Oklahoma State Agency Lacks Sex Offender Treatment Funds

Sex offenders are supposed to receive treatment while behind bars so they won’t offend again when they are released from prison.  Now it comes to light that Department of Corrections has space for only 55 offenders, while there are more than 3,000 sex offenders in Department of Corrections custody.

Inmates who are closest to completing their prison sentence are given priority when there are openings because research shows such programs are more effective just before release.  But the resources such as bed space and program manpower limit the size of the sex offender treatment program, and the capacity is not likely to expand, Jerry Massie, Department of Corrections spokesman said.

One criminal defense lawyer in Oklahoma County intends to ask a judge to release his client early from prison so the client can continue at his own expense sex offender treatment which is not available in prison.

Private treatment is available from a few sources, such as Richard Kishur, an expert who created the Department of Corrections sex offender treatment program.  This criminal defense attorney is not the only one who has argued that getting treatment to change future behavior is the main thing society should seek.  Otherwise, a punishing society can insist on putting people into  prison, only to let them out eventually, unchanged.  So if the prison system cannot provide that change, the offender should be kept out of prison to pursue private treatment, outside prison.

Randy Loop, chairman of the Oklahoma Coalition for Sex Offender Management, said community-based treatment is a cheaper alternative than prison.  Loop said recidivism rates are low for sex offenders, which makes them good candidates for treatment in lieu of incarceration.  Loop said studies show 13 to 15 percent of sex offenders are re-arrested.

Prosecutors, of course, prefer that sex offenders go to prison, and if treatment is received in prison, fine.  No surprise there is an emphasis on punishment from them.  Unfortunately, the tax payers are not willing to come up more and more tax money needed for more and more prisons.  The Department of Corrections does not have any sex offender programs out in the community, outside incarceration.  Such a program might possibly be a less expensive approach that could address the need which Department of Corrections is not now addressing.

The Department of Corrections program, for those lucky enough to get in, lasts up to 16 months, depending on the risk of the offender.  It takes a minimum of one year to complete.  There are 200 people on the waiting list for the program which has 55 slots.  The program is designed to help offenders understand the effect that sexual deviancy has on victims and society.  Offenders learn and discuss intervention strategies.  Psychological and psychosexual testing is used to plan treatment.  Polygraph examinations help determine each offender’s progress through the program.

Wrong Facts in Child Molestation Case Give Wrong Results

Bill O’Reilly’s “No Spin Zone” told its viewers last week about “an injustice in Oklahoma.”  The story concerns the charge of child molestation in McAlester, Oklahoma, against one David Harold Earls.  O’Reilly stated as fact that a 4-year old girl accused the man of child molestation, and a 5-year old boy corroborated this allegation.  With these as stated “facts”, O’Reilly then gave himself up to outrage that defendant David Harold Earls was sentenced to only one year in prison for this heinous crime, and why didn’t the Attorney General investigate this and why didn’t Governor Brad Henry do something about this and was everyone covering up because Governor Henry went to school with the sentencing judge so it’s an obvious cover-up. That was O’Reilly’s claim, that the District Attorney and the judge should be reprimanded because the result was not fair from the facts of the case.

No doubt child molestation is a detestable crime, and anyone guilty of molesting a 4-year old child deserves more than a one-year sentence.  In this case, defendant Earls received in addition to the one year sentence 19 years on suspended sentence, little difference.  And Earls is predicted to live only for three more years due to illness, also no significant difference.  Regardless, the issue is the justification of such a sentence for such a crime.

Now the Daily Oklahoman has devoted a front-page story to the case.  That story gives a deeper look at the evidence in the case, critical evidence which O’Reilly did not mention, critical evidence which the District Attorney had to face in deciding whether to take the case to jury trial or offer some plea agreement to prevent defendant Earls from going scott free.

It appears that what O’Reilly gave as “evidence” is only one version from the witnesses.
The 5-year old boy did at one point accuse David Harold Earls of touching inappropriately the 4-year old girl. Then the boy changed his story and denied his earlier statement.

The 4-year old girl did indeed accuse David Harold Earls at one time. However, the child could not testify as a witness, even by remote transmission outside the courtroom.   She came to court to testify as a witness in a pretrial hearing, and Judge Thomas Bartheld, the judge in the case, tried five times to have her sworn as a witness.  The little girl was unable to settle down enough take the oath as a witness.  She never did took it.  Does O’Reilly suggest the little girl could be a witness without taking the oath of a witness?  Would O’Reilly agree to be tried by a jury, facing life in prison, in a trial in which witnesses were not required to take an oath before testifying?  For centuries, all witnesses have been required to take the oath.  Does O’Reilly advocate elimination of this practice?   He simply does not mention this fact.

The physical evidence of abuse was reported to be“consistent with” abuse.   This evidence might be of some help, but only if some witness could link it to defendant Earls, show Earls  was responsible for it.  There were no such witnesses, so it was of no help.

The District Attorney, J.D. Miller, stated his staff knew they could not prove their case against defendant Earls.   The standard of persuasion for proof to a jury is “beyond a reasonable doubt,” and the prosecution staff recognized this case was overflowing with doubts.  So the prosecution chose to get the most they could get against Earls.

Apparently O’Reilly would have had the prosecutor present the case to the jury, obtain an inevitable verdict of “Not Guilty”, and then blame the jury or blame the prosecutor for presenting a faulty case.  Blame somebody, anybody, just get headlines.  O’Reilly does not understand or forgets that the prosecutor does not manufacture evidence.  The prosecutor can only present the case as he finds it.

O’Reilly sent his reporter, Geraldo Rivera, a law school graduate himself, with his television crew and a microphone to Judge Barteld’s chambers, most certainly for an ambush interview. When Judge Bartheld declined an interview, they claimed the judge was “hiding.”  Surprise. More sizzle, more conspiracy, no facts.

The 4-year girl’s grandmother clearly states the District Attorney and the judge in this case did the best they could with the evidence.  “We were over a barrel because of the children’s inability to testify with any consistency,” the grandmother stated.  “One minute they would be OK with testifying, and the next minute they would want to play or be crying to get out of the courtroom.”  The children’s mother said it became apparent the children were incapable of testifying.  (“INCAPABLE OF TESTIFYING!”)  Each time they were questioned about the abuse, the children had behavioral problems.  “For my children, this was the best deal, “the mother said.  O’Reilly does not even mention the approval of the one-year sentence by the  victim’s grandmother and mother, does not mention their stated understanding of why the plea agreement was offered by the District Attorney and approved by Judge Bartheld.  Why did O’Reilly omit any reference to the mother or grandmother?  Why did he omit any reference to the inability of the children to testify?

Now defendant’s daughter, Denise Earls, now 38 years old, last week claimed Earls raped her when she was a child.  Does this that make the evidence any better in the case under discussion or does that just make Earls look more guilty?  One cannot help wondering why this woman waited for so many decades before coming forward, why she did not speak up earlier to protect other girls from defendant Earls if her claim is true.  Regardless, it’s too late for new evidence for the case under discussion.  Defendant Earls plead and was sentenced over a month ago, and there is no legal provision for the District Attorney to undo that deal now.  New allegations of past wrongdoing by this defendant do not change the fact that there were no witnesses available at the time Earls’ case was called for jury trial.   And the addition of such circumstantial evidence, if ruled admissible, would not have proved Earls committed this crime in this case.

The 4-year old child and her mother have now moved away, trying to get on with their lives.  One other victim in this case was the truth. The deliberate twisting of the evidence by Bill O’Reilly was unfortunate, obviously given to add sensation at the expense of truth.  I, for one, used to enjoy O’Reilly’s take.  Anytime I watch him from now on, however, I will wonder whether he is fairly and truthfully presenting the facts.

Wrongful Convictions in Houston Caused by Bad Forensics

Now it’s the turn of Houston to develop a rash of wrongful convictions.  Gary Alvin Richard is expected to be released any day due to errors from the Houston crime lab.  He has spent 22 years in prison for a rape. The conviction for that rape was based upon forensic tests which now indicate he did not commit the crime.

Richard is the latest case to discredit the Houston Police Department crime lab.  Richard , if ultimately cleared of this crime, would be the fourth person whose conviction was overturned because of faulty forensics from the lab.

Both prosecutors and Richard’s defense lawyers agree that Richard should be freed on bail, but prosecutors are not convinced Richard is innocent of the crime. Prosecutors agree that the new lab results contradict the findings that were used to convict Richard at trial, but prosecutors maintain they do not know Richard is innocent of the rape.  Gary Alvin Richard’s lawyer, Bob Wicoff, claims the new tests prove his client’s innocence.

Other problems in the Houston lab have prompted a review of past cases.  A review was undertaken of more than 150 cases involving questionable blood-typing evidence.  The review showed in Richard’s case that crime lab analysts had conflicting results from their tests but reported only conclusions that pointed toward conviction.  Then they destroyed the physical evidence that was tested, thus eliminating any possibility of DNA testing.

While Richard was in prison, his mother, father and brother died.  His son, nine years old when he entered prison, is now 32 years old with two children.   But Richard himself is philosophical about it all.  Richard not surprisingly had prior convictions, convictions for drug dealing and theft. He said it was “God’s will that he ended up in prison.”  “I probably would have ended up back in prison or dead,” Richard also said in an interview from jail.  “I have gotten a hold of my life. I am not angry.”

Without waiting to pour over any other evidence, without a moments thought about any scintilla of evidence they might use to convict Richard in a retrial, the prosecution ought to dismiss all charges against Richard just for his attitude.

Sex Crimes and Sex Offender Registration Requirements in 2009

When the federal government stepped into the sex registration business, it doubled the number of Oklahoma’s sex offenders who must register for life. In 2007, Oklahoma adopted a classification system to comply with the federal Adam Walsh Act., more formally known as the Adam Walsh Child Protection and Safety Act. Adam Walsh, of course, is the murdered son of John Walsh, creator of the television show, “America’s Most Wanted.” Since his young son was kidnaped and murdered in 1981, John Walsh has been a leading advocate to increase punishment and monitoring of sex offenders. He helped found the National Center for Missing and Exploited Children.

In 2007, Oklahoma adopted a new three-tier system of registration for those living in Oklahoma who have been convicted of a sex offense. The intent of the system is to prevent any re-offending by those registered. Failure to register is punishable by prison time.

But critics point out that the registration system assumes every person is the worst possible offender. They say the system uses a sledge hammer to crush a flea. Oklahoma has about 6,000 registered sex offenders. Of these, 5,026 are required for life. Another 228 of them are required to register only for 25 years, and in the lowest tier, 840 registrants in tier one are required to register for only 15 years. Those required to register for life have been classified as aggravated or habitual.

This three-tier system did not exist before 2007. The new law required the state to evaluate and reevaluate every sex offender for placement in the new classification system. While only 40% of the total registration population used to be assigned to the aggravated or habitual category, now more than 80% are in that category, earning the requirement for lifetime registration.

The classifications are determined by a committee comprised of prosecutors, counselors and “victim advocates.”. It is rumored that no one wants to be the one on the committee who appears “soft’ on classifications, perhaps out of fear that the committee might classify someone in a lower category and then that person re-offend. It’s always safer to classify everyone in the maximum category, especially when the only ones who might complain are sex offenders, no big voting block.

However, Randy Lopp, head of the Oklahoma Coalition for Sex Offender Management, says offenders should be classified according to their risk level rather than their offense of record, as they are now. He says “accepted research” in the field indicates that seventy-five percent of sexual offenders are not re-arrested in a fifteen-year period.

An even more understanding approach is offered by Richard Kishur, Ph.D., an Oklahoma City counselor who specializes in treating sex offenders. He suggests that ideally sex offenders should be evaluated before they are sentenced to determine if they are a risk to re-offend. This assumes that such evaluation can be accurately done, and Dr. Kishur and other experts would say it can be. This approach would allow important resources to be aimed at those few individuals who are a significant risk to society, persons from whom society needs protection, while allowing other sex offenders to live their lives without such maximum, unnecessary intrusion as now required by life registration.

For instance, doesn’t it seem overly harsh to require lifetime registration for an individual who, when somewhat inebriated, urinated against the side of his truck, while being seen by some women? When someone is required to register as a sex offender, they are governed by many restrictions, such as where he can live. Furthermore, there are reports of family members of the convicted sex offender having authorities periodically show up at their homes, barge into the home without providing any information identifying themselves, and proceed to look through the entire home to make sure the “sex offender” is not living there (in a restricted neighborhood). This kind of situation where even relatives are harassed points out the potential dangers of a system that assigns never ending penalties for minor offenses.

For all of these reasons, even a relatively minor sex charge can cause severe repercussions for an individual and therefore, it’s critical someone charged with a sex offense seek an experienced and competent criminal defense lawyer. My site at http://www.oklahomacriminallawoffice.com provides advice on how to choose the right criminal attorney to protect your rights and I encourage you to visit it for more information on this important consideration.

Roman Polanski & Sex Charge Conviction

The famous movie director, Roman Polanski, failed in his attempt to overturn his 30 year-old conviction for having sex with a minor.  Los Angeles, California, Superior Court Judge Peter Espinoza decided against Polanski but said he would reconsider if Polanski returned to the United States to appear before the court by May 7th.  Polanski fled to France in 1978 and has been gone ever since.

Polanski is now 75 years old.  He is famous as the director of such movies as “Rosemary’s Baby”, “Chinatown”, and “The Pianist.”

Polanski, in his attempt to overturn his conviction, claims the judge to whom he pled guilty in 1978 improperly coached the prosecutor in the case.  There might be something to that claim.  Los Angeles Deputy District Attorney David Wells spoke of his contacts with that Judge, who is now deceased, in the documentary film “Roman Polanski: Wanted and Desired.”  Judge Espinoza in deciding against Polanski last Tuesday even said, “”It is hard to contest that some of the conduct portrayed in film on that documentary was misconduct.”

But there is a roadblock before getting to the merits of Polanski’s claim.  That roadblock is Polanski’s absence.  Indeed, prosecutors have successfully argued that Polanski has no right to challenge anything or be heard by the court on any matter because he has no “standing” before the court.  This is a long-standing concept still very much alive in the courts.  One must have standing to be heard on the matter at hand, and Polanski’s having fled and never returned vitiates his standing before the court.

The same is true in Oklahoma today.  If a defendant escapes or runs off while a criminal charge is pending before the court, the court would not hear a lawyer on that person’s behalf until the person surrender to the court, submitted to the court’s personal jurisdiction.  Prosecutors typically refuse to negotiate about a case when the defendant is at large for the same reason. Until the defendant comes before the court, no deals.

Polanski was originally indicted on six charges, including rape, for having sex with a 13-year-old girl after plying her with champagne and drugs.  He insisted the sex was consensual but pleaded guilty to a single count of having sex with a 13-year-old girl, punishable by up to 20 years in prison.  He put his faith in the judge to give him a fair sentence, and spent 42 days incarcerated for psychiatric evaluation in 1978.  He then fled before the judge could sentence him because he became convinced the judge intended to send him back to prison, contrary to a plea agreement he had made with prosecutors.

Polanski is a citizen of his France, where he resides, and cannot be extradited to the United States.  However, he faces arrest if he ever returns to the United States, and he is obviously trying to clear that up.

Polanski’s attorneys had sought to disqualify the entire Los Angeles County court system from hearing this matter, but that request was rejected earlier this month by a California appeals court.

Polanski has an interesting past for other reasons.  His mother was killed in the Nazi death camp at Auschwitz.  Polanski also has a link to Mr. “Helter Skelter”, Charles Manson.  It was Roman Polanski’s wife, Sharon Tate, while pregnant, who was attacked in their Beverly Hills home by the Charles Manson gang in 1969, while Polanski was out of town on business.  They wrote “Helter Skelter” in blood on the walls of the home.  Polanski directed four actors to Oscar-nominated performances: Ruth Gordon, Jack Nicholson, Faye Dunaway, and Adrien Brody.  Polanski himself won the Oscar for his direction in 2002 for “The Pianist,” which he made in Europe.  Polanski’s friend, Harrison Ford, flew to Paris to present the award to Polanski, who continued to stay out of the United States to avoid being arrested.

Does the Death Penalty Deter Crime?….New Jersey says No

The State of New Jersey last December became the first state to abolish the death penalty since the U.S. Supreme Court in 1976 allowed states to impose the death sentence.  The legislature enacted the measure after a special state commission recommended the abolition a year before. New Jersey has not executed since 1963.  After the 1976 Supreme Court decision, New Jersey reinstated the death penalty in 1982..  The state had chosen lethal injection and built an elaborate facility to carry out the injections, but never used.

The commission found the death penalty was more expensive than life in prison and had not deterred murder.  The legislature’s bill was approved by Governor Jon Corzine, a death penalty opponent, December 27. 2007.

New Jersey’s replacement of the death penalty with life without parole spared eight inmates.  Juries had sentenced four dozen people to the death penalty, but all but eight had been overturned in appeals.  A state appeals court ruled that the state’s lethal injection procedure was unconstitutional, and the state rewrote the procedures, but they were never finalized and expired in 2005.

One of those awaiting execution was Jesse Timmendequas, a sex offender whose crimes sparked Megan’s Law.  Timmendequas was convicted of murdering 7-year old Megan Kanka in 1984.  As a result New Jersey enacted a law requiring law enforcement agencies to notify the public about convicted sex offenders living in their communities.  Other states have copied this law, certainly including Oklahoma.

Last year,  the legislatures in Nebraska, Montana, Maryland and New Mexico debated bills to repeal those states’ death penalties, but each measure failed, often by a slim margin. Oklahoma continues to enforce the death penalty and shows no indications of repeal. However, It will be interesting to see if other states find that life imprisonment is less expensive and change their laws, which could cause Oklahoma to rethink this position as well.

A Verdict for Fairness – Even for a Lawyer

Last month, April, 2007, another local attorney in Oklahoma City took his case to jury trial. But the case was not the case of his client. This time the District Attorney accused the attorney himself, of a crime. While I’m not condoning what the lawyer did….as he truly should have known better than to get into such a situation….I was glad to see a demonstration of a sense of fair play by our jury system.

In this case, the District Attorney accused the lawyer of trading sex for a reduction of his fee. The lawyer represented a man in a criminal case, and the man’s wife was a prostitute. Allegedly, the lawyer suggested the wife perform a sex act on him as partial payment for his fee.

An audio recording was included in the evidence. The woman was wired by the police to record her conversation with the accused lawyer. The police also claimed that they burst into the lawyer’s office where the woman and the lawyer were, and the accused lawyer stood up, his pants were unzipped and he was tucking in his shirt. The police also claimed the lawyer was captured trying to destroy a tape recorder found on the woman, although the police claimed this was a dummy tape recorder they had planted on her.

Did the police set up the lawyer for this crime? Under state law, for the evidence to constitute “entrapment”, it must be established, ordinarily by the accused, that the accused “had no previous intent or purpose to violate the law” until the police suggested the crime to the accused. It must have been the original idea of the accused. Otherwise, it could be entrapment.

On the other hand, if the defendant was ready and willing to commit the sex crime whenever an opportunity arose, and the police merely offered the opportunity, then entrapment should not be a defense, according to a strict interpretation of the law.

If the jury found that the defendant “had no previous intent or purpose to commit any such sex offense, and further, that he did so only because he was induced or persuaded by some agent of the police, then the government has seduced an innocent person, and the defense of entrapment was a good defense.”

As the trial unfolded, the prosecution offered two more witnesses, two women, in addition to the prostitute witness, to testify that the accused lawyer suggested to them they have sex with the accused lawyer in exchange for a lowering of his fee in his representation of them in their cases. This was important evidence because the jury was shown evidence that the accused lawyer already had a “previous intent or purpose to commit ” an offense like this.

The prosecution presented their evidence, including the police who arrested the accused lawyer with the prostitute, the prostitute herself, and the two witnesses who testified about their encounters with the accused lawyer before this incident.

Then it was the turn of the accused lawyer to testify, but he declined to testify. An accused is allowed to do this, of course, under the Fifth Amendment, and the jury is instructed under the law they are prohibited from considering this, when they are considering a verdict, as evidence of guilt. Nevertheless, individual jurors are sometimes suspicious of an accused who does not testify, and they do sometimes consider an accused guilty for that reason, in spite of the law. So it is a gamble not to testify as a witness in one’s own defense.

At the conclusion of the evidence, the prosecution argued that the accused lawyer instigated this whole thing and he had followed through with the act. He had traded something of value (his legal services for the prostitute’s husband) for the sex act, thus purchasing sex. They argued this was both solicitation (for initiating the transaction) and that it was prostitution for carrying out the sex for money.

The defense attorney admitted the accused had had sex with the witness, arguing the whole thing was the idea of the police to ensnare him.

The prosecution countered this argument by saying that, even if the initial idea was not that of the accused, he certainly got on board with the idea, so he did pay for the sex. Therefore, the prosecution argued, the accused was guilty at least of the money-for-sex prostitution. The prosecution argued it did not matter who initiated this transaction for them to prove the accused did willingly follow through with the illegal act.

Because of the two additional witnesses demonstrating the accused lawyer’s prior intent to commit a sex offense, the defense of “entrapment” was weak. None the less, the defense argued that the police just set him up, regardless of who did what. This argument is not within the strict boundaries of the instructions of the law because either it is or it is not entrapment. And “setting up someone’ is not strictly a defense under the law. Of course, the District Attorney said that the defense did not show “entrapment”, and therefore the jury must convict the accused.

But the jury did not convict the accused lawyer.

You see, it mattered to the jury that the police did set up the accused lawyer. This is what individual jurors said in interviews to the newspaper after the verdict. That is the interesting part. The jury may not have accepted the strict guidelines of law, the strict instructions of law given by the court. Instead the jury decided it was unjust to convict someone in such circumstances. That is why the jury verdict was interesting.

The defense admitted the accused did have sex with the prostitute-witness, and the defense may or may not have been able to prove entrapment under the law. But the jury either disregarded the testimony of the two prior clients of the accused and therefore found entrapment or probably, the jury found more compelling the unfairness of the police setting up the accused so that it did not matter to the jury whether the accused met the legal definition of “entrapment”. The jury brought back a verdict for fairness.