RM210: Cert Petition From Texas Denied By Scotus

RM210: Cert Petition from Texas Denied by SCOTUS

This week on Registry Matters, we cover a cert petition for the United State Supreme Court, and how hard it is to get a case heard. It takes significant time and hours to prepare a case to be heard by the highest court in the land. We also have a few listener questions to cover as well.

[5:48] Mike provides some personal experience changing treatment providers

[8:45] Mothers plea to the awful treatment of people inside prison

[18:33] The next part of the series of “Don’t talk to the police”.

[30:07] Cert Petition from Texas Denied by SCOTUS


Read Transcript of RM210: Cert Petition from Texas Denied by SCOTUS


Leave voicemail: 747-227-4477
Email us: registrymatterscast@gmail.com
Support us on Patreon: https://www.patreon.com/registrymatters
Follow us on Twitter: https://twitter.com/RegistryMatters
Join the Discord server: https://discord.gg/6FnxwAQm57
Want to support Registry Matters with some swag: https://shop.spreadshirt.com/registry-matters
Apple Podcasts: https://itunes.apple.com/us/podcast/registry-matters/id1305039280
Google Play Music: https://play.google.com/music/listen?u=0#/ps/Icuxbpzvyti7wtoredipbtiojqy
RSS: https://www.registrymatters.co/feed/podcast/
Spotify: https://open.spotify.com/show/3d75P7Kc37n2l79m89F9KI
YouTube: https://www.youtube.com/registrymatters

We Need YOU To Help Stop Bad Bills

RM209: We Need YOU To Help Stop Bad Bills

On RM209, titled We Need YOU To Help Stop Bad Bills, we’ve got a special guest talking about legislative advocacy. Also, we’re going to be talking about issues related to prison mail as mail is entering institutions; the new policies that are cropping up around the country. And we have some clips, one about hypocrisy. And then another one, what the theme for the coming elections in 2022. So we’re going to have some discussion about strategy by the party that’s out of power.

[3:05] Solid advise for traveling to other US territories

[8:53] Mail for prisoners in New Mexico is going to get much more difficult

[25:53] Strategy predictions for the minority party in the upcoming 2022 elections

[32:04] Rand Paul and his reversal of receiving Federal funds, only  after the tornadoes in Kentucky

[36:25] Brenda Jones from Fair Registry joins us to talk about stopping bad bills


Read Transcript of RM209: We Need YOU To Help Stop Bad Bills


Leave voicemail: 747-227-4477
Email us: registrymatterscast@gmail.com
Support us on Patreon: https://www.patreon.com/registrymatters
Follow us on Twitter: https://twitter.com/RegistryMatters
Join the Discord server: https://discord.gg/6FnxwAQm57
Want to support Registry Matters with some swag: https://shop.spreadshirt.com/registry-matters
Apple Podcasts: https://itunes.apple.com/us/podcast/registry-matters/id1305039280
Google Play Music: https://play.google.com/music/listen?u=0#/ps/Icuxbpzvyti7wtoredipbtiojqy
RSS: https://www.registrymatters.co/feed/podcast/
Spotify: https://open.spotify.com/show/3d75P7Kc37n2l79m89F9KI
YouTube: https://www.youtube.com/registrymatters


RM208: Judge's Excoriating Opinion Against Alabama Prison System

RM208: Judge’s Excoriating Opinion Against Alabama Prison System

Our first episode of 2022, Happy New Year 🙂 We are going to talk about the silliness in Colorado with the name change, and then the reversal of it. Alabama needs to hire nearly 4000 prison guards and other personnel. And then we have some other questions and a couple voicemails and more questions.

[4:50] Christmas card from folks behind bars

[8:23] “drug crazed gun bunnies”

[13:58] Is registration ex post facto for those convicted before 1995?

[21:28] From Mike: Registries go back to Biblical times

[29:01] Could Ghislaine Maxwell help our cause in any way

[33:06] Questions about New Mexico probation rules

[39:17] Does New Mexico post your employment on the registry website

[41:11] Colorado reverse decision to change how it labels PFRs


[58:29] https://www.washingtonpost.com/transportation/2021/12/29/airline-passenger-fbi-arrest/


Transcript available at:


RM208: Judge’s Excoriating Opinion Against Alabama Prison System

Leave voicemail: 747-227-4477
Email us: registrymatterscast@gmail.com
Support us on Patreon: https://www.patreon.com/registrymatters
Follow us on Twitter: https://twitter.com/RegistryMatters
Join the Discord server: https://discord.gg/6FnxwAQm57
Want to support Registry Matters with some swag: https://shop.spreadshirt.com/registry-matters
Apple Podcasts: https://itunes.apple.com/us/podcast/registry-matters/id1305039280
Google Play Music: https://play.google.com/music/listen?u=0#/ps/Icuxbpzvyti7wtoredipbtiojqy
RSS: https://www.registrymatters.co/feed/podcast/
Spotify: https://open.spotify.com/show/3d75P7Kc37n2l79m89F9KI
YouTube: https://www.youtube.com/registrymatters

RM207: 11 Questions Regarding New SORNA / AWA Regulations

RM207: 11 Questions Regarding New SORNA / AWA Regulations

On this weeks episode of Registry Matters, we’re gonna have an awesome program tonight for a Christmas gift to our listeners. We’re going to have some questions that came from our listeners in writing; And we’re going to talk about the case in Georgia, which was argued yesterday in the 11th Circuit Court of Appeals in Atlanta; And we’re gonna be going back to the Adam Walsh Act and talking about question that’s just continue to to flood the social media platforms. It is just on fire with people talking about it. So if it’s on fire, we figured we might have to go back and try to answer some of the questions that are coming up.

[3:34] Suggestions for a question from RM203 about an inmate who is scared to be in general population

[9:40] Reader submission regarding Internet usage and being on supervised release

[15:33] “Is my case similar to the one covered in the NARSOL Digest?”

[22:18] Why you shouldn’t talk to the police

[26:57] Update to the Georgia Halloween sign case from the lead attorney

[32:27] Delays in being leveled because of one resignation? Sounds fishy

[35:56] It’s SORNA / AWA all the way down


Read Transcript of RM207: 11 Questions Regarding New SORNA / AWA Regulations


Leave voicemail: 747-227-4477
Email us: registrymatterscast@gmail.com
Support us on Patreon: https://www.patreon.com/registrymatters
Follow us on Twitter: https://twitter.com/RegistryMatters
Join the Discord server: https://discord.gg/6FnxwAQm57
Want to support Registry Matters with some swag: https://shop.spreadshirt.com/registry-matters
Apple Podcasts: https://itunes.apple.com/us/podcast/registry-matters/id1305039280
Google Play Music: https://play.google.com/music/listen?u=0#/ps/Icuxbpzvyti7wtoredipbtiojqy
RSS: https://www.registrymatters.co/feed/podcast/
Spotify: https://open.spotify.com/show/3d75P7Kc37n2l79m89F9KI
YouTube: https://www.youtube.com/registrymatters

Transcript of RM206: Modifications to AWA (SORNA) Regulations Adopted

Listen to RM206: Modifications to AWA (SORNA) Regulations Adopted

This episode of Registry Matters is brought to you by our patrons. Thank you for your continued loyalty and support.

Andy 00:09
Recording live from FYP Studios, east and west. Transmitting across the internet. This is episode ­206 of Registry Matters. Good evening, sir. How are you?

Larry 00:19
Good evening to you. I am doing wonderful.

Andy 00:23
Can you give us a few minutes of your training session with your furnace?

Larry 00:29
Yes I can. I can indeed. It has gotten very cold last night. It was like 18 in the valley. And similar temperature expected tonight. And it still hasn’t started despite my request. So I’m using my auxiliary heat, and I’m going to teach it that I can do without it.

Andy 00:50
How are you teaching it? Are you using a carrot and stick? Are you beating it? Are you talking to it? What are you doing?

Larry 00:59
Well, I do periodically say I wish you would start up, but it just ignores me. So I’ve used my alternate heaters and the heck with it.

Andy 01:06
Okay, then. Alright. Um, and this is gas though? (Larry: Yes.) I kind of think gas would be… I don’t know, from just like space heaters, I got to think the gas would… whole house heating would probably be more efficient than space heaters I would think.

Larry 01:21
Probably so but right now gas is artificially high because of factors that are unique to New Mexico gas company.

Andy 01:29
Okay. Well, then, with that being passed, can you give us an idea of what we’re covering tonight? Because I’m sure I have a really good idea what’s coming.

Larry 01:39
We are going to cover some very important topics. We’ve got some listener submissions. We’re going to be talking about the now final modifications to the Adam Walsh Act regulations that became effective on December 8. And we’re going to be going back to a couple of cases we talked about on episode 205 of Registry Matters.

Andy 02:05
Okay, well, I guess we will dive right in because you have said that we have like 17 hours of content. So let’s hit question number one that comes from a person. Says, if I visit Phoenix for seven days next year, do I need to appear in person at the county sheriff’s office within three business days only to find out they won’t register me? How do I get this in writing? What if I call them ahead of my visit and confirm that they only will register me if I plan to stay in the county for more than 10 consecutive days? I’m sure some Sheriff there will say Sure, I’ll register you. Where’s your $250 initial registration fee? And oh, by the way, you can’t stay at that hotel. It’s within 1000 feet of a school. What do I do then? Right? This is this is definitely something that people talk about when they go visit some foreign land.

Larry 02:54
I didn’t do any research on Arizona law. So I don’t know what it specifically says. But I suspect that it’s related to the AWA regulations we’re going to be talking about later. Because everybody imagines that the three days applies if they travel. But in terms of Arizona specific, I don’t know how long you can be there, per statute. But really all he can do is what he’s talking about doing if he’s determined to find out. if you call the registrar for the jurisdiction you’re going to be in, and they tell you don’t have to register, they’re not going to send you an email in all likelihood. And you’re not going to have a document. I mean, it’s gonna be that you called, and I guess you would have your cell phone log that showed that you called a number affiliated with the registration unit. But you’re not going to have anything that says we wouldn’t register you. I just tend not to get nearly as worried about that as people do. But I understand their concern. It could be a serious charge. But for the life of me, I have not ever heard of anyone prosecuted because they were an hour longer than whatever the perceived time limit is in Arizona. And I didn’t even know they had a $250 fee. That’s something I’m not aware of if that is in fact the case in Arizona.

Andy 04:07
So a little story… I was still on probation. So this is a little bit different I’m assuming that this individual’s condition. I go visit a foreign land, the state of Pennsylvania, and I was told to go register when I get there. And I go there, and I go talk to some sheriff or police officer, whatever the hell they’re called. And he goes, not doing it. I’m sorry, you’re what? He goes, I’m not registering you. You don’t need to. But they told me to. Yeah, but you don’t have to. Look, man, that puts me in a really bad spot. They’re expecting to see your signature. And if I don’t go home with your signature, they’re gonna be mad at me. And he goes, I’m not doing it. I was like, oh god. So how do you prove that you went other than here’s my GPS logs that I stood in the sheriff’s office. I took pictures. I took some selfies with the police. Like what are you supposed to do?

Larry 05:00
That’s really all you could do. And nothing’s gonna come of that. If they won’t register you, there’s nothing the state of Georgia could do. Now there is one thing they could have done, which they can no longer do. They could have said, well, if you can’t find a way to register while you’re there, we just won’t let you travel anymore.

Andy 05:18
Right. Fortunately, for me, it didn’t go that way. And it was no big deal. No one ever asked me for any paperwork of that sort. But it was just like, that puts me in a really, really awkward spot that I can’t prove that I was here because I don’t have the registration paperwork that you signed it. And whatever. Alright, well, so what are you then telling him to do? If he calls them and they say, you don’t need to, don’t go? And just go be on your merry way?

Larry 05:45
Well, I’m a documenting freak. So I would document that. I would try to figure out who I talked to. Certainly the agency I spoke to and the time and the date. I would get your phone record. But I would actually try to make some kind of contemporaneous entry in a journal of some type if I were that concerned. never was one to worry about that. But people do. And I’m not going to tell them they’re wrong for worrying. I just don’t have any history of someone being prosecuted for being a few hours over. I just have not seen that in my experience. But people still carry that fear because the consequences are significant.

Andy 06:24
Okay. All right, then we’ll move over to question one, the second time. And it says. Dear Registry Matters. Hello, my name is Tim, and I am a new subscriber to the NARSOL newsletter and saw your ad for free sample transcript that I’d like to receive and having enclosed a self-addressed stamped envelope. Thank you very much for that. That makes it super helpful for you, I would imagine, Larry. I also wanted to ask about purchasing transcripts. I see you offer, like monthly subscriptions. Do you offer or sell your transcripts individually for each episode? And do you have a library of previous podcasts sorted by topic available for purchase? And then finally, I’m looking for specific topics to answer questions I have regarding my own situation, which is… but anyway, so the podcast, generally, is about an hour long, Larry, and let’s say it’s 200 words per minute. So that’s like 12,000 words that we say in the course of an hour for the podcast. And so how are we going to index that by topic? And that’s very technical and complicated. And perhaps we will get there in the very near future. But that is asking a lot to have every topic. Did we talk about probation in Texas? Did we talk about interstate travel going to this way? There’s a lot of work involved in that. So we don’t have it quite that detailed. But for the low, low cost of what Larry? What is it for a month?

Larry 07:53

Andy 07:55
Okay, for six bucks, you get 12,000 words, roughly, printed four times a month or five times sometimes, and you get a mountain of content, and you would receive everything that’s going on. I think that’s a good bargain.

Larry 08:09
Me too. I know it’s a good bargain because our hard costs are really above that. This is actually not paying for itself, which will give me a chance to tell people if we don’t get the subscription numbers higher, we’re gonna at some point have to evaluate the efficacy of this transcript service because if you’re paying a transcriptionist to cover 40 weekly newsletters, the cost per unit is considerably more than if we have it gone to 100 or 150. People. The transcriptionist spends the same amount of time. Now we would have additional print and postage and envelopes costs. But the actual preparing the transcript and getting the content in shape enough where you can understand what we talked about, that is where the real cost is. So we need for folks in prison to promote this and let’s grow this list.

Andy 08:59
Someone asked in chat says can he backorder transcripts? He most certainly can order backorder them, but someone would have to go to the site. So the way the transcript side works is that’s all posted on the website also. Not on the podcast page, but there’s a link to it there. You could certainly do some creative Google searches to find where we have spoken specific words, which is why I did the transcript to begin with. We talked about heaters this evening, Larry, so if you do a Google search, specifically against Registry Matters for teaching your heater a lesson, I would imagine there are a handful of episodes that show up, especially also talking about showerheads. And the whole reason why I started doing transcripts to begin with was to make sure that Google saw those keywords and then we could find timestamps for it and if we needed to reference back to it, we could find them. But if someone wanted to go do a search for some handful of keywords for you to figure out what subject you’re trying to cover, then you could certainly either download them directly and not worry about involving the print side of it, or you could order them I guess? But we’re not set up to, for someone to say, hey, Larry, can you send me episode 142? Like, we’re not set up for that either, really.

Larry 10:11
Well, we actually could do that. We’re going to be PDFing and all of our transcripts that we have since we’ve been doing this, which started episode 137. We’re going to be going back and making sure those are available, and they’re actually going to be put on our FYP educational website in the not-too-distant future, I hope. But we would be able to do that. I haven’t figured out what the cost would be because that’s labor intensive when you have to go prepare one. So that’s something that requires time.

Andy 10:39
Absolutely. All right. Well, then we will continue on to what would actually be question number two. Says, Liberty and Justice- so I assume that this went to you people out your way- My name is Armando. And I am writing concerning my registry being changed from a 10- to 20-year to a lifetime registry. A change in my requirements I feel is in violation of my constitutional rights. By this change in my requirements, my charges were criminal sexual with a minor fourth degree, blah, blah, blah, and two criminal contact of a minor per plea deal. I served six months in county on work release and 18 months’ probation starting in 2002. And completed it in 2004-2005. In 2006, I picked up a failure to register. It’s a fourth-degree charge. And I pled out for 18 months’ probation finaled in 2007, and was registering every six months until 2012 or close to when all of a sudden, Deputy so and so of Chavez County Sheriff’s Office in Roswell, New Mexico, advised me of a lifelong 90 Day registry. And I am asking you to please look into this matter on my behalf. I am going for three years Department of Corrections plea deal on a failure to register CR something or another. Thank you for your time and consideration. So he’s actually already been sentenced to going to go visit his local Department of Corrections?

Larry 12:16
Well, this case is a little more complicated. And we encourage people not to overwrite. And they’re in a catch 22 because he either deliberately underwrote because there’s a whole lot more here he did not tell us. But being this is in my state, I and with the assistance of our FYP researchers, we have looked into this. So the first sexual offense he had was in 2002. And from all appearances in the public records, he was not off supervision and completed that sentence in its totality by June 30th, 2005. And that being the case that’s what it appears to be, anybody who was serving any part of their sentence for a registerable offence, the laws changed on them on July 1, 2005, which most of the offenses went from once a year for 20 years and some small number of offenses once a year for 10 years. Those 20-year offenses went to four times a year for lifetime. And I think one or maybe two of the 10-year offenses also went into that category. So, if he was serving any portion of his sentence, and that includes community supervision, on July 1, 2005, his requirements changed. And that’s part one. Part two, he has three failure to registers pending in Chavez county right now. Not one, but three. The other part of that is he has possession of a controlled substance pending in Chavez County right now. So he has multiple felony charges pending. Now, for the listening audience who believe that probation is so rare, now did you hear that on his first failure to register he got a probated sentence? In his original charge- now this is almost 20 years ago, 2002- he also got what was essentially a community sentence. He had work release. So all you folks that are so convinced that everybody goes to jail, they actually don’t. But anyway, he’s had difficulty staying out of trouble in the intervening time. So, what’s gonna likely happen in this case is that his current felony charge with the drug possession and his failure to registers, it looks like one of them has already been nolled by the prosecutor. You remember that, nolle prosequi that we talked about? (Andy: I do.) It looks like one of those has already been dismissed by the prosecutor. But what they’re gonna do is they’re gonna roll this. And I have not spoken to the attorney. I just got this letter today. But what’s going to happen is they’re going to roll that into consolidated plea. And he’s going to get concurrent time. So when he gets his sentence, since he has a previous conviction for failing to comply with registration, it has a self enhancement mechanism in the state where it goes from a fourth degree felony carrying a maximum of 18 months, it goes to a third-degree felony carrying a maximum of 36 months. So, they’re going to consolidate that in all likelihood with the drug offense, and he’s going to get concurrent time rather than consecutive time. That’s going to be his inducements to plead guilty. But this is a lesson about plea bargains. People always say, well, why would I plead guilty? Well, here’s one of the reasons why you would. You’ve got at least two and possibly a third failure to register and they’re all seconds. So that’s 9 years of jurisdiction right there. And then you’ve got the drug possession, which I didn’t look up. But that’s got to be at least a third degree felony. So he’s looking at about 12 years of stacked time. Which if you don’t do the plea, all that time could be stacked. And then he’s looking at habitual enhancement, and I’d have to do the research, but there could be some additional time for habitual enhancement. So, what they will get him to do, the plea agreement will be that he will admit that he’s habitual offender. They will probably give him a sentence far less than the 12 years. And that will end this case, and then he’ll serve whatever prison time and come back out on supervision again. And he’ll get a second chance. This case, if he were trying to challenge it, I have worked with an attorney in the Appellate Division of the public defender’s office here where we’ve litigated this very issue in that that very court in Travis County with Judge Romero, who’s now retired, and judge Romero didn’t want to hear anything about registration having been evolved to impose more punishment, because we don’t have residence restrictions. We don’t have all these things in our state. We don’t have any limitations. You can live anywhere you want to, you can work anywhere you want to. And so, judge Romero didn’t see it. We appealed it. The Court of Appeals didn’t see it. They didn’t see any distinguishment that made it no longer civil regulatory. And the state Supreme Court refused to hear it. So, although Romero’s off the bench, I would just about bet if you litigated again in this trial court in Travis County, you would get a similar outcome. Without a significant amount of proof that registration has evolved. And you would cite the cases like Michigan. Well, we don’t have any of those restrictions, or you could cite Tennessee. We don’t have any of those restrictions. So we have a lot weaker cause to say how punitive our registry is. So it’d be an uphill climb for us. This guy is going to need to work out a plea agreement and try to comply with his conditions of supervision when he gets out of prison. He will be doing some prison time in all likelihood based on his prior record.

Andy 17:59
Can you remind me what prosequi means? And can you spell it again?

Larry 18:03
I can’t spell it.

Andy 18:06
What does it mean?

Larry 18:09
It means that the prosecutor elects not to move forward. It’s an effective dismissal.

Andy 18:14
Okay, all right. Um, I think I had another question for you in there. But I don’t remember what it is now. And but the person is writing asking- I’m going to kind of be critical of the individual for a second Larry. The person’s writing to you without full information that you went and went and looked up more information on the person, but kind of minimizing all that has been going on. When you say there’s one, written it says there’s one, but there’s actually three. Like, the prosecutor is going to be like, I don’t have to try very hard to get a conviction out of you. Why would the person even be trying to fight this when they have all this stuff stacked against them?

Larry 18:51
Well, that’s why it’s gonna go into a consolidated plea. You don’t have much to work with because of some of these charges, he would be convicted if he went to trial with the drug possession, the possession of controlled substance. And when he goes to trial, and he gets convicted, all bets are off for sentencing. So it’s just the maximum statutory limit. And there’s nothing that prevents consecutive sentencing. So therefore, that’s why people plead. I know that you guys out there think that you should just abolish all pleas and everybody should go to trial. But this is an example of why you’re not gonna do that. And this case is not going to resolve itself by going to trial. There’s going to be a plea with this. It is likely going to combine with the other case with the controlled substance.

Andy 19:36
Okay. For the next pretty big block of time we’re going to be covering… wait for it… SORNA! Hmm. Who would have ever thought that this was going to come up again Larry? They said that were finalized and they would go into effect. Is it January 7? Is that when they’re coming up again, or going into effect?

Larry 19:57
Sometime in January. I don’t recall the date.

Andy 19:59
Thought that’s what it was. And obviously everyone has their panties all in a wad and the hackles are up. Everyone’s asking questions. What does this mean for this? What does that mean for that? So, we have another flurry of questions to talk about SORNA. And the first one comes from someone named Sandy. I think this is a neat question too. Is there any way to predict with any reasonable degree of accuracy which states might be the most likely to utilize the new provisions? And if so, what are they? Conversely, which states might be the least likely to go along with these new regulations? I think that’s a neat question, Larry. But that probably goes to a whole lot of speculation and whatnot. Can you read the tea leaves? Larry?

Larry 20:42
Well, I don’t know if I’ve been given that skill, but without reading the tea leaves, there’s actually information that would help you figure that out. What we know, despite the fact that only 18, or whatever it is, states have been deemed substantially compliant, we know that many states have submitted compliance request packages to the feds, to the SMART Office The Sex Offender Monitoring, Apprehension, Registration and Tracking office in DC. We know that. So what we could do to predict the likelihood that the states would use this as an opportunity to maybe do an administrative implementation is we could look at the states who have submitted compliance application packets, and look at where they’re deficient. Because the review of their application is, last time I looked, on that website. And you can see where they are deficient. Like, for example, New Mexico’s, it’ll say that they need to add additional offenses to the universe of registerable sex offenses, they need to shorten the time between initial registration. It’s three days by federal standards. We have 10 days for older convictions, and it’s down to five business days for newer convictions when we’re not registering juvenile offenders. Things like that are on the list of deficiencies. So, what that tells you, if you have an open mind, is that those states would like to comply. Otherwise, they would not submit an application now would they? (Andy: Okay, right, right.) Okay, so we have that information of the states that are attempting to comply. Those states that are attempting to comply are going to look at this with a fine-toothed comb saying how can we accomplish some of this stuff administratively? So that would be a relatively easy thing to predict, in my opinion, by looking at does your state want to comply? If your state has said we have no intention of complying, then that changes that paradigm. Which I think there’s been a couple states that have said we’re not going to comply. California, I think, is one. I think Texas is another. Texas is already so bad, you know that complying might actually improve the situation in Texas. Because in many regards, Texas is worse than the federal standards. Same thing in my state. Some of the requirements we have for like the possession of child porn, the federal standards are less than what we require under our current law. So if we were to merely mirror what’s required a whole lot of folks that are lifetime would no longer be lifetime. And I get all kinds of spitballs. You know what we did in school? When you put the spit ball in the straw. I get all kinds of spitballs shot at me when I say that.

Andy 23:19
I do that at you every night while we record this podcast.

Larry 23:25
So people say that. But I tell them if the state, in particular the southern states, where they have far exceeded. If you could just get them to adopt the requirements of the AWA, you would actually improve your state. And they really get angry when you say that. But in terms of the flip side of that question, what states will be the least? That’s harder to predict. I think the states that have said we have no intention to comply may be less zealous. But the state like Maryland where the Supreme Court has said that no disadvantage can be imposed, because it’s in their state constitution and their declaration of rights, Maryland would probably be very unlikely to risk it because their court has spoken twice on this. They haven’t seen it differently on any of the two previous decisions about registering. So therefore, if they try to get cute in Maryland, they’re going to get slapped down. And I think the Maryland public policymakers would recognize that. So that would be how I would look at is who has tried to comply and failed. And who has said that they don’t intend to comply. That would be a good clue.

Andy 24:31
Can we take just the tiniest little bit of a detour about Maryland for just a minute? We’ve brought this up and we’ve talked about this a number of times through the whole history of this podcast. Maryland has that special language. Can you remind me what it is?

Larry 24:44
“No disadvantage.”

Andy 24:48
So they can’t do something that gives an extra special disadvantage to someone from a law and that protects the citizens of Maryland from a whole lot of extra egregious crap that Alabama does to their people, right?

Larry 25:01
That’s correct, because their ex post facto provision is broader than the US Constitution. And this should be a lesson, you can do more than US Constitution and be a state. You can’t do less. So Maryland chooses to provide more protection. So do a number of states. Our state has a constitution that provides greater protections than the US Constitution. It’s okay to do that. It’s just not okay to do less. Same thing with the federal SORNA standards. These are recommendations to the states. Recommendations. If you want to be fully funded, without any loss of funding, you will do at least these things. You can do more, but you’re not supposed to do less.

Andy 25:46
My intent with the example is that we have- I know it’s an extreme way to word it- but we have 50 individual little countries with this federal umbrella that provides for the certain specific things that the federal government is supposed to do. But we have 50 individual states plus all the extra territories, but each one of them is able to self-govern. Right?

Larry 26:09
Correct. So Maryland chooses to protect its citizens. Nothing stop you from working for constitutional amendments in your state to provide greater protections. Constitutional amendments are hard, but nothing stops you.

Andy 26:24
That’s what I was getting you to go for. So we could make all of the other 49 states have some sort of extra protections against providing for more constitutional protections at the local state level. Whether that be in this department or that department, but they specifically worded that so that you can’t create a larger disability for the citizens there. And I just think that’s super neat. And it very much highlights exactly how people need to look at this is that California is not New Jersey. And that’s not Minnesota, and that’s not Florida, and they all get to operate under their own rules and restrictions. And they’re all similar, but they get to do their own little nuanced things.

Larry 27:07
That’s correct. We are 50 separate sovereigns.

Andy 27:12
Alright, then we have this big battery of questions that someone sent in. There’s one from somebody else. But most of these come from an individual in Georgia who did a pretty fair amount of consolidating a whole bunch of questions for us. And it says, does this affect every PFR who has ever committed a sex crime or just those who are still required to register under state law? Can we unpack that first? Can we dissect the question to sharpen it?

Larry 27:41
Well, as best I can, I will try. And it has the potential to affect every person who’s ever committed a sex crime. But at the moment, if you were living on December 7, and you survived to December 8, nothing changed. Your life has not changed.

Andy 28:00
You mean January, by the way, right?

Larry 28:03
When the AGs Office said, we are adopting.

Andy 28:08
Oh, okay. Okay. I gotcha. I gotcha. Not when it goes into effect, I thought that’s what you were saying. Gotcha.

Larry 28:13
If you were alive on December 7, and you were alive on December 8, nothing change. If you’re alive on what date did you say it’s going effective?

Andy 28:20
I thought it was January 7th. That’s what I remember hearing.

Larry 28:24
That’s probably what it is. Your life will be exactly identical to the way it is today. Nothing will change. But there is the potential for an awful lot of things to change. For example, under the federal definition of a person required to register, it does include anyone who has ever been convicted. So it could be that you were convicted a long time ago, and you never had to register. In the provisions of the Adam Walsh Act, one of the things that’s in your compliance package is do you have a reach back provision that will go back and capture people who enter the justice system? They don’t go out looking for you to try to find you. But if you happen to pick up a felony level conviction, or a sexual offense of any type, whether it’s a felony or not, that state is supposed to welcome you back. Now, if you pick up a new sexual offense, that would itself welcome you back into the system. But if you picked up a felony, like a drug possession, and you had an old sex offense, the state is supposed to call you back in and say welcome in, we’d like to have you registered. So if that’s not in your state statute, it doesn’t magically become law. So, your state still has to adopt it, either through a statutory change or through a regulatory change. And I would argue that in most cases, a regulatory change of that nature defining a sexual offender would be unconstitutional, but the answer is we do not know. If the Georgia Bureau of Investigation promulgates a regulation that says that anybody who was defined as a PFR by Federal law has to register, well, is that constitutional? we’ll have to test it in court. But there is that reach back provision. But the reach back provision, it’s not as bad as people think. It’s bad, not minimizing it. So listen carefully. It’s bad. But it’s not as bad as people think. Depending on the age of the conviction, they do not have to start you out fresh from today. So, if it’s a tier one offense, and more than 15 years have elapsed since that offense, you don’t have to register even though they could adopt the reach back provision. They could say, well, 15 years have passed. So therefore, you still don’t have to register. But there has to be expertise on the ground when they’re considering that to explain to them that within the framework of the AWA, you can give credit for the time that has lapsed, that the person didn’t have a duty to register. If it were a tier two, if 25 years or more have lapsed, then you could still say, yes, you do have old conviction. You were convicted for something happened 27 years ago, it would qualify as a tier two if you did it today. But you don’t have to register. Go off, have a good life. They don’t have to do it that way. But they could do it that way. They could do it the other way. They could say you owe us 15 years as a tier one. They could say you owe us 25 years. Now, unfortunately, for those whose offenses would qualify as a tier three, if you’re alive, and you fall into that recapture group, they’re supposed to recapture you and have you register. So a true tier three, if they’re living and breathing, they would have a duty to register if the state adopted that. That’s the horrible thing, because the states are so willy nilly about putting things in tier three that don’t really need to be in tier three. So they look on their chart, they say, well, Andy looks like here on this list, the way I see it, it says you’re a tier three on our list. And even though it happened 30 years ago, and even though you’re 74 years old now, you’re gonna have to register. We’ve given you notice right now that you need to be on the list. That’s what they would do under that. So yes, the answer is nothing immediately. But yes, it could.

Are you a first-time listener of Registry Matters? Well, then make us a part of your daily routine and subscribe today. Just search for Registry Matters through your favorite podcast app. Hit the subscribe button and you’re off to the races. You can now enjoy hours of sarcasm and snark from Andy and Larry on a weekly basis. Oh, and there’s some excellent information thrown in there too. Subscribing also encourages others of you people to get on the bandwagon and become regular Registry Matters listeners. So, what are you waiting for? Subscribe to Registry Matters right now. Help us keep fighting and continue to say FYP.

Andy 33:03
Ok. If Georgia or insert any state decides to further abide by SORNA, will Georgia, or fill in whatever state, have to evaluate all registering PFRs? We know the great majority in Georgia, as I haven’t been since moving here in 2013, have not been tiered. Yes, this is true. There’s probably like 17,000 of the 25 and change that are not leveled.

Larry 33:28
Yeah. And see, that’s what makes this such a great question. Because I get to explain to you, again, leveling and tiering are not the same thing. (Andy: Right. Right.) Leveling in Georgia is actually done as an individualized risk evaluation. And that’s the way it’s done in Arkansas. That’s the way it’s done a number of states where they have the risk-based model. Under the Adam Walsh, that is not the way it’s worked. It would be a categorical approach, meaning that they would put a list of offenses together. And if you were convicted of that offense, it would be a tier one. If you’re convicted of this offense, it’d be a tier two. And if you’re convicted of these offenses, it’d be a tier three. So the only question would be for those, if you had a Georgia conviction, they would just simply be able to look at the list. Maybe the title of an offense may have changed over the intervening years. That could have happened. But there would be history that would show us what that statute as it was named and what the number was as it existed previously. So we could still figure that out. Where it would be more problematic would be if you came into Georgia with a non-Georgia conviction, trying to figure out what your tier would be. Not your level, but whether you would be tier one, tier two or tier three. So if Georgia wanted to move in that direction, then there could be some expense and some complexity into tiering the non-Georgia convictions. But for the Georgia convictions, it wouldn’t be that difficult. We’d just look at the list. It wouldn’t be all that complicated at all.

Andy 35:05
Because the way that you’re describing it, what tiers are from the federal side is if you are- I know you’re going to love this- felony jaywalking, you’re a tier one. But in Georgia, if they’re doing it risk based, they might not even have something that says this or they might have it say that it’s a level two or three just because of the name. They didn’t go evaluate you.

Larry 35:28
Yeah, correct. It’s just a categorical approach. Very simple. It means the offense itself determines how it’s tiered. A risk-based system looks at, you may have had seven offenses, and you may still be a level one, because you may have gotten sufficient treatment, you may have aged out of that type of behavior, and they may still level you as a low risk. So, it’s really not as complicated as people make it. Tiers are categories of offenses, leveling are individually assigned.

Andy 36:07
Alright, well, then let’s move along. If a PFR manages to move out of the US, will they be obligated to provide travel notification to the US when traveling from a non-US country to another non US country? I gotta think that that would be like a big flipping the two fingers at the US. If you’re living in Germany, and you’ve fled or left, why would you tell the US anything?

Larry 36:33
That is correct. Now that would be the case out of the Philippines where they extradited the guy back to Kansas. You remember the case we laughed about.

Andy 36:40
Yeah, yeah, they went and got him.

Larry 36:44
So the US would have no further jurisdiction over the person in terms of requiring them to report. Now, when you leave the US and you’re only temporarily absent, that raises new questions that we don’t know the answer to. Because sometimes, because of your immigration status, you’re not allowed to stay in a country indefinitely. You have to go back to your home. And since I have not traveled internationally, I’m woefully inadequate to explain that. But we had a guy in Maryland that used to go to Latin America, and he had to come home periodically to reconnect with the US. But if you’re permanently gone from the US, and I do not say renounce your citizenship, but if you’ve permanently moved out of the US and you’ve got permanent residence in another country, there would not be any jurisdiction unless that country says since you have a US conviction, we want you to keep staying in touch with the US. But otherwise, there’d be no jurisdiction.

Andy 37:37
I can’t see any other way to noodle around in that one, Larry, to try and tease out anything more from that. So, we’ll move along. Does Larry still think the US is the greatest country on Earth? Encourages Larry to search best country to live in, just saying. Um, and I did some searching just what we were talking about for the library conversation. I’ve looked up to see if you have said that. I didn’t capture anywhere where you have specifically said the US is the best country to live in. But I will back up. Is it, like, is it in the top tier of countries to live in? You and I would both agree that it is. This would had to have come right after we did the episode with River from Germany. The US certainly has its flaws. It’s up there as far as one of the better places to be, but is it the best? I don’t know if it’s the best.

Larry 38:28
Well, let me put it into context. What happened was that I was making snarky remarks about the Make America Great Again slogan. And I said that I was always confused by the slogan of needing to make America great again. Because prior to 2016, and folks, that means prior to Trump running for president, if anyone had ever said America wasn’t great, they would have been criticized as being unpatriotic. So therefore, magically, it was okay to say make America great and you weren’t unpatriotic starting in 2016. So, I said something to the effect that why would we need to make America great again? America is great. But I don’t think I ever said it’s the greatest country. America is a great country. Now I’ll tell you why America is a great country. America is a great country because we have a large amount of mobility in this country that other countries don’t have. And I used to do property management where I had people from dozens of nations around the world. And you have freedom of mobility. You can go to enter any state, any territory without having to get permission to enter the state. You have upward mobility in this country where you can advance. You don’t have a caste system like in India where you’re mostly relegated to where you’re born. In this country, you can rise through the ranks, and you can become something beyond what your wildest dreams were in this country, compared to many other countries. In this country, you do have due process of law. It may not be a perfect process, but it’s a due process of law. In this country, you have so many things. I mean, we have prosperity. We have lots of problems also. We have uneven healthcare, we have a huge amount of homeless people that are really suffering, and we have bad outcomes on infant mortality. I think we have one of the highest infant mortality rates, not in the whole world, because the third world, the less developed countries have higher. But in terms of the industrial countries, we have a very high infant mortality rate. We have problems. But America has opportunity. And I judge it by the passport. If you look at the passport rankings, the American passport is in the top five or six passports of the most countries it will get you admitted to. That tells you something about what the rest of the world thinks of Americans. The last thing that tells me this is a great country is people are still coming here by the 10s of 1000s. And according to the news media now, they’re coming in by the hundreds of 1000s. They come on boats, they come on rafts, they come on any way they can to get to the United State. If the United States was as bad as… I mean, if it was such a horrible country, they wouldn’t sacrifice and suffer and risk their life to get to a horrible nation. So yes, America is a great country. But I’ve never said it’s the greatest country on Earth.

Andy 41:28
I completely agree with you, Larry, on all the points that you just made. So let’s see how this one goes. So what is necessary to get relief from registering in this state and states we were convicted in? The states which have us on the registry where we live or work. So do we have to file petitions with the specific state that we’re in to get relief? Because after you’ve moved, you don’t have to worry about the state you came from. So it’s where you are now as far as getting your relief on the registry? I think that’s what that question is asking.

Larry 42:09
It did kind of meander around. I didn’t realize it was that meandering when I first read it. But when you get relief from the obligation to register, the obligation to register is different by a longshot than being listed on a website. When you’re listed on a website, that is a historical marker of what happened. So if you were to visit Florida, and you were to be listed on Florida’s website, and you leave Florida, even though under the present practices of Florida they’re not going to continue to impose any obligation on you, but that image of you and your crime and that fact that marker will have happened. That is not the same thing as registering. When you register, you have to give a whole lot of information that’s continuously updated. And you have to be subject to paying fees in many of our states. You have to be subject to limitations on where you can live, where you can work. And I just can’t see how anybody can say that it’s the same when it isn’t. So what you’re trying to get rid of is the obligation and duty to register. That’s the priority number one. And that obligation is imposed by your state. So if you petition off Georgia, and you’ve been to Florida at sometime, yes, you may be on the Florida website. And I feel bad about that. That wouldn’t be something you want coming up on a Google search. But Florida doesn’t have any more control over you at that point. You’re not registering with Florida. You have registered in Florida. Is that not clear enough of what the distinction is?

Andy 43:49
They have 50,000 people that are dead on their registry. They have 80,000, or something people on the registry and 30,000 of them are alive. And I don’t know how many, maybe it’s 50,000 that are dead or have moved out. But yes, and yeah, if you’re on the registry in any state at this point, you’re going to show up in a Google search. And if you’ve been on the registry, probably since 2010, you’ll end up in a Google search. It’s very easy to do these kinds of background checks at this point.

Larry 44:17
So now the registry as it exists in Wisconsin, where they say you continue to owe us the $100 annually, and you continue to need to file this report with us, that is closer to having to register. You’re still not subjected to any of Wisconsin’s restrictions in terms of where you can live, where you can work and all those types of things. And I think they may even have some work restrictions. I know they have residence restrictions that are all over Wisconsin, because that’s what the big controversy is about people having to go back to the jurisdiction that convicted them. And the Governor vetoed a bill that was supposed to fix that and all that stuff. But Wisconsin is the only state that I know that tries to do that and I’m dubious about how constitutional that is. But remember what we’ve established about laws about when they’re constitution and when they’re not.

Andy 45:03
They’re probably constitutional until they’re proved to not be. (Larry: Correct.) So they’re constitutional when they’re signed. ,

Larry 45:10
And when the person keeps mailing in the check for $100 and keep mailing in the form, they’re happy to take your $100 and are happy to catalog your fall form and put the data into the computer.

Andy 45:25
I’m going to skip number five, Larry. Number Number Five makes 100% no sense to me. So I’m going to skip it. Moving on to number six, taking a quote from RM 206, which says the courts in the Sixth Circuit where Tennessee is recognized because of a previous precedential decision in 2016, the people are being punished through these laws. And they can’t do that retroactively. So even though the states are recognizing the punitive effect, the federal government does not recognize that and continues to apply amendments to SORNA retroactively. I guess it’s the same as far as illicit drugs are concerned. Let me take a stab at this. If I’m not mistaken, the federal side of it doesn’t impose all the disabilities and restraints that all the states are doing with living and work restrictions. They are requiring more information to be posted within the online aspect. And how much of that is required to be publicly available? Can you disclose that part first, Larry? How much of the online register stuff is required to be public to the public?

Larry 46:31
A bulk of that. But that wasn’t what sunk Michigan’s registry. The 2006 and 2011 amendments were what sunk it and the disabilities and restraints. The government doesn’t require any restriction to be SORNA compliant with the federal recommendations. There doesn’t need to be any restrictions on where a person lives or works. So you can’t point the finger at the big old bad federal government. They’re not causing that. So therefore, all they’re doing, for better or worse, is trying to get the law that was passed by Congress in 2006 and signed by President George W. Bush- maybe should get that Bush name out there because Obama takes so much heat for signing the 2016 IML- but signed by George W. Bush. All they’re trying to do is their job of achieving substantial compliance. That is their job until that law is amended by Congress or repealed. The Department of Justice is tasked with trying to figure out a way to get as many states and territories into substantial compliance. I don’t know what is shocking about people putting their hand on the Bible and saying I’m trying to carry out the law. That was what Attorney General Barr was trying to do when he proposed this in his office. He didn’t have any clue what’s in there. It happened at a much lower level than the Attorney General. All of it gets done in the Attorney General’s name. But all that happened was when the administration handed off, this proposal had been put on hold as we talked about on a previous episode because they were putting all of Trump’s final proposals that happened in his last year presidency up for review if they had not been adopted yet. And they were shooting for environmental degradation. This was something that was placed on hold. There’s absolutely no expectation of a rational person that we’re not going to adopt this. And I explained why. Would you like to hear the explanation again? Because I explained it in a previous episode.

Andy 48:43
Sure, tell me again.

Larry 48:45
Okay, so you’ve got 435 members of the House of Representatives that are facing reelection in 2022. And you’ve got a Democratic party that’s under fire for turning loose a tidal wave of criminality on America. They’re pushing to defund the police. They’re pushing to let criminals out of jail without posting bond. They’re doing all these “horrible” things letting people out and not holding them accountable. The crime rate has been escalating in many of our major cities in 2020 2021. And therefore, the Democratic Party, for better or worse, doesn’t want to be tagged with being soft on people convicted of sexual offenses. So with all the other mortar that’s going to be coming at them in the 2022 midterm elections, they don’t want this. So they’re looking at it and saying, well, it looks pretty good to us. It complies with the law, and hopefully more states will become compliant with the federal SORNA. That’s what any Department of Justice was going to do. Had Trump been reelected… Let’s just ask you this, do you think that Trump, had he been reelected, do think his DOJ would have withdrawn the proposal after the 2020 election? Do you think they would have said well, we put this forward, but now that we’ve been reelected, guess we’ll be soft on the PFRs? Do you think they would have done that?

Andy 50:09
No, definitely not. um, alright, well then let’s move on to… I know how this is going to go. So I proactively emailed the sheriff’s officer in charge of PFR registration, stating Hello redacted, as you may have seen- which probably they didn’t see, Larry- the US Attorney General Merrick Garland has signed amendments to SORNA effective January 7 of 22. These amendments will affect anyone who has ever been convicted of a sexual offense. Is there anything that I, as a person forced to register needs to be aware of? Will any of my requirements under state or federal laws change? Regards, redacted again. And so the question is, did I open up a can or ball of worms? Or maybe acknowledge I now know the new amendments and can no longer claim I didn’t know? Oh, I like the second part of that.

Larry 51:00
I don’t think he really opened up a can of worms because, as I say, on January 8, his requirements will not change. But say, hypothetically, when the Georgia General Assembly convenes- I believe it’s in January or February- when they convene, if they were to want to adopt the substantial compliance, rather than having people come in annually, they would have to have three different reporting periods. They could have everybody be one if they did every three months because the tier threes under federal law are supposed to report quarterly. Now, you can have everybody report quarterly. And that’s at least the minimum, right? If you put everybody at quarterly, then you have met the minimum. But if Georgia being a very responsible state they are, and being frugal with the taxpayers resources, of course they would not want to waste money. So Georgia would be very diligent and they would tier everybody correctly and they would not put anybody in tier two or tier three that didn’t need to be. So that would mean less reporting, because reporting costs the sheriff’s money. Oh, I forget the sheriff’s don’t get funded by the state, they get funded by the local community. But if they were to adopt a change in the registration of Georgia, and that were to be signed by the governor, and become effective July 1, which is their typical effective date, it could change his obligations under the registration laws. That’s one way it could change. Another way it could change would be kind of like what happened in West Virginia, where they sent everybody- they being the West Virginia State Police- they sent everybody a letter and said, By the way, if you’re going to travel internationally, you are required by federal law to give us 21 days advance notice. If Georgia doesn’t already have that in their statute, if they were to either pass it by statute, or if they were to decide to try to sneak it in administratively, which is what this is encouraging. This is actually the motive to try to get administrative compliance. If the Georgia Bureau of Investigation were to direct their sheriff’s registrars- that’s the sheriff’s departments, they conduct registration in Georgia- if they were to direct them to start collecting that information, and they put it in the form and said, when you go into register and they say you need to sign this that you got to give us 21 days advance notice if you leave the country, well, then all of a sudden, you have got notice of the Federal obligation that has been around for years, and years and years and years since 2006. That has been under Adam Walsh Act as passed by Congress. But if your state hasn’t told you to do it, you don’t have anybody to leave the information with because that’s who collects it and passes that on to the marshal who passes it on to the countries around the world that you may be traveling to. So there are a number of ways that things could change. This has the potential to change a lot of things, but nothing has changed yet.

Andy 54:01
Um, a question that one of our patrons asked is if you live in a SORNA state, then they apply otherwise than your state law does. What do you think and maybe some folks may not know the difference between the two if you live in a SORNA state.

Larry 54:19
I have no idea what that means.

Andy 54:22
I’m sorry. And I copied that directly and pasted. It looks like it made sense when I pasted it there. And I’m very confused on what it says.

Larry 54:28
Well, well, most people they use that term… see, our state- most states refer to their laws as SORNA, the sex offender registration & notification Act. Or they may say call it SORA like Michigan does, or they may call it SORVTA like Tennessee does. The sex offender and violent registration, whatever it is in Tennessee. But I think he means SORNA, being federal SORNA, but read the question again.

Andy 54:51
If you live in a SORNA state, then they apply otherwise your state law does.

Larry 55:00
What he’s trying to say is if you’re living in a state that’s been deemed substantially compliant with federal SORNA, that they’ve gone out of their way to try to meet the federal guidelines, that this stuff applies. I don’t necessarily agree with that either. Because, again, Maryland is substantially compliant. And in Maryland, they will not be able to do this stuff, because their Supreme Court has said, you cannot impose any disadvantage. So therefore, despite the fact that Maryland is substantially compliant with federal SORNA, they will not be able to do these things.

Andy 55:41
Okay. And that is the end of that list of questions. And I think that is everything there. You gave me this other document. Was there anything SORNA in the questions for the night?

Larry 55:57
No, we’ve covered the SORNA questions. We just had the Tennessee case we’re going to double back on if we have time.

Andy 56:02
Yep. Yep, we do, we do. So I just want to make sure that I wasn’t missing something and putting things completely out of order. Alright, so any closing remarks on the SORNA, part three, part of the show?

Larry 56:17
Truthfully, folks, we don’t know. We do not know. Anyone who tells you they know, they do not know. They’re telling you what they think you would like to hear. States will be creative and try to do things to move towards substantial compliance. You could be hit with anything, but we don’t know what you’re gonna be hit with or when.

Andy 56:41
Do you want to speak any to maybe other organizations are almost like using this as a rallying cry of trying to drum up just excitement and get everyone’s hackles up over this when they’re- I’m not saying that there’s not anything here that needs to be worried about- but like, there’s nothing we can do about it. But they’re using this as an opportunity. It’s how I feel.

Larry 57:05
Well, it could be. I don’t know that that’s unusual. I mean, you raise money in anticipation. You may need money. There may need to be a lot of challenges filed as this thing unfolds. But right now, any challenge will be premature until we see what has happened and what is going to be done. And it would be like the International Megan’s Law challenges they were premature. Right now. Your life will not change on January 8. When your life begins to change, we’ll have to take a look at what those changes are. You can’t file litigation in anticipation of something that might happen.

Andy 57:42
Alright. Okay, so we’ll move over and we’re going to double back on some things that we’ve talked about recently. And it says, you two, you people get on my nerves. All your sarcasm, all the time. I’m speaking about the case from the Kansas Supreme Court. You went out of your way to make Mr. Shaffer’s lawyer look bad. I’m sure you could have played something from the 45-minute audio where she was compelling and made coherent arguments. Instead, you deliberately make her look bad. Which side are you on? What was Mr. Schaffer supposed to do? Just bend over and take it?

Larry 58:20
Who the heck wrote that?

Andy 58:21
I don’t know, man. That’s harsh.

Larry 58:26
There’s certainly some anger in this one for sure. We did not go out of our way to make the attorney look bad. We simply played clips of the justices on the Kansas Supreme Court interacting with her. Those were their comments, not ours. I’m not sure that which side we’re on really deserves a dignified response, because I think I’ll let my many years of work on this issue speaks for itself. But in terms of what was Shaffer supposed to do, that’s a bit more complicated, but I’ll do my best. First, he should have challenged Kansas from the very beginning well before he got arrested for failure to update his registration. Remember, they sent him a letter several years ago. And he acknowledge that was one of his selling points that I made in his plea negotiations that he had like seven years of continuous compliance. So for seven years, he was riding the lakes of Alabama and around the country, he should have filed- if he truly believed that he was not being constitutionally required to register- he should have filed a petition for declaratory judgment. And by using that vehicle, rather than trying to challenge within a criminal case, he would have been able to develop an evidentiary record showing how punitive Kansas’ registration actually is, and how it’s become. Second, he should not have done a plea deal on stipulated facts. The stipulation he agreed to did not address the punitive aspects of the Kansas registration regime. And finally, he would do well to listen to those who tried to help him, like me, because the entire matter played out pretty much like I told him it would.

Andy 1:00:04
Well, there’s not much else that can be done then. Let’s drive on over to the Tennessee case that we covered about last week. And this was written and it says, The plaintiffs in this case are individuals who have been placed on that registry and made subject to those requirements despite the fact that when they committed their offenses, the registration scheme did not exist. Under the law of the Sixth Circuit, the policy is illegal. Specifically, the Sixth Circuit published a binding opinion in Does numbers one through five versus Snyder 834 Federal- I’m not reading all the rest of it. You can find it in the show notes. (Does #1-5 v. Snyder, 834 F.3d 696 (6th Cir. 2016) held that Michigan’s highly similar scheme, when applied to individuals whose crimes preceded the schemes adoption, violated the constitutional prohibition on ex post facto criminal punishments. Nothing about the Sixth Circuit’s opinion in Snyder suggested that the states other than Michigan have any greater right to pursue such a policy than Michigan did. Larry, this sounds to me like the judge has telegraphed that Tennessee will not be allowed to continue registering people whose offense predates registration.

Larry 1:01:15
Does it sound that way to you? Doesn’t sound that way to me. The court also said, if you read on, although Snyder did not directly involve the state of Tennessee, the federal district courts of the state have repeatedly concluded the same analysis applies (or, as the procedural posture in each given case called for, likely or plausibly applies) to Tennessee’s own, very similar scheme and policies. But that does not mean that Tennessee could not create a dissimilar registry scheme. What’s making this compelling is because they’re so similar in what Tennessee and Michigan does. What if you had a Vermont scheme in Tennessee? Would this same analysis apply? I don’t think so.

Andy 1:01:59
I don’t think anybody in Tennessee would be complaining about it either.

Larry 1:02:02
The ones on the registry wouldn’t. Tennessee people would be.

Andy 1:02:07
Right, they would want more. I noted in page three, it reads the courts that have applied Snyder in individual Tennessee cases have frequently granted injunctive relief to the plaintiffs in those cases that allowed those plaintiffs to be spared from the registry’s requirements. Nevertheless, Tennessee officials have continued to impose the state’s repeatedly held-to-be-unlawful policy on others. Similarly situated individuals have not yet sought and received such a judicial relief. State officials, of course, are under no formal obligation to agree with the Sixth Circuit order to act consistently with the court’s ruling when not specifically ordered to do so. This confuses me, Larry. Is Does versus Snyder binding or is it not?

Larry 1:02:49
Well, therein lies the issue. The Does v. Snyder decision does not in and of itself magically make Tennessee’s law change. For that to happen, people have to file legal challenges citing this precedential case, which is binding in the territory of Tennessee. But if you keep reading, the court said, this court, however, is bound to honor the precedence of the duly empowered federal appellate court with jurisdiction over this district. And the court continues to find the grounds for distinguishing Tennessee’s scheme from Michigan’s to be unpersuasive, at best, for reasons this court and others have already set forth at length. So rather than reiterating every detail of the same analysis over and over, the court will merely refer to the numerous early opinions on the state’s policy of imposing ex post facto criminal punishments on some sexual offenders is unconstitutional under the currently applicable case law. So again, it is binding when someone takes them to court. This judge said, Yes, I have to follow this. She didn’t say that she didn’t agree with it. But she says I have to follow it. It is binding. But I hate to break it to you. The people that manage the registry, they’re not sitting around looking for a way to terminate the registry or to peel it back. They’re waiting for you to force their hand. They’re waiting to be forced to do this. So they can go to the public… like that article we read a couple of episodes back where they say we have no choice but to do this. So when Does versus Snyder came out, there was no one setting in the Tennessee law enforcement apparatus, saying, hmmm I guess our registry looks kind of similar to this thing up in Michigan. We need to take a look at this. I think I’ll put forth a proposal to go ahead and peel ours back before the courts tell us we got to do it. I mean, that just is not realistic, folks.

Andy 1:04:47
They’re going to wait till someone challenges it. (Larry: Correct.) So I see the reason the injunction was granted to only these eight plaintiffs is that they were the only ones before the court? Is that what I understand to be right?

Larry 1:05:00
Yes, that is correct. The judge says the task here is merely to apply the same frequently reiterate principle to the request currently under consideration. Namely, Does one through nine. And they asked the court to enter preliminary injunction forbidding Tennessee officials from applying the registry statutes to them. And that’s all she could do. She could not say, I don’t really think this ought to be happening to anybody else. So I’m going to issue this broad sweeping order to everybody else. Those cases had not been litigated. The state had not been given a chance to argue why they were different. And this was not a class action. This was a consolidated group of challenges by nine different litigants that were consolidated for appellate review. I mean, for judicial review, not appellate review, but these were consolidated into one.

Andy 1:05:52
And then finally says,, it is hereby ordered that the defendant shall not enforce any provision of the Tennessee sexual offender and violent sexual offender registration, verification and monitoring act against Does one through Does eight, or require those plaintiffs to comply with any portion of the act. Each defendant shall to the extent within his power takes such necessary steps to ensure that Does one through eight are removed from Tennessee’s PFR registry. So does this mean that they can never be forced to register again?

Larry 1:06:23
Unfortunately, it does not. We need to understand that this is an injunction against enforcement of Tennessee’s current version of registration. Again, it does not preclude the state from creating a new version with no disabilities or restraints. Just look at Michigan, just look at Pennsylvania. If they were to do that, they could go back to the judge and request that the injunction be lifted, citing the distinguishing factors of that new scheme versus the previously held-to-be-unconstitutional scheme. So no, it does not at all.

Andy 1:06:57
Um, okay. Anything else on that stuff now that you had a good chance to analyze it? We’re starting to run short on time. But any final thoughts before we kick out of that?

Larry 1:07:07
I think we covered it very well. The body of case law is definitely gaining momentum. That Sixth Circuit decision was huge. And every state in that circuit that has decided to impose all these disabilities and restraints, we’re gonna be coming for you. We’re not going to stop because you can’t punish people with a civil regulatory scheme. You’re gonna to have to get over it.

Andy 1:07:33
Very well. Um, I think that is all Larry. So we are going to talk about our speaker from last week. You know, we did a speaker last week that was somewhat offensive, I suppose. But last week, I played this individual.

Alabama Governor George Corley Wallace 1:07:49
Segregation now. Segregation tomorrow. And segregation forever.

Andy 1:07:59
We had a handful of people write in. We had somebody write in, I think it was even before the show was over, of one of the patrons listening to it live who is not here tonight. So shame on you. And that was from Brandon, who was that Larry?

Larry 1:08:12
Was former Alabama Governor George Corley Wallace.

Andy 1:08:17
Um, you want to tell me the context around what he was saying there?

Larry 1:08:23
Well, I think he was… I don’t remember exactly when he did it. I was only 112 at that time, so I don’t remember all the details. You expect me to have a memory from 100 plus years old when something happened?

Andy 1:08:36
You remember some of the most obscure crap, Larry that yes, I would expect you to remember that. I assume with what he’s talking about is some civil rights march or something like that. And this is an individual saying that we are going to keep things separated for as long as we can.

Larry 1:08:51
Yeah, he was pushing back on the integration of the University of Alabama among other things. And he believed in segregation. He ultimately stood in the door of the university to prevent black students from being enrolled. I mean, he was… but to Wallace’s credit, I think he actually repented and he asked for forgiveness. And I think that was genuine. And so now that he’s passed on… that’s an unfortunate chapter of Alabama history. But I think the man actually did change before he passed.

Andy 1:09:21
I mean, would now be a good time to play that other clip from the bigots and admirers?

Larry 1:09:26
No, I think so. We’re already getting enough heat for that.

Andy 1:09:31
Lester Maddox is that one. All right. So then this one, thank you, Al. Al sent in a whole bunch of suggestions. So we’ll be using those for a little while. But if you have any suggestions for Who’s that Speaker? then you can send them into registrymatterscast@gmail.com. And this was Al’s suggestion.

Who’s that Speaker?
I served with Jack Kennedy. I knew Jack Kennedy. Jack Kennedy was a friend of mine. Senator, you’re no Jack Kennedy.

Andy 1:09:59
That’s a neat quote too. I’ve heard that used elsewhere. So if you think you know who that is, and if you think you don’t know who that is, and you want to send something kind of snarky and fun, feel free to send that in. I may read that on the air, but send that into registrymatterscast@gmail.com and title it something like who’s that speaker? WTS. That way I can find them more easily. Anything before we close up and thank the new patrons, Larry?

Larry 1:10:25
I think we’ve done it. We’re over.

Andy 1:10:28
We are. So we had a new signup this week. Ray signed up using the annual subscription and discount. Thank you very much Ray. And since we are running short on time, I will just close everything out and you can find all of the show notes and everything you need to links to go everywhere at registrymatters.co. You can leave voicemail at (747)227-4477. Again, email registrymatters cast@gmail.com. And thank you so very much to patrons who will be receiving this first thing in the morning. And that is patreon.com/registrymatters. Larry, thank you very much. You are always the Master Blaster of all things knowledgeable, and I really appreciate the great way that you explain things.

MacArthur Clip 1:11:09
I agree with you entirely. That is why I am here.

Andy 1:11:11
Thank you again, sir. I really appreciate it.

Larry 1:11:16
Haha. Oh, good night.

You’ve been listening to FYP.

Modifications to AWA (SORNA) Regulations Adopted

RM206: Modifications to AWA (SORNA) Regulations Adopted

On Episode 206 of Registry Matters, we’re going to be talking about the now final modifications to the Adam Walsh Act regulations that became effective on December 8. We’ve got some listener submissions. And we’re going to be going back to a couple of cases we talked about on episode 205 of Registry Matters.

[2:05] Notifications to LEO of visiting a state

[6:24] Registry Matters Library

[10:39] Fighting changes to registry requirements after the fact

[19:36] Modifications to SORNA / AWA have been adopted

[57:42] Grievance with our treatment of the attorney in the recent Kansas Supreme Court hearing

[1:00:04] Tennessee and Does v Snyder


Leave voicemail: 747-227-4477
Email us: registrymatterscast@gmail.com
Support us on Patreon: https://www.patreon.com/registrymatters
Follow us on Twitter: https://twitter.com/RegistryMatters
Join the Discord server: https://discord.gg/6FnxwAQm57
Want to support Registry Matters with some swag: https://shop.spreadshirt.com/registry-matters
Apple Podcasts: https://itunes.apple.com/us/podcast/registry-matters/id1305039280
Google Play Music: https://play.google.com/music/listen?u=0#/ps/Icuxbpzvyti7wtoredipbtiojqy
RSS: https://www.registrymatters.co/feed/podcast/
Spotify: https://open.spotify.com/show/3d75P7Kc37n2l79m89F9KI
YouTube: https://www.youtube.com/registrymatters

Transcript of RM205: What Are We Litigating; Confused Litigators; Highway Interdiction

Listen to RM205: What Are We Litigating; Confused Litigators; Highway Interdiction

Registry Matters is an independent production. The opinions and ideas here are that of the hosts and do not reflect the opinions of any other organization. If you have problems with these thoughts, fyp.

Andy 00:17
Recording live from FYP studios West and in a tupik the northeast, transmitted across the internet. This is episode 205 of Registry Matters. Good evening, Larry. We have a mountain of stuff to cover tonight. How are you?

Larry 00:33
Doing awesome. Now, where are you recording in the Northeast? What did you say you’re recording in?

Andy 00:37
It’s a tupik And you know, I probably have already closed the window. I looked up alternate words, words for igloo. And that’s what I came up with. It’s a hut made out of animal skins. I’m so far north, I need a special kind of apparatus.

Larry 00:53
I see. Okay.

Andy 00:56
Tell me sir. I mean, we’re just gonna dive right in. Because there’s no time for us to meander about. We have too much stuff. We need like three hours to record the show tonight. We have 60 minutes to do it. What are we doing?

Larry 01:07
We’re doing some cases. One just recently came to our attention this morning out of Tennessee, the Middle District of Tennessee, US District Court. We’re doing a case from the Kansas Supreme Court. We’re doing a case about money seizure, interstate highway interdiction programs. And we have some questions that have made their way to us from our listening audience.

Andy 01:32
Let us dive right in. I wanted to cover this because in episode – what was it? – 202, we had Brandon Thomas on, but there was a person that asked us a question that night about having internet access and driving a truck. Do you remember this, Larry? (Larry: I do indeed.) So way back in our history, one almost like one of our first patrons was a guy named Mike and he was a truck driver. And he actually ended up coming down to my area. And we hung out for a few days when his truck was being repaired in my area. And he wrote back a really long detailed answer of like, no, if you’re a truck driver, you’re really gonna need some internet access. And so here’s what he wrote. A note about a recent episode where a person from Florida wanting to drive a truck: He will most likely need Internet access. While the logs are technically connected to the internet, it’s more in more depth than that. How is he going to communicate with dispatch? Sure, he can use a flip phone. But that’s not realistic. You need a smartphone to do your job. You need the camera in case of an accident, or any other incident where the dispatcher may need pictures. You may need to be able to send documents you get from the shippers or receivers. Personally, I use CamScanner. An app on the phone. And I can personally attest to that one. I love that app. Then what about the truck GPS? They are all connected to the internet for at least updating software, not to mention live traffic and even weather. That does seem to be really important Larry, if you are driving a truck that you would not want to just get stuck in some traffic jam for hours. And with a smartphone, you can pay for some things with the company money instead of instead of yours by using their account. I did this for weighing the truck to keep it legal, about $20 a shot. This can also be done for fuel if you need to fuel at a truck stop. You will need to send receipts back to your company to if you pay out of your own money for services. If you can send them and email them immediately, there’s less risk of losing them. I could go on and on for a lot of other times when a smartphone would be needed. But trust me, it will be a requirement. Another thing is that this person could possibly consent to location sharing so his handlers know exactly where he is if he wanted to go that route. I know I wouldn’t. But it may be a possibility if it is needed for the job. Finally, since you are driving a vehicle that is over 70 feet long, just using a book of maps is not enough. I could not count the times I used Google Maps satellite view to check out locations. This way I knew where I was going to be better prepared. Super thorough answer. Thank you, Mike. Really appreciate it. You met Mike at the conference. That’s that guy I’m referring to.

Larry 03:56
I did indeed. And we had a discussion on various topics. Smart guy, I don’t exactly agree with him on everything, but he’s a smart guy.

Andy 04:06
I can’t imagine what you would disagree with this particular individual about not at all.

Andy 04:13
Uh, I think since we’ve covered that, I guess we’re gonna we’re gonna go over to this Kansas case, Dennis Shaffer. And I think you were somewhat involved in it, weren’t you?

Larry 04:27
I was and I’m constructing part of this interview from emails that that had been sent to me by Mr. Shaffer. And he took he took an Alford plea on a charge and, and venue was changed from Clark County, Missouri to Kirksville, Missouri. And the charge was sex abuse in the first degree, and he was given a suspended imposition of sentence and he was told that he would not have to register on the PFR registry or take PFR classes. He was given five years’ probation which he violated. And he ended up serving prison time and he was released in April 2000 and moved to Kansas, to Olathe, Kansas, where he was initially not required to register in Kansas.

Andy 05:15
But as I understand it, he got a letter from the Missouri State Highway Patrol saying that he had to register in Kansas in 2008 after the retroactive registration law went into effect, and also stated he would have to register for a lifetime. He then received a letter from the Kansas Bureau of Investigation saying that if he did not comply by registering as a PFR, he would be arrested. We have that letter here at FYP. Did he comply with the Kansas law as directed Larry?

Larry 05:43
He did indeed. And he was complying until April of 2017 when he forgot to make his required quarterly appearance. He said he was in the process of moving to Alabama. So he had already registered in Alabama. And while he was in Alabama on vacation, he was driving his boat, and the water patrol pulled him over. The Alabama authorities discovered that Kansas had a warrant out for his arrest. He was extradited back to Kansas.

Andy 06:12
He was offered a plea in Johnson County, Kansas. And as I understand it, Mr. Shaffer believed that he would not have to register in Kansas. His position was at the application of KORA, I guess that would be Kansas Offender Registry act, to him violated the Ex Post Facto Clause. Your law office worked with him in some capacity?

Larry 06:37
We did. And they had offered him a plea with a provision that he could appeal the question of his registration.

Andy 06:47
Could he find someone that’s licensed in Kansas to help represent him?

Larry 06:52
He reached out because of our advocacy. He found out about NARSOL’s advocacy. He was reaching out to advocacy organizations, and he connected through that process. And we weren’t really able to recommend anything to him, since no one was licensed in my office, but we did talk to him. And we consulted with him as a consultant rather than a lawyer. And you’re actually welcome to read a letter that we actually suggested that he send to his attorney in Kansas in terms of our concerns regarding the plea.

Andy 07:33
And you want me to read just the plea offer part or which part of this would you like me to read?

Larry 07:38
It depends on how energetic you are on reading, but yes, all right. So,

Andy 07:44
I will start at plea offer. It says: Plea offer. At this time, I am not inclined to accept the current offering. I will explain my reasons. (1) Affidavit. The Affidavit on its face clearly demonstrates that I’ve been faithfully complying with the Kansas PFR registration since January of 2010. Second, during the entire eight years, I have not moved, which means the public at large was not in danger because of my forgetting to update my registration. The only thing the update would have accomplished would be it would have permitted law enforcement to see me in person. And I would have confirmed that I’m still at the same residence I’ve been for the past eight years. Third, the plea offer appears to be intensive supervision, which is unacceptable. Intensive supervision, which includes PFR treatment, polygraphs, expensive counseling, may be appropriate for a person just entering the justice system for recent PFR type crime. However, my conviction occurred nearly 25 years ago. And these probation requirements are not appropriate for me, nor am I able to comply with them. I lack the financial resources… Larry, hang on. How was he lacking the financial resources if he was like tooling around in a boat in Florida?

Larry 08:55
Well, that was the representation he made, but go ahead.

Andy 08:59
Okay. I lack the financial resources and my physical disability does not allow me to comply. If I were to accept this plea offer, the likely result is a free ticket to prison. Wow. Like that’s the opposite of the monopoly thing, Larry with the get out of jail free card. The counteroffer, I will consider an offer that guarantees a probated sentence without supervision or one that stays serving of the sentence until the appeal has been decided. Administrative probation is clearly an option on the form which can be done if the prosecutor chooses to be reasonable. And if that is not acceptable, the prosecutor clearly can stipulate that the surface of the sentence shall be stayed until the appeal is complete. Your selling points for my counteroffer are PFR registration is a civil regulatory scheme, which means I have not committed a new PFR type offense that merits intensive probation supervision. Number two, the violation as alleged in the officer statement makes it clear that this is a technical failure, oversight on my part, rather than willful noncompliance. Third, this outcome will spare the state of further effort dealing with an appeal and assure them a conviction. And then finally, appeal duty to register. You’ve indicated that the prosecutor will permit me to appeal. That concession is of little benefit if I lack the financial resources to undertake the appeal. Will you in the state add a stipulation that I will be provided representation to handle the appeal as long as I remain indigent? And will you stipulate that your office will handle the entire regardless of personal personnel changes? I’m sorry that this letter did not reach you sooner. However, I did not receive your communication regarding the offer until yesterday. Sincerely, Dennis Schaffer. So now that I’ve read the letter, though, it appears that your office was doing all it could to help them through the process. We haven’t played that clip yet. So we need to get there. Do you want to play that clip real quick?

Larry 10:53
We were doing all we could to help him through the process. Which clip are we gonna play? We got several of them.

Andy 11:03
Yes. Should this be the first one?

Larry 11:05
Let’s hear what you got queued up there.

Andy 11:09
All right.

State Supreme Court Justice Biles 11:10
If Missouri had no registration requirement right now, would he have been required to register in Kansas?

Attorney Jennifer Roth 11:24
I think that- I think that maybe not. Let me go back to something you said. My brain also is tangled in this. And it is somewhat complicated by the fact that we don’t know under what ground the state even charged him that he has a duty to register. We don’t- there’s so much information that we didn’t have in this prosecution. And so that’s why…

Andy 11:52
Larry, it sounds a lot to me that- we talk about this regularly- of not all attorneys are created equal. And not all of them are experienced in the various areas that you really need an attorney that knows how this stuff works before you have one tries to represent you in something as important as not going to jail.

Larry 12:11
And we need to set this clip up. This is coming from the Kansas Supreme Court’s oral arguments that were heard in March. This was his appellate attorney that was handling that appeal for him. So they’re arguing before the Kansas Supreme Court right now. And that sounds really reassuring to start with, doesn’t it? When she says she doesn’t know. I love it

Andy 12:36
Completely, completely. Um, it seems as though the attorney wanted to do that. And she was trying to introduce new facts on the appeal. She asked for a remand to establish the facts. Is this what you always cringe about whether it’s a civil case or criminal case?

Larry 12:52
It is indeed. The facts in this case were agreed upon by the parties. And the Supreme Court could not altered those agreed upon facts. I think that’s in our next clip, maybe, of what could be better.

Andy 13:05
So can I just try to make a comparison? This is what you rail about with summary judgments too that the parties have agreed to- even if there are erroneous facts- they have agreed that these are true. And they don’t get to relitigate him. Do I have that close?

Larry 13:21
You have that absolutely correct. They did a stipulation, which I don’t think it was provided to me. I think it would probably get deeper in the woods that most of our audience could absorb. But the facts were stipulated to, in terms of his registration obligations. They did not stipulate to any facts related to the harm or anything like that. They just stipulated to the fact that what his conviction was out of Missouri, and how long he’d been in Kansas and basic facts. But yep, that’s exactly valid comparison.

Andy 13:54
All right, and I will stop the rotator and then we’ll try clip number two.

Atty. Jennifer Roth 14:00
But I think, he I mean, he has standing because they’ve, they’ve charged him with this. We don’t know the grounds for it. It’s I’m not exactly… nobody, you know, they entered a stipulation. Um, and so we’re not clear on how all these things would interplay. Um, and so, I mean, the fact is, he was charged, he was convicted, he made this argument. The record is what we have, and so I believe he should be able to litigate this.

Justice Biles 14:36
I think the question is, what are we litigating?

Andy 14:41
So, what are we litigating Larry?

Larry 14:44
And therein lies the problem. When you have a Supreme Court justice looking at you, and theoretically they, or their law clerks or both have read the brief, and they don’t know what’s being litigated, that does not bode well. They were litigating whether or not the Ex Post Facto Clause would prohibit Kansas from registering him. And he cited in his email to me about a case that was not binding in that jurisdiction. But that was his belief was that he had an argument, but he didn’t really have an argument. And the court couldn’t understand the argument. Because it wasn’t, I mean, when you don’t have anything but that little stipulation sheet, and once we get further into their interview, and the next question, we’ll see what had been cited to them as their justification – their legal argument – and most of the legal argument was no longer valid case law. So go ahead. But when the justices tell you they don’t know what’s been litigated, you should not look for and expect a favorable outcome.

Andy 15:52
Did they agree to hear it? It doesn’t just get landed on their lap and they’re mandated to hear it. They agreed to hear it correct?

Larry 16:04
They agreed to hear it. But once they agreed to hear it, they didn’t understand what they were hearing. The parties have to brief the parties. They have to brief them thoroughly and tell them what they are arguing. And they didn’t have anything to work with. There was no trial below. I mean, he chose to plead out so he wouldn’t go to prison. And the attorney, the public defender, the trial level attorney, did not really know how to set this case up for appeal. He was making a deal with the prosecutor to get the case off his plate and keep the guy out of prison. And in his mind, he had done a wonderful job. You can appeal the question of whether you should register, I’ve got you a probated sentence. You can make your argument before the Supreme Court- well, before the appellate court, he didn’t know that the Supreme Court would accept it. But he first had to make the argument to the trial judge. And of course, the trial judge, where he did the plea, denied it. But that that lawyer did not have a clue how to set this case up for appellate review. Cases have to be properly set up for appellate review. If you’re intending on going that route, you need to actually know what you’re doing.

Andy 17:25
So the court stated the remaining two cases cited by Shaffer in his petition for review do not help his cause. In Snyder, one of the effects of the Michigan statute that the Sixth Circuit graphically described with the aid of a map of the extensive area of Grand Rapids, Michigan, that the law rendered off limits to PFRs is that Michigan’s law is so restricted where PFRs may live work and loiter that many of the plaintiffs have had trouble finding a home in which they can legally live find a job where they can legally work. In Rausch, the court relied on specific and detailed facts presented to the trial court by plaintiff in his as applied challenge to retroactive application of the lifetime registration requirement in Tennessee. Were such facts presented in this case?

Larry 18:11
They absolutely were not. And this is a prime example of what I was just speaking about, of the attorney that was resolving the case had no idea how to set up for appeal. But I totally forgot, I was gonna mention that that the four cases he cited in his petition for review don’t even stand for the proposition that retroactive PFR registrations are punitive and violate the Ex Post Facto Clause. He cited Millard versus Rankin out of the 10th circuit, which later became Millard vs. Camper. Your remember, Judge Matsch was overturned by the 10th circuit on that decision. Okay, so that one was no longer was relevant. He cited the Pennsylvania Supreme Court in Muniz, which held that retroactive application of PFR requirements violated Ex Post Facto Clause. Unfortunately, that case is no longer controlling because the Pennsylvania Supreme Court later held after the legislature amended the statute, in the end up Commonwealth vs Lacombe case that it was not violative of their constitution. And then the cases that you’ve just talked about. When he gets to the Supreme Court, he has nothing.

Andy 19:23
That sounds like that’s bad.

Larry 19:25
They had their own binding precedent where they had decided that the Kansas offender registry was not inflicting punishment, it didn’t have all those prohibitions that were cited in the cases we just talked about. So he just had virtually no chance of winning this case.

Andy 19:45
I’m picturing Larry if you’ve ever watched like Bugs Bunny cartoons, Roadrunner specifically, there’s wily coyote and he always ends up going off a cliff. And then there’s no ground underneath him and he like holds up a sign and says, Oh, no, and then just falls. That sounds like what he’s going into if he ends up at The Supreme Court.

Larry 20:01
Don’t we have one more clip here? I think. (Andy: We do. We do.) This is the best of all.

Andy 20:09
Okay, here’s clip number three.

Andy 20:10
And now I’ve gone off and forgotten exactly what your question was. But I see your point about, do we need to compare this? And I guess I just go back to the fact of Johnson County charged this man, they prosecuted him, they entered into the stipulation of facts. He’s arguing that this applies to him ex post facto. And it might be that there needs to be some sort of a remand. I haven’t thought that through. But maybe there’s some sort of a remand to decide to what extent does this cover him? And what are all the issues involved?

Justice Biles 20:45
And the problem I have with that, is that this issue was raised before the District Court. And your side has the obligation to make the case. And so it was presented, if there are holes in the record, I think we get back to that, why would we remand to give you a chance to do a do over to fill in these holes? Seems like they should have been filled before.

Andy 21:21
Just what you talk about Larry, of filling holes and being prepared when you go to court?

Larry 21:26
That’s correct. When you’re inevitably going to be in an appellate posture, you cannot rely on anything other than facts that you’ve established below. And if those facts are lacking, or if they are not correct, the appellate court is stuck with those facts. They’re not going to forgive you and say, Oh, well, you should have had a better lawyer. I mean, there is a possibility that he could assert ineffective assistance of counsel on this plea. He would have to look at Kansas law in terms of post-conviction proceedings, if he has that option. But that wasn’t an issue before the court. That wasn’t raised in this. This was merely a stipulated factual determination of the law if it could be applied retroactively to him with his Missouri conviction. And the answer is unequivocally yes. And this was painful. This was 45 minutes of oral argument. I could not watch it all. I have watched oral arguments. I’ve sat through courts and oral arguments. And this, I mean, I hate to say something negative about someone in the profession, but she was either having a bad day, or she shouldn’t have been there to start with.

Andy 22:47
Is there a danger though if it does go to the Supreme Court? What happens then, if it does?

Larry 22:52
Well, it would be unlikely in my opinion, that there would be a cert petition. I would always take the optimistic view that an attorney looking at this would say there’s nothing here on this case. But if he were to gather the resources, and put together a cert petition, and if four justices on the US Supreme Court granted it, yes, there would be a risk. Because part of what he was trying to argue which they didn’t really seem to consider, because it hadn’t been raised properly below, was that there might have been an independent federal duty to register. If this case were to get to the Supreme Court, and they’re inclined to want to establish that independent Federal duty, which already the Willmann case out of Michigan has found that. The Sixth Circuit has already said that there was an independent duty. That would be the risk. But I think this is a real long shot that this case ends up being decided by the US Supreme Court. I think it’s done.

Andy 23:53
Well, that’s probably a good thing, because this doesn’t sound like a thing that we would want to have go up there and establish possibly more bad case law for us.

Larry 24:02
The case law already existed in Kansas. So it didn’t really hurt Kansas. They already had this case law, but it would have that potential if the Supreme Court did. It has the potential to be harmful, but I think the odds are very low. And see, I occasionally give you good news. You guys always say that I’m negative. On this one, I don’t think there’s a cert petition in the filing.

Andy 24:25
Very good, sir. I think that’ll close this one out for us.

Larry 24:30
Where are we going next?

Are you a first-time listener of Registry Matters? Well, then make us a part of your daily routine and subscribe today. Just search for Registry Matters through your favorite podcast app. Hit the subscribe button and you’re off to the races. You can now enjoy hours of sarcasm and snark from Andy and Larry on a weekly basis. Oh, and there’s some excellent information thrown in there too. Subscribing also encourages others of you people to get on the bandwagon and become regular Registry Matters listeners. So, what are you waiting for? Subscribe to Registry Matters right now. Help us keep fighting and continue to say FYP.

Andy 25:25
We are going to go cover this Tennessee thing that like showed up on the radar but apparently has our whole Discord server abuzz. And the title that I got from a US news articles is federal judge rules for Tennessee PFRs rebukes the state. A federal judge has harsh words for Tennessee officials who continue to enforce retroactive punishment against PFRs. Some of whom committed their offenses decades before the state’s PFR law even took effect. Um, so you put this in here though from Tennessee and it’s a decision from a federal judge ordering eight men removed from the PFR registry. Well, we do have the actual decision now. It says US District Judge Aleta Trauger ordered the removal of eight men from the PFR registry to end their sentences retroactively. Trauger went on to say the Tennessee’s official Tennessee officials continue to disregard the guarantees of the Constitution, Trauger wrote in her ruling Friday. The state’s federal district courts have repeatedly concluded that the same analysis applies to Tennessee’s own very similar arrangement and policies. Tennessee officials have continued to impose the state’s repeatedly deemed illegal policies on other similar individuals, despite statements. She said, What is going on here?

Larry 26:52
Well, it’s simple. It actually is in the AP story. According to the Associated Press, governments are prohibited from increasing penalties for crimes previously committed under the Ex Post Facto Clause of the United States Constitution. And according to judge Trauger, the violation does not depend on plaintiffs hardships, but rather on the punitive nature of the law. So that’s what’s going on here. The courts in the Sixth Circuit where Tennessee is are recognizing because of a previous precedential decision in 2016, that people are being punished through these laws. And they can’t do that retroactively.

Andy 27:35
And it’s not the mere act of the registering part. It’s all the other things that -I really like the expression- disabilities and restraints. That’s really the problem. It’s not just going and visiting your popo. It’s like getting booked and work in living restrictions and all that other stuff. That’s where it becomes a problem.

Larry 27:51
That is correct. Everybody wants to believe that the mere act of registration is unconstitutional. The mere act of registration is not unconstitutional. But when you inflict punishment and disabilities and restraints, and alter people’s lives, it’s a whole different type of registry that can no longer be considered a registry. It’s a form of probation supervision, if not even more.

Andy 28:12
Right. I also noticed that Judge Trauger cited on in a in an April ruling in which another federal judge in the Middle District of Tennessee ruled that the two men should be removed from the PFR registry. The judge ruled that enforcement of laws made after the crimes committed were unconstitutional. In addition, Judge Trauger mentioned that in the 2016, the 6th US Circuit Court of Appeals ruled against the retroactive implementation of a Michigan PFR law. Is this what you mean when you say we need to build a body of case law?

Larry 28:44
Yes, indeed, it is. The body of case law in the Sixth Circuit has been steadily building since the precedential decision that was Does vs. Snyder was released back in 2016. And we’re gonna see it continue to build because, until that is no longer precedential and controlling in the sixth circuit, everyone who has a punitive registry- now listen carefully, everyone who has a punitive registry- has the potential to have a viable legal challenge. If you have a Vermont-type registry, and you’re in the Sixth Circuit, you’re probably not going to fare very well because Vermont doesn’t impose these types of restrictions and restraints on how one lives.

Andy 29:24
Now, Larry, I’ve done my own research on this judge and you know all about people doing their own research these days. She’s a liberal do gooder appointed by Bill Clinton. Let me go through some of her notable decisions. On March 14, of 2014 Judge Trauger issued a preliminary injunction ordering Tennessee to recognize the marriages of three same sex couples consummated out of state. This was well in=advance of the Supreme Court’s decision. She said at this point, all signs indicate in the eyes of the United States Constitution, the plaintiffs marriages will be placed on an equal footing with those of heterosexual couples, and that prescriptions against same sex marriage will soon become a footnote in the annals of American history. Then, on March 23 2017, Judge Trauger issued a preliminary injunction prohibiting Rutherford County from subjecting children to solitary confinement while their cases proceed. On July 3 2018, Judge Trauger struck down a law that would allow Tennessee officials to revoke driver’s licenses of defendants who could not pay their court costs. She sounds very liberal pointy headed Larry. In September of 2019, Judge Trauger warned that a Tennessee law that restricted voter registration had chilling effects on the individuals and organizations that were trying to register new voters in Tennessee. Then judge Trauger struck down the law ruling that there was no basis that a law would benefit Tennesseans. The most recent activism, judge based activism, Larry, occurred on July 9, 2021, when Judge Trauger issued a preliminary injunction blocking a Tennessee law that would require businesses and other entities that allow transgender people to use the public restroom that matches their gender to post a government prescribed warning sign. The injunction blocks enforcement of the law while the lawsuit is pending on the grounds that implementation will cause immediate and irreparable harm. This sure seems to me to be an activist judge that is legislating from the bench, Larry. She’s legislating from the bench, does it not?

Larry 31:25
Well, yes, that is what she’s doing. I mean, she’s legislating from the bench, and particular on the Rutherford County, which one were you talking about where they can’t collect their money?

Andy 31:40
For the driver’s license. Yeah. Go on.

Larry 31:44
She just arbitrarily rewrote the law with total disdain for the people in Tennessee. And she decided that she knew what was best. And this is judicial activism. But let’s talk a little bit about judicial activism. It is indeed that. Unfortunately, there are times when legislating from the bench is the only mechanism to effectuate the constitutional protections guaranteed to all Americans. Do you actually think we would have the Miranda warnings that are given today and have been for decades that are intended to protect us from self-incrimination were it not for the liberal Earl Warren Supreme Court? Do you think that the police would have raised issues and developed these directives of their own volition? Do you think that legislative bodies would have enacted such statutes requiring those warnings to be given? And then, for example, in Gideon versus Wainwright where the constitutional right was established, that you have, if you can’t afford representation, that that you will be provided representation at no cost. Do you think, without Gideon versus Wainwright, do you think without that activism of the Warren Court that we would have the requirement? Do you think that that the state taxpayers of their own volition would have said well, you know, we’ve accused of a crime. We ought to provide you an attorney. That’s the least we could do. The very reason why Gideon versus Wainwright made it to the supreme court was because the state of Florida had a policy that they didn’t provide any person accused of a felony, unless it was a capital felony, with free representation. So wasn’t that judicial activism?

Andy 33:20
It sounds like it. I’ve heard grumblings from the current court that the Miranda rights might have challenges too.

Larry 33:26
Well, they have been weakening the Miranda rights. This more conservative court has weakened them through the years. But everybody’s for judicial activism. The only thing is, when it’s something that achieves their goals, they magically don’t consider it activism. This more conservative court has been very activist. For example, they’ve extinguished the right of labor to collect dues for everyone that they’re obligated to represent in a union shop. And so they’ve done away with dues checkoff. They have decided that corporations are people in 2010. And so, activism happens all the time. It’s just that the type of activism that we’re looking for comes usually from the left. And this judge is an example of that. But my bigger point is most of what she has done would not fare very well with conservatives, unless they’re on the PFR registry. And then they like that activism on this one thing. But on the other activism of the cases that you’ve cited, they wouldn’t be fond of that at all.

Andy 34:35
The state’s position is that the eight individuals in question, named John Doe’s number one through eight in court documents, must remain on the registry to protect public safety and to prevent potential future crimes State Attorneys have argued. However, Trauger wrote that no evidence was provided by the state to show that the plaintiffs posed a threat. Larry, this sounds to me as though this do-good judge is thumbing your nose at the citizens of Tennessee and their Law. If this is not overturned on appeal, does this mean that all PFR’s in Tennessee may have some sort of due process keeping them on the registry?

Larry 35:10
That is a possibility. Let’s, let’s take a look at one of these individuals. John Doe number one pleaded guilty to second degree assault of his girlfriend in Hawaii in 1994. Now we’re coming up on how many years now that that happened? Almost 30 years. According to the court, since completing his probation, he has not been convicted of any other crime. He’s lived a productive law-abiding life. He’s married. Has children, and he owns and operates his own successful business. But because he’s subject to the Tennessee PFR laws, he is required to personally report to the police within 48 hours of changing his address, job, or email address, Facebook account or buying a vehicle among other things. Failure to report may lead to criminal prosecution. And there’s no may to it- you will be prosecuted. While his crime did not even involve a child, under Tennessee law, he’s not allowed to live near children. He cannot attend the events at his children’s school. When one of his children was injured at school, he rushed to see his child and the school staff called the police. He cannot take his children to parks or playgrounds and the law does not allow them to invite friends into the house for fear of breaking the restrictions. This is an example of runaway disabilities and restraints. They just can’t help themselves.

Andy 36:32
It is, though, the public that wants it. They say I’m going to make things tougher for the PFRs. And the people are like, Yeah, let’s make it tough for the PFRs. And then it gets signed into law. This is what we get.

Larry 36:42
This is indeed what we get. But see the thing that people refuse to argue, which is very compelling, if you would actually try it. I mean, who am I to say? But anyway, if you actually try this out, utter the words civil regulatory scheme. When you go to your capital, remind your lawmakers when they’re debating changes, look, folks, this is a civil regulatory scheme. And if you’re going to try to inflict all these things in a civil regulatory scheme, you’re going to run afoul of the Constitution, because it sounds like you’re wanting to inflict punishment. And you just can’t do that in a regulatory scheme. But see, we’re resistant to using that term. Because they say, Larry, if you just understood what registration was all about, you would there’s not anything civil and regulatory about it. That doesn’t matter. It’s upheld as being civil regulatory. So you need to remind them that it’s a civil regulatory scheme. And beyond that, when they say are you own the registry? That’s a difficult one. Because once you say yes, then they say, I don’t think you have the impartiality to be objective. And you say, you answered a question with a question. You say, well, since it is a civil regulatory scheme, do you not generally invite people to come testify before you when you’re looking at regulatory schemes that apply to a particular whatever the situation is? Every regulated entity gets to have input in how the regulations apply to them. So rather than going down that path of saying, Yes, I’m on the registry, and letting them say, well, you’re no longer impartial. You say it’s a regulatory scheme. And everyone who is regulated, whether it be the oil business, whether it be the telecommunications business, whatever it is, they are allowed to participate in the formulation of those regulations. And if they’ve pinned you down and say, Well, I still don’t believe you’re impartial, if they’ve already figured out you’re on the PEFR registry say, Well, you know, I think I’m inclined to agree with you. But I think all these victims that come in here, I’m not sure they can be impartial, either. And you certainly don’t hesitate to hear from them do you?

Andy 38:50
What is this about the ninth plaintiff not living in the state of Tennessee? So they knocked them off the list because they don’t live there and it doesn’t apply to them?

Larry 38:59
The state has filed a motion according to the story to dismiss his claims, because he’s no longer subject to the registry in Tennessee. So therefore, any relief that they would be able to grant him would be a moot question because he’s having to register wherever he is. So it’s no longer relevant. Now he can argue against that motion. He can say that he’s in Tennessee regularly. He has a business interest, he has whatever, and that he doesn’t want that claim dismissed. But the state doesn’t want that to be decided because it’s another hole in their registry that they’d rather not have. So, they do everything they can to extinguish your claim without it being decided.

Andy 39:38
Okay. Let’s see. We did receive a couple of questions from people. I hope we haven’t covered them already. So this is a question from Chuck on the Discord server, who is also listening in chat. I have a question for Larry. That’s you. These winning cases and the PFR is taken off of the registry, is there a possibility if/when Tennessee changes Parts of the registry that are punitive per the courts, that these people would have to go back on the registry? And then another question I can ask if you need me to remind you, does winning a lawsuit prevent you from being forced back on the registry? I guess is that is my question. I’m pretty sure one of the changes to the AWA states if you have ever committed a PFR-type crime, you will be on the registry.

Larry 40:24
I would answer those in turn, is it possible these people that have been ordered to be removed can be put back on? Yes, it is possible. It’s going to be a lot harder for them, because I’m assuming that an injunction is going to issue when this case comes back. There’s going to be an injunction issued when the when the final order- I haven’t gone on Pacer, looked at all that- but there’s an injunction issued. So the injunction will have to be lifted before they can be ordered to register. But if they come up with a new law, and the court cannot order them not to come up with a new law. That’s one of the big misunderstandings. They are certainly free to try to come up with a constitutional regulatory scheme. So if they were to come up with a new law, what they would need to do is to notify them that they believe that they have a duty to register because the law has been amended, and it’s no longer punitive. And they should move the court for an order lifting the injunction. And they would tell the court what has changed. But in terms of everyone else that doesn’t have an injunction, you’re not in nearly as strong a position. They could just simply change the law like they’ve done in Michigan and say that law that was declared unconstitutional, it’s gone. We’ve got a brand-new version now and you have to litigate all over again.

Andy 41:50
I gotcha. All right. And then this one is also related. And this is the Patreon Question of the Week. What sanctions can be placed on Tennessee for not complying with the previously discussed Does ruling in a timely manner? Why hasn’t Tennessee adopted a class action suit? Like Does vs. Snyder and Michigan? That’s way above my paygrade by the way.

Larry 42:15
I can’t answer the second part of why. may be that just the legal resources… I mean, you represent clients not causes. And these people have either one or several clients. It looks like this was a consolidated case of multiple clients challenges that were working their way through the court. And is it possible that there’ll be a class action. That’s exactly what happened in Michigan, but that only happened in Michigan after the Sixth Circuit Court of Appeals. And that may be what’s going to happen in Tennessee is that Tennessee may finally decide that we’re going to we’re going to take our chances and try to distinguish ourselves. And we’re going to appeal these adverse decisions to the Sixth Circuit and see if we can get a different outcome. And if they get a different outcome… I mean, the general rule of thumb is a panel will not overturn a previous panel decision, unless the case is extremely distinguishable. So what was the last part of that question?

Andy 43:14
The other part was why hasn’t Tennessee adopted a class action suit? But um, says what sanctions can be placed on Tennessee for not complying with a previously discussed Does ruling in a timely manner? So I mean, if the rule says they can’t do it, and then they continue to do it, can’t we put the state in jail for not following the law?

Larry 43:33
That premature. When the decision has been made that something’s unconstitutional, there has to be an order of the court. The decision that if you look at that, usually there’s a memorandum opinion. And that’s followed by an order. And if the order is to remove an individual, they would have to do that, or the state would have to ask for a stay of that order, pending an appeal or for reconsideration. I mean, there’s no automatic sanctions until there’s a violation occurring of a court order. I mean, right now, if you look at that, the one that we just got 10 minutes ago, that’s an opinion, right? It doesn’t say anybody’s ordered to anything. Well actually it did. It did say there was an order in that one…

Andy 44:22
Well, those eight people are required to be removed from the registry, but I’m gonna guess not the 20,000 or whatever it is in Tennessee.

Larry 44:30
Yes. So let’s go down and see. It is ordered the defendants shall not enforce provisions on Tennessee…They have been enjoined. And so, yes. This particular case, if they don’t follow this order, this is not an opinion, this is an order. So if they don’t follow this, what the attorneys would do is they would vote for an order to show cause. And the judge would hold a hearing and say, why have you not removed these people? Show me cause why you have not done that, and sanctions could flow. But they could also file a motion for reconsideration. I mean, there’s all these legal tactics, and I can’t tell you what Tennessee is going to do. But folks, this is going to drag on for some time. I mean, don’t start…

Andy 45:18
If your case is similar to those eight, then you have a good shot of bringing a case and going, I’m just like number two and three over there. Shouldn’t this apply to me too?

Larry 45:27
Could. Or you could try to bring a class action. This is a number of cases, 1-2-3-4-5-6-7-8-9. Looks like this is this is a whole consolidated… but it says memorandum and preliminary injunction. So there is an order attached to this that they cannot continue to register these. So they will have to comply with that fairly quickly.

Andy 45:49
Okay. Well, that’s cool. Um, I think we’re done with that one, too, sir. I believe.

Larry 45:56
I believe that we might have might be enough time for the seizure.

Andy 46:01
I think we do we have enough time to cover this at least reasonably in depth. We let’s say we have 10 minutes to float around with this one. You shared this video with me and a few other people about an army vet, marine vet, I forget which one it was. He got pulled over for driving too well Larry. He actually, as I recall, he got cited for driving too close to the person in front of them. He was driving like maybe a mile below the speed limit. And when the police pulled him over, we have some clips to play. And but he did all of the things that everyone says when we talk about the different police brutality kind of things where the person doesn’t comply, this and that. This guy was hyper compliant. Hyper, hyper, hyper. He did everything, sir. Yes, sir. Thank you for your service. I know you’re just doing your job. He did all of those things. It seemed he would be doing them right for what ultimately ended up happening. What do you want to set up before we start playing some clips?

Larry 46:57
So I think you’ve set it up pretty well. He was passing through Nevada, and he was met with the Nevada Highway Patrol Interdiction Unit. So let’s play the first clip. This is good stuff, man.

Andy 47:13
All right, here we go.

Police #1 47:16
Hey, this is gonna sound kind of weird. Um, part of my job out here is I do what’s called highway interdiction. I look for people that are smuggling contraband through our state, across the country. Weapons, humans, drugs, illicit currency, things like that? Anything in the vehicle I should be aware of. (Victim: Nothing) Okay. No, no firearms? (Victim: No.) No explosives? (Victim: No.) Okay. Are there any drugs in the vehicle? Cocaine? (Victim: No. I don’t do drugs.) I got to ask all these silly questions, right. Any large amounts of United States currency in the vehicle? (Victim: Yes.) Okay, what’s a large amount of US currency to you? (Victim: Anything over $10,000.) Okay, so there’s over $10,000 in there? (Victim: Yes.) Okay, how much money you got in there? ((Victim: About $100,00.) Okay. (Victim: I don’t trust banks, so.) Fair enough. Fair enough. Um, would you give me permission to search your vehicle today? (Victim: Yes.) That’s okay with you? Okay, perfect.

Andy 48:17
He lets them search. Larry, is that a problem?

Larry 48:23
Well, as we get into these clips, you’ll see that this is a combat veteran who would have probably never had any experience with a cop. Maybe a traffic ticket or something. But in his mind, it’s a wise thing. And people who are in the criminal defense business, I don’t think anyone’s going to tell you that this is a wise decision to allow search. But since I’m not allowed to give that advice, officially, I’ll tell you that my office has never advised anyone to do that. And I don’t think the attorney that we hear from later advises that course of action, but he thought it was the best thing to do. And let’s see where it goes next after he does it.

Andy 49:03
So here’s the second clip.

Police #1 49:05
He consented to a search. Said there’s money up there. We located what he says is $100,000. It’s in a Ziploc sandwich baggie. There’s also- I haven’t gone into it. There’s also a bunch of bank receipts and stuff in there as well to show to show the currency…. Hold on a second.

Police #2 49:25
So why the mistrust for the banking system? (Victim: I just don’t trust them. That’s just my reasoning. It’s my personal thing.) No, it’s just not usual.

Andy 49:39
So what is the problem with carrying, let’s just say whatever, 100 grand, what’s the problem with carrying that kind of cash?

Larry 49:45
Well, I mean, there’s nothing unlawful about it, and through the 12 or 13 minute clip, the cops make it clear that it’s not unlawful. But since he’s doing something that’s not ordinarily done, it’s very rare. It raises questions. And he is not able to talk himself out of this situation that he’s opened the door for by giving them… First thing he said is I’ve got a large amount of cash. Remember, the cause for the for the engagement was if he was following a little too close behind a vehicle, right?

Andy 50:22
Yep, they said he was following one second. You know, you’re supposed to follow two seconds behind the vehicle that’s in front of you. And they said he was following one sec. And that’s why they pulled him over. And I can’t ever think of anybody I’ve ever known in all of my million years of living that has been pulled over from following too close, Larry.

Larry 50:39
Well, I have but anyway, he should have confined the stop to the reason for the cause. But he was being a good patriotic American. He always believed the cops are overworked, understaffed, and that they just are so busy with real crime that they would never have this type of engagement. So, now he’s got himself in a position where they’ve got 10s of 1000s of dollars. And it’s not unlawful to have it, but it’s very unusual. So now he’s got more and more questions coming at him that he would not have had, had he not opened the door, but keep going.

Andy 51:16
Well, this is just like the final one that does like the close out of it. So here we go with that.

Victim 51:22
I find it even more so concerning that, if this could happen to me as a combat veteran who served overseas, in Iraq and Afghanistan, this could happen to anybody.

Andy 51:43
A clip that I didn’t capture was the dog alert one and this is something that we should cover though, is that they took the money and they put it in the bag and they went out like in the field nearby the truck. And they said I think it was like 40 yards away or whatever. And the drug dog goes, yeah, there’s totally some drugs on this money. And I know that I’ve heard this throughout my life that all US currency, like particularly 20s, they have trace amounts of cocaine. So if you put 100,000 bucks in a bag, you’ve got some appreciable amount of cocaine, and the dogs be like, yep, cocaine money, right?

Larry 52:17
That’s exactly right. That came up in the video. But here’s a guy by all accounts, who did everything right. He had bank receipts, showing that the money had been banked. He was traveling across country. They engage him in a dubious stop. They recognize he’s a veteran and a good citizen. I mean, it’s a very cordial exchange. He has such a high level of comfort with the officer. And with ultimately the supervisor. The part we didn’t tell is they called the drug enforcement, DEA, and they weren’t able to come, but that’s who ultimately got the money. After the dog alerted, they seized the money. He had no money, because all of his money is there. And he says I don’t have enough fuel to get across the country. And they said, Well, too bad, so sad. He said, I don’t have money for my family. And they said too bad, so sad. I’m embellishing it a little bit. But that’s essentially what they told him. And he says, all I get is a receipt? And they said yes. And then they told him to call the DEA. And he did that to no avail. And he ended up finding this liberal do-good outfit to file a lawsuit on his behalf. And apparently, they do these actions to try to get people their money back. I don’t know if they get a portion of it. But the lawsuit resulted in the DEA agreeing to release his money. But he would never have believed in United States of America where he went and had bullets fired at him, if we liberal do gooders had told him that we’ve got these runaway seizure statutes where the government can take your money without even so much as a criminal charge, much less a conviction. If we had told him that he would roll his eyes, he would have rolled his eyes, and he would have been astounded. He would have said no way. That can’t happen in my country. And now that his eyes are opened, I hope he will do what most don’t do. Rather than saying this as an isolated incident over a renegade cop, which it isn’t. He’s on an interdiction team that Nevada has. And there are multiple lawsuits being filed regarding these seizures. Hopefully, he will try to advocate for some systemic change. And this is what we talk about when we talk about the police being reduced funding. When they throw that cliche out of defund the police. This is an example of where funding is coming to the police. They get a portion of the seizure. A significant portion of it. So here’s law enforcement that has a job that’s funded by their success rate. And they go out and take assets away from people without even so much as an arrest, let alone a conviction. So I hope he will do what he should do, which is become an advocate for change. Getting his money back is the first step. But don’t stop there.

Andy 55:23
So we’ve covered stories even like this before, Larry, where you recommend that people stand up to the police. And this is what you’re describing for this guy to do as well. You have to have some massive cojones to stand up to the police. And they go, Well, you stopped me for following too close. Can you just hand me the citation for that? And no, you can’t search my car and peace out, mic drop, flip them the bird and get in your car drive away?

Larry 55:50
I wouldn’t advise doing that the way you describe. What you would try to tell the officer- and it may not go well for you, I cannot predict what he would have done- But you would tell the officer I believe I’m being detained for a traffic infraction. Can we get on with the traffic infraction? And well, I’m just wanting to search your car? No, I don’t think you’ve articulated any probable cause for searching my car. This was a traffic stop, right? And you’ve got to focus back to what the reason for the engagement is. And the traffic stop, You can say, let’s deal with traffic stop. I’ve got a time schedule to meet and I need to get on my way. Well, can you search? No, I’m not able to do that. Do you have anything to hide? No. I don’t have anything to hide. I’m in a rush. I need to be on my way. And you’ve got to stay focused on that message. I can’t tell you what they would have done. They might have gotten belligerent, they may have said, well, we’re going to have the dogs take a sniff. Would they have found the baggy? I don’t know that either. I don’t know how that would have played out, but when you have an illegal search, you make it legal by giving your permission. In the worst case, if they had gone ahead with him protesting and saying no, you would clearly have had an illegal search. Right now, that was that was an legal search. He gave consent. You heard him do it right? Was he threatened with anything? (Andy: No. He wasn’t being detained either.) That was a voluntary and intelligent decision that he made. So had he been charged with something, say for example, if that was actually dirty money, and they could dig up evidence that he had engaged in criminality, he just shot us in the foot in terms of trying to suppress that search. Because with acquiescence to the search, our motion to suppress would’ve gone right down the crapper.

Andy 57:54
I have two things. The crapper. Is that a technical term? And B is the transcription person going to know what acquiesces is?

Larry 58:01
Oh, Otter will know that.

Andy 58:05
Alright, um, I still, Larry, to be able to push back on them when they ask that question and have the gumption to say, the hutzpah I think is the best word, to say, No, I don’t consent to that. And you force them to be in a position that they are detaining you. That then escalates things up. Like you’re forcing their hand to, I guess you’re given them the game back because they’re already giving it to you and you give it back and force their hand and then they let you go. Probably?

Larry 58:35
I don’t know, but I would think that the odds are his supervising officer would have probably said, we don’t have enough here to work with. But there’s no guarantee of that. But he didn’t fare very well with his strategy that he did.

Andy 58:51
He definitely did not. But I mean, I mean, ultimately, after I don’t know how many years it was, but it took him a while to get the money back. But he got some $86,000 bucks if I recall.

Larry 59:00
And I’m suspecting that law firm that helped him gets some. I mean, they couldn’t operate their business without getting a part of it. So they probably… that’s how we paid his legal fees from that money.

Andy 59:11
Sure. All right, man. Let us go over to we are going to do who’s that speaker and again, Larry, you gave too many hints and tips about it. But last week, I played this.

Senator Howard Henry Baker, Jr.
What did the President know? And when did he know it?

And the answer to that one is Senator Howard Henry Baker, Jr. The leading Republican on the committee investigating the Watergate scandal surrounding President Nixon asked the seminal question at the hearings. What did the President know? And when did he know it? So we did have a winner. And this is Al in Maryland. And he wrote, he is the first one to write in but he does not believe this. Now this was a more worthy adversary, Larry. Although I agree that Larry may have given too much of a hint, as usual. Since I don’t listen the podcast until several days later, I’m sure someone told you by now that was Reagan’s Dick Cheney, the distinguished senator from Tennessee, Howard Baker, doing some grandstanding and political positioning as it was becoming obvious Nixon was going down during Watergate. Nice pic. Everyone’s heard the quote, repurposed a million times, but probably doesn’t remember who said it. If Trump is ever held to account for January 6, this quote will be resurrected yet again. A boy can dream. Thanks Al, in Maryland. Appreciate it. Oh, any comments before we move on?

Larry 1:00:35
I was nearing 100 when that happened. And my recollection is that we just didn’t have enough evidence to know that Nixon was going down. The Smoking Gun hadn’t come out yet. That had not been discovered. So I’m not sure that we knew Nixon was going down when this quote was made. But I mean, he could be right. But I don’t think that that was clear at that point. But anyway, we have another great one for tonight.

Andy 1:01:02
Okay, and no clues, but I bet you nobody gets this one. You’re gonna have to dig for this one.

Who’s that Speaker?
I say segregation now. Segregation tomorra’ (tomorrow). And segregation forever.

Now, how do you spell tomorra’ (tomorrow with an accent)? That’s my question. Tomorra’. Segregation now. segregation tomorra’. segregation forever. There you go. That is that. And that is pretty much wrapping up the show Larry. If there’s anything else, I guess we could ask if you have some sort of audible clip that you would like us to play to contribute. Feel free, you can email registrymatterscast@gmail.com. Use something about Who’s that Speaker submission, something like that. And then I can filter through my email and find them. Anything else before we shut things down?

Larry 1:01:48
Absolutely. And we’re going to be building our FYP Education website in the coming weeks. And we may end up needing some help building that because of our very busy schedules on mine and your side. So if there’s anybody out there who’s a website master that knows how to make it pretty again, how would you contact us?

Andy 1:02:07
Use the email address registrymatterscast@gmail.com. You know what else I forgot? Like I did find this. So check this out if you’re looking at the screen. See? Like and subscribe over on the YouTube side. *click* click* *click* I got buttons that click. Right. All right. So Well, very good. Thank you everyone for joining. We had a nice crowd there on Discord. And if you want to find all the show notes and everything, all links to everything is over at registrymatters.co. You can leave voicemail at 747-227-4477. Email at registrymatterscast@gmail.com. And of course the best way to support the program and lets you get into the discord server so you can listen to the program live is patreon.com/registrymatters. And I think that about does it Larry. I appreciate all the analysis and everything that you did this evening. You did a fantastic job.

Pres. Roosevelt from MacAurther Movie
I agree with you entirely. That is why I am here.

Andy 1:03:12
Thank you, Larry. I really appreciate it. I hope you have a great night and good night.

Larry 1:03:17

You’ve been listening to FYP.

RM205: What Are We Litigating; Confused Litigators; Highway Interdiction

RM205: What Are We Litigating; Confused Litigators; Highway Interdiction

Tonight, we’re covering a couple cases. One just recently came to our attention this morning out of Tennessee, the Middle District of Tennessee, US District Court. We’re doing a case from the Kansas Supreme Court. We’re doing a case about money seizure, interstate highway interdiction programs. And we have some questions that have made their way to us from our listening audience.

[1:32] Patron Mike

[4:13] State v. Dennis Lee Shaffer

[25:25] Does vs Lee

[46:01] Nevada Highway Patrol Interdiction Unit


Read Transcript of RM205: What Are We Litigating; Confused Litigators; Highway Interdiction


Leave voicemail: 747-227-4477
Email us: registrymatterscast@gmail.com
Support us on Patreon: https://www.patreon.com/registrymatters
Follow us on Twitter: https://twitter.com/RegistryMatters
Join the Discord server: https://discord.gg/6FnxwAQm57
Want to support Registry Matters with some swag: https://shop.spreadshirt.com/registry-matters
Apple Podcasts: https://itunes.apple.com/us/podcast/registry-matters/id1305039280
Google Play Music: https://play.google.com/music/listen?u=0#/ps/Icuxbpzvyti7wtoredipbtiojqy
RSS: https://www.registrymatters.co/feed/podcast/
Spotify: https://open.spotify.com/show/3d75P7Kc37n2l79m89F9KI
YouTube: https://www.youtube.com/registrymatters

Transcript of RM204: Every Wrong Is Not A Constitutional Violation

Listen to RM204: Every Wrong Is Not A Constitutional Violation
Andy 00:00
This episode of registry matters is brought to you by our patrons. Thank you for your continued loyalty and support.

Andy 00:08
Recording live from FYP studios West and an igloo in the northeast, transmitted across the internet. This is episode 204 of registry matters. Happy Saturday night, Larry, is it that it’s freezing cold where I am. I hope it’s called where you are just so you can empathize.

Larry 00:24
It is not cold here that was 60 degrees today.

Andy 00:28
Okay, it’s 60 below here. That’s all I’m saying. Is it 60? Below?

Larry 00:32
Well, that’s good for the Michigan consolidated gas company or whichever gas company provides your service and that equal urine.

Andy 00:41
That is true. Tell me sir, do you have anything snarky to talk about? Before we go into it? Are we gonna dive right into it?

Larry 00:48
We’re gonna dive right into it. We have a lot of stuff on this agenda. We’ve got to do it in 26 minutes.

Andy 00:53
26 study. Now go.

Larry 00:56
Okay, let’s wrap it up.

Andy 00:58
Yep, we’re done. So what do we got going on tonight, sir?

Larry 01:05
We have two amazing cases, we’re going to be talking about one from Iowa and one from Connecticut. We’ve been putting off for two or three episodes. We have some questions that have been submitted to us. And we’ll do the best we can with those questions. But I’m not completely clear on the last one.

Andy 01:23
Very well. Yeah. I mean, when someone just posted on the website, if they don’t give us a lot of detail like about I mean, they did give us the recent case anyway, we’ll get to it. But if you don’t give us more information about it, we got to do what we got to do. But starting off with things, this first question came over discord this pi two weeks or three weeks ago, there’s a guy in there that has moved to Georgia. And it got framed that the the website mixes what’s required by statute with that what not required by statute, how does one comply with what’s in the statute while refusing to comply with what’s not in statute? So if the sheriff asks for something, Larry, how do they how do you like? politely say no, can they mix the two and a notice, like the above? So the person just called the sheriff’s department for Paulding County, Georgia, which I think that’s over by Six Flags there? It’s over kind of on i 22, the west side?

Larry 02:18
I don’t believe so. I believe it’s actually on the north side of Atlanta. But go ahead.

Andy 02:21
Oh, well shows you what I know. Alright, here’s the breakdown on what I need something showing my original charges, and then a $25 Cash fee, and internet identifiers. I’m confused. Like, what is he supposed to bring almost like a utility bill that says where he lives. So he has to bring something showing as original charges? Like, can’t they just look that up?

Larry 02:44
Well, he’s gonna He’s both at Georgia. So he has a non Georgia conviction. So they don’t have that red shirt.

Andy 02:52
I mean, I guess he just brings the court docket from where he comes from. He’s coming from Florida.

Larry 03:00
Well, I’ve not heard of them asking for that until very recently, my state now that we have an out of state translation process for work here. But but in Georgia, you’re going to have to register, they have the catch all language that we don’t have. So I don’t know what that would do in terms of unless there is a provision to not have to register in Georgia. And I would seriously doubt the Paulding County sheriff is trying to find a way that the person doesn’t have to register. That would be very surprising to me when you

Andy 03:32
totally i. So he’s bringing some sort of court document from his original so he can they can figure out how to translate it.

Larry 03:39
Well, but I didn’t know the sheriffs in Georgia do that. I didn’t think that was one of the responsibilities. If you come to Georgia, I’m just thinking pretty much there’s a catch all that you have to register and Georgia if you have to register anywhere.

Andy 03:52
So that that’d be for something of because there’s the three or four different windows that he might apply to, like 403. I think

Larry 04:00
that’s a good point. So you don’t even need me here. I keep telling you that he would have more progressive restrictions, depending on how recent his event occurred. So that would be one of the reasons they would want that those documents to look at what he did when he did it.

Andy 04:17
And then what about the $25 cash fee? I mean, he was supposed to bring in there and 25

Larry 04:24
I’m not I’m not sure about that. $25 Cash fee. But I think internet identifiers. I’m not registered in Georgia. But don’t ask for those in Georgia. Don’t ask your user. They don’t

Andy 04:38
listen, when you and I first met in a hotel, not a hotel in a hotel meeting room. There was an individual there named Terry and I and I lose drawing a blank on his last name. It is my understanding that that individual fought Georgia and won and that’s what got rid of the internet identifiers. I can’t verify this. But that is what I believe to be true. And so they have taken that away, they have never asked me for a single online account of any sort?

Larry 05:08
Well, his question is, how do you politely tell them and that is very tricky and very cautious because you don’t want to set yourself up for them targeting you to try to catch you in non compliance with something petty. But on the other hand, you don’t want to give them information that could come back to haunt you, that’s not required by law. It’s almost a catch 22, isn’t.

Andy 05:35
It totally it is. I mean, you’re very much damned, if you don’t, if you go in there and be hostile to them, then I believe like your terms would be, they’re going to enhance your super, he’s not on supervision, mind you, but they’re going to enhance their monitoring, so to speak. But if any of you just comply, maybe you’re setting yourself up to be giving them more than what is required.

Larry 05:55
What which may come back to haunt you later, depending on what you give them. That’s our issue. With Cobb County, they’re asking for work schedules. And your schedule is not required by Georgia statute. Cobb County is a suburban Atlanta County for our global audience that doesn’t, it doesn’t relate to that immediately. And if you give them that work schedule, then it begs them to go out and check and see if you’re there. And then if you’re not there, they say you lied to them. And then they intimidate you and say, Well, we’re gonna, we’re gonna have to violate you file registry violation for not giving us truthful information. So I’m thinking people probably should not give those work schedules unless they’re static and don’t change. But people are giving them because the sheriff with a gun is telling them, I want it.

Andy 06:45
Say this is not very different from the homeless individual that we spoke about three or four episodes ago, who has to text in where he’s staying that night, because he’s homeless, when he gets home from work or whatever. Like, that’s not required either.

Larry 07:00
That is absolutely not required. And we’re actually we being nagarsol, we’re actually looking into that it’s going to take all these trains take some time to run. And people want instantaneous problem solving. And we our first strategy is to try to figure out if there’s more than one person in Barrow County that’s having to do that, because we would like not to out a particular individual, because that’s who they’re going to turn their retaliatory attention to. But it may be that there’s only one. So I’ve encouraged that person not to pretend they’re homeless, if they’re not homeless, because they will definitely prosecute you for that. declaring yourself to be homeless and not being homeless. That’s, that’s not an accurate representation of of your status, is it?

Andy 07:49
No, could you give me something more of a legal definition of homeless is this like me if you’re couchsurfing? That is that is that homeless are not homeless?

Larry 07:58
Well, I don’t, I don’t think homeless to me, if you have a home, if you have a structure, I don’t think you’re homeless. But that structure, if you’re couchsurfing may change continuously, you may be allowed five nights, well, then you’ve got to constantly keep the department, the sheriff, or the law enforcement in Georgia informed. They take the position that if you don’t have a fixed residence, that you’re going to be at permanently you have to report in every week. My personal position is that if you have a temporary place that lasts more than a week, you shouldn’t have to report every week because you’re in a fixed location. We don’t know the answer that question because it hasn’t been litigated. In a case. If a person says Well, I don’t, I don’t own that place. I don’t rent it. I don’t have a written agreement. But my friend, Jeff is letting me stay there. And I don’t know how long he’s gonna let me stay, he may let me stay for three months. Well, to me if you’re fixed at that time, you shouldn’t have to go in and more frequently than anyone else. That’s at a fixed location, because all your locations can be unstable, depending on if your wife kicks job puts the suitcase outside, your girlfriend does all these things, if the landlord finds out tells you to vacate, which they’re prone to do, there’s all these kinds of things that can change your status. But if you are at a fixed location, that’s my personal opinion. But there’s so many things we don’t know the answer to, because no one has been faced with that and been prosecuted. And we don’t have any appellate guidance from the Georgia Supreme Court or Georgia corps of appeals in terms of what is homeless. They try to they try to define it in the statute, but sometimes they don’t do a very good job.

Andy 09:39
I would like to get you on the record. Can you walk in there? Good. I’m on camera right now and you you hold up your two middle fingers need go FYP I’m not giving you the original churches, the cash money or the internet identifiers and walk out and mic drop on the way up.

Larry 09:54
I certainly would not encourage that approach.

Andy 09:59
All right. How do you how do you? How do you stand your ground without being a jerk? And cover your bases at the same time? Like, is there like secret legal language that you can say to the sheriff of No?

Larry 10:15
Well, I would do my best to be polite as all possible. But say, I’m not familiar with that section of the statute. Can you show me what it is? I’m required to do? So that I’m absolutely clear. And I’m, I’m intending to fully comply. And of course, if it’s not there, they won’t be able to show it to you. But you set it politely rather than giving them the middle finger. And, you know, it would even be great if you held a copy of the statute nearby. And I’ve studied this thing, and I’m not sure what the board that said, and I certainly want to comply, but can you point that out to me? And

Andy 10:48
I can imagine I’m saying something that I’m sorry, you can’t find a copy? I brought one with

Larry 10:53
me. That’s precisely what I would do.

Andy 10:57
I pictured that doesn’t go over well, either.

Larry 11:00
Well, it would not go over well, and you’ve made the point that he’s not on supervision. But they treat it kind of like supervision, even though it’s shot. They do those checks on you. And they’re looking for an I gotcha moment. So I remember I just had this conversation about two weeks ago with Paul Dubin, the attorney from Chapel Hill. And I told him, I said, Well, you know, you can because he was saying, Just tell them, tell them the take and stuff. And I said, You can’t do that. I said, here’s what happened if you didn’t do that, and I started naming the things he said there was, those things are illegal. I said, Paul, your defense attorney, for for all people used to understand that law enforcement does a lot of illegal things, just because something is illegal doesn’t stop them from doing it, I said, what they would do, if you declare yourself homeless, and don’t leave your homeless, let me tell you what they will do. They will go infinite, find out who owns the property, if it’s public or private, they will contact the entity or the individual. And they will ask them to get get to give them an order to remove you, they’ll say that you’re trespassing. And then we’ll talk to property owner to agree with them. And then we’ll come back and say, you’ve now been given an a no trespassing order. That’s one thing they will do. If you have a vehicle, they will surreptitiously put a tracking device on your vehicle. Now, I’m not saying that that county will do it. I don’t know the reputation of Barrow County what they will do. But I can tell you that law enforcement does that all the time. And pulses that say like when I saw, of course, it’s a really good court ruled

Andy 12:32
that 112 1010 or something that they couldn’t do it,

Larry 12:36
but they don’t use it as they don’t use it in the complaint, what they will do is they will track you to your girlfriend’s house that you’re going to every night claiming to be homeless, and they will set up surveillance at the neighbor’s house, they’ll ask the neighbor, you know, we’d like to, we’d like to set a camera up on your property, and the neighbor could give permission for that. And then they will track you with that vehicle coming to that location every night for a requisite number of nights that you should have declared that residents. And then they will go down, and they’ll get a warrant. And they will say on information and belief that they found that you weren’t staying at the place that you identify that you were spending the night at when you’re homeless. That’s what they will do. They will never disclose exactly where they found you out. They will just say that they all information they they have that you’re not there at that location. And they’ll say that they’ve done. They’ve done visual surveillance, and you’re not there. They will put say that in the affidavit for the restaurant, they won’t say and we’d surreptitiously put a tracking device on their car. Why would they do that?

Andy 13:39
I gotcha. I gotcha. I think we should probably move on from this one. Is there anything else

Larry 13:46
I empathize with with him? I don’t know that counties reputation all that? Well. Generally, those suburban counties tend to be more conservative, they tend to be more affluent, and they tend to have more resources. So therefore, if you irritate them, they just may well turn those resources on you.

Andy 14:10
Well, this one comes in from the YouTubes and says, If from freedom is right asks, Why in the US, does the sentence matter from a plea to a trial judgment is basically poking at you learn? It should not matter. As citizens, we are guaranteed a trial. So why does the punishment increase if we express that Right? because it saves time or cost taxpayers more money? Bullshit. In other words, the US sucks. Is that what you said Larry?

Larry 14:41
I don’t recall ever saying us luck. Matter of fact, I think I have said over and over what a great country we have and how proud I am to try to be a part of making it even better. But in terms of the trial one reason why you get a tougher sentence is because with a plea you can contain the damage by limiting the judges discretion. We have a case in Brunswick, Georgia in Collin County right now, where the judges discretion is very limited because by statute, they must impose at least on two of those guys, a life sentence, the only discretion the judge has as life without parole or life with parole. When you do a plea agreement, there can be charges that are dropped as a part of the negotiations, which would enlarge the exposure of the judge. Because if you take out three counts, you’ve just extinguish some discretion of the judge. Would you agree with me on that? Yeah, I think so. Okay, so you’ve you’ve you’ve limited the exposure, depending on how far a plea agreement goes, you may have a sentencing agreement that even would contain the judges discretion further, so the judge may have 15 years of discretion, if he worked, backs you out of the charges that you pled, but the sentencing agreement may say that as a part of the plea agreement, that can be no more than five years of incarceration imposed. So that’s one of the reasons why why you get you have not restricted the judicial discretion. When you go to trial. It’s open season for sentencing. So does that make sense to you, you play agree, but usually limits the discretion of the court. Without a plea agreement, the court has unlimited discretion up to the maximum of each count.

Andy 16:25
Does seem though, Larry, that there is almost like a tax or a penalty for taking a trial to

Larry 16:32
we’re going to, we’re going to get to that point. But okay, this is the first part of the answer is that’s the reason why you get more time because you have no limitations on the court, except the maximum penalties prescribed by law. The other reason these are human factors, and folks try to remember I don’t make the rules for life. I’m just simply the passer that passes these rules on to you. Judges are human. And so we’re prosecutors. So we’re witnesses and victims. And there’s a common belief that if you force the court to go to trial, when there’s overwhelming evidence against you, and you tie up the court’s time, that somebody is going to have to pay a little something for that. Now, most judges will deny that they’ll say they don’t do they won’t call records that I was extra harsh because the person went to trial. But that’s a reality of the situation. Now, if you want to pretend that’s not a reality, that’s okay. Because I’m just the messenger here. But of the all the trials I’ve seen very seldom, occasionally, but more likely than not, the sentence would have been better to have been resolved and imposed by a plea agreement. There are exceptions, our former Secretary of the Department of Taxation and revenue for the whole state, just went to trial on embezzlement, not from the state, but from our private client. She was convicted at that trial. And she was sentenced to probation, which was a very tough decision for the judge to make having to sit through days of horrible testimony. And all the public vengeance was about this, this person needs to go to prison. But those are rare situations, more likely than not, you’re going to get a harsher sentence if you go to trial, because the theory is you have not recognized the error of your way. You’re not feeling remorseful. And perhaps a harsher sentence will give you the opportunity to do some introspection and reflection and maybe perhaps you’ll feel remorseful. That’s what the attitudes are. Those are not my attitudes. Those are what developed over 240 years of our existence.

Andy 18:41
Do you think that that’s an accurate perception?

Larry 18:47
I think in some cases, if a person goes to trial, if they’re innocent, of course, they’re in denial. But if the evidence is overwhelming, that’s why we have the Alford plea. Because sometimes, the fact is, the evidence will convict you even though you didn’t do it. So I don’t make those rules either. Okay.

Andy 19:12
Yeah, I can’t, I can see I hadn’t really considered your part about hadn’t preemptively I guess you’re signaling to the court that you are taking some level of responsibility for your actions by taking a play.

Larry 19:25
You absolutely are. And then the federal system is written into the sentencing guidelines, which passed in the Reagan administration was one of their cherished achievements. There is actually that in the sentencing guidelines, there are enhancements for going to trial. It’s written in the statute on the federal side. It’s not just a practice it has it is written because you are not accepting responsibility.

Andy 19:52
Interesting. All right. Then I think we are ready to move over to the third question. This came in on the website Someone posted a comment on registry matters SEO. Is anyone considering illegal ex post facto applications? recent case of John Doe vs. can’t remove plaintiffs from registry in Tennessee through due process and ex post facto because Feds ruled registry punitive without review. Now, I just put this in there this afternoon, haven’t had a whole lot of time to try and go track down any further details. Do you have an off the cuff kind of response to what this is?

Larry 20:30
I’m not sure of the John Doe versus can’t case but Tennessee is within the Sixth Circuit. And all the stuff that’s happening, Tennessee is flowing from the DOS versus Snyder decisions out of the Sixth Circuit out of Michigan. So I’m suspecting that’s what he’s talking about. But that’s exactly what they’re alleging is that these registries not unconstitutional, and please save your hate mail. It depends on what you require of the registrant the mere act of registering is not unconstitutional. We register voters we register cool schoolchildren, we register young men for the draft. And they don’t have an option because I know people are gonna say, Well, Harry, you just don’t take them to their stand. People voluntarily registered to vote, but no, not for the draft. You don’t you’re required to do it as a federal statute carries a prison, maximum prison sentence of five years if you don’t do it, and you lose your financial aid for college and a number of other benefits, which I don’t think I can recite all. But it’s a serious better not to register for the draft. But no one has ever argued that the draft registration process is punitive. Because it isn’t. And you could have the same PFR registry that would not be punitive. So merely registering people to stop was period. In the case of Michigan, they just couldn’t stop adding on the case of Tennessee, I think we’ve gone through it on an episode, they just couldn’t stop adding on and adding on to that’s the case around the country. But you could have a very benign registry, that would be very constitutional. But the Xbox facto is where most of these are being born. Because they’re imposing probationary type conditions, and disabilities and restraints. They’re way beyond what can be considered a registry.

Andy 22:23
If we all were to have the registry that existed in Alaska in whatever it was 2003 2001 I forget the date, Larry.

Larry 22:30
Yes. 2010.

Andy 22:32
I struggle to think that other than people bitching about they’re going to visit the popo, whatever it is over here. I don’t know that anybody would really complain that much. Yes, some people would complain, yes, you shouldn’t have to do it, blah, blah, blah. But you wouldn’t have living restrictions, you wouldn’t have work restrictions. At the time, there wasn’t much internet. So at least that wasn’t much of a thing. But now it is. So that wouldn’t be much of an issue. You wouldn’t have people living under bridges. If that were the registry, you wouldn’t have people living under bridges and tent cities that you do in

Larry 23:00
Florida. Well, in fact, and Alaska 2000. At that era, you did not have to go to the popo you mailed in a form. Okay, so that was even more gooder? Well, that’s how they found it constitutional. Because there was very little require.

Andy 23:15
And you don’t have to go get booked and fingerprinted and frist and put in lockup and in a holding cell for a period of time. You just mail in a form like, wow, that doesn’t sound so bad.

Larry 23:27
Well, there are only a few registries left like that anymore. And the authorities, the lawmakers will continue to pile on. And there will continue to be challenges. But folks, the magic silver bullet you’re looking for isn’t coming, because the mere act of registering is not unconstitutional. So therefore, you can peel the registry back once there’s been an adverse court ruling. And it is constitutional. Only the narrow circumstances like in Maryland, or they have that constitutional provision in the state constitution that says that there cannot be any disadvantages imposed. Maryland would have a real hard time because any type of registry would be a disadvantage, ex post facto.

Andy 24:13
But any, any idea how that ended up in their constitution versus the other 73 states? However many that is.

Larry 24:21
Thank you. 61. but who’s counting? Okay, right. But anyway, they I don’t know how that ended in their constitution, but it has a great provision that has saved them because they would have gone back and tried after those cases that went adverse to them, they would have gone back and tried to make a more benign registry, which is what the other states typically do. They don’t generally throw up their hands and say, well, we give up I mean, we we covered an article about two weeks ago or last week from Tennessee. I think it’s two episodes back where we read verbatim from the quotes from the legislators saying that they weren’t gonna get rid of the registry.

Andy 25:02
There, we got to figure out how to pigeonhole it in with what the Ninth Circuit seventh sent which circuit? Layer six circuit? Six, six. Okay. Yes, yes, they were, they were going to try to figure out how to make it fit within those guidelines. And they were going to roll it back to the point that they were not forced to roll it back further.

Larry 25:17
That is correct. And that’s what they’re typically going to do. Folks, we will stop having registries when the public stops supporting them. That’s, that’s really the end of it. The silver bullet that you’re looking for in legal cases, is not coming. Now we might get a silver bullet in terms of the internet dissemination, because that is something that really damages the individual, particularly when they physical address, the vigilantism and the disenfranchised, disenfranchisement, from from employment and from Reza, I mean that that’s a horrible thing that you couldn’t really have thoroughly evaluated and oh three, when they did the Connecticut Department of Public Safety versus doe. And the Connecticut court had said it was unconstitutional. But of course, the Ag of Connecticut took it to the US Supreme Court, US supreme court said no, it’s merely just a dissemination of already existing information. Let’s say all that has changed since since that case, because it’s no longer just a dissemination of existing information about the conviction. Now, it’s all the stuff that was not a part of the conviction that’s being disseminated. So it’s ripe for brand new litigation, because that case law is can be distinguished from what exists today. Gotcha.

Andy 26:36
Are you a first time listener of registry matters? Well, then make us a part of your daily routine and subscribe today. Just search for registry matters through your favorite podcast app, hit the subscribe button and you’re off to the races. You can now enjoy hours of sarcasm and snark from Andy and Larry on a weekly basis. Oh, and there’s some excellent information thrown in there too. Subscribing also encourages others of you people to get on the bandwagon and become regular registry matters, listeners. So what are you waiting for? Subscribe to register matters right now. Help us keep fighting and continue to say F why.

Andy 27:24
Okay, let’s move over here. Larry, I put this in there. And I asked you the question straight up, like, what’s the grand jury indictment, Georgia case? Like we don’t, you didn’t give me any information as to what this is about. So what is this about?

Larry 27:36
I just said I’m pretty sure we could drop it because I thought that Georgia case might get out of the way it might have been worthy of discussing the conviction and in Greene County, and Brunswick with the with the Father, the Son and the neighbor. But that was very complicated indictment, and I didn’t really completely understand it myself. They had like nine counts on each one of them and they got convicted of almost all counts.

Andy 28:01
Okay, so may might be something that we revisit at a later date. could very well be cool. All right. Well, then we are going to come over here to the e o work case that you are very excited about for some strange reason. And I did notice some chatter about it on the narwhal affiliate list. It was just decided by the Iowa Supreme Court this week. The case number is two zero dash 0375 and the name is Travis bomb. gars Kyle Krause, Anthony Gomez, James Hall, Raymond, LaBelle, Shane millet and Kelly sand versus the state of Iowa. Did all these people Larry did they all have some big power? They met at the local Starbucks, and they filed a lawsuit against the state of Iowa.

Larry 28:45
No, that’s not exactly how it happened. There were several inmates who had filed post conviction petition for post conviction relief. And their cases were ultimately consolidated for purposes of appeal. And this is not all that uncommon, and it’s done for judicial economy.

Andy 29:04
Okay, well, here even though I’m in an igloo, it’s I did read all 45 pages later, which I’m sure surprises you. I note that I noted that the essence of the case is that several male inmates serving time for sex related offenses are challenging what they believe to be a catch 22 in Iowa’s prison system. But before we get to that, I noticed the state challenged almost everything. They challenged the venue, they asserted that the case was not right for decision. And the most appalling thing is that they challenged the appointment of counsel to represent the men, they prevailed on that particular challenge. So the men were left without representation. I swear I swear I thought that you were entitled to have some sort of court appointed attorney represent you. But why did they fight so hard?

Larry 29:49
But you are entitled to representation where you’re facing loss of your liberty, but they’re already convicted. They’re, they’re trying to shorten their loss of liberty. But why does the state fight so hard? It’s really easy. easy and simple to understand. If you can prevent a trial, you cannot lose. So therefore, the state will use every tactic. Sometimes they’ll border in the gray area, but they’ll use every tactic that they can conceive of to prevent the issue from being determined on the merits, as alleged in the complaint. So they put forth those challenges about venue. I mean, the whole way, by the way, the wrong jurisdiction here. I mean, this should have been filed, where they were convicted, because that’s normally the way I think, post conviction by fluid Iowa. And then they asserted it was not right, because they said, Gee, these men have not proven that that they that they’re being held merely because they haven’t completed treatment. They have not shown that they’re otherwise eligible. So therefore, it’s not right. They have deaf become eligible for release in all other aspects before they can say that this is why they are holding up. And of course, they wouldn’t want him to have counsel, because a counsel is going to be better trained in presenting the arguments than a pro se litigants going to be so all it makes sense. You’re trying to delay. It works the same way. If you’re charged with a crime, I have all these people, they just say, Larry, I can’t take this anymore. This has been pending for a year and a half. And I said, Well, you’re still free, right? Well, yeah. But but it’s just stressing me out. I said, but you’re still free, right? And if you if they never can get this case to court, you will never be convicted. But I just can’t take it anymore. I said, Well, what seems like

Andy 31:34
the time, the longer the time goes on, the better off it is that would that that would indicate to me that would send you a signal that they have less than stellar evidence against you, or they’re waiting for something to develop?

Larry 31:46
Well, it could be that you’re you’ve delayed it, it could be a combination of delays, but the delay often works to your benefit. Because if you if you have a case that’s going to go to trial, or you’re contemplate going to trial, things can happen that makes those witnesses unavailable. I mean, people,

Andy 32:06
people, this sounds like a mafia movie right now, man,

Larry 32:09
people do move. I mean, this is a vast country, and people do relocate from state to state, I mean, it surprises you, but they do. People are in points of their life, they might be in their armed forces, and they may be deployed. There’s just all these kind of things that are critical witnesses sent to a combat zone. And they have to solve the case for the terms of deployment, that witness may come back and the other one may be in college in Honolulu by them. And they can’t put on their case. So that enhances your negotiating power because the time is running. And the evidence is getting older and older, that people may be getting less and less anxious about having you go to prison. Can we all good things. It can only get better for you the longer case runs, but two people just can’t stand it and they just say I just can’t. So what we can call it the game. So you want to go ahead, change your play, we can do that. So

Andy 33:06
well, let’s get to let’s get to the underlying claims made by the men to be considered meaningfully for parole. These inmates needed to have completed their PFR treatment program or s OTP. But because of limits on resources, this treatment has tended to be available only as the inmate nears his tentative discharge date. The inmates asserted among other things, that this circumstance violates their constitutional right to due process. I don’t understand. To me this case seems eerily similar to the case from Illinois, which was won by Adele Nicholas, it should have been a slam dunk, Larry. Yes.

Larry 33:41
No, they should. It shouldn’t have been there’s a significant difference and I would Illinois in the process. The the challenge in Illinois was successful because the state has a period of mandatory supervised release, which commences only after you conclude a person’s incarceration. And the Illinois prisoner review board sets conditions for that period of MSR mandatory supervised release, which includes having approved housing, Iowa has a system of meritorious parole, which permits an early release from one’s period of incarceration upon successful completion of the required programming. And therein lies the problem. The required programming of treatment cannot be completed due to lack of, of slots, which is a funding issue. The challengers were not successful, I carry their burden of proof that there was deliberate effort to keep them in prison. They just did. They didn’t have evidence to show that

Andy 34:40
it’s just that simple. They did not carry their burden of proof. So okay, to deny them parole, you know that the state is deliberately Larry, you must know that they’re deliberately keeping them in prison by not having enough treatment resources available. Why can you not see this?

Larry 34:58
Well, in courts We are, we require proof. I mean, that’s the that’s the way our system works. It is a real tragedy for those who are unable to make parole due to lack of housing, or due to lack of treatment. But having said that being released on parole in a system such as Iowa is not a constitutional right, because you’re getting to go home early, but your prison sentence is still in place. meritorious parole is a privilege is granted, but all program requirements have been met. For better or worse, these offenders are not eligible for early release from prison until they complete treatment. Thus, that’s in stark contrast, Illinois where they’ve actually exhausted the prison state and are still serving a period of prison time because their mandatory supervised release is being served in custody. The prisoner review board and Illinois won’t release them, because they don’t like where they would propose to go. That’s different than an Iowa and every wrong that occurs in society. It’s not necessarily a constitutional violation. This is morally wrong. And I think it should be fixed by additional funding for treatment, which is in and of itself a tough political sell in an area and an error of no new taxes read by lips.

Andy 36:17
Oh, I don’t have that one queued up. But I do have this one queued

Andy 36:19
up. The notion that everything that is stupid is unconstitutional is probably the besetting sin of judges, anyway,

Andy 36:30
and that Scalia saying that just because you don’t like it doesn’t make it unconstitutional? I think I cued that correctly. That is great. Um, just real quick, as a side note, that can we can we summarize the difference between Iowa and Illinois and this is that the Iowa folks would be getting parole versus those. The folks in Illinois have backed out and they would be getting released on probation or, or even without probation, like they’ve maxed out their sentence. That’s the difference.

Larry 36:59
They have maxed out their term of prison, they have a subsequent sentence called MSR, the mandatory supervised release component, but that is intended to be just listen to the title, mandatory supervised release.

Andy 37:13
Sounds like you’re, I mean, supervision of some sort. So it’s probation. It sounds like,

Larry 37:17
yes, it’s intended to be a supervised community component. But the the prisoner, their equivalent of of the parole board. Let’s say we won’t release them until they have housing that we like, but they’ve already paid their debt in full of the incarceration side, that MSR is intended to be served in the community, your prison sentence, and Iowa is a prison sentence. And if you are released early from that prison sentence that is a meritorious grant this condition upon you doing things that they impose upon you to do.

Andy 37:52
I gotcha. All right, well, then up because I’m confused, because it’s clear that those in prison have a Liberty interest in parole. Iowa code section nine, zero 6.4. Subsection one provides a parole or work release shall be ordered only for the best interest of society and the offender, not as an award of clemency. The Board shall release on parole or work release any person whom it has the power to silver leaves, when in its opinion, there is reasonable probability that the person can be released without detriment to the community or to the person, a person’s release is not a detriment to the community or the person if the person is able and willing to fulfill the obligations of a law abiding citizen in the board’s determination. Theory, they do have a Liberty interest in getting out of prison early. How can you deny this?

Larry 38:44
Well, I’m not denying that at all. There’s no disagreement. The question is, do they have a constitutional right, that requires taxpayers to fund the programming that will permit the parole board because you read the language that would permit the parole board to release them, consistent with all the requirements articulated in Section nine? Oh, 6.4, subsection one? That’s the where in the Constitution. There’s just it’s just not in the constitution.

Andy 39:13
So I think I see what you’re saying though, on page three of the opinion, the court stated, and considering this case, we emphasize that our job is not to approve or disapprove how the state allocates resources in the prison system. We simply conclude that no constitutional violation has been established. The record shows the Iowa Department of Corrections has not postponed treatment in order to delay parole. The problem is simply one of numbers. There are more male PFRs in the Iowa prison system than the treatment program spots available. The DRC has been actively addressing the need for PFR treatment by increasing the number of classes and counselors. The existing waiting list which prioritizes admission to treatment based on tentative discharge date is a reasonable way to decide when the offender gets admitted to treatment. Are you telling me that the court does not have the power to order the state to provide more resources or treatment?

Larry 40:05
No, I’m not telling you that. I’m telling you that is not the role of courts to allocate funding unless it finds there is a constitutional violation. A person serving a sentence of incarceration does not have a constitutional right to early release, nor does that person have the right to be provided anything other than basic medical care. Do you remember all the controversy a few years ago when the court ordered that a sex change be paid for by the taxpayers? Do you remember that?

Andy 40:32
I do recall this and I remember it was a little bit heated, I guess we can say that was a case ordered in the state of Idaho to pay it was due to a ruling from the Ninth Circuit Court of Appeals. Everyone knows that court is dominated dominated by a bunch of liberal pointy heads, Larry, you still have not convinced me Why is this not a constitutional violation. But at the time of the hearing, all seven offenders were on the waiting list to receive track one treatment program, the Sex Offender Treatment Program, that waiting lists had 419 individuals on it, the petitioners occupied positions 209306 341-360-8377 382 and 392 got a forerunner 19. I mean, they’re like they’re on the bottom half of that list. While this case was on appeal, cross was moved off the waiting list and began the treatment program. It’s a conspiracy theory, Larry, and you just will not admit it.

Larry 41:27
Well, I can’t admit it, because the petitioners did not prove such a conspiracy. According to the court, except for a small program for inmates with special medical needs, that I would medical that which is that the one medical classification center and Oakdale. All SMTP programming for men takes place at the new correctional facility. And treatment takes approximately three to four months with track to base lasting somewhat longer than track one. At the time of the hearing. In this case, there were potential slots for 175 individuals to undergo treatment at correctional at any given time. However, the correctional system as a whole has 1600 male inmates needing to complete treatment does an inmate other group of 1600. As they get closer to the discharge date, they would typically be transferred to do correctional and put on the waiting list. The court found that process of assignment on the waiting list is not unconstitutional. It seems to me that the evidence shows that the people are getting treatment. The issue is more funding. And that’s an issue to be determined by the legislature. I mean, you don’t like legislating from the bench. Do you, Andy?

Andy 42:32
Oh, I don’t think we should legislate from the bench. And I guess state constitutions are generally set up like the federal one and the Congress controls the person. I assume that’s who controls the budget generally for the states

Larry 42:44
that the state legislature.

Andy 42:47
While I was reading, I noticed that on pages 16 and 17, that the opinion cites case law from other jurisdictions and stated as a general proposition, prisoners do not have a constitutional right to rehabilitative services. It goes on to list a few cases which I won’t read. The bottom line is that this is not same issue as Illinois, and that these people will have to wait, did I get that? Right, Larry?

Larry 43:11
That’s what the Iowa Supreme Court said, You do, indeed have that right. Unless the people of Iowa, through their elected officials decide to prioritize additional treatment, they will indeed have to wait. As I stated numerous times just because something is not good public policy, it does not magically violate the constitution. Oh, God, I

Andy 43:30
can play that clip again. Let me try this one.

Andy 43:32
Stupid but constitutional. Constitution. Stupid but constitutional.

Andy 43:41
I couldn’t resist doing the WebPart. So any any closing remarks on this case?

Larry 43:48
I feel really bad for the people that are they’re trying to do their best. The sad thing from a public policy perspective, is that we would actually want to incentivize people to do everything they can in the way of programming and to behave themselves for a second chance at freedom. And an earlier Chas, amendment when they served their entire sentence, they’re gonna be released anyway, because they don’t, as far as I know, what does it do what Illinois does continue to hold them in there. But we would want that it would be it should appeal to the conservatives, because theoretically would save some money if people were out in the community. I don’t know that that’s really as much of a savings but we just want these people out being productive, working, paying taxes, and moving on to the next chapter of their life. So it’s, it is unfortunate, but the remedy is not going to come through the courts. I don’t think you’re going to solve this through through court challenges. I just don’t.

Andy 44:44
I’m going to give you a part of an expression and I’m going to hope that you can finish it but if not, I will finish it but I think it goes something like an ounce of prevention is worth a pound of cure. So could we not apply that to this. And if we were to invest a small amount of money on the front side to get more people to go through the treatment stuff, then they would not stay in prison as long, which costs an exorbitant amount of money for it to keep them actually locked up. But we’re not willing to fund it up front. This sounds like getting vaccination versus actually getting treated with a further cure. So it sounds like to me,

Larry 45:22
it does, indeed, but you know, when you when you take a few handful of people out of prison, you really don’t save a lot of money there. I was having a discussion recently, with a colleague of mine, you really save money with prison management, if you can close an institution. But I mean, when you when you take 30 people out of an institution as 1400, you save the cost of breakfast, lunch and dinner. But I mean, the security staff is all in place, the program staff is all replaced, utilities are running, everything is running as normal. I mean, the savings are really insignificant. So you have to really do a significant decrease in population and ideally, to close an institution. So I mean, you you run and say, Well, if I could get these, these four guys out, once you’ve got 1600, what what did that accomplish?

Andy 46:10
I do see that I’m just looking at some sort of tidal wave coming down the pike where some number of those will exceed the capacity of that Newton correctional facility or whatever. And they have to figure out a way to get more of them to go through or else they’re gonna butt up against their max date. And they either let them go without having the treatment or they hold them over heavy. I mean, that’s just an actuarial table. If I’m not mistaken.

Larry 46:35
That’s correct. But But yes, it’s a tough sell on saving money, because treatment costs money, and the savings is margin unless you can significantly decrease prison population. And that’s the tough sell politically, because crime in many instances, the statistics are showing since the pandemic crime has been going up across the country. So there’s a lot of fear against further relaxation of how we treat those who are in prison and those who are facing present there’s there’s kind of a backlash against all this liberal Ducat ism.

Andy 47:08
Well, thank you for helping out. To clarify all those points. Let’s cover this one that we’ve picked at least once out of Connecticut, and the name is Anthony versus commissioner of correction. What’s this case

Larry 47:20
about? This is a lingering case that’s gone on for several years. It’s an Anthony a versus commissioner of correction was decided in 2017. To commit to Connecticut Supreme Court affirmed the judgment of the appellate court which had concluded that Anthony a had a protected Liberty interest in not being incorrectly classified by the Department of Correction as a P F. R, for purposes of determining his housing, security and treatment needs. The bottom line is that Connecticut decided to classify him as a PFR anyway, even though he had not been convicted of a sexual offense.

Andy 48:00
Right, and they what did they base that classification on?

Larry 48:06
Well, well, there’s there’s some Can you just read the partial, extremely redacted excerpts from the court’s opinion? It explains it probably better than I can.

Andy 48:19
Okay, all right. So um, there’s gonna be some level of colorful language here. So if trigger warning, let me let me do it that way. There’s, if you are sensitive to violence, kind of things that this might be coming down the pike, but based on the decision of the court, the petitioner was arrested and charged with several offenses, including sexual assault in a spousal relationship in connection with an incident that occurred on the evening of July 18. And the morning hours of July 19 and 2017 life 2017 Okay. His former wife M informed the police that on the night in question, she and the petitioner had been drinking and smoking some crack cocaine, which caused the petitioner to become paranoid shocker there and to act in a delusional manner. Believing that another person was in the house, he began searching for that person under the bed, in closets, and in the hallway outside the bedroom and looking for used prophylactics. After repeatedly accusing me of having an affair. Petitioner made her take off her clothing and lie on her back, Larry, I’ve reread that sentence a whole bunch of times, and I still don’t see how those two things are connected. Were Pon digitally penetrated her later the petitioner became suspicious that another man had been using his video game system and repeated what he had done. When the petitioner continued to accuse her of having an affair em, out of annoyance, lied to the petitioner that in fact, she was having an affair with one of his friends, which cause the petitioner become violent and to pour soda on em. That also doesn’t make any sense to me, Larry, this is too much to read. So I’m stopping to provide a statement to the police later

Larry 50:00
Hey, Dad, and let me correct that your assets 2017. It’s not correct that the event happened at an earlier year. That was the year the appeal was decided. But, but this is a redacted version of what was in the court. So yeah. In his statement to police, he he admitted he was getting high on cocaine, and questioned him about whether she was having an affair. He also stated throughout the night, as he lay in bed next to him, she said, though, and that she was not in the mood pushing him away. He stated that when him said no, he would stop for a while before trying again, which happens several times throughout the night. And then at one point M got so tired through the phone, she threw a phone at him. And the petitioner stated that he took the phone and snapped it in half.

Andy 50:47
Good sounds like bendgate. It must have been an Apple phone. I’m guessing that the state would have had a strong case on his admission. I recall the accuser subsequently recanted.

Larry 50:56
But she did indeed she did. Every candidate her statement to the police. In a notarized letter dated August 17 2011, which is the correct year, she stated that she did not wish to pursue any charges against the petitioner, that the police report concerning the night in question was inaccurate, and that Petitioner never sexually assaulted her am explain that she have a petitioner are very sexually active. And that tomorrow or her body that evening came from their sexual activity. him further stated that her face was injured when she came out of the shower and slipped on the wet floor. And that Petitioner was not present when she fell, and at no time had tried to harm her.

Andy 51:39
You know, people in prison often end up with different kinds of bruises and stuff and they go oh, yeah, I repeatedly smacked myself in the face in the shower. Probably not true. But so her recantation Should Have Ended the case, Larry, I can guarantee you that. That’s how that went.

Larry 51:55
Unfortunately, it doesn’t work that way. On February 21 2012, the prosecutor informed the court, which was what she was supposed to do. This she had met with him, went for him per the prosecutor that she was abusing substances on the night in question, and that she no longer recalled her conversation with the police, and that she now believes that something different happened from sexual assault, which was alleged to have happened. The prosecutor informed the court that they have also stated that she was that that when she sobered up, and saw what really happened, it was not the petitioner who had sexually assaulted her. And then she slipped and hit her head on the bathroom. She had a seizure. And sometimes seizure makes her belief things that are not actually true, and that she has no memory of whatever she told the police, but now believes that it was incorrect.

Andy 52:48
What did the state do after receiving that notarized statement?

Larry 52:51
Well, the state entered on an old a procedure on the charge of sexual assault and a spousal relationship. The petitioner thereafter plead guilty to unlawful restraint and the first degree failure to appear and violation of probation for which he was sentenced to an effective term of three years and six months of incarceration.

Andy 53:10
You just use the word of Nolet Prosek. What did you say?

Larry 53:14
De la pro ck, that’s a Latin term, which means that the state wishes to not proceed any further is just this case, we wish we wish to move no further on the case. So it’s an essence a dismissal, but it doesn’t have to say title.

Andy 53:28
So Okay. A way that every the case is that the Department of Corrections decided that the petitioner had committed the offense that was dropped after the accuser recanted. And his argument was about the due process clause. It is that is it that is that because the due process clause prohibits the government from depriving a person of any such interest except pursuant to constitutional, constitutionally adequate procedures. The case was remanded to the habeas court for a determination of whether the Department of Corrections had afforded the petitioner the process he was do prior to assigning him the challenge classification. Do I have that right? What was the Supreme Court deciding? Connecticut Supreme Court decided?

Larry 54:10
Well, you do you have you have it right. Pretty soon. I didn’t know you’ve got to have a job right. FYP. home it was it was the petitioners appeal from the judgment of the habeas court denying his amended petition for writ of habeas corpus. The petitioner asserted that the habeas court incorrectly determine that the commissioner of correction did not violate his right to procedural due process in classifying him as a PFR. So the Connecticut Supreme Court had decided in 2017, that he did have the right to be properly classified and that he had the right to due process. So that’s what he was alleging that habeas court didn’t do a good job of. He also claimed the table scored incorrectly determined that his challenge classification did not violate his right to substantive due process or his right not to be punished except in cases that are clear warranted by law and with the Connecticut constitution. The court concluded that the petitioner was not afforded this is the most recent appeal that we’re talking about was not afforded procedural due process protections. He was due prior to be classified as a PFR. And therefore, its classification violate his right to procedural due process under both the federal constitution and our state constitution. And they rejected the substantive due process. Thoughts claim,

Andy 55:27
can you can you explain what the differences between the two,

Larry 55:30
I’ll try both substantive and procedural due process are two different aspects of the same due process of law that originates in the fifth and 14th amendments. However, a distinction between the two is is noticed when procedural due process aims to protect the fundamental right of the individual by ensuring that the government follows the rules. And a free and fair trial is given or the process is as that person has a four day process to substantive due process prevents the government from exceeding the limits, by inventing laws. substantive due process generally serves to put a brake on what the government can do when it announces a broad policy statement. And the procedural due process is you’re entitled to a certain level of procedure before they take away our right which is he had the right to be classified correctly, because that affected his housing and program opportunities. So in order if they were going to classify was a PFR, they needed to give him the adequate process where he would know what he was big. Whatever evidence are we using, let him call witnesses that have tried to rebut their all their presumptions, and nature surely gave him a kabuki kangaroo court. So and it came with a blue key, and it came back to haunt them. The Connecticut Supreme Court did not say you cannot classify someone as a PFR. They had ample evidence to classify him as a PFR. But they just wanted to take a shortcut folks in Connecticut, I know you’re listening, the correction Secretary probably listens, you’re gonna you’re gonna win. All you need to do is just take a little bit more time. Let the person have counsel, if they request it. Let them know what the allegations are. Let them cross examine your witnesses, they’re gonna say that they had all likelihood, in all likelihood, he did commit this offense they got they got dismissed. But they didn’t want they wanted to take a shortcut to classify him. And they did without going all the details. They basically just railroaded him through something that didn’t even even closely resemble due process. And they said, we’re classifying you as a PFR. Well, guess what? Can’t do that. You got to give the person process.

Andy 57:41
And if we overlay this over the new Awai guidelines, whatever coming down, is this a violation of the due process clause?

Larry 57:51
Oh, well, it could be a violation of both forms to due process. We’ll just have to wait and see. I don’t I don’t think I don’t think we know yet. It does these these regulations. I haven’t followed that. You’re talking about the new regulations that were proposed by the Trump administration that are actually going to be implemented under the by administration. Right?

Andy 58:08
That is correct. Yes.

Larry 58:10
Yes. I think there might be some both forms of process that will challenge if those windows do not if but when those become the final rules for Awai. I suspect there will be a number of process challenges both substantive and procedural due process challenges.

Andy 58:26
We’re starting to get short on time. So can you tell me what the court ultimately decided in this case in Connecticut,

Larry 58:33
it concluded that although the petitioner was afforded some procedural protections required, it is clear that he was not provided all of them. And particularly, he was not provided one an opportunity to call witnesses in his defense to adequate notice of information to be relied upon in determining his classification of the PFR ad three, the impartial decision maker to rule and his appeal. He wants to provide it It illustrates, folks, you can do an awful lot if you’ll just follow the rules. That’s all.

Andy 59:05
Very well. Any final notes before we move on to who’s that speaker?

Larry 59:10
Are we running out of time already?

Andy 59:12
Yeah, we’re at 50. Oh, sorry. Almost 60 minutes.

Larry 59:15
Wow. Time flies when you having fun?

Andy 59:19
It does. It does. It does. All right. Well, then I think we can move over to who is that speaker? And last week I played

Andy 59:28
it doesn’t fit. If it doesn’t fit. You must acquit.

Andy 59:33
And I received numerous people signing up for answers and the first one to come in came in. I think even before we were done recorded, but if not it came out as soon as the Patreon version came out. And that was Brian n. And he wins all the glory and fame that we have to offer here. FYP studios do you want to set up who’s that speaker for the next one or should I just played?

Larry 59:55
Well, it just goes way back folks. You’re gonna have to, you’re gonna have to remember back To the decade of Watergate, that’s not enough of a clue. Oh, man,

Andy 1:00:05
there, you just you give stuff away.

Larry 1:00:07
You gotta gotta think back. But this is not a this is not an everyday household name that made this one here. And then, before we play this, we’re anxious to have some submissions from listeners of length that I think we should use. Because we’ve been told that hearts are too easy. So let’s send them send them to Andy. And he will, he will screen them and we will decide which ones to use as recommendations for a mystery speakers.

Andy 1:00:33
You could you could do that send me messages at mystery to the subject of mystery speaker at registry matters cast@gmail.com. And we we can fill these in. But yet, Larry, like everyone is guessing that they’re saying, I’m not guessing because it’s too obvious. So this is going to be a little bit more obscure. Here is this week’s who’s that speaker?

Larry 1:00:55
What did the President know? And when did he know? I will play that again. What did the President know? And when did he know it?

Andy 1:01:07
And that is who’s that speaker for episode 204. So send me a message at registered matters. cast@gmail.com. And same with the subject? Who’s that speaker? WT s or something like that? And tell me who that person is there. We didn’t get a new patrons this week. Did we get any new snail mail subscribers?

Larry 1:01:27
I don’t believe we did. But we’re sending out an awful lot of sample transcripts. So I know that they’re going to come. They’re going to come rolling in here by the dozens in 2022.

Andy 1:01:38
Do you see who I gave you for picture this week?

Larry 1:01:41
No, who did you give me?

Andy 1:01:43
I gave you Johnnie Cochran.

Larry 1:01:47
There is actually a strong resemblance and get us there.

Andy 1:01:50
Yes. And this is a picture of him with the gloves. And what were the gloves?

Larry 1:01:54
Those were the gloves that were alleged to have been used and in the murder of the coal. Yeah, what was his name? Go Goldwyn. What was that? My god? Yeah, dude. Ron, Ron. Ron gold. Ron Goldman.

Andy 1:02:07
Okay. And it’s so if, if the gloves do not fit, you must acquit. That’s what the statement is?

Larry 1:02:14
That’s correct. Good, sir. It could be a number easy before I close it all out. There could be a number of reasons why they didn’t fit. He could have had swollen hands that they we don’t know why they didn’t. The gloves got shrunk. We don’t know why they didn’t fit.

Andy 1:02:30
All kinds of things. Anything else before we close out there?

Larry 1:02:34
Well, I’m gonna just ask now, are we going to be recording on December 28? Saturday, December 25. At our normal time?

Andy 1:02:41
I mean, seriously, no, I can’t imagine we will actually record on Christmas Eve.

Larry 1:02:46
Christmas Day is Sunday, Saturday, I

Andy 1:02:48
mean, whatever Christmas Day, whatever, you’re gonna ask me that for for a month from now. I don’t know it’s a month from now. You might not be here, you might go visit that bridge in West Virginia.

Larry 1:03:00
I’ve given a lot of thought.

Andy 1:03:03
Okay, um, you can find all of the show notes over at registry matters.co. You can leave voicemail at 747-227-4477 email at registered matters cast@gmail.com. And thank you so very much to patrons that support the program and you can join them. over@patreon.com/registrymatters. Twitter. There’s a Facebook page if you want you can also go find the show. Do us a favor, go over to YouTube and do like a thumbs up, listen to the program help get some of those numbers up and feed that suggestion engine for more people to perhaps find it. So that’s youtube.com/registry matters. And I think that’s all I got for the evening. Larry, anything you want to say before we close out?

Larry 1:03:47
I hope everyone had a wonderful Thanksgiving holiday weekend. By the time this gets out. They’ll be back to work.

Andy 1:03:54
Absolutely. Again, Larry, I hope you have a splendid evening. I will talk to you in a few days. Have a great night.

You’ve been listening to FYP

RM204:Every Wrong Is Not A Constitutional Violation

RM204: Every Wrong Is Not A Constitutional Violation

On tonight’s show, we have two amazing cases: One from Iowa and one from Connecticut. The Connecticut one, we’ve been putting off for two or three episodes. We have some questions that have been submitted to us. And we’ll do the best we can with those questions.

[1:23] Can the sheriff make his own rules outside of statute in Paulding County, Georgia

[14:10] Is there a penalty for taking things to trial versus taking a plea

[19:52] Is anyone considering ex post facto cases in Tennessee

[27:24] SUPREME COURT OF IOWA Case No. 20–0375
Travis Bomgaars, Kyle Cross, Anthony Gomez, James Hall, Raymond Labelle, Shane Millett, and Kelly Sand vs. the State of Iowa

[47:08] Anthony v. Commissioner of Correction


Read Transcript of RM204: Every Wrong Is Not A Constitutional Violation


Leave voicemail: 747-227-4477
Email us: registrymatterscast@gmail.com
Support us on Patreon: https://www.patreon.com/registrymatters
Follow us on Twitter: https://twitter.com/RegistryMatters
Join the Discord server: https://discord.gg/6FnxwAQm57
Want to support Registry Matters with some swag: https://shop.spreadshirt.com/registry-matters
Apple Podcasts: https://itunes.apple.com/us/podcast/registry-matters/id1305039280
Google Play Music: https://play.google.com/music/listen?u=0#/ps/Icuxbpzvyti7wtoredipbtiojqy
RSS: https://www.registrymatters.co/feed/podcast/
Spotify: https://open.spotify.com/show/3d75P7Kc37n2l79m89F9KI
YouTube: https://www.youtube.com/registrymatters