Comes now New York’s highest court with the holding that an accuser’s trial testimony constitutes clear and convincing evidence of the truth of her accusations, even though the jury found her not credible and acquitted the defendant of those charges.
In a 6-1 opinion, with only the redoubtable Judge Rivera dissenting, the Court upheld the lower court decision putting the defendant on the internet Sex Offender Registry for the rest of his life based on acquitted charges.
Never mind that the Sex Offender Registration Act (SORA) requires that risk level be determined by evidence that is “clear and convincing.” Although that’s a lower standard than “beyond a reasonable doubt,” it’s higher than mere preponderance. Defined as “highly probable” and “unequivocal,” it’s the level of proof required in civil cases where basic personal liberties are at stake. And you can’t get much more equivocal than accusations that the jury expressly discredited in a “he-said-she-said” sex case.
Naturally the Court doesn’t admit that it moves the goalposts for sex cases. But these days, when it comes to accusations of sexual misconduct, the standard of proof is that they were made. The Court is simply going with the flow — which by definition, is downhill.
Appellate Squawk 
New York State’s statutory definition of a “”sex Offender” includes any person who is convicted of any of the offenses set forth in subdivision two or three of this section. Convictions that result from or are connected with the same act, or result from offenses committed at the same time, shall be counted for the purpose of this article as one conviction. Any conviction set aside pursuant to law is not a conviction for purposes of this article.” The Court of Appeals is charged with knowing the law with which it operates under. It just violated the law! Where oh where has the separation of powers disappeared to?
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We should have been clearer – he was convicted of a misdemeanor sex offense, which made him only Level 1. That level doesn’t involve being on the Internet registry and ends after 20 years. But adding the acquitted charges put him on the public Internet registry for life – a big difference!
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Do you know if his attorney’s plan to appeal to SCOTUS? I am waiting for SCOTUS to take a case and see if they agree with Doe in Michigan, or the Denver Case where courts are starting to see this is in fact punishment which would put this decision under Apprendi a and save this man a lot of pain
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You can ask the attorney, Denise Corsi at Appellate Advocates in NYC.
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Thanks! I just sent her an email. If she replies I’ll post it here.
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So, what the New York Supreme Court basically said is “F@#k” what the jury said, this is a sex case and we find the scum bag, uh, defendant, GUILTY, GUILTY, GUILTY!!! And we insist on destroying his life. A couple of questions for Appellate Squawk lawyers if I may: 1) If this ruling is upheld (if appealed) by the feds, what effect will this have on American jurisprudence? Or, is this ruling only applying to sex cases? Also, there was a similar ruling out in, I believe, the 9th of 10th Circuit where that court held that it is rational for the state legislature to make law based on fake research, made up statistics and out right lies when it comes to sex offenders. Last question: what the hell is going on with this Country???
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Hard questions. Since the Court doesn’t actually say its holding applies only to sex cases, we suppose they’ll apply it to insurance, personal injury, zoning, immigration, divorce and any other civil litigation. Or not.
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It is disheartening when rulings like this are made. Another ruling screaming for the Supreme Court to grant certiorari for is the Illinois Supreme Court’s ruling that upholds the idea that it is RATIONAL TO BASE SEX OFFENDER RESTRICTIONS ON PROVEN FALSE RECIDIVISM DATA. (The “frightening and high” myth) stated in McCune v. Lyle.
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The 10th Circuit is going to hear an appeal of a landmark ruling by federal judge Matsch who ruled in favor of 3 sex offenders who had been the victims of vigilantism. Judge Matsch ruled that the Colorado Sex Offender Registry violates the 8th Amendment’s prohibition against cruel and unusual punishment in that the public nature of the registry opens these offenders up to being ostracized, discriminated against, harassed, and make them vulnerable to vandalism of their property and vigilante violence that goes way beyond any punishment imposed by the court.
Already states within the 10th Circuit are filing a flurry of amicus curiae briefs in support of the registry. No doubt in their briefs they’re either ignoring or trying to greatly downplay the incidents of vigilantism against registered citizens.
I think that the attorneys fighting on the part of these registered citizens should amass every news article they can find regarding sex offenders who have been harassed, attacked, or killed by vigilantes who have misused the registry as a hit list. That it has happened just once should be enough to shut the whole thing down, but the more incidents one can cite will show a broader pattern of public abuse of registry access.
It should also be a part of the appellate record that after the very attorney who won this landmark ruling she received death threats from members of the public. The lawyer who fought on behalf of these 3 registrants received death threats after the judge made his wonderful ruling.
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Another blatant example of sex offender exceptionalism. Death is different and now in the eyes of the courts so is sex. Well, I should not be surprised: sex and violence. As the world…and my stomach…churns.
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