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February 24, 2010

Ex Post Facto day for sex offenders at the Supreme Court

As detailed in this FOXNews report, which is headlined "Supreme Court to Hear Sex Offender Case Sotomayor Set Aside in Lower Court," today the Supreme Court hears argument in two cases dealing with sex offenders and the constitutional limits on prosecution resulting from the Ex Post Facto clause.  Here are the basics:

It's all about sex at the Supreme Court Wednesday when the justices hear arguments in cases involving a national sex offender database and the federal government's appeal of a lower court ruling setting free a man dubbed the S&M Svengali.

The case involving Glenn Marcus (aka the S&M Svengali) has drawn a bit of added interest because now-Justice Sonia Sotomayor was part of the three judge panel in New York that set aside a nine-year prison sentence.

Marcus was convicted of sex trafficking after encouraging women to participate in what the government describes as "violent sexual activity." He posted photos and videos from the encounters on a for-profit Web site called "Slavespace."

Following his conviction, a three judge panel of the Second Circuit U.S. Court of Appeals that included Sotomayor set aside the verdict saying some of the alleged bad acts took place before the 2000 Trafficking Victims Protection Act went into effect....

Wednesday's other case looks at a 2006 federal sex offender registration law which requires newly convicted offenders to sign up in an updated national database. In 2007, the Justice Department issued a requirement that people convicted of sex offenses before 2006 also register in the new database.

In 2003, Thomas Carr was convicted in Alabama of improperly touching a 14 year old girl. He then moved to Indiana where after getting into a fight (with no sexual connection) Carr was arrested and convicted for failing to register under the new law. He has appealed the conviction claiming the after-the-fact requirement violates the Constitution's Ex Post Facto Clause.

SCOTUSblog provides an overview of the Carr case in this new post, which is titled "SORNA and the Ex Post Facto Clause: Carr v. United States, Argument preview."  It also provides an overview of the Marcus case in this post, which is titled Interpreting the Ex Post Facto Clause: United States v. Marcus, Argument preview."

February 24, 2010 at 07:40 AM | Permalink

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Comments

maybe they will FINALLY get off their tails and derail this runaway trainwreck that is the sex offender law system in this country that has been created since their ruling that goes against that ruling COMPLETELY!

Posted by: rodsmith3510 | Feb 24, 2010 4:00:25 PM

@rodsmith3510

Pretty clearly, the impact of a ruling in the Carr case is pretty modest in the long run. For everyone convicted post-2006, there is no change. For everyone who has not crossed state lines since 2006, there is no change. The only impact is on sex offenders convicted pre-2006 but not post-2006 who have crossed state lines.

It isn't obvious to me how that one comes out, although Carr's case is quite sympathetic. We don't normally expect every ex-con to maintain a running subscription to the advance sheets and interpret changing laws once he'd convicted, serves his time, and no longer has an attorney at state expense. The fact that his underlying offense is minor enough that it probably wouldn't be a sex offender registration eligible offense in every state is also notable.

The Marcus case seems more open and shut. A conviction for acts taken before the law making them a crime were committed does seem problematic.

I suspose the difficult part is that apparently some of the acts for which he was indicted apparently did take place after the law was in force. So, if the jurors believed that all of the acts happened, then he would have been convicted anyway, and evidence of the pre-law acts might even have been admissible under one of the prior acts exceptions to the Rules of Evidence in a situation like this, so it would be harmless error to include the ex post facto acts in the indictment upon which he was convicted. Since the acts alleged were probably reasonably similar and the images were memorialized in video and audio, the likelihood that the error was harmless is pretty good.

If prosecutors don't know which video or photo was taken when, but do know that some were taken post-enactment, and the jury instruction had said that all had to be bad acts within the statute, that would have been a valid conviction as well, presumably.

Of course, since we don't know for sure that everything from Marcus was found by the jury to be a bad act, rules of jury verdict interpretation would seem to favor him.

When the story says he'd be a "free man," I presme that this is a reference to double jepordy limitations. This wouldn't prohibit a conviction under state law, however, if he violated any state law and the statute of limitations hasn't run. And, if there were no state or federal law prohibiting his conduct until 2000, when some of his conduct ocurred, then it isn't too hard to say that he should get off.

On the other hand, if the was a state law offense that wasn't prosecuted because of the federal prosecution, and that statute of limitation has no run on that offense (but hadn't when the federal prosecution was begun), then he is getting a windfall. Well, sometimes the law is merciful.

Posted by: ohwilleke | Feb 25, 2010 4:21:42 PM

Guess we're about to find out if Ex Post Facto means what they told us it meant in high school Civics...or if there's double-secret proviso exempting from its protections the duly designated witches of the day.

Posted by: John K | Feb 25, 2010 8:36:24 PM

ahh but the problem is the retardsd running the doj are using ANY travel at ANY TIME in their live across a state line as a so-called hook to claim jurisdictin. sorry if you need to have a HOOK then you have no business there.

Posted by: rodsmith3510 | Feb 26, 2010 2:52:55 AM

and i'm still waiting for a list of real actual NAMES of the so-called 100,000 mission offenders. consdidering the number of them on the 50 diff state registrary that were only in one of the states for 24hrs or os and forced to registered and it's been done on all of them. t hey have no real clue how many they even have let alone how many are missing. you can look at some of them them and see the same persion listed numerous times. heck new york even makes theirs register back in new york once they move and register in a new state. wanna bet those are conted a diff people in each state.

Posted by: rodsmith3510 | Feb 26, 2010 2:55:16 AM

that number is just like that so-called 50,000 childen a year who are kidnapped. made of number from an ass of a politican since it sounded good. and the press grabbed and told it enough now it's true. even thogh in reality it not even CLOSE.

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