Thursday, January 15, 2009
SJC nominee statement met with challenge

BOSTON — Governor’s Councilor Thomas J. Foley yesterday confronted Judge Ralph D. Gants over his calling a Worcester police official a liar.

The exchange came as the council held a hearing on the governor’s nomination of Judge Gants to the Supreme Judicial Court, elevating him from the Superior Court.

Mr. Foley, a former commander of the Massachusetts State Police, said he felt badly for Worcester police Lt. Timothy J. O’Connor and said there is a difference between questioning the credibility of a statement and calling someone a liar.

Mr. Foley, a Worcester resident, contrasted his own experience while testifying in U.S. District Court before Judge Mark L. Wolf. The former organized-crime fighter said Judge Wolf was rolling his eyes while he testified and clearly did not believe his testimony, “but Judge Wolf didn’t call me a liar.

“People have families, and this stuff was in the newspapers,” Mr. Foley said. He noted that Lt. O’Connor was a well-respected police officer who had put in many years for the city of Worcester.

Judge Gants ruled in a 2003 hearing on a motion to suppress evidence that then-Sgt. O’Connor lied when he testified defendant Isidro Arias gave police permission to enter his apartment, where they subsequently found drugs.

Judge Gants, 54, noted his own service as an assistant to William Webster, director of the FBI, and as an assistant U.S. attorney who worked with multiple law enforcement agencies and said he has nothing against law enforcement or Lt. O’Connor.

But he said he is required to evaluate the testimony of police officers the same as he does with any other witness, just as he instructs jurors to do.

He said he credited the testimony of other Worcester police officers in that case, and concluded Lt. O’Connor’s testimony conflicted with theirs and it was deliberate. Mr. Foley complained that Judge Gant refused to reopen the case even with nine affidavits submitted to support Sgt. O’Connor.

The judge said he read the affidavits and continues to believe that the sergeant lied.

Among the seven members of the Governor’s Council, only Mr. Foley and Carole A. Fiola of Fall River subjected Judge Gants to critical questioning. Mr. Foley said after the hearing he had not made up his mind how to vote on the nomination to the state’s highest court.

With many of the other council members expressing support, the vote next week on the nomination to replace retired Associate Justice John M. Greaney does not appear to be in trouble.

Mr. Foley joined Ms. Fiola in also criticizing Judge Gants for refusing to find probable cause to hold a sex offender for a proceeding to have him declared sexually dangerous in 2001.

Judge Gants said the law was still evolving and he followed it as he understood it then, although the SJC’s overturning of his decision makes him realize now that he should not have required such strong standards at that point from the prosecution.

Mr. Foley also questioned Judge Gants’ failure to recuse himself from a civil case in which one of the parties worked at a law firm where the judge worked.

Judge Gants said he did not realize, when the case was before him, that the woman had taken a married name.

A parade of people yesterday had high praise for Judge Gants, including Trial Court Chief Justice Barbara Rouse, who said Judge Gants “calls out abuses of power wherever he sees them,” while also keeping a respectful manner and judicial temperament. She predicted he will go down “as one of the truly great” justices in the annals of the SJC.

Another was David Meier, former chief of the Suffolk District Attorney’s homicide division. Mr. Meier is rumored to be a strong candidate to be the next U.S. attorney in Massachusetts; Mr. Foley said he was impressed through working with Mr. Meier and that he testified for Judge Gants.

Capeless Launches Web Site for DA's Office

- January 08, 2009

PITTSFIELD, Mass. — The Berkshire District attorney's office has launched its own Web site, joining the growing number of elected officials online.
 
District Attorney David F. Capeless said the Web site, at http://www.mass.gov/?pageID=berhomepage&L=1&L0=Home&sid=Dber, includes plenty of helpful information. 

"We have tried to design the site to be user friendly. The site will allow citizens to get to know the DA's office and its roles, responsibilities and services," said Capeless. "From the home page, information about the different units within the district attorney's office can be accessed. We have also provided information pertaining to the open meeting law, the Sex Offender Registry and victims rights." 

The site also provides information about recent cases and legal decisions, and features articles about events and programs of interest involving the district attorney's office. News media services will be able to access and be provided updates, on releases and other information from the office through a RSS (real simple syndication) feed subscription service, which will provide alerts regarding new postings.

"The Web site also contains information on a variety of social and consumer protection topics and includes links to other websites that provide additional information and resources," said Capeless. "I am pleased we have been able to put this information on the web and hope that the Berkshire County community and people from other parts of the commonwealth will find the information helpful."

The Berkshire district attorney is the first of the Western Mass. offices to create an online presence. Most of the district attorneys in the eastern end of the state have had their own sites for some time. Hampden County and the Northwestern (Franklin and Hampshire counties) district attorneys are not online.

The Berkshire County site is hosted on the Massachusetts government Web portal, as is Essex County. By using the mass.gov design frameworks, said Capeless, his office joins other commonwealth agencies to provide a single face of state government, helping to achieve the goal of improving service to citizens and increasing civic engagement through a united Web presence.  

Julie Kay / Staff reporter

January 28, 2009

MIAMI — Chief Judge Federico Moreno of the Southern District of Florida, bucking the wishes of the U.S. Department of Justice, has ordered all plea agreements to be posted online.

In an order issued on Jan. 22, Moreno stated that as of Feb. 20, all plea agreements "will be public documents, with full remote access available to all members of the public and the bar, unless the Court has entered an order in advance directing the sealing or otherwise restricting a plea agreement." Moreno's order rescinds a previous order of April 2007 taking all plea agreements offline and making them accessible for physical viewing only at the courthouse.

The issue of whether plea agreements should be publicly available, able to be viewed electronically through the PACER system, is a controversial one, pitting prosecutors against defense lawyers and First Amendment advocates. In 2007, the Justice Department asked the Judicial Conference to restrict electronic access to plea and cooperation agreements in order to keep information about cooperating witnesses secret.

The Justice Department was concerned about a new Web site, Whosarat.com, which was posting information about all cooperators in federal cases. "We are witnessing the rise of a new cottage industry engaged in republishing court filings about cooperators on Web sites such as whosarat.com for the clear purpose of witness intimidation, retaliation and harassment," stated the Justice Department's memo to the courts. The Southern District of Florida, like most other courts around the nation, complied, taking pleas off PACER.

But defense attorneys, First Amendment advocates and the federal public defender's office protested, arguing that the public's right to know about the court system was being impaired.

In 2007, the National Association of Criminal Defense Lawyers passed a resolution opposing the exclusion of plea agreements from PACER.

Moreno ordered a study of the situation and held an en banc hearing, with representatives from both the U.S. attorney's office and defense bar. After the hearing, most of the district judges agreed to rescind the previous order and make plea agreements public again, stated the order.

"The sense of the Court is that the public's interest in access must prevail in this instance and that restricting access to all plea agreements is overly broad," states Moreno's order. "Other means are available to the prosecution and defense to insure that the public record does not contain information about cooperation agreements in those instance where the interests of safety or other considerations require different treatment." Judges can still seal plea agreements in individual cases, he noted.

A spokesperson for the Department of Justice said in an e-mail, "we're reviewing the court's decision and considering our options."

David Markus, former president of the Miami chapter of the Florida Association of Criminal Defense Lawyers, applauded Moreno for his order. "Kudos to Chief Judge Moreno and the rest of our district judges for keeping our criminal justice system transparent and open to the public," he said.

Tom Julin, a First Amendment lawyer in the Miami office of Richmond, Va.'s Hunton & Williams, called Moreno's action "progress."

"Most courts are coming to the view that it doesn't make sense to seal all those records," he said. "It's very important for someone to see what deals prosecutors are making."

As for those who say that the government will simply skirt the law and keep details of the plea agreement verbal or written in a private letter, Julin said, "It's the same as with any open government rule. There are those who will try to circumvent it. But it's important to have the rules in place; it serves an important public purpose. If you circumvent it, you are acting against public interest."

By Harvey Silverglate 

The Massachusetts judiciary – and as a result, the people of the Commonwealth of Massachusetts – are about to lose one of liberty’s most effective and reliable friends. But just because state Superior Court Judge Isaac Borenstein will retire from his life-tenured position on the state’s trial court on September 12th doesn’t mean that he will disappear altogether from the battle for freedom, decency, and fairness. Instead, he plans to conclude his 22 years of service on the bench by returning, at age 58, to a law practice emphasizing civil rights and civil liberties cases. 

Judge Borenstein’s departure from the bench follows an increasingly typical narrative; he isn’t leaving his judicial post because he’s tired of it. He explained to David Yas of the Massachusetts Lawyers Weekly that he likely would have continued his judicial career for a while but for the fact that his son Simon is a student at Carnegie-Mellon University. Private colleges like Carnegie-Mellon, which costs $52,000 a year, put public servants like Borenstein in the unfortunate and unenviable position of having to decide between providing for their children’s education – and facing financial hardship – and keeping their jobs. This trend is playing out around the country as our courts – both state and federal – continue to suffer judicial flight due to the inadequate salaries given to even our most seasoned judges. (Judge Borenstein and many others on the bench could easily earn in private practice a salary worth several times the $129,694 that he currently earns.) 

While I’ll be sad to see him leave the bench, the realities he faces mean that I can’t fault him for making the decision he did. I hold Borenstein in high regard for his wise and prudent decisions and actions on the bench – which happen to be his claim-to-fame among the local bar members. However, my respect for him is partly rooted in, and was very much enhanced by, his brave and principled decision to grant the defendants’ motion for a new trial in the tortured Amirault case.  

That case, which readers might be familiar with as the “Fells Acres Daycare Case,” was one of the earliest instances of the nationwide sex panic in the early 1980s, where prosecutors, social workers, jurors and many judges believed the testimony of 3 and 4-year-old children who alleged, after being tutored in their stories by cops and social workers, that workers in pre-school day-care centers performed the most astonishing, vile, unbelievable, and often literally physically impossible sexual assaults on them. (The Pulitzer Prize-winning Wall Street Journal columnist Dorothy Rabinowitz ably documented that national panic in her highly-regarded 2003 book, No Crueler Tyrannies: Accusation, False Witness, and Other Terrors of our Times.) The Amiraults had already brought their case up to the Supreme Judicial Court of Massachusetts by that point, but the high court had issued a disgraceful decision penned by then-Justice (now Harvard Law professor) Charles Fried denying them relief on the ground that “finality” was a major judicial value that sometimes had to trump truth and justice. Recognizing the enormity of the injustice done to the three members of the Amirault family accused in that case, and seeking perhaps to do an end-run around Justice Fried’s and the SJC’s ill-considered “finality” ruling, Judge Borenstein later granted the defendants’ third motion for a new trial, though his decision was subsequently overturned — the second such reversal in the case — by an obdurate SJC.  

Judge Borenstein’s attempt to do justice for the Amirault family, even in the face of hostility from the state’s highest court, was the right thing to do. I suspect that in the long run – from the standpoint of ethics – it will have longer and more influential impact than the SJC’s misguided reversals of lower courts’ attempts to do justice. Borenstein proved that sometimes there’s more wisdom on the trial bench than at the appellate level of the judicial system. His wisdom and courage will be missed, but I for one, recognizing that he could not stay on the bench much longer, now look forward to his new career as a trial lawyer promoting civil rights, civil liberties, and elementary justice from the other side of the bench.

Published: June 5, 2008

david.yas@lawyersweekly.com

Isaac Borenstein, considered by many to be the ultimate “gentleman judge,” will soon be trying cases instead of hearing them.

A self-described “Jewish street kid from Havana,” Borenstein will retire from the Superior Court on Sept. 12, ending a 22-year run as one of the state’s most-respected and talked-about judges.

Borenstein will embark on a career as a trial lawyer, an unusual switch for such a fixture of the court system. Veteran judges who retire from the bench often set up shop as arbitrators or mediators, in part to avoid the odd scenario of an ex-judge arguing before a former colleague.

But, says Borenstein, “I’ll be 58 in September. I want to do other things in my life. I want to be able to work on political campaigns. I want to be able to do pro bono work. … I want to go to Guantanamo and defend those cases. I want to come out openly on civil rights and civil liberties.”

Also driving his decision, Borenstein notes, are financial considerations; Superior Court judges are paid $129,694, and his son, Simon (who was born five months after Borenstein was sworn in as a judge), will soon be a junior at Carnegie-Mellon University, where the tuition is a hefty $52,000 a year.

The judge says he will join a Boston law firm (the identity of which he cannot reveal until his last day, according to an ethical opinion he received), where he will focus on criminal and civil litigation, appellate practice and “everything else.”

‘Pillow test’

In an interview at Lawyers Weekly last week, a relaxed Borenstein reflected on his career as a judge.

His early days as a lawyer included stints as a staff attorney at the Roxbury Defenders Committee, a clinical instructor at Harvard University and a full-time professor at New England School of Law.

Just 36 years old when he first donned a robe, today Borenstein is one of the elder statesmen of the bench after six years on the District Court and almost 16 on the Superior Court.

Borenstein quickly developed into one of the more well-regarded jurists in Massachusetts. While attorneys seem to agree that he had defense-friendly tendencies in criminal cases, the judge was lauded as one who took great pains to decide cases, and to explain himself.

“I’m going to miss what I do,” he now says. “I loved being engaged in the pursuit of justice, as corny as that sounds. I’ve made my mistakes, but I really love what I do.”

Mistakes? The judge says he could have worked faster on a number of cases and that he could have been a “better colleague … more available to people.”

When asked whether there was a single substantive decision that he regrets, the judge pauses a few seconds before replying with a decisive, “No.”

“I came on the bench trying to understand the role of a trial judge,” he says. “Facts and the law. Individual case by individual case. And not being concerned about how the next case will be viewed.”

So while litigants may walk away dissatisfied with a particular result, Borenstein says he is proud of the way he reached that result.

“It’s the pillow test,” he says. “Will I put my head down at night and believe I am right?”

‘The bouncing ball’

Borenstein acknowledges that he is leaving a flawed judiciary.

For one, his adherence to a “case by case” philosophy leads him to one of his pet peeves: specialized courts.

As nonsensical as it may sound, the judge cannot stand the idea of a court devoted to the cause of, say, wiping out drug problems.

“As important as it is, I am very wary of pushing judges toward the policy side,” he explains. “If I start worrying about policy … well, that’s not my job. A Drug Court? That’s not the role of a judge.”

Borenstein also laments that Massachusetts judges have not done enough to help the tattered image of the judiciary.

“I blame us. … I don’t think we have done a good enough job [in defending judges],” he says. “If it happens in our circle of friends, that’s when we stand up. But if it’s someone else, we don’t.”

But Borenstein does not leave the media blameless on this issue.

“Certain people in the media love to make judges prophets,” he says. “We’re supposed to know that someone in our court is going to do something bad. It sells because people want to be entertained. … But to have a politician ask a judge to resign because something went wrong is the lowest form of cowardice.”

Borenstein has hardly been immune to such scrutiny. On many occasions he was openly criticized for arguably “light” sentences. In fact, at one point Reader’s Digest named him one of the worst judges in the country.

“When it came out, of course it angered me,” he recalls. “But I tried to put it in perspective. That was based on three of my decisions. … What angered me is that they ignored all the circumstances behind the decisions.”

In the end, he says, “I’m a judge. The nature of the work means I will get criticized. But you know that bouncing ball in the old movies? I will not lose sight of the bouncing ball.”

‘Amirault,’ et al.

Some say the judge’s defining moment may have been the Fells Acre day care center abuse suit — or the Amirault case — in which he defiantly stood up to the Supreme Judicial Court in granting new-trial motions where he felt that the accused had not been given a fair shake. (A 2005 Lawyers Weekly editorial hailed Borenstein for his courage in that case.)

There is one thing in particular that he will remember about the Amirault saga.

“The overriding theme was how decent, well-intentioned people [prosecutors and judges] are capable of making huge mistakes. And secondly, how difficult it is to admit the mistakes we made.”

To this day, Borenstein seems baffled why prosecutors could not admit that the evidence presented to establish child abuse in the case was improper. “No one has asked, ‘Either we did blow it, or might we have blown it?’” he comments.

When pressed for other memorable cases, the judge shares an account of a rape victim who doggedly testified at trial, only to watch as the defendant was acquitted. Borenstein had the opportunity to personally speak to the victim and explain what had happened.

“The fact that a jury found the defendant not guilty was part of the process, but I understood her pain,” he recalls. “She later wrote me a letter telling me that I helped her understand the process. She said, ‘I respect the result and I will live with it.’”

He also remembers the personal-injury case of a man who had a 2,000-pound piece of steel fall on his leg. His injuries were grotesque and permanent.

When the defense offered the man a $2 million settlement, Borenstein unsuccessfully encouraged him to settle. He says the plaintiff looked him in the eye and told him, “It’s not your life. It’s not your leg. The answer is no.”

When the jury came back with a verdict of close to $6 million, Borenstein made a point of thanking the man for being brave enough to tell a judge “no.”

Florida-bound?

As for his “next career” as a practicing lawyer, Borenstein intends to stick around the Boston scene for a while and make his mark in the Massachusetts courts on the other side of the bench.

But somewhere down the road, he might be heading south.

A member of the Florida bar, Borenstein says someday he would like to help “open” up Cuba, his native country. South Florida would be a great base to do that from, he notes.

Before that, however, perhaps early next year, it will be Isaac Borenstein, counsel of record. He says he is not sure what it will feel like to walk into court as a trial lawyer.

“I don’t know,” he laughs. “I don’t expect any favors, and I don’t expect any negative reactions.”

‘I hate to see him leave the bench’

Lawyers agree judge’s departure will leave gap on Superior Court

Superior Court Judge Isaac Borenstein’s surprising decision to depart the bench at age 58 seems to have lawyers settled on one thing: He will be hard to replace.

Marilyn J. Wellington, executive director of the Massachusetts Bar Association, says the judge is known for being “warm, caring and with a reputation for considering the real impact on the individuals before him.”

Wellington, formerly chief of staff to then-Chief Justice for Administration and Management Barbara A. Dortch-Okara, says she was struck by the judge’s tireless work on the court’s interpreter project and his commitment to access to justice for all.

“I hate to see him leave the bench,” she adds.

Boston litigator Eric Neyman of McCarter & English says that Borenstein has something of a “bedside manner” with those in his courtroom.

A former prosecutor, Neyman recalls a situation in which Borenstein deftly handled a rather animated defense attorney who was loudly protesting the prosecution’s recommendation of a minimum-mandatory sentence.

The judge calmly said: “The Legislature effectively wears the robe in this case counsel, and the DA’s Office, as well as you and I, must respect that, as I am sure you understand.”

“It diffused the whole situation,” says Neyman. “Borenstein always heard you, and as a litigant that’s all you can ask for.”

As a prosecutor, Neyman says he knew of Borenstein’s reputation for sympathizing with defendants, but “you walked in with one impression and walked out with another. He listened.”

The Superior Court “can be a heartless place, because there is generally a lot at stake for both parties and usually only one winning side,” Neyman notes. “But Borenstein was always a gentleman.”

MBA President David W. White Jr. describes Borenstein as a judge “who is not afraid to answer the hard questions or take an unpopular stand. We are all very proud of him as a representative of the Massachusetts judiciary.”

And according to Boston criminal-defense lawyer Victor J. Garo, “All trial lawyers know which judges they can depend on to get a fair trial, and all the defense lawyers held him in high regard. He was never afraid to make an unpopular ruling, because he knew his rulings were based on the law.”

For the court to lose Borenstein, says Garo, “is a loss not only to lawyers, but also to the public.”

— David L. Yas

Boy found in home of woman accused of assaulting him

By DAN BENSON
dbenson@journalsentinel.com

Posted: April 3, 2008

West Bend - A 31-year-old West Bend woman charged two weeks ago with having sex with a 15-year-old boy was arrested again Wednesday - about an hour before she was due in court - after police found the boy at her house and determined that the two had spent the day together, violating conditions of her bail.

Jaime M. Foss will be charged today with bail jumping, Washington County District Attorney Todd Martens said.

West Bend police Lt. Jim Flitter said officers were investigating a theft case in which the boy was a suspect. When they went to West Bend West High School, where he is a student, they found he was truant and went to Foss' house after the boy's uncle said they might find him there, Flitter said.

Police went to the house about noon and found the boy. Foss arrived about 10 minutes later, Flitter said.

Foss told police that she knew the boy was at her house, and that they had been together for most of the day, Flitter said.

Foss was charged March 20 with three counts of sexual assault of a child younger than 16. If convicted, she could be imprisoned up to 40 years on each count.

She was freed from the Washington County Jail on March 20 after posting $500 bail and on condition that she have no contact with the boy.

According to a criminal complaint, Foss confessed to having sex with the boy in early March at her home, including at least one instance when her children were in the house.

The two met at Calvary Assembly of God church in West Bend, where Foss had been employed as a part-time temporary aide in the church's day care center. Authorities learned of the relationship after a member of the church called them, officials said.

The complaint says Foss and the boy called off their relationship until the boy reached 18.

Foss told investigators that she told boy to "live his life" for the next three years, "and if she is still single when he is 18, they can start a relationship," the complaint says.

Foss was due to appear at 1:15 p.m. Wednesday for a hearing before Washington County Circuit Judge David C. Resheske.

She was in custody at the Washington County jail Wednesday evening.

April 1, 2008

Local ASAP office will help keep offenders under control

By TAVIA D. GREEN
The Leaf -Chronicle

Juanita Gamache has looked in the eyes of hundreds of criminal sex offenders in the past five years. Many have preyed on small children.

Her goal is not to cure these offenders, but to protect the community and lower the risk of the sex offender striking again.

"Offenders have to recognize they need treatment for life," Gamache said. "They have to recognize the warning signs and do an intervention."

As family members, attorneys and advocates look for better ways to get child sex offenders behind bars, another group of professionals are looking for ways to keep them from acting on their impulses.

About three weeks ago, the Associates for Sexual Prevention Services opened an office in Clarksville.

"Unfortunately and fortunately, we are there to treat sexual offenders, men and women," Gamache said.

Many of the 129 registered sex offenders in Montgomery County will be using the services.

The Nashville-based company that treats more than 200 sex offenders overall now has two licensed professional counselors in Clarksville that are treating about 22 offenders.

Sex offenders who have come out of jail, received sex offender probation or who have pretrial diversions must pay for the service, and it is usually a requirement.

"We're so excited to have (the office) in town," said Lee Caira, director of victim-witness services at the District Attorney's Office.

Gamache said many more sex offenders are applying for treatment. which includes a three-level program.

"The only thing we are doing is risk evaluation and giving them tools for interventions to lower their risks to the community," Gamache said. "We are victim-focused and community-focused. Our job is to make sure that there are no more victims and community safety."

Gamache said the services are not counseling services.

"It is not counseling," Gamache said. "We're not holding their hands, like, 'You poor little man you're raping children because you were raped.' Not at all. … I do what I do so that children will be safe."

Treatment

Sex offenders are usually provided with a victim's statement that details what they did.

Gamache said that's the first level of treatment: to stop denying and blaming other people.

"They are called liars and deniers. They blame the courts, the victims and say they didn't do it," Gamache said. "That's level one. We have to get them past denial and have a statement of credibility."

Once a sex offender takes a detailed polygraph test and is found to be out of denial, he is taught how to change his behavior.

"They assess why they are sexually aroused to these children," Gamache said. "Then give them the tools to change that behavior."

Counselors try to teach offenders to fix the source of arousal, whether it be child pornography, not having enough adult friends or needing counseling for their own sexual abuse, and tell them to let someone know what's happening.

One measure ASAP provides is an ammonia capsule, which is like as a strong smelling salt that jolt an individual awake and stops sexual thoughts.

"If he or she does it enough times, they'll think about this horrible smell, and the thoughts will go away," Gamache said.

Sex offenders must attend weekly meetings and take a polygraph test every six months.

When an offender reaches level three of the program he is usually attending meetings once a week and knows why he is a sex offender, what causes him to have this behavior and how to prevent it.

Gamache said the treatment teaches the sex offender accountability and prevention. It is an effort to reduce the risk of him offending again.

"These are people who will go and offend again if they are not held accountable," she said.

'They are never cured'

Gamache said a child sex offender has distorted thinking and deviant behavior patterns.

"These are individuals with criminal thinking," Gamache said. "Their thinking is, 'I want it and I want it now.'"

Normal adult sexual arousal is not fulfilling to these individuals, she said.

"Their arousal pattern is from something they are getting out of the child," she said.

"There is a view that is not the mainstream view of children. A mainstream view is, 'I am the child's mother, father, and I am supposed to protect, shelter and mentor them.

"They are not concerned with their responsibility, but what can they get to meet their needs. They want sexual gratification and they want it then."

Gamache said the offenders prey on children who are trusting and available.

"They think and they plan. It never just happens," she said.

Many child sex offenders have an arousal to children that stems from viewing child pornography or having a lack of boundaries in the home — such as nudity or having sexually explicit materials lying around in the home. Many have been victims of sex crimes themselves.

But Gamache said there is no set profile for a child sex offender.

"We try to spend time educating the community that sexual offenders are never cured," Gamache said.

"They need to have a sexual offender registry, because they are never cured. … If they aren't activelyß doing intervention, they will do it again."

DEDHAM

Pending revision, wide area off-limits
By Matt Carroll, Globe Staff  |  April 3, 2008

A long-delayed Dedham bylaw that would ban sex offenders from living near schools, parks, elderly housing complexes, and places of worship - in effect, about three-quarters of the town - could go into effect by mid-May, said Town Administrator William G. Keegan Jr.

Once in effect, Dedham will join a growing list of communities, including Marlborough, Revere, and West Boylston, that restrict where sex offenders can live.

The Dedham bylaw has been in limbo for nearly a year as the attorney general's office examined its legality. But that office has approved the gist of the bylaw, although it still wants some changes.

Those changes must be reviewed by the office, and the bylaw must be posted before it goes into effect.

That further delay did not dampen the spirits of the bylaw's author.

"I'm ecstatic," said Donald Reisner, who was the sponsor of the bylaw at last year's Town Meeting and is the chairman of the Parks and Recreation Commission.

The law is designed to protect children and the elderly, said Reisner.

The bylaw prevents convicted sex offenders from moving to homes within 1,000 feet of schools, parks, elderly hous ing complexes, and places of worship, which means about 76 percent of the town would be off-limits. The law would not affect sex offenders already living in a residence within the area.

Although the attorney general's office approved the bylaw, it struck portions that would have forbidden sex offenders to loiter within 300 feet of a bus stop, school, or playground - although the loitering ban was approved near parks, said Reisner.

Reisner said the bylaw's initial wording was not specific enough about the locations of the bus stops, schools, and playgrounds. He hopes to amend that section and present it to Town Meeting in the fall.

A spokesman for the American Civil Liberties Union, which had argued against the bylaw's legality, said the law may have the opposite effect of what is intended.

"It makes it harder for them to lead a normal life," said Christopher Ott, of those targeted by the law. "Does that make them less likely someday to re-offend or more likely?"

Ott said he thinks towns adopting such strict bylaws "are going the wrong way."

Such bylaws in various communities have provoked sharp reactions on both sides.

Civil libertarians have said the laws could discourage offenders from registering or seeking treatment. Or sex offenders could have few places to live in a community because the provisions often form overlapping circles of restricted areas.

But those on the other side maintain that the laws help protect children from sexual predators.

Reisner started on his quest after reading about a sex offender who lived near a bus stop. He based his bylaw on one in West Boylston. Violations carry fines, and the violator must move from the restricted area.

Dedham last summer had 23 registered sex offenders living in town who were classified as levels 2 or 3, which indicates a moderate to high risk of re-offending.

The town has at least 10 public and private schools. There are also nearly a dozen parks, plus many churches, day-care centers, and elderly housing complexes.

Even with 24 percent of the town open to sex offenders, some of that includes cemeteries and conservation land.

Matt Carroll can be reached at mcarroll@globe.com.

By Geoffrey Fattah
Deseret Morning News
Published: April 4, 2008

A day after the Utah Supreme Court heard oral arguments on a key case challenging the constitutionality of the state's sex offender registry, prosecutors are being inundated with calls and notes from parents.

The parents are concerned their children will be prosecuted and forced to register as sex offenders for taking indecent pictures with their cell phones.

Prosecutors are saying a scenario posed by a Utah Supreme Court justice during oral arguments Wednesday just isn't realistic.

The supreme court heard arguments in the case of a convicted sex offender who is challenging the constitutionality of the requirement to register as a sex offender. The man, who served time for sexually abusing a 9-year-old girl, claims the sex offender registry stigmatizes him as a sexual predator and that he has a due process right to prove to a court that he is not a danger to the community. Currently the sex offender requirement is handled by Utah Department of Corrections policy.

During oral arguments in the case Wednesday, Chief Justice Christine Durham, alluded to the prosecution of minors taking indecent pictures with their cell phones and sending them to friends as a possible offense which could result in kids being registered as sex offenders.

Assistant Utah Attorney General Laura Dupaix, who argued on behalf of the state in the case, said that is just not realistic.

"There are no juveniles in the sex offender registry" currently, Dupaix said. According to state juvenile law, a juvenile offender has to be ordered held in secure confinement until they are 21 in order to require them to be a registered sex offender. Taking dirty pictures with a cell phone hardly seems like an offense deserving such a punishment, Dupaix said.

"We all know that is not a serious offense," she said. However, she said prosecutors also need to send a message that such behavior is also not socially acceptable.

The supreme court's discussion about cell phone pictures stems from the Davis County Attorney's prosecution of about 28 junior high students accused of trading nude and sexually explicit pictures over cell phones. Davis County Attorney Troy Rawlings said he intended to send a message to teens that this sort of behavior is not acceptable, but he never intended to charge them with a crime that would land them on the sex offender registry.

Rawlings said since the supreme court's hearing Wednesday, he has been inundated with calls by concerned parents who are worried that children are being put on the sex offender registry.

"None of these kids are going to be registered sex offenders," Rawlings said Friday.

He said he hopes to get the word out to parents that while trading in indecent pictures will get juveniles in trouble, being on the registry is not a realistic option.

Dupaix said she has filed a letter to the supreme court, clarifying Utah's laws regarding such behavior.

——————————————————————————–

E-mail: gfattah@desnews.com

By Geoffrey Fattah
Deseret Morning News
Published: April 3, 2008

A convicted sex offender says the Utah Sex Offender Registry violates his due process rights and if the Utah Supreme Court agrees with him, the state's highest court could strike down the policies governing the registry as unconstitutional.

Supreme Court justices heard arguments Wednesday in a key case that could hold sway over the fate of a registry that the public can use to access information, such as names and addresses, of thousands of convicted sex offenders over the Internet.

The case involves Steven Arthur Briggs, who was convicted of sexually abusing a 9-year-old girl in 1986 and sentenced to serve 15 years in prison. Before being released from prison in 2002, Briggs was told by prison staff that he had to fill out paperwork to register as a sex offender. Despite being told that it was the law, Briggs refused to sign the paperwork, which included telling prison officials where he would be living.

"You'll have to file charges against me, if you can find me," Briggs was quoted in court documents as telling prison officials.

Briggs was later charged with failing to register as a sex offender between 2003 and 2005. The court sentenced Briggs to two consecutive years in jail with all but 61 days credit for time served. Briggs appealed and argues that the Utah Sex Offender Registry stigmatizes all sex offenders as sexual predators, even those who have no history of repeat offenses. People on the registry are then subjected to public ridicule and humiliation, even after they have fully served their sentence and fulfilled their debt to society.

During oral arguments, Briggs' attorney, Lori Seppi, told justices the sex offender registry lumps all sex offenders in the same category and implies that they are all predators. This includes a 17-year-old male convicted of having consensual sex with his 15-year-old girlfriend as well as others with no history of repeat abuse. This information is then published on the Internet without giving the person a chance to argue before a judge that they are not a danger to the community.

Seppi said this violates the Constitution's guaranteed right to due process, adding if these people are going to be held out for public shame, they have a right to challenge it in court and prove that they are not a danger.

Justice Michael Wilkins asked if it's true that the sex offender is a predator, shouldn't he or she be on the registry?

Seppi said she was not arguing that everyone should be taken off and said some people should be on the registry as dangerous, but she argued Utah's laws do not make a distinction.

Chief Justice Christine Durham said she was troubled by this. She noted that children who send cell phone pictures of themselves nude to each other or children charged with acts of lewdness could wind up on the registry alongside adult rapists and violent sex offenders.

Durham suggested that the implication of being on the registry could be far more egregious than the original offense.

Assistant Utah Attorney general Laura Dupaix said all the state does is publish truthful information about sex offenders on the registry, including the crime of which they were convicted. The stigma doesn't come from the state but rather from what the public decides to do with the information, she said.

Dupaix said she would not trust a registered sex offender to be alone with her children, based on their past conduct. The registry gives the community the ability to use the information to make those choices.

Justice Matthew Durrant said he doubted the framers of the Constitution could have anticipated something like the sex offender registry or Internet publication.

Dupaix said the registry is not much different than word circulated about the abuse of a child among colonial townsfolk or of the public humiliation from time spent in the town stockade.

The justices will consider the arguments and issue a written opinion in the coming months.
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E-mail: gfattah@desnews.com

Smirking at sexual attacks on inmates makes us all less safe.

By Ezra Klein
Los Angeles Times
March 30, 2008

'From the studio that brought you 'Brokeback Mountain,' " intones the preview for the light comedy "Let's Go To Prison," "comes a penetrating look at the American penal system." In case that was too subtle for you, the DVD box features a dropped bar of soap, just waiting for some poor inmate to bend over to pick it up — and suffer a hilarious sexual assault in the process.

Or maybe you're not feeling up for a movie. It's more of a board-game afternoon. How about picking up "Don't Drop the Soap," a board game created by the son of Gov. Kathleen Sebelius of Kansas. The game "is simply intended for entertainment," said Nicole Corcoran, the governor's spokeswoman. What, after all, could be more entertaining then trying to "avoid being cornered by the Aryans in the shower room" (one of the goals of the game, according to its promotional material)?

Here in Washington, however, the weather has been beautiful lately, so if you were bored last week, you might have wanted to do something out of the house. One option would have been going down to the Department of Justice, where, on the third floor, officials were holding hearings on prison rape, interrogating administrators from some of the worst prisons in the nation about the abuses that go on within their walls.

These hearings are held annually. This year's transcripts aren't online yet, but in 2006 you could have heard a man named Clinton explain, "I had no choice but to enter into a relationship with another inmate in my dorm in order to keep the rest of them off of me. In exchange for his protection from other inmates, I had to be with him sexually any time he demanded it. It was so humiliating, and I often cried silently at night in my bed … but dealing with one is better than having 10 or more men demanding sex from you at any given time."

Clinton's testimony wasn't very funny, and it wasn't for entertainment. Nor was the 2001 report by Human Rights Watch, "No Escape," which included a letter from an inmate confessing that "I have no more feelings physically. I have been raped by up to five black men and two white men at a time. I've had knifes at my head and throat. I had fought and been beat so hard that I didn't ever think I'd see straight again."

Prison rape occupies a fairly odd space in our culture. It is, all at once, a cherished source of humor, a tacitly accepted form of punishment and a broadly understood human rights abuse. We pass legislation called the Prison Rape Elimination Act at the same time that we produce films meant to explore the funny side of inmate sexual brutality.

Occasionally, we even admit that prison rape is a quietly honored part of the punishment structure for criminals. When Enron's Ken Lay was sentenced to jail, for instance, Bill Lockyer, then the attorney general of California, spoke dreamily of his desire "to personally escort Lay to an 8-by-10 cell that he could share with a tattooed dude who says, 'Hi, my name is Spike, honey.' "

The culture is rife with similar comments. Although it would be unthinkable for the government today to institute corporal punishment in prisons, there is little or no outrage when the government interns prisoners in institutions where their fellow inmates will brutally violate them. We won't touch you, but we can't be held accountable for the behavior of Spike, now can we?

As our jokes and cultural products show, we can claim no ignorance. We know of the abuses, and we know of the rapes. Research by the University of South Dakota's Cindy Struckman-Johnson found that 20% of prisoners reported being coerced or pressured into sex, and 10% said they were violently raped. In a 2007 survey by the U.S. Department of Justice, more than 60,000 inmates claimed to have been sexually victimized by other inmates during the previous 12 months. Given the stigma around admitting such harms, the true numbers are probably substantially higher.

But by and large, we seem to find more humor than outrage in these crimes. In part, this simply reflects the nature of our criminal justice system, which has become decreasingly rehabilitative and increasingly retributive.
In the 1970s, as economist Glenn Loury has written, "the corrections system was commonly seen as a way to prepare offenders to rejoin society. Since then, the focus has shifted from rehabilitation to punishment and stayed there."

On the campaign trail, Mike Huckabee put it even more pithily. "We lock up a lot of people that we're mad at," he liked to say. "Not the ones we're really afraid of." Criminals aren't sent to prison so they can learn to live outside of prison; they're sent to prison to get what they deserve. And that paves the way for the acceptance of all manners of brutal abuses. It's not that we condone prison rape per se, but it doesn't exactly concern us, and occasionally, as in the comments made by Lockyer, we take a perverse satisfaction in its existence.

Morally, our tacit acceptance of violence within prisons is grotesque. But it's also counterproductive. Research by economists Jesse Shapiro and Keith Chen suggests that violent prisons make prisoners more violent after they leave. When your choice is between the trauma of hardening yourself so no one will touch you or the trauma of prostituting yourself so you're protected from attack, either path leads away from rehabilitation and psychological adjustment.

And we, as a society, endure the consequences — both because it leads ex-cons to commit more crime on the streets and because more of them end up back to jail. A recent report released by the Pew Center on the States revealed that more than one in 100 Americans is now behind bars. California alone spends $8.8 billion a year on its imprisoned population — a 216% increase over what it paid 20 years ago, even after adjusting for inflation.

That's money, of course, that can't be spent on schools, on job training, on wage supports and drug treatment. Money, in other words, that can't be spent on all the priorities that keep people out of prison. Money that's spent instead on housing prisoners in a violent, brutal and counterproductive atmosphere. And there's nothing funny about that.

Ezra Klein is an associate editor at the American Prospect. His blog is at EzraKlein.com.

By Lisa Redmond, lredmond@lowellsun.com
Article Last Updated: 04/02/2008 08:55:47 AM EDT

LOWELL — A nationally known victim's advocate will defend for free a Tewksbury mom who is being sued by Scott Gagnon, a Level 3 sex offender, who claims he was unfairly fired by McDonald's after the mother exposed his past.

Lawyer Wendy Murphy said her client, Andrea Quinn, of Tewksbury, should be given a medal, not sued, for exposing the fact that Gagnon was working in a place where frequented by children.

The 44-year-old Tewksbury mother is being sued, along with the Napoli Group, which owns the Tewksbury McDonald's, after she complained that a Level 3 sex offender was working at the fast-food restaurant.

Gagnon has filed the lawsuit this week claiming he was unfairly fired by McDonald's, even though he had admitted his past when he was hired six months earlier.

The lawsuit also claims Quinn invaded Gagnon's privacy by using the sex offender registry information to get him fired.

Last year, Murphy worked for free to defend a teenage girl, who was being sued by a former Groton-Dunstable Regional High School student who victimized her.

A Superior Court judge dismissed convicted sex offender Cyle Jones lawsuit against the victim, Nicole McMullen.

March 29, 2008 09:26:00 PM
By John Stossel

When New York Gov. Eliot Spitzer was caught using a prostitution service, the irony was that he was a tough-on-prostitution politician. He supported "tougher laws" to imprison customers like him.

In his statement to the news media, Spitzer called the scandal a "private matter." Good point. Adults' paying for sex ought to be a private matter, but when Spitzer was attorney general, he didn't consider paid sex private. He's one of many politicians who were eager to punish others for doing what he did.

Rep. Mark Foley of Florida was a big advocate of punishing any adult who had sex with minors. "They're sick people; they need mental health counseling," he shouted. But then ABC News caught Foley sending sexual instant messages to minors.

Politicians should cut back on their grandstanding, says Arizona public defender Chris Phillis, because while it's bad enough to call what consenting adults do "sex crimes," it's even worse to criminalize kids who do what kids have always done.

Phillis, who defends teens accused of sex crimes, says sexual experimentation is now prosecuted. "If a 15-year-old touches a 13-year-old, touches their breasts, they are now guilty of a felony crime. And I would love to tell you that 13-year-olds aren't engaging in this conduct. I have a 13-year-old. But telling you that isn't going to change the fact."

The Centers for Disease Control reports that 25 percent of America's 15-year-olds say they've have had sex. Nearly 40 percent of 16-year-olds and almost half the 17-year-olds say they have. All are under Arizona's age of consent, which prompted state Sen. Karen Johnson to try to change Arizona's sex-offender laws. She wanted to give kids a break.

But the political winds are not on her side. Few politicians want to spend political capital weakening sex-crime laws — even when such laws have horrendous unintended consequences.

Arizona's Speaker of the House Jim Weiers defends the tough laws, saying that if you are a sex offender, "Arizona is becoming very quickly known as a state you don't want to stay in." But Weiers acknowledges that Arizona's sex-offender registry has 15,000 names on it.

I asked him how putting young people who engaged in noncoercive sex play on Arizona's registry protects the public.

"I don't know if it does. … You can't take each and every individual … "

But it is individuals whose lives are wrecked by these laws. When Garrett Daley was 14, his 9-year-old adopted sister, Devon, said he molested her. Their mom called the police.

It turned out Devon had lied. It was she who initiated sex with Garrett. She later told the police, but they didn't believe her. Today, seven years later, prosecutors still won't let her change her testimony.

To avoid a jail sentence, Garrett plea-bargained to "attempted molestation of a child." What choice do these kids have? "They're told they'll go to jail for 90 years or 50 years or something, unless they accept this plea, and the plea almost always requires lifetime sex-offender registry," Sen. Johnson says.

Garrett didn't realize his plea bargain would put him in a different kind of jail. Once you're on the sex offender registry, your life is wrecked, public defender Phillis told "20/20." "They can't go anywhere children frequent. So that's McDonald's, that's Jack in the Box … Children have actually been told if you go to a movie and another child walks in, even if it's a rated R movie, then you're to get up and leave."

I told Weiers about the Phillis' comments. "The public defenders say all laws go too far," Weirs replied.

Give me a break. Too often, American criminal law is a blunt instrument designed to make it look as if politicians are protecting us. I think the politicians usually protect themselves, at our expense.

John Stossel is co-anchor of ABC News' "20/20."

By Mark Pratt THE ASSOCIATED PRESS
Wednesday, April 2, 2008

BOSTON— A convicted rapist fired from his job at a McDonald’s after a woman told management he was a registered sex offender is suing the restaurant’s owner and the woman, claiming information about him on the state’s Sex Offender Registry Board was misused.

Scott Gagnon, 50, of Tewksbury, claims in his suit filed Monday in Middlesex Superior Court that Andrea Quinn of Tewksbury violated language on the board’s Web site that says information on sex offenders cannot be used “to commit a crime or to engage in illegal discrimination or harassments of an offender.” Doing so could result in jail time or a fine.

Gagnon was released just over a year ago after spending 27 years in prison after he pleaded guilty to multiple counts of rape. He is suing Quinn for alleged emotional distress and invasion of privacy, and suing McDonald’s for alleged breach of contract. 

He is classified as a Level 3 sex offender, considered the most likely to re-offend.

The lawsuit seeks a jury trial and unspecified damages.

“What Ms. Quinn did was completely contrary to the rules and regulations of the Sex Offender Registry Board, and in fact we assert that what she did was a crime,” said Gagnon’s lawyer, William Korman.

Quinn was not immediately available for comment yesterday, but she told the Boston Herald that she was concerned about her 13-year-old son, who visits the Tewksbury McDonald’s. She said she did not mean for Gagnon to lose his job.

The company that owns the McDonald’s, Napoli Group LLC of Windham, N.H., issued a statement yesterday that said: “The safety and well-being of our customers and employees is a top priority. We take these matters seriously.”

“When he was hired he was completely up front with them,” Korman said. “He told them about his history, he told them he was a sex offender, and they hired him regardless.”

 

[See video: here]

[View source story comments: here]

Sex offender ban should pass South Carolina Senate

Augusta Chronicle Editorial Staff

Friday, March 28, 20087

If the state of South Carolina passes a sex offender law, it would certainly simplify life for the Aiken County Council.

The council has been struggling for months to finalize a law to prohibit sex offenders from living near places where children tend to congregate, such as at schools or playgrounds.

The issue has been made complicated by several factors, including uncertainty about how to write the ban so it would withstand public and legal scrutiny, and that the ban could not apply to the county's municipalities unless approved by municipal lawmakers.

If the cities didn't go along with the county, then the sex offender law would probably be ineffective anyway. Most of Aiken County's 260 sex offenders live inside city limits.

However, if the state passes a sex offender law, then a local law likely wouldn't be needed. A statewide law would make enforcement the same across all city and county jurisdictions. This is the kind of child protection law that Aiken County Sheriff Michael Hunt says he wants — a uniform law that law-enforcement authorities could realistically enforce.

The state's House of Representatives recently passed such a bill that now awaits action in the Senate. The House bill would ban sex offenders from moving into residences within 1,000 feet of schools, day cares, parks and playgrounds. This is pretty much what the Aiken County Council has in mind, and is also similar to Georgia's sex offender law.

One reason Aiken County Council members looked into passing a sex offender law is because they feared a huge influx of offenders would flee to their jurisdiction from Georgia. So far, that hasn't happened to any large extent, but that could still change if nothing is done on the Carolina side of the river.

County Councilwoman Lawana McKenzie, the driving force to get a county sex offender law while urging the municipalities to go along with it, says she would back off if the state passes legislation comparable to what she has been pushing for.

Aiken area parents should urge their state senators to pass the House bill. A county law, if municipalities adopted it, would be acceptable to Sheriff Hunt, but a uniform statewide law would be even better — indeed, better for every child in the state.

From the Friday, March 28, 2008 edition of the Augusta Chronicle
Reader Comments

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A statewide law that could be enforced would at least do something to stem the growing tide of sexual predators or at the very least let this vermin understand that we, adults, are tired of having our children assualted and murdered(physically and mentally)……I have no concern or care for the predator and neither should anyone who professes to give a flying leap about the babies. Support this bill….

Posted by christian134 on Fri Mar 28, 2008 5:01 AM 

First, "sex offenders" need to be categorized so drunks behind a tree and romeo and juliet cases aren't treated like those of child molesters. Then, the real pervs should be confined to New York or California or Massachusetts or one of the really wacky states that feel perversion is normal behavior. Sexual perversion won't be healed by a state law. The perv gene should be identified and isolated in a liberal state, preferably one with a lot of art shows and fashion centers.

Posted by patriciathomas on Fri Mar 28, 2008 6:36 AM 

Well, there was a TV show about Kid Nation where they had to struggle to keep a town alive, how come sex offenders couldn't be placed in such a town??

Posted by DeborahElliott2 on Fri Mar 28, 2008 7:56 AM 

Send them to the Maury Show and let them run off the stage with the rest of the degenrates.

Posted by jack234 on Fri Mar 28, 2008 9:37 AM 

Turn Georgia back into a penal colony. Send them all here and let them have this hell on earth.
Posted by ORGASMATRON on Fri Mar 28, 2008 11:45 AM 
They should send them to prisons, let all the other inmates know what they are in for, and have the guards turn a blind eye to them when the other inmates serve them justice. Even theives and murderers look down on these sickos.

Posted by imdstuf on Fri Mar 28, 2008 11:48 AM 

That's true, imdstuf, but have you ever heard of bleeding hearts? Know which party and philosophy they belong to?

Posted by patriciathomas on Fri Mar 28, 2008 9:42 PM 

NOTICE: The slip opinions and orders posted on this Web site are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. This preliminary material will be removed from the Web site once the advance sheets of the Official Reports are published. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us

COMMONWEALTH vs. Robert C. DRESSER.

No. 06-P-1777.

December 6, 2007. - March 27, 2008.

Sex Offender. Practice, Civil, Sex offender, Trial jury-waived.

PETITION filed in the Superior Court Department on September 17, 2004.

The case was heard by John A. Agostini, J.

Colleen C. Currie for the defendant.

Steven Greenbaum, Assistant District Attorney, for the Commonwealth.

Present: Kantrowitz, Dreben, & McHugh, JJ.

KANTROWITZ, J.

The defendant claims that the absence of a written jury waiver requires us to vacate the order committing him indefinitely to the Massachusetts Treatment Center as a sexually dangerous person. Because the record discloses that the defendant had notice and was aware that he was electing to proceed without a jury, and his other arguments are without merit, we decline to disturb the judgment. We agree with the defendant, however, that the better practice in such situations is for the judge to engage in a colloquy with the defendant, and for the defendant to execute a written jury waiver.

Background. On February 14, 1992, the defendant, Robert C. Dresser, pleaded guilty to two counts of forcible rape of a child, two counts of indecent assault and battery on a child, and one count of rape of a child. [FN1] While incarcerated on those charges, he was indicted on additional offenses. In November of 1994, he pleaded guilty to five counts of rape of a child, and two counts of indecent assault and battery on a child. [FN2] In the months preceding his intended release date in 2004, the Commonwealth filed a petition for his commitment as a sexually dangerous person. A jury-waived trial was held in October of 2005,] and an order of commitment issued.

On appeal, the defendant claims that (1) his right to a jury trial under G.L. c. 123A, § 14(a ), was not affirmatively waived; (2) information concerning uncharged sexual assaults and a dismissed charge of abuse of a child under sixteen years of age were erroneously admitted; and (3) there was insufficient evidence to support the finding that the defendant was likely to engage in sexual offenses if not confined to a secure facility. We affirm.

The trial. On September 6, 2005, a status conference took place during which a trial date of October 31, 2005, was set. At the conference, the defendant's counsel, when asked about the length of the trial, responded, "Assuming we try it with a jury, I'd suggest three days, perhaps three and a half." Apparently, a decision was made to forgo a jury trial as evidenced by (1) trial notices, sent on September 22, 2005, indicating a date for a "trial without jury;" and (2) a writ of habeas corpus, indicating the "jury-waived" trial date, faxed on October 25 to the treatment center, where the defendant was being held. At the outset of the trial, defense counsel stated that the defendant was present and "prepared to be tried jury waived." There is no record of the trial judge conducting a colloquy with the defendant concerning his waiver of a jury trial, nor was a written waiver filed. [FN3] The trial commenced without objection by the defendant.

Four experts testified in the following order: Dr. Niklos Tomich and Dr. William Hazelett for the Commonwealth, and Dr. Leonard Bard and Dr. Joseph Plaud for the defendant. Not surprisingly, the expert witnesses for the Commonwealth testified that the defendant was a sexually dangerous person who was likely to reoffend if not committed. Conversely, the experts for the defendant testified that the defendant was not sexually dangerous, or, at most, presented a moderate to low risk of sexual dangerousness and likelihood of reoffending.

During a clinical interview with Dr. Tomich on February 8, 2005, the defendant indicated that there was a "good chance" that he would offend again if he started drinking and taking drugs, and that he sometimes experienced sexual arousal in response to young females on television. Further, the reports of Dr. Hazelett and Dr. Tomich, which were admitted into evidence, referenced numerous uncharged assaults. [FN4] Both of Dresser's experts, Dr. Bard and Dr. Plaud, testified on cross-examination regarding some of the uncharged conduct. [FN5] Doctor Bard stated in his report that when confronted with allegations of both charged and uncharged offenses, the defendant did not deny having engaged in the acts. [FN6] The prosecutor also referred to the uncharged assaults in her closing argument. [FN7] No objection to any of this evidence was lodged.

Jury waiver. The defendant claims that a colloquy and a written waiver are required in order to waive a jury. In support, he cites G.L. c. 123A, § 14(a ), added by St.1999, c. 74, § 8, which provides, in pertinent part, that a trial "shall be by jury unless affirmatively waived by the person named in the petition."

Sexually dangerous person trials are civil, not criminal, in nature, and the right to a jury trial in such a case is statutorily created, rather than required by either Federal or State Constitution. [FN8] See Sheridan, petitioner, 422 Mass. 776, 777-780 (1996). "Typically, where a right is conferred by statute and is not a fundamental constitutional right, we apply traditional indicia of waiver of rights…. Traditional indicia include waiver by inaction, by express agreement, by untimely motion, and by failure to object." Commonwealth v. Davidson, 27 Mass.App.Ct. 846, 848 (1989) (citations and quotation marks omitted).

Here, counsel, presumably after conferring with his client, indicated on two separate occasions that the trial would be jury-waived. [FN9] Under the circumstances, no more was needed. [FN10]

Having so ruled, however, we recognize that the better practice in such situations is to engage the defendant in a colloquy and to execute a written waiver. Certain rights ordinarily afforded criminal defendants have been extended to those civilly charged with being sexually dangerous persons, e.g., the right to counsel, the right to have counsel appointed if the defendant is indigent, the right to call expert witnesses (and, if indigent, the right to have the Commonwealth pay for them), the right to have process issue to secure the attendance of witnesses, the right to a unanimous jury verdict, the requirement that the case be proven beyond a reasonable doubt. See G.L. c. 123A, § 14(b ), (d ).

"While commitment proceedings under c. 123A are civil proceedings, the potential deprivation of liberty to those persons subjected to these proceedings 'mandates that due process protections apply.' " Commonwealth v. Bruno, 432 Mass. 489, 502 (2000) (citation omitted). See Commonwealth v. Ferreira, 67 Mass.App.Ct. 109, 115 (2006). "In determining what process is due … this court 'must balance the interests of the individual affected, the risk of erroneous deprivation of those interests and the government's interest in the efficient and economic administration of its affairs.' " Sheridan, petitioner, 422 Mass. at 778, quoting from Commonwealth v. Barboza, 387 Mass. 105, 112, cert. denied, 459 U.S. 1020 (1982). The minimal burden upon the Commonwealth in ensuring a colloquy and written waiver is outweighed by the interests of the defendant, whose liberty is at risk. The better practice in commitment proceedings under c. 123A, thus, is to require, as in criminal cases, a colloquy and written waiver. See Commonwealth v. Burgess, 450 Mass. 366, 374 (2008) ("[E]ven though the [sexually dangerous person] hearing is civil in nature, the Legislature has provided that it proceed much the same as a criminal trial, and that it include many rights to which a criminal defendant is constitutionally entitled" [citation omitted] ). [FN11]

Judgment affirmed.

 FN1. Dresser, who was born on March 30, 1951, pleaded guilty to these offenses, which occurred in 1990 and 1991, and was sentenced to serve five to fifteen years in State prison. The victims were two girls, ages thirteen and   six. The thirteen year old reported that she had gone to a friend's house on March 3, 1991, to visit the friend's young daughter, whom Dresser was babysitting at the time. When she arrived, Dresser asked her to go to the bedroom, where he performed oral sex on her, digitally penetrated her, and unsuccessfully attempted to penetrate her with his penis. The six year old reported that Dresser penetrated her with his fingers while he was babysitting her and her brother on December 22, 1990.

 FN2. These offenses, which occurred between 1977 and 1991, involved three other victims. Two were his nieces. One reported being fondled, forced to perform oral sex, and penetrated by Dresser's fingers and penis, acts occurring over a period of more than ten years, from the time the victim was five until she was sixteen (approximately 1977 to 1988). The other niece reported that when she was thirteen, Dresser raped her while they were both staying over at the victim's grandmother's house. The same victim also reported that Dresser fondled her breasts during car rides around the same time. A third victim reported being sexually assaulted three times by Dresser in 1990 and 1991 when she was nine years old. Dresser was sentenced to additional time in State prison for these offenses.

 FN3. We were informed by the assistant district attorney at oral argument that the usual practice was to provide a colloquy in such situations.

 FN4. Doctor Hazelett referred in his report to the following incidents of uncharged conduct: (1) a dismissed charge of abuse of a child under sixteen, from 1970, that Dresser explained as a case of statutory rape involving a girlfriend; (2) a letter, written by the twin sister of one of Dresser's victims, alleging Dresser forced her to perform oral sex on him and performed oral sex on her; (3) statements made by a girl for whom Dresser had babysat when she was four years old, alleging Dresser had touched her vagina with his hand and penis. Doctor Tomich referenced the same uncharged conduct and dismissed allegations in his report. Although these reports were admitted in evidence, neither Dr. Hazelett nor Dr. Tomich testified as to these incidents of uncharged conduct.
 FN5. On cross-examination, both Dr. Bard and Dr. Plaud referred to the 1970 dismissed charge of abuse of a child under sixteen. Doctor Plaud also testified that his review of Dresser's records indicated that Dresser admitted to having committed more sexual assaults than those charged.

 FN6. Doctor Bard stated in his report that "[i]t is unclear whether all of the above allegations led to formal charges and/or convictions…. When asked about the above offenses, Mr. Dresser reported difficulty recalling each of the charges and victims, but stated that 'I know I did wrong' and did not dispute the victims' accounts of the offenses."

 FN7. In her closing, the prosecutor stated, "The convictions in this case are for five separate victims, there are additional victims who report that they were sexually assaulted by Mr. Dresser. Mr. Dresser himself acknowledges that there were additional victims in this case, your Honor."

 FN8. In criminal cases, a defendant is entitled to a trial by jury unless waived in writing following a colloquy. See G.L. c. 263, § 6; Mass.R.Crim.P. 19(a), 378 Mass. 888 (1979); Ciummei v. Commonwealth, 378 Mass. 504, 509 (1979). In civil cases, "Article 15 [of the Massachusetts Declaration of Rights] generally provides an opportunity for a jury trial in a civil action between two or more persons 'except in cases in which it has heretofore been otherways used and practiced.' Article 15 thus preserves the common law right to trial by jury established when the Constitution of the Commonwealth was adopted in 1780." Frizado v. Frizado, 420 Mass. 592, 595 (1995). In Frizado, the Supreme Judicial Court held that art. 15 does not require a trial by jury for "complaints under G.L. c. 209A concerning protection from abuse … [as t]he wrongs or threats for which G.L. c. 209A provides a remedy  do not appear to be ones that juries considered under the common law of the Commonwealth." Id. at 594-595.

 FN9. Counsel indicated, after the case was called for trial, "Mr. Dresser is in court and is prepared to be tried jury waived." Counsel also responded affirmatively to the judge's question, "And it's going to be jury waived?"
 FN10. In noncapital criminal cases, the Supreme Judicial Court has held that an unintentional violation of the procedural rule of jury waiver does not warrant a reversal unless the defendant can show that a substantial risk of a miscarriage of justice resulted. See Commonwealth v. Collado, 426 Mass. 675, 678 (1998). It was, therefore, the defendant's burden to show that a substantial risk of a miscarriage of justice occurred as a result of the trial court judge's failure to deliver a colloquy. The defendant failed to carry his burden.

 FN11. We find the remaining two arguments of the defendant to be without merit. First, the judge apparently did not even consider any uncharged conduct, as reflected by its omission in his findings. Second, there was sufficient evidence before the judge supporting his ultimate conclusion that the defendant was a pedophile, and likely to reoffend, given the number of victims, some of whom were unrelated to the defendant; the duration of the offending behavior and the threats used to control the victims; the lack of release plans; his severe substance abuse history; and his prior criminal history and antisocial behavior.

Proposed sex-offender bill long on emotion, short on logic.

At the risk of sounding soft on child molesters, we question the logic of a proposed law to make Level 3 registered sex offenders vote by mail.

As described by state Rep. Demetrius Atsalis, D-Barnstable, the intent is to keep freed sex offenders away from polling places in schools and libraries — places where children are found.

Who could possibly vote against protecting children?

Every legislator who can spot irrational, alarmist nonsense, that's who.

Atsalis sees it as a rare case of the Legislature being proactive. "I don't think a pedophile takes a break on Election Day," Atsalis said.

That may be a reasonable assumption, but the logic ends there. The bill implies that pedophiles gear up on Election Day, because the pickings are so rich at schools and libraries and it's the one day they can slip in with the rest of the citizens.

This badly misunderstands the problem: Rare attacks on children in public places make the news, but most sex crimes against children are committed by persons in the home or known to the victim.

Adults of various stripes enter schools and libraries every day they are open. The buildings already have procedures to deal with strangers in the halls or suspicious behavior in the stacks. Why would Election Day be any different?

But more than anything, the bill asks for a level of scrutiny of offender and voter lists, cross-checking and detective work that common sense tells us isn't going to happen. Would such a measure dissuade even one sex offender from committing a crime on Election Day? Think of the chain of events that would have to transpire to justify the public machinery this bill would require: Of all the registered Level 3 offenders in town, one who happens to be a child molester would a.) want to vote; b.) live in a precinct where the polling place is a school or library; and c.) be willing to pass a police officer on detail to do his deed.

This is a classic case of a feel-good fix to a nonexistent problem. Atsalis couldn't cite any cases of Election Day rape at schools and libraries.

Normally, state Rep. Jeff Perry, R-Sandwich, guards against unnecessary laws that sound good on paper. But he is supporting this one.

"I come down on the side of public safety," Perry said. He noted the bill would protect adults from sexual attacks while voting, too.

Yikes! May the Founding Fathers protect us at the polls!

We're not making a case for expanding pedophiles' rights. We are concerned that a growing panic over sex offenders gives this extremely small segment of our community way too much power over how we lead our lives.

March 25, 200

MIAMI — A South Florida man said he was ordered by the state to live under a bridge and near the Everglades.

When Marco DaCosta was released from prison, he was ordered by state corrections to live near the Everglades with two other former inmates and countless gators nearby.

The men lived in a tent with a battery-powered TV, DaCosta said.

"We're being tortured out here," he said.

DaCosta said he had previously been ordered to live under an overpass on the Sawgrass Expressway.

A court document showed that the Department of Corrections previously ordered DaCosta to live under the Oakland Park Bridge. He had no toilet, bed or even a bench.

"He's in a difficult spot," said Gretl Plessinger of the Department of Corrections.

Plessinger said that this is not normal policy, but it's acceptable.

DaCosta is on sex offender status, so he can't live near children. Plessinger said DaCosta failed to find an acceptable place to live.

"So his probation officer suggested, and the prison when he was released suggested, that he live under the Oakland Park Bridge, because that was a place that was accepted," Plessinger said.

DaCosta said he couldn't believe that he was made to live under a bridge.

Weeks later, police kicked him out from under the bridge. That's when he started searching for a more permanent home.

"I have personally submitted 15 different addresses, and every one of them has been disapproved," he said.

NBC 6's Jeff Burnside rode with DaCosta to attempt to find a suitable home.

"Well, I see a lot of kids," DaCosta said. "We just passed a Budget Inn. I don't think this will be acceptable by the parole commission."

He can't live within 1,000 feet of schools, parks or anywhere children gather.

However, DaCosta is not a convicted sex offender.

He was convicted of burglary, aggravated assault and threatening to kill his ex-wife. He was arrested on charges of sexual battery on two girls and aggravated assault involving fondling a woman, but all charges were dropped.

Still, the parole commission said it has total discretion to protect the public from future violent acts.

DaCosta's attorney, Patric Jones, is appealing in the courts.

"He's not a convicted sex offender," Jones said. "So why should he have to do things that are meant for convicted sex offenders?"

DaCosta said he's living an absurd life.

"I don't think they have a clue about what laws they pass," he said.

DaCosta was back in jail on Monday night. He forgot to wear his ankle bracelet, which tracks his every move.

He's awaiting a hearing.

DaCosta isn't the only parolee living this life. When lawmakers added school bus stops to the list of places to avoid, they removed thousands of places where parolees could live.

There are no plans to change that law, officials said.

Published Wednesday, March 26, 2008

JEFFERSON CITY (AP) - Senators endorsed a proposed constitutional amendment yesterday that could undo a Missouri Supreme Court ruling and restore the names and addresses of more than 4,300 past sex offenders to a state registry. They also voted to require sex offenders to stay in their homes on Halloween.

The Senate’s effort to increase the tracking and public notification of people convicted of decades-old sex offenses came just moments after a registered sex offender urged a House committee to use restraint in imposing new restrictions.

Aside from registering their names, addresses and other information, sex offenders also are prohibited under Missouri law from living or loitering near schools and child-care centers.

An amendment added to a Senate bill yesterday would require registered sex offenders to avoid all "Halloween-related contact with children" by remaining in their homes, with the external lights off, between 5 p.m. and 10:30 p.m. on Oct. 31. They also would have to post a sign stating they had no candy or treats.

Separate bills heard by a House committee yesterday would make public swimming pools and parks with playgrounds off limits to child sex offenders and would bar them from serving as coaches or trainers for youth athletics.

As more restrictions are added, "the invisible walls of incarceration that keep going up around me keep re-sentencing me," said Ted Mason, 50, of Blue Springs.

Mason was sentenced to a 120-day prison treatment program and five years probation for felony sexual misconduct involving indecent exposure in front of a child. The offense occurred in 2001, according to Department of Corrections records. After going through a community-based treatment program, Mason said he has changed.

But Mason said existing restrictions have forced him to sleep in a separate home from his wife and two children. That’s because the home they bought, after gaining clearance from the state probation office, turned out to be too close to a home-based child-care center, he said.

"The news screams, ‘There’s a monster on the loose!’ Society says, ‘Kill it!’ And lawmakers say, ‘We will,’ " Mason said in an interview after testifying before the House Crime Prevention and Public Safety Committee.

He received some sympathy from Rep. Jamilah Nasheed, D-St. Louis, who noted that parents such as Mason couldn’t even take their own children to the park if the House proposal passed. "I am not for sex offenders," Nasheed said. "However, I do believe we can go too far."

In the Senate, there were no audible "no’s" on a voice vote giving the proposed constitutional amendment first-round approval. If passed by both the Senate and House, that measure could appear on November statewide ballot.

The amendment seeks to undo a June 2006 Missouri Supreme Court decision that sex offenders convicted of crimes before Missouri’s registry law took effect in January 1995 cannot be required to register. The high court ruled the law violated the state constitution’s prohibition on retrospective laws.

As a result, the sex offender registry maintained by the Missouri State Highway Patrol no longer lists the addresses of 4,364 people whose most recent sex-offense conviction occurred before 1995, said patrol spokesman Capt. Tim Hull.

By CAROLINE CURRAN, Staff writer

Public records are property of the people, and the law requires its owners have full access to these records.

Chapter 132 of the North Carolina General Statutes dictates what documents a government must make available to the public, no matter what.

The law clearly states every citizen has the right to access public records. But you have to know what records are public before seeking access to the information. The general rule of thumb is this: all documents are public unless the agency can prove by law that they’re not.

If you don’t know, ask.

The law defines a public agency as “any administrative unit with substantial independent authority in the exercise of specific functions.”

Any public agency can release its own public records. The public records law covers many different records.

N.C. General Statutes, 132-6 (a) states, “every custodian of public records shall permit any record in the custodian’s custody to be inspected and examined at reasonable times under reasonable supervision by any person, and shall, as promptly as possible, furnish copies thereof upon payment of any fees that may be prescribed by law.”

Unless the fees are set by general statute, the agency can only charge the “actual cost” to copy the document. No fee can ever be charged to view a public record.

While not in its entirety, the following records are public and open to inspection:

•Autopsy reports, including any findings or interpretations.
•Bids for government contracts.
•Economic development policies are public record. Economic development incentives are not public records.
•Election records: voter registration records, campaign finance reports and an absentee ballot registry are all public records.
•Fire incident reports. Fire incident reports compiled by fire chiefs or fire marshals are public records, but investigative reports are not public record.
•Geographical Information Systems databases.
•Governor’s records.
•Gun permits.
•Law enforcement arrest and incident reports.
•Criminal histories.
•Communicable disease records reported to local health departments.
•Minutes of government meetings.
•Operating records and contracts. “Government records and papers, such as budgets, bank statements, tax levies, utility accounts and contracts are public records.”
•Personnel records.

The following are public records for state, county and municipal employees, and employees or school boards and public hospitals: “Name, age, date of original employment or appointment to state service, current position, title, current salary, date and amount of most recent increase, decrease in salary, date of most recent promotion, demotion, transfer, suspension, separation, or other change in position classification, and the office or station to which the employee is currently assigned.”

•Professional licensing board records.
•Sex offender and predator registries.
•Vital Statistics. “Copies of birth, death and marriage certificates maintained by county registers of deeds are public record available for public inspection and copying are public records.”

Some records are confidential by law. If these confidential records are commingled with public records, the agency is responsible for paying any costs associated with separating the information.

The following records are confidential, and not public record:

•DNA records.
•Emergency response plans. “Emergency response plans adopted by a constituent institution of the University of North Carolina, a community college or a public hospital and the records related to the development of those plans are not public records.”
•Juvenile records. “Neither law enforcement records in juvenile cases nor records of juveniles under the protective custody of a department of social services are public records.”
•Individual patient records.
•Disciplinary records.
•Public utility records

Editor’s note: North Carolina Public Records Law, N.C. General Statute 132, and all other general statutes can be viewed in entirety at www.ncleg.net.

Caroline Curran is a staff writer at the Beacon. Reach her at 754-6890 or at ccurran@brunswickbeacon.com