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News & Noteworthy © ---
Special Report 5-1-07 |
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Why the Madera case must be appealed!
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5-1-2007 Florida:
Sex-offender sentence tests Adam Walsh law |
.With no precedent to rely on, an Orlando federal judge on Wednesday declined to send a New York sex offender to prison under a tough new law that punishes those who fail to register when they move across state lines. Following through on comments he made at Wilfredo Madera's plea hearing three months ago, Senior U.S. District Judge G. Kendall Sharp sentenced him to four years of probation and fined him $500. At a Jan. 11 hearing before Madera pleaded guilty as part of a deal with prosecutors, Sharp said he was inclined to dismiss the case or give Madera no prison time.
Sharp, at the time, criticized the government's case and told Madera he would throw out the case if the felon registered the next day. But an exasperated prosecutor reminded Sharp that he had "no legal standing" to do that and the judge reversed himself, acknowledging his error. He then called the law "constitutional" as written and denied a defense request to dismiss the case. Madera, who was arrested in October as part of a nationwide crackdown on sex offenders by the U.S. Marshals Service, was the first person in the nation to be convicted under the Adam Walsh Child Protection Act.
On Wednesday, he became the first to be sentenced under that law. Assistant U.S. Attorney Cynthia Hawkins immediately protested Sharp's sentence and said her office will likely take the case to the 11th Circuit Court of Appeals in Atlanta. "The government will object to the sentence imposed as being unreasonable and not taking into account the seriousness of the offense and specifically the defendant's past criminal history," Hawkins told Sharp. [[[[SNIP]]]]
According to an affidavit by Deputy U.S. Marshal Laura Sofia, Madera and his family moved to West Palm Beach in June [2006] and two months later relocated to Orlando. Once in Florida, Madera had up to 10 days to register as a sex offender.
..more..
: by Pedro Ruz Gutierrez
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.In my 12-3-06 Op-Ed "Former sex offenders are being illegally prosecuted, in Federal court, for registration issues under the Adam Walsh Act" I explained why some Failure to Register cases were being illegally prosecuted in federal courts. I still stand by my reasoning there, but there is another reason in the Madera case.
Manifest Injustice: Cases of first impression often lack presentation of all possible avenues of relief and instead focus on one issue. Here in the Madera case his lawyers missed some very fundamental requirements which if presented would have led to a dismissal of the federal charges and a remand to state court. The judge almost caught the error but then said he misspoke when in fact he should have looked closer at the evidence. The prosecutor, in my opinion, bamboozled the judge resulting in a miscarriage of justice.
Facts:
A) The affidavit filed in federal court shows Madera moved from New York to Florida in June of 2006. The exact date in June is unknown.
B) President Bush signed the Adam Walsh Act (AWA) on July 27, 2006 in memory of the death of John Walsh's son.
Analogy:
Think about this, prior to the AWA there was no federal law prohibiting moving from one state (New York) to another (Florida) without registering. Remember, even if New York's registration law says, when you move to another state you must register, that doesn't give New York jurisdiction to prosecute someone if they don't follow that suggestion.
Now, it is also true that Florida, if they are somehow notified that Madera moved into their state and didn't register when Madera should have under the laws of Florida, yes Florida can prosecute Madera if they can find him. Madera would be subject to the penalty stated in Florida registration laws for failure to register.
There was no federal law in -June 2006-, when Madera moved between states, to prohibit Madera from moving between states. Hence, federal court did not have jurisdiction! Further, Madera was convicted (January 2007, by pleading guity, not by a review of the evidence. Madera was somehow mislead or scared into taking a plea!) even before the USAG made AWA retroactive in February of 2007.
Now, on July 27, 2006 along comes AWA, and on February 28, 2007 the USAG interim rule makes AWA retroactive, retroactive to the beginning of time. Also included in AWA is a NEW law prohibiting movement between states without registering. Remember, a new law, meaning it didn't exist before those dates, but which date?
It doesn't matter because Madera moved before both dates! Federal court does not have jurisdiction.
Now, in October 2006 the US Marshall's office arrests Madera in Florida now, who moved from New York in June of 2006, for crossing state lines and failing to register in Florida. Next, in federal court he is prosecuted under AWA and convicted BECAUSE he accepted a plea.....i.e., he pled guilty (right he was improperly informed by his attorney.)
Remember, he pled guilty, now the judge is faced with multiple legal questions, but NONE raised by the attorneys in the case. The judge is BARRED from raising NEW issues [issues not raised by the parties or their attorneys] because he will be seen as defending one side or the other. The judges hands are tied.
So, the judge, at sentencing time, knows this case should be appealed, and I also believe the judge also knows he messed up in the first hearing, so what does he do, he makes SURE it will be appealed, he sentences Madera to a sentence not permitted by AWA.
Hence, this case will be appealed...for multiple reasons which were not apparent in the beginning of the case.
As to the federal court action: CALDER v. BULL, 3 U.S. 386 (1798), ex post facto prohibitions, prohibits Madera's prosecution ("I will state what laws I consider ex post facto laws, within the words and the intent of the prohibition. 1st. Every law that makes an action , done before the passing of the law, and which was innocent when done, criminal; and punishes such action.")
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