiving that 50,000 volt attitude adjustment.

Here are a couple to check out (Notice the guy who seems drunk takes a lot longer to get the message than the mouthy lady. It’s almost like the shock caused her brain to reconnect with her mouth):

TaserPolice Taser Drunk Driver Resisting Arrest  

WOMAN GETS TASERED

A lot of people have been critical of TASER use because somebody dies from it about once a week in this country. A Jefferson City police Captain noted that “latest scientific and medical research shows any fears about the harmful affects of Taser use are unfounded.” He pointed out that when TASERS kill, “the primary cause is the person’s negative life choices, including, the use of illegal drugs and pre-existing medical conditions.”

It makes it sound like they deserved to die–not for resisting arrest–but for eating too many trans fats. But the deaths are only part of the equation.

It’s not only suspects who are being injured.  Many police officers claim they have been injured when they were TASERED during their own TASER training classes.

The rationale for using the TASER is to avoid injury to both police and arrested persons. No one criticizes cops for tasering a threatening person who is armed or physically fighting. Cops don’t get paid enough to get into hand-to-hand combat with drunks and brawlers every night.

The most troubling part is where you draw the line. Some police justify TASER use when a suspect is “resisting.”  But others define “resisting” to mean someone who passively refuses to stand up or non-violently disobeys an order; or if a person is mouthy with the police. This stuff happens.

  • There was the Kansas City guy who got TASERED for talking out loud.
  • A couple weeks ago, some woman with possible mental problems was hitting her head on the jail floor in Barry County, Mo. So the deputy gave her a ride on the TASER while five other cops watched. I wasn’t there, but you have to wonder if six cops couldn’t have restrained the lady. 
  • Then there was that guy that got barbequed when the police TASERED him after he doused himself in gasoline.  
  • The news today was about the guy trying to leave the hospital with his newborn child in his arms. The video didn’t show the extent of his misbehaviour, but it would have had to have been deadly to justify TASERing the guy (who promptly dropped the baby on the floor – ouch!)

We need to back up and examine TASER use. By all accounts, the pain is excruciating, apparently as bad as any torture (but usually without the permanent damage).

Use of the TASER is per se evil. If its use is to prevent a clearly greater evil, then it may be justified. But nothing justifies its use simply to secure obedience or respectfulness.

In that case the TASER’s electronic atttitude adjustment is simply torture

Your honor. She’s badgering the witness!

Yesterday, I watched a criminal jury trial: a lady accused of passing a counterfeit bill. The trial was unusual from the start–A veritable feast of femininity: Female defendant, female judge, female court reporter, female prosecutors, female public defender; and (as usual) most of the jury were women.

The give and take was . . . let us say . . . spirited. Meow.

But that wasn’t the best part. I was allowed to observe one of those rare phenomena, like witnessing a plane crash or the birth of a volcano, which many will never encounter except on television.

The defense attorney was taking the state’s witness to task for his perceived shortcomings and those of the state’s evidence. She bullied. She ridiculed. Rhetorical questions riddled the poor cop like machine gun bullets, as her remorseless cross-examination morphed into a closing argument. And it went on and on, until the prosecutor finally broke in:

  • Objection. She’s badgering the witness.” [Did I hear that right? Tell me she said “Badgering the witness!” I was in heaven. I had never witnessed the use that colorful arrow from the prosecutor’s arsenal, at least not in front of a jury]
  • Overruled.”

And with that official encouragement, the able public defender ratcheted up the abuse. We were all suffering now. I was afraid the witness might turn his gun on himself if it didn’t stop soon. I suspect that even a two-second ride on the taser would have done him in at that point. Again, the prosecutor:

  • “Objection. She’s badgering the witness again.”

Gutsy, I thought. The court takes an extra moment to consider. Reasonable persons would agree–I think–that “badgering” is an umbrella term covering more specific objections such as:

  • “Objection: argumentative,”
  • “Objection: asked and answered,” and even:
  • “Judge, if she’s going to testify, why don’t we just swear her in!”

And so the court ruled, this time the other way:

  • “Sustained.”

But it did not matter to me which way it went, for I had experienced a real, live “badgering the witness,” objection not once, but twice. I couldn’t be more delighted if I’d discovered the last living dodo.

Top Ten (10) Things NOT to Do If You Are Arrested

I ran across a link that mixes some legal advice along with practical advice if you are arrested. The sad truth is that few people follow these rules; and those who do probably learned the lesson the hard way: first hand experience. If I ever ran across a defendant that followed these rules completely . . . well I don’t know. I never met a man who followed them all.  Click here for a nice read:

Top Ten (10) Things NOT to Do If You Are Arrested.

The writer mentions some other cautions, but I want to emphasize that this is not the time to argue with, fight or try to match wits with the police:

  • If you refuse to agree to a search, don’t try to prevent it if it happens anyway.
  • If you refuse to let police enter your house, but they do anyway, DO NOTHING to stop them. Don’t resist beyond saying “no.”.
  • If you don’t agree to go talk at the police station, don’t resist if they make you go.
  • Even if the police are in the wrong, NEVER RESIST. You and your attorney can sort that out much better later on.

When I was the State, I lost count of the number of cases that landed on my desk where the ONLY CHARGE was assaulting a law enforcement officer or resisting arrest. Translation: If the defendant hadn’t acted like a fool, he’d have gotten away without a criminal charge at all.