Friday, April 21, 2006

Fresh Law

New Iowa Supreme Court opinions are up. One that caught my eye:

KRUSE V. IOWA (Note: these are now PDF files).
Kruse was originally charged with third-degree sexual abuse in violation of Iowa Code section 709.4, a class “C” felony, based on the contention that Kruse, who was seventeen, performed a sex act with a thirteen-year-old girl. The minutes of testimony included a statement from the minor attesting to the fact that Kruse had forcibly removed her underwear and had sexual intercourse with her. His effort to transfer the case to juvenile court was unsuccessful. Eventually, pursuant to a plea agreement, the offense charge was amended downward to the aggravated misdemeanor of assault with intent to inflict serious injury. Kruse entered a written plea of guilty to the amended charge, which was accepted by the district court. He was sentenced to two years, suspended, and probation. The sentencing order included a no-contact order between Kruse and the victim, and required him to participate in sexual abuse counseling, but it did not specifically require him to register as a sex offender.

Within 10 days of the plea, Kruse’s probation officer prepared a probation agreement that Kruse signed, as did his mother. In that document, Kruse agreed that he would participate in the department of correction’s sex offender treatment program and would “complete Sex Offender Registry by 9-30-03.” When Kruse had not registered as a sex offender by November 1, 2003, and had failed to keep two appointments for the sex offender treatment program, his probation officer filed a violation report with the court. At the hearing on the alleged probation violation, Kruse asserted for the first time that he could not be compelled to register as a sex offender because the offense for which he had been convicted was not a “criminal offense against a minor” as that term is used in Iowa Code section 692A.2(1). The Court decided otherwise, but decided to hold off on the revocation so long as he registered as a sex offender. He didn’t. From looking at the Focus on the Courts website under FECR012411, it appears that the revocation was continued to give him a chance to register, and when he failed to by mid-December, the revocation was entered based on his latest conduct of failing to register post-hearing. That distinction became important.

Kruse asserted several issues:
1) He reiterated that he hadn’t pled guilty to a criminal offense against a minor as used in the Sex Offender Registry definition.
2) He alleged that even if he had, the definition of “criminal offense against a minor” was too vague to be constitutional.
3) He alleged that even if he had pled guilty to a qualifying criminal offense against a minor, and the definition wasn’t too vague, he wasn’t given due process of law because hen a person has been convicted of a criminal offense against a minor and is not incarcerated, Iowa Code section 692A.5 contemplates that “prior to release or sentencing of the convicted person” the court will obtain fingerprints and a criminal history and inform the person concerning the sex-offender registration requirements. Because the State didn’t do that, it couldn’t use his failure to register as grounds for a revocation.
4) He alleged that even if all the above were okay constitutionally (you don’t seriously expect me to repeat it?), then the conviction still violates the Due Process Clause of the Constitution because the review sections established under the sex offender registry law in 692A.8 are not sufficient to satisfy the right to be heard before your liberties are taken away. (692A.8 says a person who is registered under this chapter may request that the department determine whether the offense obligates registration, and that the department shall, within ninety days of the filing of the request – NOT before the registration is required).

Iowa Code section 692A.2(1) (2003) provides “[a] person who has been convicted of a criminal offense against a minor . . . shall register as provided in this chapter.” Persons convicted and placed on probation are required to register with the sheriff of the county of their residence within five days pursuant to Iowa Code section 692A.3. A “Criminal offense against a minor” is a statutorily defined term. The applicable statute defines such an offense as follows:

5. "Criminal offense against a minor" means any of the following criminal offenses or conduct:
a. Kidnapping of a minor, except for the kidnapping of a minor in the third degree committed by a parent.
b. False imprisonment of a minor, except if committed by a parent.
c. Any indictable offense involving sexual conduct directed toward a minor.
d. Solicitation of a minor to engage in an illegal sex act.
e. Use of a minor in a sexual performance.
f. Solicitation of a minor to practice prostitution.
g. Any indictable offense against a minor involving sexual contact with the minor.

(Emphasis in the opinion).

The claim that the charge to which he ultimately pled guilty was not a criminal offense against a minor ignores the fact that his written plea recited that “the Minutes of Testimony accurately describe what happened in all significant aspects.” The minutes of testimony that accompanied the trial information set forth the testimony of the victim attesting to the fact that Kruse had forcibly removed her underwear and had sexual intercourse with her.

Within ten days of his sentencing, Kruse was advised by his probation officer of his duty to register as a sex offender and signed an agreement to do so . . . notwithstanding the absence of a specific instruction from the court concerning Kruse’s registration requirement, it was not improper for his probation officer to conclude from available credible information concerning the facts of the crime that Kruse was required by law to register as a sex offender.

At the hearing on the application to revoke probation, Kruse was allowed to challenge the conclusion of his probation officer that his offense constituted a criminal offense against a minor as defined in section 692A.1(5). The district court was correct in noting that the definitions include offenses in which sexual conduct was involved, but which do not require sexual conduct as an element for conviction, and that resort to the minutes of the victim’s testimony was proper in determining whether the assaultive conduct fell within the definition of a “criminal offense against a minor.”

A statute challenged on vagueness grounds must describe the prohibited conduct with sufficient definiteness that ordinary people can understand that which is prohibited and which will assure that the statute will not foster arbitrary and discriminatory enforcement, and the statutory provisions that Kruse challenges on vagueness grounds, i.e., paragraphs (c) and (g) of subsection 5 of section 692A.1, clearly satisfy this test as applied to acts upon which his conviction was based.

As far as that last due process claim goes, the Court stated:
We need not determine whether the postdeprivation review available to sex-offender registrants under Iowa Code section 692A.8 is sufficient to satisfy due process concerns.3 This is because in the present case the district court, acting under the residual authority the court retains over probationers under Iowa Code section 907.8 (“Jurisdiction over these persons shall remain with the sentencing court.”), afforded Kruse a predeprivation hearing at which he was allowed to challenge the registration requirement sought to be impressed upon him both as to the law and the facts. No sanctions were imposed against Kruse for conduct on his part that antedated that hearing. Consequently, Kruse has not been denied due process of law.

There is also a case up on whether removing good time credits for prisoners who file frivolous lawsuits is constitutional, and whether they're entitled to counsel for that hearing. (Yes, and no). And there's another disciplanary action up, this time involving James McGrath. I'll just quote the opening, and leave you to read the rest if you like:
This case is one of troubling contrasts. The respondent, James W. McGrath, has practiced law for many years in this state and has a good reputation among the bench and bar. Former female clients have accused him of attempting to obtain and in fact accepting sexual favors in payment for his legal services. McGrath’s testimony cannot be reconciled with those of the complaining witnesses. With no small measure of disappointment in this respected member of the bar, we are convinced he is guilty of the misconduct described by his former clients. Therefore, we suspend his license to practice law in this state indefinitely with no possibility of reinstatement for three years.

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