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General Comments December 2018

Comments that are not specific to a certain post should go here, for the month of December 2018. Contributions should relate to the cause and goals of this organization and please, keep it courteous and civil.

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  1. mike r

    Yeah I hear you AJ, nothing is ever set in stone with the courts that is the one thing you can depend on. I am going to read into those rational basis review you cited. I really love that statement in Lawrence…
    @C good followup on your postings. Just talking with people about the registry that are considered normal educated people helps me as well. That is why college is a big help.

  2. ReadyToFight

    @JANICE…..Hello, is there anything specific we in California should be doing now in preparation for the Tiered System to come?
    I’m receiving letters from law firms about it and I’d like to be prepared for whatever fight I have ahead of me.
    Thank you.

  3. Josh

    @All
    According to the FAC web site it was posted today that Scotus declined Cert on Bethea & Vasquez……curious to hear some thoughts & opinions about what it could all mean

    • AJ

      @Josh:
      My initial thoughts are some States will take it as yet another green light and will impose even more burdens. I hope to h3ll not, but we all know how irresistible it is for legislators and the sheeple who elect them. I’m slightly hopeful this is merely another delay–sadly of probably a couple years–in the process.

      Bethea laid out the vast split among the State and Federal Courts, yet SCOTUS didn’t bite. They’re either fine with it as is, which makes no sense since they’ve now let opposite positions stand (Snyder vs. these others), or they just don’t feel there’s enough of a “settled” circuit split (if that makes sense) yet. Frustrating to say the least, and a missed opportunity for sure.

      There are still a good number of cases percolating up through the District Courts. Hopefully we can get a few more Circuits to rule on cases that are similar enough to present a clear split.

      I just don’t get how they could let Snyder stand, and at the same time let these other, opposite cases stand. That makes absolutely no sense.

  4. mke r

    @New Person, Here is the start of my unreasonable argument just in case you have not seen it. I slam them with Hanson and CASOMB, as adjudicative facts even, so we will see if the accept these facts. I really think you are ready to file just by your language that you have used and by your knowledge of the issues, especially in CA, and push and use Taylor as the standard of review. Anyways, of course I have all the proper citations to the reports in all this,

    California’s SORA laws violate Plaintiff’s right to be free from unreasonable, arbitrary and oppressive official actions.
    (a) These laws are unreasonable as-applied to statistically low risk offenders such as Plaintiff because they are in no way narrowly tailored to his situation, circumstances, or actual threat to society.
    (b) They are based on the false assumption that sex offender recidivism rates are “frightening and High” as high as “80%” when statistically low risk offender’s rates are in many instances lower than 1% after just three years after release, and eventually less likely to re-offend than the background rate of the general public. [judicial facts]
    (c) They are not effective, and research strongly suggest they are counter-productive, especially as-applied to statistically low risk offenders such as Plaintiff. [judicial facts]
    (d) They are arbitrary due to the length of time mandated to be on the registry that is not based on any data or research to further any of the State’s legitimate goals. [judicial facts]
    (e) They are restricting or banning legal and innocent activities and conduct to try to prevent actions that are already considered crimes.
    (f) They require frequent, onerous in-person reporting to law enforcement for even the most minor change in information, which is not linked to any empirical evidence or showing that the laws are effective or necessary. [judicial facts, including Snyder]
    (g) They encourage homelessness as transient sex offenders are not subject to the address notification which is undoubtably counter-productive to the legislative intent.
    (h) Plaintiff is effectively under state supervision well after his punishment phase has been completed. [citation, penal code part 3]
    (i) Plaintiff suffers all the substantive injuries outlined in his complaint and herein.

    Challenges to the registration requirement, and the consequences that flow from it, are
    usually turned back by courts and politicians who often quote Justice Kennedy’s dramatic language in McKune describing the recidivism rate for sex offenders as “frightening and high” “as high as 80%.” A Lexis search of legal materials found that phrase in 91 judicial opinions, as well as briefs in 101 cases. Even though those statistics were erroneous by order of magnitude, the Court’s endorsement has transformed random opinions by self-interested non-experts into definitive studies offered to justify law and policy, while real studies by real scientists go unnoticed.

    In a Declaration for the United States District Court for Eastern California, Dr. R. Karl Hanson, CASOMB’s own “world” leading authority on sex offender recidivism and risk assessment, found that sexual offenders pose a lower risk for a sexual offense than the general-public when time is factored into the equation. “Eventually, they are less likely to re-offend than a non-sexual offender is to commit an ‘out of the blue’ sexual offence.” [judicial fact]

    Just as the case at issue In Re Taylor concerning residency restrictions, Plaintiff has provided comparable adjudicative facts from governmental agencies in his concurrent Request for Judicial Notice that the Court in Taylor used as evidence of the irrationality of those statutes at issue in that case. There is no doubt that Plaintiff, being a statistically low risk offender, is far less dangerous than that subclass of parolees, who were at the highest risk of reoffending, yet found relief from that unconstitutional residency restriction statute as-applied. There could have been many instances where that statute could have applied to parolees across the state despite the irrationality of the statute, but the Court singled out that subclass of parolees from the tens of thousands across the state just as the Court should do with the subclass of statistically low risk offenders such as Plaintiff.

    This can only be appreciated with the citations I have in this. I have more paragraphs as well, but do not want to post to long a post or whatever. ;l

  5. mike r

    And also, absolutely AJ is an incredible help not only for his articulation and mental grasps but for the basically peer review and rebuttals. Makes you sharper when you debate. And when you both, and Chris F, all come to the same conclusions then your on to something. I look at just like that, if other reasonable minds corroborate each othe then your good. I think I stated that pretty well. See my education and vocabulary is not always so eloquent but it is also getting to where it is not superfluous for sure. I’ve read over my last brief and is is pretty spot on and is the best you can get under CA laws. Hopefully the court accepts my article 3 case or controversy argument for everything outside of the actual statutes as well.

  6. mike r

    I wonder how this shutdown is going to effect the federal court and my case if it is not worked out. I mean obviously it may have to be postponed but not sure how that works.

    Anyway, my take on Bethea and Snyder conflct is that there was no judicial error in eiher case so voila, no cert. It is only going to be brought with a case claiming a court did not properly apply the Smith factors such as in my case. That is judicial error everytime these idiots just cite Smith and not perform the Smith test. The magistrate cited Smith 26 times in her MFR in my case. What the hell, that is not de novo or a proper Smith analysis according to the mendoza-martinez factors. All Smith did was reaffirm Mendoza-Martinez test but yet everyone has focused, and continue to cite, Smith in every analysis and the few courts that have actually applied the test have found the laws punitive. There is nothing for scotus to cert if the proper argument is not in front of them, There is no conflict beteeen Bethea and Snyder as Snyder applied the proper test and Bethea did not, but they did not claim the court erred because they did not properly apply the test. Once more districts actually apply the test properly, or are challenged for not doing it, and make a decision contrary to Snyder there is no split. This is my take if it makes sense. I will be claiming judicial error, one of a few arguments on appeal, for not applying the Smith test and just citing Smith in which the circumstances and the record are meaningfully different, judicial error as a matter of law. Now if the court would apply the Smith test properly, as a matter of law, and shot me down, then that wluld be a split from Snyder. Have to remember that pesky heightened pleading standard. Hell IDK, just my layman opinion.

    • mike r

      I meant, unless more districts actually apply the Smith test properly, or are challenged for not doing it, and make a decision contrary to Snyder there is no split. I maybe wrong but that is my take. I do not think SCOTUS is even supposed to give an opinion unless there was an actual judicial error in the case and SCOTUS therefore either sends it back down or resolves it themselves by applying the proper law in which they can then give an opinion. SCOTUS is not supposed to decide cases on the merits of the case, but only on the errors incurred during litigation. Then and only then is SCOTUS able to render a decision on the merits. I could be wrong but I do not think so. Correct me if I am wrong.

  7. mike r

    In my opinion the magistrate made a reversable error as a matter of law in my case on the punishment issue. The magistrate can claim that the court is bound by Tandeske and SCOTUS on punishment, but the magistrate or the judge did not apply the Smith test correctly and they think they can just cite Smith and Tandeske and the case is done, probabaly because no one has challenged the way the courts avoid the test. It will be the onerous of the 9th to resolve and apply the Smith test properly because I am hammering down on that as well. You cannot just cite Smith and call it a day on the test, that’s why it is called the Mendiza-Martinez factors and the Smith test.

  8. mike r@IMPORTANT QUESTION

    Sorry I meant Hatton v Bonner not Tandaske for the punishment and of course Mendoza-Martinez factors.

    IMPORTANT—-So I am getting ready to email Dr. Hanson again and ask him the following question, any suggestions or comments on the articulation or statement would be great.

    Hello again Dr. Hanson, I realize you are probably a very busy person, but I would like to know what you may say to those that use your previous work to demonstrate the high recidivism rates (as high as 52%) to your more current declaration for the United States District Court that seems to overwhelmingly contradict those findings.

    Canadian researchers who studied 29,000 sex offenders in North America and Europe reported a 14 percent recidivism rate. http://www.static99.org/pdfdocs/hansonandmortonbourgon2004.pdf
    Compare Hanson & Bussiere, supra note 132, at 351 (reporting 20 percent recidivism rate for child molesters), with Robert A. Prentky, Austin F.S. Lee, Raymond A. Knight & David Cerce, Recidivism Rates Among Child Molesters and Rapists: A Methodological Analysis, 21 LAW & HUM. BEHAV. 635 (1997) (Reporting a recidivism risk as high as 52 percent for child molesters).

    As compared to,
    Dr. Karl Hanson Declaration in United States District Court for the Northern District of. California. Civil Case No. C 12 5713. Filed 11-7-12: “Research also contradicts the popular notion that sexual offenders remain at risk of re-offending through their lifespan. Most sex offenders do not re-offend. Hanson Dec. ¶¶ 19-25; Abbott Dec. ¶¶ 13-15. The longer offenders remain offense-free in the community, the less likely they are to re-offend sexually. Hanson Dec. ¶¶ 7-13, 22, 26-38; Abbott Dec. ¶ 16. On average, the likelihood of re-offending drops by 50% every five years that an offender remains in the community without a new arrest for a sex offense. Hanson Dec. ¶ 27. Eventually, persons convicted of sex offenses are less likely to re-offend than a non-sexual offender is to commit an “out of the blue” sexual offence. See id. ¶¶ 28, 31-33. Dr. Karl R. Hanson Declaration https://www.eff.org/files/filenode/024_hanson_decl_11.7.12.pdf

  9. mike r

    I added the following to the end of that statement,

    Especially considering your statement that after only a year offense-free in the community post-conviction, low risk offenders are no more likely to commit a new sex offense than any other person convicted of any type of criminal offense. The majority of registrants commit a one-time offense and do not go on to reoffend.
    R. Karl Hanson, Andrew J. R. Harris, Elizabeth Letourneau, & David Thornton, Reductions in risk based on time offense free in the community: Once a sexual offender, not always a sexual offender, Psychology, Public Policy and Law (May 2017) Advance online publication, http://dx.doi.org/10.1037/law0000135.

    Also, do you have any comment on other studies that have found that recidivism rates are as high as 52%? Compare Hanson & Bussiere, supra at 351 (reporting 20 percent recidivism rate for child molesters), with Robert A. Prentky, Austin F.S. Lee, Raymond A. Knight & David Cerce, Recidivism Rates Among Child Molesters and Rapists: A Methodological Analysis, 21 LAW & HUM. BEHAV. 635 (1997) (Reporting a recidivism risk as high as 52 percent for child molesters.

  10. mike r

    What I want to do is get Hanson on record either through email or any way necessary to address these stats without having him there to testify. Be kind of hard for a jury or the judge to not consider the responses since it will be well documented through the email process, especially since I am pro se and do not have the ability or knowledge on how to procure an expert witness for my case. Hell I can even request the court at that point to schedule a video conference with Hanson himself. See where I am going with this?

  11. mike r

    Another question is what is the standard admissibility in courts of academic studies? I am reading up on it right now but any info helps.

  12. mike r

    Here we go, the Daubert standard. Yeah I am going to have to battle the AG’s experts I can see that.

    Under the Daubert standard, the factors that may be considered in determining whether the methodology is valid are: (1) whether the theory or technique in question can be and has been tested; (2) whether it has been subjected to peer review and publication; (3) its known or potential error rate; (4) the existence and maintenance of standards controlling its operation; and (5) whether it has attracted widespread acceptance within a relevant scientific community.

    The Daubert standard is the test currently used in the federal courts and some state courts. In the federal court system, it replaced the Frye standard, which is still used in some states.

    • mike r

      Yeah I remember all this crap now, takes me a minute. Have a lot of crap brewing up there in the old noggin at the moment. lol. The main thing that I will have to refute is the AG’s attempt to use pre-sentence reports and recommendations, because I was not happy with the pre-sentence probation officer or whoever it was that was to make recommendations for sentencing. I kind of told them to go screw themselves that I do not admit any of what I was convicted for in a pretty scary and forceful way. He kind of left the room in a hurry. The dude kept calling me this and telling me I did that and all this other false crap and I blew up. Not good for a jury but I am sure I can turn it around if I have to. I also kind of blew up at sentencing as well. Claiming to the grave that I was under a contractual agreement with Yahoo that stated only those that are of age to form a legal contract in the US is allowed upon this service that I was using, and a bunch of other crap that was fact. I even asked the guy that was pretending to be the victim during sentencing why was he in Las Vegas on a weekend in a motel room online at 12:30 a.m. with only his 13 year old step daughter and her 13 year old friend as well. Said they were visiting grandma or some crap, come on really? sure you were… I do not mean to stereo type or go by looks, but believe me this guy did not look or act like a concerned stepfather. Whatever, I am sure all that had to do with the max sentence.

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