Archive for September 21, 2009

Bath Time Photos Are Child Porn ?

September 21, 2009 Comments off : Parents Sue Walmart Over Kid Bath Pics. : Are Bathtime Pictures Child Porn?

Let’s say you take some pics of your kids (ages 1½, 4, and 5) at bath time, and then you go have them developed at Walmart. The Walmart employee sees the pics and calls the cops on you for child porn. Your kids are taken away and you don’t regain custody for a month.

That’s exactly what Lisa and Anthony “A.J.” Demaree of Arizona say happened to them … and now they are suing Walmart.

Richard Treon, the Demarees’ attorney, said the seven to eight bath- and playtime photos of the girls were only part of the 144 photographs from the family’s vacation in San Diego.

“There was nothing sexual about it,” Treon told WTOP. “This is a parent’s worst nightmare.”

The couple has filed two lawsuits, one directed at the State Attorney General’s office, the City of Peoria, and the state of Arizona. The other lawsuit is directed at Walmart, headquartered in Arkansas.

This morning, they spoke to “Good Morning America” more about their ordeal.

“I don’t understand it at all,” A.J. Demaree told “Good Morning America.” “Ninety-nine percent of the families in America have these exact same photos.”

As we reported previously, the Demarees’ kids were taken from them for more than month. Their names were placed on a sex offender registry, and Lisa Demaree was suspended from her school job for an entire year.

SMART Case Law Update Sept. 2009

September 21, 2009 Comments off

Office of Justice – SMART – Case Law UpdatesSept 2009 Update (PDF)

State v. Atcitty, 2009 N.M. App. LEXIS 112 (June 4, 2009)
• Indian Country
The State of New Mexico had no authority to impose a duty to register on enrolled tribal members, living in Indian country, convicted of federal sex offenses. This was a case involving members of the Navajo Nation who had been charged with state-level failure to register offenses.

Commonwealth v. Wilgus, 975 A.2d 1183 (Pa. Super. 2009)
• Homeless Sex Offender
Because of the way in which Pennsylvania’s laws were written, a homeless and transient person did not have a ‘residence’ to register and, therefore, could not be convicted of failure to register.

U.S. v. Stinson, 507 F. Supp.2d 560 (S.D. W.Va. 2007)
Dismissed defendant’s conviction on ex post facto grounds. Defendant was convicted in 1993 in Michigan, paroled and notified of his sex offender registration obligation in 1996 (his registration obligation was for 25 years). In 2005 he relocated to West Virginia and failed to register as a sex offender. He was charged on March 8, 2007, but the indictment date only covered February of 2007. Following Sallee, the court found that failure to register as a sex offender was not a continuing offense, and that prosecution of this case would constitute an ex post facto violation.

U.S. v. Waybright, 561 F. Supp. 2d 1154 (D. Mont. 2008)
Concluded that the statute which the Government argued required registration, 42 U.S.C. §16913, was not a valid exercise of Congress’ Commerce Clause authority.

U.S. v. Barnes, 2007 U.S. Dist. LEXIS 53245 (S.D.N.Y. July 23, 2007)
Like Heriot and Muzio, found that defendant’s indictment under 18 USC §2250 ought to be dismissed where D traveled prior to the retroactivity guidelines issued on February 28, 2007. Took a different approach to the reasoning, however, finding a Fifth Amendment Due Process violation of defendant’s right to adequate notice and fair warning, citing Lambert v. California, 355 U.S. 225 (1958).

U.S. v. Muzio, 2007 U.S. Dist. LEXIS 54330 (E.D. Mo. July 26, 2007)
Dismissed Defendant’s indictment under 18 USC §2250 because SORNA did not apply to him at the time of his travel (late 2006). Like in Heriot, there was no federal obligation to register until February 28, 2007. Here, though, the court found an ex post facto violation as well.

U.S. v. Mantia, 2008 U.S. Dist. LEXIS 2928 (W.D. La., Jan 15, 2008)
In an opinion with no stated facts, dismissed defendant’s indictment under 18 USC §2250 because of an ex post facto violation.

U.S. v. Aldrich, 2008 U.S. Dist. LEXIS 11411 (D. Neb. Feb. 14, 2008)
Defendant was convicted in 2002 (state court) and 2003 (tribal court) of offenses requiring registration. He failed to register from 2003-2007. His registry address (and actual address, next door) was in Indian Country. He was charged with a violation of §2250 based on living in Indian Country. The court held that failure to register is not a continuing offense, and that his violation of §2250 involved “wholly passive conduct”, and that the ex post facto clause precluded prosecution. The court also found a due process ‘notice’ violation, as well.

How To File Court of Appeals Brief

September 21, 2009 Comments off

This is a follow-up to our earlier post and applies specifically to Ohio cases but may be revised to apply to other states as well. We post here a sample brief for anyone who has appealed their County complaints to the District Appeals Court.

From what we have learned, the Courts are refusing to permit affidavits for indigency (appointment of public legal counsel) to those who are contesting Adam Walsh Act/SORNA /Senate Bill 10 in Ohio. Therefore, you must file your own brief to the Court of Appeals. But you can do it, so do not allow the system to intimidate you. Just file it “pro se”.
We are providing a sample brief which you can submit to the Court of Appeals in your case, in order to further contest your case where the County Courts are refusing to recognize the constitutional violations of these laws.

Download PDF file here.
Download DOC file here.

Disclaimer : We are not legal professionals or attorneys and we cannot provide legal advice or assistance. We only offer this template for your use to revise as your situation requires.