Prosecutors in the Jerry Sandusky trial asked that jurors be chosen from a neighboring county for the Centre County Pennsylvania trial. Sandusky the former Penn State assistant football coach is charged with 52 counts of sexual assault involving ten teenage boys over a fifteen year period. The case has drawn international attention since it involves allegations that the legendary former Penn State Coach Joe Paterno failed to take proper action upon learning of the abuse.

The attorney general alleged in the change of venire motion that the extraordinary amount of publicity and the special relationship between the people of Centre County and the university makes it necessary to use a jury from out of county. But the attorney general did not move for a change of venue.

The problem with the attorney general’s motion is that the Sixth Amendment guarantees “an impartial jury of the State and district wherein the crime shall have been committed.” Of course a defendant can waive the right to a jury or the right to a trial in the jurisdiction where the crime was committed. This occurrs relatively frequently when the defendant feels that he/she cannot get a fair trial in the jurisdiction. Its called a change of venue motion. But the Sixth Amendmend does not guarantee the government the right to change the venue. Nor does it allow the government to waive the defendant’s right to venue and venire. There is relatively little law on the subject.And it will be interesting to see what happens. But the clear language of the Sixth Amendment seems to work against the attorney general’s motion.

Eduardo Dávila-Nieves (Dávila) was convicted attempting “to induce a person he believed to be a minor to engage in sexual activity.”

He made telephone contact with a thirteen year old girl, Y. G. Eventually their telephone conversations turned to sex. He attempted to meet her but her parents found out about the conversation and reported the conversations to the authorities. After this happened Y.G. told Davila that her parents took away her cell phone and that in the future he would have to relay messages through her fourteen year old friend, “Vanessa.” “Vanessa,” of course, was an undercover agent.

The conversations with Y. G. and later with “Vanessa” lasted for a year with breaks of two months and seven months. Each of the breaks were ended when “Vanessa” initiated a phone call to Davila. During the conversations he admitted to having pedophilia and he was afraid that he would get arrested. At times he came on strong. At other times he appeared to back off. But after a year there was an agreement to meet “Vanessa” and Davila was arrested.

On appeal the First Circuit Court of Appeals denied his sufficiency of the evidence argument. The elements of the offense are:

(1) used a facility of interstate commerce (2) to attempt to, or to knowingly, persuade, induce or entice (3) someone younger than eighteen years old (4) to engage in criminal sexual activity.

Davila argued that since the government did not enter into evidence the Puerto Rican statute that he was accused of violating there was insufficient evidence of the fourth element of the offense. But since the judge read the offense to the jury, instructed them thereon, and took judicial notice of the statute this is a rather weak argument. Certainly it is the duty of the judge to instruct the jury on the law as it relates to the case but there is no duty to enter a paper copy of the offense into evidence.

Davilla argued that since the judge took judicial notice of the statute the judge was required to instruct the jury that it need not find the statute to be true. It is true that when a judge takes judicial notice of a fact the jury does not have to accept it. But when the judge takes judicial notice of a statute it would be absurd to allow a jury to disbelieve the judge.

The final and perhaps strongest issue is the refusal of the court to give an entrapment instruction. There are two elements to entrapment. First, it requires that the idea for the crime originate with a government agent and second it requires that the defendant would not have committed the crime without strong encouragement from a government agent. Here, despite the government’s initiation of the contacts after two breaks in communication the court found that there was not entrapment. It found that regardless of the government’s re-initiation of the crime, Davila was disposed to commit the crime.

I guess what bothers me most about the crime is that Davila is going to be released from prison some day. He has pedophilia. At this point pedophilia is incurable. Those with pedophilia have very litttle control over their pedophiliac urges although they need not always act upon them. Do we really want to put people into prison for having an illness. But then on the other hand how do we protect our children? Not all pedophiliacs act upon their desires for sex with young children. But without treatment Davila will problably be just as daangerous when he gets out of prison as he is today. Prison will not change the situation. What he needs is treatment. Any treatment inside the prison is probably meaningless since he will not have a chance to practice abstaining from pedophile acts.

Jerry Sandusky, the former assistant football coach at Penn State waived his preliminary examination on charges of child molestation. His lawyer, Joseph Amendola said that the primary reason for waiving a preliminary examination was that the district attorney planned to ask for an increase in Sandusky’s $250,000 bail at the end of the preliminary examination. Certainly a judge may raise the bail at the preliminary examination. But most jurisdictions allow defendants, or their friends on behalf of defendants to put up property in lieu of bail. I suspect that Sandusky has friends or relatives that would be willing to pledge their property on his behalf. However, if Sandusky could not raise the bail he would have to sit in jail until the trial. Jail inmates are notorious for the treatment they give to suspected child molesters. It would be a very difficult incarceration for Sandusky.

While, in my experience waiving a preliminary examination is very rare, ¹ there may be good reasons to waive a preliminary examination in this case. First, Pennsylvania strictly limits cross examination at the preliminary examination. It does not allow the defense attorney to challenge the credibility of witnesses.

Sandusky has been indicted by the grand jury. The transcript of the grand jury proceeding will be available to the defense. Therefore Sandusky’s team is unlikely to get much in the way of discovery from the preliminary examination that they do not already have from the grand jury transcript.

Finally some of the victims were going to testify. While this may have given the defense a good look at them and what they are likely to say at trial, the enormous press coverage of the preliminary examination would no doubt sympathetically portray the victims. This would allow many people to judge the case prior to trial. As a result it would be hard to find a unbiased jury.

Thus the only people left in the dark is those of us in the public and we will just have to wait until the trial

The Supreme Court reinstated an Illinois conviction for two counts of sexual assault. Irving L. Cross was tried on charges of kidnapping and sexual assault. The victim, though afraid, testified. Hardy was found not guilty of kidnapping and the jury hung on the sexual assault charge. The district attorney wanted to retry the case. Despite the victim’s alleged readiness to testify at the second trial she disappeared prior to the trial.

The victim’s mother, brother, and father told investigators that they did not know where she was. A week after talking to the mother, investigators had a second conversation with her. Apparently the victim had returned home between the two conversation but she ran away the day before the second interview. Investigators made numerous trips to both of her parents’ houses. They also checked at the Office of the Medical Examiner, her school, the Department of Public Aid, the jail, and local hospitals. They interviewed the parents of a former boy friend. All to know avail. Cross argued that investigators should have interviewed her current boy friend and her friends. They should have contacted the cosmetology school that had once attended and that she should have been subpoenaed before she disappeared. But the Supreme Court found that the district attorney made a good faith effort. Investigators can always do more work but all that is needed is a good faith effort.

At the retrial, the district attorney put into evidence the victim’s testimony at the prior trial. Under Crawford v. Washington an out of court testimonial statement can ony be placed into evidence if the the defendant has had a chance to cross examine the witness at an earlier stage in the proceedings and the witness is unavailable at the trial. Here there is no question the defendant had a chance to cross examine the victim at the first trial. The only question is whether the victim was unavailable at the second trial. The victim is considered unavailable if the prosecutor made a good faith effort to find the victim and procure testimony her for trial.

After Cross was convicted in the second trial he filed a writ of habeas corpus challenging the conviction and alleging that his right of confrontation had been violated under Crawford. The District Court denied the writ but the Seventh Circuit upheld it. The Supreme Court reversed, finding that the Cook County District Attorney’s office had made a good faith effort to procure the witness.

“The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) . . . imposes a highly deferential standard for evaluating state-court rulings and demands that state-court decisions be given the benefit of the doubt.” Prior to defendant’s petition for habeas corpus the state courts of Illinois had turned down his claims of a violation of the Sixth Amendment right of confrontation. Since the state court decisions were reasonable the AEDPA requires the Federal courts to uphold the state’s decision.

Robert Finn, the Roman Catholic Bishop of Kansas City Missouri, was indicted Friday on misdemeanor charges of failure to report child abuse by one of his priests. The priest, Rev. Shawn Ratigan was indicted in May. This is the first time an American bishop has been criminally charged with failure to comply with mandatory reporting requirements.

Most states have mandatory reporting requirements. While the laws vary from state to state they generally requires specific professionals to report suspected incidents of child abuse to the authorities. The Missouri law includes ministers in the list of professionals required to report suspected child abuse.

As a general rule citizens do not have a duty to report the occurrence of a crime. However states tend to require individuals who have a special relationship with particularly vulnerable groups such as children, the disabled or senior citizens. Thus teachers, medical personnel, social workers and others with knowledge of the physical abuse are required to report the abuse of their juvenile clients, patients, students, etc.

Finn and the Diocese of Kansas City-St. Joseph are accused of not reporting knowledge of a priest taking pornographic pictures of young girls. Finn has admitted knowing about Ratigan’s photographs as early as December 2010 but he did not report the information to the authorities until May. In that time Ratigan continued to attend church events and photographed at least one young girl.

Three years ago as part of a $10 million dollar settlement of child abuse claims by Kansas City Diocese, Flinn promised to report cases of suspected child abuse.

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.

Warren Jeffs, the head of the Fundamentalist Church of Jesus Christ of Latter-day Saints, finally ended his silence at his trial for the rape of two young girls, Friday. He claimed that the two girls, one 12 and the other 14 were his spiritual wives.

Jeffs, who fired his lawyers and is representing himself let go with a 55 minute rant when the prosecutor attempted to place into evidence a list of Jeffs’ wives. ¹ He objected to his religion being put on trial and he continued to interrupt the trial with claims that the court was violating his religion. During the defense case he put on one witness–a member of his church who he questioned for four hours about church doctrine until the judge forced Jeffs to end his examination finding that witness’ testimony was not relevant.

Well none of Jeffs’ antics helped him. Among the evidence was a picture of him passionately kissing a 12 year old, DNA evidence that he fathered a child by a 14 year old, and an audio recording of him raping the 12 year old. He was given 30 minutes for closing. Most of the time he stood mute before the court, interrupting his silence, only to say, “I’m at peace.” He was found guilty. At sentencing he faces up to 119 years. In Texas the jury decides the sentence. Immediately after he was found guilty a sentencing hearing began. The prosecution expects to put on two days of testimony. I do not know whether Jeffs plans to put on witnesses. According to the prosecutor the evidence in the sentencing phase will show that Jeffs had 78 illegal wives, including 24 underage wives, that he either performed or had been involved in 67 illegal underage marriages, that he participated in more than 500 bigamous marriages, that he had illegal sex ²with six different people and he participated in the breaking up of 300 families “by splitting up marriages or reassigning ‘wives,’ sometimes to himself.”

Texas District Court Judge Barbara Walther granted Warren Jeffs’ request to represent himself in his sexual assault trial. Before asking the court to let him represent himself, Jeffs fired his attorneys. This was the seventh set ofattrorneys he fired on the case.

The court must grant a motion to represent oneself, known as a Faretta Motion if the request is made knowingly and intelligently and if the defendant is competent. Competence is a very low standard and it is rare that a Faretta Motion is denied.

Jeffs’ Utah conviction for aiding and abetting the rape of another juvenile and for forcing her into a marriage with her cousin was reversed on appeal.

Yesterday afternoon after Walthers granted Jeff’s motion to represent himself and denied his motion for a continuance the trial began with the swearing in of the jury and the prosecutor’s opening address. Jeffs refused to give an opening address. In fact, he remained mute throughout the afternoon. He did not cross examine the prosecutor’s witnesses or make any objections.

Jeffs is the leader of the Fundamentalist Church of Jesus Christ of Latter-day Saints which broke away from the Mormon Church and believes in bigamy. He is charged with two counts of sexual assault and one count of bigamy in Texas resulting from the raid on the Yearning for Zion ranch near Eldorado, Texas in which 400 children were seized by Child Protective Services. ¹ The bigamy trial will occur later. The charges result from Jeff’s “spiritual marriages” to a 12 year old and to a 14 year old at the Yearning for Zion Ranch. The prosecutor will use DNA evidence to show that Jeffs had children by the two girls.

It is rarely a good move to represent oneself. A self represented client is held to the same standards as a represented client. The defendant is going up against a skilled prosecutor who is much more aware of the law than the non-legally trained defendant. The law requires that the judge inform the defendant of the possible problems involved in self representation. Often judges use the old saw that “one who represents him (or her) self has a fool for a client.

One who remains mute sure seems like a fool. Perhaps he is trying to prove that he is not competent and therefore set up an appeal. Only time will tell. Stay tuned.

Dominique Strauss-Kahn, the managing director of the International Monetary Fund and an expected candidate for president of France, was arrested in New York City and charged with sexually assaulting a housekeeper at his hotel.

Judge Melissa C. Jackson, supervising judge of the Manhattan Criminal Court denied Strauss-Kahn bail at a hearing, Monday on the basis that he is a flight risk. The judge took note of the fact that he was arrested while on an Air France airplane within moments of departure. But the planned trip had been planned for some time and he had appointments with European leaders this week. Furthermore it is hard to see how he could escape. He is recognized worldwide and hiding would be difficult. He has volunteered to surrender his passport and United Nations travel documents. He has a daughter in New York City and he agreed to stay with her while the case was pending.

But even if he is not a flight risk bail could be denied. The other reason a court can deny bail is that the defendant is a danger to society. There is evidence that the housekeeper is not the first person he has sexually assaulted. If this holds up the judge could have found him dangerous and denied bail on that ground.

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.