[00:00] Introduction: Welcome to Registry Matters, an independent production. Our opinions are our own, guided only by us. We’re thankful for the support of our patrons. You make what we do here possible. And always remember, F.Y.P.
[00:18] Andy: Recording live from F.Y.P. Studios East and West, transmitted across the internet, this is episode 394 of Registry Matters. Larry, how are you on this fine Halloween evening? I thought we were taking the week off. Well, we were until we weren’t. Here we are.
[00:48] Larry: We’ve got tens of thousands of people that depend on us. So we just can’t be taking off. You know, it destroys their weekend. Do you have any idea how many people are gathered around their sets right now, listening to us?
[01:05] Andy: The radio sets or the TV sets? Both. Hey, I do have a question for you. This came up on the Discord server in the Politics channel, which I don’t recommend anybody go into. But I want to ask you, how do you, as you traverse the internet and you see an article that has anything and you click on it, evaluate whether it is a trustworthy source of information? I don’t know how the official way would be, but I try to…
[01:34] Larry: No, I mean, your way,
[01:36] Andy: Uncle Larry.
[01:37] Larry: I independently try to confirm it through sources that I do believe to be more reliable than things I have not ever heard of and that I don’t have a reliability meter for. I know there’s a reliability meter out there that tells you how fair and balanced they are, but I tend to want to verify it through independent and secondary, multiple sources.
[01:58] Andy: And do you intentionally try to look at it for… I know that you listen to a lot of right-wing radio so that you can get the talking points for when you go talk to the people at the legislative house area. But if they say some crazy caca, like something just completely off the rails, and you’re screaming in your car as you’re driving to and from your shack, and you know it’s not true, like the Social Security stuff, I know I’m changing subjects, but you watch these videos about Social Security stuff, and you know it’s not true. But if you have a high degree of knowledge about it, and you know it’s not true what they’re saying, I’m trying to like… There’s a person that I’m talking to regularly, and he just has the most bizarre ways of looking at things that don’t seem like reliable sources of information. Well, that’s the era we live in.
[02:49] Larry: It’s wrong, but people do that because it’s affirmation… What is it called? Confirmation bias? It is confirmation bias.
[02:56] Andy: Bias or a filter. Yes, all of those things.
[02:59] Larry: Yes, they want to be affirmed in what they think and believe, and they don’t look for any counter views. Of course, if it’s the person I think it is, supporting the podcast is a counter view to many of the views that person holds. But they don’t actively seek out additional information or arguments. I want to know what the other arguments are. I can’t form an opinion if I don’t know what the various positions are on an issue. I don’t know how you can evaluate an issue if you don’t know all the relevant considerations.
[03:31] Andy: Right.
[03:33] Bumper1: Want to move states while on probation? Lawyers and officers gave one family totally contradictory answers. Turns out, only the supervising officer can start the transfer, and the receiving state takes 45 days to check the address. Patrons get bonus content you won’t hear on the public feed, plus a crew to ask. Join at patreon.com slash register. History matters.
[03:59] Andy: Well, with that little detour for the intro, make sure that you hit like, subscribe, and support us on your podcast app of choice, and that could be your YouTube channel. And of course, I’m a big fan of podcasts and RSS feeds, so please, in your favorite podcast app, and your least favorite podcast app, subscribe to the podcast and give a follow and star us and favorite us, all those things. And with all that said, what are we doing tonight?
[04:26] Larry: Well, we’re working, slaving over a hot stove. We have a case from the United States Court of Appeals for the Eighth Circuit, and it originated in Minnesota this week. Now, last week, it originated in Missouri, a different case. And also, we have a case from the Supreme Court of Appeals from the state of West Virginia. And they are going to be exciting news for the audience, and I’m not sure how they’re going to take the news because they weren’t especially spectacular outcomes.
[05:01] Andy: All right. Are you saying we have good news tonight? Do I need to get my little button that tells me, like, you know, some, like, party cheers, the spinner things? I wouldn’t go that far, no. Oh, I see. All right. Well, you have this case in here from the United States Court of Appeals of the Eighth Circuit. Didn’t we just discuss this from that circuit just the other day?
[05:24] Larry: We did last week. It was a different case, though. It was from Missouri. This one’s from Minnesota. And the outcome was not—I hope it’s better this time.
[05:32] Andy: Oh, well, not really. Oh, okay. To open this up, the case is Brian K. Housefield and all others similarly situated versus Shireen Gandhi, Kevin Moser, and several others in their individual and official capacities. What is this all about? Well, the Minnesota Department of
[05:54] Larry: Human Services operates in Minnesota, a PFR offender program, which treats patients who’ve been civilly committed under the Minnesota Civil Commitment and Treatment Act. In 2011—now, listen, we’re 15 years into this case. A group of patients in the program brought a class action against state officials on behalf of all the patients who were currently civilly committed under the act. The officials ultimately prevailed on all claims.
[06:25] Andy: My reading of this is that the appeal concerns which party should bear the cost of compensating court-appointed experts who were retained during the litigation. That is correct. So I keep asking,
[06:40] Larry: why do you even need me here?
[06:41] Andy: I think we could take a tally and everyone in the audience raise their hands and say, do we still need him? And I would imagine people would say, we still need you. But we really don’t. But the audience is used to your doom and gloom kind of perspective. What’s the rule on attorney’s fees and costs since the state of Minnesota prevailed on all claims? Well, the federal rules of civil procedure provide that generally costs other than attorney fees should be allowed to the prevailing party. And that’s federal rules of civil procedure 54D1. The problem is in this case that although the state officials prevailed in the litigation, the district court ordered them to bear the entire cost of the court-appointed experts. The Eighth Circuit concluded that the officials are entitled to recoup half of the expert fees from the plaintiffs. They vacated the district court’s order and remanded the case back with instructions.
[07:40] Andy: Now, look, I got to play dumb for a moment. Prevailing means who won, yes? Correct. All right. And who won? Did we win or did they
[07:50] Larry: The state won initially at the trial court, but the Eighth Circuit overturned that decision. As I mentioned, this has been going on for 15 years, so they’re back at square one.
[08:05] Andy: Buzzsawed. That’s funny. The civilly committed patients filed this class action pro se, alleging that the PFR program failed to provide treatment and employed unconstitutional conditions of confinement. The court granted the patients leave to proceed in forma pauperis. Did I say that right? Good enough. Then, at the request of the Minnesota Federal Bar Association’s pro se project, counsel agreed to represent the plaintiffs based on the indigent status of the patients and the importance of expert evidence to their claims. The patients moved the trial court to appoint experts to assist the patients under Federal Rule of Evidence 706. Since I have no idea what 706 is, would you please explain it? It deals with
[08:54] Larry: the court’s decision to appoint expert witnesses. It provides that the court may order the parties to show cause why expert witnesses should not be appointed and may ask the parties to submit nominations. The court declined to resolve whether Rule 706 allows the court to appoint experts solely on behalf of the plaintiffs, but acknowledged the need for experts in this case to fully and properly litigate the claims. So the trial court got it right on that point. The court required the parties to nominate experts. And then in December of 2013, appointed four experts who were nominated jointly by the plaintiffs and the defendants.
[09:35] Andy: The opinion states that later that month, the parties met and conferred on the allocation of payment to the experts. In a letter to the judge, the parties jointly recommended an allocation of 50-50 split evenly between plaintiffs and defendants. Without explanation, however, the court instead ordered that without prejudice to subsequent adjustment, such costs shall be initially allocated to the defendants. And the state officials
[10:01] Larry: ultimately, as I said earlier, prevailed on all claims after more than a decade of litigation. By that point, the experts had generated fees of $732,923.92. The officials filed a bill of costs totaling more than $800,000 and the plaintiffs objected. Imagine that. Well, why would they object to paying $800,000? They were indigent.
[10:25] Andy: I’ve got my checkbook right here. I’ll write that one out. That’s no big deal. That’s like finding a quarter on the ground for the likes of me, right? Sure. I’d say you should go ahead and submit it. I will do that. So on page three, and here it comes later. Someone’s going to clip that out and go, well, you said it. Here’s your bill, right? All right. Well, on pages three and four, it states the district court declined to award any cost to the officials as prevailing parties. The court concluded that the plaintiffs, being indigent, will likely not be able to pay these costs in the future. They have brought this action in good faith. The case raised issues of great public importance. The case has been vigorously litigated. The issues were difficult and close, and imposing fees could have a potential chilling effect on future litigants. I can’t disagree with that concept. So are you saying that it makes sense to you or what? It does. I mean, that seems reasonable. If someone is especially being put under pressure by the state, which has more resources than most of us could put together, I think it’s reasonable. So yeah, I think that seems reasonable. But the officials
[11:38] Larry: appealed. I remember these are the people who were short-staffed, under budget, and all that stuff. But the officials sought an award of costs against the plaintiffs only. They did not ask the court to tax costs against counsel. Now that’s funny.
[11:54] Andy: The rules of civil procedure provide that costs should be allowed to the prevailing party unless a court order, federal statute, or federal rule directs otherwise. Now, that I guess is Federal Rule of Civil Procedure 54(d)(1). And what was the trial court’s reasoning for not awarding costs to the state? Well,
[12:22] Larry: the district court stated that the plaintiffs’ inability to pay was the most important consideration and declined to award costs to prevailing parties. The court cited financial information from the plaintiffs’ applications in 2011 to proceed in forma pauperis and determined that there was no reason for the court to believe that these numbers had substantially changed. The appellate court did not recognize that in an appropriate case, the court has discretion to deny costs because the plaintiff is poor. They said, “Too bad. You’re poor too.”
[12:58] Andy: Bad. I noticed also that on page four that the court stated in this case, however, the district court did not address a significant factor that bears on the assessment of costs in 2013, two years after the plaintiffs applied to proceed in forma pauperis. They jointly recommended to the court that the cost of expert witnesses should be allocated equally between plaintiffs and defendants. Having made this recommendation to the district court, the plaintiffs presumably had the ability one way or another to pay their suggested share of the costs. Do you think that’s what wrecked their argument?
[13:46] Larry: Yes, it’s actually, I know you’re not going to agree, but it’s kind of funny for you to say, I’ll pay 50%, and then come back later and say, nope, didn’t really mean it. Yes.
[13:55] Andy: That’s what happens, man. You go to lunch with somebody. You’re like, yeah, we’ll go 50-50. Oh, hey, can I spot me the 50% that I owed for lunch?
[14:03] Larry: But they said, because the district court found no reason to believe the plaintiff’s financial situation had changed since 2011. Well, there’s some logic in that. They filed an affidavit saying they were broke, then made an agreement saying they would pay. So the appellate court is irritated that the district court failed to address their willingness to fund half of the expert costs as recently as 2013. So they want to know what changed.
[14:31] Andy: The appeals court stated, even if an award of costs might deter plaintiffs from seeking court-appointed experts in a future action, that does not mean the state officials should bear the costs. The plaintiffs did not present evidence about an agreement or lack of agreement with counsel about responsibility for costs. If there is no such agreement, then perhaps future plaintiffs will insist that their lawyers agree to bear the risk of paying costs for an unsuccessful action. That does seem a bit odd.
[15:00] Larry: It would be if their logic is that lawyers also have an opportunity to benefit from an award of fees if they’re successful. That’s a mechanism by which attorneys for plaintiffs and civil rights cases can manage the risk of failure. But what that means is, if attorneys are going to get taxed for costs going forward, we’re going to have fewer of these cases brought. And then what do you think the bottom line is here? Well, I think the bottom line is the attorneys made a mistake, and the court says it best. The court record shows that plaintiffs offered in 2013 to accept an allocation of half the cost attributable to court-appointed experts. So I think that was their big mistake. The district court did not consider this acknowledged ability to pay, even though they had been approved as being indigent, and the plaintiffs presented no evidence to establish why the court should not rely on the plaintiff’s previous offer. That’s logical. The other factors cited are insufficient to rebut the presumption that prevailing parties are entitled to costs.
[16:11] Andy: And I guess how much do they owe the state? Only $366,461.96. Again, I will pull out my checkbook. I mean, isn’t it reasonable, Larry, that if you’ve got a bunch of indigent people, these are people civilly committed, so they’re not out making high dollar jobs, right? Right. And you have to bring in expert witnesses and somewhere along the lines, they said, yeah, we’ll pay 50 percent, and then they were told to pay the bill.
[16:43] Larry: Yeah.
[16:44] Andy: That’s what the court is doing. They’re saying, “You agreed to pay 50 percent, and now you have to pay the full bill.”
[16:46] Larry: Being held to their agreement, but I don’t know why you’re having a fuss about it.
[16:50] Andy: I don’t have a fuss about it. I mean, I really don’t. But if you knew that they were all indigent again, when you lend someone soup, that’s indigent in prison and you’re like, “Yeah, I’ll get you back next week.” How is he going to get you back your soup next week?
[17:06] Larry: Well, I would say ultimately the attorneys, there was a number of attorneys listed on this. I don’t know who made the decision, but I would say whoever made the decision to be responsible for half the cost probably should have made that choice.
[17:21] Andy: Yes. That is what it seems like. Someone missed counting some dollars and cents along the way about how indigent people are going to repay a bill. Well,
[17:33] Larry: I would suppose that they weren’t worried about it after they had won. I mean, of course they agreed to this before they won, but they wanted the district court. So they would have been thinking, well, we’re going to be upheld by the Eighth Circuit and then we’re going to be cashing in the chips. That’s what they would have been thinking. They didn’t expect that the Eighth Circuit was going to squash them the way they did.
[17:53] Bumper1: Fascinating. All right. Well, the Supreme Court just said unanimously that a trial belongs where the conduct happened. Registry Matters asks whether that cracks open federal registry cases. Since no federal registry exists, patrons can even listen as the show is recorded live, watching the sausage get made. Become a patron at patreon.com/slash/registrymatters.
[18:21] Andy: Let’s take a look at some of the things that are happening in the state of West Virginia. And we have this case here, the state of West Virginia versus Jeremy Jarrett. Number 2, 14-115. Jeremy Jarrett appealed the circuit court of Kanawha County’s order revoking his supervised release and sentencing him to a four-year term of imprisonment. The court also denied his motion to modify the conditions of his supervised release to allow him to have contact with his newborn daughter. This just came about two days ago. Let’s get some more details on this.
[18:58] Larry: Jarrett argued to the circuit court, which is the trial court, that there were errors. First, the probation officer imposed supplemental conditions without affording him counsel or a hearing, violating West Virginia Code 62-12-26 and Rule 32.1 subsection (c). Second, the supplemental conditions of his supervised release were void for vagueness. And third, the state failed to present sufficient evidence to support the revocation. Jarrett also asserted that the circuit court abused its discretion when it denied his motion to have contact with his newborn daughter. So he had three complaints.
[19:50] Andy: Okay. Now you’ve claimed for years that the law is “quote unquote logical.” And sometimes it’s easy to understand. I want to read from page one and see if you can stick by that absurd claim that you have made. The court stated, “For reasons set forth below, we hold that the circuit court erred when it revoked Jarrett’s supervised release based on violations of supplemental conditions provided to him by a probation officer that amounted to a substantive enlargement of the circuit court’s obviously imposed conditions without a hearing or assistance of counsel. However, we conclude that the circuit court did not abuse its discretion when it denied Mr. Jarrett’s motion to modify the conditions of his supervised release to allow him to have contact with his daughter. Consequently, we affirm in part, reverse in part, and remand this case for further proceedings consistent with this opinion.” Holy moly. That is some Othello, Othello back and forth, double speak, and is not logical. Please, you got to admit it.
[20:58] Larry: Because their actions were completely logical and consistent with the evidence and the law.
[21:07] Andy: You are completely hopeless, which I already knew. And so hopefully, the audience will join in. We’re going to have a go fund me and have them certify you as hopeless. Now, let me set up the case in 2009, a Conowa, which is K N A W H A H W H A. These are weird letters that should not normally go together. Assuming it’s a Native American kind of tribe name.
[21:33] Larry: I think it’s Conowa.
[21:34] Andy: I’m with you. It’s just not flowing off my tongue. I had jambalaya just before we started and it was really hot. Anyway, a Conowa County grand jury charged Jarrett with four counts: first degree sexual abuse and one count of first degree sexual assault. In 2010, Mr. Jarrett pleaded guilty to two counts of first degree sexual abuse. His victim was a nine-year-old. Jarrett was 18 years old at the time of the crimes. In April 2011, the circuit court sentenced Jarrett to consecutive terms of one to five years of imprisonment for each count plus 50 years of supervised release and entered an order of notification of supervised release, a 2011 order. The court explained the conditions in open court, gave Mr. Jarrett a written copy that he signed, and directed defense counsel to review the terms with him. Under the terms of the 2011 order, Jarrett was required to comply with the rules of supervision and other regulations of the court and any orders or directives of the supervising officer. The 2011 order contained child-related restrictions, barring employment or home services involving anyone under 18, relationships with anyone under 18 residing where children under 16 live, and residing or working within a thousand feet of a school, child daycare facility, the victim’s residence, or anywhere people drive, live, or libraries, public anyway, sorry, I added that, but that all sounds pretty normal to me. So what caused the problems underlying this appeal?
[23:13] Larry: Jarrett was discharged from his term of imprisonment in February 2014 and began serving his 50-year term of supervised release. I mean, he can knock that out in a heartbeat, right?
[23:21] Andy: Yeah, sure. I mean, well, he was 19 when he did it, 50 when he gets out or when he’s off supervision, easy.
[23:28] Larry: But Jarrett’s supervising probation officer provided him with three additional documents upon release. And it’s called sex offender conditions, definitions of terms regarding contact with minors and computer use conditions. Jarrett acknowledged an initial that he was subject to several conditions regarding his contact with minors, including that he was prohibited from living in the same residence as a minor. Now listen carefully, because that’s important here: exercising visitation with a minor or having any contact with the victim, being present or within two blocks of a park, school playground, swimming pool, or daycare center, or any specific location where children are known to congregate, unless approved by his PO. And three, engaging in a dating or intimate or sexual relationship with any person who has children under the age of 18. Now, those were not originally imposed by the court. And that’s where the problems arise here. They were handed to him and he was told to initial those. And that’s pretty much under duress. You’re sitting in front of the PO. They can put you in handcuffs and they say, sign this. And you say, and if I don’t, they said, well, we’ve got a special place for you. Yeah. They would revoke your probation right there, right? They would lock you up right then. I know that’s what they would do. They would take you into custody immediately.
[25:01] Larry: They could have
[25:02] Andy: done it. Okay. So in 2014, Jarrett violated the terms of a supervised release by having incidental contact with a minor and failing to report a cell phone. The circuit court revoked his supervised release and imposed a term of five years of imprisonment. It further ordered that upon his discharge, Jarrett was to complete the remainder of his supervised release and comply with the terms of the 2011 order. When Jarrett was discharged from imprisonment in 2014, his probation officer provided him with a copy of the 2014 terms, and Jarrett acknowledged them.
[25:38] Larry: Yes. You’ve got that wrong. He was discharged from prison in 2017, because he got out in 2014 and then he got revoked and he got out again in 2017. So just to clarify, this is when he’s on his second release from prison. Of course. But notice that he got out in 2014 and he violated within 30 minutes of being out. Three months later, Jarrett violated the supervised release by failing to notify the court about a sexual relationship and viewing porn on a shared phone. The circuit court revoked his supervised release and ordered him to serve an additional five years of imprisonment. Now that’s funny.
[26:21] Andy: Shared with whom? Don’t tell anybody that you looked at it if it was a shared phone.
[26:28] Larry: I don’t know the details.
[26:29] Andy: I’ll just tell you what the current situation is. I know I just. Stop outing yourself. Sorry. In 2023, Jarrett told his supervising officer that his wife was pregnant. The officer advised him to contact his counsel and request a hearing to modify the 2014 term and conditions which prevented him from having contact with any minor. When your kid pops out, Larry, they’re going to be a minor. Possibly, yes. Jarrett requested a hearing, which was scheduled for later that year. Then the case takes a bizarre turn. On August 15th, 2023, Jarrett met with a probation officer who instructed him that he was prohibited from going to the hospital if his wife went into labor prior to the hearing scheduled for the motion to have contact with his child after birth. That same day, Jarrett picked up his wife following her appointment with an OB doctor. His wife told Jarrett that her physician told her to report immediately to Charleston Area Medical Center. Women’s and Children’s Hospital for an emergency cesarean section. Jarrett escorted his wife to the hospital and remained in the waiting room for several hours, leaving once to return with relatives. Larry, I think that I have heard you say something to the effect of, I’m going to go to the legislative body even if it’s off limits. I think it’s reasonable to say that a guy is going to take his wife to the hospital when she goes into labor. I think that seems reasonable. It is. All right, so what happened next then? Tell us the story.
[28:03] Larry: Hospital staff contacted the probation office and reported that a registered PFR was in the waiting room at the hospital, which I don’t know how they would have known that unless he’s got something on his head that says registered PFR. Officers arrested Jarrett at the hospital later that evening. Thereafter, the state filed a petition to revoke Jarrett’s probation, charging him with violating the conditions superimposed by being present or entering within two blocks of a location where children are known to congregate. Children don’t congregate at hospitals. That’s not what
[28:37] Andy: They don’t.
[28:37] Larry: And two, failing to leave the geographical proximity where verbal and nonverbal communications with minors could be established by alerting in the waiting room. I don’t consider waiting for your wife to deliver a child as alerting. But you have to admit that this is funny.
[28:54] Andy: Good grief. I seriously doubt that anyone alive thinks that this is even the least bit funny, Larry. That’s why you’re a deranged lunatic. What happened? Next.
[29:03] Larry: The circuit court found that Jarrett had violated the conditions of supervised release. Specifically, it found that the 2011 order required Jarrett to comply with the rules of supervision and other regulations of the court and any orders or directives of a supervising officer. And that the 2014 terms given, remember, that’s when he got out of prison the first time, were simply a modification of the court’s 2011 order. That’s creative. You’ve got to give him credit. The circuit court further found that the challenge conditions were not void for vagueness. It then sentenced Jarrett to a term of four years of incarceration. Remember, he’s gone through the turnstile. This is the third trip through the turnstile for him.
[29:43] Andy: Yep, I got that. And I think in Georgia, if you violate the third time, you’re looking at something like life for a probation violation against your PFR rules. I think. I’m not sure. This does seem pretty freaking harsh in the view of actual circumstances. It does.
[30:05] Larry: For Jarrett, the problem was he had violated supervision twice previously. If this had been his first rodeo, it might have been different. But the court’s analysis would have been that the evidence strongly suggests this is the third trip through the turnstile. Their analysis would have been, why did I keep seeing this case on my docket? Why are we here over and over again on this guy? What the hell’s going on? Here, that’s how the court would have looked at it.
[30:34] Andy: I think going before a judge and hearing, “Oh, you again,” would be bad. Jarrett had separately moved to modify the conditions of his supervised release to allow him to have contact with his newborn daughter. And that motion was argued at sentencing. The state opposed his motion. Imagine that.
[30:53] Larry: The circuit court relied on Jarrett’s criminal history, pre-sentence report admissions, and a therapist’s letter rating Mr. Jarrett as an average moderate risk to re-offend, which noted that he would have ample opportunity to offend as a caretaker. The circuit court ultimately denied Jarrett’s request to modify the conditions of supervised release to allow him to have contact with his daughter.
[31:22] Andy: I noticed that the circuit court granted him permission to seek supervised visitation with his daughter, provided appropriate assurances for child safety could be demonstrated. The court stated that visitation requests must include supervision by a third party and the approval of a treatment provider. What about that? I’m like, his wife could be that supervisor. I think,
[31:49] Larry: I think it’s a stretch, but it’s possibly reasonable in view of the repeated contact with the judicial system that this man has had over the years. But I think they’re stretching. I think this is a long stretch, but they did it.
[32:07] Andy: Let’s move on to the Supreme court’s analysis. Jarrett argued that the court erred when it based the revocation on supplemental conditions of supervised release imposed by probation. How did that go? Well, the court didn’t
[32:22] Larry: go all that well. The court stated we first addressed Jarrett’s argument that the two conditions of his supervised release that he was found to have violated—a prohibition of being within two blocks of locations where children congregate and a requirement that he leave the geographic proximity in which verbal or nonverbal communication with minors could be established. Now you got a bit. That’s good. I’ve never heard that one before. We’re
[32:48] Andy: for board. That’s funny. You’re sitting there in a waiting room and there’s a kid across the way from you and they could be talking, and you potentially could overhear them. And that could be construed as having a conversation with them. You just glance at them and smile. You’ve now violated probation. So,
[33:06] Larry: those were imposed by the Kanawha probation department at the 2011 sentencing without a hearing and without counsel being present. He argued that these conditions amount to a substantive enlargement and are void and unenforceable, and that a revocation premised on those cannot stand. They agreed with him on that—they cannot impose such enlargements without a judicial review.
[33:39] Andy: review.
[33:41] Larry: So, he,
[33:42] Andy: he won on that. The court stated that the record establishes and the state does not genuinely dispute that the two conditions underlying the revocation of Jarrett’s supervised release, included as part of the 2014 terms, were not among the terms set out in the 2011 order that the circuit court reviewed.
[34:05] Larry: Is that correct?
[34:08] Andy: It was with Jarrett and then in open court and with counsel at his original sentencing. Rather, they appeared in documents the probation department presented to Jarrett after his release. The PFR conditions and the accompanying definitions governing contact with minors added numerous conditions not contained in the 2011 order.
[34:29] Larry: So he won on that. They understood that the two conditions the circuit court found Jarrett violated were new. Critically, they were never imposed, reviewed, or explained by the circuit court in the proceeding with Jarrett when he was represented by counsel. So because those conditions were void and unenforceable, the revocation based on those conditions cannot stand. He’s winning. They went further and stated, “We hereby hold that the general condition of supervised release requiring a probationer to comply with the rules of supervision and the orders and directives of a supervising probation officer authorizes the officer to administer, implement, and enforce conditions imposed by the sentencing court. It does not authorize a probation officer to substantially enlarge the conditions of supervised release by imposing a new restriction that materially expands the restraints on the probationer beyond those imposed by the court.” That’s a really good thing. In West Virginia, you wouldn’t expect to have a probation officer to have such an
[35:31] Andy: aggressive posture. Footnote number four says a probation officer may, for example, set and adjust reporting schedules and the manner of reporting, direct the day-to-day mechanics of a treatment, counseling, and/or testing program the court has required. Can you dice this a bit? What can the probation officer do without going before a judge?
[35:56] Larry: The 2014 terms illustrate the distinction. Jared’s did not merely implement the 2011 order. That order prohibited residing or working within 1,000 feet of a school, child care facility, or the victim’s residence. The 2014 terms imposed materially greater restraints on Jared’s freedom to move throughout the community. When a probation officer concludes that a broader restriction is warranted, West Virginia Code 62-12-16 and Rule 32.1b supply that mechanism. The probation officer must petition the circuit court, which may enlarge the conditions of supervised release after a hearing at which the probationer is afforded the assistance of counsel.
[37:01] Andy: At the hearing on Jared’s motion to modify the condition of supervised release, his counsel argued that it would be in the best interest of the child to have her father in her life. Conversely, counsel for the state argued that having a father figure in the house is an important factor for children, but not exposing them to the possibility of abuse or sexual assault is also important, and I think it outweighs the other. The state emphasized that the pre-sentence materials reflected Jared’s admissions that he was sexually aroused by young girls and that he had engaged in sexual acts with family members, including four female cousins and a younger brother. Is Jared a good candidate for sympathy? Why do we always have these people that are not like the poster children for us to have good case law?
[37:54] Larry: Everybody can’t be Wendy Whitaker. I see, so he is not. It also noted that Jared’s supervised release had been revoked twice, once in 2014 after three hours of being out for incidental contact with a minor female to whom he admitted an attraction, and again in 2017 for failing to disclose a sexual relationship with his father’s ex-girlfriend. Now you got it. I admit that that’s funny. The circuit court also considered a letter prepared by the therapist that indicated Jared would still be considered an average moderate risk of reoffending and assuming a caretaking role as the father would afford him ample opportunity to offend. They agreed with the circuit court’s conclusion that Jared had not shown that contact would be in the child’s best interest at this time, and that was neither arbitrary nor unreasonable. The court viewed Jared’s history, his own admissions, and the risk assessment he submitted, and declined to place a newborn in his care while leaving open the possibility of supervised visitation down the road.
[39:02] Andy: And of course, they mentioned that the Supreme Court in the United States has recognized the risk of recidivism posed by PFRs is “frightening and high,” citing Smith versus Doe 538 U.S. 84, 103 from 2003. And that’s quoting McCune versus Lyle from 2002.
[39:22] Larry: And they concluded for these reasons, we discern no abuse of discretion and affirm the circuit court’s denial of Mr. Jarrett’s motion to modify the conditions of his supervised release.
[39:35] Andy: Well, in the end, then, what did Jarrett win? It seems kind of like it didn’t really work. It seems hollow.
[39:41] Larry: Well, he did win something. He won the overturn of his probation revocation. Now, remember, he served the time and got out. So he can’t get the time back. But they overturned the revocation because those conditions weren’t imposed properly. So if he should ever be in trouble again, which the record suggests that he will be in trouble regularly throughout his life based on what we see so far here, that means he can say that he’s never been revoked. And he can say that truthfully. He can say there was a revocation that was overturned because it was done improperly. So I have never had a sustained violation of probation. That’s what it did for him. But he basically didn’t win anything.
[40:18] Andy: I see. I do want to point out that in chat, someone says, this episode has more than a share of doom and gloom. Happy Halloween, everyone. Now, who would have said that? That was P.A. Dad. And
[40:36] Larry: I’m not going
[40:37] Andy: to tell you where he lives.
[40:37] Larry: I went out of my way to drive across town in a blinding snowstorm to get here. To put this content together. Because I’m so dedicated. And now they’re calling it gloom and doom.
[40:51] Andy: This is not good news.
[40:55] Larry: Well, everything can’t be good news.
[40:57] Andy: I think you may actually go find the extra, like Jerry said, that you are a detriment to this cause. Remember, Jerry?
[41:08] Larry: I do remember, Jerry. Did we get any feedback about that?
[41:11] Andy: I didn’t hear anything. We need to come up with a mascot. I need to get a stuntman or a stuffed animal or something. We could get maybe a figurine doll of Jerry Seinfeld. You do know who that is, yes? Yes, I do. Okay. Is there anything else that you would like to cover before we close all of this really happy, joyous information down?
[41:38] Larry: I hope people will exercise their civic duty if they have not already done so. Because we’re closing in on that. A very important midterm election. Not suggesting how you vote. I’m only suggesting that you look at what you’ve gotten. And if you’re happy with what you’ve been getting, vote the same way you’ve been voting. But if you’re not happy, you might consider making some changes. Because that opportunity is affording itself to us next Tuesday. And we the people will decide the direction for the nation for the next two years.
[42:14] Andy: But can I cock my head? And tilt it? And I hope if I do the same thing, it’ll change? Well,
[42:21] Larry: That may not be effective. That’s kind of like the doubt you have about prayer. I’m not sure head cocking will do much more than what we’re already getting.
[42:33] Andy: Are you suggesting that Joey, who tailgates all the time, could continue doing that with the expectation that he won’t tail-end people? No, I’m not suggesting that. I think the same thing would likely happen if he keeps doing that. Hmm. Sounds like you’re saying if you keep doing the same things and expect different results, you may be insane? That would be true.
[42:55] Larry: I’ve been looking forward to the fiscal year concluded September 30th. We’ve had the budget for 2025, excuse me, 2026, the fiscal year that ended in September. And I can’t wait to go over it and have the people defend how much larger the deficit’s gotten under this administration. It’s saving a whole bunch of money, you understand. But we don’t have time to get into that tonight. We’ll get into that in probably a patron extra.
[43:24] Andy: That seems reasonable. I also still want to watch that movie, Larry. I’m going to set that up. When we have nothing to talk about, we’re going to watch a movie. Sounds good. And you will laugh. Well, head over to registrymatters.co for show notes and links to go everywhere. I’m doing this all from memory because it’s not in the show notes. So bear with me if I forget something. You can do that. You can leave a voicemail message at 747-227-4477, email at registrymatterscast at gmail.com. And then lastly, like the people that support us every month, you could become a patron as well for as little as a dollar a month and show the love and support for the work we do here at FYP Education. Larry, happy Halloween. Go have fun with your trick-or-treaters. And I’m going to darken every window I have on the front side of the house, and I’m going to hide. That’s my plan for Halloween. Well, the next time. The next episode, I will report back to whether my plan worked or not.
[44:20] Larry: Do you want to share what your plan is? I’m tricking the kids because I’m letting them know that you’re not the only one that can do tricks. So I’ve got tricks in store for the kids. I bought special Halloween bags, and I filled them with goodies. I made, I forgot, 20-plus bags. We generally have no trick-or-treaters, but I made 20-plus bags. And a number of them have cash in them. But they’re lighter because they have fewer treats. And the kids are going to pick the larger bags because they’re heavier. And then the ones, when I run out of larger bags, and the kids have to take the smaller bags, they’re going to tell their friends they got money. And that’s going to be funny. If you say so.
[45:01] Andy: Okay. Everybody in the audience is laughing. That is very funny. Yeah, I can hear the thunderous laughter as we speak through this. Well, Larry, I hope you have a fantastic night. Enjoy your Halloween. And enjoy everybody that’s listening. Have a happy Halloween and a safe daylight savings time tomorrow night. No, that’s tonight even, right? Tonight it goes back at, well, actually at the morning at 2 a.m. I think it changes. Right. So take care, my friend. Good night. Talk to you soon. Bye.
[45:34] Introduction: You’ve been listening to Registry Matters.