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. 

Case Review - Retroactive Application of Section 211.038 (Cum. Supp. 2004)

Recently a case that involved  section 211.038 (Cum. Supp. 2004) was transferred to the Missouri Supreme Court to decide the issue of whether this statute should be applied retroactively.  In In the Interest of A.S.W. the Eastern District of the Missouri Court of Appeals decided that the general interest and the importance of this question should be decided by the Supreme Court of Missouri.

The background of this case is:  in 1998 A.S.W. was born.  His biological father suffered a brain injury from a fall at work in 2000 and had to spend time in rehabilitation.  In 2001 the juvenile office filed a petition to take jurisdiction and custody of A.S.W. because of neglect by the mother.  The juvenile court decided that the father was in no condition physically or mentally to be able to take care of A.S.W. at that time.  In 2002 the juvenile office petitioned to have the parental rights of both parents terminated.  The juvenile court did so.  The father thereafter appealed and the Missouri Supreme Court reversed the termination as to the father because the state had failed to present substantial evidence that additional services would not facilitate the return of A.S.W. to the father.  Thereafter the father filed a petition for writ of habeas corpus and alternative motion to modify the legal and physical custody of A.S.W.  At the same time the foster parents of A.S.W. filed their petition to obtain guardianship of A.S.W. and to change his name.  The juvenile court consolidated these two actions and ruled against the father and in favor of the foster parents.  The father appealed on four different grounds. 

The father alleged in the first ground that the juvenile court failed to follow the Missouri Supreme Court's mandate that A.S.W. be returned to his custody.  The appellate court determined that the Supreme Court did not mandate that the custody be returned to the father, only that the trial court should consider whether additional services could be provided so that the child could be returned to the father.  The trial court heard evidence from several psychologists that the father could not independently care for A.S.W. and that his sister, with  whom the father was living with, did not believe the father needed supervision.  The father also testified that he planned to move out of his sister's home and into one with just him and A.S.W.  The appellate court ruled that the trial court did follow the Supreme Court's order.  The second ground was that the juvenile court's jurisdiction was no longer proper.  The appellate court quickly ruled against the father on this ground because he had  consented to the jurisdiction of the juvenile court when the initial proceedings started.  The fourth ground by the father was that the ruling for the guardianship was against the weight of the evidence.  Based upon all the evidence that the trial court heard, the appellate court determined that there was substantial evidence for this ruling.

The third ground of the father and the one involving section 211.038 is the one that the transfer to the Missouri Supreme Court was made on.  Section 211.039, RSMo (Cum. Supp. 2004) prevents a child from being reunited or placed in the home of a parent who has been convicted of certain felony offenses where a child was involved.  In 1986, before the effective date of this statute, the father pleaded guilty to two counts of sexual abuse in 1st degree, one count of sodomy, and one count of rape.  These charges involved the father's nieces, ages 5 and 6.  The sodomy and the sexual abuse convictions are included in the felonies listed in the statute.  The trial court mentioned this statute in ruling against the father and the father argues that this statute should not be applied retroactively to him.  The appellate court found that the trial court did not rely solely upon this statute in denying the father custody of A.S.W.  The trial court found that the father was unfit and unable to assume duties of guardianship, that A.S.W. would suffer emotional harm if removed from his present home, that the father's physical and mental conditions prevented him from being able to handle A.S.W.'s needs that would result from the emotional harm, that A.S.W. started suffering from nightmares and behavioral changes after the visits with father resumed in 2005, and that several psychologists testified that the father could not independently care for A.S.W.  These findings were enough to rule against the father obtaining custody of A.S.W. but because the trial court mentioned section 211.038 in its determination, the appellate court considered  whether this statute should be applied retroactively.  It determined that it has been applied retroactively at least one time before in In re T.M.E., 169 S.W.3d 581 (Mo. App. 2005), and it agreed with this decision.  The appellate court determined that the trial court properly applied this statute to the father but because of the general interest and the importance of the question, it transferred the case to the Missouri Supreme Court for its decision on the retroactiveness of section 211.038.   It could be many months before the Supreme Court issues its decision.

Source:  In the Interest of A.S.W., ED88382, (Mo. App. E.D. 03/06/2007)