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Justices rule on residency-restriction law

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The Indiana Supreme Court says the three-year-old state law restricting sex offenders from living within 1,000 feet of where children congregate constitutes an unconstitutional form of retroactive punishment. However, the sex offender who won the appeal has been dead since September 2008.

Rather than procedurally dismissing the case as moot, justices granted transfer with an opinion in State of Indiana v. Anthony W. Pollard,  No. 05S02-0906-CR-305, a Blackford County case that has been sitting motionless on the justices' docket since attorneys asked for transfer in August 2008, about a month before Pollard died of cancer.

More than a year ago, the Indiana Court of Appeals affirmed the ruling of Blackford Superior Judge John W. Forcum, who'd dismissed a 2007 felony sex offender residency charge against Pollard that related to his sex-offense conviction in 1997. At the time of the conviction, Pollard was living with his wife at a home within 1,000 feet of a school for about 10 years. State law changed in 2006, however, and Indiana Code section 35-42-4-11 made it a crime to live within that distance from any school, park, youth center, or place where children congregate.

After the judge's dismissal of the residency charge, the state argued on appeal that the trial court erred when it found the state statute, as applied to Pollard, violated Article 1, Section 24 of the Indiana Constitution. The Court of Appeals in May 2008 affirmed that ruling, and now the justices have agreed with that decision but for different reasons.

Relying on its most recent decisions from earlier this year in another sex-offender restriction case, Wallace v. State, 905 N.E. 2d 371, 378, (Ind. 2009), the justices applied an "intent-effects" test to evaluate ex post facto claims under the Indiana Constitution. The statute is ambiguous about whether the state legislature intended to impose punishment, but several aspects of the law are considered punitive by U.S. Supreme Court precedent - specifically, five of the seven factors are punitive when applied to Pollard's case, the justices determined.

While all five justices agreed in result, Justice Theodore Boehm wrote a concurring opinion that said he disagreed with his colleagues on only one point: that a third test factor, involving the absence of a scienter element for certain forms of child molesting, is not significant in evaluating the punitive character of this statute.

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  1. Video pen? Nice work, "JW"! Let this be a lesson and a caution to all disgruntled ex-spouses (or soon-to-be ex-spouses) . . . you may think that altercation is going to get you some satisfaction . . . it will not.

  2. First comment on this thread is a fitting final comment on this thread, as that the MCBA never answered Duncan's fine question, and now even Eric Holder agrees that the MCBA was in material error as to the facts: "I don't get it" from Duncan December 1, 2014 5:10 PM "The Grand Jury met for 25 days and heard 70 hours of testimony according to this article and they made a decision that no crime occurred. On what basis does the MCBA conclude that their decision was "unjust"? What special knowledge or evidence does the MCBA have that the Grand Jury hearing this matter was unaware of? The system that we as lawyers are sworn to uphold made a decision that there was insufficient proof that officer committed a crime. How can any of us say we know better what was right than the jury that actually heard all of the the evidence in this case."

  3. wow is this a bunch of bs! i know the facts!

  4. MCBA .... time for a new release about your entire membership (or is it just the alter ego) being "saddened and disappointed" in the failure to lynch a police officer protecting himself in the line of duty. But this time against Eric Holder and the Federal Bureau of Investigation: "WASHINGTON — Justice Department lawyers will recommend that no civil rights charges be brought against the police officer who fatally shot an unarmed teenager in Ferguson, Mo., after an F.B.I. investigation found no evidence to support charges, law enforcement officials said Wednesday." http://www.nytimes.com/2015/01/22/us/justice-department-ferguson-civil-rights-darren-wilson.html?ref=us&_r=0

  5. Dr wail asfour lives 3 hours from the hospital,where if he gets an emergency at least he needs three hours,while even if he is on call he should be in a location where it gives him max 10 minutes to be beside the patient,they get paid double on their on call days ,where look how they handle it,so if the death of the patient occurs on weekend and these doctors still repeat same pattern such issue should be raised,they should be closer to the patient.on other hand if all the death occured on the absence of the Dr and the nurses handle it,the nurses should get trained how to function appearntly they not that good,if the Dr lives 3 hours far from the hospital on his call days he should sleep in the hospital

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