What's New
February 10, 2010: Appeals court reduces SORA risk level for offender who declined treatment. In People v. Kearns, decided on December 30, 2009, the New York Supreme Court Appellate Division found that a lower court properly scored a sex offender points for refusing treatment in prison. The refusal was based on advice from his lawyer. The defendant was found by psychologists not to be a threat. Therefore, participation in jailhouse treatment presented him with a "Hobson's choice" -- his decision not to participate was a reasonable exercise of his Fifth Amendment privilege against self-incrimination. Accordingly, although the presumptive risk level was Level Three, the appeals court found that the lower court improvidently exercised its discretion in denying a downward departure. The appeals court held that the correct risk level in these circumstances was Level Two.
January 12, 2010: Second Circuit strikes down release condition requiring sex offender to reveal status to girlfriends. In United States v. Reeves, a child pornography defendant was sentenced to more than three years' imprisonment to be followed by a term of supervised release with certain conditions. One of the conditions was that he had to let the probation department know when he entered into a "serious romantic relationship." Worse, he was required to tell the person he was in a relationship with that he had a history of possession of child pornography. The appeals court struck down the provision, finding the definition of "serious romantic relationship" was unduly vague and that the requirement was not reasonably related to the objectives of federal sentencing.
December 2, 2009: New York's High Court Overturns Conviction of Doctor Accused of Molesting Boys. In a forceful decision highlighting unfair tactics by a prosecutor, the New York Court of Appeals overturned the conviction of Dr. Phillip Ryback, a pediatric neurologist in upstate New York. At Dr. Ryback's trial in 2004, fourteen boys and their parents testified, alleging that he abused the boys while treating them. He was convicted of 12 felonies and 16 misdemeanors and originally sentenced to 48 years in prison (the sentence was previously reduced by the appellate division).
The court's decision focused on conduct by the prosecutor, who attacked Dr. Ryback as a "pedophile" and improperly suggested to the jury that many more patients had been abused. The court lays out a number of ways the prosecutor misled the jury, but the most telling was this: the prosecutor moved to sharply limit testimony of patients who wanted to testify in favor of Dr. Ryback, and so the defense was only allowed to call four patients. But in closing argument, the prosecutor used this against Dr. Ryback: "Congratulations," he said. "They found four patients he didn't molest." The decision is a refreshing reminder that the rules of court apply, even to prosecutors in child sex abuse cases. Dr. Ryback was represented on appeal by Paul Shechtman, Esq. and Nathaniel Marmur, Esq. of Stillman Friedman & Shechtman.
October 27, 2009: A Remarkable Decision Critiquing the SORA Guidelines from New York County Supreme Court. Justice Daniel Conviser has issued a 32-page, unpublished decision granting a downward departure from the presumptive risk level in People v. Santos. The decision, available as a .pdf through the following link, presents perhaps the best critique of the SORA Guidelines we have ever seen, by a judge or anyone else. The point of the decision is to reduce the level of community notification of a convicted child rapist from level three to level two. The key fact (akin to our case in People v. Abdullah, which Justice Conviser cites) is that the defendant stayed out of trouble in the fourteen years since he was released from prison -- except for a criminal conviction for failing to update his address under SORA.
In finding that a reduction from the presumptive risk level was warranted, Justice Conviser both lets loose an intellectual assault on the Guidelines and summarizes the evolving body of case law giving judges more and more discretion to depart from the Guidelines. The critique of the Guidelines is particularly fascinating and should be read in full. A few highlights:
October 23, 2009: Kimbrough and Child Pornography Sentences in Federal Court. In federal court, attorneys have long criticized the stark disparity between sentencing for crack cocaine and powder cocaine because, under the U.S. Sentencing Guidelines, one gram of crack was the equivalent of 100 grams of powder. For years, the Circuit Courts held that this irrational scheme was no basis for lowering a crack sentence (or, for that matter, increasing a powder sentence). Then, in late 2007, the Supreme Court held in Kimbrough v. United States that courts could deviate from a Guidelines sentence just because the court thought the Guideline was wrong. Can this help with some of the draconian effects of federal child pornography sentencing under the Guidelines?
The answer is probably yes. If a judge is persuaded that the lengthy sentences recommended by the Guidelines for merely possessing child pornography are wrongheaded, she can probably give a lesser sentence on that basis alone. This issue was grappled with in the Second Circuit case of U.S. v. Gerow handed down this week. In that case, the appellant claimed his lawyer at sentencing was ineffective for failing to raise the so-called Kimbrough argument with respect to child pornography sentencing enhancements. The defendant was sentenced to 240 months, the statutory maximum. The court disagreed, noting that the issue is not resolved in the Second Circuit and "it would have been reasonable for counsel to conclude that his energy was better spent" on other arguments.
September 30, 2009: Megan's Law and Child Pornography in New York. One question that arises in every child pornography prosecution is whether the defendant will have to register as a sex offender. In virtually all jurisdictions the answer is yes, but what that means varies drastically from state to state. New York has a three-tier system of registration -- Level One is relatively painless, with very limited community notification and a 20 year duration. Levels Two and Three, however, entail posting the offender's picture and the Board's version of the offense details on the internet for life.
In accepting a child pornography plea, many defendants presume they will be adjudicated Level One. Before late last year, that was a fair bet: absent other factors, merely possessing images of child pornography normally did not lead to Level Two or Level Three registration. But under New York's highest court's decision in People v. Johnson, judges now must impose points in the categories for number of victims and relationship to victim in almost all child pornography cases. The Court of Appeals in that case recognized that these points led to ridiculous (the Court used the word "anomalous") results: an offender who knows the kids in the pictures would score out to Level One, while a stranger -- i.e. someone who never met the victims -- would normally be Level Two. Therefore, the Court advised, the judge should score the person at the number of points dictated for his "presumptive risk level" and then consider whether that level was anomalous but only if the offender moves for a departure.
What does this mean for child pornography defendants? It means that you must advocate to get Level One and stay off the internet registry. While local prosecutors (and the Board of Examiners of Sex Offenders) have been slow to impose the Johnson holding, they are now catching up. Judges are requiring a showing of the anomaly -- something that sets the offender apart from other offenders -- to justify reducing the risk level to Level One. If you are facing child pornography charges or have been convicted of child pornography and are facing sex offender registration, please call our office at (212) 685-0999 for more information about how this change in the law might affect your case.
September 2, 2009: Do Sex Offender Registration Programs Work? The harrowing case of Phillip Garrido, a registered offender who nonetheless allegedly got away with kidnapping for 18 years and is under investigation for sex-related murders seriously calls into question the effectiveness of sex offender registration programs. The New York Times today ran a story about the "debate about the usefulness of the government-managed lists." If the goal of sex offender registration like New York's SORA is to further punish and harass offenders, they work exceedingly well. If the goal is to prevent serious sex crimes, they are a total failure as illustrated by the Garrido case. There is a simple reason for this: SORA and similar schemes -- now mandated by the federal Jacob Wetterling Act -- sweep far, far too many offenders into their ambit. People who pleaded guilty years ago to relatively minor misdemeanors without jail time find themselves swept up in the registry. As a result, they are limited in where they can live, face felony prosecution if they fail to keep their registration information up to date, and, worst of all, frequently have their photos, identifying information, arrest and conviction information posted on the internet. Close monitoring of serious offenders like Garrido is one thing and could prevent crime; dulling down the meaning of sex crimes to publish willy-nilly information on thousands of low-level one-time offenders is quite another and serves primarily to punish them again and again.
August 17, 2009: The Economist Cover Story on Sex Offender Registration. The British weekly news magazine The Economist recently did a lengthy cover story on America's Unjust Sex Laws, highlighting how a sex crime conviction, no matter how minor, can ruin your life in the United States. While the article focuses on other jurisdictions -- Georgia, especially, takes the hit -- and the national effects of the federal Adam Walsh Act, much of the draconian unfairness is just the same here in New York. New York, however, provides due process opportunities to avoid the publication of sex offender registry information on the internet and requires some degree of judicial supervision at most phases of the process. New York's residency laws (i.e. laws forbidding convicted sex offenders from living or working in certain locations), unlike those of states discussed in the article are local ordinances, not state laws, and, at least in one case, have been successfully challenged. The national scene, however, is grim: the article cites Human Rights Watch, a group normally on the front-lines in fighting torture, extra-judicial executions and the like, as opposing the excessive reach of the laws. The article was accompanied by an editorial supporting "reform" of overbroad sex crime laws, a concept not much talked about stateside, an almost never by any elected official.
June 26, 2009: Supreme Court Finds Strip Search is Unconstitutional and Lab Results Require a Live Witness. In two cases decided yesterday, the Supreme Court vindicated a student's Fourth Amendment right to be free from a strip search looking for Motrin and a defendant's Sixth Amendment right to confront a lab technician. In Safford Unified School District v. Redding, 13-year-old girl Savana Redding was suspected not only of possessing ibuprofen (the ingredient in Advil and Motrin, an emphatically non-narcotic anti-inflamatory pain reliever) but also of passing it out to her classmates. The school was so concerned that an innocent child might obtain headache relief that officials confronted Savana. They showed her the pill another student said she got from Savana and searched her backpack, but found nothing. An assistant principal then sent Savana with an assistant named Helen Romero to the school nurse's office. Romero and nurse Peggy Schwallier forced Savana to strip down to her bra and panties. Still nothing. So they made her "pull her bra out and to the side and shake it, and to pull out the elastic on her underpants, thus exposing her breasts and pelvic area to some degree." This was too much, even for today's Supreme Court. Savana sued. The court found that, based on these facts, the search was not reasonable under the Fourth Amendment. "Savana's subjective expectation of privacy against such a search is inherent in her account of it as embarrassing, frightening, and humiliating," wrote Justice Souter, for the majority. "The reasonableness of her expectation (required by the Fourth Amendment standard) is indicated by the consistent experiences of other young people similarly searched, whose adolescent vulnerability intensifies the patent intrusiveness of the exposure." Justice Souter found that under these circumstances, although the suspicion that Savana had pills was not unreasonable, the search was unreasonable because there was no real potential harm from the pain relievers at issue or any Savana actually had the pills in her underwear. The case was remanded for further proceedings.
If school officials had found pills in Savana's underwear, they would have had to identify them as illegal drugs in order to prosecute her criminally. In Melendez-Diaz v. Massachusetts, the question was whether the state could use at trial an affidavit from a lab technician saying a substance was cocaine. In a "rather straightforward application" of Crawford v. Washington, the Court held that the state must call a live witness, who is subject to cross-examination. Using an affidavit violated the Confrontation Clause. There is no question this analysis will also apply to rape kits and other physical evidence collected in sex crimes cases: under the Constitution, a live witness, subject to cross-examination, will be required to explain how the samples were collected and what they mean. Lab reports, by themselves, will not be admissible.
June 16, 2009: Attorney Margulis-Ohnuma Obtains Reversal of Convictions for Attempted Statutory Rape and Sex Abuse. A New York appellate court overturned an appalling conviction today when it reversed People v. Montoya. The defendant was a neighborhood handyman in Brooklyn who was alleged to have abused a 13-year-old girl. The girl and her mother testified against him. The mother claimed to have walked in on the defendant and the victim and found them both with their shirts off. But the defendant offered evidence he was working in the apartment and that he customarily worked shirtless. A number of people from the neighborhood stood ready to say he worked without a shirt, even on cold days. The judge not only would not allow the testimony, he did not allow cross-examination of the mother that would have showed the defendant was working in the apartment at the time.
The Second Department Appellate Division of the New York Supreme Court reversed, finding the trial was unfair for a number of reasons: the defendant was not properly warned about how he would be cross examined, the defense lawyer was not allowed to cross examine or call witnesses on key points, and confusing, prejudicial testimony was left uncorrected on the record, just to name a few. One of the counts of conviction was entirely unsupported by the evidence. The case shows how easy it is for authorities to obtain a false conviction when emotions run high at trial -- and, more than two years after the trial, how difficult it is to undo a wrongful conviction even when the trial was grossly unfair.
June 7, 2009: Sex offender registration level reduced where crime was sexual activity between a 20-year-old and a 16-year-old. New York's Appellate Division for the Fourth Department came out with no fewer than six decisions on sex offender registration issues on Friday. Most, of course, were brief affirmances upholding level two or level three risk levels in the face of challenges by defendants. One decision stuck out though, for a couple of reasons. In People v. Christopher Brewer, the Appellate Division did two very interesting things. First, it explicitly substituted its own discretion for the discretion exercised by the lower court in determining that the defendant was a level three offender. In other words, the appeals court held that it -- not the sentencing court -- had the last word on risk level. Even though the sentencing judge validly exercised his discretion in determining the defendant was level three, it was enough that the appellate division disagreed with that exercise of discretion. The defendant got one last bite at the apple on appeal.
And, in this case, the second bite was a very effective one. Even though the defendant was accurately assessed with enough points to be risk level three, there were special circumstances that led the appeals court to lower the level. What were those? That the crime consisted of sexual activity between the defendant, who was 20, and a willing 16-year-old girl -- not a particularly uncommon situation in sex crimes cases. It also helped that the defendant had not committed any other sex offenses (the court did not say whether he had any other prior convictions) and was in sex offender counseling by the time of the SORA hearing. Under the circumstances, the appeals court concluded, the sentencing court improvidently exercised its discretion by assessing him according to the Guidelines at level three. The assessment was reduced to level two.
March 13, 2009: You Don't Have to Commit a Sex Crime to be Forced to Register as a "Sex Offender" George Orwell would enjoy this little bit of doublespeak. Under a case decided last month, New York's highest court ruled that people could be forced to register as sex offenders even where there is "no proof that their crimes involved any sexual act or sexual motive." As a result, the court upheld the registration of three people who had been convicted of kidnapping and false imprisonment of children. They now appear on the sex offender registry, even though their crimes had nothing to do with sex. The case is People v. Knox et al.
February 3, 2009: Sex Crimes Advocacy Client's SORA Level Three Reduced to Level One on Appeal. A client of attorney Zachary Margulis-Ohnuma won his case on appeal when the Appellate Division, Second Department, reduced his Level Three adjudication to Level One. The client had originally been adjudicated Level One. However, the Suffolk County District Attorney's Office made a "motion" for an upward reduction after the client violated the terms of his probation. The judge accepted everything the DA's office said and increased the client to Level Three. Not so fast, we said: the court did not bother to hold a hearing, require a petition, or involve the Board of Examiners of Sex Offenders. The appeals court did not even look at the merits of the case -- they reversed the decision, adjudicated the client Level One, and advised that the DA could bring a proper petition if it wanted to do so. To see the full text of the decision (with the client's name removed), please click, Decision Reducing After Improper Modification.
January 8, 2009: A code for child pornography. We never cease to be amazed by the power and horror of child pornography. No other sort of contraband can be created, obtained, reproduced and distributed to others. Something as simple as a mass email could, at least technically, expose thousands of people to potential criminal liability. We recently learned about a code on the internet that is embedded in child pornography images to make them easier to find through traditional search engines. The code is R@YGOLD. If you are using this string to search for child pornography stop and think about whether what you are doing is worth risking your freedom. Federal law creates a five-year mandatory minimum prison sentence for receipt of child pornography -- that means if a prosecutor can prove you downloaded kiddie porn, he can lock you away for five years and the judge has no choice in the matter. Child pornography cases are energetically pursued by U.S. Attorneys' Offices. If you have been contacted by law enforcement (i.e. the police, the FBI, U.S. Customs, the postal inspectors or another government agency) or if you believe you are under investigation, call our law office at (212) 685-0999 right away.
January 12, 2010: Second Circuit strikes down release condition requiring sex offender to reveal status to girlfriends. In United States v. Reeves, a child pornography defendant was sentenced to more than three years' imprisonment to be followed by a term of supervised release with certain conditions. One of the conditions was that he had to let the probation department know when he entered into a "serious romantic relationship." Worse, he was required to tell the person he was in a relationship with that he had a history of possession of child pornography. The appeals court struck down the provision, finding the definition of "serious romantic relationship" was unduly vague and that the requirement was not reasonably related to the objectives of federal sentencing.
December 2, 2009: New York's High Court Overturns Conviction of Doctor Accused of Molesting Boys. In a forceful decision highlighting unfair tactics by a prosecutor, the New York Court of Appeals overturned the conviction of Dr. Phillip Ryback, a pediatric neurologist in upstate New York. At Dr. Ryback's trial in 2004, fourteen boys and their parents testified, alleging that he abused the boys while treating them. He was convicted of 12 felonies and 16 misdemeanors and originally sentenced to 48 years in prison (the sentence was previously reduced by the appellate division).
The court's decision focused on conduct by the prosecutor, who attacked Dr. Ryback as a "pedophile" and improperly suggested to the jury that many more patients had been abused. The court lays out a number of ways the prosecutor misled the jury, but the most telling was this: the prosecutor moved to sharply limit testimony of patients who wanted to testify in favor of Dr. Ryback, and so the defense was only allowed to call four patients. But in closing argument, the prosecutor used this against Dr. Ryback: "Congratulations," he said. "They found four patients he didn't molest." The decision is a refreshing reminder that the rules of court apply, even to prosecutors in child sex abuse cases. Dr. Ryback was represented on appeal by Paul Shechtman, Esq. and Nathaniel Marmur, Esq. of Stillman Friedman & Shechtman.
October 27, 2009: A Remarkable Decision Critiquing the SORA Guidelines from New York County Supreme Court. Justice Daniel Conviser has issued a 32-page, unpublished decision granting a downward departure from the presumptive risk level in People v. Santos. The decision, available as a .pdf through the following link, presents perhaps the best critique of the SORA Guidelines we have ever seen, by a judge or anyone else. The point of the decision is to reduce the level of community notification of a convicted child rapist from level three to level two. The key fact (akin to our case in People v. Abdullah, which Justice Conviser cites) is that the defendant stayed out of trouble in the fourteen years since he was released from prison -- except for a criminal conviction for failing to update his address under SORA.
In finding that a reduction from the presumptive risk level was warranted, Justice Conviser both lets loose an intellectual assault on the Guidelines and summarizes the evolving body of case law giving judges more and more discretion to depart from the Guidelines. The critique of the Guidelines is particularly fascinating and should be read in full. A few highlights:
- The Guidelines are not Based on Data. Justice Conviser points out that the Guidelines contain subjective value judgments and are not in any respect an actuarial risk assessment ("ARA") -- i.e. an attempt like the Static-99 to base the risk of re-offense on actual data relating to people with similar characteristics. "The [Guidelines' Risk Assessment Instrument], unlike ARAs, has never been validated by empirical data."
- Value Judgments Made by the Board of Examiners of Sex Offenders in the Guidelines are at Odds with Those Made by the Elected Legislature. In rejecting a data-based approach, the drafters of the Guidelines included values-based judgments about the harm to society caused by various forms of illegal sexual conduct. One would think these judgments would mirror those in the Penal Law -- i.e. the decisions made by the elected Legislature. As Justice Conviser points out, this is not always the case. For example, the Guidelines' Risk Assessment Instrument ("RAI") "assesses twice as many points for offenders who touch a victim inside the victim's clothing as it does for for offenders who touch a victim outside the victim's clothing." The Penal Law, however, quite self-consciously makes no such distinction: sexual contact is sexual contact, whether or not clothing is in the way.
- The Guidelines are Arbitrary. The Santos decision points out numerous anomalies in the Guidelines. Perhaps the starkest is this: if you have a prior misdemeanor sex crime conviction from before the conviction at issue, you can be assessed up to 40 points -- more than halfway to level two. If you have a misdemeanor conviction from a few days after you are convicted of the sex crime, no points are assessed.
- The Guidelines are Frozen in Time. The research on which the Guidelines are based was completed in 1995 -- fourteen years ago. The field has expanded by leaps and bounds since then, with much new data regarding recidivism rates, the efficacy of treatment and other issues relevant to assessing an offender's risk. The Guidelines have not kept up and a revision in 2006 made no substantive changes.
October 23, 2009: Kimbrough and Child Pornography Sentences in Federal Court. In federal court, attorneys have long criticized the stark disparity between sentencing for crack cocaine and powder cocaine because, under the U.S. Sentencing Guidelines, one gram of crack was the equivalent of 100 grams of powder. For years, the Circuit Courts held that this irrational scheme was no basis for lowering a crack sentence (or, for that matter, increasing a powder sentence). Then, in late 2007, the Supreme Court held in Kimbrough v. United States that courts could deviate from a Guidelines sentence just because the court thought the Guideline was wrong. Can this help with some of the draconian effects of federal child pornography sentencing under the Guidelines?
The answer is probably yes. If a judge is persuaded that the lengthy sentences recommended by the Guidelines for merely possessing child pornography are wrongheaded, she can probably give a lesser sentence on that basis alone. This issue was grappled with in the Second Circuit case of U.S. v. Gerow handed down this week. In that case, the appellant claimed his lawyer at sentencing was ineffective for failing to raise the so-called Kimbrough argument with respect to child pornography sentencing enhancements. The defendant was sentenced to 240 months, the statutory maximum. The court disagreed, noting that the issue is not resolved in the Second Circuit and "it would have been reasonable for counsel to conclude that his energy was better spent" on other arguments.
September 30, 2009: Megan's Law and Child Pornography in New York. One question that arises in every child pornography prosecution is whether the defendant will have to register as a sex offender. In virtually all jurisdictions the answer is yes, but what that means varies drastically from state to state. New York has a three-tier system of registration -- Level One is relatively painless, with very limited community notification and a 20 year duration. Levels Two and Three, however, entail posting the offender's picture and the Board's version of the offense details on the internet for life.
In accepting a child pornography plea, many defendants presume they will be adjudicated Level One. Before late last year, that was a fair bet: absent other factors, merely possessing images of child pornography normally did not lead to Level Two or Level Three registration. But under New York's highest court's decision in People v. Johnson, judges now must impose points in the categories for number of victims and relationship to victim in almost all child pornography cases. The Court of Appeals in that case recognized that these points led to ridiculous (the Court used the word "anomalous") results: an offender who knows the kids in the pictures would score out to Level One, while a stranger -- i.e. someone who never met the victims -- would normally be Level Two. Therefore, the Court advised, the judge should score the person at the number of points dictated for his "presumptive risk level" and then consider whether that level was anomalous but only if the offender moves for a departure.
What does this mean for child pornography defendants? It means that you must advocate to get Level One and stay off the internet registry. While local prosecutors (and the Board of Examiners of Sex Offenders) have been slow to impose the Johnson holding, they are now catching up. Judges are requiring a showing of the anomaly -- something that sets the offender apart from other offenders -- to justify reducing the risk level to Level One. If you are facing child pornography charges or have been convicted of child pornography and are facing sex offender registration, please call our office at (212) 685-0999 for more information about how this change in the law might affect your case.
September 2, 2009: Do Sex Offender Registration Programs Work? The harrowing case of Phillip Garrido, a registered offender who nonetheless allegedly got away with kidnapping for 18 years and is under investigation for sex-related murders seriously calls into question the effectiveness of sex offender registration programs. The New York Times today ran a story about the "debate about the usefulness of the government-managed lists." If the goal of sex offender registration like New York's SORA is to further punish and harass offenders, they work exceedingly well. If the goal is to prevent serious sex crimes, they are a total failure as illustrated by the Garrido case. There is a simple reason for this: SORA and similar schemes -- now mandated by the federal Jacob Wetterling Act -- sweep far, far too many offenders into their ambit. People who pleaded guilty years ago to relatively minor misdemeanors without jail time find themselves swept up in the registry. As a result, they are limited in where they can live, face felony prosecution if they fail to keep their registration information up to date, and, worst of all, frequently have their photos, identifying information, arrest and conviction information posted on the internet. Close monitoring of serious offenders like Garrido is one thing and could prevent crime; dulling down the meaning of sex crimes to publish willy-nilly information on thousands of low-level one-time offenders is quite another and serves primarily to punish them again and again.
August 17, 2009: The Economist Cover Story on Sex Offender Registration. The British weekly news magazine The Economist recently did a lengthy cover story on America's Unjust Sex Laws, highlighting how a sex crime conviction, no matter how minor, can ruin your life in the United States. While the article focuses on other jurisdictions -- Georgia, especially, takes the hit -- and the national effects of the federal Adam Walsh Act, much of the draconian unfairness is just the same here in New York. New York, however, provides due process opportunities to avoid the publication of sex offender registry information on the internet and requires some degree of judicial supervision at most phases of the process. New York's residency laws (i.e. laws forbidding convicted sex offenders from living or working in certain locations), unlike those of states discussed in the article are local ordinances, not state laws, and, at least in one case, have been successfully challenged. The national scene, however, is grim: the article cites Human Rights Watch, a group normally on the front-lines in fighting torture, extra-judicial executions and the like, as opposing the excessive reach of the laws. The article was accompanied by an editorial supporting "reform" of overbroad sex crime laws, a concept not much talked about stateside, an almost never by any elected official.
June 26, 2009: Supreme Court Finds Strip Search is Unconstitutional and Lab Results Require a Live Witness. In two cases decided yesterday, the Supreme Court vindicated a student's Fourth Amendment right to be free from a strip search looking for Motrin and a defendant's Sixth Amendment right to confront a lab technician. In Safford Unified School District v. Redding, 13-year-old girl Savana Redding was suspected not only of possessing ibuprofen (the ingredient in Advil and Motrin, an emphatically non-narcotic anti-inflamatory pain reliever) but also of passing it out to her classmates. The school was so concerned that an innocent child might obtain headache relief that officials confronted Savana. They showed her the pill another student said she got from Savana and searched her backpack, but found nothing. An assistant principal then sent Savana with an assistant named Helen Romero to the school nurse's office. Romero and nurse Peggy Schwallier forced Savana to strip down to her bra and panties. Still nothing. So they made her "pull her bra out and to the side and shake it, and to pull out the elastic on her underpants, thus exposing her breasts and pelvic area to some degree." This was too much, even for today's Supreme Court. Savana sued. The court found that, based on these facts, the search was not reasonable under the Fourth Amendment. "Savana's subjective expectation of privacy against such a search is inherent in her account of it as embarrassing, frightening, and humiliating," wrote Justice Souter, for the majority. "The reasonableness of her expectation (required by the Fourth Amendment standard) is indicated by the consistent experiences of other young people similarly searched, whose adolescent vulnerability intensifies the patent intrusiveness of the exposure." Justice Souter found that under these circumstances, although the suspicion that Savana had pills was not unreasonable, the search was unreasonable because there was no real potential harm from the pain relievers at issue or any Savana actually had the pills in her underwear. The case was remanded for further proceedings.
If school officials had found pills in Savana's underwear, they would have had to identify them as illegal drugs in order to prosecute her criminally. In Melendez-Diaz v. Massachusetts, the question was whether the state could use at trial an affidavit from a lab technician saying a substance was cocaine. In a "rather straightforward application" of Crawford v. Washington, the Court held that the state must call a live witness, who is subject to cross-examination. Using an affidavit violated the Confrontation Clause. There is no question this analysis will also apply to rape kits and other physical evidence collected in sex crimes cases: under the Constitution, a live witness, subject to cross-examination, will be required to explain how the samples were collected and what they mean. Lab reports, by themselves, will not be admissible.
June 16, 2009: Attorney Margulis-Ohnuma Obtains Reversal of Convictions for Attempted Statutory Rape and Sex Abuse. A New York appellate court overturned an appalling conviction today when it reversed People v. Montoya. The defendant was a neighborhood handyman in Brooklyn who was alleged to have abused a 13-year-old girl. The girl and her mother testified against him. The mother claimed to have walked in on the defendant and the victim and found them both with their shirts off. But the defendant offered evidence he was working in the apartment and that he customarily worked shirtless. A number of people from the neighborhood stood ready to say he worked without a shirt, even on cold days. The judge not only would not allow the testimony, he did not allow cross-examination of the mother that would have showed the defendant was working in the apartment at the time.
The Second Department Appellate Division of the New York Supreme Court reversed, finding the trial was unfair for a number of reasons: the defendant was not properly warned about how he would be cross examined, the defense lawyer was not allowed to cross examine or call witnesses on key points, and confusing, prejudicial testimony was left uncorrected on the record, just to name a few. One of the counts of conviction was entirely unsupported by the evidence. The case shows how easy it is for authorities to obtain a false conviction when emotions run high at trial -- and, more than two years after the trial, how difficult it is to undo a wrongful conviction even when the trial was grossly unfair.
June 7, 2009: Sex offender registration level reduced where crime was sexual activity between a 20-year-old and a 16-year-old. New York's Appellate Division for the Fourth Department came out with no fewer than six decisions on sex offender registration issues on Friday. Most, of course, were brief affirmances upholding level two or level three risk levels in the face of challenges by defendants. One decision stuck out though, for a couple of reasons. In People v. Christopher Brewer, the Appellate Division did two very interesting things. First, it explicitly substituted its own discretion for the discretion exercised by the lower court in determining that the defendant was a level three offender. In other words, the appeals court held that it -- not the sentencing court -- had the last word on risk level. Even though the sentencing judge validly exercised his discretion in determining the defendant was level three, it was enough that the appellate division disagreed with that exercise of discretion. The defendant got one last bite at the apple on appeal.
And, in this case, the second bite was a very effective one. Even though the defendant was accurately assessed with enough points to be risk level three, there were special circumstances that led the appeals court to lower the level. What were those? That the crime consisted of sexual activity between the defendant, who was 20, and a willing 16-year-old girl -- not a particularly uncommon situation in sex crimes cases. It also helped that the defendant had not committed any other sex offenses (the court did not say whether he had any other prior convictions) and was in sex offender counseling by the time of the SORA hearing. Under the circumstances, the appeals court concluded, the sentencing court improvidently exercised its discretion by assessing him according to the Guidelines at level three. The assessment was reduced to level two.
March 13, 2009: You Don't Have to Commit a Sex Crime to be Forced to Register as a "Sex Offender" George Orwell would enjoy this little bit of doublespeak. Under a case decided last month, New York's highest court ruled that people could be forced to register as sex offenders even where there is "no proof that their crimes involved any sexual act or sexual motive." As a result, the court upheld the registration of three people who had been convicted of kidnapping and false imprisonment of children. They now appear on the sex offender registry, even though their crimes had nothing to do with sex. The case is People v. Knox et al.
February 3, 2009: Sex Crimes Advocacy Client's SORA Level Three Reduced to Level One on Appeal. A client of attorney Zachary Margulis-Ohnuma won his case on appeal when the Appellate Division, Second Department, reduced his Level Three adjudication to Level One. The client had originally been adjudicated Level One. However, the Suffolk County District Attorney's Office made a "motion" for an upward reduction after the client violated the terms of his probation. The judge accepted everything the DA's office said and increased the client to Level Three. Not so fast, we said: the court did not bother to hold a hearing, require a petition, or involve the Board of Examiners of Sex Offenders. The appeals court did not even look at the merits of the case -- they reversed the decision, adjudicated the client Level One, and advised that the DA could bring a proper petition if it wanted to do so. To see the full text of the decision (with the client's name removed), please click, Decision Reducing After Improper Modification.
January 8, 2009: A code for child pornography. We never cease to be amazed by the power and horror of child pornography. No other sort of contraband can be created, obtained, reproduced and distributed to others. Something as simple as a mass email could, at least technically, expose thousands of people to potential criminal liability. We recently learned about a code on the internet that is embedded in child pornography images to make them easier to find through traditional search engines. The code is R@YGOLD. If you are using this string to search for child pornography stop and think about whether what you are doing is worth risking your freedom. Federal law creates a five-year mandatory minimum prison sentence for receipt of child pornography -- that means if a prosecutor can prove you downloaded kiddie porn, he can lock you away for five years and the judge has no choice in the matter. Child pornography cases are energetically pursued by U.S. Attorneys' Offices. If you have been contacted by law enforcement (i.e. the police, the FBI, U.S. Customs, the postal inspectors or another government agency) or if you believe you are under investigation, call our law office at (212) 685-0999 right away.