The Grimm Truth

I'm Not The Baby Daddy. To The Best Of My Knowledge.

With my publicist on vacation, I suppose I should issue the big denial myself:

I feel compelled to add my name to the list of obscure and semi-famous people who said they don't think so:

        I AM NOT, TO THE BEST OF KNOWLEDGE, THE BIOLOGICAL FATHER OF MICHAEL JACKSON'S CHILDREN.

       Last week, Jackson's good buddy and onetime South Florida restaurateur, wheeler-dealer and scarily connected man-about-town Al Malnik said he wasn't. And Jackson's dermatologist, Arnold Klein, offered up a rather qualified denial. "Not, to the best of my knowledge."

Me neither. I'm sure I'd remember.

For the record, I cannot vouch for any other Miami Herald columnist.   

Michael Invented Anti-Gravity Shoe; Leapt Past Thomas Edison

   The unending media coverage of the death of Michael Jackson only reinforced my sense that undeserving Hollywood celebrities have usurped the superstar status America once conferred on engineers, scientists and, especially, inventors. Until I stumbled upon U.S. Patent Number 5,255,452 granted to Michael J. Jackson and two other California inventors. When music critics described those Michael Jackson dance videos as "inventive," they had stumbled on a literal truth.

The abstract, on file at the U.S. Patent Office, describes:

Method and means for creating anti-gravity illusion 

A system for allowing a shoe wearer to lean forwardly beyond his center of gravity by virtue of wearing a specially designed pair of shoes which will engage with a hitch member movably projectable through a stage surface. The shoes have a specially designed heel slot which can be detachably engaged with the hitch member by simply sliding the shoe wearer's foot forward, thereby engaging with the hitch member.

---

Inventors:

Jackson; Michael J. (Los Angeles, CA), Bush; Michael L. (Hollywood, CA), Tompkins; Dennis (Hollywood, CA)

 

A link to the patent:

http://www.google.com/patents?id=MAUgAAAAEBAJ&printsec=abstract&zoom=4&source=gbs_overview_r&cad=0

  

Broward's Solution To The Tuttle Causeway Condundrum

The task force assigned to sort through the difficulties associated with the myriad of sex offender residence restrictions and offer up recommendations for the Broward County Commission has released a draft of its findings. It's a thoughtful compilation that ought to resonate beyond Broward and into Miami-Dade County, where overreaching statutes have created the homeless mess under the Julie Tuttle Causeway. To download the entire report:

 

Download Broward Task Force Draft Report

Or to read just the recommendations:

Broward Sex Offender & Sexual Predator Residence

Task Force Report

Page 26 July 2, 2009

RECOMMENDATIONS

Based on our review of the available evidence, we respectfully submit the following

recommendations for policy which reflects criminal justice research and "best practices."

While some of our recommendations were unanimously agreed upon, others were not.

Our recommendations reflect the consensus of the task force based on majority vote.

1. It is clear that bus stops diminish housing availability within buffer zones to a literal

point of non-existence. We recommend that if a residential exclusion zone is passed,

it should not include school bus stops as a prohibited venue.

2. Based on data provided by the county's Planning and Redevelopment Division (p.

22), it is also exceedingly clear that a 2,500 foot zone as described in the existing

ordinance will exclude sex offenders from residing in the unincorporated areas of the

county. Because 24 municipalities have also passed 2,500 foot exclusion zones, few

options exist for sex offender housing throughout the county. This raises concerns,

not due to sympathy for sex offenders, but because research indicates that housing

instability is a consistent and robust predictor of absconding, probation violation, and

recidivism for criminal offenders in general and sex offenders specifically. Reports

from FDLE indicate a growing number of "sex offender transients" in Broward, and

many more in Miami-Dade County where homelessness resulting from residential

restrictions has caught national attention.

3. Residence restrictions regulate only where sex offenders sleep at night and do

nothing to prevent pedophilic or predatory offenders from frequenting places during

the day where they can cultivate relationships with children and access opportunities

for sexual abuse. Therefore, we recommend that the commissioners consider

enacting a child safety zone preventing sex offenders from loitering without a

legitimate reason in areas where children are present.

4. We recommend that in any ordinance that is passed, an exception be made for

offenders who established their residence prior to the passage of the ordinance (a

"grandfather" clause). Such clauses are commonly found in other municipal

ordinances. Because housing throughout the county is so limited, such a clause will

reduce the probability of homelessness and transience for RSOs who are already

living in unincorporated areas. The proposed end-of-lease grandfather clause simply

delays housing instability rather than prevents it. Grandfathering homeowners but

not lease holders represents differential treatment based on financial resources.

Since there is no reason to believe that current lease holders present a greater

Broward Sex Offender & Sexual Predator Residence

Task Force Report

Page 27 July 2, 2009

threat to the safety of children than homeowners, this differential treatment seems

not only unfair, but illogical.

5. We recommend that an exception be made (referred to as a Romeo & Juliet clause

in Florida statutes) for young adults with a single victim and who, at the time of the

offense, were under the age of 22 and committed a "statutory" offense with a

teenage victim no more than 4 years younger than the offender. While we recognize

that such behavior is unlawful, and that minors cannot legally consent to sexual

activity with an adult, we also recognize that such offenders are not typically

diagnosed as pedophiles and probably do not pose a significant danger to commit

future sexually violent crimes.

6. We recommend that commissioners strongly urge our elected state senators and

representatives to enact a statewide solution to sex offender management. The

problem of clustering is a direct result of the multiplicity of ordinances throughout the

state (at least156) which push offenders into areas with less restrictive buffer zones.

The best solution is for the Florida legislature to enact a uniform statewide

residential policy for sex offenders. We recommend that the county commissioners

adopt a resolution asking the legislature to create a statewide residence solution,

which should include a Romeo & Juliet clause as well as a grandfather clause. The

recommendation to the legislature should also urge the adoption of a uniform

statewide child safety zone provision preventing RSOs from loitering within 300-500

feet of a school, park, daycare, designated school bus stop, or other place where

children regularly congregate. We also recommend that the legislature review the

crimes that require registration and that Florida create a more refined, risk-based

classification and tier system of offenders that might, in some circumstances, lead to

individuals eventually being deleted from the registry but only upon meeting criteria

established by statute and requiring judicial review.

7. We recommend that commissioners strongly urge leaders from the League of Cities

to endorse a uniform county-wide ordinance. The problem of clustering is a direct

result of the multiplicity of differing ordinances throughout the county (24) which

push offenders into areas with less restrictive buffer zones. In the absence of

legislative reform, the best immediate solution is for city councils to agree to enforce

uniform residential policies for sex offenders throughout this county.

8. We urge leaders from the League of Cities to undertake an analysis of potentially

compliant housing in each municipality and amend ordinances to allow for

reasonable housing availability to alleviate clustering. Information designating

compliant residential locations should be provided to DOC probation, law

Broward Sex Offender & Sexual Predator Residence

Task Force Report

Page 28 July 2, 2009

enforcement agencies, and other case managers to assist RSOs in securing

housing.

9. We recommend that commissioners consider text amendments to land use plans to

allow residential units in industrial areas as a permitted use. The feasibility of

alternative housing options for sex offenders needs to be more fully investigated, as

any alternative housing would be subject to zoning variances and practical

considerations such as affordability and access to residential infrastructure (public

transportation, shopping, services, etc.). Innovative housing options are recognized

as a possible long-term solution requiring complex planning and development, and

therefore should not be considered as a singular alternative to our other

recommendations.

10. We support Mayor Ritter's letter to Governor Crist asking for leadership and

assistance in addressing the matter and suggesting a statewide or regional task

force to allow for uniformity of residence requirements.

11. Based upon concerns raised by the Broward Sheriff's Office and the State Attorney's

Office, we recommend that commissioners and the county attorney review the

language defining "temporary" and "permanent" residence in Ordinance 2009-22 as

"a place

A Sad, Frequent Question. With No Sane Answer

Letters of a certain similarity regularly show up in my e-mail in-basket, hoping I might have answer to the public policy conundrum created by South Florida’s over-reaching sex offender residency restrictions.

      The following came from a Miami-Dade woman who had been unable to elicit an answer from public officials, who have pretended, for two years now, that the growing colony of outcasts under the Julie Tuttle Causeway is unrelated to an ill-conceived public policy.

      Of course, they’re dodging this woman because there is no answer. There is no legal place for her brother to live except the dank underside of the Biscayne Bay bridge.  I’ve removed her name and address to protect her from the mean spirited.

      I am the sister of a sexual offender. I am writing in the hopes that you could provide me and my family with some answers to some questions that we are having difficulty with. We have tried countless and dozens of times to contact and speak with as many different offices and departments regarding the re-entry of a sex offender, who happens to be our loved one, and in return we always end up empty handed or scoffed at by the person(s) on the other end of the phone. Listed below are our questions:

1. Once my brother is released from Ft. Leavenworth, KS, most likely by the end of this year, where can he reside within the limits of the Miami Dade county ordinances, other than under the Julia Tuttle causeway?

2. Where can he obtain a letter of employment or assistance from somewhere in Miami Dade County?

3. Can he reside in our parent’s home located in Opa-Locka upon his release?

There are hundreds of other questions we need answers to but no one will listen or take the time to help us. He will need housing and treatment once he is released and we have been very unsuccessful in finding suitable housing and/or treatment facilities in the Miami Dade County area. Living under a bridge is inhumane and is not an option for us. We are determined and our spirit will not be broken despite of all the obstacles put in our path. If you could and have any information that can point us in the right direction, or know of someone, or know of a program, please let us know.  Your help and attention to this matter would be utterly and immensely appreciated.

 

Was Sent To Prison, Another 20 Years, for Drunkeness Or Diabetes?

Eduardo Galego was sent by his probation office to live under the Julia Tuttle Causeway after serving five years on a sexual assault charge. But the Miami-Dade Public Defender's Office claims that complications of his diabetes, not a willful intent to violate probation, landed him back in prison for another 20 years. Here's his appeal brief, filed May 29:

IN THE DISTRICT COURT OF APPEAL OF FLORIDA

 

                                             THIRD DISTRICT

 

 

                                       CASE NO.  DCA:08‑2011

 

 

 

                                         EDUARDO GALEGO,

 

                                                   Appellant,

 

                                                         -vs-

 

                                         STATE OF FLORIDA,

 

                                                    Appellee.

         ___________________________________________________

 

                   APPEAL FROM THE CIRCUIT COURT OF THE

                    ELEVENTH JUDICIAL CIRCUIT OF FLORIDA,

                            IN AND FOR MIAMI-DADE COUNTY

         ___________________________________________________

 

                               INITIAL BRIEF OF APPELLANT

 

                                            INTRODUCTION

 

In the trial court, the Appellant, Eduardo Galego, was the defendant, and the Appellee, the State of Florida, was the prosecution.  In this brief, the parties will be referred to as they stood before the lower court. The symbols “R.” and “T.” refer to portions of the record on appeal and transcripts of the lower court proceedings, respectively.  The symbol “S.R” refers to the supplemental record filed in this case.

                       STATEMENT OF THE CASE AND FACTS

                     Introduction

Mr. Galego was living under the Julia Tuttle Causeway as a sex offender on probation.  He was violated for missing curfew one night.  Substantial uncontroverted lay, medical and documentary evidence established that he missed curfew because he had become sick that day with acute complications of diabetes mellitus, leading to emergency intervention at the hospital. 

The State’s theory was that Mr. Galego missed curfew because he was drunk, and tried to cover it up by pretending to be sick.  The theory rested entirely upon speculation, and was contradicted by  laboratory and clinical findings in the hospital records, by direct evidence that he had consumed no alcohol that day, and by evidence that he had never been known to be a drinker.  The trial court nevertheless adopted the State’s theory, revoked Mr. Galego’s probation and sentenced him to twenty-five (25) years in prison.

* * * * *

In 2002, Mr. Galego was charged with sexual battery.  (R. 1-3).  In 2006, he accepted a plea to five years in prison, with credit for time served, followed by seven years’ probation as a sex offender.  (R. 70-74).  A condition of his probation was a curfew from 10:00 p.m. to 6:00 a.m.  (R. 79).  Mr. Galego’s probation officer, Lorenzo Salazar, had ordered him to reside at the sex offender encampment under the Julia Tuttle Causeway.  (R. 112-13).

On the first night of his probation, Mr. Galego was unable to find his way to the encampment, which is located under the eastern section of the western bridge of the Julia Tuttle Causeway, (R. 95, 101); he ended up under the wrong bridge.  (R. 119-21).  He reported his mistake to P.O. Salazar the following morning.  (R. 120).  By that night, he had located the encampment and remained there for six days, (R. 121-23), until violated by P.O. Salazar for missing curfew the first night. (R. 133).  After a hearing, the trial court determined that Mr. Galego’s failure to make curfew that first night of his probation was not a willful and substantial violation of probation.  (R. 7).

The present case involves an alleged curfew violation on January 24, 2008.  A hearing on the alleged violation took place on March 2, April 18, and July 2, 2008.

Mr. Galego has suffered for seventeen years from diabetes mellitus, a disorder of insulin in the hormones which raises the blood sugar level.  (R. 274-76).  Living under the causeway is deleterious to diabetics’ health – insulin must be refrigerated, but there is no electricity under the causeway; without electricity, it is difficult to adhere to the prescribed regimen of small, frequent meals; and humidity depletes volume, throwing off glucose, which raises the blood sugar level.  (R. 276-77). The wrong amount of insulin or food, or excessive volume depletion can cause kidney failure, amputation of the extremities, or blindness.  (R. 277-78).

Two weeks before the alleged violation, during pre-dawn hours, Mr. Galego was treated at Jackson Memorial Hospital: having run out of medication, his blood sugar had spiked to 415, a “Critical High.”  (R. 147).  The onset was abrupt; he had no history of similar symptoms.  (R. 155).  Insulin was administered intravenously to lower his blood sugar, and he was given oral medication to be taken twice a day, insulin for injection into his thigh or stomach three times a day, and neurontin, for diabetic neuropathy (numbness and tingling in the extremities), a complication characteristic of long-term diabetics.  (R. 331-32). 

During the clinical history, Mr. Galego denied alcohol use.  (R. 332-33).  Had any evidence of alcohol ingestion or impairment been detected by the treatment personnel, they would “automatically” have noted this on the chart. (R. 333).  There was no such notation.  (R. 146-47, 154-56).

P.O. Salazar, the State’s only witness, testified that at 2:30 p.m. on January 24, 2008, Mr. Galego telephoned to report that he had just applied for a job at a construction site, but had been turned down because he had no work permit.^[1]  (R. 205-06).   According to Salazar, there was “some music” and a “lot of noise and other people in the background,” giving him “the impression that [Mr. Galego] was “at some kind of get together,” and not really looking for work.  (R. 207, R. 350-54).  He admitted that this was “just a guess,” that Mr. Galego could have made the call from a lunch wagon at the work site.  (R. 377).  Mr. Galego’s “speech was pretty much normal” during this call.  (R. 377-78).

At 3:00 p.m. that day, Mr. Galego went to the home of his cousin, Ezmarelda Garcia.  He went to her home every day to bathe, to eat, and to inject himself with insulin, which he stored in her refrigerator.  (S.R. 7-9, 12, R. 275, 331).  Ms. Garcia testified that he was sick when he arrived – sneezing, sore throat, runny nose.  (S.R. 11-12).  It was cold that day, so she gave him “two little cups” of Robitussin, knowing he would be exposed to the elements under the causeway.  (S.R. 12-13).  He ate spaghetti with red sauce and cheese.  (S.R. 12-14).  He had ingested no alcohol while he was there – she had no alcohol in the house, and in any case she had never known him to drink.  (S.R. 20, 25).

At 7:45 p.m., Mr. Galego left his cousin’s house to catch the first of the two buses that would take him to the causeway.  He was still sick when he left her house, his speech somewhat impaired.  (S.R. 13).  Worried, Ms. Garcia called him on his cell phone several times during the first of his two bus rides. (S.R. 13-14, 22).  He “was feeling really sick,” “sweating profusely,” and “no longer seeing well.”  (S.R. 14-15).  Ms. Garcia heard no partying in the background when she called him, only bus noises.  (S.R. 24).

At 10:00 p.m. and again at 10:05 p.m., Mr. Galego placed calls to P.O. Salazar, as reflected in telephone records produced by the defense at sentencing.  (S.R. 37-41).  Salazar said he never got the calls or any messages, admitting that he might have missed them, or might have forgotten about them.  (R. 244-45, 256-57, 262-63, T. 121-23).  Salazar acknowledged that, had he received a call or message from his probationer, it “might have” affected his decision whether to violate him.  (T. 121-23).

Shortly after calling Salazar, Mr. Galego called two people who live under the causeway to tell them that illness had delayed his return to the causeway. (R. 203).  These two people conveyed the messages to P.O. Salazar at 10:45 p.m., when he arrived for curfew check.  Id.  One of the declarants – “Luis Gonzalez or something like that” – told Salazar that Galego said that he had “had a seizure on the bus,” had “ended up in Aventura and was on his way back.”  (R. 204).  The other declarant – Salazar did not know his name or anything else about him – reported that Galego had said “that he had felt sick or having a seizure after he cut his hand.”  (R. 204, 355-56).

At 1:00 a.m. on January 25, 2008, Mr. Galego telephoned P.O. Salazar to explain why he missed curfew.  He said he had fallen asleep on the bus, missing his stop at the causeway.  He said that, when he awoke, he was in Aventura, where he threw up on the bus.  (R. 211).  Corroborating this account were county records produced by the defense reflecting that someone had vomited in the handicapped section of a northbound bus at N.W. 180^th Street on the night of the alleged violation.  (R. 156-161, 392-94).  Mr. Galego explained that he then had to change buses and had just returned to the causeway after walking back from the bus stop.  (R. 211, 219, 221).  Salazar told Galego to report to probation the next morning: he was already planning to arrest him for a curfew violation.  (R. 221, 265).           

Minutes later, Mr. Galego called Salazar back to say that he felt “really sick” and wanted to go to the hospital.  (R. 222).  According to Salazar, Mr. Galego “didn’t sound well” during this call, “his speech was impaired somewhat.”  (R. 224-25).  Salazar had never heard Galego speak like that before.  (R. 225).  Salazar told Galego “that it was fine” for him to go to the hospital but to come straight to probation afterwards.  (T. 91-92).

At 2:20 a.m. on January 25, Mr. Galego was examined at Mt. Sinai Hospital for complaints of vomiting (three times), diarrhea (two times), and stomach pain (7-8 out of 10).  (R.148-54).  He was treated with a “large ampule” of insulin,^[2] and given intravenous fluids for dehydration. (R. 289, 322).

Dr. Pedro Jose Greer testified about Mr. Galego’s condition on the night of the alleged violation.  Dr. Greer is a board certified internist, gastroenterologist, and hepatologist.  He is Chief of Gastroenterology at Mercy Hospital, and the Assistant Dean of Academic Affairs at the College of Medicine at Florida International University.  (R. 271).  In 1984, he founded Camillus House Health Clinic for the homeless.  (R. 272).  Dr. Greer had testified only twice before this hearing, both times in federal court, and not since the early 1990s.^[3]  (R. 310).  He received no compensation for his testimony at this hearing. (R. 273). The trial court acknowledged the “impressive” qualifications of this witness.  Id.

Dr. Greer, who has treated hundreds of people for complications from diabetes, (R. 279), reviewed the records from Mr. Galego’s treatment at Jackson Memorial Hospital in early January, the records from his treatment at Mt. Sinai hospital on January 25, and spoke briefly with Mr. Galego before the hearing.  (R. 274).  Dr. Greer explained Mt. Sinai’s findings and treatment as follows:

The blood sugar level of a healthy person is between 74 and 106.  On the night of the alleged violation, Mr. Galego’s blood sugar was 310 milligrams per decimeter, nearly three times the normal level.  (R. 285-86).  There were 2,000 milligrams per decimeter of glucose in his urine, (R. 280); normal urine has no glucose in it.  (R. 281).  There were trace proteins, trace blood, and bacteria with low WBCs in his urine, indicating a possible urinary tract infection or stone.  Id., (R. 292).  His blood uriah nitrogen (B.U.N.) level was elevated, indicating volume depletion, consistent with a stomach virus.   (R. 286, 289).

There were several possible explanations for the spike in Mr. Galego’s blood sugar level.  It could have been caused by a cold, consistent with Ms. Garcia’s description of Galego’s symptoms earlier in the day; or by a stomach virus, consistent with his vomiting, diarrhea and abdominal pain; or by a “change in the metabolism of the body,” consistent with the urinary tract infection suggested by the blood work.  (R. 279).  Robitussin and pasta, such as Mr. Galego ingested at his cousin’s house, can also spike the blood sugar level.  (R. 304).  Furthermore, a spike can itself cause a digestive disorder.  (R. 280).  Among the symptoms of a spike in blood sugar are altered mental status, seizure, and impaired speech.  Id., (R. 286). 

Therefore, the documented spike in Galego’s sugar level and his volume depletion were entirely consistent with his account to Salazar of having fallen asleep and vomited on the bus, and with Salazar’s account of Galego’s impaired speech.  (R. 290).

While alcohol in large quantities can also cause a spike in the blood sugar level, as well as vomiting and speech impairment, (R. 304), Dr. Greer identified two compelling reasons for ruling out this hypothesis.  First, while some of the laboratory results were alarmingly abnormal, the liver enzymes were “completely normal.”  Had Mr. Galego consumed just three or four beers, his liver enzymes would have been elevated.  (R. 288).  Second, the clinical findings were inconsistent with alcohol consumption.  Mr. Galego had been examined by medical personnel for neurological status, respiratory condition, breath status, integumentary  status, ears, eyes, nose and throat, psychosocial ability and general appearance (all within normal limits), (R. 297-98, 311, 323, 325); but there was no suggestion that he looked, smelled, sounded or acted as if he had consumed alcohol.  Based on his extensive medical and hospital experience, Dr. Greer was “[o]ne hundred percent” certain that had there been any symptoms of drinking these would have been documented.  That is because the possibility of alcohol ingestion must be considered in deciding upon treatment.  (R. 323).

At 6:25 a.m., Mr. Galego was discharged from Mt. Sinai Hospital stabilized and free of pain.  (R. 321).  At 9:00 a.m., he reported as ordered to the probation office, “look[ing] kind of tired,” carrying paperwork reflecting his intake at Mt. Sinai hospital earlier that morning.  (R. 226-227, 235).  Mr. Galego explained to Salazar that he had become sick from diabetes.  (R. 220).  But Salazar read the Mt. Sinai records to reflect that Galego had been treated only for “nausea and heartburn.”  (R. 234-36).  Had Salazar understood the records to reflect “some type of serious illness,” then he would not have treated the hospital trip as a curfew violation.  (R. 385).

Salazar interrogated Galego about “the job that he supposedly went to see” the previous day, but his answers “didn’t make any sense.”  (R. 227, 228-29).  Although Galego’s Probation Order did not prohibit him from ingesting alcohol, and although Galego had always appeared sober, (R. 225-26, 254-55), Salazar administered a drug and alcohol screen.  (R. 229).  According to Salazar, the drug screen was negative, and the urine screen for alcohol was negative, but the saliva screen for alcohol was positive.^[4] “[F]or some reason,” Salazar mused, “the saliva test is more accurate than the urine test” – “I have tested many people and the urine always tests negative, but the saliva, you get them with the saliva one.  That’s the one that always comes back positive.” ( R. 401, 403).

Salazar theorized that alcohol must leave the urine before leaving the saliva.  (R. 401).  He admitted that he had no scientific basis for this theory, nor any empirical basis for his claim that he had  been “proven right every single time” – not one of Salazar’s saliva screens, including Mr. Galego’s, had ever been submitted for confirmatory testing.  (R. 400-05).  In other words, Salazar’s theory was nothing but a guess.  Galego himself denied having consumed any alcohol the night before.  (R. 369). 

In fact, as Dr. Greer established, Salazar’s alcohol screen was not reliable.  First, Dr. Greer had reviewed the literature about the screen, which disclosed that it was “not a direct test of alcohol,” but rather “a surrogate test” which should be confirmed by a blood test.  (R. 282, 284-85).  Second, the scientific literature specifically warns that alcohol screens of diabetics are prone to false positives; it is the blood of a diabetic which should be tested for alcohol.  (R. 290-92).

Nevertheless, Salazar arrested Mr. Galego after conducting his on-site screen.  It was Salazar’s theory that Galego had gotten sick from drinking alcohol, rendering the violation “willful.”  (R. 247).  The basis for this theory was the background noise when Galego called him at 2:30 in the afternoon: it sounded like “some type of party, so when he called me telling me that he is sick, I automatically think if you go to party and at night you are sick, you must have. . .[been] drinking. . .”  (R. 251).  The positive alcohol test confirmed Salazar’s belief in his theory.  Id.

The trial court made a finding that Mr. Galego had gotten drunk, which “may have contributed to” his curfew violation.  (R. 455-56).  In support of this finding, the trial court cited Salazar’s “description of what sounded like a party” in the afternoon of January 24, Galego’s having vomited later that evening on the bus, Galego’s impaired speech during his call to Salazar at 1:00 a.m. on January 25, Galego’s failure to have called Salazar earlier, and Salazar’s alcohol screen, to which it assigned a “small amount of weight.”  (R. 456).  The trial court believed that the hospital visit was just a “sham” to cover-up his drinking. (R. 457).  Reminding Mr. Galego that it had previously acquitted him of missing curfew, and had cautioned him not to miss another, (R. 450), the trial court ruled that this violation was willful and substantial, and revoked probation.  (R. 457).

At sentencing, defense counsel produced Mr. Galego’s cell phone records, which proved that he had called P.O. Salazar at 10:00 p.m.and again at 10:05 p.m. on the night of the alleged violation.  (S.R. 37-41).  Even though the trial court had originally relied upon its finding that Mr. Galego had not called before 1:00 a.m. in deciding to revoke probation, (R. 456-57), it refused the defense request for a sentence to time served, (S.R. 41), and  sentenced Mr. Galego to twenty-five years in prison.   (R. 264-65).   This appeal followed.  (R. 167).

 

                    SUMMARY OF THE ARGUMENT

The defense presented substantial and uncontroverted expert and documentary evidence that Mr. Galego missed curfew under the Julia Tuttle Causeway because he was sick with acute complications of diabetes mellitus, a disease he had suffered for seventeen years. 

Two weeks before the alleged violation, he was treated in the hospital for acute complications; the afternoon of the violation, he became sick; the night of the violation, he vomited on the bus on his way to the causeway; later that night, he was treated at Mt. Sinai Hospital for a dangerous spike in his blood sugar that was consistent with his symptoms. 

The State’s theory was that Mr. Galego missed curfew because he got drunk, and that his hospitalization was a ruse to cover-up his partying.  The State’s theory rested on this ephemeral foundation: in a telephone call with P.O. Salazar on the afternoon of the alleged violation, loud music could be heard in the background; when he called to report that he was going to the hospital, his speech sounded impaired; and he tested positive on a notoriously-unreliable unconfirmed alcohol screen administered eight hours after he went to the hospital.

Negating the State’s theory were the Mt. Sinai medical records, which included laboratory results and clinical findings that were inconsistent with alcohol intoxication; testimony from the probation officer that he had never known Mr.  Galego to consume alcohol; and testimony from Mr. Galego’s cousin that he had consumed no alcohol that day.

Given the substantial lay, expert and documentary evidence of Mr. Galego’s sickness from complications of diabetes mellitus; and the speculative basis for the inference of drinking; the State did not establish by a preponderance of evidence that the curfew violation was willful.

 

ARGUMENT

THE STATE FAILED TO PROVE THE PROBATIONER’S WILLFULNESS IN MISSING CURFEW, GIVEN THE SUBSTANTIAL EXPERT AND DOCUMENTARY EVIDENCE THAT THE PROBATIONER HAD BEEN SICK THAT NIGHT WITH ACUTE COMPLICATIONS FROM DIABETES MELLITUS.

 

“Trial courts are not without discretion in revoking probation, see Bernhardt v. State, 288 So.2d 490, 495 (Fla. 1974),” Stewart v. State, 926 So.2d 413, 414; but may revoke probation “only if the State proves by the greater weight of the evidence that the defendant willfully and substantially violated a specific condition of the probation. . .”  Padelt v. State, 793 So.2d 30, 31 (Fla. 2d DCA 2001).  While a probation revocation “is informal and not like a regular trial,. . .there are definitive burdens and standards that must be met.”  Jackson v. State, 622 So.2d 1027, 1029 (Fla. 4^th DCA 1993).  The State must prove the willful character of the alleged violation by competent and substantial evidence.  Stewart v. State, 926 So.2d at 414.   The appropriate standard of review is whether the trial court abused its discretion in finding the violation to be willful.  Hurst v. State, 941 So.2d 1252, 1253 (Fla. 1^st DCA 2006).

Where a probationer violates a technical condition because of illness or incapacity, the violation is “not substantial or willful because a mental or physical illness can be debilitating to the point that a probationer cannot comply with the terms of probation.  Meade v. State, 799 So.2d 430, 432 (Fla. 1^st DCA 2001).^[5]                               

There was substantial and uncontroverted lay, expert and documentary evidence of non-willfulness.  There was evidence that Mr. Galego had suffered from diabetes for many years.  (R, 274-76).  There was expert testimony that the conditions under the Julia Tuttle Causeway are dangerous to diabetics.  (R. 276-78).  There was expert and documentary evidence that, just two weeks before the alleged curfew violation, Mr. Galego suffered acute complications from his disease for which he was treated at Jackson Memorial Hospital.  (R. 146-55, 331-32).  There was evidence that he fell ill again on the afternoon of the violation.  (S.R. 11-25).  There was evidence that he had consumed no alcohol that day.  (S.R. 20, 25).  There was evidence that he telephoned his probation officer twice, (S.R. 37-41), as well as two people under the causeway, to report that he would be late because he had gotten sick on a public bus.  (R. 203-04, 355-56).  Bus department records corroborate his account of getting sick on the bus.  (R. 156-61, 392-94).

Hospital records and expert testimony establish that he was treated that night at Mt. Sinai Hospital for acute complications from diabetes mellitus. His blood sugar was nearly three times that of a healthy person.  (R. 285-86).  His urine was flooded with glucose.  (R. 280).  Laboratory tests revealed a possible urinary tract infection or stone as well as volume depletion.  (R. 284, 286, 292).  These laboratory findings were entirely consistent with Mr. Galego’s account of having fallen asleep and vomited on the bus, and with Salazar’s account of Galego’s speech.  (R. 286, 290).

The State’s theory was that Mr. Galego had missed curfew because he had gotten drunk.  This theory rested on weak and equivocal inferences from the following: loud music in the background during a call from Galego earlier in the day; “impaired” speech just before the hospital visit; and a positive unconfirmed alcohol screen given eight hours after the hospital visit, a screen which the court acknowledged was unreliable and deserved little weight.  (R. 456).

More significantly, the State’s theory was negated by the hospital records.  Had Mr. Galego been drunk, this would have been reflected in the clinical examination of his neurological status, respiratory condition, breath status, ears, eyes, nose and throat, psychosocial ability and general appearance; it was not.  (R. 297-98, 311, 323, 325).  Had Mr. Galego been drunk, this would have been reflected in the laboratory test of his liver enzymes; it was not.  (R. 258).  Furthermore, as Dr. Greer explained, alcohol screens of diabetics are notoriously unreliable.  (R. 282, 284-85, 290-92).  Finally, Galego’s cousin Ms. Garcia and Salazar himself testified that Galego was not a drinker.  (S.R. 20, 25, R. 225-26, 254-55).  Ms. Garcia swore he had consumed no alcohol the day he missed curfew.  (S.R. 20, 25).  And Mr. Galego denied consuming alcohol.  (R. 269).

Thus, there was substantial and competent evidence that Mr. Galego missed curfew because he was sick, and sheer guesswork that he was late due to drinking.  Under these circumstances, the State has failed to meet its burden to prove willfulness by the greater weight of the evidence.   See Dean v. State, 948 So.2d 1042 (Fla. 2d DCA 2007) (where there was no direct evidence regarding probationer’s alcohol consumption, and “the only direct evidence presented was to the exact contrary,” State failed to prove willful and substantial violation); Pettus v. State, 836 So.2d 1070 (Fla. 5^th DCA 2003) (“equivocal testimony is not sufficient to establish” violation); Stanley v. State, 922 So.2d 411 (Fla. 5^th DCA 2006)(where revocation was based partly on finding that was contradicted by record, willfulness not established).

Indeed, courts have reversed revocations for technical violations where the evidence of incapacity is far less compelling but is, as here, uncontroverted.

For example, in Stevens v. State, 599 So.2d 254 (Fla. 3d DCA 1992), a probationer with “several serious sexually related charges” was required to complete an MDSO program.  599 So.2d at 254.  His probation officer had already filed one affidavit of violation, which the trial court had dismissed, with a warning that, in the future, even “minor deviations” could result in revocation.  Id. at 255, n.1.  When the defendant nevertheless missed a scheduled meeting of his MDSO group, he was violated. 

At the hearing, Stevens presented testimony that on the evening of the scheduled meeting, “he made a series of quixotic and inept efforts to reach it, but was unable to do so because of a sequence of untoward events which included the breakdown of the car in which he was riding.”  Id. at 254.  As this Court observed, “[T]here was essentially no evidence that this comedy of errors had not taken place.”  Id. 

But the trial court found, “particularly in light of the previous admonitions,” that the defendant should have worked harder to “insure his presence” at the meeting, and revoked his probation.  Id. at 255.  In reversing the revocation, this Court found that: “However inept and negligent his conduct, the record does not support the conclusion that Stevens willfully or deliberately missed the meeting.”  Id. 

Unlike in Stevens, the evidence of incapacity in this case was hardly a “comedy of errors” – a chronically sick man suffered acute complications requiring emergency medical intervention.  Just as in Stevens, the fact that the probationer had been earlier charged with a curfew violation and warned against re-offense does not strengthen the State’s present case on the element of willfulness.  As in Stevens, while the trial court’s pique may be “understandable,” its action “is not, however, supported by the applicable law that probation may be revoked only upon a showing that the probationer has deliberately and willfully violated its terms.”  Id.

Thomas v. State, 672 So.2d 587 (Fla. 4^th DCA 1996), relied upon Stevens in reversing revocation for discharge from a residential treatment program for missing curfew.  “The uncontroverted evidence” was that the probationer missed curfew because of a flat tire while returning from an approved job interview, and eventually walked most of the way back.  Id. at 588.  He did not call the program, having “spent all his money on gas for the car,” but he called his parents collect and asked them to call the program for him.  Id.  In an opinion by then-Judge Pariente, the Court held that, “as in Stevens, while defendant’s attempts to comply may have been inept or negligent, there is no evidence to support a conclusion that defendant’s failure to return to [the program] on time was the product of a knowing and willful act. . .Thus, there is no substantial competent evidence to support a finding that defendant’s discharge from [the program] was due to willful conduct on his part.”  Id. at 589.

As in Thomas, there was substantial and uncontroverted evidence that Mr. Galego attempted to comply with his curfew requirement and attempted to notify his probation officer of his difficulties in doing so.  Countering this evidence of efforts to comply in spite of illness was only the faintest of inferences that Mr. Galego’s curfew violation was due to willful conduct on his part.  Where, as in this case, in Stevens and in Thomas, the evidence of incapacity is not controverted by substantial competent evidence of willfulness, the trial court errs in revoking probation.

CONCLUSION

Based on the foregoing arguments and authorities, Mr. Galego requests that this Honorable Court reverse the revocation and reinstate him to probation.

---

^[1] Salazar was aware that Mr. Galego, a Cuban immigrant, had no work permit, and that it would be illegal for him to work without one.  Although he instructs all probationers not to violate the law, he nevertheless required Mr. Galego to call in daily to report his efforts to secure employment.  (T. 113-116).

^[2]Indeed, he was given too much insulin, initially dropping his blood sugar to the 40s, a potentially serious mistake.  (R. 289).

^[3] Dr. Greer’s testimony was relied upon extensively by the Honorable C. Clyde Atkins, Southern District of Florida, in Pottinger v. City of Miami, 810 F.Supp. 1551, 1557-58, 1563, n.18 (S.D.Fla. 1992), for the proposition that homelessness exacerbates physical illnesses of all kinds, specifically those which require routine medication. 

^[4]Defense counsel objected to the admission of the saliva screen result as a discovery violation.  (R. 367, 370-71, 372-73).  Defense counsel asserted, and the State did not controvert, that she had previously been “told it was a urine test,” not a saliva test that was positive for alcohol. (R. 370-71).  Furthermore, the defense was prejudiced because Dr. Greer’s testimony about the unreliability of on-site screens in testing diabetics for alcohol concerned urine screens, not saliva screens.  (R. 371, 373).  The trial court made the assumption that Dr. Greer would have provided the same testimony about false positives for saliva screens of diabetics as he had about urine screens.  (R. 452). 

During cross-examination, Salazar revealed for the first time that he had input the alleged on-site saliva test into his computer, and that the result could be printed out, although he said no print-out had been provided the prosecution.  (R. 397-98).  Defense counsel renewed her objection to the discovery violation: she had been told that “there was no print out as to the results,” and “that it would be impossible for [her] to get any results.”  (R. 399-400).  Once again, the prosecutor did not controvert counsel’s assertions.

 

^[5]See Copeland v. State, 864 So.2d 1197, 1200 (Fla. 1^st DCA 2004) (where paranoid schizophrenic probationer stopped taking his medication and abandoned his residence, while in the throes of delusion, revocation reversed as abuse of discretion); Williams v. State, 728 So.2d 287, 288 (Fla. 2d DCA 1999) (failure to file reports and submit to urinalysis not willful where probationer was “crippled” by severe depression); Johnson v. State, 668 So.2d 240, 241 (Fla. 1^st DCA 1996) (revocation based on absence from home revoked where probationer was in hospital, followed by short stay with mother); Gibson v. State, 747 So.2d 420, 421 (Fla. 2d DCA 1999) (sick probationer’s decision to move in with mother, without notifying officer, not willful violation); Jackson v. State, 785 So.2d 524, 526 (Fla. 4^th DCA 2000) (insufficient evidence of willfulness where mentally-ill and pregnant probationer with no air conditioning in residence believed she was permitted to stand outside); Rainer v. State, 657 So.2d 1230 (Fla. 4^th DCA 1995) (probationer’s failure to complete rehabilitation due to disciplinary problems attributable to Crohns disease not willful); Meade v. State, 799 So.2d at 433 (where defendant’s failure to attend two MDSO classes was partly due to rheumatoid arthritis, revocation reversed); Jacobsen v. State, 536 So.2d 373 (Fla. 2d DCA 1988) (no willful violation that defendant leave county by specific time when he made reasonable efforts to comply by purchasing bus ticket, but was unable to depart because he was hospitalized for injuries received when robbed).

Last Angry (Well, Not That Angry) Man

      Reader Jon Marks (he of the National Recycling Network), could be the last angry man. Or, at least the last angry man in the general vicinity of certain fast food restaurants. I love a good, long, seething rant:

      Marks, none of his remarks recycled from other sources, says:

     

      At least For most of my adult life I have been a bleeding heart liberal in thought, word and deed.  Today I am declaring that I am no longer going to subsidize
those companies that have taken advantage of me for over 40 of my 56 years.
To wit:

1.        I have been drinking at least one cup of black coffee per day since I was 16.  That means that by now I could have taken at least a non-dairy
farm of faux cows home in my coffee along with two or three tractor trailer loads of artificial sweetener for FREE.  I pay the same price for my plain black coffee as the person who quaffs half mud half moo along with an hour glass of sweetener that I subsidize.
2.   Way back when the Golden arches were first erected, there was an up charge of .10 for cheese on their illustrious quarter pound (when frozen, not cooked) burger.  About 20 years ago Corporate decided that everyone should pay for the burger with cheese and it was a special order to have it without.  Not  withstanding the fact that there is no such thing as naturally occurring yellow cheese and that this product in question is a cheese food; if you do not want it on your burger then you still pay the same price. Let’s just say that I have paid to not have enough cheese over 44 years to give everyone in Lambeau field for a Packers’ game at least one slice of yellow cheese food.
3.   About 20 years ago the fast food chains all became known as Self-servearaunts.  No longer would an acne faced teen be filling your cup, hand you a napkin, condiments, and a straw.  It was now our turn to serve ourselves.  I have witnessed for a score of years, and it becomes more rampant every day with the current economy, customers either asking for water cups (my favorite) or the smallest drink size available.  I watch as the free water turns into multiple re-fills of soda or the smallest drink size is constantly refilled.  I have never seen a single customer told no or turned away from a refill even if it is a water cup.   I on the other hand, a father of three, always (until today) order the correct size that I expect to drink.  That is typically a medium or large drink.  How stupid do I feel on a daily basis being an Abe Lincoln Clone when I know full well that I am paying the price for others?      4.    Even though I make my living in part by recycling plastic bags, I hardly ever ask that all of my groceries be put into bags.  Bottles of
laundry detergeant, cases of soda, and the like just do not need bags.  Are my groceries any cheaper because I refuse the bags?  No.

Be it resolved:

The next time I fly Spirit Air and they charge me $2.00 for a cup of black coffee, which they do, I am going to demand each and every creamer and sweetener on the airplane.  I will then price and sell my hoard to cover the
$2.00 and give away the rest.  So there.

The next time I pass through the Golden Arches via the drive through I will order the ¼ pounder with cheese and then in the presence of the drive through clerk I will remove the offending item, place it on a napkin and demand that they put my cheese on top of the cheese destined for the next customer so that they have double the cheese food.

When inside the same restaurant I will order the glass for -  NO I still
can’t do that one.

Out From Under The Bridge And Back To Federal Court

The city of Miami, with its campaign against the Tuttle bridge dwellers, may be wading into a treacherous legal swamp.  Valerie Jonas, who worked in the 1996 lawsuit that exposed the willy-nilly round-up of the homeless off the city streets, suggests that the ACLU may be heading back into federal court. Val writes:

      The recent threat by the City to arrest or disperse the people under the Julia Tuttle Causeway bridge violates the letter and spirit of the binding agreement in Pottinger v. City of Miami.

      In that case, there were thousands of homeless people, but few shelter beds in the City of Miami.  When merchants or politicians complained about the visible presence of the homeless, the City police would arrest them under various laws for conduct that was inseparably connected with living outside -- being in the park after hours, trespassing, obstructing the sidewalk, etc.

      Under the Pottinger agreement, the City could no longer arrest any homeless person, under any ordinance or statute, for conduct that was connected with living outside, unless the City first offered, and the homeless person rejected a shelter bed.

      The causeway encampment is the inevitable result of overlapping 2,500-foot residency restrictions that have rendered virtually all affordable housing in the county off-limits to sex offenders.  Nearly every person in the encampment would be sheltered with a loved one, but for the impact of these restrictions.  The City is now seeking to disperse the causeway encampment, on the basis that some landfill with a picnic table is fewer than 2,500 aquatic feet away.  Yet the City has not first offered shelter, because sex offenders are not allowed in shelter beds.  Under Pottinger, the City may not arrest the people under the causeway just for living there, regardless of the proximity of its "park."

      The ACLU is not arguing for a permanent homeless encampment under the causeway, but merely for the right to be left outside in peace until appropriate shelter is available.

      The problem of homeless sex offenders is not unique to this city or county.  Residency restrictions have crisscrossed the state, driving more and more people out of shelter and into the streets.  These laws have not made anyone safer; to the contrary.  A growing body of scientific research proves that residency restrictions have no impact on whether sex offenders re-offend.  At the same time, homelessness has been demonstrated to be the number one predictor of recidivism for all offenders.  In driving sex offenders from available shelter to a life in the streets, the residency restrictions have worsened the very problem they were meant to solve.

      Although the Julia Tuttle Causeway encampment may be the most visible manifestation of this problem, there will be more and bigger such encampments state-wide, as more schools and bus stops crop up, more sex offenders are released from prison, and more political subdivisions pass residency restrictions.

      As the ACLU has urged Governor Crist over the past two years, it is time for the State to address this growing public health and safety crisis in a reasonable, evidence-based and State-wide manner.

 

Before You Eat That Python . . .

Rene Price pretty well ruined my save-the-Everglades-from-scary-slithering-exotic-species project, with a rather acute observation. Pollution has likely turned our local pythons into living thermometers. Rene noted:

      I enjoyed your article today on the very creative way of diminishing the explosion of exotic snakes in the Everglades.  However, there is a fatal flaw in your suggestion of having chefs produce an enticing snake dish.

      Mercury levels are high in all species in the Everglades. The Florida Department of Health recommends that some fish species from the Everglades be eaten only once a month. And that some species such as Bass and Snook not be eaten at all by young women and children.

      Mercury levels bio-accumulate up the food chain, so snakes which are close to the top of the food chain are expected to have high levels of mercury, although I haven't heard of anyone determining their mercury content yet.

      Your suggestion, however, may entice some scientists to determine the mercury content of those snakes.

      Thanks Rene. And so much for my great idea. I suppose, given the risk of turning Burmese pythons into haute cuisine, we should save them to feed only to tourists. 

Registry Laws Cause More Problems Than Homelessness

       Someone with an organization out of Virginia called Reform Sex Offenders Laws read about South Florida's struggle with the unintended consequences of the sex offender residency laws -- essentially consigning offenders into homelessness. RSOL's response raised a series of troubling questions about other problems with overreaching sex offender laws. The statement: 

       Are Americans aware that their teenagers are having consensual sex which could result in the older teen being convicted of sexual assault, battery or rape a prison sentence and being listed on a Sex Offender Registry for 15 years, 20 years or for a lifetime? 

 Are Americans aware that their teenagers are e-mailing and texting nude photos of themselves and others? This could result in both teens being charged with creating, distributing and possessing child pornography with time in prison and being listed on a Sex Offender Registry for a lifetime.

Are Americans aware that if they receive one unwanted e-mail or text of child pornography on their computer or phone and a service technician finds the old/deleted file they will be charged with possessing child pornography? Resulting in time in prison and being listed on the Sex Offender Registry for a lifetime.

Are Americans aware that if they have knowledge that their juvenile child is having consensual sex with someone of 18 years or older, they (the parent) can be convicted of indecent liberties by person of supervision and listed on a Sex Offender Registry for 15 years, 20 years or for a lifetime?

Are Americans aware that middle schoolers have been convicted and listed on Sex Offender Registries for pinching other middle schoolers on their rear-end?

Are Americans aware that because of the “Victim’s Rights Laws & Rape Shield Laws” an ACCUSATION ALONE is sufficient for a conviction, a prison term of 5 to 25 years or even life and then being listed on a Sex Offender Registry most likely for life?

Are Americans aware that NO evidence, NO witness, NO dates or times have to be given by an accuser?

Are Americans aware that they CAN NOT defend themselves by supplying evidence or witnesses that can prove an accuser is lying and had motive to lie?

Are Americans aware that some States (Virginia) allow an accuser only 21 DAYS to recant a lie? Any amount of time after 21 days the wrongful conviction, the prison term and remaining on a Sex Offender Registry stands. If a witness was found 15 years after a murder case that could convict the murderer or if DNA was discovered to free a wrongfully convicted person 25 years later why can’t an accuser recant and the conviction be stricken from the record?

Are Americans aware they are no longer innocent until proven guilty in America when there is a sexual claim. They are guilty and not allowed to prove their innocence?

There is a huge difference between stealing a newspaper and robbing a bank, both crimes are considered theft but both are differentiated by law and society. Are Americans aware that the current laws that label someone as a Sex Offender in the U.S do not differentiate?  Whether you are accused of teenage consensual sex, urinating in public, mooning or streaking, pinching or touching someone or being a serial rapist upon your return to society, conviction and sentence will be the same.

Are Americans aware that a VERY large number of Registered Sex Offenders have never touched or raped anyone, let alone a child?   But guilt by association on the Sex Offender Registry labels them all as a “pervert” a “pedophile” and a “predator” for life. 

Are Americans aware that  somes states' legislatures  (Virginia 2006 & 2008) broadly re-classified Non-Violent Offenders to Violent Offenders? This includes many offenses that had NO physical contact.  The situation that has been imposed upon the “Registered” is that, under the guise of protecting our children, the Legislators are in fact repeatedly trying, convicting and re-sentencing Citizens without even notifying them that this has occurred. To re-sentence a Citizen of  the United States without giving them the opportunity to testify on their own behalf is clearly a violation of their Constitutional Rights. 

Our Legislators have taken a group of people and used them as a platform to win elections and instill fear into the parents of our country so that they look like heroes. People that are not "child-molesters", "pedophile's" or  perverts" have all been bucketed into one massive Registry and must endure a lifetime of shame.  The Sex Offender Registries are extremely costly both financial and to the families of the registered. Contrary to popular belief among the Legislators there is indeed hardship related to being listed on a Sex Offender Registry. The lives being destroyed are not just the “registered” but their spouse, their children and every family member sharing their name and address. When you are a “Registered Sex Offender” you struggle to find and keep housing, employment and your family because of the stress and humiliation that the Registry creates within yourself, your neighbors, your co-workers and vigilantes looking for justice for a victim they don’t even know.  The Sex Offender Registries are not protecting anyone, they are a means to humiliate, degrade, re-prosecute and destroy the lives of thousands of innocent citizens.

The Studies below have proven that the current Sex Offender Laws, the Registries and the Residency Restrictions are ineffective and damaging. Our Legislators repeatedly state inaccurate recidivism rates (the rate to re-offend) of “sex offenders” to the public to gain support of voters and to push through flawed legislation. The recidivism rate for “sex offenders” is significantly lower than that of murders, drug dealers and users or armed robbers. An interesting fact since Sex Offender Legislation is based on the assumption that “sex offenders” will recidivate with new sexual offenses. 

There is also a study conducted by the Attorney General’s of numerous states that proves the Internet is not as dangerous as our Attorney Generals and Legislators have convinced you to believe that it is.

                  • No Easy Answers: Human Rights Watch Study, September 11, 2007

          • The Adam Walsh Act: Scarlet Letter by Lara Geer Farley, April 17, 2008

                 • Fact Sheets Examine Impact of Sex Offender Registries: Justice Policy Institute, September 22, 2008       • Collateral Damage: Family Members of Registered Sex Offenders by Jill Levenson Ph.D. January 2009           • Enhancing Child Safety and Online Technologies: Final Report of the Internet Safety Technical Task Force to the Multi-State Working Group on Social Networking of State Attorneys General of the United States. December 31, 2008

                • Residential Proximity to Schools and Daycare Centers: Influence on Sex Offense Recidivism, An empirical analysis by Jill Levenson Ph.D. December 23 2008

                • New Jersey DOC Study on the Effectiveness of Sex Offender Registration February 11, 2009

                • Registering Harm: How Sex Offender Registries Fail Youth and Communities, Justice Policy Institute November 21, 2008

                A new book written by Dr. Richard Wright titled Sex Offender Laws: Failed Polices, New Directions concludes that the proliferation of “Sex Offender”  legislation over the past 20 years in America that were meant to memorialize an assaulted, murdered or missing child have largely failed. They have NOT reduced Sex Offender recidivism rates (5.5%), provided safety, healing or support for victims, reflected the scientific research on sexual victimization, offending and risk or provided successful strategies for prevention. Dr. Wright interviews Patty Wetterling, the mother of an abducted child says twenty years later that there are many issues with current policy and “We have not built into the system any means for success”. If Jacob Wetterling’s mother can see that current laws and policies are failing why can’t our government?

                The fear and loathing against Registered Sex Offenders that is currently considered acceptable needs to stop before additional Citizens and communities are harmed. Our Legislators need to rectify this mess they have created by bucketing ALL sexual related acts into Sex Offender Crimes. The broad brush that the Legislators have been allowed to use across our population will continue to grow until it reaches into your home and labels you and your family.

The Registries need to be returned to their original intent, to list only the most dangerous, untreatable and repeat offenders.

      

A Drive Through Philadelphia, Mississippi, circa 1967

   In the summer of 1967, my reserve unit formed a convoy and headed out of the Mississippi Delta to Camp Shelby, amid the red-bug infested, piney forests in the southern reaches of the state. The company was headed for its annual two weeks of summer camp, a term that had suffered a severe devolution under the auspices of the United States Army.

      Donald Mitchell and I, a couple unenthused privates, were diverted, instead, 160 miles southeast into the hills, to the infamous town of Philadelphia, Mississippi.  We were ordered to find the local reserve unit in Philadelphia, pick up a large mess tent and delivery it, along with ourselves, to Camp Shelby.

      For me, it sounded like a lark – a day away from Sgt. Eddie Johnson who regarded the two of us as a couple of slackers in need of constant scrutiny and extra discipline.  But for Mitchell, a young black man, it was a grim and frightening designation.

      It was a startling revelation. Life, in 1967, in the  Mississippi Delta, seemed dismal enough for blacks. Plenty of remnants of segregation still abound. And the treatment of blacks by police, the courts, by county government, by employees, was starkly unfair. But the local white power structure let it be known that it would not abide the crudest expressions of racial hatred. There could be a White Citizens Council, an organization dedicated to prolonging segregation by legal and political means, but no Ku Klux Klan.

      It hadn’t occurred to me, until that trip, that racism in Mississippi would be measured by degrees and classified by regions. But Mitchell, and most black in the Delta knew, that no such prohibition against the Klan and impromptu racist violence existed in Philadelphia and environs. Three years before the meaner elements of the Mississippi hills manifested with the murder of three civil rights workers who had been registering voters in Philadelphia – James Chaney, Andrew Goodman and Michael Schwerner.  But on our drive, Mitchell explained that black folks in the Delta had wary of those nasty Philadelphia rednecks long before those particular murders. He said the famous civil rights murders only informed the nation what Mississippi blacks had known since Reconstruction times. The difference was, he said, that the national media had paid no attention to other victims humiliated, beaten, unfairly jailed and killed in Philadelphia.

      He was afraid, as we drove into town, that we would be seen as two friends, a white guy and a black guy, who were violating of the local racist social ethic. And they’d beat the hell out of us.

      I pointed out that we were in uniformed, in a U.S. Army truck. He suggested that the federal government was not exactly a respected entity thereabouts.  Mitchell worried figured that my naïve outsider liberal attitude would both arouse the locals and cause me to underestimate their ferocity.

      He stayed low in the cab of the truck. I drove carefully into town. He insisted that we make no unnecessary stops. Not even for beer. It sucked the fun out of the trip. There were no incidents but, once myth and paranoia trumps logic, it’s hard not to imagine threatening and murderous looks from the locals. Besides, it was Philadelphia, in Mitchell’s estimation the meanest town in Mississippi.

      We made it to Camp Shelby intact, though considerably more sober than I would have imagined. Sgt. Johnson was nearly shocked that we showed up with the mess tent in such a reasonable amount of time. But Mitchell had just wanted to get the hell out of the hills.

      Last week, I noticed that Philadelphia elected a local preacher named James Young mayor, ousting the incumbent. Young is black. The incumbent is white. Philadelphia, with 7,300 residents, is 56 percent white.

      Admittedly, by 2009, stories about racial milestones in the Old South have become a little tiresome. But this election had special resonance. As Donald Mitchell once told me: “Philadelphia is different.”

      Forty-two years later, Philadelphia finally shed that awful legacy.