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News & Noteworthy © ---
Featured Issue 7-5-07 |
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State Trickery and Misinformation about Sex Offender Registration Laws Gets Convictions: Knowledge -v- Notice?
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Question: What kind of laws are sex offender registration laws?
Answer: They are "Positive Notification" laws!
"Positive Notification" means a person must be informed about the laws, BEFORE they are held accountable for violating them. In essence, that is what due process is all about.
However, nationwide states have used trickery, misinformation and misconstructions to violate registrants. Prosecutors are good, never underestimate them, but defense lawyers must be better, exposing the methods used to get convictions. My intent is to expose these practices, which should never be used to get convictions.
Time and time again courts have thrown out cases IF the lawyers PROPERLY present a case showing how the government misinformed, failed to inform, or tricked a person through crafty wording. The key to winning such a case is, to understand the state's system, and especially the forms used. Those forms have saved many a RSO, IF they have saved them. Those same forms expose state failures and trickery used.
So to registrants, document, document, document! This cannot be stressed too much!
When a person is convicted (by guilty plea, alford or nolo plea, adjudications, etc.) SOMEONE tells them to register as a sex offender. During that critical process the person must be informed of everything that is expected of them. That is Positive Notification!
How the person is informed is our focus today.
The registering official will give the registrant form/s and tell them to complete them. Or, the registering official will verbally explain everything that is required of the registrant, and walk them through the form/s. The latter rarely happens.
In either case the form/s MUST BE SIGNED. Why? That is their proof for court -if necessary- that, whatever the form/s say (including whatever they spoke to the registrant verbally) proves the registrant has been informed of their duty under the law. Due Process, as viewed by the state; notice not knowledge!
Often the actual written law requires the official to explain -verbally- what the registrant's responsibilities are under the law, but rarely do registering officials take such time at registration. Claiming, they are short on time, they skip what the law requires thinking it does not matter. Far too often even the registrant thinks nothing of what happens during a registration or re-registration process, they just want to get it over with.
This is where problems begin. It does matter, and registrants should never be afraid or shy to ask questions especially when lack of knowledge could send them to prison. Further, registrants must remember, that, if the state keeps a SIGNED copy, then registrants need a copy. That is the only proof that the registration process took place, and when, and exactly what information was provided.
Some states go a step further and have registrants SIGN another form, one that broadly states that the official has explained the laws to the registrant. Again notice, the state wants that form SIGNED as well, their intent is to use it to prove the official explained what was required of the registrant. Registrants should get a copy of that SIGNED form as well.
So, "Positive Notification" occurs whenever SIGNED form/s are used. One person is positively notifying the other person of something. However, states have misused "Positive Notification" of registration laws on a regular basis. That means registrants must be on their toes to protect themselves.
Example: Using Michigan Forms::
Now it is impossible to explain with respect to each individual state so I am going to pick one, Michigan because their forms are online and easy to reference. They use two forms: A DD-4 "Michigan Sex Offender Registration" form, and a DD-4A "Explanation of Duties to Register as a Sex Offender." Additional links to forms of other states can be found in our Endnotes below (as folks report these we will update the Endnotes).
Folks will have to take the context of what I say and equate it to their individual state and whatever form/s it uses.
First, notice that both the DD-4 and the DD-4A require the SIGNATURES of BOTH, the registrant -and- the registering official. I wish I could say that of all states' forms I've seen, but they don't. Here the intent is proof of "Positive Notification" by both parties.
Second, notice that the SIGNED forms are sent by MAIL to a central location. That will be where, should the need arise, one can obtain future copies, most likely for court actions. However, I would bet that registrants cannot ask for a copy AFTER it has been sent to the central location. That is why it is critical to get copies when the forms are completed.
If you are denied copies, speak to a supervisor. Note: Think about this, just before you sign the forms ask if you may have a copy, if they refuse then make a note of that on the signature line, then sign your name. I also suggest notes in the margins on anything you cannot resolve with the registering official, then sign forms.
Now, should they object, explain that the state will use such forms in court if need be, and you want the court to have your side of the story beforehand. Prosecutors will never charge someone if they included notes beforehand which will negate a charge. Stand your ground!
Misleading Titles:
Now lets focus on the DD-4A "Explanation of Duties to Register as a Sex Offender" form. Notice that the title is poor because the form explains far more than what the title implies, which means registrants must be careful and READ THE FINE PRINT! Failure to read BEYOND the title could cause a registrant to violate some provision of law. Lets call the state's title "Trickery by Titling," yes it is trickery, they know folks never read the FINE PRINT.
Next, the form requires that the registrant initial each line, whether it applies to them or not, but in fairness the wording is such that when it is not applicable to a registrant, signing incurs no liability.
Catch-22 Phrase:
I am not going to get into each line of the DD-4A, suffice to say I know it contains errors, I'll address a few in a minute, which could cause someone to end up in prison. Critically important is the very last line "I acknowledge that I have read and/or had read to me, the above requirements as set forth by statute."
"..as set forth by statute." How will a registrant know that is true? There is no way someone registering or changing an address or other information, can know what the statutes say, especially since they do not give anyone a copy of the statutes. Yet, if they had, one would need a lawyer to interpret them. The last sentence "..as set forth by statute" is a Catch-22, gotcha wording, or more trickery!
OK, lets look at the top left corner of this form, you will see DD-4A (05/05), which means it was last revised in May of 2005. This form is in use today, July of 2007 and it has not been revised. Accordingly, "..as set forth by statute." should say "..as set forth by statute in May 2005."
Change in Laws:
Nearing the end of 2005 the Michigan legislature passed a group of laws affecting registered sex offenders. As an example I am going to cite one section of four laws (MCL 28.733, 734, 735 and 736) these established "Student Safety Zones." There are others as well.
These laws are based upon the myth that registered sex offenders who live within 1,000 feet of schools will commit sex offenses against children going to and from schools. A relevant point is, never has such an offense ever been reported anywhere in the nation. Yet, legislators needed the votes to keep them in office so they bambozzled the public into believing that they were protecting children by such a law.
Now, look closely at the DD-4A, do you see one word about such residency laws? No! Yet, prosecutors throughout the state are using the DD-4A in court whenever someone is charged with violating such laws. The form was revised in May of 2005, the laws changed late 2005 and were effective January 2006. In the past when laws changed the Michigan State Police notified registrants by letter, but they no longer do that.
In July of 2005 the Michigan Registry was audited and the auditors pointed out several errors, we reported on that here, to our knowledge as of today none of the errors have been fixed. In part the auditors blamed the forms used and the methods of entering the information from the forms. As folks can see, there is still a problem but now it extends to residency laws and folks are being convicted because of such errors.
I could go on but folks easily can see the importance of properly UPDATED forms, so that registrants are notified when their duties change. Michigan as well as many other states have failed miserably in that regard. If lawyers do not pick up on these subtle points, registrants will end up with another conviction and possibly in prison.
A Court Case that Resulted in a Registrant Ending up in Prison::
California: Bartlett -v- Alameida 5-10-2004. In essence Bartlett was convicted of a sex offense, went to prison and was released on parole in 1987 and again in 1990 (I suspect a parole violation of some sort), at that time he signed three forms which indicated he had to register for a lifetime. (later I'll prove this is impossible, laws changed in 1995.) After 1990 (I assume his Sex offense parole ended in 1990) he did not register again. Then he was convicted of other charges and sent to prison again, and released in 1998. As part of the release papers he signed, apparently there was one which again told him he had to register for a lifetime, which he signed.
After being discovered residing in a convalescent home under an assumed name he was charged with failure to register (FTR). At trial on the FTR charge, the judge instructed the jury,
“[i]t is not an element of the offense that the convicted sex offender have actual or probable knowledge of his duty to register. The convicted sex offender need only have been given actual notice of the requirement to register as a sex offender.”
During deliberations, the jury became deadlocked and sent the court a note requesting that the court elaborate on the meaning of “willfully” in the jury instructions.
In response, the court reiterated that “actual knowledge is not an element of the crime. Actual notice is an element of the crime. You must be given notice. Actual knowledge is not an element of the crime. The people don’t have to prove actual knowledge beyond a reasonable doubt.” Bartlett was convicted of failing to register as a sex offender in violation of § 290.
Bartlett appealed, his conviction was upheld by the California Court of Appeal. That court reasoned that “actual knowledge is not an element of the offense of failing to register as a sexual offender.” A few months later, however, the California Supreme Court held, in a different case, that the state must prove as an element of the crime that a defendant had “actual knowledge” of the duty to register under § 290. People v. Garcia, 25 Cal. 4th 744, 752 (2001) (noting that making actual knowledge of the duty to register an element of a § 290 violation “undoubtedly” satisfies federal due process).
Bartlett subsequently filed this petition for habeas corpus relief in the district court. The district court denied relief, holding that any federal due process requirement is satisfied by “proof of the probability” of actual knowledge — supplied in this instance by Bartlett’s “repeated actual notice of the registration requirement.” Bartlett v. Duncan, 262 F. Supp. 2d 1053, 1060 (C.D. Cal. 2003).
Bartlett's case went to the 9th Cir. Court of Appeals which held, actual knowledge must be proven by the state and they reversed the case and remanded it back to the lower court. That court will hold hearings to prove, that Bartlett had or didn't have actual knowledge of the requirement to register for a lifetime, and will either, uphold the conviction or dismiss the charge.
Error in Bartlett -v- Alameida: It appears the requirement for LifeTime Registration was not enacted until 1995, AND, a new section requiring law enforcement to specifically enumerate changes in the law when registrant next registers.. See THE PEOPLE -v- LUIS ALBERTO CAJINA, 3-23-2005
Effective January 1, 1995, and January 1, 1997, section 290 was amended to add more stringent registration requirements. As amended, section 290 now requires a convicted sex offender to register "for the rest of [his] life while residing in California" (§ 290, subd. (a)(1)(A)); to register with the police chief or sheriff of the city or county in which he resides within five days of coming into that city or county (§ 290, subd. (a)(1)(A)); to re-register annually with that police chief or sheriff within five days of his birthday (§ 290, subd. (a)(1)(D)); and to inform the law enforcement agency at which he last registered of any change of address within five days of the change (§ 290, subd. (f)(1)). The registering law enforcement agency is also required to notify the sex offender of the statutory changes when the offender next registers. (§ 290, subd. (l)(1).)
On April 21, 1997, Daly City Police Detective Gary Smith, pursuant to the statutory requirement to inform all registered sex offenders of the registration changes, contacted appellant at his house to inform him of the new requirement of annual registration within a certain number of days of the registrant's birthday. The same day appellant accompanied Detective Smith to the police station, where he filled out a new registration form (familiarly referred to as a DOJ 8102 form), was fingerprinted, and received a temporary registration receipt. The Daly City Police Department uses the DOJ 8102 form to record all registration events in Daly City, e.g., annual registrations, moves into or out of the city.
The DOJ 8102 form states, in pertinent part: "I have been notified of my duty to register as a convicted sex offender under P[enal] C[ode section] 290 . . . and I have read, understand and initialled each requirement listed below. "My responsibility to register is a lifetime requirement. Upon coming into any city, county, or city and county in which I am domiciled I must register with the law enforcement agency having jurisdiction over my residence, as [a] . . . sex offender within five days.
The bottom of the DOJ 8102 form contains a place for the registrant's signature and the date of the signature. Detective Smith's practice in 1997 was to read and explain to the registrant each separate requirement on the form and ask if the registrant understood the requirement. Smith would sometimes explain the requirements in "easier terms," e.g., saying "where you live" rather than "domicile." If the registrant answered affirmatively, Smith had him initial each requirement.
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Forms relevant in Bartlett -v- Alameida: It appears the forms have been changed: See THE PEOPLE -v- DONALD BARKER.
As shown by the files of the California State Department of Justice and the San Mateo City Police Department, appellant registered five times as a sex offender with different jurisdictions, most recently with the San Mateo Police Department on August 26, 1999. The registration form signed by appellant ..... Immediately over appellant’s signature on the form is a printed statement expressly declaring appellant’s actual understanding of his mandatory obligations under section 290. In pertinent part, this statement is as follows: “I am registering in compliance with Section 290 . . . . I understand my requirement as stated in the appropriate code sections. When registering pursuant to [section] 290 PC my requirement to register is for life and I must, within 5 working days:
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Thankfully, a past reader gave me a link (now dead) to a later revision of the form, revised January 2000: see ss-8102 (Frontside) ss-8102 (Backside). Unfortunately I do not know if those are the most current though, but readers are always welcomed to send things in, I at least keep the links you never know when they may come in handy.
OK, in the Barker case it said the notice of "Lifetime Registration" is just above the signature line, but after the 2000 revision of the form it was moved to the back of the form. On the frontside of the 2000 form it states "and initialed each registration requirement ... reverse side of this form." The problem is, the Title of the reverse side is "Registration Notification Statement," now remember my rant about Michigan's "Misleading Titles," well here we go again. Why is it that state employees can't see how they so easily mislead folks? Or, is it done on purpose? You decide, you have my feelings.
Now, how is it that the Bartlett case stated "Bartlett signed three forms, 1990 and before, which said he must register for a LifeTime" when that requirement of law didn't happen until 1995? Remember my comment "If lawyers do not pick up on these subtle points, registrants will end up with another conviction and possibly in prison." well thats where Bartlett is.
Trickery, trickery, trickery and the prosecutor played it for all it was worth, he got the conviction. Now somehow Bartlett must work his way out of this mess, at least the 9th Cir does require "actual knowledge" to be proven, of course it is also within the California law, so sayeth the Cajine case.
The Adam Walsh Act on Forms and Actual Knowledge of Registration Requirements::
Is Congress aware of this national problem? Yes they are, in fact, they included specific instructions to the United States Attorney General regarding notifying registrants of their duties under AWA.
Citing from the Adam Walsh Act --
(42 USC 16912) SEC. 112. REGISTRY REQUIREMENTS FOR JURISDICTIONS.
(a) Jurisdiction To Maintain a Registry- Each jurisdiction shall maintain a jurisdiction-wide sex offender registry conforming to the requirements of this title.
(b) Guidelines and Regulations- The Attorney General (USAG) shall issue guidelines and regulations to interpret and implement this title (AWA).
(42 USC 16917) SEC. 117. DUTY TO NOTIFY SEX OFFENDERS OF REGISTRATION REQUIREMENTS AND TO REGISTER.
(a) In General- An appropriate official shall, shortly before release of the sex offender from custody, or, if the sex offender is not in custody, immediately after the sentencing of the sex offender, for the offense giving rise to the duty to register--
(1) inform the sex offender of the duties of a sex offender under this title and explain those duties;
(2) require the sex offender to read and sign a form stating that the duty to register has been explained and that the sex offender understands the registration requirement; and
(3) ensure that the sex offender is registered.
(b) Notification of Sex Offenders Who Cannot Comply With Subsection (a)- The Attorney General shall prescribe rules for the notification of sex offenders who cannot be registered in accordance with subsection (a).
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Subsection (a) handles newly convicted sex offenders, and subsection (b) is there to handle all sex offenders who predate AWA.
Therefore, "actual knowledge" means? Read that which is underlined in RED. As Mike Rowe of Dirty Jobs would say, I can smell the day when 600,000+ RSOs ask registering officials to inform and explain the registration requirements before signing the form, each time they go in to register, re-register, change an address, or other information. Remember, according to Congress, that is a RSOs RIGHT, and s/he should not be denied!
Alas, the best laid plans of mice and men are thwarted by those who consider themselves, above the law. Neither the USAG nor the SMART Office has included one word of the above requirements in either, the Interim Rule issued in February, or in the Proposed Guidelines recently issued. They are above the law and do not have to follow even Congressional directives.
Want proof? Read my earlier Op-Eds,
"Former sex offenders are being illegally prosecuted, in Federal court, for registration issues under the Adam Walsh Act!"
"Why the Madera case must be appealed!"
"Another Adam Walsh Act Debacle!"
"Why is the USAG prosecuting those who fail to register, and cross state lines, in Federal court rather than State courts?"
The Guidelines are not final, the States have not yet -and cannot because guidelines are not final- implemented AWA (some think they have but that is impossible without the final guidelines), and the USAG is already convicting some RSOs for violating AWA and they are going to prison, then near the end of their sentence, they will be considered for civil commitment.
So, the ultimate question is, why has the USAG and the SMART Office failed to include the requirements of Sec 117 (Positive Notification and Explanation) in the Proposed Guidelines? Could it be that they want to mislead state legislatures? By doing so, then more and more registrants can be interned! Or, is this a new form of entrapment?
Thats the law, the new law, trickery, misinformation and misconstruction which puts folks in prison (internment). Remember the Mission of the SMART Office: Internment!
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Endnote: (Added 7-6-2007) Note: If the Adam Walsh Act Sec 117 (Positive Notification and Explanation) was complied with every registrant, then this North Carolina case would explain why it could not be attacked on due process grounds under normal circumstances.
North Carolina: State -v- Byron White 1-20-2004,
Due process did not mandate that the trial court had to instruct the jury that the State was required to prove that defendant knew of his duty to register in a case concerning a failure to comply with the sex offender registration requirements under N.C.G.S. § 14-208.11, because: (1) the notice provisions of the registration act remove the statute from due process attacks under ordinary circumstances; (2) an oral explanation of the registration requirements to a defendant by a member of a sheriff's department provides actual knowledge enough to satisfy due process requirements for any reasonable and prudent man, and a detective in this case testified that he advised defendant of the registration requirements when defendant initially registered with the sheriff's department; and (3) defendant has not argued that he was incompetent or that the standards for a reasonable and prudent man are otherwise inapplicable to him.
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Links to State Registration Forms: Remember, these may or may not be the state's current version. However, they can be used to see how states inform or misinform registrants.
Arkansas:
Title: Sex Offender Registration Form ACIC SOR Form 05-24-06)
Title: Sex Offender Acknowledgement Form (Revised) ACIC 06/20/07
Title: Change of Address Form for Registered Sex Offenders Revised 09/06/06
California:
Title: Registration Change of Address / Annual Update: ss-8102 (Frontside) ss-8102 (Backside).
Massachusetts:
Title: Instructions for Completing the Sex Offender Registration Form (SOR Form 2)
Title: SEX OFFENDER REGISTRATION FORM SOR Form 2 (02/04)
Title: INSTRUCTIONS FOR COMPLETING SOR FORM 1-R
Title: REGISTRATION/CHANGE OF ADDRESS/ANNUAL REGISTRATION SOR Form 1-R
Michigan:
Title: Michigan Sex Offender Registration DD-4
Title: Explanation of Duties to Register as a Sex Offender DD-4A
Oklahoma:
Title: Notice of Duty to Register DOC 020307B
Title: Sex Offender Registration Form DOC 020307A
Vermont:
Title: REGISTRATION FORM FOR REGISTRANT’S CONVICTED IN A STATE OR JURIDICTION OTHER THAN VERMONT
Title: NOTIFICATION OF REQUIREMENT TO REGISTER (Registrants Convicted In A State or Jurisdiction Other Than Vermont)
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