Law 17/ Final Research Paper
OF THE PEOPLE FOR
OUR SMALLEST VICTIMS
The enactment and enforcement of Child Protective Laws safeguarding our children from pedophiles, and murderers, if left to our government, would not be in effect today if it were not for the fortitude and dedication of the parents of missing and murdered children, who have fought tirelessly to bring communities together, and to demand that government along with its judicial and law enforcement divisions be held accountable for their lack of involvement and enforcement of the laws.
This discussion will seek to demonstrate how children of our
society were not important enough to lawmakers and judicial authority
to protect them in any manner and it will point out how many states
simply will not do anything to pass laws to harshly punish child
molesters. It will outline some of the tragedies that suddenly
thrust parents of missing and murdered children into a whirlwind
of anger having discovered there were no laws in place to prevent
this horrific crime from happening along with the learned awareness
that the perpetrators were usually repeat offenders.
There will be a brief overview of some of the laws enacted because of community out rage and dedication of the parents of missing and murdered children along with inclusion of a brief history of those parent's horrendously tragic events.
Related cases demonstrating the lack of judicial adherence to these laws, through to present day, which will demonstrate repeat offenders were then and are now being released on early parole, given reduced sentences and using Constitutional Amendments by which to by bass the sentencing guidelines and laws so hard fought will be so included, inclusive of a brief overview of the appeals process time line which lean to the criminals and defer for many years, closer for the families of the murdered children.
What this essay will not cover is: The controversy over criminals' rights being violated, the controversy over whether the laws enacted to safeguard our children are fair to the criminals, or any discussion regarding what the difference may be between a repeated sex offender having to have so many lifelong restrictions placed on him in comparison to his doing his time and like any other criminal going on as though it never took place.
. Because legislators and judges take no responsible effort to select crime appropriate sentences, misdirected punishments are to present day imposed to those who not only have offended but also will offend again. The perpetrators and pedophiles, who were previously incarcerated, were being released onto our streets with sentences only fit for a conviction for petty theft, making it probable that the crime against their child would never have occurred if the judiciary had done its job responsibly and within the boundaries of procedural guidelines, not their own judiciary discretion. To current day, legislatures in many States are failing to pass mandatory minimums for child sexual predators due to those states governors blocking the bills. Because of this, parents have focused their anger into a lifelong dedication of not only getting laws onto the books, but to demand accountability for those law enforcement, judicial authorities and those legislative members who repeatedly allowed for the release of repeat offenders in- spite of the laws.
Statistics show us that in any child abduction, the first three hours are the most critical to recovering the child alive. According to the FBI Child Abduction Serial Killer Unit, over 40% of the abducted children who were murdered happened within those first few hours; 90% are within the first 36 hours [FN 1}
Two through three hundred children abducted is in what are
classified "stereotypical" [FN 2] kidnappings of which
50 to 150 of those are murdered each year. And according to The
first National Incidence Studies of Missing, Abducted, Runaway
and Thrown away Children (NISMART-2) of October 2002, which had
studied the year 1999, an estimated 797,500 children were reported
missing, of those 58,200 were abducted by non-family members,
and one of the five leading cause of juvenile mortality is homicide
from ages one through twenty four. In 1995, there were 234,000
sex offenders under correctional supervision with the average
time served of five years. [FN 3]
The lack of due process, invasion of privacy and excessive punishment based on constitutional infringements on statutes are common challenges of the offender.
Many of the courts have struck down the notification programs of these sexual predators, registration requirements guidelines have been ignored by parole officers along with the fact that issuance of warrants for the re-arrest of a sex offender who failed to report or register have not been issued. Laws are now in place requiring those convicted of a sexual offense to register prior to release from prison. However, the system has a great deal of difficulty in locating many of their parolees, as well as those who have "done their time", but remain failing to register. While some states have passed laws such as, Jessica's Law, which harshly punishes child molesters, other States remain to date, unwilling to do anything while the lives of our children remain endangered because of this.
Many years ago, the murder, or disappearance of a child went virtually stale because there were no laws to protect the children, there were no local, and very few national resources available in our system and it was not equipped to investigate these missing children reports. Data systems consisted mostly of information on stolen property but little on a child who was missing. There was no foresight, purpose, or conviction through the 1980's on the part of law enforcement and legislation along with courts not taking this all seriously. Until present day, unless judges were dealing with what they considered a heinous crime or one of celebrity of the offender, sentencing practices were below the radar of both public officials and the community. (Quoting John Walsh)
The first time anyone stood up and took notice of the fact that there were no Child Protection Laws in place was in 1874, New York. A nurse/social worker by the name of Etta Wheeler, and concerned neighbors became aware of a nine-year-old child, Mary Ellen McCormack, who at the hands of her foster parents, was being consistently and severely abused. Together they asked the District Attorneys office for help in removing the child from her home. However, the authorities told her that they could do nothing, as there was no law on the books to accomplish such a thing. Wheeler, with great determination and assistance from others managed to have the child declared a creature of the animal world and therefore the case went before the court. Thanks to their efforts, Mary Ellen was finally safe. At that time, there was The Society for The Protection of Animals, but nothing in place for the protection of a child.
The public, having been informed of this situation through
media, made its voices heard and demanded something be done for
the protection of the children, hence, The Society for the Prevention
of Cruelty to Children was formed on December 15th 1874 (NYSPCC
Incorporation 1875), and by 1900 there were 161 such groups in
the United States.
It's stated purpose was;" to rescue little children from the cruelty and demoralization which neglect, abandonment and improper treatment engender; to aid by all lawful means in the enforcement of the laws intended for their protection and benefit, to secure by prompt means the prompt conviction and punishment of all persons violating such laws and especially such persons as cruelly ill treat and shamefully neglect such little children of whom they claim the care, custody or control."[FN 4]
Through the book by Dr. C. Henry Kepe and Ray E. Helfer published in 1968, "The Battered Child", only then did people become aware that abuse by parents and caregivers actually did happen, although it would take another twenty years into the 1980's for the public's awareness of sexual abuse/assault of children to come into play.
PARENTS GET INVOLVED I
A recognizable name in the field of advocacy for those innocent and helpless victims is John Walsh. John's son, six-year-old Adam, was abducted from a public mall, his remains being found sixteen days later dismembered, one hundred miles from his home. John learned quite quickly and tragically, that there was no co-ordination between local authorities and the FBI, and both were actually reluctant to get involved in these cases to help search and locate a missing child. Law enforcement were not equipped nor trained to investigate missing children and most had not worked on a murder case of a young child. The FBI would get involved in a stolen vehicle case, but not a missing child unless there was evidence of interstate travel of the child. [FN 5]
Victims at that time actually had no rights and according to
John Walsh, "Up to, and through the 1980's, the system responded
to missing and exploited children in a haphazard and even lackadaisical
manner, without foresight, purpose, or conviction."
There were few that the parents could turn to for advice, and at the national, local, and State level there was less". John further states; "While we feared for our son's safety, we were also angry at the system that was supposed to protect our son and help us. In spite of all of our efforts, we could not find answers to our questions or people who could help."
Because of this tragedy, John went to the community and began
making public the hidden blunders of our system and asked for
help and support in order to enact laws to safeguard children
from this horrific result. He has testified before Congress and
state legislatures more than 55 times on crime, missing children,
and victim's issues. He and his wife with great fortitude and
dedication had managed the passage of the Missing Children Act
of 1982 and The Missing Children's Assistance Act of 1984 that
created the National Center for Missing and Exploited Children,
which serves as the national clearinghouse for information on
missing children and the prevention of child victimization. [FN
6} On November 8, 2005 Bill HR3132 [ FN 8] Passed in the House
because as John puts it," Rather than sitting and waiting
for laws to change, I went to Capitol Hill, along with representatives
of the National Center for Missing and Exploited Children and
the Boys and Girls Clubs of America. We marched through the halls
of Congress bringing our message straight to the hearts of those
who can fix the problem." He goes on to say, "Guess
what, they listened". [FN 7]
Many of his accomplishments may appear small, to many, however, every second a child goes missing, is another second closer to that child being murdered and sexually assaulted. "Pictures on Milk cartons, which circulate state to state of missing children, it only takes one person to notice that child from the milk carton to get that child home safe and capture his perpetrator. National data bases, with information on missing children, now serve to advise all authorities to be on the look out for that child in each and every state; pictures on kiosks, at airports, in public buildings, in daily mailings, gives us a vast network of resources and services at all levels of government to bring a child home." (Quoting JW) In 1983 The National Center for Missing and Exploited Children, was the only State clearinghouse yet today, there is one in each State. Federal Resources like the FBI's Child Abduction and Serial Killer Unit, Morgan P. Hardiman Task Force, (which was authorized through the Violent Crime Control and Law Enforcement Act of 1994, to help state and local authorities investigate the most difficult cases involving missing and exploited children), The Federal Agency Task Force on Missing and Exploited Children, (which was announced by Janet Reno in 1995 to compliment the Hardiman Act), its purpose , "to coordinate services for missing children and determine gaps or overlaps in related Federal activity." The task Force was established to coordinate Federal delivery of services for missing and exploited children and their families, which compliment the investigative work of the Hardiman Act, and the Office for Victims of Crime, all focus much of their attention on child victims. They now work together to co-ordinate efforts and have now learned to work together as a comprehensive system.
The National Child Search Assistance Act was passed in 1990, (42 USC 5779 and 5780, which mandated certain actions including; " no federal, state, or local law-enforcement agency will establish or observe a waiting period before accepting a missing child case; all agencies will enter, without delay, reports of missing children younger than 18 years of age in to the MCIC Missing Person file, agencies will update identifying information on each case in MCIC within 60 days, each case will receive proper investigative action and Investigators will maintain a close liaison with NCMEC on appropriate cases." Enactment of this law was due to agencies who continued to be reluctant to take a report of a missing child. [FN 9]
More recently, an addition to our vast network of resources
is "Team Adam", which is patterned after the National
Transportation Safety Board's system for sending trained specialists
to the site of serious transportation incidents. "Team Adam
does the same thing in serious child-abduction and child sexual
victimization cases; it is an on site response and support system
providing assistance to local enforcements agencies. Rapid response
is a key factor that correlates directly to the recovery of a
child, who is still alive after taken by abductors. With 18,000
state and local law enforcement agencies in the United States,
some agencies may not be familiar with all of the available resources.
Team Adam, will help to ensure a quick and thorough response
to these cases and will help to ensure that law enforcement knows
of and has access to the best tools and latest technology to greatly
improve the odds of a successful recovery of the victim and prosecution
of the assailant."[FN 10] Today, parents now have vast resources
available to them to help bring their child home; they are no
longer on their own in this tragedy, as the Walsh's were.
The Walsh's' who turned their own tragedy into positive awareness of the community to help fight government on all levels and get laws on the books and the fight goes on, it will never be done with as long as repeat offenders are set free to commit their acts on the next child.
As for the murderer of his young child, the prime suspect was Ottis Toole, who was never charged in the case, and died in prison while serving life for other crimes.
PARENTS GET INVOLVED II
Washington State's 1990 Community Protection Act included America's first law authorizing public notification when dangerous sex offenders are released into the community. [FN 11] However, it was the brutal 1994 rape and murder of seven-year-old Megan Kanka that prompted the public demand for broad based community notification.
In Hamilton, New Jersey, Megan Kanka, was murdered and raped by neighbor, Jessie Timmendequas, a pedophile with prior convictions for sex offenses involving small children. The community later discovered he was sharing his residence with two other known sex offenders. Although local authorities had been fully aware of the criminal histories of Timmendequas and his roommates, police had never attempted to enlighten the community of those facts. The result was the death of another small innocent victim. Once again, the parents of a murdered child in their outrage, and in the midst of a horrendous crime, resulting in the loss of their precious child, campaigned to prevent this from happening again.
On May 17, 1996, President Clinton signed Megan's Law. Megan's
Law which requires the following two components:
Sex Offender Registration - The 1994 Jacob Wetterling Act requires the States to register individuals convicted of sex crimes against children.
Community Notification - Megan's Law allows the States discretion to establish criteria for disclosure, but compels them to make private and personal information on registered sex offenders available to the public. Sex offenders pose a high risk of re-offending after release from custody
Prior to this law, information on locations of sex offenders was unavailable to the public, although police allegedly knew their whereabouts. Every state now has some form of Meagan's Law on their books. However, in spite of Megan's Law, States are not in conformity or taking seriously the guidelines of Megan's Law.
Flaws of states with regards to Meagan's Law
Parents for Megan's Law, (("PFML") recently conducted
two national surveys. The first survey evaluated sex offender
registration compliance. The results indicate that approximately
24% of the nation's sex offenders are failing to comply with state
registration requirements. The second study evaluated accessibility
of sex offender information through various forms of community
notification. This study resulted in a national report card being
issued. States are assigned grades based upon their answers to
ten questions. ((FN 12]
Last year, Pennsylvania's notification system was the subject of a scathing auditor-general's report, and it received an "F" from the national Megan's Law watchdog group. The group said the Commonwealth stands to flunk again this year, even though it has made improvements. [FN 13]
By federal mandate, states must make registries of convicted sex offenders available to the public. The registries also must designate "sexually violent predators" -- those who have a "mental abnormality or personality disorder" that predisposes them to committing sex crimes.
Street addresses are released only for sexually violent predators, who account for 104 of more than 7,800 sex offenders on the state registry. For no sex offenders are the ages or genders of victims listed, nor is there a brief narrative explaining what offenders were convicted of doing.
Head of the Pennsylvania State Police's Megan's Law section, Lt. McNeal stated: "Pennsylvania's sex offender registry contained everything the law allows. Allowing people to search the web site only for sexually violent predators would give the false impression that only those offenders posed a potential threat". Five to ten percent of registered sex offenders have moved without notifying the police, as required, (half the national average.) While some states alert Web users that a sex offender is a fugitive, Pennsylvania does not. Although discussed, placing fugitive information on the site has been rejected, "The legislation was very specific .it didn't specify that." [Note: Lt. McNeal, would not provide the Pittsburgh Post-Gazette with a list of Pennsylvania's sexually violent predators] She stated, "All that state law requires is that this designation be provided on the Web site profiles of individual offenders"
Recently, the state rolled out an enhanced Web site that includes the dates that photos of sex offenders were submitted. Lt. McNeal said this would allow "savvy users," those who know that new photos are taken when sexually violent predators confirm their addresses quarterly and sex offenders do so annually, to be able to discern if someone is a fugitive. New links also will let people know if sex offenders remain incarcerated.
Lt. McNeal conceded that even these enhancements don't make it easy for Pennsylvanians to get some information that is readily available in other states.
"It would be easier if there was a change in the law," she said. "If the legislators would change the law and let us put up the full address [for all sex offenders], all of the problems would go away."
The Lt. would not provide the Pittsburgh Post-Gazette with a list of Pennsylvania's sexually violent predators. She said all that state law requires is that this designation be provided on the Web site profiles of individual offenders.
This is obvious failure of the Legislature to structure the state laws in specific language to enable this state to conform to the National requirements of Megan's Law. Or could this be failure, once again of the officials our children look to protect them, in using discretionary enforcement along with interpretation of the laws?
The registry is necessary and thus the rationales behind it are to protect the public from sex offenders as a primary governmental interest. The privacy interests of those convicted of sex offenses are less important than the government's interest in public safety and the release of the information about them, to the public agencies and the general public will assist in protecting the public safety.
Florida, which earned an "A+" which provides on its Web site the street addresses of all sex offenders; dated photos; personal details such as height, weight, scars and tattoos; the gender of victims and whether they were minors; and the status of offenders -- supervised, confined in a county, state or federal facility, released or absconded. The web site provides visitors to search only for designated sexually violent predators or to list all sex offenders living within one mile increment, up to five miles from an entered address.
Among those states receiving an F/grade are: Ca. Colorado, Connecticut, DC, Hawaii, Michigan, Missouri, New Hampshire, following many states graded with D's, C's, B's and what each state should be graded, the A's.
(FN Currently Michigan's Public Sex Offenders Registry remains without photos while Public Act 238 of 2004 requires the PSOR to publish those photographs.)
PARENTS GET INVOLVED III
In Arlington, Texas, 1996, nine year old Amber Hagerman was
located four days later with her throat slit, and lying naked at the bottom of a creek bed. During the time of the abduction, Amber had been riding her bicycle in daylight hours with a number of witnesses observing the abduction. Her murder suspect was described to police however has never been located.
Because of this tragic event, citizens of the community suggested
that Dallas radio stations should repeat news bulletins about
abducted children, as is done in weather reports. The Association
of Radio Managers put together the Dallas Amber Plan in July of
1997 to help safely recover missing children. Because of that,
eight children had been located and the Amber Alert expanded to
cities and States nationwide. [FN 15]
There have been numerous successful conclusions resulting from the activation of the Amber Alert System. One such case is that of five-year-old Jon C. Martinez. In March of 2003, due to the alertness of a citizen after an Amber Alert observation, this child safely returned to his home.
With all likelihood, if the Amber Alert had of been in place
during the murder/kidnapping of Poly Klass, (by Richard Davis)
in 1993, with all probability, Polly may have been returned home
safely. Law Enforcement actually had her killer in their custody
within sixty minutes of the crime; they had helped him pull his
car out of a ditch. Her abductor alluded arrest, however, as
they had no information that a child had been abducted. He was
also a repeat offender, out of prison too soon.
A sampling of the pro-active, diversified citizens inspired to implement variations on the Amber Alert include:
· Mrs. Robin Trumbull, a young mother with a strong social conscience created the statewide Michigan Amber Alert after hearing about it at a Klaas Kids Foundation sponsored town hall meeting.
· To give meaning to the death of their kidnapped daughter Traci, Chris and Terry Conrad initiated the localized Corcoran, California TRACI Alert.
· To create a legacy in the name of her kidnapped daughter, Colleen Nick inspired the Arkansas' statewide Morgan Nick Alert.
· A sense of duty drove Officer John Goad of the North Carolina Center for Missing Persons to begin the regional NC CAN Alert System.
There are all too many of these horrendous crimes, which have resulted in wonderful laws that have been toward the safety of our children. Laws have finally passed through the Legislature requiring strict sentencing for repeat offenders, notification of sex offenders living in neighborhoods and if it were not for the judicial incompetence of many, a great number of children with all probability would still be alive today, verses in a pine box due to a brutal murder by a repeat offender
Judicial Blunder I
Most recently is the case of a District Court Vermont Judge
by the name of Edward Cashman who sentenced a 34-year-old man,
(Mark Helett), who had raped a seven-year girl over a four-year
period, ( to age ten), to sixty days in jail, suspending the
rest of the sentence. The child rapist confessed to repeatedly
raping the child over a four-year period. Cashman argued at the
sentencing phase with prosecutors who were pushing for a mandatory
eight - 20-year prison term.
In the words of Judge Cashman, "The one message I want to get through is that anger doesn't solve anything. It just corrodes your soul a lengthy prison term will accomplish nothing but harden this fellow he needs treatment instead of punishment for this crime."
The judge in this case sympathized with the rapist, with
the logic that the rapist." would be better served",
out of jail so that he could attain treatment, while the State
of Vt. said they would provide him treatment in prison from day
one. Quoting Cashman, "Sentencing is not the end of a problem;
it should be the start of a solution".
Judge Cashman also revealed that he once handed down stiff sentences when he first got on the bench 25 years ago, but he, " no longer believes in punishment"; (Cashman);
"I discovered it accomplishes nothing of value; it doesn't make anything better; it costs us a lot of money; we create a lot of expectation, and we feed on anger."
. According to Bill O'Reilly of Fox News, a Vermont local
newspaper actually rallied in support of this Judge alleging,
"Lengthy jail terms without rehabilitation will not accomplish
anything. A different approach is needed, one divorced from cheap
political demagoguery." As stated by O'Reilly; "Governor
Jim Douglas, Senators Leahy and Jeffords, and Howard Dean, just
didn't appear too concerned over the matter. The little girl's
rights were not important and a good explanation for this was
that both the press and politicians were protecting Cashman because
a man who is a major force behind the scenes in Vermont politics,
Harlan Sylvester, chairperson of the governor's Council of Economic
Advisors, is Cashman's" brother in law."
Well, under the vast national pressure, and an instruction from Vermont's Governor calling for the resignation of Cashman, Judge Cashman reversed his own decision and the sentence for this offender increased to a three to ten year term.
A Vermont Statute reads as follows", Title 13: Crimes and Criminal Procedure, Section 3252 (C) (b) (1), Chapter 7:
"A person who engages in a sexual act with another person under the age of 16 and (1) the victim is entrusted to the actor's care by authority of law or is the actor's child, grandchild, .shall be imprisoned for not more than 35 years, or fined not more than $25,0000, or both. "
This Judge Cashman had the power and the authority to sentence this criminal to a sentence to fit the crime and proportionate to his past crimes. However, upon his judicial authority took it upon himself to slap this person on the wrist, and this should result in the removal of the Judge under Article 6 and 7 of the Vermont States Constitution.
Quoting Bill O'Reilly of Fox New, "Somehow I thought protecting kids by keeping vicious child predators locked up; somehow I thought that was part of America's justice system. I guess I as wrong." [FN 17]
The Vermont Statutes also reads at section 58, "Every officer of State, whether judicial or executive shall be liable to be impeached by the House of Representatives, either when in office or after resignation or removal for maladministration. The Senate shall have the sole power of trying and deciding upon all impeachments. When sitting for that purpose, they shall be on oath Judgment in cases of impeachment shall not extend further than to removal from office and disqualification to hold or enjoy any office of honor or profit or trust under his state. But the person convicted shall, nevertheless, be liable and subject to indictment trial judgment and punishment according to law."[FN 18]
Does anyone at this point of the situation observe any of the House of Representatives initiating impeachment procedures of the judge under this statute? Government has no concern for the children and has to date, only passed Child Protective Laws because the voices of the people were loud, strong and determined.
Vermont State Constitution, Article 6, ["That all power being originally inherent in and co[n]sequent derived from the people, therefore, all officers of government, whether legislative or executive, are their trustees and servants; and at all times, in a legal way, accountable to them." [N 20]
It was only through the people that enough pressure was placed on the situation that the judge reversed his own decision and that the Governor actually and finally called for his resignation. Vermont Representatives were backing up his original decision until the nation spoke out.
Chapter II at 58 of the Vermont Constitution Section 58, (Liability
to; senate to try; judgment)
"Every officer of State, whether judicial or executive, shall be liable to be impeached by the House of Representatives, either when in office or after resignation or removal for maladministration."
"The Senate shall have the sole power of trying and deciding upon all impeachments. When sitting for that purpose, they shall be on oath, or affirmation, and no person shall be convicted, without the concurrence of two-thirds of the members present. Judgment in cases of impeachment shall not extend further than to removal from office and disqualification to hold or enjoy any office of honor, or profit, or trust, under this State. But the person convicted shall, nevertheless, be liable and subject to indictment, trial, judgment, and punishment, according to law."
Vermont State Constitution, Article 7: "That government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community, and not for the particular emolument or advantage of any single person , family, or set of persons who are a part only of the that and that the community hath an indubitable, unalienable, and indefeasible right, to reform or alter government, in such manner as shall be, by that community, judged most conductive to the public wealth." [N 20]
Also under Article III Section I of the US Constitution, "... The judge, both of the Supreme and inferior courts shall hold their offices during good behavior."
It appears to this reader that when laws were enacted for
the sentencing of a child molester, the community looked at that
as "instituted for the common benefit, protection, and security
of the people
" Upon a judge's personal beliefs, discretion
as it may, he took it upon himself to benefit, "any single
person", the perpetrator.
Further, Article 4 of the Vermont Constitution should protect the rights of the victim and she should receive at the very least remedy, a satisfactory jail sentence for this monster that violated her civil rights. What is this victim's life going to be like now? The State and its Judge Cashman should be concerned about getting help for this small victim, but instead they are all too concerned about the perpetrators need for help. Does this child not have a right to justice?
Vermont State Constitution, Article .4, "Every person within this state ought to find a certain remedy, by having recourse to the laws for all injuries or wrongs which one may receive in person, property or character; every person ought to obtain right and justice, freely, and without being obliged to purchase it; completely and without any denial promptly and without delay; conformable to the laws." [FN 18]
Chapter I of the Vermont Constitution: " and have natural and unalienable rights enjoying and defending life and liberty and pursuing and obtaining happiness and safety "
Amendment XIV of the US Constitution further protects the right of this child.
The Vermont legislature has failed to pass mandatory minimums for child sexual predators. This effort has been blocked by Democrats, and Republican Gov. Douglas who "refused to get involved." Without mandatory minimums, judicial authority remains to be at one's own discretion.
Judicial Blunder II
Ohio Judge John Connor, sentenced 46 year old Andrew Selva who had sexually brutalized two boys, ages five and twelve over a period of three years, under a plea bargain whereas Selva admitted to raping the boys in a variety of savage criminal ways, not to a stiff prison term, but merely probation stating," He's got a disease, like I've got a disease. I don't know that prison would have helped except for revenge and revenge is not in the sentencing guidelines."
The sentencing guidelines in the state of Ohio call for a ten year prison terms, which is not punishment enough to fit this crime. However, Connor utilized his judicial discretion, ignoring the minimum sentencing guidelines. The "disease" Connor had referenced in his own case was alcoholism with at least two DUI's on his sheet. [FN 19]
JUDICAIL BLUNDER III
Alejandro Avila kidnapped, sexual molested and asphyxiating
five year old Samantha
Runnion on July 15, 2002, after having snatched her from her front yard in Stanton California. Samantha was playing with a friend when Avila drove up asking if they had seen his Chihuahua. He grabbed little Samantha, who was fighting to get free and yelling to her friend to go and get her grandma. The next day, her body was discovered in neighboring Riverside County.
Alejandro Avila, 27 years old, the man convicted in her murder, had previously been to the location where Samantha lived during 1988-1999. His ex girlfriend's daughter lived in the same complex as the Runnion family. His relationship ended with the mother 1999-2000. In 2001, Avila was charged with molestation her nine year old daughter and another young girl, but had been acquitted on all charges. Judge William Froeberg allowed the girls whom Avila was acquitted of molesting to testify in the murder trial, as well as a third girl who also claims Avila abused her. One of the girls in the 2001 case lived for a time in the same apartment complex as Samantha.
With regards to Avila's prior acquittal of child molestation,
her family member stated:
Erin Runnion "I blame every juror who let him go, every juror who sat on that trial and believed this man over those little girls, I will never understand. And that is why he was out. And that is why his sickness was allowed to do this. [FN 16] On July 25, 2005, Avila was sentenced to death. [LCD.CVAA138877 (2005)]
Judicial Blunder IV
John Evander Couey, age 46 confessed to authorities in Homosassa Florida that he kidnapped nine-year-old Jessica Lundford from her bedroom on February 23, 2005. He also confessed that not only was nine year old Jessica alive and in his closet for three days, one of which investigators had visited the house, but he also admitted burying her alive. It was determined by medical examiners that the cause of death was Asphyxiation and sexual assault. Discovered more than three weeks after she disappeared and approximately 150 yards from her home, little Jessica was located. (Couey could see into the bedroom of Jessica from where he was staying.)
When police actually decided to go looking for him, they
learned that he no longer resided where he was registered to live,
per his parole arrangement, he was actually staying with a relative
who denied he was there. He has an extensive criminal record,
one of which in 1991 was the fondling of a child under the age
of 16. Records do not show the case was resolved.
In 1978, during a house burglary, it was alleged he grabbed a girl in her bedroom, placing his hand over her mouth, and kissing her, he was sentenced to ten years, however was paroled in two years.
Couey was not considered a high priority offender, though it was on record that he twice asked the state for psychiatric treatment because he believed he had a mental problem and could not control his sexual attraction for young children. In 2003, he had served time for numerous drug-related criminal offenses, yet his probation officer, who later denied he knew of Couey, as being a registered sex offender, permitted him to take a job at a middle school. A year later, at the same school Jessica attended, he again worked for her school, without anyone ever checking his criminal background before employing him.
To make matters worse, the prosecutor would not indict three people who allegedly helped John Couey throughout his last murderous series of events.
Is this law enforcement and judicial blunder? Gee, might be. First, no one knew he no longer lived at the address on record he gave as a registered sex offender. As a fact of the matter, Florida State authorities allege they alerted County Sheriffs when Couey failed to respond to a letter verifying his address. It was at that time he was considered a missing sex offender. However, the Sheriffs maintain that Florida State sent the letter to the wrong address and therefore they never received it. His own probation officer placed him smack into the middle of an elementary school with a job, "without knowing he was a sex offender", and one year later Couey worked at the same school Jessica attended without anyone of the state school employees checking his criminal record.
Prior to all of this, he asked for psychiatric help admitting his attraction to young children. In addition, he was held in prison for just two of a ten-year conviction that involved improper conduct with children. [Fn20]
Under the Florida Statutes, it is clear language as to what constitutes not only the failure to register but too, that the act is considered as a Felony of the third degree
CRIMINAL PROCEDURE AND CORRECTIONS Chapter 943
DEPARTMENT OF LAW ENFORCEMENT Florida
943.0435 Sexual offenders
(9) (a) " A sexual offender who does not comply with the requirements of this section commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084."
(b) "A sexual offender who commits any act or omission in violation of this section may be prosecuted for the act or omission in the county in which the act or omission was committed, the county of the last registered address of the sexual offender, or the county in which the conviction occurred for the offense or offenses that meet the criteria for designating a person as a sexual offender."
10) " The department, the Department of Highway Safety and Motor Vehicles, the Department of Corrections, any law enforcement agency in this state, and the personnel of those departments; an elected or appointed official, public employee, or school administrator; or an employee, agency, or any individual or entity acting at the request or upon the direction of any law enforcement agency is immune from civil liability for damages for good faith compliance with the requirements of this section or for the release of information under this section, and shall be presumed to have acted in good faith in compiling, recording, reporting, or releasing the information."
The statute holds that the Department of Corrections,
law enforcement and school administrators is "immune"
from civil liability for damage for good faith compliance with
the requirements of this section or for the release of information
under this section.
This indicates the preferential treatment given to members of the community in authority, with immunity for "any" of their actions, which in this case involved the parole officers' failure of "good faith compliance".
Further, there are State Statutes, which made it a crime to assist the sexual offender in eluding police. The prosecutors' office did not indict any of those persons involved in this crime
13) "Any person who has reason to believe that a sexual offender is not complying, or has not complied, with the requirements of this section and who, with the intent to assist the sexual offender in eluding a law enforcement agency that is seeking to find the sexual offender to question the sexual offender about, or to arrest the sexual offender for, his or her noncompliance with the requirements of this section:
(a) Withholds information from, or does not notify, the law enforcement agency about the sexual offender's noncompliance with the requirements of this section, and, if known, the whereabouts of the sexual offender;
(b) Harbors, or attempts to harbor, or assists another person in harboring or attempting to harbor, the sexual offender; or
(c) Conceals or attempts to conceal, or assists another person in concealing or attempting to conceal, the sexual offender; or
(d) Provides information to the law enforcement agency regarding the sexual offender that the person knows to be false information,
commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. "
CRIMES Chapter 843
OBSTRUCTING JUSTICE Florida (2003)
843.12 Aiding escape.--Whoever knowingly aids or assists a person in escaping, attempting to escape, or who has escaped, from an officer or person who has or is entitled to the lawful custody of such person, is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
JUDICAIL BLUNDER V
Frank Jarvis Atwood at 28 years old, a pedophile and drifter
was paroled in May 1984 after serving a 1981 California conviction,
for the kidnapping of an eight-year-old boy he had knocked off
his bicycle and forced to fellate him. Shortly after his parole,
he went to Texas, in violation of his parole. [1382 Cal.App.4th
In 1974, he was sent to a mental health facility for lewd and lascivious conduct with a 14-year-old girl.
Just days after he was in Tucson, eight year old, Vicki Lynne Hoskinson, was riding her bicycle, when she disappeared. There were witnesses, to the incident and one of them took down a license number. The FBI contacted Atwood's parents who told them that Atwood was getting his car fixed in Kerrville. He was arrested and his car searched, ten days later, in Texas and was charged and arrested for her kidnapping "with intent to cause death, physical injury or a sexual offense on the victim". Seven months later, Vicki's remain were found in the desert.
The trial was moved to Phoenix, because of the vast amount of coverage. The jury convicted Atwood on March 26, 1987. He is almost 22 years now on death row and used up one of his appeals. While he sits on death row alive and well, he has managed to become married and study to receive a degree and has his own website itemizing reasons why he is innocent of the charges. [FN 21]
On appeal from the Superior Court (Pima) of first-degree felony murder and kidnapping his automatic appeal to the Arizona Supreme Court was decided. While he was convicted in 1974 for lewd and lascivious conduct for a crime that occurred on June 18, 1974, Arizona's 1974 equivalent A.R.S. 13-652 provided for a sentence of five years to life for the offense. Atwood argued that the statute that succeeded 13-652, which modified the sentence to less than life imprisonment. should control because it was effect at the time the defendant was sentenced for the crime in California, (Vicki) The Court clarified that the relevant date for (F)(1) purposes is the date the prior offense occurred, not the date of sentencing for that offense, or the date of sentencing for the capital murder conviction. They also found that the mitigating circumstances he alleged were insufficiently substantial to call for leniency and that he had failed to prove by a preponderance of the evidence the existence of further mitigating circumstances. The court affirmed convictions and sentences. [State v. Atwood, 171 Ariz 576] 832 P. 2d 593 (1992)
This is a classic example of the failure of the parole board
to adequately supervise this criminal.
However, these officers are immune from liability, from any accountability what so ever.
JUDICIAL BLUNDER VI: RELAVANCE TO ATWOOD
Nearly five years later in, Fleming, v. The State of California [34 Cal.App.4th 1378] (1995), the personal representative for the estate of Vicki Lynne Hoskinson appealed from the dismissal of their action against the State of Ca. and its Parole Officer Robert McLean for failure to prevent the brutal and tragic murder of Vicki, by Atwood, a parolee. The trial court had sustained both defendants' demurrers on the grounds of immunity.
Facts: Atwood was paroled from California state prison in 1984, after a two-year term of which he was actually given eight years. Atwood had knocked a child off his bike and forced him to fellate him; he had a history of pedophilia, and a provision of his parole was that he remains within the borders of California and that he not associate with children. [Page 34 Cal. App. 4th 1382].
In August of 1984, in violation of his parole, he went to Arizona, and Enid, Oklahoma. The police in Enid notified the parole board and the defendants that Atwood was in Oklahoma in violation of his parole. One month later, Atwood admitted to his parole officer that he violated the conditions of his parole. The parole officer had been told later that day that not only had Atwood been with a five year old child earlier that day, (a violation of his parole), but also that he had sent explicitly sexually orientated postcard to the child and that he was carrying a five inch knife, ( a weapon no parolee is able to possess.) Six days later, Atwood missed his weekly parole appointment because of an eye injury, and denied the accusations when confronted by the parole officer of the statements made about him. Eight days later Atwood's father told the parole officer that Atwood has left the state and was in Texas. For unspecified reasons in the complaint, he was arrested in that city. He was convicted in the Arizona kidnapping of Vickie in March 1987.
The plaintiffs alleged;" claims against the state for failing to perform the mandatory and statutory duty to arrest Frank Atwood, the trial court erred in dismissing plaintiffs claims because the state's conduct also gives rise to liability under Arizona law and alleges a claim for violation of civil rights under 42 U.S.C. section 1983. California governmental immunity statutes do not apply to federal civil rights claims in state court."
The court found that the Defendants are immunized by Government
Code section; 845.8, which provides; "Neither a public entity
nor a public [Page 34 Cal. App. 4th 1383] employee is liable for:
(a) Any injury resulting from determining whether to parole or release a prisoner or from deterring the terms and conditions of his parole or release or from determining whether to revoke his parole or release."
(b) Section 846 state; "Neither a public entity nor a public employee is liable for injury caused by the failure to make an arrest or by the failure to retain an arrested person in custody."
(c) These statutes are clear and govern this case.
(d) In Thompson v. County of Alameda (1980) 27 Cal.3d 741, 753-754[167 Cal. Rapt. 70, 614 P.2d 728, 12 A.L.R. 4th 701] ; " By their very nature parole and probation decisions are inherently imprecise a large number of parole violations occur Although we fully recognize that not all violations involve new or violent offenses, a significant proportion do. Notwithstanding the danger illustrated by the foregoing statistics, parole and probation release nonetheless comprise an integral and continuing part in our correctional system authorized by the Legislature, serving the public by rehabilitating substantial numbers of offenders and returning them to a productive position in society."
The exception in this case to the courts citations is breach of a "mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury and that an injury of that kind was proximately caused by its failure to discharge the duty " (Gov. Code, 815.6] Defendants were required to arrest Atwood by section 3059 of the Penal Code, which provides, "If any paroled prisoner shall leave the state without permission of the Board of Prison Terms, he shall be held as an escaped prisoner and arrested as such". (Quoting statements within the case at issue).
The court disagreed with the illogical and protective rationale that " A mandatory duty is one "which a governmental entity is required to perform, as opposed to a permissive power, which a governmental entity may exercise or not as it chooses." [Morris v.County of Marin (1977) 18 Cal. 3d 901, 908 [136 Cal. Rptr. 251, 559, P.2d 606]. (1b) "Penal code section 3059 does not specify who must arrest the parolee, or how long he must beheld after his arrest.. Moreover, the provision is part of a statutory scheme characterized by the broad discretion of the parole authority."
The court goes on to further state that; "the alleged breach was not a legal or proximate cause of plaintiffs' injuries, as required by the statute. (3) "Proximate cause, "is that cause which, in natural and continuous sequence, unbroken by any efficient intervening cause, produce the injury and without which such result would not have occurred".' App. 3d 848, 857 [197 Cal. Rptr. 914]. "Here, the failure to arrest Atwood was not in itself a cause of the injury, since arrest without a period of incarceration would not necessarily have prevented the crime. Incarceration, however, would have involved procedural steps involving the exercise of discretion and these have broken the cause chain. (Id. At pp. 858-859]
"Liability under Government Code section 815.6 arises
Where the statute creating the duty is designed to protect against the injury which occurs. The sparse legislative history involving paroles shows that Penal Code section 3059 was not intended to protect the public against the risk of criminal attack by a parolee who leaves the state without permission. Rather, the provision is aimed at keeping the parolee available to meet with the parole officer by subjecting him or her to arrest as an escapee."
All of the sequential actions of Atwood and his parole officer of August through September indicate that there was "a natural and continuous sequence, unbroken by any efficient intervention". If there, had been proper monitoring of this parolee and if the parole officer had re-arrested Atwood, a convicted sex offender for violation of his parolee, as he should have and required by law to do, then Vicki would not have been murdered, because Atwood should have been locked up with the very first out of state violation.
If the government, including its individual parole officers
are not required to perform as a "mandatory" duty of
knowing the whereabouts, and upholding the conditions of the
consequences for his parolee if he breaks the terms of the his
parolee, then why are they receiving a paycheck for being the
"big brother" authority over that parolee. If this
is just a permissive power, in which a governmental entity may
exercise "or not as chooses", then why do we have these
people in a position to monitor our parolees?
They have guided themselves in this case as well as others, with a back door method of escape, no accountability in the way in which the law is interpreted..
It is once again clear to this writer that judicial blunder ruled this outcome. They appear to use the law to suit their personal discretion.
Relevance to Parole Officers Responsibility
In Scott v. Callahan, [39 Wn .2d 801 (1951)], the petitioner
Scott had been sentenced to a term of not more than 15 years in
prison. [p.802] after he served five years of his sentence, the
Board released him on parole. A year later, the board issued
a final discharge from supervision releasing him from all obligations
imposed by parole. Four years later, the Board revoked Scott's
parole because he engaged in conduct specifically prohibited by
conditions of his parole. [p. 803]. He brought a habeas corpus
petition alleging the Board lost jurisdiction over him when it
entered the final discharge.
The court affirmed the Board's continuing jurisdiction and found that the boards' final discharge was not the end of the sentence, but rather just the end of active supervision by the board.
This is relevant in part because it demonstrates that the board's duties extend to cover a vast area of discretion. The Board has continuous jurisdiction and supervision over their parolees. As the following guidelines from the CDC indicates, as a matter of law, Frank Atwood should have been violated on his parole violations and sent back to prison and was not. This is another perfect example of the government and its enforcement branches not being held accountable for their actions. A criminal with his record is classified as high risk according to the CDC. However, put this in front of the judges, and all they can figure is how to twist the meaning of the "intent" of the legislature when various statutes and laws placed onto the books. This is absurd.
California Department of Corrections Book of Regulation
"The basic conditions of parole imposed on all parolees are to report immediately to their assigned parole agent upon release from prison and as directed by the agent; to immediately report any address or employment change; to obey all parole agent instructions; to carry no weapons, including guns and knives with long blades; and to not commit crimes.
Parolees convicted of specified sex offenses, drug sales, or arson must register with a local police or county sheriff's office. In addition, special conditions of parole (and sometimes more than one) have been imposed on many parolees."
Most parole violations involve criminal conduct. Some parolees
who commit new crimes are prosecuted for the criminal offense
in the courts and sentenced to a new prison term.
The BPT has adopted regulations requiring that the CDC parole division report to it, among other matters, any parolee who is involved in violent or serious crimes, who had a gun or long-bladed knife, or who has fled from parole for more than 30 days. The BPT regulations also state that any parolee who served prison time for a violent or serious offense must be reported to BPT for "any criminal conduct", language that BPT is now interpreting to include failure of a drug test by these parolees. "
Parole agents regularly conduct on-site visits to the homes and workplaces of the parolees on their caseload and carry out other follow-up contacts by telephone
Present Classification of Parolees by CDC
"High Control Cases: Parolees engaged in or suspected of criminal activities, or who have a high risk of re-involvement with criminal gangs, violent or sexual offenses, or large-scale drug trafficking"
"Each parolee classification has been assigned points based upon the purported degree of difficulty and risk of supervising the parolees in that group. High Control and High Services cases are assigned three points, Control Services cases are two points"
"As of fall 1993, about 65 percent of parolees apprehended for alleged parole violations were returned to custody by BPT and 35 percent were continued on parole. As of fall 1997, however, about 90 percent of the parolees were being returned to custody by BPT and 10 percent were being continued in parole. "
In the case of People v. Mendoza, [81 Cal.App.4th 179 (2000)]
"Raymond Mendoza had prior convictions of lewd and lascivious acts upon children under the age of 14 [Pen. Code, 288, subd. (1)]. the result of his first conviction in 1985 was a no contest plea to violation of that code. Although the information of that case alleged there were six victims, he was charged with just one. His sentence was a total of six years. In 1991, he was charged with two additional counts of lewd and lascivious acts upon a child under the age of 14 for separate acts upon the same victim. He entered a plea of no contest to one count and admitted that he had suffered a prior serious felony, resulting to a total prison term of thirteen years. Two experts at trial testified that; "Mendoza had committed sexually violent offenses against more than two victims and that he had been diagnosed with a mental disorder affecting his volitional capacity, namely pedophilia, and that it appeared likely that appellant would continue to engage in sexually violent criminal behaviors if released from prison."
Mendoza's witness' testified," he did not have a diagnosed mental disorder which affected his volitional capacity and that it was not likely he would continue to engage in sexually violent criminal behavior if released form prison."
A petition to civilly commit Mendoza was filed by the Merced
County District Attorney's office in 1997, as a sexually violent
predator and ordered him held pending trial.
"After a jury trial, they found Mendoza to be" a sexually violent predator within the meaning of Welfare and Institutions Code section 6600". The trial court ordered him committed for two years at a state hospital.
On appeal, Mendoza alleged that the court improperly admitted hearsay evidence and expert testimony to prove the underlying of his prior sexual offense.
The Appeal court affirmed and held that such evidence may be admitted at the trial of a person alleged to be sexually violent predator. ("The Welfare and Institutions Code section 6600, (a), permits the prosecution to establish the details of the underlying offenses through hearsay testimony.)
In this case, the criminal attempted to shorten his time and gain ultimate freedom to go out and victimize another child. Although there have been blunders in our court system, this case was not one of them.
In order to sustain a commitment under the SVP Act,"
the prosecutor must prove, beyond a reasonable doubt, that the
offender is a "sexually violent predator." A "sexually
violent predator, is defined as a person who has been convicted
of a sexually violent offense against two or more victims for
which he or she received a determinate sentence and who has a
diagnosed mental disorder that make the person a danger to the
health and safety of others, in that it is likely that he will
engage in sexually violent criminal behavior. " ( Wel. &
Inst. Code, 6600, subd. ) 1). A "sexually violent offense"
is an act "committed by force, violence, duress, malice,
or fear of immediate and unlawful bodily injury" and resulted
in a conviction of an enumerated offense. Subd. (b). If the
victim of the underlying offense was a child under the age of
14 and that the act involved substantial sexual conduct, the offense
shall constitute a sexually violent offense." (Subd. (a).
Although the act does not provide a definition of a "diagnosed
mental disorder" it does provide that the term "includes
a congenital or acquired condition affecting the emotional or
volitional capacity that predisposes the person to the commission
of criminal sexual acts in a degree constituting the person a
menace health and safety of others." Welf. & Inst.
Code, 6600, subd. (c).
Those offenses include "a felony violation of all the sections of Welf and Inst. Code 6600. [FN 22]
Mendoza alleged the reports from the police and probation officer were admitted without objection, and they established the details of the underlying offenses. He claimed that the documents contained inadmissible hearsay and should not have been admitted. Without these documents, the prosecution was unable to prove that his prior offenses fell within the definition of "sexually violent offense".
In People v. Superior Court (Howard) (1999) 70 Cal.App. 4th 136, 140, the sixth district court of appeal held that the sexually Violent Predators Act "expressly allows the People to prove that a defendant has committed sexually violent offenses through hearsay evidence, including a victim hearsay statements contained in probation reports. " Howard addressed the issue in the context of the probable cause hearing. The court relied on the plain language of Welfare and Institutions Code, section 6600, (a), to support its conclusion.
"The details underlying the commission of an offense that led to a prior conviction, including a predatory relationship with the victim, may be shown by documentary evidence, including, but not limited to, preliminary hearing transcripts, trial transcripts, probation and sentencing reports, an evaluations by the State Department of Mental Health."
Contending this section does not provide for the admission
of hearsay evidence, rather only allows the introduction of documentary
evident provided that the documents are otherwise admissible,
Mendoza further added, "had the Legislature intended to provide
for the admission of hearsay to prove the details of the underlying
offense, it would have expressly stated that hearsay was admissible
for that purpose.
Legislative intent given to the interpretation of this statute, means giving effect to the usual ordinary import of the words used in the statute, giving significance to each owed, phrase and sentence in context with the purpose of the statute and avoiding a construction which would make some words sup usage."
The legislative history of the amendments indicates that the legislature intended to the amendment to prove and exception to the hearsay rule. The committee report on the bill stated that, "prosecutors have complained that they must bring victims back to court to re-litigate proof of prior convictions. This bill would allow the existence of any prior convictions to be shown with documentary evidence."
Mendoza also claimed that the use of hearsay evidence to prove
the details of the underlying offenses violated his due process
rights. However, the court noted, he had the opportunity to challenge
the hearsay evidence to cross-examine the People's witnesses and
to present his own rebuttal evidence. (Howard, supra, 70 Ca.
App. 4th at p. 154.)
The court also considered that, while the alleged sexually violent predator has a strong liberty interest, the government also has a strong interest in protecting the public from persons who are dangerous to others. ( Hubbart v. Superior Court, supra, 19 Val. 4th  at p. 1151 [, 969 P.2d 584 (1999)
Under FRE 802, Hearsay is inadmissible unless a specific exception
allows the hearsay to be admitted. Hearsay is offered to prove
the truth of the matter asserted and certain evidence offered
as circumstantial evidence is not hearsay because it is used to
create inferences and not to prove the truth of the matter asserted.
FRE 803 (8) covers the admissibility of public records and reports.
FRE 414 Allows for the evidence of similar crimes in sexual assault
case to be admitted.
FRE 701 allows for testimony by lay witness' in the form of opinions or inferences which were rationally based on the perception of the witness, helpful to clear understanding of the witness' testimony or the determination of a fact in issue and it is not based on scientific, technical .Free 702 allows for the testimony by experts.[FN 23]
Michelle Melander, 5 months old, 1981. Michelle, who was just a five-month-old baby, and her brother Michael, then 5 years old, were kidnapped in Parker, Arizona, in July 1981. The killer dropped off Michael along the road. Michelle's body was discovered six days later at garbage dump several miles down the same road. She had been severely beaten and sexually mutilated. The state court opinion describes the many injuries that this helpless baby suffered. The man who committed this horrific crime later attempted to kidnap and rape a 10-year-old girl.
State courts finished their review of his case in 1991. (People v. Pensinger, 805 P.2d 899.) The case then went to Federal District Court in 1992. The defendant raised new claims that he had never argued in state court, so the federal court sent the case back to state court. Five years later, the case returned to federal court. Today, the case remains before the same Federal District Court where the federal appeals began in 1992. Baby Michelle would be 24 years old now if she had lived, and there is no end in sight for her killer's appeals.
Vanessa Iberri, 12 years old, 1981. Vanessa and her friend Kelly, also 12 years old, were both shot in the head while walking through a campground in 1981. Kelly survived, but Vanessa did not. The killer did not dispute that he shot the two girls. (The case is described in People v. Edwards, 819 P.2d 436.) The state courts finished their review of the case in 1991 - already a long time. The killer then went to federal court in 1993. The Federal District Court finally held an evidentiary hearing in December 2004, and dismissed the case in March of this year. Just now, 12 years after the case entered the federal courts, and 24 years after the murders occurred, the appeal to the Federal Court of Appeals is just beginning.
Michelle and Melissa Davis, ages 7 and 2, 1982. An ex-boyfriend of the sister of Kathy Davis took revenge on the sister for breaking off their relationship by killing Kathy's husband and her two young daughters, Michelle and Melissa. The killer confessed to the crime. The state courts finished their review of the case in 1991. (People v. Deere, 808 P.2d 1181.) The next year, the defendant went to the Federal District Court. He remained there for the rest of the decade, until 2001. When he lost there, he appealed, and in 2003, the Federal Court of Appeals for the Ninth Circuit sent the case back to the district court for another hearing. Today, 14 years after state appeals were completed, and 23 years after Michelle and Melissa were taken from their mother, the case remains before the same district court.
On December 4, 1972, seven-year-old Steven Staynor was walking home from school, in Merced California when Kenneth Parnell and his co-worker Murphy stopped and kidnapped the boy. Parnell would sexually molest Steven over the next seven years, while moving within northern California twelve times. All kinds of people saw Steven over those years and because there were no resources available to inform the public of his disappearance, Steven would not return through the help of anyone but himself. One day Parnell decided to get Steven a "little brother" and managed another abduction of little Timmy White.
Steven did not like the idea that this little boy was to live the type of life that he had to endure all those years and took the child to a police station, where he was apprehended and committed to telling his story. Steven returned home only to die in a motorcycle accident at age twenty-four. Steven's brother, Carey, later would later be apprehended as an infamous serial killer, and was sentenced to death. [FN 24]
Parnell had previously served jail time in the 1950's after a conviction of impersonating a police officer to abduct and sexually assault a young male child. In 1960, he was sentenced for robbery at a service station with the use of a revolver. In 1972, he kidnapped Steven and held him through until 1980 when he kidnapped Timothy White and was brought to trial.
Parnell v. Superior Court [119 Cal. App. 3d 392 (1981)
Parnell filed a motion to dismiss pursuant to Penal Code section 995. He contended that the charges of kidnapping (~207), false imprisonment (~ 236), and conspiracy to commit kidnapping, false imprisonment, certain sex offenses and to contribute to the delinquency of a minor (~182) were either unsupported by probable cause or was barred by the three-year statute of limitations. The court upheld all of the charges with the exception of the charge of conspiracy to commit the sex offenses and pursuant to Penal Code section 995.
On the charge of kidnapping the court cited People v. Green (1980) [119 Cal. App.3d 1, 64] "with reference to the general rule that, kidnapping can only be accomplished by the threat of force or the actual use of force." Also citing People v. Camden (1976) 16 Cal. 3d 808,814 and People v. Trawick (1947) 78 Ca. App. 2d 604, 606, "Even though the seizure of a victim is effected without force, a kidnapping conviction will still be upheld if the accused 'subsequently restrains his victim's liberty by force and compels the victim
to accompany him further". "The force used against the victim "need not be physical".
The court contended on the charge of kidnapping that the record contained sufficient evidence that Steven unlawfully detained by the threat of force within the limitations period. The child could not consent to his detention."
"The movement is forcible where it is accomplished through the giving of orders which the victim feels compelled to obey because he or she fears harm or injury from the accused and such apprehension is not unreasonable under the circumstances."
(People v. Stephenson (1974) 10 Ca. 3d 652, 660 and People v.Rhoden (1972) 6 Cal 3d 519, 527)
At the preliminary hearing, Parnell was charged in count VII of the information with conspiracy to commit lewd and lascivious [119 Ca. App.3d 404 (1981) upon a child and oral copulation. At the hearing, the court asked the prosecution to address the issue of the sufficiency of the evidence to support the charge of conspiracy to commit the sex crimes. When prosecution stated that they would be repeating themselves, the court replied; "Well, if you are just going to repeat yourself, don't do it, because so far you haven't convinced me". At the end of the prosecution's argument urging the court to infer the conspiracy from the fact that the boy was in fact sexually abused, the court stated: "Because of tie I draw no inference." At the conclusion of the preliminary hearing, the court ruled: "I find that there is sufficient evidence to hold Defendants, both Defendants to answer on kidnapping charge, conspiracy to kidnap, false imprisonment and conspiracy to commit that crime. "
Citing 739~; People v .Superior Court (Grilli) (1978) 84 Cal. App.3d 506,510, " An information may charge a defendant with "either the offense or offenses named in the order of commitment or any offense or offenses shown by the evidence taken before the magistrate to have been committed." Citing: (Pizano v. Superior Court (1978) 21 Cal. 3d 128, 133 and Jones v. Superior Court (1971) 4 Cal. 3d 660, 664-665, "However, the rule has developed that an information charging an offense not named in the commitment order will not be upheld unless the evidence taken by the magistrate shows that the offense was committed and that it arose out of the transaction which was the basis for commitment on a related offense."
The court upon review of the transcript of the preliminary hearing concluded that the magistrate's refusal to hold Parnell to answer on the charge of conspiracy to commit the sex crimes was amply justified by the total lack of evidence that the conspiracy included the sexual abuse of the victim. Murphy, the co-worker of Parnell's who assisted in Stevens kidnapping testified the he had no reason t believe that Parnell was sexually deviant or that he had any sexual designs upon Steven. Steven, did testify that the first sexual abuse occurred several weeks after his abduction, and based on this our Supreme Court concluded the Parnell's section 995 motion as to the charges should have been granted.
While the People maintained that Parnell's conduct shortly after the abduction was circumstantial evidence of a conspiracy to commit the sex [119 Ca. App.3d 405] crimes, citing People v. Lipinski (1976) 65Cal. App3d 566, 575, they pointed to the fact that Murphy was present when Steven and Parnell slept in the same bed, each clad with just a towel, the night after the abduction and the sexual abuse which occurred several weeks after the abduction. However, the court held in its rationale that," since the cabin had only one bed, it was not unreasonable to expect that the child would sleep in the same bed as Parnell, and such an arrangement would have been designed to prevent the boys' escape. Steven's sleeping only in towel was rationalized by the court as not unusual in light of the fact that no sleepwear was available for him." The court also stated "The People overlook the fact that the sexual abuse did not take place until after the two men had parted company." With that bit of court blunder in its discrepancy in interpretation of laws in place, the court restrained any further action in the charge of conspiracy to commit lewd and lascivious acts, oral copulation, and sodomy.
Parnell was sentenced the maximum of eight years for the "kidnapping" of both Timothy White and Steven Staynor, however, he served just five of those eight years before released, with one year eight months sentencing for the kidnapping of Steven and seven years eight months for Timothy's kidnapping. All of the sexual charges were dropped when the appeals court had ruled the statute of limitation had expired. A conviction on sexual abuse charges would "not" have added time to his sentence under the law, at that time. Coupled with the prior conviction on sexual abuse of an eight-year boy in 1950, Parnell was a free man to go out and again attempt to commit still another offense of conspiracy to commit child stealing in San Francisco, Ca. In 2003, at the age of 72, he was arrested and convicted on charges of trying to persuade a woman to get him a young boy of age four for $500.00.
The defense tried to argue that Parnell's prior record to old
to be relevant in his attempt to keep Parnell from the life sentencing
under the three strikes law.
Attorney Deborah Levy"; what happened 30 some years ago does not help us here today.
Levy told the jury that Parnell never used the word, "kidnap" and that he was just interested in raising an abandoned boy. Parnell was convicted on three felonies: Attempted Child Stealing attempted to buy a human being and solicitation to commit kidnapping and sentenced to 25 years to life.
APPEALS PROCESS TIMELINE
The timeline appeared in Tuesday's Register, laying out for
readers just how long each step of the appeals process takes.
Four to six years to appoint a lawyer qualified to handle the automatic appeal - this in a state with a quarter of a million lawyers.
Two years or so to have the trial record certified.
Four years or more for the defendant's lawyer and the state attorney general to file briefs.
A year and a half for the state Supreme Court to schedule oral arguments, then three months before they issue a decision.
Even if the state Supreme Court upholds the death sentence,
the defendant can then file an appeal in the federal court system.
If a U.S. district judge upholds the death sentence it can then be appealed to the U.S. 9th Circuit Court of Appeals - a place where many a death-penalty sentence has gone to die -
and then to the U.S. Supreme Court.
If at any point along the way a court throws out the conviction or the death sentence, and if a higher court upholds that ruling, the case goes back for retrial - and after that's over, if the defendant is convicted, the entire appeals process starts all over again. It's as if the first conviction and all the years of appeals that followed it never even happened.
More than a hundred of the 644 inmates on California's death
row have been sitting there for two decades or more, with no final
resolution in sight. As I've noted before in this space, at the
current rate of executions in California it would take 800 years
to execute everyone currently on death row - and that's not even
counting the two or three dozen new death-row inmates added each
"More people on (California's) death row die from old age than from lethal injection," notes Orange County district attorney spokeswoman Susan Schroeder. "It's outrageous."
Every time there is another appeal, another ruling, another
hearing, families, the victims, are forced to think about their
child's death in every detail, once again reliving the nightmare.
A justice system that treats the victims in this manner can not
There are hundreds upon hundreds of families, going through this, at this very moment.
Currently, over 100 of the inmates on California's death row have been there for over two decades, while the courts decide that the person who killed their loved one who had evidence so strong against them that they were previously convicted, will get a new trial or even go free. Two decades of delay is not unusual in most cases. In many cases, judges will reverse a case on mere technicality in the sentencing, for example and force a new sentencing trial and many years of new appeals, all when there is no real dispute over the defendants' guilt. Judges will take a long time to decide a case, delaying punishment that they oppose.
According to Department of Corrections figures, since 1978 some 45 death row inmates have died on the row without being executed - one shot by corrections officers, one stabbed by another inmate, one dead of a heart attack after being pepper-sprayed, 12 by suicide and 30 of natural causes. Meanwhile, just 11 have been executed.
The case of Rodney Alcala, who was convicted and sentenced
to death in 1980 for the 1979 murder of 12-year-old Robin Samsoe
of Huntington Beach. The California Supreme Court later threw
out the conviction on grounds that evidence of Alcala's prior
attacks on young girls shouldn't have been admitted at trial,
In 1986 Alcala was tried and convicted and sentenced to death yet again. The case went all the way through the state appeals process, only to have the federal U.S. 9th Circuit Court of Appeals bounce it back again two years ago, 24 years after the crime, this time on grounds that testimony from the first trial shouldn't have been admitted in the second trial.
So now Alcala is waiting for his third trial - and if he's convicted, and assuming an appeals court doesn't throw out the conviction and order a fourth trial, he's looking at another 10 to 20 years of appeals before he would have to walk into the execution chamber. By that time, he could be more than 80 years old. The U.S. Congress changed the death penalty law in 1996, compelling lawyers to raise their federal appeals issues within a year of a death penalty being finalized by the California Supreme Court. Alcala's case preceded that change in the law, allowing his court-appointed appellate lawyers to raise their federal appeals years later. [FN 25]
THREE STRIKES AND YOU'RE OUT
In 1994, Governor Pete Wilson of California signed the First Strike law into enactment. This bill would give 25 years to life for certain serious offenders and in 1997 the Three Strike Law was enacted which provided for a new law in which any kidnapping with the intent to commit a sexual act be sentenced to life in prison with the possibility of parole. Violent criminals are now required to serve 85% of their time in comparison to the prior 50% of the sentence before becoming eligible for parole.
The Three Strikes Law, enacted in 1994 requiring longer prison sentences for habitual offenders who have been convicted for a third or second felony if their previous felonies were sufficiently serious to be considered a strike. In December of 2001, there were approximately 40,000 people in prison with sentences imposed under California's three strikes law, constituting about a quarter of the states population. Offenders whose third strike was a homicide or felony assault constituted about 16 percent. This law passed in California amidst the controversy over habitual offenders, such as the Poly Klass repeat offender who had killed her and Larry Singleton who had bludgeoned, raped, and hacked off the arms of a 15-year-old girl in 1978. Singleton, paroled in 1987 on those charges, moved to Florida, and stabbed to death a woman in 1997.
Under California's three strikes law, a felony offender who has been convicted of two previous strikeable offenses, such as murder, rape, robbery arson kidnapping, and drug sales to minors, would receive an enhanced sentence, minimum sentence of 25 years for the third felony conviction. This is even if the third felony is not a strikeable offense. In addition, if previously convicted of a strikable offense, he will receive a doubled sentence for the same offense even if the second felony is not a strikeable offense. By contrast, most other states three strikes laws typically apply only to the most violent repeat offenders and this has not been viewed as effecting a great change in a states sentencing policy or prison system. A report by the Sentencing Project found that as of mid 1998, only six states had been using the three strikes legislation to any significant extent. Of these states, California had by far the most, (40,000) with Georgia, South Carolina, Nevada Washington, and Florida all with less than 1,000.
In deciding whether a sentence violate the Eighth Amendment the Supreme Court said in the case of Solem v. Helm (1983) that sentences are to be reviewed for proportionality to the crime for which one has been convicted. Such a proportionally review is guided by the gravity of the offense and the harshness of the penalty, a comparison to sentences for other crimes in the same jurisdiction and a comparison to sentences for the same crime in other jurisdictions. "
Despite the high standard required for an Eighth Amendment violation, the Ninth Circuit Court of Appeals has held that California three strikes law unconstitutionally applied, when applied to petty theft offenses that might otherwise be misdemeanors. In Andrade v. Attorney General of the State of California, [FN 26] the offender had been given two 25 year sentences for stealing nine videotapes worth a total of $153.54, he had three prior residential burglary convictions. In Brown v. Mayle, February 2002, the offender received a 25-year sentence for stealing a steering wheel alarm worth $25.00; he had five serious or violent prior felony convictions from more than a decade earlier. The Ninth Circuit declared such applications of the three strikes law unconstitutional, but emphasized that the overall law stands. The United State Supreme Court, however, decided in March 2003 that the Ninth Circuit had misapplied the standard set out in its previous decisions. It thus upheld the offenders' two 25-year sentences.
It should be noted that Andrade had a long history of problems. In 1977, he became a heroin addict and stole to support this habit. He was in and out of State and Federal prison since 1982. During a thirteen-year period, there were nine convictions, which included felony residential burglaries, as well as several drug trafficking offenses. In 1991, he was incarcerated for escaping Federal prison. In 1995, San Bernardino, he had stolen twice from a department store, hence he was convicted of two-count felony theft. The jury found he had suffered three prior strike convictions for residential burglary and thus the sentence was passed to be two 25-year sentences to life. In the end, the US Supreme court would hold it constitutional.
In conclusion, although the public wants sentencing to reduce crime, and many potentially effective laws have been enacted, Judges and Legislators make no responsible effort to select or encourage sentences that are likely to reduce the chances of a repeat offender being released back onto our streets. Most offenders offend again as sadly has been pointed out here. Most of those sentenced for heinous crimes were done so without meaningful or concerned attempt to choose a sentence that fit the crime. Those failures, with great justification, turn repeated assaults on judicial sentencing discretion. The severity of punishment is directly proportional to crime reduction.
The way sex offenders are treated needs to change. These are not petty criminals, but animals preying on the vulnerability of young children. The nation has outdated sex offender laws, although being updated yearly, however those laws in effect are not consistently being applied for their clearly written language in our courts.
Legislatures, in too many States are failing to pass mandatory
minimums for child sexual predators.
New York: Despite overwhelming bipartisan support for Jessica's Law, Democratic Assemblyman Sheldon Silver continues to single handedly block any vote. Governor Pataki is vowing to around him.
Maryland: No mandatory minimums for sexual crimes against children. The chairman of the House judiciary Committee, Democrat Joseph Vallario, has consistently blocked efforts to pass Jessica's Law.
Massachusetts: Absolutely no mandated protection for kids who are brutalized sexually. The judge is free to bestow any sentence, Speaker of the House Sal Dimasi, has killed every piece of tough sex offender legislation that has been introduced.
Wyoming: No minimum Prison sentences and GPS tracking for convicted sex offenders. Governor Dave Freudenthal, doesn't seem to care.
Arkansas: No minimum prison sentence, Gov. Huckabee, doesn't seem to care.
Tennessee: Gov. Bredensen doesn't seem to care'Idaho: any minimum prison terms for child sex crimes. Gov. Kempthorne doesn't seem to care.
North Dakota: No minimum prison sentences for any sexual acts with minors. Gov. Hoeven, states, "He is studying ways to change that."
Also the state of Colorado, Wisconsin, Maine, Kansa and Montana have weak laws protecting kids, however, politicians in those states are trying to change matters.[FN 27]
Parole Officers are shifting the burden of keeping track of those sex offenders to the victims yet remain without liability, (accountability), under Gov. Code 845.8, which does not hold them accountable for not following up their assigned cases. No one is willing to take responsibility, not on the government end of the story.
Julie Hilden, August 2002,suggests in her column that possibly
expanding Megan's Law to include information on all offenders
who have committed violent or sex felonies, regardless of whether
the victim was an adult or a child, or to encompass warrants,
dropped charges, and even acquittal's with the status of the charges
and the evidence in favor of the defense listed prominently, but
the evidence that supported the charges also listed, might allow
parents to judge for themselves whether the charges mean the person
whose photograph is posted remains a threat in the first place.
Expanding Megan's Law this way, might have saved, the Runnion
child, for example. Avila was previously charged but acquitted
of molesting two little girls. If he had internet exposure, with
his address and photo posted, based on those charges a parent
might have had the opportunity to decide for themselves if this
person driving around their neighborhood was a potential risk
to their children, and police might have apprehended him sooner,
rather than when time ran out for another child. [FN 28]
Meagan's Law, even with her suggested expanded version is not a serious or especially troubling civil liberties violation. After all, free speech, our core civil liberty, includes the right to receive public, non confidential information and Megan's Law enhances free speech by making public but difficult to access information readily available and this is properly public information. After all, sexual assault, murder and rape are not private.
Sadly, the wonderful mandatory sentencing guidelines on repeat offenders, the advantages we now have in notification of a child who goes missing and the vast amount of resources available to law enforcement and to parents of missing children, has been hard fought by those parents who lost their child and will never have the enjoyment of one more hug.
Sentencing is the product of law enforcement and prosecutorial
efforts yet history dictates its failure repeatedly. Rather than
the judiciary, sentencing to serve what they consider may be in
the best interest of the offender and the public, they should
think thrice about the victims of that offender. Those victims
whose voices are hushed by death and the parents who no longer
have their beloved child at their side is where the focus of attention
should be. There are further victims in the murder and/or abduction
of a child, the extended family, and friends of the victims, inclusive
of society, who fears the loss of a loved one by the injustice
of a system that first gives consideration to the offender, not
the gravity of his past or current crime against society.
Legislature should not have wait upon the community to present a Child Protective Law for enactment. They should, after all of these years, take the initiative and accomplish this without another parent having to fight for protection of a child's life. Our children are our future, yet they still will not protect those children without public outcry.
Parole Officers, Legislature, and the Judiciary have too long used their own discretion in what manner an offender's sentence will be. It is time for accountability
It is time for them to come out from behind their shield of excuses and accomplish what the voices of the public have voted for, finally.
Thus, as it has been in history, it will eternally be the duty of parents and citizens to initiate reasonable mandates, effective laws, and to enforce those proven statutes and
To insure that each criminal be sentenced with what is mandated through and of the voices of the people.
In the words of Sneed, the Circuit Judge dissenting in part
in the Andrade case:
" nevertheless, it is the sentence mandated by the citizens of California through the democratic initiative process and, additionally, legislated by their elected representatives .consequently we must accord great deference to state mandated sentences. We should not employ our power to strike down a sentence as unduly harsh when its primary purpose is the incapacitation of a habitual criminal offender. that judgment should not trump the choice of the state legislature California's three strikes sentencing regime reflects a judgment that society's interest is best served by imprisonment of repeat felony offenders and a correlative determination that more lenient treatment of offenders is inappropriate. [People v.Cooper, 43 Cal. App. 4th 815, 824 (1996) ("By enacting the three strikes law, the Legislature acknowledged the will of Californians that the goals of retribution, deterrence, and incapacitation be given precedence in determining the appropriate punishment for crimes.") It is true that over time public attitudes change, however, it is not our duty to anticipate the future legislative conduct of the State of California." [FN 26][FN1] http://www.sssalas.com/Law Enforsement.html
[FN 2] grabbed from their homes or playgrounds and then murdered or held for ransom
[FN 3] http://christianparty.net/sexualoffenders.htm
[FN4] The Lindbergh infant kidnapping in 1932, enraging the country forced the national government to do something and The Federal Kidnapping Act (18USC 1201 et seq.) authorized U.S. Justice Department intervention when interstate travel was suspected in kidnapping cases
[FN 5] (28 USC 534 (a) enables parents to guarantee that information on their missing child is properly entered into the FBI National Crime Information Center (NCIC) computer system. I there is doubt about whether the police department taking the missing child report has entered the information into the computer system, one now has the right to ask the FBI to verify the entry.
[FN 8] The U.S. House of Representatives approved HR3132 creating
a national registry of child abuse and neglect cases. The establishment
of the national registry was included as part of the Children's
Safety Act, approved by the House.
[FN 10] http://www.missingkids.com/missingkids/servlet/ServiceServlet?LanguageCountry=en_US&PageId=308
[FN 11] http://www.co.cowlitz.wa.us/sheriff/rso/cpa.htm
The objective of the 1990 Community Protection Act is to provide adequate notice to the community concerning sex offenders who are, or will be residing in the community; and to assist community members in developing constructive plans to prepare themselves and their children for residing near released sex offenders.
[FN 12] (http://www.parentsformeganslaw.com/html/links.lasso)
[FN 13]. (http://www.post-gazette.com/pg/05331/613154.stm)
(Article by: By Michael A. Fuoco, Pittsburgh Post-Gazette)
[FN 14] As quoted from Michigan's SOR Backgrounder. http://www.michigan.gov/documents/SOR_Backgrounder_Update_110405_141961_7.pdf[http://www.mipsor.state.mi.us/]"site for photos
[FN 15] http://www.klaaskids.org/pg-amberplan.htm
[FN 16] http://crime.about.com/od/current/p/runnion.htm]
[FN 17] foxnews.com/story/0,2933,182977,00.html
[FN 18] http://www.leg.state.vt.us/statutes/const2htm
[FN 19] As quoted by Bill O'Reilly /Article Daily News March 19.2006
[FN 20} All information on John Evander Couey
[FN 21] http://ccadp.org/frankatwood.htm
[FN 22] [Welf. & Inst. Code, 6600, subd. (a), & 6604.)
[FN 23] FRE: Evidence for Paralegals, Marlow Joelyn D. & Cummins Suzanne [Aspen Publishers2004]
[FN 24] www.crimelibrary.com/criminal%5Fmind/psychology/kenneth%5Fparnell.
[FN 25] The Orange County Register Larry Welborn February 10, 2003
[FN 26] " been the law of this Circuit that as long as the sentence imposed on a defendant does not exceed statutory limits, this court will not overturn it on Eighth Amendment grounds. This case presents no opportunity to set aside or qualify this long established and sound precedent." Dissenting Opinion in U.S.Supreme court ruling on Andrade
[FN 27] As quoted by Bill O'Reilly /Article Daily News March 19.2006