Joplin MO Criminal Defense Lawyer Blog

Follow-up - Megan's Law (Message for Tsand too)

I have received several comments on my posting about Megan's Law and the fact that I choose not to represent defendant's accused of abusing children.    Some comments have supported my decision but others chastise me for "assuming the defendant is automatically guilty."  I want to clear this up.  I do not automatically assume a defendant is guilty if he or she is charged with abusing a child.  I know there are circumstances when allegations are made that are not true.  This particularly happens when the defendant is involved in a custody case and the other party makes allegations that may or may not be true.  I have problems with a party making these allegations only when a custody battle starts to brew - where was the other party when the abuse was occurring?  But that is another matter. 

As I was stating, I do not automatically assume a defendant is guilty.  I just do not want to represent them for my own reasons and, being in private practice, I can do that.  In the past I have defended persons charged with child abuse.  I was at one time an appellate public defender.  I have represented defendants that were guilty - where a very young child was suffocated enough to leave her alive but in a vegetative state; some children suffered severe brain damage or physical deformities; etc.  These cases take a toll on you after a while.   

Also, just because I choose not to represent these defendants does not mean they will not have the benefit of a good lawyer.  There are many criminal defense lawyers that will represent defendants no matter what the charge is. Each defendant, no matter what the charge is, deserves to have a lawyer that will aggressively represent him or her and to not pass judgment.  On child abuse charges I am not sure I can do that any more and, therefore, I have taken myself out of that defense.  I do not want to question whether I did the best job I could for the defendant and I definitely do not want the defendant to feel that I did not do my best.   This explanation may not satisfy some of the people who have sent negative comments to me and that is okay.  I can live with my decision.

Message for Tsand - I understand you're feelings about what happened to your friend Paul.  I do not necessarily agree with charges being brought under the circumstances you have described (yes, I was a former assistant prosecuting attorney at one time).  I also think that if your friend was charged then something should have happened to the girl also.    Be that as it may, if your friend has to register under Megan's Law he may want to check to see if he can have his name removed from the registry at some point.  In Missouri if a defendant is 19 years of age or younger and the victim was 13 years of age or older at the time the offense was committed, after two years the defendant can petition the court to be removed from the registration requirements.  If what you stated is accurate, I find it hard to believe a court would deny his petition.  Good luck to him. 

Missouri's Sex Offender Registration Act (Megan's Law)

I'm a criminal defense attorney.  However, there are some cases that I choose not to take.  One type of case I will not take is child abuse - whether physical or sexual.  To me, there is no excuse for abusing a child.  I will defend a person accused of murder, drugs, etc., but not abusing a child.  I know that everyone deserves to be represented by an attorney.  I support that but I also know that I will not be that attorney.  Why?  Because the defendant deserves the best representation he or she can receive.  I am not that attorney because of my feelings on the subject.   

With that stated, I want to get to the subject of this post - Missouri's Sex Offender Registration Act (SORA), also known as Megan's Law.    This is the law that requires certain sexual offenders to register with the chief law enforcement official (usually the sheriff)  in the county where the offender resides. These offenders include any person who has been convicted or pled guilty to a felony offense under chapter 566, including sexual trafficking of a child and sexual trafficking of a child under 12, and any offense under chapter 566 where the victim was a minor.  The offender has to fill out a form that has been designed by the Missouri State Highway Patrol.  This information is then sent by the chief law enforcement official to the Missouri State Highway Patrol where the information is put into the Missouri Uniform Law Enforcement System  (MULES) to be viewed by other law enforcement officials and prosecuting attorneys.   Some of this information is also posted online and made available to the general public.  The public can look to see whether a certain individual may be a sex offender or if there are sex offenders living in a certain area.  I admit, I have looked to see whether there are sex offenders living near my residence.  Thankfully I found none.

In most circumstances the sex offender must register for his or her lifetime.  However, under the statute (section 589.400) there are certain offenses  that allow for the offender to petition the court for removal from the registration requirements.  These include those who were convicted of promoting prostitution in the 2nd and 3rd degree, public display of explicit sexual material, statutory rape in the 2nd degree, and no physical force or threat of physical force was used.  Those convicted of these offenses may petition the court after 10 years to be removed from the registration requirements.  Also, those who were 19 years of age or younger and the victim was 13 years of age or older may petition the court after 2 years.  All who petition the court have to prove  that they fall into one of the categories that allow the petition, that they have complied with the provisions of the statute, and they are not a current or potential threat to public safety.  If the offender cannot prove these elements, the offender is not entitled to the removal.  And, even if the offender does prove these elements, the court does not have to grant the removal.  If the court denies the removal, the offender must wait for twelve months before petitioning the court again.

Why is this on my mind?    I have recently had to do research on this matter in order to keep an offender from being removed from the registration requirement.   The removal from the registration requirement is a civil matter and  I was hired to defend the registration.   This offender pled guilty to the class D felony of sexual abuse with a child, his child,  who was 6 years old at the time.  I do not want this man released from the requirement to register for the remainder of his life.  At this time the court hasn't made a ruling.  I will keep you posted.

Federal Attorneys Renege on Plea Bargain

In a disturbing opinion, eight Judges of the 8th U.S. Circuit  Court of Appeals ruled this past Monday that a plea bargain the Kansas City US Attorney's Office had made with a defendant could be reneged on.  The defendant had originally been charged in 2003 with conspiring to distribute more than 50 grams of crack cocaine in 2002.  The defendant's attorney negotiated a plea agreement with the US attorney for the defendant to plead guilty to one count of conspiracy and the prosecutor would not file any additional charges against the defendant arising from the investigation.  A day before the defendant was to plead guilty per the agreement, another US attorney decided that the plea agreement was too lenient and told the other attorney in that office that made the deal to make it clear at the plea hearing that the government would only limit additional charges from conduct in the time frame mentioned in the indictment (not from the whole investigative time period as  agreed upon).   When the US attorney changed the agreement at the plea hearing, the trial judge ordered the government to complete the plea agreement.  The US attorney appealed.   Originally a three-judge panel of the 8th US Circuit Court of Appeals ruled that the government had to go through with the agreement.  Then when heard by the full court, eight judges allowed the government to renege.  Four judges dissented, one being Judge Myron H. Bright, who stated:

"The government reneged on its word."

"That omission . . .  threatens to make the word of that office not worth the paper on which it is written.  Fortunately for the country, I do not believe that federal prosecutors in other districts are in the mold of the Western District of Missouri."

Harsh words but applicable.  When one attorney cannot trust the word of another attorney or his/her office in situations like this,  it makes for a very bad situation and leaves defendants in limbo wondering about a plea bargain agreement until the judge accepts the agreement and the agreement goes forward.  No one wants to have the plea bargain set aside at the very last minute.  By then there could be incriminating statements made by the defendant.  Not a good situation to be in.    I applaud Judge Bright for his words.

Source:  Kansas City Star, Prosecutors changed deal with Jamal T. Norris after they decided it was too lenient, by Mark Morris

Case Review - Ink Pen as Dangerous Instrument

The Southern District of the Missouri Court of Appeals recently decided that an ink pen can be used as a dangerous instrument.  On March 5, 2007, the court handed down its decision in State v. Arnold.  In this case the defendant was being held in the Miller County Adult Detention Center.  He and another inmate were in a holding area conducting legal research.  When they were left alone with one guard they rushed the guard and held her captive.  The defendant handcuffed the guard and used an ink pen against her neck underneath her jaw bone.  The defendant took her to various places in the detention center trying to negotiate with the other guards to let him leave or he would kill the guard.  Eventually the defendant and the other inmate were captured and the defendant was charged and found guilty of attempted escape from confinement, armed criminal action and kidnapping.  The defendant appealed the verdict stating that an ink pen could not be a dangerous instrument as required in the escape and the armed criminal action charges.  The court defined a "dangerous instrument" as an object not designed to be used as a weapon and may have a normal function under ordinary circumstances.  The determining factor on whether the object is a dangerous instrument is whether the object can kill or seriously injure someone under the circumstances for which it is being used.  Under the circumstances of this case the court found that the ink pen was being used as a dangerous instrument when the defendant held it up to the guard's throat and he was threatening to kill the guard unless he was allowed to leave the detention center.  The defendant also appealed the kidnapping charge, stating that he had not used the guard as a hostage and a shield.  The court found that he had kidnapped the guard - he held her against her will, he handcuffed her, and he negotiated with other guards for her life.  The court affirmed the conviction and sentencing from the trial court.

Source:  State v. Arnold, #27406, (Mo. App. S.D.  03/05/2007)

Case Review - Hostage Defined

In State v. Agnew the defendant alleged that the trial court erred for failing to set aside the jury's verdict of finding him guilty of kidnapping.  His contention was that the state had not proved the element of the kidnapping statute, section 565.110, relating to using a person as a "hostage" because he did not request specific demands to negotiators for the victim's release and there was no evidence that the victim was confined in order to gain from her or anyone else.  The Eastern District of the Missouri Court of Appeals found that the term "hostage" in section 545.110 is to be defined by its plain and ordinary meaning.  It determined that the defendant held the victim "hostage" because he held her captive in her apartment and threatened to kill her if (a) her relatives did not leave the area of the door to her apartment, (b) the police officers did not leave the area of the door to her apartment, and (c) if the police officers did not get the defendant a negotiator.  The jury's verdict of  guilty on the kidnapping charge was upheld. 

Source:  State of Missouri v. Wayne Agnew, ED87758, Missouri Court of Appeals, Eastern District, February 20, 2007

Preliminary Hearing Testimony Admitted at Trial

On January 23, 2007 the Missouri Court of Appeals, Western District, handed down its decision in  State of Missouri v. Terrese D. Aaron.  The defendant alleged that the trial court violated his rights under the Sixth and Fourteenth amendments to the United States Constitution and article I, sections 10 and 18(a) of the Missouri Constitution because it allowed the taped preliminary hearing testimony of a deceased witness to be played to the jury.

The abbreviated facts of this case are that the defendant, along with his co-defendants, allegedly shot and killed a man in Mexico (my hometown, which is part of the reason  why I paid attention to this case).  At the defendant's preliminary hearing one of the co-defendants offered as a witness the deceased man's girlfriend who was at the scene.  This testimony was offered to show that the co-defendant did not have a gun.  The witness subsequently died before the defendant's trial.  At trial the court allowed the prosecuting attorney to play the deceased witness' preliminary hearing testimony. Defendant objected because he did not believe he had adequate cross-examination of this witness at the preliminary hearing and this violated his rights pursuant to the United States Supreme Court ruling in Crawford v. Washington, which states that "prior trial or preliminary hearing testimony is admissible only if the defendant had an adequate opportunity to cross-examine."  541 U.S. 36, 57 (2004).

The appellate court went through the various issues raised by the defendant and found that:

• pre-Crawford decisions in Missouri have held that testimony of an unavailable declarant given at a properly held preliminary hearing affords substantial compliance with the confrontation requirement;
• Rule 22.09 and section 544.250 give criminal defendants in felony cases filed by way of a complaint the right to a preliminary hearing and are entitled to cross-examine witnesses and present their own evidence;
• although the right to cross-examine and the opportunity of the jury to observe the witness are part of the right to confrontation, the opportunity of the jury to observe the witness gives way to necessity when a witness is unavailable to testify if the defendant had the opportunity to cross-examine the witness in a "face to face" manner at an earlier hearing; this meets the requirements of the Missouri Constitution and the federal constitution;
• the lack of discovery prior to the preliminary hearing nor the brevity of the cross-examination of the witness violates  the constitutional protections;
• the purpose for which the testimony at the preliminary hearing is offered does not matter so long as the defendant had the opportunity to cross-examine the witness  and the testimony being offered at trial is on  substantially the same issue and with the same parties;
• the appellate court is bound to follow the current Missouri law absent a determination by the Missouri Supreme Court that those cases are inconsistent with the reasoning held in Crawford.

The appellate court found that the defendant's rights were not violated by the deceased witness' preliminary hearing testimony being played to the jury at his trial. 

One other thing I found interesting about this case was that the  appellate court stated "The facts of the present case thus present the odd possibility that a criminal defendant's confrontation rights may be more closely protected in Missouri by the law of evidence than by the specific command of the Sixth Amendment."   This shows that criminal defense attorneys should pay attention not only to the United States and Missouri Constitutions but also to the Missouri rules of evidence.  More protection may lie there.

Source:  State of Missouri v. Terrese D. Aaron, WD65362, 01/23/2007.

Sentencing Guidelines - Federal Court

In federal courts the judges are suppose to have discretion to vary upwards or downwards from the U.S. Sentencing Guidelines when sentencing a  defendant.  It has been approximately two years since the U.S. Supreme Court made this determination.  Yet,   judges are not always allowed this discretion.  Recently in the 8th U.S. Circuit Court of Appeals a trial court's (district court's) sentences for a brother and sister charged with conspiracy to possess pseudoephedrine knowing that it would be used to manufacture methamphetamine were vacated and remanded for new sentences more in compliance with the Sentencing Guidelines.

In sentencing the brother and sister the trial court departed downward on each sentence due to factors that the trial court listed.  In addition the trial court made statements regarding the Sentencing Commission policy on pseudoephedrine, which sets forth a formula based on the presumed amount of methamphetamine that could be produced from the amount of pseudoephedrine possessed.  The trial court indicated that the formula was not as "simple" as perhaps the Sentencing Commission believed.  The 8th Circuit reviewed the factors considered as well as the trial court's view on the formula and found them unreasonable and an abuse of discretion.

Bottom line - if the trial court departs downward from the U.S. Sentencing Guidelines and the district attorney isn't happy and appeals, your sentence may be vacated and your case remanded for resentencing in compliance with the Sentencing Guidelines.

Source:  U.S. v. Gentile, 2007 U.S. App. LEXIS 909 (8th Cir. Jan. 17, 2007); Missouri Lawyers Weekly, January 22, 2007

What To Do When Questioned or Arrested By Police

Do you know what to do when you are questioned by the police regarding a crime?  Do you know what to do if you are arrested for a crime?  Most people make the biggest mistake for their case during the first interview or questioning by the police.  What is this mistake?  They do not keep their mouth shut.  Surprising, huh?

A police officer is a figure of authority and can intimidate most people into answering their questions during an interview either before or after making an arrest for a crime.  Because of the authority figure, people feel obligated to answer the questions of the police officer.  If they decline, the officer uses the old standby "if you're not guilty, what do you have to hide by talking with me?"  Believe it or not, this phrase starts the person talking. 

What is wrong with answering the police officer's questions?  Plenty, especially if you have played a part in a crime.  If you are questioned by an officer you have the right to have your lawyer present.  You should have your lawyer present during any questioning.  If your lawyer is present he or  she can control the way the interview is conducted - no excessive badgering, coercion or forcing a confession, extraordinary length of time for the questioning.  Your lawyer can also decide which questions are safe for you to respond to and which may possibly hurt the defense of your case.  Your lawyer may also be able to help you in the way you answer a question.  Without an attorney present, people are more inclined to admit to something even if they did not do it just to stop the questioning by the officer or they believe they will be allowed to leave if they tell the officer what he/she wants to hear.  Big mistake.  It is difficult to undo what has been admitted to.

The bottom line is - if the police want to question you or if you are arrested and starting to be questioned or interviewed by the police, assert your right to have your lawyer present. Your lawyer may be good but even he/she cannot perform magic over most admissions to a crime that occur in an interview.