[00:00] Intro: This episode of Registry Matters is proudly brought to you by our amazing pledge patrons, Justin, Brian, Michael, Steven, Rachel. Your support makes this podcast possible. Thank you. And don’t forget, FYP.
[00:16] Andy: Recording live from FYP Studios east and west. More west to be included. Transmitting across the Internet. This is episode 350 of Registry Matters. Good evening, Larry. What’s up over over there?
[00:29] Larry: Well, it’s not as toasty as it has been. It’s only 91 today. So we’re coming down into Only 91. We’re coming down to the, downside slope of the summer season.
[00:41] Andy: Fantastic. Be sure to head over, show your support by hitting like and subscribe, thumbs up buttons, five star reviews. Those are great ways that you can show support for the program. It really makes a difference for all those crazy algorithms that follow that kind of stuff. And if you’re feeling extra generous, please head over to patreon.com, and any sport would help us out and be incredibly valued. So, Larry, what are we up to tonight?
[01:06] Larry: Well, good news is Chance is able to join us today, and that means Woo hoo. Not miss just mister doom and gloom for this episode. He has a California corner segment coming your way. Our main event is we have a case from the United States Court of Appeals for the night circuit, and that’s a huge win for for PFRs, at least like last week for the moment. We have a couple of articles
[01:34] Andy: if time permits. Until they change it. Until they change it. Well, let let’s dive right into the deep end. You put this thing in here from the Ninth Circuit, and that’s, West Coast stuff. Correct?
[01:48] Larry: Yes.
[01:51] Andy: And isn’t that the circuit that Supreme Court used to overturn that they they usually overturn most frequently?
[01:58] Larry: It it is. It used to be, overturned frequently. That was when it was dominated by a bunch of liberal communist sympathizers like, Stephen Reinhart. But, Trump has packed it with rational thinkers, so they don’t get overturned as much as they used to.
[02:14] Andy: Wouldn’t what but then hold on. Wouldn’t the ninth circuit be the antithesis of ideology against the Supreme Court?
[02:21] Larry: Well, unless I’m saying it was, but Trump fixed that during his first term in office. You know, you had several replacements on that circuit, and now it’s it’s, packed with rational thinkers, and those communist sympathizers who are out of there. I I see. I figured that it was still kind of a left leaning institution. Alright. Well then,
[02:42] Andy: so, like yeah. And I and I certainly don’t agree that they would be the most rational of people. Anyway, but the the case that we’re gonna talk about is Bradley Bogansky. Is that what we’re going with, Bogansky? Either way. Bogansky or Bogansky. Oh, oh, sorry. Bogansky. Okay. So we’ll do Bradley Bogansky versus David Shinn, and that’s the director of the Arizona Department of Corrections Rehabilitation and Reentry. The decision was released just only a few days ago, actually, on August 12. So four days ago as we’re recording this. Now you claim it’s a win.
[03:16] Larry: It is. The three judge panel reversed a district judge denial of Pekonski’s habeas petition, and that petition was challenging his Arizona jury conviction for child molestation and was remanded with instructions to issue the writ of habeas corpus, which the trial judge had denied. That is a rarity, and it is good news.
[03:38] Andy: Well, look. I read over the case. I went to a picnic today with a whole bunch of friends, and I was reading it while I was at the picnic. There was a shrimp boil. We had, andouille sausage and all that stuff. And as I was reading it, I couldn’t help but be reminded of an individual named Stephen May in in a case that we covered multiple times. He got shafted in the ninth circuit as I recall. Am I on the right track there? You are. Now I recall that habeas, that a habeas judge had declared Arizona’s Centimeters statute unconstitutional. Would you go into Arizona statute a little bit?
[04:14] Larry: Yes. What kind of statute did you say Centimeters? What is that?
[04:18] Andy: I chose to not say the the words out loud that you already said. Okay. Centimeters. Okay. So it’s already been said? It has been said. Okay. Arizona defines
[04:29] Larry: Centimeters of a child as any direct or indirect touching of the private parts of a child. That’s it. During the relevant period, this, for Bekonski’s case, the state provided an affirmative defense if defendant could show by preponderance of the evidence that he was not motivated by a sexual interest. Despite that, a jury found Bogonski guilty of Centimeters, despite him putting forth the affirmative defense that he was not motivated when he helped bathe girls placed in his care, through the foster care system. He and his wife were taking care of foster children. And so he said that that was the reason why he was bathing
[05:13] Andy: them. So I wasn’t losing my mind with the similarity and the eerily similar case with Stephen May. He was a lifeguard who had touched a minor in the course of his duties as I recall? That’s correct.
[05:26] Larry: Well, then with your amazing storytelling skills, can you refresh the audience on what the term affirmative defense means? I do my do my best, but we actually have a real lawyer here, and he can backfill what I miss. An affirmative defense is when you do not contest the commission of the underlying deed. For example, killing a person and claiming it was done in self defense is a classic example of an affirmative defense. The accused admits, yeah, I shot the son of a bitch, but he asserts it was in self defense. And then the burden shifts to the accused, usually by a much lesser standard to to prove that the act was done in self defense. And there are many affirmative defenses. Not guilty by insanity is another example of an affirmative defense. But, yes, you’re basically you put yourself at the mercy when you assert an affirmative defense because you can’t really assert it without saying, yeah, I’ve done it. But, Chance, can you make it gooder than what I’ve done?
[06:22] Chance: No. No. Can’t make it gooder. That sounds pretty textbook to me.
[06:27] Andy: Alright. Well, in this case, the panel held that Arizona’s statute scheme unconstitutionally shifted the burden of proving an essential element of the crime of c m to the defendant, contrary to the due process clause of the fourteenth amendment.
[06:45] Larry: And the irony is they relied on the exact same cases that Stephen may rely on those for Patterson versus New York from 1977, Mulaney versus Wilbur from 1975 and in re Winship, which I’ve not read that case to my recollection from 1970, But this is long this is well plowed earth, as they say, the South of in terms of shifting the burden. And, that this is what Arizona has done.
[07:12] Andy: Now I’ve heard that you have have thought about for years that nobody succeeds in overturning a a state conviction in federal habeas court due to the anti terrorism and effective death penalty act of 1996. This is the second time that Arizona statute has been overturned in habeas proceedings in federal court. Now can you admit that people do win?
[07:35] Larry: Yeah. Occasionally they do. This despite the fact that representative Henry Hyde and the Newt Gingrich crowd really totally gutted federal habeas in 1996 when they passed the AEDPA. But nonetheless, the panel concluded that under the standard set forth by the AEDPA, the Arizona Court of Appeals decision upholding Bogansky’s commission conviction, therefore involved an objectively unreasonable application of legal principles clearly set forth in decisions of the US Supreme Court, which is what you have to show. Is it can’t be an appellate level decision. It has to be from the highest court of the land. But but, yes, people occasionally win.
[08:19] Andy: And I thought we were supposed to defer to the state’s highest court. The opinion states the Arizona Supreme Court has held that the offense is complete when the child is knowingly or intentionally touched because the crime of Centimeters does not mention, imply, or require sexual motivation. That was so decided in State versus Holly or Hall. I don’t know. H o l l e, and that’s a a what? A 2016 case.
[08:48] Larry: That is correct. AEDPA does require deference. That was one of the great pride and joys of Henry Hyde, chair of the house judiciary committee, I believe, at the time of the nineties, a Newt Gingrich for, gutting federal habeas. Cause all these whiny state prisoners were going into the federal courts and clogging that system up just with complaint after complaint, after complaint about how they had been railroaded. And therefore, they wanted to stop all this nonsense and make these, have finality. But the AEDPA does require deference except when the determination is a direct conflict with the US Supreme Court decision. But during the period relevant to this appeal, Arizona provided an affirmative defense if the defendant could show by preponderance of the evidence that he was not motivated by sexual interest. But as I said earlier, in 2017, a jury found Bradley Bogansky guilty of Centimeters. Despite his defense, he was not sexually motivated when he helped bathe girls in the care of he and his wife in the foster care assistant. Would you remind me what preponderance what level that is? Is that so the 50 plus one? Yes. It’s slightly tipping the scale above well, the when you put when you’re weighing and when you see those scales of justice, when you flip it just a little bit in favor of one party, that would be my definition. Chance, do you have a similar definition, or am I on the right track?
[10:11] Andy: Yeah. Preponderates by 1% over the 50 mark. That’s exactly right. Oh, good. Now whenever I think about those scales of justice, I always think of, like, the Encyclopedia Britannica sitting on one side that you’ve gotta try and lift it out of that. So but you know it’s not possible for a man to bathe females without, a sexual motivation. Of course. Like, you would take your children, and you would be like, It’s bath time. Right?
[10:35] Larry: Yes. No. No. I didn’t actually know that, but I know that’s the theory out there. So you gotta understand men are horn dogs, and women are purest of winter with snow. So if a woman bathes a boy, it was it’s all for the best of intentions. And if a man bathes a female, he’s getting some kind of pleasure. And it was kind of like searching in prison. You know, how they don’t let male guards search female female prisoners? Yes. But the other way around, it’s okay because see, women don’t get all horned out about about this kind of stuff.
[11:07] Andy: It it I’m trying to say there’s a I never I never had a female search me. So In my opinion. To say there’s a double standard there. It sounds like it. Definitely sounds like it. Now the court covered the history of the statute since Arizona became a state, and that was in 1913 in in Larry’s, like, teenage kind of years. Would you would you agree that you were roughly a teenager in the ’13 No. Time frame? I’d already served in Lincoln administration as a that’d be official. So no. I was well into adulthood by 1913. I see. Alright. Well, then much much later in 1965, Arizona substantially revised the statute. The new version pro provided a relevant part. A person who molests a child under the age of 15 years by fondling, playing with, or touching the private parts of such child or who causes a child under the age of 15 years to fondle play with or touch private parts of such a person shall be guilty of a felony.
[12:04] Larry: Yes. That’s what I saw in my history. So you’re reading the same case. But, shortly after the legislature enacted this 1965 version, a defendant challenged it as unconstitutionally vague, arguing that it was applicable to such people as parents and doctors who might touch a child’s private parts, for other than condemning reasons. And that was a case decided in, State versus Berry in 1966. The Arizona Supreme Court rejected that argument, concluded that the statute proscribes certain easily recognizable acts, which combined with the necessary intent, constitute a violation, except there’s no intent required. That’s the funny thing, but that’s what they said. The court resisted the defendant’s argument that the statute did not expressly incorporate an element of scientra, which is knowledge, and thus the statute could not convict innocent minded people, which it could have and has. The Arizona Supreme Court read into the act a requirement that the state prove abnormal sexual motivation, reasoning that when the words annoy or molest are used in reference to an offense against children, there’s a connotation of abnormal sexual motivation on the part of the offender. Now this is courts legislating from the bench at the at the finest. Therefore, a doctor or parent may touch the private parts of a child without molesting him by doing so and without violating the child molestation statute. In other words, they admitted and inserted an imaginary requirement that the state proves I enter.
[13:35] Andy: And this this probably is a time when you would be okay with them legislating from the bench, I’m guessing.
[13:41] Larry: Yes. If you’re on the defense side, you would be okay with it.
[13:45] Andy: I noted that Arizona made two additional changes to the scienter requirement in the nineteen seventies. Would you dig into that?
[13:54] Larry: Yes. In 1978, the legislature changed molest to knowingly molest, which is good. That puts scienter in play. In 1983, the legislature made explicit what was implicit in the 1965 law, after the, Supreme Court’s decision in Berry. It it was a defense to see him if the defendant was not motivate motivated by sexual interest.
[14:21] Andy: And then so Sientra was required to be proven in 1978 and then converted to an affirmative defense in 1983? Did I while I was eating my lunch, did I figure that one out? I think you did. That’s the way I interpret it. Yes. Then how did the the statute evolve from there? Well,
[14:42] Larry: it’s getting getting funnier. Following the balance of this defense, Arizona courts were divided over whether the statute must still prove that the defendant had touched the child with some kind of sexual interest. First, in Re Maricopa Juvenile, Action, the Arizona Court of Appeals revisited whether abnormal sexual motivation was still an element of Centimeters. And that was a 1992 decision. The court held that the statute, that the statute still required the state to prove the defendant’s sexual motivation, but that abnormal motivation was no longer the standard. Just sexual motivation. Noting that the legislature had added the defense of lack of sexual interest, in that section that we’ve talked about, thirteen-fourteen oh seven. The court reasoned that the element of abnormal or unnatural sexual interest was superseded by the less stringent statutory defense of lack of sexual interest. Now this is getting very blurry even for me. I’m trying to understand what abnormal or unnatural interest would be. I’m trying to figure out what an example of that would be. Yes. So that’s why it’s getting very blurry. Although the court also suggested there was little substantive difference between the two even if the formal standard was ever meant to do anything more than distinguished criminal conduct for innocent conduct. For example, the act of a physician treating a child or the parent bathing a private part. Parts. But, again, this has gotten so fuzzy that it seems like this thing’s been unconstitutional for decades.
[16:14] Andy: And and, you know, like, I have a child, and of significant importance is that those those pieces of body, they need to be cleaned, whether it’s boy or girl. In my case, I have a boy. And you gotta clean the back end, and you gotta clean the front end, and girls will be the same. Like, your skin doesn’t get super dirty because it’s kind of exposed to your and, like but the stuff that’s contained inside, like, underwear and all that, and you got diapers on, you gotta clean that stuff. So how could you not like, what are you supposed to do? You get a fire hose or a pressure washer and do it at distance? I suppose so. You need to ask the the great, liberty lovers that are serving in the California
[16:54] Larry: the Arizona legislature.
[16:58] Andy: I noticed that in a criminal omnibus bill in 1997, the Arizona legislature substantially revised its framework for affirmative defenses. The legislature amended Arizona revised statute 13 dash one zero three to abolish common law affirmative defense and added subsection 13 dash, two zero five, which required a defendant to prove an affirmative defense by a preponderance of the evidence. And that is from, 1997, amendment. Now before that time, Arizona common law provided that the burden of proof regarding an affirmative defense shifted back to the prosecution after the defendant presented any evidence of the defense. Now is this where the problem begins?
[17:43] Larry: I would say it’s where the problem certainly got far worse, but the problem’s been around a long time. In 1997, they codified the affirmative defense does not include any defense that either denies an element of defense charge or denies responsibility, including alibi, misidentification, or lack of intent. And, I don’t know how to explain, but that’s only got chance here. So read read that next one. So I don’t know. I’ll go ahead and read it. But, if I had to explain it Can you explain it, please? If I had to explain it, I would say the victim advocate’s apparatus and the law enforcement apparatus convinced the legislature that the criminals were exploiting a massive number of loopholes in the system. That’s what I think happened.
[18:25] Andy: And because this is so murky and all that, can we keep moving to try to get out of this? What happened next?
[18:33] Larry: You mean you’re not absorbing? You’ve read this how many times?
[18:36] Andy: I I’ve read it, and I’m trying to I’m still trying to figure out what what unnatural and abnormal interest would be. I’m really trying hard to figure that one out. Well,
[18:46] Larry: fast forward to twenty o seven. The Arizona Court Court of Appeals for the very first time considered the 1993 version. So this thing managed to bob around for a decade and a half, the 1993 version before it was made its way up to appellate level. And they looked at the affirmative defense framework and they decided that sexual interest was no longer an element of CEM. And that was in a case called State versus Simpson. And, the court held lack of sexual interest under 13 dash 14 o seven e was an affirmative defense that the defendant had to prove by respondents of the evidence. Second, the court reasoned that because the statute had been updated in nineteen ninety two three to remove the phrase knowingly molest, prior decisions from the l l Arizona Supreme Court, and the Court of Appeals did not compel the court at this time to interpret it to require proof of sexual interest as an element. They’re basically saying that since the legislature changed the wording, we’re no longer bound by existing precedent. So we’re gonna interpret it this way.
[19:54] Andy: You and I have actually, like, kinda debated in the past of whether you can prove a negative. And you’re like, well, if it’s not there, you’ve proven the negative. How would you prove you were not interested? You you can’t prove the negative in most instances. And then a different division of the Arizona Court of Appeals expressly disagreed with the Simpson court’s interpretation. I’m gonna need you to explain that.
[20:17] Larry: Yes. There was Holly one. That was the case that you talked about earlier. There’s there’s, two decisions, Holly one and Holly two. Holly one acknowledged that the legislature made lack of sexual interest in, a defense to child molestation, but it added that section. The court explained that in its view, the 1993 amendment did not significantly alter the elements of Centimeters because it did not do so in the text of the molestation statute itself. Thus, sexual interest remained in this, in implicit element of, of Centimeters that the state was required to prove beyond a reasonable doubt its defendant race, lack of sexual interest as a defense. They said to conclude otherwise would force defendants to negate a fact of the crime, which the state is to prove has to prove in order to convict, violating the defendant’s right to due process. In other words, Holly one, read the legislature’s post Sanderson abolition of common law affirmative defenses and shifting of the burden as proof of its interpretation of sexual interest was an element of the child molestation offense. The court concluded, thus, legal error, it was legal error to place the burden on the defendant, to prove conduct that was not, motivated by sexual interest. Now that was a good decision. That was Holly one.
[21:42] Andy: And then the Arizona Supreme Court reversed Holly? Is is that what I picked up from all that too? Yes. The the Supreme Court vacated Holly
[21:51] Larry: one, and they held that the plain text remember, we’re textualist around here of section 13 dash fourteen ten and thirteen-fourteen oh one broadly defined sexual contact as any direct or indirect touching, fondling, or manipulating another’s private parts, but did not implicate the defendant’s motivation. The statutes defining the crimes did not mention, imply, or require sexual motivation. FERSA’s statutory scheme unequivocally identified lack of motivation as an affirmative defense. And because of lack of sexual interest as an affirmative defense, the legislature may allocate the defendant the burden of proving it. Don’t agree with that, but that’s what the highest court in the state said. The court held that allocating the burden does not violate due process because the state is still required to prove every element of the Centimeters statute. In lack of sexual motivation, all the excuse conduct that would otherwise be punished, one, did not convert any of the elements of the offense. So they said.
[22:54] Andy: Now was Holly too? Now was the Arizona Supreme Court what was their final word in that one in the 13,
[23:02] Larry: 13 dash fourteen ten and then the, 13 dash 14 o seven? What was their decision with Holly too? Well, that was their decision. We just talked about that. But but there was one other development we should note, in 2017. From the state court, that was the end of it. But in 2017, the Arizona Federal District Court, which we talked just a little bit earlier, granted habeas relief under AEDPA to a defendant, and that was Stephen May, convicted in 2007 under that same section. And senior district judge Neil Wake concluded that Arizona had shifted the burden to the defendant in violation of Patterson, Mulaney, and Winship. The district court found that Arizona is the only jurisdiction ever to hold uphold the constitutionality, putting the burden of disproven sexual intent on the accused. In the district court’s analysis, Arizona has had created a regime which everyone starts out guilty and law enforcement decides who has to prove himself innocent. He said, there’s a grievous threat to due process of law making defendants disprove their own state of mind for conduct that it’s not wrongful in any sense way without a bad mental state. So in other words, you’ve gotta show what your mind had going six years, five years, three years ago by the time this man gets to the court.
[24:23] Andy: And that was ultimately reversed? Yes.
[24:28] Larry: But in an opinion that was filed simultaneously with that re reversal, an unpublished disposition, judge Frederick Block, who was on the court, noted that Arizona is the only state that places the burden of proving lack of intent on the defendant. It will it will well be the issue if it reached the Supreme Court. The Supreme Court would agree with judge Wake that it’s unconstitutional.
[24:57] Andy: Well, then during his second trial in 02/2017, Bogonski took the stand to raise the affirmative defense under section section 13 dash 14 o seven. Bogonski admitted at trial that he washed the girl’s genitals, with his bare hand during the Sunday bath. Wow. Only Sunday? Oh, anyway. But asserted that he was not motivated by any sexual interest. That sounds like he was forced to testify in order to assert the affirmative defense. Now I thought the accused had a constitutional right to not testify. Well, they do accept in Arizona.
[25:33] Larry: And, Chance can weigh in here in a second, because he’s done 2,000 trials in his life. But what’s funny is the jury instructions was given. Let me let me just let Chance weigh in here. Isn’t that effectively neutering the person’s right not to testify if if the only way you can assert it is to is to testify?
[25:51] Andy: Absolutely. It’s a clear violation. So Could you get up there and just do that? They could say, I’ve, you know, ask 10,000 questions and you say, I plead the fifth whatever, but when you ask this one question, you could answer it? I mean, wouldn’t that sort of Yes. Yes. Maintain your your your right? Yeah. You could stipulate that this that you’re answering this, and that’s the whole scope of the answer and that’s that. Sure. But you’re still testifying.
[26:18] Chance: And it you know, if you if you exercise your right to be silent, then it should be respected. Period.
[26:27] Andy: I see.
[26:28] Larry: But but what’s funny is the jury instruction that was given, The jury was instructed as follows: The defendant has raised the affirmative defense of lack of sexual interest with respect to the charged offense of child molestation. The burden of proving each element of an offense beyond a reasonable doubt also remains with the state. However, this is what the jury was told, the burden of proving the affirmative defense of lack of sexual interest is on the defendant. The defendant must prove the affirmative defense of lack of sexual interest by preponderance of evidence. If you find the defendant has proven the affirmative defense of lack of sexual interest by preponderance of the evidence, you must find the defendant not guilty of defenses of child molestation. Well, I have a feeling that very few juries would ever come to that conclusion.
[27:19] Andy: Yeah. Just because you said so, yeah, I doubt I I agree with that. The jury returned not guilty verdicts on three Centimeters charges involving one of the girls, but found Begonsky guilty of the three main charges of Centimeters involving the other two girls. How many people are we talking about? Apparently, three. Because it said three that he was acquitted of. Right? Not guilty, anyway. And then three, he was found guilty of two others. Sorry.
[27:47] Larry: Well, I think it was three, counts with the same victim that he was acquitted of. I understood it right. But it it was a very confusing case. I can understand why you struggled for so long when you were reading it.
[28:01] Andy: Well, not only that, I people were talking to me all day. But then the ninth fort ninth circuit stated on page 32, we have profound concerns, with the substance of the Arizona scheme and with the Arizona Supreme Court’s analysis in Holly two. Those concerns persuaded us that Arizona has shifted the burden of proving the only fact that really matters in Centimeters cases whether the defendant touched the child’s private parts with some kind of sexual motive.
[28:28] Larry: Yep. And the court stated Arizona’s child molestation scheme is not just broad. It’s pernicious. What the hell does that mean, Chance?
[28:38] Chance: Well, pernicious means it’s it’s ugly. So Very ugly. So And absolutely horrendous and terrible.
[28:47] Larry: It criminalize every it criminalizes every knowing or intentional touching of a child’s parts, no matter the reason. Everyone who knowingly knowingly changes a diaper could be convicted of child molestation even when the state’s proof of the fact is not proof of any evil interest, but only traditionally lawful conduct. The state’s burden of proof under thirteen fourteen ten is only a modest imposition on the prosecutor. But not everyone will be charged. Only those persons whom the prosecutor believes will not be able to prove a negative that the defendants were not did not have a sexual motive will be charged.
[29:28] Andy: They stated Arizona has foisted the burden of proving the sexual motivation of the defendant on the defendant himself. This the state cannot do, consistent with the due process clause. Every fact necessary to constitute the crime charged must be proven by the state beyond a reasonable doubt. The Supreme Court cases clearly established that Arizona cannot shift the burden of proof to the defendant. I swear, Larry, I heard you say that a bazillion times about burden shifting with the May case. I did. And that’s what they did.
[30:03] Larry: And then they went on to say, we have a little difficulty concluding that Arizona has shifted the burden from the state to the defendant to prove a core element of of the child molestation statute. That defendant touched the child’s private parts with some kind of sexual interest. Arizona has done so with violation of due process clauses of the fourteenth amendment as clearly established in decisions of the United States Supreme Court. This is what they have to say to have a hope of this holding up. And because of this case, the Arizona Court of Appeals, was bound by Holly too. So they’ve given them a pass because of of that. But for the reasons we have explained, Holly too identified the correct legal principles in the Supreme Court’s case, but its application of those principles was objectively an an unreasonable one.
[30:48] Andy: And the conclusion states, the judgment of the district court is reversed, and the matter is remanded to the district court to issue the writ of habeas corpus. Alright. What’s next?
[30:59] Larry: Well, I would predict that there would be a request for reconsideration, which will be denied. Then there’ll be a request for a hearing of the full court en blanc. That in a very, I think that has more likelihood of being granted. But ultimately, this matter is likely to go to the Supreme Court because if I’m Bogansky’s attorney, I ain’t stopping here. If if the if the full court convenes and overturns it, I’m not stopping here. And I’m gonna go to the US Supreme Court. Now where what happens there? Who knows? But I think this case ultimately could end up in the US Supreme Court.
[31:41] Andy: Do do you want to well, let me first first. Does does this have any does this help, May?
[31:48] Larry: Not yet. But it might What would the what would the hurdles or the the milestones along the way? Well, this has gotta be upheld. The Arizona statute has got to be declared unconstitutional, and then he would move, to vacate his conviction because he’s being held on an unconstitutional statute that’s been found unconstitutional. And that’s why they’re that’s why they’re gonna fight tooth and nail. They’re not gonna wanna turn the prison gates open for all these child molesters that have been convicted under a non constitutional statute. Now it’s funny because they they raise their hand and they put that one on the bible that they are seeking justice and that they wanna do the right thing, but they will fight like hell to keep these people behind bars even under an unconstitutional conviction. Now that’s funny. Admit that.
[32:31] Andy: Now I need you to go back. You you didn’t put enough eyes in there when you said that word. I did? Yeah. Yeah. You didn’t put enough i’s. You need at least 10 i’s when you say bible. Okay. And the bible. There you go. That’s much better. Interesting. So, I mean, he’s still locked up for some number of years, but, potentially, he doesn’t, end up spending the rest of his life there.
[32:54] Larry: Well, if the US Supreme Court gets this case and they have the final word and they agree with the with the panel, then I don’t think Arizona will have much choice, but they’ll slow roll it. They’ll do everything they can. I mean, they’re not gonna wanna let people out of prison. I don’t know why I can’t explain that. They claimed overworked, understaffed, short staffed, and they claimed they were the guardians of the purse and all this kind of stuff, but they don’t wanna let go of anybody. I’ve never figured that out.
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[34:10] Andy: Well, okay. From the intersection of law, policy, and public safety in California, this is California Corner. This is, your source for legal for clear legal insight into the laws that govern California PFR registry. Now welcome to today’s segment, which is California’s s b six eight zero or as I like to call it, the bill that said no more creepy age gaps. Senate bill six eighty authored by senator Susan Rubio just passed the California senate public safety committee four to one. Now it targets a gap, otherwise known as a legal loophole in the state’s sex offender registry law that’s been letting certain EFRs, particularly in cases involving minors, avoid mandatory registration. Basically, it’s like the legal equivalence of patching a hole in your boat after you’ve already started sinking. Or as I like to say, Chance, I like to say, I like to, build the parachute as I’ve after I’ve already jumped out of the airplane. Now I am joined by Chance, a criminal defense attorney whose practice is primarily focused on PFR type crimes in California. Chance Oberstein, thanks for being here, or should I say taking a chance on us?
[35:18] Chance: Alright. Thank you, Andy. As I see, you’re already trying out your stand up routine, but let me start getting my day job. Okay. That’s I think I would agree with that.
[35:31] Andy: Well, can we start with the basics? What exactly is the loophole in senate bill six eighty, and what does this aiming to close?
[35:36] Chance: Okay. Well, on the under current California law, most sexual abuse crimes involving minors including acts like oral copulation and sodomy carry an automatic sex offender registration requirements, mandatory. But there’s an exception, The charge of unlawful sexual intercourse which is often used when the defendant is more than ten years older than the minor. It’s treated really as less severe. In other words, the law was basically saying sure you’re twenty years older, but hey, no big deal. SB six eighty changes that.
[36:12] Andy: And no more Lolita loopholes? Is that right?
[36:16] Chance: Exactly. But don’t worry. The Romeo and Juliet exceptions are still kind of intact. So if you’re in high you’re a high if you’re a high school senior dating a freshman, you may be safe from the law at least. Your parents’ judgment, well, that’s another story.
[36:33] Andy: And and the bill has been amended since it was first introduced. The original version version could have put tens of thousands on the registry retroactively. Is that what I understand?
[36:43] Chance: Yeah. That was the problem. Early drafts would have applied it to past convictions. And this is this is the threat of most things coming through the the tube from our our legislators, potentially adding up to 30,000 individuals. That’s a lot of people suddenly googling asking how to explain this to my neighbors. But the amended version now says only those convicted on or after 01/01/2026 will be required to register. Well, would you do us the service of breaking down what this bill does and does not do? Feel free to use bullet points because who doesn’t love a good list? I love to make a good list, but it’s a very short list. And here’s what it does. And bullet point number one, requires mandatory sex registration for unlawful sex with the minor if the offender is more than ten years older or if the offender has committed the offense more than once, even with a smaller age gap. It brings these cases in line with other offenses against minors and the way they’re treated in California. What it doesn’t do, bullet point one, is it doesn’t create new crimes. So no need to panic unless you’ve already are breaking the law.
[37:55] Andy: And the advocacy angle?
[37:59] Chance: Supporters of this say that it closes a loophole that has allowed predators to escape long term oversight and has left victims with uneven legal protections. In other words, in their view, it’s about accountability and consistency in the law. In practical terms, it says no more Lolita exceptions.
[38:19] Andy: But let’s be real. If you’re using Lolita as your dating manual, you probably got bigger problems?
[38:26] Chance: Much bigger problems. I agree with that. But remember, registry laws aren’t static. They evolved as lawmakers address unintended consequences or swipe at low hanging fruit.
[38:38] Andy: Now speaking of low hanging fruit, Chance, thanks for walking us through this. Anytime. Good luck with that comedy career. I hope it works out for me. Thanks, Chance. Now the bill now heads to the Senate Appropriations Committee. What do you think will happen as that moves about, Larry?
[38:56] Larry: Well, I wish I knew as much about California legislative process, but this is a bill that’s hard to be in opposition to. This is one of those things where you have to have a good relationship with some key committee members, and it has to quietly fade off into the oblivion. And that’s even more difficult in a year round legislative assembly like California, where you’re dealing with, thirty to sixty to ninety day session. You got 1,200 bills moving, and if one fades off the radar, unless it’s really being forced by a lot of power behind it, nobody notices. But this one is gonna be tough because you can’t vote against this. It’s just politically, potentially suicidal to vote against it. So I say it. Your best hope for this going to Senate Appropriations is to try to make an economic impact. Governor Newsom is already dealing with a huge budget deficit. So try to figure out how to blow the cost of this thing beyond what anybody can imagine. And I don’t know how to do that because I don’t know what all the ramifications fiscally would be. But if you can get appropriations to stall the damn thing, that that might be a strategy to see if you could make it die, wither on the line.
[40:09] Andy: Correct. It’s it’s all there. Just wouldn’t that be 30,000 people potentially that now you have to have registry officers doing compliance checks and all that other garbage?
[40:20] Chance: No. No. No. No. Because that’ll because they’re eliminated because it’s it’s it’s it’s not retroactive. Oh, that would just be the new people? Be the new people. But the real problem with this is not that. I mean, the real problem with this is the legislative intent of having, sex with a minor, set at 18. The the reason it’s done in California is because too many adults were impregnating, too many underage girls. And so, that’s how the law came about. That’s why they said it at 18. It was a deterrent. But the reason it’s discretionary is because beyond the deterrent, if if the child happens, then financial responsibility kicks in. Well, the reason the the the biggest reason why the law was set at 18 is they didn’t you know, the the legislators didn’t want California to become a welfare state. The biggest reason it’s discretionary registration is because those adult men who did that, also need to work and pay for what they did. It’s called financial responsibility. And if you now have mandatory registration and that registration gets in between, that person, that individual finding a job or not, you defeated the whole purpose of raising the age to 18 in the first place. So it it just doesn’t seem like a very bright idea.
[41:48] Andy: Alright. Larry, shall we move over to this, DC thing, the from courthouse news service?
[41:56] Larry: Yes. But do you want me to tell you something funny?
[41:59] Andy: I do want you to tell me something funny. I always want you to tell me something funny. The
[42:03] Larry: apparently, I didn’t hit the button correctly, and it’s not recording for me. I hope you’ve got something that’s capturing this.
[42:09] Andy: Wow. I thought you like, when we started, you said I gotta go check this and check this and check this. Wow. Tonight was, like, the one night that I actually made a backup copy. Well, thankfully, because, yeah, I I didn’t it it either didn’t take or I didn’t hit it. I thought I hit it. But, anyway, okay. So what where are we going next? Alright. Well, from courthouse news, a DC circuit panel on Tuesday declined to freeze the implementation of a universal national registry for noncitizens in The United States over thirty days, setting up further arguments before the appeals court in the fall. In a per curiam order, US circuit judges Karen Henderson, Robert Wilkes, and Bradley Garcia appointed by Ronald Reagan. Holy moly. They must be a 100 years old. Barack Obama and Joe Biden respectively. The panel declined the immigrants rights group’s request for a stay, finding they failed to satisfy the stringent requirements deeded. And what did they fail to satisfy?
[43:08] Larry: Well, I looked at that very brief order, and I’m sure they’ve it was devoid of details, but I’m guessing that the panel, which was a balanced bipartisan panel, felt that they didn’t show that they were likely to succeed on the merits, and that in order that they would suffer irreparable harm, it’s both of those. You’ve gotta show that you’re likely to to succeed on the merits and that you will be irreparably harmed, but for the injunction without that being granted. My guess is they didn’t feel the evidence was there. And, again, not liking something doesn’t make it unconstitutional simply because you don’t like it. And I don’t like registries, but registries have been upheld as not being unconstitutional. And that’s probably what they did looked at and said, well, registering somebody is not unconstitutional in and of itself.
[44:00] Andy: So so in summary for me me dumb people, this is making a illegal immigrant database registry?
[44:09] Larry: That’s what I’ve heard. I don’t know the details, but that’s what I’ve heard people complain about that are immigrants’ rights advocates that they’re trying to create this massive database for I think they’ve they’ve encouraged immigrants to sign up for it, but again, I’m not certain of all the details. But just FYI is the reason I put it in here. When you ask for an injunction, be prepared with evidence. Evidence has got to include that you’re going to win with existing case law, that your case aligns with existing the body of case law, and that without this, you will be irreparably harmed.
[44:49] Andy: Same thing it went on. We should create we should create registries for effectively every person in the country, and then we should create a registry of people who have created registries.
[44:58] Larry: Well, there was an advocate out there that tried that. He created a registry for the officers and put people’s officers pictures on. You remember that guy? I do not know about that one. I’m not gonna say his name because I don’t wanna start a flame war, but, you know, there’s an advocate out there that created a registry for for for the people who register PFRs. Can you tell me where this person do I know this person? Yes. You would know this person, but like I said, I wanna start a war.
[45:25] Andy: This isn’t somebody in New York, is it? No. No. It’s not. Okay. Then I have no idea. I have no idea. So this is gonna be a registry for only the officers that do PFR registrations? Yes. That’s okay. See, that’s funny. Alright. Well, then you put this is from the Albuquerque, New Mexico reported by the Associated Press. And it says, failed political candidate was sentenced to eighty years in federal prison Wednesday for his conviction in a series of drive by shootings at the homes of state and local lawmakers in the aftermath of the twenty twenty election. What is this about?
[46:05] Larry: Well, it’s about a, former Republican candidate named Solomon Pena, who, was early this year, convicted of several charges, conspiracy, weapons, and the shootings. But, he went by the homes of Democratic elected officials, firing into their homes, and, including the current speaker of the house of representatives. The prosecutors had sought a ninety year sentence, but the judge graciously reduced it to a more reasonable amount. But the prosecutor said that Pina had shown no remorse and had had hoped, to cause political change by terrorists and people who held contrary views to him being too afraid to take part of the political life. This was big news here when it was happening, when the shootings were happening, and then with the prosecution. But, yeah, this is eighty years seems a little bit harsh when nobody was killed or even hit, hit by the bullets.
[47:04] Andy: No. No. I, you know, I wasn’t paying a lot of attention. I just heard you guys talking about it in preshow. This sounds exactly like wasn’t it in Minnesota where the guy was shooting up politicians’ houses and killed two people?
[47:17] Larry: Yes. Yes. There was there was Isn’t this exactly the same thing? Well, I don’t know if it’s exactly the same thing, but it was certainly there was a shooting in Minnesota of two, two people. I think a lawmaker was one of them, if I remember right.
[47:28] Andy: And and his wife. And he had, like, set up to he had, like, a whole map made up of all the places he was gonna go to that night. And I believe he made it to two houses and and ultimately killed a husband and wife, a lawmaker, and his wife, if I’m not mistaken.
[47:41] Larry: So yeah. Well, this is this is our version of that, but, fortunately, no one was hurt.
[47:47] Andy: Yeah. Fortunately. Alright. Well, then the article states Pena’s lawyers had sought a sixty year sentence saying their client maintains that he is innocent of the charges. They have said Pena was not involved in the shootings and that prosecutors were relying on the testimony of two men who bear responsibility and accepted plea agreements in exchange for leniency. Could he be innocent?
[48:07] Larry: Well, I think mister Chance is a better person to answer that. Sure, he could be, but the jury convicted him. So in the eyes of law, he is a guilty person. The text took place as threats of acts of intimidation against election workers and public officials had surged across the country after president Trump and his allies called into question the outcome of the twenty twenty presidential election. That was the impetus for a lot of violence that happened thereafter. It was all that craziness about how corrupt it is, of how this election was stolen, and blah blah blah.
[48:38] Andy: Prosecutors said Pena resorted to violence in the belief that a rigged election had robbed him of victory in his bid to serve in the state legislature. The shootings targeted the homes of officials, including two county commissioners after their certification of the twenty twenty two election, in which Pena lost by nearly 50 percentage points. I mean, mathematically, how do you lose by 50? Is did he get zero? He got a very small number of votes. No one was injured, but in one case, bullets passed through the bedroom of a senator’s 10 year old daughter.
[49:16] Larry: Well, I’m not I’m not rationalizing it at all. It’s not anything that’s funny or rationalizable, but 80 does seem like a pretty harsh outcome. But we are in federal court. And two other men who, acknowledged helping Pena with attacks had previously pleaded guilty to the federal charges, and they received long prison sentences. I don’t remember how much. But I’ve been thinking maybe the president will intervene for mister Pena. He’s intervened for others who have done things of this nature. So, this guy didn’t kill anybody. And and so he’s real concerned about people getting harsh sentences. And, seems like to me that this would be a good candidate for him to to step up and say, hey, let me commute this eighty sir year sentence down to time served.
[50:02] Andy: Do do you mean harsh harsh sentences for terrorist acts? Is that what you’re saying? That’s what I was just gonna ask. I mean, weren’t people on January 6 didn’t some police officers die that day and they were, whatever, exonerated, commuted, whatever the word is? It was. There was there were some that were commuted, and some I think were just pardoned altogether, but,
[50:21] Larry: you know, this this is really, sad to me, but it is an excessive sentence, I would say, for a person who didn’t really physically harm anybody. And, it would be one where if I were in the position to, I would look at that along with his remorse and his life history and a lot of things to determine if he was treated excessively harsh for the conduct.
[50:45] Andy: Interesting. But, like, mathematically. I mean, you have to generally get 50% to, you know, something like, oh, this candidate won by 54%. And if he lost by 54, he got single digits? No. No. And he’s really pissed off at You you get 75% of the vote there. That’s 50% more than somebody else got. If if the person got 75 to 25, that’s 50% more. That that’s right. It’s anyway, he he got a very small number. It wasn’t like it was a a four or five point. What did Trump win by? Like, a a handful of percentage points? I think it’s less than 2%. But, yeah, this guy had mental problems getting what’s funny is had he got elected, he would be observing in the capital here. Wouldn’t that be funny? That would be amazing. Okay. We are at fifty minutes. Is there anything else you guys would like to talk about for about two or three minutes, or should we just close it all down?
[51:39] Larry: Close this mother down.
[51:42] Andy: Chance, any final words? Do you wanna plug your podcast? How’s that going? Hey, that’s going really good. You know? How could people find it? They
[51:49] Chance: can find it by, going to YouTube and looking up sex crimes defense. That would do it.
[51:59] Andy: And we’re not allowed to stop yet. Deanna still has alcohol left. Just saying.
[52:05] Larry: Wow. Wow.
[52:07] Andy: I do wanna mention that we did get a new patron a couple weeks back, and his name is Owen. I say welcome. Welcome. Welcome to the family. You can, get your account joined over on between Patreon and Discord, and you can just automatically come and hang out with us on Saturday nights while we’re recording this. Well, head over to registrymatters.c0 to find show notes, and you can find links to everything as far as downloading it or find YouTube and all the other places where you could find the podcast if you need to do that. Send email over to registrymatterscast@gmail.com. We did receive email from people this week that I keep forwarding over to Larry, and I believe Larry has been responding to some of the people, and that might turn into segments on the show. So don’t hesitate to send those emails over. Am I am I right on that one, Larry? You’re right about one in particular that,
[52:52] Larry: that believes that the being listed on the website triggers an IML passport, marking. And I’m trying to debunk that, but it’s gonna take more research than I can do. So I just have to apply logic to it, but I don’t believe that that’s the case. But it’s a very good, scenario that he’s put together because if it turns out that he’s right, that would be a tragedy because I would have to up my belief that being on the website is more damaging what the it’s damaging enough. But I think I might have to rethink if it turns out that merely being on the website generates that. I don’t believe it does, but it could. Alright.
[53:33] Andy: You can also leave voice mail at (747) 227-4477. And as I stated at the beginning of the show, patreon.com/registry matters if you would like to become a supporter, which we would appreciate so very much. And, gentlemen, I hope you have a fabulous night, and I will talk to you guys soon. I hope you have a good night. Take care. Thank you. Good night. Thanks. Good night. And apologize for the lack of the recording. Hopefully, you have all you need. I hope so. If not, we’ll just record it again.
[54:02] Larry: That would be definitely funny.
[54:12] Announcer: You’ve been listening to FYP.
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