So I don’t have much more comment on that. I commented on the bakery situation many times. And when the question was first posed, I don’t understand why a person would want a business to do something for them if the business doesn’t want their money. I would gladly walk down the street if you told me, “I don’t bake for your kind,” and I would look for another baker. “Your kind.” So I don’t understand what’s being sought here, but perhaps what’s being sought here is for me to tell you what I think the court should rule, because I know the courts at all levels, state and federal, are listening to us for guidance.
So I would rule that the, uh, I would decide in favor of the person who has the right to public accommodations, because we decided that decades ago, that if you go into a restaurant, whether you’re African American or Caucasian, you still have to be served. And there’s no religious doctrine that you can assert that says, “I don’t serve black people here.” Same thing with lodging. So although I wouldn’t personally insist on a baker baking for me, if they told me, “I looked at your text of what you want on the cake, and I don’t want to make a cake like that,” I would not want you to make a cake like that. Would you?
[07:00] Andy: Because I’d be like, “Oh, I’m sorry, I did the best I could, and it’s all janked up. The people’s faces are all misaligned.” Yeah, I don’t know why they would want to. Go find someone that does want your business. [07:12] Larry: Oh, well, that’s the way I look at it. But if I have to be forced into making a decision, I would err on the side of protecting those who are seeking something that’s open to the public. If you open your business to the public, you can have a dress code, you can have a behavior code, but you can’t do it on a lot of things. And I think imposing your religious belief is what you’re doing. They’re not imposing their religious belief on you. If you get right down to it, you can believe anything you want to as the baker, and you can go to any church you want to, and you can scream and you can do whatever you do at your church. And that LGBTQ couple is not interfering with that. You’re interfering with their opportunity to have something made professionally by a person, by a business, who’s open to the public. So if I’m forced to make a choice, I’m going to come down that way. And I hope that’s a satisfactory answer, because that’s the best I know how to do with the facts I’m being given here. [08:12] Andy: Understand. Moving along, then we will cover this Maryland appellate court. And so what type of court are we talking about here for Maryland? That’s the appellate court. Well, as most, if not all states, [08:28] Larry: they have trial-level courts, and then they have intermediate appellate courts, and then they have the top court. And Maryland had this wonky system where they called their highest court the Court of Appeals, and that was very confusing. So now they’ve gone apparently to what everybody else does. So the appellate court structure now was referred to as the Court of Special Appeals, but now it appears to be the Appellate Court. And then they have the State Supreme Court of Maryland, which is the highest court. And these courts review a trial court’s—being a circuit court or district court—actions and their decisions in given cases, and they decide whether the trial judge properly followed the law and existing legal precedent. That’s what they… [09:13] Andy: do now by candlelight because there’s no light up here. I read the case. Well, yeah, I mean, I was running the snowblower in my driveway, and I can see that it has some interesting, especially on the issue of the meaning of the word “knowingly” and preservation. In fact, I think we’ve discussed, or we discussed it last week. Did we do that last week? We did mention [09:37] Larry: preservation last week. I did indeed mention that though. So are you [09:45] Andy: wanting me to explain it again? Yes, I would like you to explain it again, please. So, all right, well, somebody that set the script up has the wrong name there. Who did that? That would not be me, so I’m going to blame it on Jacob. So, so [10:05] Larry: At least as in the state of Maryland, and it’s very similar in all those states, to preserve an issue there must be an objection, and the objection in Maryland must appear on the record. An objection must be accompanied by a definite statement of the ground of the objection, unless the ground for objection is apparent from the record. And without a contemporaneous objection or expression of disagreement, the trial court is unable to correct, and the opposing party is unable to respond to any alleged error or inaction. So you’ve got to give the trial court a bite at the apple. If you don’t do that, you take it up on appeal, you haven’t preserved it below, you get shot down. [10:47] Andy: I see. So I think so. So you don’t need me here. [10:47] Larry: No, definitely don’t. We don’t need you here. [10:47] Andy: But we’ll keep you here because you’ve been around so long, and we’re just going to put you over in the corner. I’m going to pat you on the head and go, “Ah, look, it’s nice Larry. He’s old.” But look, if you don’t mind, I will set up the case. This appeal arises following a bench trial in the Circuit Court of Charles County before the Honorable William R. Greer. Andre Jerome Hammond was convicted of knowingly failing to register in violation of Section 11-721 of the Criminal Procedure Article. Around the time of Mr. Hammond’s reregistration date, he was grieving the loss of many family members and suffering from a worsening depression. On August 1st, 2023, his registration deadline, Mr. Hammond attended the funeral of a family member with whom he had a very close relationship, and he just forgot, literally. Mr. Hammond was charged with a violation two weeks later. Mr. Hammond, his trial took place on April 30th of 2024. Hey, Larry, how did the trial go? [12:00] Larry: Oh, it went, he did pretty well at trial. The parties dispute whether a defendant who forgets to timely register due to extenuating circumstances can be convicted under that article that you mentioned from Procedure 11-721. Judge Greer acknowledged Mr. Hammond’s hardships, but determined that Mr. Hammond knew of his duties. Mr. Hammond refused to register, failed to do so, and thus he violated… [12:26] Andy: the statute. That’s amazing that he got unsupervised probation after taking the case to trial. That’s [12:35] Larry: definitely an unusual outcome. And you weren’t supposed to spring that on the audience just yet. So whoever set the script up is a quack. [12:44] Andy: So Mr. Hammond presented one question for review. The question was, did the trial court err in convicting Mr. Hammond of knowingly failing to register under the Maryland Sex Offender Registration Act after finding as a fact that extenuating circumstances caused him to, quote-unquote, forget to register? I think I read that he is a repeat offender. God, those are the best. Yes. [13:08] Larry: You did read that correctly. Hammond has two convictions. He was convicted August 26th, 2009 for misdemeanor sexual abuse, and again on February 6th, 2018 for secondary child sexual abuse under the District of Columbia code. When Mr. Hammond moved to Maryland, he was classified as a Tier I PFR and required to comply with the appropriate laws. And as a Tier I registrant, Mr. Hammond was required to report to the appropriate supervising authority and register with the state every six months. [13:40] Andy: At trial, Detective Garner explained that in Charles County registrations occur on the first or third Tuesday of every month. She testified that Mr. Hammond’s last registration date was February 9th of 2020. Three, six months later would be August, and the first Tuesday fell on August 1st, 2023. On August 14th, 2023, Detective Garner filed a warrant for Mr. Hammond’s arrest after he missed his August 1st registration date and she had not heard from him. Upon receiving notice of the warrant, Mr. Hammond took several steps in an attempt to comply with the registration statute. At trial, Detective Garner testified about her interactions with Hammond on August 16th. Can we go through that kind of exchange? [14:24] Larry: Okay. Yes, we can go through them so long as you read them. I don’t have to. [14:26] Andy: I will very much try to narrate this as if it were in a court. Can I have a gavel sound? I’m like, bang, bang, bang, right? Yeah. So the defense counsel is speaking first. “So he called at around 3:11, 3:13, and then sent an email around five. Around five, is that right, Detective Garner?” “Yes.” Defense counsel: “On the 16th?” Detective Garner: “Yes.” Defense counsel: “When he found out he had a warrant?” Detective Garner: “Uh…” Detective Garner: “And he said yes.” Defense counsel: “And he informed you that he had all of those deaths in the family?” “Yes.” “And his mental health, he was mentally drained at this point, correct?” “I can’t attest to his mental status, but…” “Okay, but he’s telling you that literally. He’s saying he had a death in the family and mental health?” “Yes.” “And he’s pleading to reschedule that registration?” “Yes.” “He wants to come in to register.” Now, Larry, I got to tell you, that does sound like a person who you would think is not shirking. I mean, he’s not really shirking his registration obligation. He’s trying to comply. [15:41] Larry: It doesn’t sound much like that to me, that he was shirking his obligation. Unfortunately, the officials in Charles County don’t seem to have any problem with wasting taxpayers’ money. Now, Maryland is a state firm under the control of the liberal pointy heads, but I’m not sure about the politics of that particular county. So I don’t know if it’s pointy head or flathead, but the state is definitely a pointy head. [16:03] Andy: And so, according to the court, it was undisputed from the testimony that Mr. Hammond forgot to register or reschedule his appointment due to extenuating circumstances. It was also undisputed that as soon as Mr. Hammond became aware of his mistake, upon receiving notice of the warrant out for his arrest, he took several measures in an attempt to comply with the registration statute, including calling Detective Garner several times, leaving a voicemail, sending an email, and showing up in person and refusing to leave until he was registered. How did Judge Greer justify convicting him? Well… [16:37] Larry: In targeting and articulating his reason for the decision, the court noted, it’s difficult to imagine that you didn’t have the memory to register in this case. Maybe you missed a day, maybe you missed a week, but two weeks becomes a little bit long and you had to be reminded. So that does cause some concern, according to Judge Greer. [16:58] Andy: I can deal with that one. So Mr. Hammond argued that the trial court erred in convicting him of knowingly failing to register under the Maryland PFR Registration Act. It’s MSORA. After finding as a fact that extenuating circumstances caused him to forget to register, Mr. Hammond argued that “knowingly” requires more than just a showing of prior notice. Now, I guess it does kind of make sense to me. Well… [17:26] Larry: It does, but Hammond argued the court should assess whether an offender knowingly failed to register at the time he failed to register. His theory was that he was not capable of remembering due to all the stress of what was going on in his life at that time. Now, isn’t there [17:45] Andy: Some kind of mental health defense that could be asserted? [17:48] Larry: Ah, there used to be in this country, but it’s really all but evaporated due to the not guilty by reason of insanity of John Hinckley for the attempted assassination of Ronald Reagan, I remember. And so it’s fairly limited and it seldom works. It seldom worked back before it was gutted by most of the states. But 2024 version of Maryland statutes provides, in their criminal procedure under Title 3, in competency and criminal responsibility, Section 3-1: a defendant is not criminally responsible for criminal conduct if, at the time of that conduct, the defendant, because of a mental disorder or mental retardation, lacks substantial capacity to, one, appreciate the criminality of the conduct. You can’t be so diseased or defective you can’t understand that what you’re doing is criminal. And if you pass that test, then are you so defective by mental retardation or disease that you cannot conform your conduct to the requirements of law? And they have a third provision: for purposes of this section, mental disorder does not include an abnormality that is manifested only by repeated criminal or otherwise antisocial conduct. So you can’t do something for 15 years and get away with it and say, “Oh, well, I can’t help myself. I’m mentally defective.” [19:14] Andy: So you don’t think that he would have been able to pull it off. It wouldn’t have been a viable defense. [19:18] Larry: I don’t think that there would have been any not guilty by insanity coming from, the way I read the Maryland statute. [19:26] Andy: No, no. Look, Larry, from the information that I’ve gotten so far is that he says multiple deaths, and they were close members. Somebody has got to have sympathy for someone if you’ve got like back to back to back. Like, what was it, like the family was in a minivan and they got T-boned and the whole family got wiped out? So he was going to a five-person funeral or something. That wasn’t clear in the 29 pages I read. Something’s up to have multiple funerals like that. [19:26] Andy: But anyway, so Mr. Hammond argued that the trial court found as a fact that he forgot to register and thus was precluded from convicting Mr. Hammond of knowingly failing to register. Mr. Hammond points to a case from Minnesota, State versus—oh my God—Makealuck. You’re going with Makealuck? I think that’s pretty good. And that’s from 903 Northwest Second 600 from 2017, for the proposition that while a temporary memory lapse may not negate what someone once knew, it does negate any contemporaneous knowledge or awareness of their conduct at the time of the violation. What did the state argue? [20:33] Larry: Oh, the state has plenty of creativity. They argued that Hammond did not preserve this issue for appellate review. The state contended that defense counsel urged the trial court to take pity on Hammond and acquit him based on circumstances. The state also contended that Hammond failed to resolve what he now alleges to be a discrepancy between the trial court’s factual findings and its ultimate legal conclusion on the merits of the case. The state argued that Hammond did knowingly fail to register because he was appropriately advised of his duty to register, failed to do so, and there was no intervening event that rendered him incapable of remembering his obligation. [20:33] Larry: I agree with almost everything they said, except for that last thing. I don’t know that I can agree that there was nothing that rendered him incapable. I don’t think we have any evidence that I saw that would come to that conclusion, that he was not capable, that he didn’t have something that rendered him… [21:27] Andy: incapable. So the state argued that the issue was not preserved for appeal. Now look, I need you to go over that again. Go over that, please. [21:38] Larry: Trial judges need to be given chances to fix something that they might be doing wrong. So in Maryland, and similarly most states, to preserve an issue there must be an objection. You have to say, “Your Honor, I object,” and the objection must appear in the record. And generally it’s going to appear because there’s a stenographer and there’s a recording being made—recordings for the stenographers these days. But the objection must be accompanied by a definite statement of the ground for the objection, unless the ground is obvious. You know, if a battering ram knocks the court wall out and it discombobulates the jury and you say, “Let the record show that we’re missing them all in the courtroom,” you probably have pretty well preserved that. But otherwise you have to state the reason for the objection—why you’re objecting. You may be overruled, but there has to be some manifest reference to it in the record. [22:29] Andy: So then can you explain why preservation is so critical? [22:34] Larry: Well, otherwise you’d be getting multiple bites at the apple. Limiting appellate review to preserved issues is a matter of basic fairness to the trial court and opposing counsel, as well as being fundamental to the proper administration of justice. According to the court, without contemporaneous objection or exception—expression of disagreement—the trial court is unable to correct, and the opposing party is unable to respond to any alleged error in the action of the court. You just don’t get to have a private conference with the judge and say, hey, you goofed up. Everybody needs to be on the same page. It’s important that the parties and the trial court had notice of the issue and had a chance to address any issues. And so that’s why preservation is critically important. [23:14] Andy: Did they decide that he had preserved the issue? [23:17] Larry: Yes, they did. They stated, we disagree with the state and hold that Mr. Hammond sufficiently preserved this issue for appeal. Defense counsel explicitly made the legal argument in a motion for judgment of acquittal, and that’s what you make at the conclusion of the state’s rest. You say, I’m moving for a judgment of acquittal, or something along that line—for, it’s called directed verdict or judgment of acquittal. And he argued that the state had proven that it’s a violation that he did not register by the expiration date, but the state did not prove that this is a knowing violation. The court was afforded an opportunity to correct the alleged error and, in fact, declined to do so. As such, the trial court was put on notice of the issue and had ample opportunity to address it. The issue is preserved, according to the appellate court. Well, [24:04] Andy: Then the court moved on to interpret the word “knowingly.” The court stated, “Interpretation of a statute is a question of law, and therefore we review de novo the decision of the circuit court.” De novo means what? I’m going to have to have you remind me of that one because that’s one that we don’t use often enough that I have it in my brain. [24:24] Larry: It means that you’re starting out from scratch when you’re going up on appeal. And when you hear these standards where you talk about what was the standard of review, well, in this, there is no standard of review. It’s a brand-new review from scratch because there’s no deference given to the trial court. It’s a matter of legal interpretation of the law, and the trial judge is not the final decider. So there’s no deference to what the judge did below. [24:52] Andy: The court stated, “The paramount goal of statutory interpretation is to identify and effectuate the legislative intent underlying the statute at issue. If the language of the statute is clear and unambiguous, we need not look beyond the statute’s provisions and our analysis ends.” They went on to say, “If, however, the language is subject to more than one interpretation, it is ambiguous, and we endeavor to resolve that ambiguity by looking to the statute’s legislative history, case law, statutory purpose, as well as the structure of the statute.” They went on and on for many pages. Did they look at the Model Penal Code? [25:33] Larry: They did indeed, and the Model Penal Code states as follows: “A person acts knowingly”—and this was word soup to me, hoping you can understand it—“a person acts knowingly with respect to a material element of an offense when, one, if the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist”—that’s word soup too—“if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result.” I guess that means if you go out and fire your gun into a crowd, I suppose you’re supposed to have an idea of what the result will be. But I really have trouble understanding this. Did you make any sense out of it? [26:33] Andy: Not really. There was a lot of soup-age. Okay, so all right, so why was the fact that he forgot—and everyone seems to agree that he forgot—not sufficient? Why doesn’t that work if everybody thinks that he’s being legit in saying that he forgot? Well, okay, I’m going to— [26:48] Larry: Give you a legal term here that explains that. The court stated, “We fear that allowing mens rea to be negated by temporary lapse of memory will have far-reaching consequences, hindering prosecution of PFRs who recidivate. Even including the limiting principle that only voluntary conditions can negate mens rea presents a difficult line-drawing problem we’re not prepared to address at this juncture. While we suspect that individuals with diminished capacity resulting from late-stage Alzheimer’s disease could lack the requisite mens rea necessary to be convicted under the PFR registration statute, that is your sample for us.” And mens rea means the state of mind. You’re supposed to have a state of mind of intending to commit a crime, and if you don’t have the ability to form that requisite intent, then it creates problems. [27:40] Andy: So, but they could have established the criteria. Well, they could help with that. That would be legislating from the bench. Now, you don’t want to do—no, no, no, no, no, no. So forget it. Forget I even brought it up. [27:52] Larry: But footnote eight shows the difficulty they were having. They say that the following questions come to mind: how severe does one’s depression have to be in order to be excused from PFR registration requirement? Is a medical diagnosis necessary? Is expert testimony required? Are those with chronic, lifelong depression forever excused of their obligation to register? Are there other involuntary mental disorders or conditions that similarly excuse one from the obligation to register—for instance, generalized anxiety? Must you be educated and competent prior to seeking this exception? Is memory loss due to ongoing alcohol and drug addiction treated similar to other involuntary conditions? What about memory loss from traumatic brain injury? It’s a bit complicated, for sure. [28:41] Andy: Would you agree, sounds like it’s almost like everybody going around with their emotional support animal. It kind of tarnishes the ones that do need an emotional support animal when someone just throws a vest on and walks around with their dog, even though the dog’s sniffing everyone’s behind. I [28:56] Larry: I see that all the time, and it drives me up the wall. Grocery stores are loaded with people that are abusing that. [29:03] Andy: All right, so you are defending the system, it would seem. Can you not admit that the judge could have shown Dewitt some mercy? [29:13] Larry: Oh, I can admit that, and the judge did show mercy. In imposing Hammond’s sentence, Judge Greer expressed his concern about the length of time that passed before Mr. Hammond actually registered, scrutinizing the two-week delay. Judge Greer also recognized that Mr. Hammond did not realize his mistake on his own and he had to be reminded. And after all, the longer the delay in registering, the less credible the claim “I forgot” becomes, according to the judge. [29:40] Andy: So, like, I mean, did he all of a sudden be like, “God, I forgot. What’s that significant dark cloud over my life? I don’t really think I remember. Oh, that’s right, I’m on the registry.” That didn’t cross his mind? It was something that was on my mind all the time. So the judge could have shown him more mercy and dismissed the charges. [30:02] Larry: No, he really couldn’t have done that. He would have had to find him not guilty, and the evidence was there to find him guilty. So he couldn’t just arbitrarily dismiss it at the end of the trial. But Judge Greer sentenced Mr. Hammond to five years of incarceration, all suspended, placed him on five years of unsupervised probation, with instruction that Hammond continue to seek mental health support. I see ample mercy here. This outcome would have been unheard of in the Bible Belt if he’d done this in Alabama, Mississippi, Florida, probably Georgia, with all their habitual offender statutes and their desire to see people get decades in prison. Can you imagine a two-time sex offender in the Bible Belt getting a probated sentence, unsupervised probation? [30:46] Andy: No, because I know that in Georgia failure to register is a year just for the first attempt at it. After that it’s five, and then thirty. [30:55] Larry: So yes, I think it’s a very lenient outcome. I think he showed plenty of mercy, and I think he did proper with the mitigation. He mitigated based on what he saw; he mitigated the sentence down to the most minimal sentence he could have given. It’s unsupervised. Basically, all he has to do is go away, stay in treatment, and not violate any laws for the next five years. [31:18] Andy: Can he take it to the next echelon up, the next highest court? Is that an option? [31:24] Larry: He could. He could request review by the Supreme Court of Maryland, but I don’t expect that would change the outcome. This decision is well written; they went on and on explaining how they got there, and I don’t think he would be well advised to do that. It’s not going to change the outcome. If he’s paying for this representation, all he’s going to do is burn up a whole bunch of money. [31:46] Andy: Is your shingle out there, Larry? [31:54] Announcer: Are you a first-time listener of Registry Matters? Well then, make us a part of your daily routine and subscribe today. Just search for Registry Matters through your favorite podcast app, hit the subscribe button, and you’re off to the races. You can now enjoy hours of sarcasm and snark from Andy and Larry on a weekly basis. Oh, and there’s some excellent information thrown in there too. Subscribing also encourages others of you people to get on the bandwagon and become regular Registry Matters listeners. So what are you waiting for? Subscribe to Registry Matters right now. Help us keep fighting and continue to say FYP. [32:44] Andy: Let’s talk about John in Georgia, if you’re up for that. [32:49] Larry: Yes, I mentioned John in the opening of the show. We got this letter, and it was sent to NARSOL, but we examined it, and I reached out to him Friday night at eight o’clock Eastern time. And he answered his phone. He picked up the phone. I had bet my colleague that he wouldn’t answer, because nobody does, but he at least picked up the phone. I think I had to initiate the conversation because he was afraid it was a junk call. But he did answer. [33:17] Andy: All right. So the writer said, “My name is John, and I’m a PFR in the state of Georgia. I was sentenced to 20 years’ service in prison—service, I don’t think that’s the right word. My sentence will be completed on October 1st of 2028. My offense date is listed as May 1st, 2004 to September 1st, 2004, with one date unknown. The female who was my victim was 14 and one month from 15 at the time. I have no prior known history of deviant behavior and nonsense.” [33:53] Larry: Now, I like the way he said, “no prior known history.” Can you at least admit that that’s funny? [33:57] Andy: That is funny, because how do you not know? Do you not know, or is it that they don’t know? [34:03] Larry: I think he means that there’s none other than detected, but it almost implies there might be some other history that’s not known. [34:12] Andy: All right. Well, he went on to say, once I was released from prison on October 1st, 2017, I was on parole for three years and had no serious—these are, we’re splitting some hairs here, Larry—he didn’t have any issues. He had no serious mistakes. The act was consensual, no physical harm, and nonviolent. I am currently on probation and therefore under sentence. My probation officer told me that if I wanted to go back to court to get off probation early and removed from the registry, that she would recommend that I go back to court, and she would recommend it for me. What do you think about this? [34:47] Larry: I am totally amazed that he has that level of support that he appears to have from his P.O., and I’d like to see him and help him even achieve that early termination from both probation and the registration as well. I will absolutely guarantee you that no probation officer within the borders of the state I live in would ever recommend early termination from probation. That doesn’t happen here. [35:11] Andy: As we’re starting going over this, though, and I talked to him earlier today, his story sounds just like mine, or similar at least. A lot of the details and circumstances sound similar. He went on to say the only guarantee that I would have with an attorney for 10,000—I’m assuming that’s 10,000 bucks—the only guarantee that I would have is if I was denied, I could wait a year and try again and continue the cycle over and over. Also, he said, I forgot to mention that I’m 100 percent disabled from an injury I sustained several years ago. I will never have 10,000 bucks to try and buy my freedom from the state of Georgia. Money is a potential impediment. Yes, it is. And— [35:53] Larry: I feel bad because that’s one of the things that impacts John and so many in this situation. These processes exist, but he doesn’t have the capital to take advantage of them. [36:09] Andy: So John went on and stated PFR law is, in fact, oppressive, cruel and unusual punishment, and it is unconstitutional. PFRs, after the end of their sentence date, must report in person to their local sheriff’s office 72 hours prior to their birthdays to register as a PFR. This requires the search and photographing of a person’s body, fingerprinting, seizing your person to the state, county, and residents, seizing your person to search your personal information by being forced to fill out all the paperwork about your personal property and effects. You are also forced to relinquish information about your family. Do you agree with all of that? [36:53] Larry: I agree with almost all of it. The seizing the person’s body and the photographing, I’m hoping that, I mean, did they photograph parts of your body that shouldn’t be photographed, or did they photograph your face and eyes and take your iris scan and stuff like that? But did they photograph your junk? [37:13] Andy: No, all I got was just from the neck up, that’s all I got, and they did the fingerprint. But even the last handful of years, the guy was like, “This is stupid,” because it just stays on their system. I don’t understand how all this stuff works later, but they got the big copier-machine-looking thing that they do the digital scans now. And he was telling me, so you know, you get on there and they put the ink, whatever that puts the oil on your hands and stuff, and he goes, “I don’t know why they do this. It just stays here in the office. It’s not like it goes to the GBI, because your fingerprints don’t really change much.” And I was like, “Got me, Bob, I’m just here. I just work here.” But that’s what it was. He just, like, stopped doing it the last, at least the last time, if not the last two times. He was super professional. He would call ahead of time and make the appointments. It was the first couple years it was stressful, over the top about it. It was so bad.So anywho, John pointed out that Georgia restricts PFRs, even after the end of their sentence date, to 1,000 feet from where they can work, live, or go. Not true; there’s not presence restrictions. Other states have stated that this is unconstitutional because it denies the right to life, liberty, and the pursuit of happiness. Unconstitutional is unconstitutional, so how do the states get away with making laws that are unconstitutional? And I’m channeling my inner Larry right now: it says laws are presumed constitutional until challenged in court.
[38:39] Larry: That is correct, and that’s what I would say in response to that. I’m assuming that at some point he’ll be a voter again if he was a voter previously, because Georgia will restore him when he’s off. I think, doesn’t restoration occur mostly automatically after you finish your sentence? After you’re— [38:56] Andy: Off of supervision. Yes, that’s correct. [38:58] Larry: So anyway, he will be able to vote again. And when you elect people, one of the things you should ask them is, how do you feel about the Constitution? Do you support all of it? Of course they’re going to say yes. And then you give them a particular example of something, and you say, “Oh, how would you resolve this? Because to require someone to go to a police station after they’ve served their sentence and to have all these invasive things seems to be unconstitutional. Do you support that?” And of course they’re going to squirm and try to change the subject. But I agree with him that any disabilities, restraints, as a part of a regulatory scheme, makes it potentially unconstitutional.But he went on to say, “Most people that I have met who are on the registry and are aware of how this affects them, and that’s hard for me to understand. It’s just assumed I am forced to register for the rest of my life with no choice or no say-so in the matter. My charge does not carry a life sentence, yet I’m required to register”—I think he means register with them—“for life. Registrants, even after the end of their sentence, are continuously monitored by the local sheriff’s office.”
That is true. The sheriff’s office will send out officers to the citizens’ residences to do residency verification, and there are no specified limits that I’m aware of in any state that tells them how often they can go out and do those checks. In fact, in some states they’re required to do them on a certain schedule, once a quarter or something. But there’s no prohibition. You’re not going to tell a sheriff’s department they can’t go out and check people that they’re responsible for monitoring.
[40:34] Andy: That’s right. So if it’s okay with you, do you mind if we dig into the removal process in Georgia a little bit? [40:42] Larry: Well, I haven’t been doing this. I’m sure I don’t mind, but I haven’t been doing this for several years. I haven’t looked at the Georgia code, but my memory is pretty good, so we can dig into it. And if I’m wrong, you can correct me, because I think you’ve gone through it. [40:57] Andy: I mean, I did go through it, but I sort of went through it with you holding my hand too. So how does one get off the registry in Georgia? [41:05] Larry: Well, they can refer to the Official Code of the State of Georgia 42-1-19, and that section, subsection (a) of that title, of that section, provides some opportunity to file a petition even before the passage of 10 years. Ten years used to be the basic framework. The petition is filed in the county of conviction, unless the conviction occurred outside Georgia or is a federal conviction. [41:33] Andy: Where do they file if they are from out of state? If it’s a non-Georgia conviction, where do they file? [41:39] Larry: In the county of their residence, and that gives the people a little bit of latitude, because you’ve got 159 counties to choose from of where you want to plop down your residence—unless you plop it down right on the Florida line, like we have a supporter that does, and he’s plopped himself right in the middle of the most conservative part of Georgia. And he’s… [41:58] Andy: Having a grand old time, isn’t he? So let’s dig deeper. What is the criteria from there? [42:07] Larry: Well, following the petition of removal, it creates a thorough review process, and my understanding is that the path to removal rests on a strict set of conditions by the Georgia PFR Risk Review Board, or the SORRB, and a judge. A convicted PFR can request removal if they’ve completed all prison, parole, supervised release, and probation for the offense and meet the following requirements. Now, this gets you an expedited, if I remember right: if they’re confined to a hospice or nursing care or residential care facility, they’re permanently and totally disabled, and they’re otherwise physically incapacitated due to injury or illness. But I think that otherwise you had to wait 10 years. Was it 10 years, I remember? Do you remember that? And then there was a workaround for being a Level 1 and for these conditions I just enunciated. [43:01] Andy: I mean, none of those applied to me, but yeah, if you were a Level 1. And then you also had to be leveled, and I was going to ask you about that when we’re done here. So what other factors come into play? [43:14] Larry: The way I understand it is most people are not leveled, and he said he’s not leveled. I think he said that, or at least I got it somewhere. I think they get leveled after they file the petition, because magically the SORRB finds time to do it after a judge tells them to. Right, that’s correct. But another important factor is whether the court or the board considers the offender a low risk.In the past, all PFRs weren’t allowed to petition for removal until 10 years after they completed all the prison time and supervised release and probation. However, changes to the law now allow those classified as a Level 1 to petition for registry removal immediately after completion of their prison term and all supervised release and probation. So only the Level 1s, to my understanding, can file immediately. I hope I’m right on that.
[44:03] Andy: Do you think I’m right? No, I believe that you’re right, and I think the process then is if you are a Level 2 or 3, you’re trying to get your level reduced as you’re going through. So you can petition to get to the 2 to 1, 3 to 2, and that’s how you can be removed. I could have that wrong.But one thing that I wanted to bring up is we would have meetings, the board meetings for Restore Georgia, and we would cover the SORRB meetings. They would report how many people they had leveled, and every month it was less than a hundred people that they would level in a month. And there’s thousands backlogged. Thousands.
You know, and I was on supervision for six-ish or seven years, and I still hadn’t been leveled. And I had to hire an attorney, and I had to go to court to get the judge to file an order to tell the management board to level me so that we could then turn around and go back to court to get my supervision terminated. Well, and that’s—
[45:09] Larry: Where that’s where John is facing, and he doesn’t have the financial resources to hire the attorney. He discussed his financial situation, and his income stream is barely existent level, and he doesn’t have those resources. But although he can file this thing pro se, I don’t advise him to do that. I would prefer that he do it with representation, even if we have to scrounge around and try to find some reduced-cost attorney, because you just can’t do effective representation of yourself. I bet you can’t be objective. [45:47] Andy: I completely agree that you can’t really, it’s hard to be objective about yourself. [45:51] Larry: And you can’t even get access, because the responding party is the district attorney of the county of your conviction, or in the case of non-Georgia convictions, the county where you’re residing. And you can’t go in and talk to the district attorney. Say you have a Georgia conviction, as he does. You can’t go in there and say, “What do you think about me? How do you feel about me after all these years?” [46:16] Andy: But okay, so in his circumstances, his crime was in 2004. I don’t remember when he was convicted. He was sentenced to 20 years, and he was going to get out, so his conviction happened in 2008, if I’m not mistaken. There’s nobody in the DA’s office that’s going to remember him. Nobody was there. Some of them were barely in law school when he got convicted. That would be true. [46:46] Larry: Those very few district attorneys would still be around, but some would. I mean, those are pretty cushy jobs, and some of them linger for a long, long time. I know the Clayton County District Attorney, south of Atlanta, stayed there forever. And so it could be that that’s true. But they certainly have files, and if they have any victim notification requirements—which I’m not that well versed in Georgia law, but most states do have that opportunity for victims—if the victim has any angst, those are things you really need to know before you get blindsided at the hearing. You need to know what the judge is going to base the decision on, so you need to know what your risk level is going to be. That’s why I always tell people: have your own risk assessment done so you can counter the SORRB, if need be.And also, you just can’t do effective representation of yourself, talking in the third person. You know, “What do you think about my client?” If you’re an attorney, you can do that. “Hey, you know, this has been 20 years ago. My client’s done this. My client’s got a small business. He’s working and paying taxes. He hasn’t even had a speeding ticket.” You can’t get that done when you’re representing yourself. Even if they see you, they’re not going to give you the same level of respect, because they’re wired not to like you. It’s us versus them, and you’re them and they’re us. Right?
[48:11] Andy: So, all right, practicality here: a guy is just scratching two nickels together. What are they supposed to do to scrounge up representation? Does he just keep pounding the pavement until he finds an attorney that will have some sympathy and just put forth the minimal effort to try and help him? [48:33] Larry: Well, I would hope that’s not the only option. I would hope that some way or another—I mean, he won’t qualify for any earned income credit from the federal government because he’s not working—but if there’s anything they can do to help raise some money… I’ve never seen anybody do a GoFundMe for a PFR deregistration, but they do it for everything else. It’d be interesting to see.We had a person in Vermont that used to do GoFundMe to attend our conference, and I don’t know that it worked very well, but he did create a PFR—“I’m not going to do it for me, so I’m going to give him some money to GoFundMe to attend the conference.” Do you have any idea what I’m talking about so I don’t have to name the person? Could you give me a first initial?
[49:11] Andy: Nope, I have no idea. So, yes. [49:17] Larry: We had, and that person’s from a family of lawyers. His father— [49:25] Andy: I think I know who you’re talking about now. All right, that’s bizarre. Okay. [49:30] Larry: But I would really not want him to go in unrepresented or unregistered, because he’s got to wait two and a half years on the deregistration petition to file it again and on the remembering, too. [49:42] Andy: Two and a half years of scrounging together. You don’t have to spend 10 grand to do this either. That is a pretty high number from my experience. There should be a number a good chunk lower than that. So maybe you’re saving some hundreds of dollars per month, if you could possibly pull that off, to save up for it. He would have such a hard time saving. [50:05] Larry: Hundreds of dollars a month with his income stream, I get it. His, uh, he didn’t—I’ve got to pontificate about Social Security. He didn’t get to collect Social Security Disability because he wasn’t currently insured when he got out of prison, because being in prison kept him out of the workforce for five years. And you have to have had a steady work history five of the last 10 years prior to becoming disabled—your onset date. And if you’ve been in prison for five and a half years out of the last 10, you can see real quickly that you don’t have the ability to have five years of work, and it rendered him not currently insured for disability benefits. So he’s having to get SSI, which is a pittance. I think it’s just sub-$1,000 a month, like $985 or something. Wow, that is low. Okay, so he doesn’t have a lot of elasticity in his budget. And call it, even if he’s got a residence that’s paid for, paying for utilities and some rudimentary personal items, you know, you can go through a thousand dollars pretty fast. [51:08] Andy: All right, I don’t think I have anything else to go into here, Larry. [51:18] Larry: I would like to have had him here, and if he decides he wants to come, we can go a little bit deeper into some things we may have missed or not gotten correct. We can make the show available to him, the recording. I’ll send him a link to the YouTube so he can listen to it there, and if we botched it up, we can come back and fix it if he wants to come on. I wanted to get the message out that it is an amazing accomplishment to have the probation department supporting you. You do not want to go out and broadcast that, and I told him that on the phone. This is a career breaker if this PO has a desire to work their way up to a supervisor, to management. You go out and broadcast that—and I told him that on the phone—and the word gets out to the community that this probation officer is recommending early termination. And I asked him, I said, “How do you think that the voters of the county would react if WSB-TV comes in and says, ‘Now let me make sure we got this straight: you recommended this person for termination from supervision and from registration. They committed a crime nine months later. Can you explain why you did that?’” And nobody wants that. It can potentially derail a career. [52:45] Andy: Of course, I get you. So it’s amazing, but I would not go out and be telegraphing to the world what’s going on. I don’t think I would call the probation officer and discuss that, because I think it puts everybody in jeopardy, and I don’t see the need to do that. Gosh, Larry, I see the article here posted of “No Showers, Black Mold, and Clogged Toilets.” Boy, we should go right into that one, but I think we’ll call it quits for the night. [52:53] Larry: Yes, and we were thinking of not making it this evening because of the legislative session, but when I saw that the Capitol was going to be filled with protesters today, I didn’t go up. But, oh, come on, you— [53:07] Andy: You can’t leave me with that one. Tell me what kind of protesters. [53:11] Larry: People asserting their rights to open carry. [53:16] Andy: Do they exhibit this open carry right while they’re protesting the right to carry? [53:23] Larry: They do indeed, and they used to do it inside our capitol. About five years ago, the legislature changed the rules that you can’t come in the building. But we would be trying to have a committee hearing, and there would be 14, 15, sometimes 20 people with sidearms sitting there. So now, when you go in on these protest days, they don’t get to take them in the building, but they start in the parking garage, they’re on the steps of the capitol, they’re all around the capitol holding signs, and it’s a powder keg waiting to explode. So I decided to take the day off, but I will likely go next weekend because it’s the final weekend of this year’s session. So we may not be able to produce an episode next week. [54:02] Andy: Well, all right, this could be a short month on episodes for sure. So I would encourage everyone that hasn’t already to head over to registrymatters.co. There you can find all the show notes, and you can find links to whatever you want to find from there: if you want to find how to download the podcast, if you want to find the YouTube channel, get on Discord, you can find all of that. And I’ll see you next week. I’m saying this as I am furiously typing to get over to Patreon. You can also leave voicemail at 747-227-4477, email us at registrymatterscast@gmail.com, and as I’m looking at Patreon, it’s patreon.com/registrymatters. And who was it that gave? Was it Steven? Okay, all right then, well… [54:59] Larry: Then you’ve got it perfect. I don’t want to give his last name, but no, no, I don’t ever want to do that. Steven, yes, Steven. Thank you. Thank you for coming in at stimulus level. Absolutely that, absolutely. [55:10] Andy: Perfect. Well, have a great night, everybody. Have a great weekend. Stay warm, if that’s something up your alley. If it’s above freezing, then you don’t count. That’s all I got. Have a great night, Larry. Take care. Bye. [55:29] Announcer: You’ve been listening to FYP.
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