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Thursday, January 17, 2008

Ind. Decisions - More on "Court says registry violated offender's constitutional rights"

Updating this ILB entry from Dec. 27, 2007, re the Indiana Court of Appeals 2-1 opinion Dec. 26th in the case of Todd L. Jensen v. State of Indiana, Sophia Voravong of the Lafayette Journal and Courier reported yesterday:

[Robert] Rawles is one of three convicted sex offenders against children in Tippecanoe County who are challenging a state law that took effect July 1, 2006, prohibiting them from living within 1,000 feet of a school, youth program center or public park.

One of their attorneys is hopeful that a recent Indiana Court of Appeals ruling -- which determined that a legal change to sex offender requirements violated one man's constitutional protection against retroactive laws -- will benefit his client.

In the appeals court case, legislation was amended to require Todd L. Jensen to register as a sexually violent predator two years after he was released from probation. But at the time of his sentence, the law required consultation with two experts to determine if someone was a predator who might be a repeat offender.

"It's not the same portion of the statute ... but I find this particularly interesting because they make note of the fact that legislators made a lot of changes to this statute in 2006," said Lafayette attorney Earl McCoy, who is representing one of the convicted sex offenders forced to move under the new law.

His associate, Chad Montgomery, is handling the third lawsuit filed in Tippecanoe County. Rawles' case was filed by attorney Kenneth Falk of the American Civil Liberties Union of Indiana.

"We believe the changes in statute affected our clients' rights to ex post facto laws," McCoy said.

Ex post facto law refers to the increase of a penalty or punishment after an offense is committed.

But Tippecanoe County Prosecutor Pat Harrington, who is named a defendant in the three lawsuits, said he does not agree. The appeals court ruling specifies that Jensen's retroactive lifetime registration requirement violated the Constitution "as applied to him," Harrington pointed out.

"I believe that the 1,000-feet rule is very safe as far as ex post facto," he said. "No court so far has disagreed with this. As prosecutor, I will be following the law."

Harrington said he also was told the Indiana attorney general's office plans to petition that the Jensen case be heard by the state Supreme Court. * * *

Tippecanoe Circuit Court Judge Don Daniel, who is presiding over one of the sex offender lawsuits, and Tippecanoe Superior Court 2 Judge Thomas Busch, who is hearing another case, said they have not yet read the Jensen ruling.

But both judges say the way the Indiana Court of Appeals and the Supreme Court rule often has strong bearing on their decisions.

"I'm always glad to have their guidance," Daniel said. "This is a new area of the law for all of us."

Posted by Marcia Oddi on January 17, 2008 11:48 AM
Posted to Ind. App.Ct. Decisions