Criminal Appeal

Viewing of Publicly-Accessible Government Web Site Criminalized for Sex Offenders.

A couple weeks ago, Cal. Attorney General Bill Lockyer announced the unveiling of the Megan's Law sex offender locator site.

AB 488, as the AG notes, authorized putting photos, home addresses, and partial criminal histories on the Web for the more serious sex offenders. (It was signed by the governor on Sept. 24.) The merits of posting all of this information is debatable. Vigilante-ism comes to mind. The proponents of the bill pointed to an AG report that, as of 2000, "since Megan's Law has been implemented in California, 'there have only been two minor 'vigilante' acts against sex offenders resulting from Megan's Law disclosures reported to the Department of Justice by law enforcement." Of course, now that the information is freely available on the Web and the vigilante doesn't have to call a 900-number or visit the police department, that may change. Anyway, that's not the  point of this post. Read on.

AB 488, did other things, including creating new crimes related to misuse of the sex-offender locator Web site. One of those new crimes is subdivision (i) of section 290.46 of the Penal Code, which makes it a misdemeanor for any sex offender registrant to access the Megan's Law Web site:

(i) Any person who is required to register pursuant to Section 290 who enters the Web site is punishable by a fine not exceeding one thousand dollars ($1,000), imprisonment in a county jail for a period not to exceed six months, or by both that fine and imprisonment.

Notice that the new crime applies to all sex offender registrants, not just those on the Web site. That means those convicted of such minor crimes as misdemeanor indecent exposure or sexual battery can't access the Web site, even if they committed their crimes many years ago and have never re-offended.

So what's the problem with the new crime? 1. Sex offenders, believe it or not, are people too and they might have children and might want to see where the sexual predators live in their neighborhood. (I realize that might not be sympathy for this position, but think about the teenaged flasher, now grown up, with a clean adult record, kids of his own, etc.) 2. Registrants might want to know whether they are actually on the Web site (I'm assuming the DOJ duty to notify won't be perfect), so they can exercise the necessary caution to protect themselves from vigilantes. 3. Registrants might want to know whether the DOJ has accurate information about them. There's hardly an easier way of checking if their registration is current than looking on the Web. 4. The bill allows registrants to apply to be removed from the Web site. Shouldn't they be able to confirm that they are on the site and see what the site looks like before they apply to be removed?

5. Last, but not least: This is government information which the government is making available to the general public. The government needs a real good reason if it's going to bar one class of citizens from viewing publicly available information. But the value of this new crime is lost on me. Are we worried about sex-offenders who also happen to be hackers are going to delete their entries? They can do that from the Web site and it's already a crime to hack the AG's server. Are we worried about sex offenders learning they're on the list? The bill requires that the DOJ notify sex offenders of their inclusion on the Web site. Do we want sex offenders to be unprepared for vigilantes? I hope not.

Any thoughts from First Amendment experts?

(Note: An earlier version of the bill actually required that "A person visiting the Web site shall be required to enter his or her name and indicate that he or she is not a registered sex offender ....")

 

Fee Increases-9th Circuit.

• Pacer. Effective 1/1/05: "an increase in the PACER internet access fee from seven cents a page to eight cents a page."

This is not too big a deal. The fees remain small. Still, it would be nice if the registration requirement, login, and fees were eliminated for viewing the public dockets. In the California state courts, such access is free and comes without the hassle of a login.

• 9th Cir. Admission. "[E]ffective January 1, 2005 the fee for admission to the bar of the Ninth Circuit Court of Appeals will be $190.00." The current fee is $40. It's not clear from the notice whether an application submitted before 1/1, but not acted on until after 1/1, will be subject to the increase. If you were about to apply, it might be worth it ($150 savings) to get the application in before 1/1.

Beardslee Gets Execution Date and COA. Donald Beardslee, according to a CDC press release, is scheduled to be killed by the state by lethal injection on January 19. But last week, the Ninth Circuit issued an unusual order, granting a certificate of appealability for Beardslee to brief a new issue. This is quite unusual in that his appeal has already been decided, rehearing denied, and cert. denied. Significantly, however, the mandate had not yet issued.

The grant of the COA, however, may not result in a stay of execution. The Ninth Circuit's December 16 order, directed "the parties to file simultaneous briefs on the merits on or before December 20, 2004, and simultaneous reply briefs on or before December 23, 2004."

The issue? "Beardslee has now requested the issuance of a certificate of appealability (“COA”), arguing that he is entitled to relief pursuant to Sanders v. Woodford, 373 F.3d 1054 (9th Cir. 2004), a decision that was issued by another panel of this Court during the pendency of his petition for a writ of certiorari." Here's the Ninth Circuit's reasoning for granting a COA:

After undertaking “an overview of the claim[]” and “a general assessment of [its],” id., we conclude that Beardslee has satisfied the relatively low standard for the issuance of a COA. In Sanders, we determined that the California Supreme Court, after invalidating two of four special  circumstances, had failed to reweigh the mitigating and aggravating factors or apply the correct harmless error standard. 373 F.3d at 1063. Because we were unable to conclude that the invalid special circumstances did not have a substantial or injurious effect or influence on the jury’s choice of sentence, we granted Sanders relief as to his sentence. Id. In the case before us, the California Supreme Court invalidated three of Beardslee's four special circumstances. See People v. Beardslee, 53 Cal.3d 68, 117 (1991). As in Sanders, the California Supreme Court in Beardslee did not review the special circumstances error under the harmless beyond a reasonable doubt standard. See id.; cf. Sanders, 373 F.3d at 1063; see also People v. Sanders, 51 Cal.3d 471, 521 (1990). Therefore, "[r]easonable jurists could debate whether, 'in light of the record as a whole,' the three invalid special circumstances had a 'substantial and injurious effect or influence' on the jury's death penalty verdict and therefore whether the error was not harmless." See Sanders, 373 F.3d at 1060, 1064-65 (applying Brecht v. Abrahamson, 507 U.S. 619, 638 (1993), harmless-error standard where California Supreme Court failed to conduct an "adequate, independent" review of the effect of an invalid special circumstance). In view of the change in the law caused by Sanders, the issue presented deserves encouragement to proceed further.

Holiday Schedules.

• The Ninth Circuit and the California Court of Appeal, First District, will be closed on Dec. 24 and Dec. 31.
• California's Second Appellate District does not, however, include Dec. 31 as a holiday on its 2004 holiday list. But I suspect that the entire state court system is closed on Dec. 31, because New Year's Day is a Saturday. Maybe it's because 12/31/04 is actually a "2005" holiday, which is being observed in 2004. This seems to be the First District's take on it, listing December 31, 2004 in its list of 2005 holidays.
• Why can't all courts post easily accessible holiday lists, like the First District and  Second District just did?

Two New (To Me, At Least) Crawford Resources.

• Crawford v. Washington: Reframing The Right To Confrontation: This is an outline prepared by Crawford's SCOTUS attorney, Jeffrey Fisher. The focus of the outline, as it currently is in the lower courts, is on the question of "what is testimonial?" But he also has sections on "unavailability" and "opportunity for cross-examination."

• The Confrontation Blog: This is the new blawg by University of Michigan Law Professor Richard D. Friedman. From Prof. Friedman's first post:  "Welcome to The Confrontation Blog. There have been so many developments related to Crawford v. Washington, 541 U.S. 36 (2004), and I am so intensely interested in the subject matter, that I have decided to start this blog in hopes of facilitating understanding and communication on the topic. I will make postings as often as I am able and as devlopments warrant. I will not attempt to go back through all of the important developments in the nine months since the Crawford decision, but as time allows I will add postings on some of them."

 

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December 13, 2004

An Excecution-Free Month. Prof. Doug Berman, of the Sentencing Law & Policy Blog,  is reporting that this will be the first month without executions since July 1994:

I have previously noted declines in the number of death sentences and in the number of executions as statistical evidence suggesting the death penalty is on the decline in the United States.  But yesterday while talking to a reporter I discovered an even more remarkable capital development, which perhaps marks the start of a new modern death penalty era:

Due to the fact, noted here, that the last six executions scheduled for 2004 were all stayed, this December will be the first month without an execution in the United States since July 1994.

Read the complete post here.

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December 12, 2004

Booker & Fanfan Maybe Tomorrow; Black & Towne Must Wait. SCOTUS, according to SCOTUSBlog, will be issuing one or more opinions tomorrow. Booker & Fanfan could be among them. Otherwise, we'll have to wait until January.  What is not happening in January is the California Supreme Court arguments in Black & Towne, the two Blakely cases which have been briefed in that court. The Cal. Supreme Court will hear argument on Jan. 4 and 5 in San Francisco, but Black & Towne are not on the calendar.

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Consular Rights Violation to Be Reviewed. As has been widely noted already, the U.S. Supreme Court has granted certiorari in a case involving a violation of the Vienna Convention on Consular Relations. These cases typically involve interrogations and/or prosecutions conducted without notifying a foreign defendant of his or her right to contact his consulate.  According to SCOTUSBlog, the questions presented include:

"1. In a case brought by a Mexican national whose rights were adjudicated in the [World Court's] Avena Judgment, must a court in the U.S. apply as the rule of decision, notwithstanding any inconsistent U.S. precedent, the Avena holding that the U.S. courts must review and reconsider the national's conviction and sentence, without resort to procedural default doctrines?

"2. In a case brought by a foreign national of a State party to the Vienna Convention, should a court in the U.S. give effect to the [World Court's] LaGrand and Avena Judgments as a matter of international judicial comity and in the interest of uniform treaty interpretation?"

Click here for a post on the case by TalkLeft, with a link to a NYT article.
 

The case Medellin v. Dretke, no. 04-5928.

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Comments on Draft Crim. Jury Instructions Due Fri., Dec. 17.

Read the invitation to comment, read the draft instructions, and comment online.

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Council on Judicial Appointments Considering Cantili-Sakuye. According to a Judicial Council press release, the Council on Judicial Appointments is considering "the appointment by Governor Arnold Schwarzenegger of Judge Tani Gorre Cantil-Sakauye as an Associate Justice of the Court of Appeal for the Third Appellate District (Sacramento)."

Sacramento Superior Court Judge Cantil-Sakauye would fill Justice Kolkey's seat.

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