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SALT LAKE CITY The Utah Court of Appeals has reversed a sex offender's conviction after they say prosecutors failed to notify him they'd charged him or were prosecuting him.

In to a 74-page document filed by the Utah Court of Appeals on Friday, Judge Ryan Harris said the appellant, Chad Hintze, wasn't made aware of a charge against him for two years.

The charge, according to the documents, stemmed from an incident in June of 2016 in which Hintze and a teenage girl were eating and sitting on a park bench along the Jordan River Trail. Hintze and the girl were approached by three uniformed officers on bike patrol.

Hintze wasn't permitted to be there because he was convicted of attempted unlawful sexual activity with a minor in 2011. He was required to register as a sex offender following that incident.

For the 2016 incident, Hintze was ultimately charged by the state with one count of violation by a sex offender of a protected area.

Judge Harris' opinion in the documents goes on to say the state did not immediately file charges against Hintze.

In March of 2017, Hintze was charged with forcible sexual abuse, which is considered a second-degree felony. This incident happened in a separate and unrelated case. In August of 2017, Hintze was sentenced to a prison term of zero-to-five years based on that conviction.

"He should have spent separate times in jail for his two separate offenses," said Danielle Ahn, a candidate for Salt Lake County District Attorney.

Instead, Ahn says, he was punished for just the incident that took place in 2017.

It's something Ahn says is unacceptable.

"It's an injustice to the defendant, it's an injustice to the community and to the victim," she said.

FOX 13 News sat down with Salt Lake County District Attorney Sim Gill Monday afternoon. He said the 2016 case involving Hintze was filed in 2018, which is within the two-year statute of limitations.

"When this case was filed, he had apparently been gone to prison, so we filed the charges, we asked for a warrant," said Gill.

Looking back on the case, Gill said Hintze was not served that warrant until the Board of Pardons was reviewing his case, while Hintze was housed in Kane County.

As for the Utah Court of Appeals decision, Gill says another issue brought up pertaining to that 2016 case was the underlying issue of the initial police contact, and whether that violated Hintze's Fourth Amendment rights in terms of probable cause.

"There was a hearing that was done, that at that time, the state prevailed on that," Gill said. "Tthe court ruled and they overruled."

FOX 13 News asked Gill about Hintze's status and if he was a free man at the moment, but the DA said he didn't know whether Hintze was in custody or not.

Bethany Crisp is the outreach coordinator with the Utah Coalition Against Sexual Assault.

"We just help, you know, create that statewide collaboration," she said.

Crisp said that in her line of work, victims often have a difficult and traumatic time when reporting crimes against them.

"The Rape, Abuse and Incest National Network show that more than two out of every three sexual assaults go unreported," she said.

Crisp said some victims go through a lengthy trial only to then see the perpetrator walk free, which she says also makes it difficult for many of them to decide if they want to want to report that kind of crime or not.

"That's why this matter of reporting and making sure that people feel comfortable reporting is a public health concern," said Crisp.

In a split ruling, judges ruled that Hintze's Sixth Amendment right to a speedy trial was violated. On that basis, they decided to reverse the conviction and remand with instructions to dismiss the charge from 2016.

FOX 13 News also spoke with former federal judge Paul Cassell about the dismissed case.

"So this was a case in which the DA'S office had filed charges and then took no action for two years to move the case forward," said Cassell, who is now a criminal law professor at the University of Utah, "And so if we're looking for who's responsible for the delay here, the Utah Court of Appeals has said the Salt Lake DA'S Office is the one that's ultimately responsible for moving this case forward and failed to do so."

Cassell went on to say that if the charges had been filed properly, it could have prevented the other crime from taking place.

Read the rest here:
Utah Court of Appeals reverses sex offender's conviction, claiming state failed to prosecute case for 2 years - FOX 13 News Utah

petitions of the week ByKalvis Golde on Oct 14, 2022 at 6:10 pm

The Petitions of the Week column highlights a selection of cert petitions recently filed in the Supreme Court. A list of all petitions were watching is available here.

In a case that prompted satirical news outlet The Onion to file its first-ever amicus brief in the Supreme Court, an Ohio man sued police for violating his constitutional rights when they arrested him for creating a Facebook page parodying the local police department. This week, we highlight cert petitions that ask the court to consider, among other things, whether those officers are entitled to qualified immunity.

Anthony Novak, a resident of Parma, Ohio, created a Facebook page with the same name, cover photo, and profile picture as the city police departments page. In the 12 hours Novaks page was live, it went viral thanks to six satirical posts announcing, for example, a new hiring initiative strongly encouraging minorities not to apply and a no means no fair at which residents could remove their names from the sex-offender registry by completing a series of puzzles.

After obtaining a warrant to investigate the owner of the page, police arrested Novak under an Ohio law that makes it a felony to disrupt, interrupt, or impair police operations. Novak was acquitted at trial. He then sued the officers who arrested him for violating his First Amendment right to freedom of speech and his Fourth Amendment right to freedom from unreasonable searches and seizures.

The U.S. Court of Appeals for the 6th Circuit granted the officers qualified immunity. Before taking down the page, Novak had copied a disclaimer posted on the departments real Facebook page decrying the fake account and deleted user comments that his own page was a parody. Because no court case has clearly established that those actions are protected speech, the 6th Circuit held, the officers could reasonably believe that some of Novaks Facebook activity was not parody protected under the First Amendment.

In Novak v. City of Parma, Ohio, Novak asks the justices to clarify when qualified immunity is available if the justification for probable cause relies on speech. He argues that his arrest was retaliation for his speech, and that the officers conduct was an obvious constitutional violation not entitled to qualified immunity. Novak also points out that the 6th Circuit originally sided with him at an earlier stage in the case: Imagine if The Onion, Judge Amul Thapar wrote, were required to disclaim that parodical headlines are, in reality, false.

Answering that call, The Onion filed an amicus brief in support of Novaks petition from the court of appeals subsequent ruling for the officers. In urging the court to take up the case, the magazine tells the justices that the 6th Circuits ruling threatens to disembowel a form of rhetoric that has existed for millennia, that is particularly potent in the realm of political debate, and that, purely incidentally, forms the basis of The Onions writers paychecks.

Donziger v. United States22-274Issues: (1) Whether Federal Rule of Criminal Procedure 42(a)(2) authorizes judicial appointments of inferior executive officers; and (2) if so, whether such appointments violate the appointments clause in Article II, Section 2 of the Constitution.

Pavlock v. Holcomb22-282Issues: (1) Whether a judicial taking under the Fifth and 14th Amendments is a cognizable cause of action; and (2) whether a property owner who is deprived of property under the authority of a state court decision may seek prospective injunctive relief in federal court to halt encroachment on their property by state officials acting under the authority of that decision.

Novak v. City of Parma, Ohio22-293Issues: (1) Whether an officer is entitled to qualified immunity for arresting an individual based solely on speech parodying the government, so long as no case has previously held the particular speech is protected; and (2) whether the court should reconsider the doctrine of qualified immunity.

County of Ontario, New York v. Gunsalus22-294Issue: Whether the U.S. Court of Appeals for the 2nd Circuit erred in refusing to extend the holding ofBFP v. Resolution Trust Corp.to a lawfully conducted tax foreclosure, where New York tax foreclosure law provides for ample notice, opportunity to cure and judicial oversight of the process, and where there is no evidence of a clear and manifest intent by Congress to allow11 U.S.C. 548to impinge upon the important state interests in securing real estate titles and collecting real property taxes.

Excerpt from:
With The Onions support, satirist asks court to revive lawsuit against police who arrested him - SCOTUSblog

When Jess Alberto Guzmn Curipoma, an engineer in Ecuador, decided to escape rampant gang violence and head to the United States last fall, he did not imagine the legal dragnet that would ensnare him. Curipoma knew a bit about the asylum process in the U.S. and planned to turn himself in to federal immigration authorities at the border. But a few months before he began his journey north, Texas governor Greg Abbott launched a showy initiative, Operation Lone Star, under which Texas law enforcement agents were deployed to arrest thousands of immigrants on state trespassing charges. When Curipoma crossed the Rio Grande into rural Kinney County in September, he was arrested by state troopers, not federal agents. Then, because Kinney County was arresting so many migrants and could not handle its caseload, Curipoma spent weeks in a Frio County jail, about one hundred miles to the east, awaiting a hearing.

Curipomas family contacted Angelica Cogliano and Addy Mir, Austin-based criminal defense attorneys, who secured his release. As his hearing was delayed with no relief in sight in backlogged Kinney County courts, Cogliano filed a writ of habeas corpus in Travis County, home to Austin, arguing that the operation that had imprisoned her client had unconstitutionally violated the preemption doctrine, which holds that state laws cannot interfere with federal authority on matters of immigration or otherwise. A state district judge agreed, finding that Operation Lone Star was indeed preempting federal immigration enforcement. Even the Travis County district attorneys office, our adversary at the hearing, agreed with us, and we were all in tears after that, Cogliano said.

On the heels of the ruling, the future of Abbotts program appeared in peril. Texas RioGrande Legal Aid, a nonprofit providing legal services to those in poverty, filed more than four hundred cases in the Austin court that issued the Curipoma decision. But Kinney County appealed in February on the basis that it, not Travis County, was the proper venue for the hearing. The Curipoma case, along with the hundreds of similar ones, has been held up since then.

As their clients fates remained in limbo, many lawyers representing migrants hoped that constitutional lawyers would bring a larger challenge to Abbotts border security initiative that could offer wholesale relief. Preemption was on the radar of everyone litigating criminal cases in Operation Lone Star, Cogliano said. She reached out to S. Rafe Foreman and Susan Hutchison, Fort Worthbased attorneys, and convinced them to get involved in bringing a larger suit.

In April, Hutchison, who has spent the better part of four decades working on employment discrimination and civil rights cases, sued state officials in the U.S. District Court for the Western District of Texas. She brought claims on Fourth Amendment and equal-protection grounds, arguing that Operation Lone Star enforcement constituted an unreasonable search and seizure and targeted her clients because of their race. But, above all, Hutchison built her case on preemption. There was a widely held view among attorneys and other legal experts that Texas officials were in flagrant violation of a 2012 Supreme Court ruling that found that an Arizona show me your papers law interfered with federal immigration authority. In June of 2021, the American Civil Liberties Union argued in a letter to Kinney County officials that state and local officials had no grounds for enforcing federal immigration laws, citing the federal preemption doctrine. In the fall of 2021, more than two dozen members of Congress, including Joaquin Castro, a Democrat who represents much of San Antonio, sent a letter to U.S. attorney general Merrick Garland and Alejandro Mayorkas, head of the Department of Homeland Security, accusing Abbott of violating the Constitutions Supremacy Clause, from which the doctrine of preemption is derived.

And yet, months later, the preemption challenge has not come. Hutchison says that, from the outset, the ACLU privately urged her against bringing forward a case built on preemption, and the Department of Justice never rallied around her lawsuit. While representatives in neither organization granted requests for interviews about their rationales, some legal scholars believe the organizations feared that the federal judiciary had shifted so far to the right that itwould use the Operation Lone Star suit to overturn the Arizona precedent. Everybody and their brother, including the ACLU, was telling us to drop the preemption claim, Hutchison said. And considering the current state of the Fifth Circuit, and the Supreme Court, making a preemption argument might just be giving Texas a chance to overturn Arizona, or at least make it super narrow.

Josh Blackman, a law professor at South Texas College of Law Houston, said the refusal to sue on preemption grounds is part of a larger strategy to avoid bringing precedent-setting cases before the Supreme Court with its 63 right-wing majority. To avoid adverse precedents, sometimes you make the decisions you may not like. Thats just how litigation works, Blackman said.

Hutchison has subsequently refocused her case, dropping the preemption argument in favor of the equal-protection and Fourth Amendment ones. Regardless of how her ongoing lawsuit on those grounds resolves, experts think Texas has already won in many respects. Abbott and state leaders have designed a program that made clever use of the states existing criminal infrastructure to avoid a sweeping lawsuit for more than a year and counting. An official in Texas attorney general Ken Paxtons office, speaking on the condition of anonymity, told me that Paxton believes Arizona was incorrectly decided, but added with a dash of bravado that the precedent doesnt apply to Operation Lone Star in the first place, since the program simply relies on enforcing Texas laws already on the books, including laws against trespassing.

Cogliano acknowledged that the programs design makes it hard to challenge. Texas wants Arizona reversed, but instead of tackling it directly, and creating state laws that let us litigate them on their face, theyre hiding from it under the blanket of criminal justice, she said. Texas is a mastermind at manipulating the way the legal system is supposed to work.

Many lawyers argue, nonetheless, that Operation Lone Star does, in fact, preempt federal immigration authority, even if not by letter of the law. Geoffrey Hoffman, a former professor and director of the immigration clinic at the University of Houston Law School and a newly appointed immigration judge in Houston, said, While they are prosecuting for trespass, a state-level crime, the actual implementation has been to enforce immigration law, and that interferes with federal policies and the federal statutory scheme. He and other lawyers point to the evidence of who is being arrested on trespassing charges. In Kinney County, for example, officials say that law enforcement agents have arrested just three individuals for trespassing who were not immigrants since Operation Lone Star beganagainst the more than four thousand arrested who had just crossed the border.

Lawyers also note that Abbott speaks of Operation Lone Star as a border enforcement initiative, not one designed to stop trespassing. The governor has repeatedly referred to the program as a way to secure the border despite what he identifies as the Biden administrations refusal to do so, and hes said the policy will senda message to those south of the Rio Grande to not attempt a crossing. He also once tweeted that Lone Star was a program to arrest and jail illegal immigrants. Operation Lone Star prosecutors have spoken of the program in similar terms. When the first migrant defendant arrested under Operation Lone Star was convicted in May and sentenced to a year in jail on a misdemeanor, Tony Hackebeil, the San Antoniobased prosecutor in the case, declared the ruling had sent a message to those considering crossing the border. The trespassing prosecution, he seemed to suggest, was just a means to an end.

The Biden administration sued Texas in July of last year over a specific Lone Star directive that sought to prevent drivers from transporting migrants suspected of carrying COVID-19. And the Texas Tribune and ProPublica reported this July that Justice Department officials are investigating Operation Lone Star for alleged civil rights abuses. But Texas lawyers say the Department of Justices silence on Texass overall enforcement activities appears to acknowledge a legal disadvantage. Others say federal authorities might even be cooperating with Texas. Homeland Security and the Texas Department of Public Safety declined to comment for this story, but according to Amrutha Jindal, chief defender of migrants arrested under Lone Star at the Lubbock Private Defenders Office, the state initiative would not be possible without the support of federal immigration authorities. Were seeing the U.S. Border Patrol apprehend individuals that they later turn over to the Texas Department of Public Safety for prosecution, and then federal law enforcement picks them up after theyve posted bond or their case is complete, Jindal said. And state law enforcement relies on Border Patrol technology, and sharing information over radio dispatch channels.

Meanwhile, as the Curipoma case has been appealed, it has become effectively impossible to pursue habeas corpus relief for migrants.The high [we felt with the release] of Curipoma has been stomped on by our inability to address the real issue, Cogliano said. She added that she understands the risks of challenging Operation Lone Star more broadly, but that playing it safe offers little comfort to her clients. Since his release, Curipoma has settled in Texas and has kept busy working on his graduate dissertation in engineering, but many others like him remain imprisoned while awaiting long-delayed trials. The Biden administration doesnt have to look our clients in the face. They dont see the desperation, or what theyre enduring in prison, Cogliano said. There comes a point when you have to stop being scared.

See the original post:
Some Texas Lawyers Think Greg Abbott's Border Initiative Is UnconstitutionalBut They're Afraid to Challenge It - Texas Monthly

Election season is here, and West Virginians will soon cast their ballots for a number of county, state and federal offices, as well as four proposed amendments to the state constitution.

Tuesday, Oct. 18, is the voter registration deadline in West Virginia to participate in the 2022 midterm elections. Early voting will take place from Oct. 26 to Nov. 5.

Heres what you need to know about voting in Monongalia County.

You can verify your voter registration status on the Secretary of States website by entering your full name and birthdate. From there, you can see your voter status, party affiliation, political district and polling location.

The deadline to register to vote in West Virginia is Tuesday, Oct. 18.

You can register online, by mail or in person by providing a valid ID and the last four digits of your Social Security number. Your county clerk should notify you once your application has been processed.

If you dont have a driver's license or access to your Social Security number, you can create a voter application online and deliver a signed copy to your county clerk by mail or in person.

If this is your first time registering to vote in the state, youll be required to show valid identification when registering and voting for this election. Heres a full list of acceptable IDs.

To qualify for voter registration in West Virginia, you must be a U.S. citizen and 18 years or older. You must also have a physical address in the state.

You cannot register to vote in the state if youve been convicted of a felony and are still serving a sentence, including probation or parole, or if youve been deemed mentally incapacitated by the court of law.

Heres more information on voter eligibility.

Yes, anyone in West Virginia can update their voter registration on the Secretary of State's website.

In-state students can change their voting district by providing a physical address, including college dorms and apartments.

Out-of-state students can register to vote in the state as well by providing a physical address and a valid ID. However, these students are strongly encouraged to cancel their out-of-state registration while voting in West Virginia, according to Donald Kersey, deputy legal counsel for the Secretary of State.

Although its not illegal to be registered to vote in two states, voting on two different ballots is a felony in West Virginia, according to the State Code.

In West Virginia, you can vote in person or by mail, though you must meet certain eligibility requirements.

If youre voting in person, you can confirm your polling location with the Secretary of State.

For absentee voting, you must fill out a ballot application and submit it to the county clerk at least six days before the election (Nov. 2, 2022).

Track your absentee ballot here.

A number of county, state and federal offices will be on the ballot in the November general election.

All West Virginians will vote for members of the U.S. House of Representatives, state delegates and state senators.

Offices in both the states House of Delegates and Senate are also up for grabs, with all previous position-holders running for re-election. Ballots will vary for voters based on districts and precincts.

Additionally, local elections for the Monongalia County Commission, Clerk and Circuit Clerk will also take place on Nov. 8. Both the candidate for the County Clerk and the County Circuit Clerk will run unopposed, whereas the race for the County Commission has two candidates, Democrat Bob Beach and Republican Sean Sikora.

You can look up a sample ballot on the Secretary of States website.

Voters will also be asked to weigh in on four different amendments to the states constitution, regarding tax, religion, education and impeachment.

Amendment 1: Judiciary Role in Impeachment

The first proposed amendment is aimed to clarify the Judiciarys role in impeachment proceedings and thereafter.

Currently, any state official, in either the House of Delegates or the Senate, may be impeached for a number of reasons, including but not limited to the neglect of duty, corruption or a high crime or misdemeanor. The House holds the power to impeach while the Senate is responsible for trying.

This amendment would assert that the Judiciary and its courts have no power to interfere or intervene with any impeachment proceeding of the House or Senate. The Judiciary is also prohibited from reviewing a judgment in the House or Senate regarding an impeachment.

Amendment 2: Property Tax

The proposed amendment on how much power the state should maintain over taxation tax may be the most controversial.

The second and most controversial amendment would permit the state to give tax cuts and exemptions for personal property taxes on tangible machinery, equipment and inventory used for business practices. It would also exempt the personal motor vehicle tax from ad valorem property taxes, which means that the tax is proportional to the value of the transaction or the property being taxed.

According to the West Virginia Center for Budget & Policy, the proposed amendment would give the legislature control over 27% of personal property taxes in the state.

Amendment 3: Incorporation of Churches

The third amendment discusses the incorporation of churches or religious denominations. This would allow for provisions to be made through general laws for securing, selling or transferring the title of a church property for purposes of the church or religious denominations.

Currently, West Virginia is the only state that prohibits any charter of incorporation to be granted to any church or religious denomination, as the provision was inherited from Virginias constitution when the state seceded. Allowing churches and religious denominations to incorporate would make it easier for them to borrow and manage money.

Amendment 4: Board Education

Lastly, the fourth amendment would clarify that any rule or policy enacted by the State Board of Education is subject to legislative review, approval, amendment or rejection. After the BOE creates a rule or policy, it must be submitted for review.

This means the state Legislature would give the final ruling over any proposed BOE rule or policy change.

See original here:
West Virginia midterm elections: What to know about voting in Mon County - The Daily Athenaeum - thedaonline

Former President Donald Trump is claiming the Mar-a-Lago raid and subsequent investigations into his possible mishandling of classified documents a "hoax." He also thinks other presidents should be under investigation.

At a rally in Nevada on Saturday, Trump claimed that former presidents Bill Clinton, George W. Bush, George H.W. Bush, and Barack Obama were all much worse than him about retaining documents.

He said those presidents were given "all the time they needed" when it came to their documents -- something he claims he was not afforded.

"Just look at how every other president has been treated when they left office. Very interesting," Trump said, according to Mediaite. "They've been given all the time, all the time needed, because you're supposed to have as much time as you need, and complete deference when it came to their documents and their papers."

The former president then went on to single out Obama.

"Barack Hussein Obama moved more than 20 truckloads, over 33 million pages of documents, both classified and unclassified, to a poorly built and totally unsafe former furniture store located in a rather bad neighborhood in Chicago. With no security, by the way," he said.

Trump also took aim at George W. Bush, saying he stored "68 million pages in a warehouse in Texas and lost 22 million White House emails." He said Bill Clinton took "millions of documents from the White House to a former car dealership in Arkansas...and kept classified recordings in his sock drawer."

Trump also mentioned Hillary Clinton deleting "33,000 emails under congressional subpoena," and George H.W. Bush taking "millions of documents to a former bowling alley and a former Chinese restaurant... with no security and a broken front door."

"When will they investigate and prosecute Bill Clinton, Hillary Clinton, George Bush, and look into what took place with George Bush's father, a very nice man," he asked rhetorically. "Are they under potential prosecution? I don't think so. I don't think they are."

"They should give me back everything that they've taken, he added.

Trump said in contrast, he only had a "small number of boxes in storage at Mar-a-Lago" which were guarded by the Secret Service.

"The FBI with many, many people raided my house. It's in violation, by the way, of the Fourth Amendment, and many other things also," he said. "There is no crime... but they make it sound like the greatest crime in America was committed. And we've got all these warehouses that are just falling down buildings essentially, loaded up with just millions and millions of pages of previous presidents and nothing was ever said about it."

Excerpt from:
Trump wants other presidents investigated - KRLD