Thursday, July 19, 2012

Miranda Waivers Don't Override Immunity for Probationer's Compelled Testimony | State Bar of Wisconsin

Miranda Waivers Don't Override Immunity for Probationer's Compelled Testimony | State Bar of Wisconsin


By Joe Forward, Legal Writer, State Bar of Wisconsin
Miranda Waivers Don’t Override Immunity for 


Probationer’s Compelled TestimonyAugust 19, 2012 – The Wisconsin Supreme Court recently clarified that a probationer’s compelled, incriminating testimony cannot be used to prosecute new crimes, even if the probationer waived his Miranda rights before subsequent police interrogation.
Under Wisconsin law, sex offenders can be forced to take lie detector tests while on probation or parole. At the direction of his probation officer, sex offender Joseph Spaeth took a lie detector test in 2006, admitting to improper contact with minors.
Believing he violated conditions of probation, the probation officer contacted the Oshkosh police, which took Spaeth into custody on a probation hold. Officers read Spaeth his Mirandarights, including his right to remain silent, but Spaeth agreed to speak with the officers.
Spaeth’s subsequent statements implicated him in sexual assaults with minors. Police could not confirm any sexual assaults with the minor children at issue or their parents. But prosecutors used Spaeth’s testimony to charge him with four counts of sexual assault of a child.
Spaeth filed a motion to suppress his statements, which was denied.
Ultimately, Spaeth pled no contest and was convicted on four counts of child enticement. He was sentenced to five years in prison and 10 years of extended supervision.
Spaeth appealed, and the appeals court certified the case to the Wisconsin Supreme Court “to clarify if a statement made to law enforcement following a probationer’s honest accounting to an agent may become a ‘wholly independent source’” that can be used to prosecute a crime.
Compelled, Incriminating Statements Immune
Following Fifth Amendment jurisprudence on the issue, a Wisconsin Supreme Court majority (6-1) in State v. Spaeth, 2012 WI 95 (July 13, 2012), ruled that Spaeth’s compelled, incriminating, testimonial statements could not be used as evidence against him for criminal acts.
“Spaeth’s statement to officers is subject to derivative use immunity and may not be used in any subsequent criminal trial,” wrote Justice David Prosser for the majority, which reversed the convictions because the statements should have been suppressed.
The majority explained that the Fifth Amendment to the U.S. Constitution – and Art. I, Section 8 of the Wisconsin Constitution – protect individuals from self-incrimination. In general, a person must first assert the Fifth Amendment privilege to be protected by it.
Thus, police must give persons in custody notice of their Miranda rights, and admissions that occur after Miranda rights are waived are generally admissible. But an exception applies when a person is compelled to testify, as Spaeth was compelled through a lie detector test.
In Kastigar v. United States, 406 U.S. 441, the U.S. Supreme Court acknowledged that the government can compel testimony but must grant a corresponding right of immunity.
The Wisconsin Supreme Court explained that the Department of Corrections has the authority to compel sex offenders to take lie detector tests. But incriminating statements can only be used “for purposes relating to correctional programming, care, and treatment of the offender.”
“This limitation on use of the compelled statements is constitutionally required,” wrote Justice Prosser, noting that immunity must be extended to compelled statements under Kastigar, as explained in State v. Evans, 77 Wis. 2d 225, 252 N.W.2d 664 (1977).
“We see this case as one involving compelled, incriminating, testimonial evidence,” Justice Prosser wrote. “As a result, Spaeth’s statement to police may not be used in any criminal proceeding because the statement was not derived from a source wholly independent from the compelled testimony. It was derived from compelled testimonial evidence.”
The majority rejected the state’s argument that Spaeth’s statements to police were “sufficiently attenuated” from the admissions to his probation agent, thus making them admissible.
“The attenuation doctrine – as normally understood to include such factors as the passage of time between improper police conduct and, say, a confession – is simply inapplicable when police are following up compelled, incriminating, testimonial statements,” Justice Prosser wrote.
The decision does not prevent law enforcement from investigating “legitimate independent sources” not derived from a compelled statement to pursue criminal prosecution, the majority explained. Compelled statements can also be used to revoke probation or parole, it noted.
Chief Justice Shirley Abrahamson concurred but wrote separately based on a concern that Justice Patience Roggensack’s sole dissent “makes some strong statements of law that appear to break from precedent and does so without the benefit of briefs or argument.”
Justice Roggensack concluded that Spaeth’s statements were not incriminating or compelled, although the state conceded that argument, and his statements to police were voluntary.
“Spaeth made no record from which a court could conclude that his statements to [the agent] were anything other than voluntary statements,” she wrote. “Therefore, the confession to law enforcement should not be analyzed as the fruit of incriminating, compelled testimony.”

Wednesday, July 11, 2012

Sentencing Law and Policy: "Are Our Sex Crime Laws So Radical They Deter Reporting?"

Sentencing Law and Policy: "Are Our Sex Crime Laws So Radical They Deter Reporting?"

Wisconsin Law Too Hard on 17-Year-Olds? - US Politics Today

Wisconsin Law Too Hard on 17-Year-Olds? - US Politics Today

Opponents of Wisconsin's criminal codes argue that the laws are too hard on 17-year-old offenders.

July 11, 2012 /24-7PressRelease/ -- At age 17, you are too young to vote. You also can't buy alcohol or cigarettes, and your access to some common household items -- like over-the-counter medications containing ephedrine and chemicals like benzene -- could be limited. If you are 17 and commit a crime, though, you will face the same consequences as an adult. Why is that important? Because the juvenile justice system focuses on rehabilitation, while the adult criminal justice system emphasizes punishment instead.
The different goals of the two justice systems mean that an identical crime could have very different consequences depending on where the case is tried. The disparity was highlighted in the notorious case involving a 17-year-old Wisconsin boy accused of attempted murder after allegedly stabbing his father and brother. His family and legal counsel argued that the boy's mental health issues, history of sports-related head injuries, drug abuse and young age necessitated keeping his case in the juvenile justice system so that he could get the treatment he needed. The court -- bound by the 1996 law that automatically puts 17-year-old defendants in the adult criminal system -- had no choice, and charged him as an adult.
While young Kirk Gunderson's case was pending in criminal court, he was held in solitary confinement in the LaCrosse County jail. He killed himself without ever having his case heard by a jury.
Details of Wisconsin's "Categorical Exclusion" Law
Critics argue that this tragic story is one of many underscoring the negative consequences of the law. Wisconsin is one of few states to take this approach, referred to as "wholesale age exclusion," by the U.S. Department of Justice Office of Juvenile Justice and Delinquency Prevention. The law was passed in Wisconsin in 1996, and completely closes the door of the juvenile justice system to defendants age 17 or older, ensuring that charges will be brought against those offenders in the adult criminal system.
Proposed Legislation to Change Current Law
Research by the Department of Corrections found that 17-year-olds held in adult prisons had a noticeably higher recidivism rate than both fellow juveniles released from juvenile detention and adults released from adult prisons. The Campaign for Youth Justice notes that over the past five years, 15 states have adjusted statutes to rise the age of juvenile court jurisdiction and keep young offenders out of adult jails.
In fact, Wisconsin's neighboring states, Illinois and Indiana, have already made similar changes. State Rep. Fred Kessler of Milwaukee is once again -- for the third time -- pushing for Wisconsin to join in these changes and remove the arbitrary 16-year-old age limit for juvenile justice.
The proposed legislation may lead to changes in Wisconsin's criminal justice system. These changes will hopefully help juvenile offenders, but it might make navigating through the system even more difficult. As a result, if you or a loved one is charged with a crime, it is wise to seek the counsel of an experienced Wisconsin criminal defense attorney to better protect your rights.
Article provided by Kohn & Smith

Monday, July 9, 2012

Do Sex Offenders Re-Offend? - Avvo.com

Do Sex Offenders Re-Offend? - Avvo.com


Sex Offense: the Most Heinous of All Crimes?

That's the way each night's serving of Law and Order, Special Victims Unit begins. Sex offenses are the most heinous crimes imaginable and in some cases they may be. But I would have thought genocide, pervasive and inescapable racism, war, torture and terrorism might place higher on the list of heinous crimes. Maybe it's because we as individuals can do little about these large issues but we can persecute sex offenders. Are they really the most heinous of all criminals?
2

Sex Offense Is a Very Broad Category of Different Crimes

A sex offense requiring lifetime registration resulting in an almost out right ban on participation in society covers crimes in California that range from indecent exposure to oral copulation with a child under 10 (PC 288.7(b)) Certainly someone who exposes himself in an attempt to induce a sexual response is not an exemplary character. He is not, however, the same type of person who would rape or sodomize a child. Our laws punishing sexual offenders make no distinction between the offenses and each sex offender becomes a pariah for life.
3

Are Sex Offenders Always Repeat Offenders?

The evidence that one sexual offense is an indicator of sexually predatory behavior for a lifetime is unsupported by any scientific evidence. An adult who has sex with a 17 year old minor is not certain to repeat that act, particularly if the two are close in age. The strongest evidence that such people are incorrigible comes from tabloid newspapers that prey on public fears. The laws addressed to recidivism are based on two false assumptions. The first is that every sex offender always re-offends and the second is that our children's greatest danger comes from strangers. Both propositions are worthy of P.T. Barnum who said that no one ever went broke overestimating the stupidity of the American people.
4

Who Does Your Child or Daughter Really Have to Fear?

Every statistic and every study shows that 99% of the sexual offense are committed by family members or close friends of the victim. Every sex case that I have handled involved children left in harm's way from an immediate family member. Although there are famous cases involving strangers who prey on children the number is minuscule compared to the the number of offending fathers, uncles, brothers and cousins. The simple truth is that persecuting those who have had a sex crime in their past does very little to limit the spread of sexual molestation in this country or any other.

Friday, July 6, 2012

In the news by Karen Franklin PhD: Groundbreaking research: One out of every 10 rape convictions wrong?

In the news by Karen Franklin PhD: Groundbreaking research: One out of every 10 rape convictions wrong?

As a young man, Michael Jones pleaded guilty to back-to-back attempted molestations of two girl strangers. However, he adamantly maintained his innocence while in prison and on parole. He said his lawyer had coerced him into pleading guilty by threatening him with life in prison if he went to trial. Michael was one of a handful of Black people in a rural white community; both of the little girls were white. He was identified when police brought him to the station and showed him to the girls. There was no lineup procedure with foils; he was the only choice the girls were given. On the basis of his two convictions, government evaluators diagnosed Michael with pedophilia and recommended civil commitment. 

As a teenager, Paul Smith tried to molest a younger boy. He was arrested at the scene and confessed. He disputed only one point in the victim’s statement: that he had threatened the younger boy with a gun. Police searched his home and found no gun. Pre-conviction polygraph testing indicated he was being truthful when he denied having a gun. Over the ensuing years, however, clinicians in sex offender treatment programs hammered at him to admit that he had used a gun. Government evaluators said Paul’s “denial” and “minimization” of his gun use influenced their recommendation for civil commitment. 

In cases such as these, I am consistently struck by the naïveté of clinicians and forensic evaluators alike, who accept police reports and especially victim accounts as the gospel truth. From my former career as a criminal investigator, I can attest to the fact that even impartial observers with no conscious motivation to distort are never 100 percent accurate in describing events they have witnessed. As Daniel Schachter so clearly articulates in Seven Sins of Memory, distortion is the nature of the human animal. It is even more likely to occur in situations involving high levels of stress, fear and emotionality. 

So I was happy to see that the issue of false convictions for sex offenses is getting some much-needed and long-overdue attention. Or, let me qualify that: Happy about the empirical research, but less than thrilled with a theoretical article on the psychological dynamics underlying false accusations. Let me take those up one at a time. 


READ the rest

In the news by Karen Franklin PhD: Groundbreaking research: One out of every 10 rape convictions wrong?

Thursday, July 5, 2012

One in four teenagers sexting nude pictures; more likely to be sexually active | News - Home

One in four teenagers sexting nude pictures; more likely to be sexually active | News - Home


University of Texas researchers followed the texting and email habits of hundreds of teens

Published On: Jul 02 2012 05:19:58 PM EDT


More and more teenagers appear to be sexting; in fact, as many as one in four teenagers is sending a nude picture of themselves in an email or text message.
University of Texas researchers studied the sexting habits of 948 teenagers.
More than half of the teenagers, about 57 percent, said they were asked to send a sext with many bothered by having been asked to do so.  Thirty-one percent said they had asked for a sext and 28 percent said they sent a naked picture of themselves through a text or email.
Researchers said teenagers who had done sexting were also more likely to have been dating and to be sexually active than those who did not sext.
Kate Eshleman, a Cleveland Clinic Children's Hospital psychologist, agrees with their findings.
"A lot of kids have engaged in this behavior. Either asked, been asked, or sent. And then what they also found is that kids that are engaging in this behavior are at an increased likelihood to be engaging in other physical sexual activity," said Dr. Eshleman.
Dr. Eshleman said kids need to understand the potential consequences of sexting and that parents need to be involved in teaching them that.
"Educating the parents so that they know and then leaving it up to the parents, as well as other providers: teachers, pediatricians, that sort of thing to educate the children as well," said Eschleman.
Researchers said their results suggest teenage sexting is prevalent and can indicate a young adult's sexual behavior.
The study was published in the journal Archives of Pediatrics and Adolescent Medicine.

Tuesday, July 3, 2012

Over a quarter of teens are sexting - Chicago Tribune

Over a quarter of teens are sexting - Chicago Tribune

July 02, 2012|Genevra Pittman | Reuters



NEW YORK (Reuters Health) - More than one-quarter of Texas teens have sent naked photos of themselves through text or email, according to the latest study on so-called "sexting."
Researchers found 10th and 11th graders who sexted were more likely to have had sex, and girls who'd sent naked photos of themselves also had a higher chance of engaging in risky sex, including having multiple partners and using drugs and alcohol before sex.
Parents "should be talking to their kids about it, if nothing else for a conversation about sexual behaviors and a conversation starter about risky sex," said Jeff Temple from the University of Texas Medical Branch in Galveston, who led the new study. He added that the new findings show more teens are sexting than previous studies suggested. Because his team used an ethnically-diverse sample of public school students, Temple said he expected their results to be more on-par with national trends in sexting.
In a survey of 948 teens from seven different Houston-area schools, 28 percent said they had sent a naked photo of themselves via text or email and 57 percent said they'd been asked to send one. Most teens, especially girls, said they had been at least "a little bit" bothered by a request to send a naked picture.
More teens who reported sexting had also had sex: 77 percent of girls and 82 percent of boys who'd sent a naked photo of themselves had started having sex, compared to 42 percent of girls and 45 percent of boys who'd never sexted.
Boys who sent their own pictures were no more likely to have "risky" sex than those who abstained from sexting. But more girls who sexted reported having multiple sex partners in the last year - 56 percent, compared to 35 percent who didn't sext - and more of them also used drugs and alcohol before sex.
Temple and his colleagues wrote in the Archives of Pediatrics & Adolescent Medicine that it was impossible from the surveys to tell which came first, the sexting or the risky, in-person sexual behavior. But they add that asking teens about sexting might give pediatricians and parents a hint about their other sexual behaviors as well as help to start a conversation about safe sex.
According to one study published last year based on telephone interviews, only one percent of youth had sent a sexually-explicit photo or video, and between six and seven percent had received one (see Reuters Health story of December 5, 2011.)
Temple said the preteens and teens surveyed for that research may have been whiter and wealthier than the United States on average - and they might not have been completely truthful over the phone, which could have skewed the estimates. He said the new findings, suggesting a much higher rate of naked-photo sending and receiving, point to a possible need to reconsider consensual teen sexting as a serious crime.
"If we extrapolated this 28 percent to nationwide, that's millions of kids that are prosecutable for child pornography," he told Reuters Health. Resources might be better spent teaching kids about safe sex or addressing the problem of cyber bullying, for example, than trying to crack down on teens that have sent or received naked photos consensually, according to Temple.

'It's not working': Debate over Green Bay sex offender ordinance intensifies | Green Bay Press Gazette | greenbaypressgazette.com

'It's not working': Debate over Green Bay sex offender ordinance intensifies | Green Bay Press Gazette | greenbaypressgazette.com

US~Observer - New Hampshire legalizes jury nullification

US~Observer - New Hampshire legalizes jury nullification

Please visit the link above, it is an excellent article.

Monday, July 2, 2012

If It Saves One Child

If It Saves One Child


By Shelly Stow
Published: 07/02/2012

FilecabinetIt would be difficult today to find a person who had no idea what the sex offender registry is. It would be equally difficult to find someone with only a passing interest who didn’t feel that it is a good thing to have. It started in most states as a law enforcement tool identifying repeat, sexually violent child predators. It now has an estimated 700,000 names on it and encompasses acts as varied as consensual teen sex, taking and sending a photo of one’s own breasts, and rape. And even though many with much more than a passing interest, including most research studies and experts in the field, are pronouncing the shaming roster to be an ineffective tool in fighting sexual crime, the battle cry of its supporters still resounds whenever the subject comes up: “If it saves one child…!”

“If it saves one child….” Even though we cannot know if “it” has, that statement is responsible for the abuse and even death of many children.

There is no actual evidence that the registry has saved even one child; however, we do know that many, many thousands have had their lives made a living hell because of it. These are the children of those on the registry, some of whom committed violent crimes, but many, even most, who did not. All on the registry, with their families, are subject to the whims of local and state restrictions including, but by no means limited to, severe restrictions on where they may live; denial of access to libraries, parks and beaches with their children; and restrictions barring the registered parent from often even being within a 1000 feet of the school his child attends. Very recently a woman took the picture of a registrant that she printed from the Internet to the school where the registrant’s five-year-old son was a kindergarten student; she showed it around, warning children about this man. His little boy stood and cried. The registry doesn’t differentiate. It doesn’t make it clear to people who threaten, harass, and do physical violence to registrants, their property, and their families whether daddy raped someone or whether he had sex with mommy before they were married when she was a year too young or whether he looked at an illegal image on a computer or whether he was innocent and falsely accused. And, sadly, most don’t really care. The perception is that everyone on the registry has committed a serious crime and that most if not all offended against children. And if they have children of their own who are harmed, as so many have been and so many more will be, it is just collateral damage because the registry might—MIGHT—save one child.

“If it saves one child….” Children themselves are registrants on sex offender registries. Nine years old is apparently the youngest at which children have been put on the registry (Delaware; Michigan). (1) Several states, including but not limited to Colorado, Delaware, Georgia, Kansas, Ohio, Michigan, and Texas, register children as sexual criminals at ages ten and eleven. By the time twelve is reached, it isn’t even a rarity. And the fifteen year old who is the child victim for having consensual sex with an eighteen year old partner becomes a predator and registered sex offender when his or her partner is fourteen. In Wisconsin last year a district attorney did everything he could, and bragged about it, to have a six year old prosecuted and targeted for sex offender registration for “playing doctor.”(2) Three year olds caught looking at and touching each other in a daycare bathroom were reported and investigated for “sexual fondling.”(3) Some of these children, after several years of being on the registry and treated as monsters, have committed suicide. The registry didn’t save any of these children; it destroyed them.

“If it saves one child….” Children do need saving. According to the Justice Dept. and the CMEC, many thousands are sexually abused and molested every year. We pour everything into the registry, millions of dollars and uncountable hours. State after state has voiced complaints about the cost of keeping up with the ever-increasing expenses and strain on limited manpower hours to satisfy the requirements of the registry. The federal government, knowing this, has offered huge financial incentives to states to bring them into federal registry compliance. However, this is futile; the registry is not the answer. Children aren’t sexually abused and molested by nameless, faceless people on the registry. They are abused and molested by their family members and acquaintances, by those they know and trust and love, by those they see and interact with on a daily basis, often by those they live with. By the most conservative estimates, this is true for 94 out of every 100 children who are molested. The latest figures from the Justice Department's Bureau of Juvenile Justice show these startling facts: for sexual crime against a child six or under, 58.7% is committed by family members, 39.7% by family acquaintances, and 1.8% by strangers; the registered sex offenders who are in that stranger pool are so few that it is virtually incalculable. As the age of the child increases, the figures alter, but only a little. The risk to children ages 12-17 is 94.3% from family and acquaintances, 5.7% from strangers, and, again, the percentage of registered offenders in the stranger pool is minuscule. Keeping the focus on those on the registry keeps us from dealing with these facts. It keeps us looking in another direction, and it leaves us nothing in the way of resources with which to deal with it.

“If it saves one child,” isn’t good enough. Thousands, hundreds of thousands, need saving. When and how and with what will we save them?
  1. http://michiganmessenger.com/34538/juveniles-well-represented-on-mich-sex-offender-registry
  2. http://www.examiner.com/article/wisconsin-da-says-6-year-old-is-a-sex-offender-for-playing-doctor
  3. http://www.ksdk.com/news/article/285802/3/State-investigators-looking-into-alleged-fondling-at-pre-school
Shelly Stow is a member of Reform Sex Offender Laws [RSOL] and Texas Voices, the Texas affiliate of National RSOL. 

VIDEO REPORT: Court Upholds Individual Mandate In Health Care Law

VIDEO REPORT: Court Upholds Individual Mandate In Health Care Law

I think that this is important because this is just one more infringement on our freedoms.  Did you know, that taxing income is unconstitutional?  That it was brought about as a 'temporary' measure to help during the New Deal, not so temporary any more now is it.

They tax a lower middle class person 30% of their wages right off the top, put it in an account to collect interest and consider it a favor to give it back to you when you are owed a refund at tax time.  But if you didn't pay in enough throughout that same year they will penalize you with interest, when they offer none of the money they made off of the contributions that you put forth when you earned your paycheck.

In the past four years our federal government has squandered the taxes they have stolen from us, and still want more.  They blame everyone else but themselves for the financial problems we are in, where is the integrity in our government, where is the accountability and where is this stuff they like to call transparency?  It has been appearing for some decades now that those statements are all smoke and mirrors.

Fellow citizens the house lights have been raised and the show is over, it is time to vote out all incumbents and vote in a new guard.  We are the people of this United States and it is time for us to take back our country!