JA former Los Angeles teacher was charged with committing lewd acts against 23 children ten years old or younger. His bail has been set at $23 million. Few former teachers who I know can make a $100,000 bail yet alone a $23 million bail. He is charged with horrendous crimes. It is alleged that he blindfolded the children and using his semen gave them a tasting test to determine whether the semen was sweet or salty. It is further alleged that he took pictures of children with their mouths gagged and other pictures with cockroaches walking on children’s faces.

A $500,000 bail would probably keep the man in jail prior to trial. The setting of bail has a two fold purpose. First to insure that a defendant shows up for trial and second to insure the safety of the community. Certainly this guy should not be released on his own recognizance. He is facing life in prison and he may try to leave the jurisdiction. If the allegations are true he is certainly a danger to society. But the setting of a $500,000 or a one million dollar bail will probably accomplish these goals as well at the setting of a $23 million bail. What a $23 million bail does is get publicity for the judge and the prosecutor and make them look like they are tough on crime.

To make this point let’s look at a time line:

1) Some time in 2010 Mark Berndt, a teacher at Los Angeles’ Miramonte Elementary School takes pictures of abused children into a photo shop to be developed. The employees at the photo shop turn the pictures over to the LA County Sheriff’s Department.

2) January 2011 Berndt is fired after teaching at the school for 31 years.

3) January 30. 2012 Berndt is arrested. Bail is set at $2.3 million.

4) February 1. 2012 Berndt is arraigned and a judge raised the bail to $23 million.

He was not arraigned until over a year after his crimes were reported to the police. He could have committed numerous crimes during that period yet when he is finally arraigned the judge sets a $23 million bail to keep him in jail and away from children. What about crimes he could have done while awaiting arrest.

While it is true that someone facing life in prison is a flight risk, Berndt knew about the pending arrest since at least January 2011 when he was fired. If he did not leave the city in the following year he is unlikely to leave the city pending trial.

If he was unable to put up the $2.3 million bail after he was arrested there is no reason to raise the bail ten fold except to get publicity.

The Sex Offender Registration and Notification Act (SORNA), became law July 27, 2006. It requires all sex offenders to register. As part of the registration they must provide their name, address, business address, and school status. Everyone who has been convicted of certain sex offenses must register, regardless of whether the conviction predated or post-dated SORNA’s passage.

Those who are convicted after SORNA’s passage must register before getting out of custody. Those who are not given a jail sentence must register within three days of the conviction. The law does not specify when those who were convicted prior to the passage of SORNA must register. Rather the law authorizes the attorney general to determine the specific registration conditions for pre-enactment convictions.

The question before the Supreme Court this week in Reynolds v. United States is a rather limited one. But it has created a fair amount of debate among the courts of appeal which have spit their decisions. It is whether those convicted prior to the attorney general issuing his specifications had to register after the passage of the act but before the attorney general issued his specifications.

The Supreme Court ruled that there was no requirement for pre-enactment convictions to register prior to the isuance of the attorney general’s specifications. Since the attorney general must set the registration specification for a subset of those required to register (pre-enactment convictions) the court found it reasonable to believe that the condition for the attorney general to set the registration specifications modified the registration requirement for pre-enactment convictions. SORNA attempts to unify many different state registration laws. Different states require different people to register and provide time periods for this to happen. According to the Supreme Court, Congress could have felt that by putting off pre-enactment conviction from having to register until after the specifications were issued many problems could be avoided. Finally Congress did not specify a time line for pre-enactment registration it only reasonable to wait until after the attorney general general’s specifications are listed to require registration for pre-enactrment convictions.

Brian Charles Olinger plead guilty in 2009 to failure to register as a sex offender. He was sentenced to 15 months in prison and 120 months of supervised release. Among the conditions of his release were that he not view pornography and that he not use a computer with internet access.

While checking on another sex offender who stayed in the same hostel as Olinger resided at probation officers learned that Olinger had access to a computer that might have pornography on it. The officers seized the computer and found approximately 1500 pornographic images, including around 200 images of child pornography on it. The probation officer filed a petition alleging numerous violations of the supervised release. Olinger eventually admitted to three violations: accessing a computer with internet access without the permission of his probation officer, associating with a felon and possession of alcohol. He was sentenced to eighteen months imprisonment and 120 months of supervised release. It was admitted that the government could not prove that he viewed the pornography. At least three other people had access to the computer and while there was evidence pointing to his viewing the pornography it could not be proved.

He appealed on both procedural and substantive grounds. Substantively he argued that the sentence was too long since the sentence was three times the minimum sentence. The court found the violations of his supervised release to be serious and it noted that the computer had pornography on it. The appellate court could not find an abuse of discretion on the part of the District Court judge and did not find a substantive violation. The procedural violations were reviewed for plain error since Olinger did not object at sentencing.

Procedurally Olinger claimed that the court wrongly based its sentence on factors listed in 18 USC § 3553(a)(2)(A) instead of 18 USC § 3553(a)(1). Section 3553(a)(2)(A) deals with the seriousness of the offense while § 3553(a)(1) deals with a breach of trust. However Olinger did not convince the court that the trial court emphasized the seriousness of the offense. One of the factors under § 3553(a)(1) is the nature and circumstances of the offense. This may well be what the court was referring to. As a result the Tenth Circuit Court of Appeals upheld the sentence, finding neither procedural or substantive error.

Warren Jeffs , the head of the Fundamentalist Church of the Latter-day Saints was sentenced to 119 years in prison after he was convicted in Texas last week of two sexual assaults on underage members of his church who he took as “spiritual” wives. He was given a life sentence of 99 years committing an aggravated sexual assault on a 12 year and an additional 20 years to be served consecutively for a sexual assault on a girl who was 14 at the time.

During the sentencing hearing Jeffs, who acted as his own counsel during the trial, left the courtroom for most of the time and he was represented by stand-by counsel ¹ His lawyers followed his instructions and did not call any witnesses or give a closing argument.

During the sentencing phase of the trial the prosecutor played a tape of Jeffs instructing five young girls on how to have sex with him. On the tape he tells the girls that god will reject them if they do not please Jeffs.

At 13 years old the respondent, in a Supreme Court case, began sexually assaulting a ten year old boy on the Fort Belknap Indian Reservation in Montana. The assaults continued for two years. In 2005 the respondent admitted to juvenile delinquency allegations in Federal Court. He was sentenced to two years of juvenile detention followed by juvenile supervision until his 21st birthday with the first six months of the supervision served in a prerelease center.

In 2006 Congress passed the Sex Offender Registration and Notification Act (SORNA) which requires sex offenders to register wherever they live, work or go to school. The attorney general determined that SORNA retroactively applied to convictions occurring prior to SORNA’s enactment.

In 2007 the respondent was found to be in violation of his prerelease conditions and he was sentenced to an additional six months and required to register as a sex offender at least until his 21st birthday.

He appealed the registration requirement. By the time the Ninth Circuit ruled on the appeal he was 22 years old. The Ninth Circuit ruled that “that applying SORNA to juvenile delinquents who committed their offenses before SORNA’s passage violates the Ex Post Facto Clause.”

The Supreme Court reversed, finding that at the time the Ninth Circuit ruled, the issue was moot. An issue is moot on appeal unless there is “an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision.’ In most criminal cases at the time of the appeal the defendant is either incarcerated, on parole or on probation–all of which are considered “actual injuries.” In the present case there were two possible injuries. One was the confinement and supervision but that terminated prior to the Ninth Circuit decision and the other was the registration required which terminated at his 21st birthday. ¹ Thus the Supreme Court reversed the Ninth Circuit ruling. The only real effect of the reversal is that the Ninth Circuit decision does not serve as a precedent for future cases. ²

Under Federal law it is not necessary to hold a hearing on motions to suppress evidence unless their is a factual dispute that can not be settled without a hearing. In U.S. v. D’Andrea the First Circuit Court of Appeals vacated a conviction and remanded the case to the trial court for the court’s denial of a motion to suppress without a hearing.

Kendra D’Andrea and Willie Jordan were charged with child abuse. D’Andrea accidentally sent photographs showing sexual abuse of her child to the mother of Jordan’s child in California instead of sending them to her boyfriend, Jordan. Apparently it was her practices to take sexually inappropriate pictures, post them on a limited access web page, and send them to Jordan.

When the mother of his child, identified as the “Tipster” in the appellate decision got the pictures she called the anonymous tip line run by the Massachusetts Department of Social Services (DSS). The Tipster helped DSS access the site and DSS agents provided copies of some of the pictures to the police. D’Andrea and Jordan were indicted and moved to suppress the evidence on Fourth Amendment grounds. The District Court denied the motion without a hearing.

The prosecutor put forth three reasons to justify the search. First, they claimed that since the Fourth Amendment only governs searches performed by governmental agents, the initial search by the Tipster was legal and nothing more was obtained by the Social Services search. ¹ Second, they claimed that exigent circumstances existed allowing the search. Third, they argued that the evidence would have been discovered whether or not DSS illegally searched the site and therefore the illegal search was immaterial.

The court found that there was insufficient evidence to support these theories and a hearing was necessary to determine if the Fourth Amendment was violated. As to the first claim it is necessary for the government to prove that the DSS search did not exceed the scope of the private scope. The record did not provide any evidence of whether or not the DSS search was more intrusive than the Tipster’s search. Therefore without an evidentiary hearing the private search doctrine does not justify the DSS search.

As to the second reason given by the government, exigent circumstances, their was no evidence of imminent danger to the child. There was no evidence that the abuse was continuing or that more would happen in the future.

As to the claim of inevitable discovery the appellate court also found insufficient evidence on the record to show that the government would have obtained the information without the illegal search. Therefore the court ordered the case remanded to the trial court for an evidentiary hearing on whether or not the search of the website was legal or whether, if it was not legal, the evidence would have been discovered in any case.

A convicted sex offender in New Mexico has been arrested and is facing three years in prison for moving out of a dumpster and into an abandoned apartment. The law in New Mexico requires sex offenders to have a physical address and to notify the authorities within ten days of moving. That means it is illegal to be homeless and be a sex offender in New Mexico. ¹ In California where the laws forbid sex offenders from living within 2000 feet of any school or park it is very difficult to find any place that sex offenders can live, forcing them to be homeless. In San Francisco 80 per cent of sex offenders are homeless. Thus we force sex offenders to be homeless and then we punish them for being homeless. Great laws we have!

The on again off again guilty plea of Phillip and Nancy Garrido for kidnapping and rape of Jaycee Dugard finally happened yesterday in Placerville, California.

Dugard was kidnapped outside her home while she was on the way to school in 1991 when she was 11 years old and held for eighteen years. When she was found she was living in a shack behind the Garrido’s Antioch residence with the two children who were fathered by Phillip Garrido.

Phillip Garrido plead to guilty to kidnapping and thirteen counts of sexual assault. He will be sentenced on June 2 to 431 years to life. Nancy Garrido plead to kidnapping and aiding her husband commit rape . She will be sentence to 36 years. She will be eligible for parole after 31 years in custody at the age of 81.

According to Nancy Garrido’s lawyer Stephen Tapson, it was Nancy Garrido’s desire to plead to save Dugard and her children from the pressure of having to testify that lead to the plea. One might question this because after all these years of being quiet, assisting in the kidnapping and allowing Dugard to be raped why does she care if Dugard has to testify. It certainly sounds self serving. But it is unlikely that the plea is lawyer motivated. Why would anyone agree to what is in effect two life sentences. When your only option is life you may as well throw the dice and go to trial. The only logical explanation is that the Garridos did not wanted the trial and were willing to accept life sentences,

The Department of Homeland Security learned that there was pornography on computers at Terry Boll’s residence. They got a search warrant. They discover that seven people live in the house and there are ten computers. Eventually they learn that there is child porn on three of the computers and that two of these computers belong to Boll. ¹ This should be the end of the case. There is no way the government is going to be able to prove beyond a reasonable doubt that Boll possessed the pornography. Any criminal defense attorney worth his/her salt can convince a jury that there is a reasonable doubt that someone else put the pornography on the computers even if boll owned them. ² t is unlikely anyone will be charged.

But Boll apparently has not listened to enough police shows on TV. If he had he would have heard the police give the Miranda warning regularly. He seems to know that anything he says can be used against him. ³ Just the same, he answers the agent’s questions:

Agent Scherer: I asked him if he had an explanation about why there was child pornography on his computer.

Government: How did he respond?

Scherer: He replied I guess you caught me.

Government: How did you respond to that?

Scherer: I asked him further questions about how the child pornography got on there, and he stated, well, they are my computers, aren’t they.

Case lost. Not only did Boll lose the case but his attorney had the nerve to argue insufficiency of the evidence on appeal. His answers to the questions gave the government all it needed to convict.

Generally the police won’t ask any questions unless they need the information to charge a crime or get a conviction. Often if you refuse to answer police questions they walk away without even charging you. But by answering the questions you give them the information they need to charge you or to get a conviction.

The Administrative Office of the United States Courts released it’s statistical report for 2009-2010. Overall the number of criminal cases prosecuted in the Federal Courts increased slightly but violent crimes decreased by 7.4 percent.

The report, of course, only covers those prosecuted in Federal Court. The vast majority of people prosecuted for crimes in this country are charged in state courts, although the trend seems to be to increase the number and types of cases prosecuted in the Federal Courts. At one point for example most of the murder cases prosecuted in the Federal Courts either occurred on Federal property, in United States possessions or in the District of Columbia. Now there are a fair number of homicide prosecutions in major drug and terrorism cases. There were 135 homicide cases up from 123 the previous year. The number of terrorism cases increased from 34 to 48. Also increasing were the number of racketeering cases. But the number of robbery, assault, kidnapping, and carjacking cased decreased.

Property crimes, fraud cases, and regulatory offenses increased. The number of criminal immigration offenses increased by 8.7 per cent from 25,804 the previous year to 28,046. The vast majority of the immigration prosecutions occur along the Mexican border.

Decreases occurred in embezzlement cases, forgery and counterfeiting, auto thefts, drug offenses, firearms cases, and sex offenses.

Even though the year 2009-2010 saw a change in administration from the fiscal year 2008-2009, with the possibility of a change in priorities, there seems to have been no change in the types of cases prosecuted.