Saturday, January 4, 2014

Action Alert: HB403 Contaminating the Virginia Justice System with Bias

HB403 patroned by Delegate Rob Bell:
Provides that in a criminal case in which the defendant is accused of a felony sexual offense involving a child victim, evidence of the defendant's conviction of another sexual offense or offenses is admissible and may be considered for its bearing on any matter to which it is relevant. The bill includes a second enactment requiring this new rule of evidence to be applied in conjunction with the Virginia Rules of Evidence. 

I spoke against this proposal at the September 2013 Virginia Crime Commission meeting but here it is for the 2014 Virginia General Assembly session, as expected.

New laws are supposed to strengthen our Democracy, not weaken it. But this proposal does just that. 

Our Justice System prohibits a complaining witness’ character or sexual history to be discussed or debated. Even if the plaintiff has previously accused someone of sexual misconduct, we claim it’s irrelevant and prejudicial, but yet here we are trying to flip the coin on the defendant by injecting bias into the courtroom. 

For years the Virginia Legislature has been making the standards of guilt easier. 

If this proposal becomes law, would the defendant be permitted to testify in opposition to the prior conviction or would this be considered irrelevant by the State? It seems to me that any mitigating circumstance in the prior conviction must be allowed as it’s being held up as evidence in the new case. And if this occurs the Commonwealth must allow the defendant the right to face the original accuser even if they took a plea deal. The Constitutional issues with this proposal are countless.

Why is this change even needed? 

It’s NOT because the recidivism rates for Registered Sex Offenders is high.  

In fact the re-offense rate for convicted “sex offenders” is the second lowest of ALL crimes (U.S. Department of Justice).  

I questioned how many current Virginia sexual statutes ALREADY include a “second or subsequent offense”. I found 16 different acts where the Commonwealth is already charging and sentencing defendants with past convictions much more harshly than a first time offender. So it’s not like the small percentage of recidivist aren’t already being punished more harshly by the State. 

Justice is supposed to be blind but when it comes to Sex Crimes it seems we are willing to throw away all checks and balances put in place to prevent assumptions, personal opinions or agendas from contaminating a fair system.  

Let me give you all a real-life example of presumed guilt because of a prior conviction in Virginia.  

October 2012 in Bedford County, VA a man had been approaching children at a bus stop, attempting to lure them to his home. The Bedford police and the parents concluded that it must be a Registered Sex Offender so they went to the registry and picked a photo that came close. The man they selected had an alibi but he was still held without bond and charged with a felony for trespassing on school property, even though a bus stop is not school property. Days later the real perpetrator re-approached the bus stop and with the Registered Offender sitting in a jail cell, the authorities had NO choice but to conclude they had the wrong man.  

This is where faulty rationale about those listed on the Virginia Registry has led us. The State ONLY had a misidentified man with a prior sex offense and THAT was enough to deny him bond, to charge him with a crime that doesn’t apply to other citizens and to presume he was guilty. Imagine if the real perpetrator had gone into hiding, if this proposal was in place a finding of guilt for the wrongly accused man would have been certain. 

The job of the Prosecution is to prove guilt beyond a reasonable doubt; the burden of proof lies with the one who declares, not who denies. If the state believes this proposal is necessary to get a conviction; then we are pursuing citizens who shouldn’t be prosecuted.   

In Virginia we already allow an accusation alone with no corroboration as the only evidence in many cases (Johnathan Montgomery/ Elizabeth Coast) and the fact is an accusation is NOT proof! Why are we considering making this second mistake by adding prior convictions to that list? 

This proposal if it becomes law would irreparably damage our system of justice whose very foundation is the presumption of innocence.

Please Email or call your one State Delegate and your one State Senator asking them to vote “NO” on HB403. They will be arriving in Richmond on Monday and Tuesday for Wednesday the first day of session so be sure if you call to call the Richmond location as of Tuesday!

Mary Devoy

Action Alert: HB195 Robby’s Rule Would Not Have Prevented a 1978 Crime, it is Purely Vindictive and Personal and it Violates Due Process and Ex Post Facto

I previously posted about HB195 patroned by Delegate Ramadan also known as “Robby’s Rule”. 

HB195 proposes: 

Requires the Superintendent of State Police to establish and maintain a supplement to the Sex Offender and Crimes Against Minors Registry that would include the names of persons who have committed offenses that would require registration if the offense occurred today, but who are not otherwise required to register. Any attorney for the Commonwealth or law-enforcement officer may submit a request to the Department of State Police to include a person on the supplement to the Registry. Upon receipt of a request, the Department of State Police must confirm whether the person should be included on the supplement to the Registry. 

As my earlier post mentioned more than a week ago I called and emailed the patron asking to speak about the intent of the proposal, who was Robby and the consequences of the bill. I was advised by the patron’s office days later to call on January 6th the schedule an appointment, meaning 2 weeks or more would pass before I could understand the bill. 

But yet the patron made time yesterday to be interviewed by NBC Washington to “sell” his bill to the public. The NBC reporter contacted me yesterday asking me for my take on this bill and because I was still waiting to discuss my concerns with the patron I was hesitant to jump to any conclusions hoping the intent was reasonable. 

Since the sales-pitch for HB195 has started and the misleading term of “loophole” is being used by those selling it I must assume I am being stalled on the details for a reason, so now I must compile a list of concerns and objections without all the information I should have about the bill. 

First off bills in Virginia should never be named to memorialize or honor anyone! 

History has shown that State and Federal bills tagged as such have a much greater chance at being passed into law even when they are riddled with flaws, violations, are vague / left open to interpretation or promote prejudice and myths about “those” people that “we” are allowed to routinely banish and shame. Why? Because no lawmakers wants to be the heartless “nay” vote appearing to be unsupportive of victims of crime and supportive of offenders.  Naming laws after victims reinforces the idea that justice is a personal matter, a settling of scores between the victim and the offender, justice is supposed to be blind. 

Second, after watching the NBC story I now know who Robby is. Robby reported the abuse/crime to authorities in 2007, the abuse occurred "3 decades ago" and the perpetrator was his T-Ball coach. Three decades ago was 1984 even though it appears Robby’s abuse was in 1978 per past articles I found on-line about his case.

In 1984 there was no Virginia Sex Offender Registry (created in 1994). In 1984 background checks were not required for coaches. In 2007 when Robby came forward both of those issues had been corrected years before. Anyone who had been convicted of a sex offense from the early 1990’s or earlier would be listed on the Virginia Registry and would never be able to become a coach. The T-Ball coach that abused Robby was convicted of another sex crime before the 1994 Registry existed, but AFTER Robby’s abuse that had not yet been reported. 

Robby’s Rule is proposing that sex crimes from the 1980’s and I’m guessing the 1970’s and 60’s (I don’t know since I haven’t been able to speak to the patron) would be added to the Virginia Sex Offender Registry. The abusive T-Ball coach is listed on the Virginia Sex Offender Registry because of Robby’s case.  So my third point on this proposal is obvious, this proposal would not have prevented Robby’s abuse from occurring in 1978, this proposal to add additional/ separate convictions from 3 to 4 decade’s ago to his abusers registry posting is purely vindictive and personal. It adds NO additional protection or security to Virginia’s citizens. 

So now I have a big question that must be answered about this proposal before it can move forward. 

Will HB195 add anyone new to the Virginia Registry or will in just add very old conviction information to those already listed?  

The answer to the above question must be known ahead of time because if it adds people who are not currently listed on the Registry there would be:
  • Due process issues
  • Ex post facto issues
  • Serious barriers for Virginians who reentered society decades ago, successfully
  • The additional cost for the VSP to monitor and manage additional RSO's every year for the rest of their life
But because of this verbiage within the text but who are not otherwise required to register I believe additional people would be added to the Virginia Registry and if that is the case then the following collateral issues arise.

 These “New” Registered Sex Offenders (RSO’s) would now be required to abide by the ever changing and expanding restrictions and regulations imposed upon Virginia’s RSO’s and any slip up no matter how minor or unintended carries a Felony charge. 

The “New” RSO’s would need the same monitoring as all the current RSO’s.  So how many of these “New” RSO’s who have not committed a new crime in years or even decades would now receive a certified letter to register every 90 days, would now need a VSP Compliance Officer to visit their residence twice a year and confirm their employment every time it changes, to take their photo every two years plus all the address, phone number, vehicle and email additions and subtractions over then next 20, 30 or 40 years?

How many Virginians if this bill passes would not be permitted to drop off or pick up their own children or grandchildren from daycare or school? How many would now loose a job or a career they’ve held for years because their current employer won’t want to be listed on the Virginia Sex Offender Registry. Without a job these Virginians will not be able to provide for themselves or their family. 

How many Virginians that would now be RSO’s will be evicted from their rental property or not be allowed to renew their lease because no landlord wants to deal with the tenants complaining about an RSO living next door. Without a home for themselves or their families many spouses and significant others of these new RSO’s will crack under the stress and leave. The support system and family dynamic for most of these Virginians will disappear as soon as this bill becomes law.  

Citizens of the Commonwealth who have not committed a new crime in years, who have the second lowest recidivism rate of all crimes, who are living their lives, supporting and raising their families will be arbitrarily penalized by this bill. The collateral consequences trickle down to their spouses, their parents, their significant others, their roommates, their children, their employers and their landlords. 

Finally this proposal if it does in fact add additional citizens to the Virginia Registry runs contrary to the Governors Prisoner Re-Entry Commission, removing barriers that hinder former felons from becoming successful, productive citizens. 

This proposal is costly to the state and to the people being swept up by it. This bill is based on myth, hype, fear, hate and vengeance not on any facts.

Robby’s Rule has a Facebook page for anyone who is interested in following their progress.

Please Email or call your one State Delegate and your one State Senator asking them to vote “NO” on HB195. They will be arriving in Richmond on Monday and Tuesday for Wednesday the first day of session so be sure if you call to call the Richmond location as of Tuesday!

Mary Devoy