Yourlawyer.com (Statutes of Limitations News) http://www.yourlawyer.com/topics/overview/statutes_of_limitations Sat, 21 Nov 2009 20:13:15 -0800 pixel-app en Senate tightens sex abuse penalties http://www.yourlawyer.com/articles/read/12794 Wed, 25 Apr 2007 00:00:00 -0700 http://www.yourlawyer.com/articles/read/12794
"I can think of no more solemn duty than the protection of our most innocent and vulnerable citizens," said Sen. Bob Deuell, the Greenville Republican who sponsored the measure, HB 8.

The bill creates new categories of sexually violent offenses against children under 14, breaking out new categories for crimes committed involving kidnapping, date rape drugs or deadly weapons and causing serious bodily injury. Such crimes, or any aggravated sexual assault on a child under 6, automatically carry a minimum sentence of 25 years in prison.

A second offense carries life in prison or the death penalty.

The bill also enhances punishments for most sex crimes against children and extends the statute of limitations for prosecution.

"We want to deter people. We don't want victims. But if a crime happens, we want to give our prosecutors the tools to make convictions," Deuell said.

The bill is named Jessica's Law after Jessica Lunsford, a Florida girl who was abducted and killed. More than a dozen states have passed versions of Jessica's Law to crack down on sex offenders, and Texas Gov. Rick Perry deemed passage of a child sex offender bill a legislative emergency.

Texas' version would make it the sixth state to allow some child sex offenders to be sentenced to death.

Critics have questioned whether the death penalty is constitutional in cases where the victim does not die. In 1977, the U.S. Supreme Court threw out the death penalty in a Georgia rape case. Louisiana has one inmate on death row in a child sex crime, but the case is still subject to appeals in state and federal courts.

Sen. Rodney Ellis, D-Houston, the only dissenter in the 30-1 vote, questioned whether the state should expand death row at a time when post-conviction DNA testing has exonerated people who went to prison for crimes they did not commit.

Just two weeks ago, the Senate hosted two men who served 27 years in prison for sexual assault but were later cleared by DNA testing.

"All of us have to make tough choices, but at some point we have to decide, where do we draw the line on something that's politically right but morally wrong," Ellis said. "I'm for the death penalty, but I think it would be nice if we had a system where we got the right one."

The Texas House passed a different version of Jessica's Law last month that also includes the death penalty in some child sex cases.

The House bill allows broader use of the death penalty for two convictions of a newly classified crime, "continuous sexual abuse of a young child," defined as more than one sex act committed against a victim younger than 14 over a period of 30 days or more.

The Senate bill creates the same crime but would carry a sentence of up to life in prison after a second offense.

Victim advocates have warned that the death penalty could do more harm than good if it leads perpetrators to kill victims who may be the only witness to the crime.

They also warn that long minimum sentences could make it harder for prosecutors to get victims to cooperate if the perpetrator is a family member. Most sex crimes against children are committed by family members or friends, victim advocates say.

A statement issued by the Texas Association Against Sexual Assault said the longer sentences are unlikely to serve as a deterrent against sex crimes.

"In reality, sex offenders are some of the most manipulative, intelligent and predatory of all violent criminals. Harsher punishments will not prevent Texas children, men or women from falling victim to sexual violence," the group said, adding that lawmakers should spend more money on victims services. "The Legislature's work on sexual violence is not complete."]]> Race riot lawsuit to be subject of bill, hearing http://www.yourlawyer.com/articles/read/12795 Sat, 21 Apr 2007 00:00:00 -0700 http://www.yourlawyer.com/articles/read/12795
Michigan Congressman John Conyers Junior plans to introduce on Monday a bill that would extend the statute of limitations on the lawsuit filed against the city of Tulsa and the state of Oklahoma. Conyers chairs the House Judiciary Committee.

A federal judge dismissed the survivors' lawsuit in 2004, stating the statute of limitations had expired 80 years earlier.

According to the Tulsa World's Washington bureau, a House subcommittee will hold a hearing Tuesday on the proposed Tulsa-Greenwood Riot and Accountability Act of 2007.

Conyers and subcommittee chairman Jerrold Nadler of New York say the riot is worthy of congressional attention because evidence suggests governmental officials deputized and armed the mob and that the National Guard joined in the destruction.

Tulsa Mayor Kathy Taylor's couldn't be reached for comment. A spokesman for Governor Brad Henry declined comment, saying the office hadn't been notified about the legislation.]]> Court: Employees must be paid for denied lunch breaks http://www.yourlawyer.com/articles/read/12796 Wed, 18 Apr 2007 00:00:00 -0700 http://www.yourlawyer.com/articles/read/12796
The unanimous ruling in a San Francisco case answered a much-debated issue: should employers be fined for unpaid lunches or compensate employees? The closely watched ruling, considered one of the most important cases this year by Cal Chamber, will affect several class-action lawsuits in the state and expand the period for employees to file complaints.
 
With the ruling Monday, employees who were forced to work during their lunch breaks can seek compensation over a maximum three-year period and have three years to file a complaint against their employer.

Companies that deny employees a 30-minute lunch break after five hours of work must pay one hour's wage to workers, according to state labor laws established in 2000. Employers must also allow employees a 10-minute break after four hours of work.

John Paul Murphy, a store manager for Kenneth Cole Productions Inc. in San Francisco, was awarded $64,000 in damages for being forced to work during his lunch and rest breaks, and work without overtime from 2000 to 2002.]]> Malpractice limit overturned http://www.yourlawyer.com/articles/read/12698 Thu, 22 Mar 2007 00:00:00 -0700 http://www.yourlawyer.com/articles/read/12698
The ruling extends the window in which parents can file lawsuits from one year up to the child's 19th birthday.

The unanimous decision was based on claims brought by the parents of 17-year-old Tara Fehrenbach of Loveland.

For parents of a child injured by medical negligence, the decision means they will not be put in position of filing a lawsuit within a year of the injury when the impact of the injury is not fully known.

Under the old system, parents had one year from the time of injury to file a suit, while the child had until his or her 19th birthday to sue.

For doctors, the decision means they are exposed longer to potential lawsuits, but it might lessen litigation because both the parents' and child's claims likely will come at the same time.

"Rarely do we get the opportunity to change Ohio law for the better, but the Fehrenbach v. O'Malley case released today ... finally recognizes how goofy it was that a parent had to bring suit before the child's statute of limitations had run (out)," said First District Court of Appeals Judge Sylvia Hendon, who wrote the original decision.

The Fehrenbachs' lawyer, said the decision is a victory for both sides of the litigation. "It eliminates the duplication and possibility of contradictory results," he said.

Tara suffered permanent injuries as a result of bacterial meningitis that she contracted as an infant in 1990.

The Fehrenbachs' lawyer, said because the meningitis wasn't caught quickly enough, vessels in her brain that drain spinal fluid were destroyed. They were replaced by a shunt and tube, but they can clog. A clog not caught within hours can be deadly.

The situation is a constant worry for the family because the only symptoms of a clog are a headache and fatigue, Metz said.

Tara's parents, Gina and Thomas Fehrenbach, filed a lawsuit on behalf of Tara and themselves in 1997 against her pediatrician, Kathryn O'Malley, and O'Malley's employer, Suburban Pediatric Associates. They claimed negligence because the defendants failed to diagnose and treat the meningitis that led to Tara's health problems.

The Fehrenbachs' case was dismissed because the statute of limitations had run out.

The couple appealed and the 1st District Court of Appeals reinstated the claim last year.

The Ohio Supreme Court agreed Wednesday.

As for Tara, she lost her case in Hamilton County Common Pleas Court. She appealed the jury's decision and 1st District determined the case should be retried because the defendant's lawyer made inappropriate comments during the trial.

No date has been set for the retrial.
]]> False arrest lawsuit may be too late http://www.yourlawyer.com/articles/read/12240 Tue, 07 Nov 2006 00:00:00 -0800 http://www.yourlawyer.com/articles/read/12240
Several Supreme Court justices indicated Monday they are inclined to agree with lower court rulings that Wallace missed a deadline by waiting until 2003 to sue the Chicago police officers who arrested him illegally in 1994.

Wallace was freed from prison in 2002, after Illinois courts ruled his arrest was illegal, reversed his murder conviction and caused prosecutors to drop charges against him. He had been in custody since shortly after John Handy was shot to death in 1994, when Wallace was 15.

He had two years in which to file his civil rights lawsuit. The question before the justices is whether the two-year clock began running when Wallace was arrested in 1994, when he was released from custody in 2002, or at some point in between.

The 7th U.S. Circuit Court of Appeals said Wallace should have taken some action in the two years after his arrest. In similar cases in other parts of the country, appeals courts have said false arrest claims can't be filed until convictions are nullified.

Wallace's attorney, said the court would compound his client's injury by telling him the deadline, or statute of limitations, had expired. "It's just tough. You're seized for 8 1/2 years and you can't go to state court and you can't go to federal court," Flaxman said.

But the Supreme Court is a stickler for deadlines, and several justices said the claim should have been filed closer to the arrest.

The deadline serves several interests, including peace of mind of the police officers who otherwise would not know for years whether they would be sued, Chief Justice John Roberts said.

A ruling is expected before July.]]> Family of teenager who died after attack at roller rink files lawsuit http://www.yourlawyer.com/articles/read/12241 Sat, 04 Nov 2006 00:00:00 -0800 http://www.yourlawyer.com/articles/read/12241
Royce, 17, died Nov. 8 of cardiac arrhythmia triggered by a seizure after he was assaulted just after midnight at a cheerleading fundraiser at Champ's Manslick Rollerdrome.

The lawsuit, filed Thursday in Jefferson Circuit Court by Tanya and Royce Robinson Sr., names the rink, the Central High School Cheerleading Booster Club and Corey Thompson, the teen charged with manslaughter in Robinson's death.

Thompson's trial ended in a mistrial in August; a retrial is scheduled next month.

The lawsuit claims that the booster club was negligent in organizing the fundraiser and that it and the roller rink failed to provide adequate security and crowd control.

An attorney for the Robinson family, said the rink was packed with children the night Royce died, with little adult supervision.

"There weren't enough eyeballs on those kids," he said.

Claims made in a lawsuit give only one side of the case. A call to the rink was not returned.

The lawsuit includes several unnamed parties, among them the Central High School administrator responsible for the Booster Club. Jefferson County Public Schools does not comment on pending litigation, spokeswoman Lauren Roberts said.

The lawsuit claims Royce was "intentionally and unexpectedly assaulted and battered" by Thompson "without any provocation."

The Robinsons' attorney said the lawsuit was filed now because the one-year statute of limitations was approaching.

The suit seeks a jury trial and punitive damages.]]> Miss. Supreme Court to hear lead paint case http://www.yourlawyer.com/articles/read/12114 Mon, 04 Sep 2006 00:00:00 -0700 http://www.yourlawyer.com/articles/read/12114
The suit was filed in 2000 in Jefferson County Circuit Court by Shermeker Pollard of Fayette on behalf of herself and her son, Trellvion Gaines, who was then 9.

The issue before the Supreme Court is whether Trellvion and Pollard waited too long to file their lawsuit. There is no timetable for the justices to decide the case.

However, their decision could affect other cases involving underage plaintiffs, said an attorney who represents Pollard and Gaines.

"This case is important because it will determine how the courts will apply the minor savings statute, and when the statute will run against the minor," the plantiffs attorney said.

A trial judge ruled in favor of the Cleveland, Ohio-based paint manufacturer in June 2003.

Sherwin Williams contended that Pollard knew about Trellvion's alleged injuries in 1994 and had only until 1997 to pursue the lawsuit under Mississippi's statute of limitations.

The state Court of Appeals upheld the lower court decision in 2005, siding with the paint manufacturer.

"They indicated that the mother had learned that Trellvion had been exposed to lead paint in 1994 when one of his elevated blood level tests was taken. The mother would have had three years to file her individual claim from the date she knew she had injury," Porter said of the appeals court ruling.

However, the plantiffs attorney believes the statute of limitation still covers Trellvion.

"Generally speaking, you have three years from the date that a guardian was appointed. In this case, his mother was appointed guardian on the same date that the lawsuit was filed," Porter said.

The statute of limitation issue is not one lawyers in other states often face when litigating lead poisoning cases, said one Boston attorney, who has argued several cases against the paint manufacturing industry.

"When it comes to kids in most states, in particular in the states in which I work, the statute doesn't begin to run until the child reaches the age of maturity," the Boston attorney said.

In the Pollard lawsuit, the plaintiffs allege Trellvion ingested lead paint chips while living in a house that had been occupied by Pollard's mother, Doris Gaines, since the 1970s.

Lead paint was banned in the United States in 1978, but can be found in some older homes and rundown housing.

The lawsuit alleged that "Trellvion was exposed to lead dust, chips and other debris which resulted from the sanding, scraping and other removal of lead paint from the house, which occurred based on the required procedure for application of Sherwin Williams' non-lead based paint."

The suit also alleged that Trellvion became sick from his exposure to the lead paint and that Pollard suffered mental anguish in addition to the medical expenses for the child.
]]> House votes on easing statute of limitations on sex abuse http://www.yourlawyer.com/articles/read/12037 Sun, 30 Jul 2006 00:00:00 -0700 http://www.yourlawyer.com/articles/read/12037 Boston House lawmakers have voted to extend the statute of limitations for victims of child sexual abuse by 12 years.

Under the bill, the statute of limitations would be increased to 27 years from its current 15. That gives childhood victims until they are 43 years old to report sexual crimes.

Minority Leader Brad Jones hailed the bill as a "solid step" toward better protecting Massachusetts residents, specifically children, from sex offenders.

Opponents had wanted to eliminate the statute of limitations altogether saying sometimes it takes decades for victims to come forward.

The bill approved in the House would also force convicted sex offenders to register with the state's Sex Offender Registry Board before they are released from prison.

]]> Senate votes to extend statute of limitations http://www.yourlawyer.com/articles/read/12029 Fri, 28 Jul 2006 00:00:00 -0700 http://www.yourlawyer.com/articles/read/12029
The Senate approved a bill passed by the House late Wednesday that would increase the statute of limitations from 15 to 27 years after the accusers' 16th birthday, giving them until they are 43 to report sexual crimes.

The House bill would also require sex offenders to register at least 10 days before they leave prison, verify that they are living in a homeless shelter within 45 days of release, and, among other provisions, require the most dangerous sex offenders who fail to register to submit to lifetime community parole supervision.

``We feel that we've passed the most sweeping sex offender legislation since the inception of the sex offender registry," said Representative Tom Golden, a Lowell Democrat who has been one of the bill's main supporters. ``We're closing loopholes, increasing penalties, and expanding the opportunities for prosecutions. It's all done to protect our citizens from these heinous crimes."

The Senate's version of the bill requires the state to establish nursing homes and other facilities for the most dangerous sex offenders. It requires sex offenders to wear global positioning satellite devices while on probation.

It would also delay the clock on the statute of limitations if the accuser does not come forward because of threats of physical violence, physical or psychological injury caused by the abuse, or any period where the defendant prevents witnesses or evidence from being available.

Kyle Sullivan, a spokesman for House Speaker Salvatore F. DiMasi, said he expects the legislation to be sent to Governor Mitt Romney by Monday.

Eric Fehrnstrom, Romney's spokesman, said the governor wants to sign a bill that would extend the statute of limitations.

``The administration's preference is to lift the statute of limitations entirely for victims of child sexual abuse, but this represents progress, and we look forward to receiving the bill," said Fehrnstrom.

Ed Saunders, executive director of the Massachusetts Catholic Conference, a lobbying organization that represents the Archdiocese of Boston, said the state's bishops support extending the statute of limitations.

He also said they would support delaying the statute of limitations as proposed by the Senate.

But he said they do not want to completely discard the statute of limitations.

``I think by eradicating the statute of limitations, you run into some due process issues," Saunders said. ``The accused must have the right to properly defend themselves."

Defense attorneys who represent accusers said the proposed legislation does not go far enough.

Carmen L. Durso, a Boston-based attorney who has represented more than 200 alleged victims of child sex abuse, said the bill should lengthen the statute of limitations for children 14 and older who have been sexually assaulted but not raped and for children age 16 and older who have been raped.

``The Legislature has made a very tentative step in the right direction, but in doing so, they have eliminated a group of people they have protected in the past," Durso said. ``That's a huge error, which I hope they will correct, and correct quickly."

Suffolk District Attorney Daniel F. Conley, who has long pushed for such legislation, said he will continue to push the Legislature to scrap the statute of limitations for child sex abuse.

``Far too often, prosecutors in my office and across the state have met with grown men and women who needed decades to learn that the abuse and exploitation they suffered as children was not their fault, only to find that the legal clock had stopped ticking years earlier and that their abusers had avoided accountability for their crimes," he said.

``It is because those victims now have, if not all the time we would hope, then at least more time than they have previously had, that I believe this compromise was good and worthwhile," Conley said.
]]> DNA match results in arrest for old rape, torture case http://www.yourlawyer.com/articles/read/11988 Mon, 17 Jul 2006 00:00:00 -0700 http://www.yourlawyer.com/articles/read/11988
James Dwayne Smith, 45, is already serving time at the San Luis Obispo Men's Colony for a rape conviction in Southern California. He has been extradited to Alameda County to face a torture charge for a 1991 case in which a 13-year-old girl was kidnapped, raped and tortured in unincorporated Hayward, according to a sheriff's news release.

Smith will not be charged for the kidnapping and rape in that case because the statute of limitations has passed. There is a 10-year time limit on filing sex crimes and a six-year limit on kidnapping charges, said Sheriff's Sgt. Scott Dudek.

A match with the three rape cases occurred on March, 15 years after the crimes occurred.

There is no time limit, however, on prosecuting torture cases.

Smith's DNA also was a match with evidence from a Dec. 31, 1990 rape case in Castro Valley and that from a Jan. 23, 1991 case in Berkeley. Investigators cannot seek charges on those cases because of the statute of limitations has expired on both.

Dudek said the victims said they're happy someone already in prison is a suspect, but they think it may be a time to reexamine the statue of limitations for heinous crimes.

Dudek couldn't agree more.

"We have the scientific technology to make biological DNA hits on these cases. What's more serious than being raped and kidnapped?" Dudek said.

Smith may be whom the media dubbed the "Holiday Rapist," who in 1990 and 1991 raped at least five victims in the Bay Area on or near holidays. Dudek said. The rapist would grab his victims as they were walking and pull them into his van

Smith was in the Bay Area at the time, working at a local grocery store chain, Dudek said.

He was scheduled to be released in December and investigators are glad to get him when they did..

"We're very happy that he doesn't totally walk in December," Dudek said.
]]> Group works to abolish sex-crime statute http://www.yourlawyer.com/articles/read/11985 Sun, 16 Jul 2006 00:00:00 -0700 http://www.yourlawyer.com/articles/read/11985
The statute of limitations gives victims of childhood sexual abuse 10 years after their 18th birthday or until they turn 28 to report the abuse.

But Avila now 35 and, according to law, too late to file criminal charges came forward to Mission police and the media barely three weeks ago, saying Vela sexually assaulted him when he was a boy.

“He tried to have sexual intercourse with me,” he said at the Mission Police Department, recalling a trip to San Antonio he took with Vela and two other students when he was around 12. Avila said he slept in the same bed as Vela in a hotel room.

“I pretended that I was asleep. I was hoping that it would end. I could feel flashes. He was taking pictures of me.”

After Avila’s statement to police, though, there was little police could do but console him.

Mission police cannot file charges against Vela based on Avila’s statements simply because of Avila’s age though Vela is facing four felony charges stemming from four other former and current scouts.

Their Voice, a statewide organization founded by sisters Rhonda Kuykendall and Traci Freeman, heard about Avila, and they are reaching out to him, hoping to turn his support system into theirs.

The Houston-area group has two lofty goals: to abolish the statute of limitations of child sexual assaults and establish life without parole eligibility for repeat child sex offenders.

The sisters were able to persuade state House Rep. Debbie Riddle and state Sen. Rodney Ellis, both of Houston, to sponsor bills seeking to abolish the statute during the last legislative session; however, both bills died while still at committee level.

In 2007, they plan to work even harder. And Avila, who said he is interested in the organization, could be a big help.

There are several reasons why victims of childhood sexual assault wait to come forward, Kuykendall said.

It is a mixture of shame, guilt, embarrassment, self-loathing and peer pressure.

“It’s hard for a child,” Avila said. “We’re embarrassed and ashamed and sometimes scared. It’s hard. Unless you’ve been a victim, you don’t understand how hard it is.”

The assistant restaurant manager, who now lives in San Antonio, said he waited more than 20 years to come forward because he never wanted to think about the things Vela allegedly did to him. But when the other former Boy Scouts told their stories, he said, “it made it real again, it brought it up again.”

“I felt 14 again,” he said.

“I wondered about it,” Avila said, regarding the statute of limitations. But he said he didn’t know before he reported the incident to Mission police that it had passed.

Freeman, who is now 31 and living in the Houston area, explained how horrible events that happened so long ago have impacted her life.

“It murdered the child I could have been,” she concluded at the end of an essay she wrote to help herself cope.

Freeman was five. Kuykendall was 10.

A man named Mark Phillip Turner saw them swimming at an apartment complex pool one day in Pasadena. He told the girls’ parents he could turn them into models. But modeling was just a cover for the secret child pornography ring the sisters say Turner ran. Kuykendall, as the older sibling, was allegedly physically assaulted, too.

Freeman turned to drugs, alcohol and eventually to a suicide attempt to erase the pain she says Turner, a previously convicted sex offender, inflicted on her. Kuykendall became an introvert and overachiever.

Both sisters kept the pain inside, but Kuykendall said her breaking point finally came when her own children started to approach the age she was when she experienced the abuse.

Kuykendall decided to come forward and persuaded her sister to do so, too. But when they told police their story two years ago, both women, at ages 29 and 34, were too old.

Coming forward at such a late age is rare, said McAllen Police Sgt. Michael Zellers, who has worked four years in the Youth Services Unit. He recalls one or two cases of childhood sexual assault that involved expired statute of limitations in hundreds he has worked.

The statute is “reasonable,” he said, because it covers most people. “But unfortunately, there are some cases that slip through.”

Usually if someone comes forward so late it is because they have heard that other people are bringing cases against the same person, as in the Vela case, he said. If someone molests one child, the likelihood is that they have molested others.

“A lot of times, kids will bury things in the back of their minds,” Zellers said.

Boys and men are especially reluctant to come forward because of peer pressure and what society may think of them, he said. Girls, more likely to talk about their feelings, generally come forward at an earlier age.

Opponents of the idea to abolish the statute feel the sisters are trying to drastically increase case loads, Kuykendall said.

Organizations like the American Civil Liberties Union and the Criminal Defense Attorney Association say memories fade and evidence is lost.

“But if there is evidence, the DA (district attorney) should decide if the case can be prosecuted, not some law on the books,” Kuykendall said she believes.

Seventeen states do not have a statute of limitations for certain sexual crimes against children.

The federal PROTECT Act of 2003 President Bush signed also allows for prosecuting child abduction and sex crimes throughout an alleged victim’s entire life.

Avila said he supports the abolishment of Texas’ statute of limitations on child sexual assault.

He feels the statute tells these children, who are now adults, that what happened to them is not worth looking into anymore. It sends the wrong message, he said.

Avila has a 13-year-old son and 12-year-old daughter. “The last thing I would want is for something like this to happen to them,” he said. “Somebody needs to fight it.

“(I came) forward for the children of today,” he said. “If more people came forward, we would make a change.”]]> Insurers told to extend deadline http://www.yourlawyer.com/articles/read/11973 Wed, 12 Jul 2006 00:00:00 -0700 http://www.yourlawyer.com/articles/read/11973
 If insurers don't grant the extension by Aug. 1, Donelon said, he will use all means necessary as the state's chief insurance regulator to force them to do it, including possible fines and revocation of the insurance companies' certificates of authority to operate in Louisiana. The action comes a month after Donelon asked the companies to extend the deadlines voluntarily. Only a few companies did so.

Insurance companies had little time to react to the afternoon announcement.

State Farm, the state's largest homeowners insurer, did not return phone calls seeking comment. Allstate Insurance Co., the state's second-largest property insurer, said it would "consider any requests made by the Department of Insurance."

Farm Bureau of Louisiana, the state's fifth-largest insurer, said it would comply with the request, but that it doesn't think the lawsuit issue is relevant to its customers because most of the company's claims are settled. St. Paul Travelers said it had not yet made a decision.

Unlike other Gulf Coast states, which allow people as long as six years to file lawsuits over insurance claims, Louisiana gives its residents only one year to file in court to resolve disputes. Trial lawyers and the state Department of Insurance say they believe Louisiana's statute of limitations is the shortest in the country.

"I think this is reasonable, and under the circumstances it is justified," Donelon said. "I'm sure the industry will not be happy with my order, but I think consumers in our state are deserving of this protection."

Many property owners were kept from their homes and businesses by flooding and mandatory evacuation orders after Hurricane Katrina, and overwhelmed insurance companies were delayed in starting the adjustment process. As a result, many homeowners are still too early in the process to know whether the insurance settlements they have received are adequate to repair damage to their homes.

Policyholders can pursue their claims after the one-year anniversary of the storm, but not in court. Consumer advocates say the end of the statute of limitations effectively ends insurance company payouts, because the companies know homeowners have no recourse. Insurance industry groups have said carriers will continue to work in good faith with their policyholders, but acknowledged that the deadline is significant.

Court ruling requested

Donelon's directive could sidestep the constitutional questions that have arisen over two bills that passed the state Legislature last month and were signed into law by Gov. Kathleen Blanco.

House Bill 1302, sponsored by Rep. Tim Burns, R-Mandeville, and House Bill 1289, sponsored by Rep. Arthur Morrell, D-New Orleans, would allow property owners two years to file lawsuits over property damage claims as a result of Hurricanes Katrina and Rita. But because the bills would be retroactive, and thus possibly unconstitutional, they instruct Attorney General Charles Foti to get a Supreme Court ruling on the laws before the Aug. 29 anniversary of Katrina.

Foti filed a petition for declaratory judgment Monday in the 19th Judicial District Court in Baton Rouge.

But Donelon said he was afraid the bills wouldn't make it through the court system in time, so on Tuesday he directed insurance companies to extend their statutes of limitations voluntarily.

"I'm ordering them to do it," Donelon said. "That is the only secure and definite way that consumers can be protected."

Because the insurance companies would be voluntarily changing their contracts with the people and businesses they insure, Donelon said, he believes his directive will avoid any constitutionality questions.

Voluntary approach

In May, the American Insurance Association bristled at the legislative interference and said it preferred to let insurance companies provide extensions to policyholders voluntarily.

On June 5, Donelon asked insurance companies to voluntarily extend the lawsuit deadline to two years. Of the more than 100 companies that write property insurance in the state, Donelon had few takers.

The Louisiana Citizens Property Insurance Corp., the state-sponsored insurer of last resort and the state's third-largest homeowners insurance carrier, had previously extended its deadline to two years for hurricane claims. On Tuesday, four other companies: Fidelity National Insurance Co., the American Modern Insurance Group, the Assurant Group and the Balboa Insurance Group announced they would follow suit.

Donelon said he was "disappointed" with the response, but insurers told him they were leery of setting a precedent by changing their terms with policyholders.

Donelon said he has had no official word from major insurers, but that he is optimistic that it is in companies' best interests to comply with an order from the state's chief insurance regulator.

"I expect that most insurers will comply," Donelon said.

Donelon said consumers should monitor the Insurance Department's Web site, www.ldi.state.la.us, for a list of insurance companies that have agreed to extend the deadline, or call 1 (800) 259-5300 for updates. If consumers don't find their insurance carrier on the Web site by Aug. 1, Donelon said, it's time to hire an attorney.

"To the extent that they don't come by Aug. 1, my advice will be, if you're insured by ABC Insurance Co., go get a lawyer," Donelon said.

Robert E. Kleinpeter, president of the Louisiana Trial Lawyers Association, said that because insurers posted record profits in 2005, and because the Insurance Department cut them some slack in adjusting claims in a timely fashion because they had trouble mobilizing adjusters and accessing properties, it's only fair that they offer the same consideration to their customers.

"If they needed more time, then their policyholders need more time," said Kleinpeter, adding that extending the deadline will actually deter lawsuits because it will give people more time to make repairs and settle their claims without having to file suit to preserve their rights. "This is a big issue."
]]> Abuse extension bill clears panel http://www.yourlawyer.com/articles/read/11960 Thu, 06 Jul 2006 00:00:00 -0700 http://www.yourlawyer.com/articles/read/11960
The Judiciary Committee voted on Friday to extend the statute of limitations for childhood victims of sexual abuse from the current 15 years to 25 years. Because the deadline for reporting the crime starts when the child reaches age 16, victims would have until the age of 41 to report sexual abuse crimes.

It was the statute of limitation that stopped any consideration of prosecuting Bishop Thomas L. Dupre, the former bishop of the Roman Catholic Diocese of Springfield, after a grand jury indicted him on two counts of child rape in 2004, according to Hampden County District Attorney William M. Bennett.

The district attorney said the statute was six years when the crimes were alleged to have started in 1976.

The proposed legislation would cover serious crimes such as rape and some types of sexual assault. But it would not include civil cases or incest.

Steven A. Krueger of the Coalition to Reform Sexual Abuse Laws in Massachusetts said the committee vote is a necessary first step, but is insufficient.

"It's only a partial measure that represents some tolerance for crimes of sexual abuse to children," he said.

Attorney General Thomas F. Reilly criticized the decision by the Judiciary Committee. He also supported eliminating the statute of limitations.

Rep. Eugene L. O'Flaherty, D-Chelsea, co-chairman of the Judiciary Committee, said the statutes of limitations are important.

"They're there to be sure that evidence that is brought into court is credible, that witnesses are credible and that significant time has not elapsed whereby memories and the like have faded," he said.

The full House and Senate are expected to vote on the bill by the Judiciary Committee. Legislators could amend it. The state's four Catholic bishops praised the recommendation by the Judiciary Committee.

"The commonwealth's law enforcement officials should be given the tools they need to remove sexual predators from our communities," said the prelates' statement.

The clergy sexual abuse scandal was key in the push to raise the statute of limitations.
]]> Legislators to consider compromise on sex abuse bill http://www.yourlawyer.com/articles/read/11955 Tue, 04 Jul 2006 00:00:00 -0700 http://www.yourlawyer.com/articles/read/11955
The proposal, endorsed by the Joint Committee on the Judiciary where it had languished, extends the current statute of limitations by 10 years, giving childhood victims until they are 41 years old to report sexual crimes. But it does not abolish the statute all together as proponents had wanted, and as the legislation moves to the House, it is drawing fire.

Eliminating statutes of limitations for sex crimes has been a simmering issue for years. Opponents say limitations minimize the risk of people being wrongly convicted many years later, when evidence is scarce and memories have faded. Advocates say the limits hinder justice for victims of sexual abuse.

State Representative Eugene L. O'Flaherty, the House chairman for the Joint Committee on the Judiciary, said that through testimony, he learned most victims come to terms with childhood abuse between ages 28 and 34. Democrat O'Flaherty, who was previously leaning toward a 5-year extension, said giving victims 10 more years would ``absolutely cover the bulk of the individuals as was represented to us."

But advocates pushing for elimination of the statute of limitations in Massachusetts said the committee's proposal was too weak, and they were joined by Attorney General Thomas F. Reilly, a Democratic candidate for governor who said on Friday lawmakers should ``eliminate the statute of limitations."

The bill does not affect crimes such as incest, civil cases, and crimes against children older than 14. Under current law, sexual crimes cannot be prosecuted after a certain number of years have elapsed ranging from six years for crimes such as taking sexually explicit pictures of a child, to 15 years for the most severe crimes, including rape. The joint committee proposal would extend the limitation only for the most severe crimes.

``While the bill is necessary, it is inefficient," said Jetta Bernier , executive director of Massachusetts Citizens for Children . ``More work needs to be done."

Across the country, advocacy groups have been fighting to repeal state laws that limit the time when sexual abuse crimes can be prosecuted.

After the clergy sexual abuse crisis in the Catholic Church, more supporters emerged to wage war on the sexual abuse of children, which the American Medical Association labeled ``a silent, violent epidemic." New York, Delaware, Pennsylvania, and Hawaii all have pending legislation that would extend the time limits for sex abuse cases, according to the Survivors Network of Those Abused by Priests .

``It's happening now because it's long overdue," said David Clohessy , national director of the advocacy group based in Chicago. ``I think the public and the politicians understand now that the reason thousands of Catholic clergy molested tens of thousands of kids is largely due to the archaic and arbitrary statute of limitations."

Massachusetts' legislative session ends July 31, and for the past few weeks members of the Coalition to Reform Sex Abuse Laws have intensified lobbying efforts, airing radio ads, passing out leaflets on city streets, and urging victims to contact their legislators.

Advocates have argued that because of shame and intimidation, victims often take many years before reporting sexual crimes. Some supporters have complained that defense lawyers on Beacon Hill have ``stonewalled" legislation. Many defense lawyers have opposed such measures, saying the crimes become much harder to defend as time passes.

``I don't view anything I do as being protective of the defense bar," said O'Flaherty, an attorney. ``I try to use my background and my experience as a lawyer to make a fair recommendation. We're supposed to examine these proposals, not just rubber stamp them."

Before the session ends, House lawmakers will debate and vote on the committee's proposal, which is subject to amendments. The Massachusetts Catholic Conference supports the proposed 10-year extension. ``We, the Roman Catholic Bishops in Massachusetts, again recognize and apologize for the suffering that has occurred for survivors and their families," according to the Bishops' statement.

``The Catholic Church, nationally and locally, has made it a priority to create safe environments in our churches and schools and to continue to provide support to survivors and to all people who have suffered as a result of sexual abuse."]]> Because time wont heal all: State must end statute of limitations on child sex abuse http://www.yourlawyer.com/articles/read/11931 Fri, 30 Jun 2006 00:00:00 -0700 http://www.yourlawyer.com/articles/read/11931
Decades pass before many sexual abuse survivors can even begin to confront the trauma they suffered as a child. Reasons for these delays vary and underscore why most victims cannot report the abuse within current legal time frames. For some, the abuser was a parent, relative or other trusted adult. Other victims blamed themselves and feared retribution if the abuse was revealed. For many, the trauma itself prevents them from coming forward earlier. As adults, victims may not even connect the assault to its long-lasting impact until they seek therapeutic help years later. If evidence is sufficient to prove criminal or civil liability, the mere passage of time should not foreclose sexual assault victims from seeking justice.

Abolition of the civil statute of limitations must logically accompany repeal of the criminal statute. To deny a victim the right to hold financially accountable the people responsible for the abuse protects no one but the abuser and those who enabled the abuse through negligence.
    
Massachusetts is out of step with the country and the region. Thirty-one states have no criminal statutes of limitation for certain sex offenses or abuse of children. Vermont, Maine and Rhode Island have eliminated statutes of limitations. Connecticut has eliminated them for Class A felony sexual assaults and through the victim’s 48th birthday. New Hampshire extends time limits until the victim reaches age 40. Clearly, Massachusetts is out of the mainstream and its dismal legal protection of children may be one of the many reasons child sex abuse has run rampant here.
    
Some raise the specter of “constitutional issues” as a reason to do nothing even though the Massachusetts legislation is narrowly drawn and contains no statutory reform that has not already survived judicial review elsewhere. States that strengthened their laws to protect children have demonstrated that these changes can be constitutional.
    
Some lawmakers support an “incremental approach” by excluding victims of incest, children molested after age 13 and victims who were not raped but subjected to other illegal touching or non-touching offenses. These proposals are based on false assumptions that younger children are more traumatized than teens; a child molested by a stranger is more traumatized than if he or she is molested by a family member; and children subjected to sexual penetration are more traumatized than those that were fondled or forced to pose for pornographic pictures.
    
Studies show that the trauma suffered by victims is not correlated to the frequency or brutality of the abuse experienced but rather to the length of time the abuse was concealed. Incest victims are among those who need our protection the most; and the more we learn about teen victims the better we understand the obstacles to their coming forward. Piecemeal legislation will not provide sufficient safeguards. If we are serious about stopping abuse, how can we create a caste system of victims where some abused children are worthy of protection, but others are not?
    
Every day that the Legislature fails to act, it fails to protect another group of children from the horrors of abuse. More than 130 state legislators support this legislation, along with the lieutenant governor, attorney general, the Governor’s Commission on Sexual and Domestic Violence, the Massachusetts Chiefs of Police Association, numerous district attorneys and a long list of child advocacy organizations. So what is the Legislature waiting for?
    
Predators are beating the clock under our current laws every day. Now in these final days of the legislative session, the countdown is on for legislators, too. Will they beat the clock and fail once gain to pass meaningful legislation to protect children?
]]> State Removes Statute Of Limitations For Rape Cases http://www.yourlawyer.com/articles/read/11940 Thu, 29 Jun 2006 00:00:00 -0700 http://www.yourlawyer.com/articles/read/11940
Until now, unless charges of rape were brought within five years, there could be no prosecution. When the new law goes into effect, there will be no time limit in New York State for apprehending, arresting and prosecuting rape in the first degree. This is already the case with murder charges.

While efforts to expand or end the statute are not new, the issue catapulted into public awareness and became the subject of intense lobbying during the 2005 Manhattan trial of People v. Fletcher Worrell. In 1973, Worrell was indicted on charges that he climbed through a bedroom window and raped Kathleen Ham, then 26. Yet, he was on trial more than three decades later.

Worrell first had been tried 33 years ago, in the same courthouse. But that trial resulted in a hung or undecided jury, and Worrell then was released on bail. He jumped bail and vanished. The presiding judge issued a bench warrant for Worrell's arrest, and he became a fugitive.

In this particular case, the commencement of the first prosecution tolled or stopped the statute of limitations. Even if the first trial had not taken place, Worrell’s fugitive status, once charges were brought, would have kept the prosecution viable.

Worrell was rearrested in Georgia when he tried to purchase a gun. The required background check revealed the New York warrant, and he was extradited to New York to face the original charges.

In the meantime, damaging DNA evidence implicating Worrell was found. The evidence was not useful 33 years ago, as the science of DNA had not yet developed for forensic purposes.

Even though the statute of limitations did not stop prosecution in the Worrell case, the trial illustrated that someone accused of rape, but arrested six after years after the assault would be free from prosecution under the five-year statute of limitations. This would be the case even though the use of DNA could link a suspect to a crime such as rape indefinitely.

Statutes of limitations in both criminal and civil law (only the criminal law is affected by the new legislation) refer to the period of time during which an action or prosecution can be brought. Exceeding the statute of limitations automatically ends a claim. The purpose of statutes of limitations is closure. Parties, victims, plaintiffs cannot use the courts without a time frame. Without one, prosecutors and police would have to keep their files and cases active indefinitely.

There have been exceptions to the statute of limitations for certain crimes those considered the most serious, such as murder, arson and kidnapping but rape was never included in this group of crimes.

Until the women's liberation movement of the late 1960s and early 1970s focused on violence against women and made the issue of rape a top priority, prosecution of rape cases was extraordinarily difficult for the victim. The culture and beliefs surrounding rape made legislators, prosecutors, police, judges and jurors, believe that, when a rape occurred, it must have been the woman's fault; she must have consented or "wanted it." The law also required corroboration by another witness or other evidence that the victim tried to fight off the attacker. The victim's past sexual history and reputation were fair game for cross-examination. And if the assault did not occur between strangers, it was not viewed as rape. What is now known as "date rape" was not acknowledged, and certainly it was not accepted that a woman could be raped by her husband or a prostitute by a "John."

In the 1970s, this began to change, and it became easier to successfully prosecute rape. But in New York, the statute of limitations remained five years.

Susan Brownmiller, author of “Against Our Will: Men, Women and Rape,” which is considered the classic work on the subject of rape, says the change in the time limit should have happened in the 1970s and finally occurred because of an “incredibly active” lobbying effort by the National Organization for Women. Ending the statute of limitations, she says is, “more important now because of DNA. You can eventually find the guy who couldn't be found by other means. "

But criminal defense lawyers, who do not want their clients exposed to arrest, prosecution and conviction indefinitely, disagree. A criminal defense lawyer and author of “Indefensible,” says, "There has to be some finality.” He says he is “squeamish” about cases being prosecuted 20 to 25 years after the crime: “It makes it basically impossible for the defendant, because usually the defense will be ‘consent,’ and who will remember where they were, what happened? … The accused is effectively prevented from presenting a defense."

Other defense lawyers and civil libertarians are concerned about the increased collection of DNA samples and its implications, such as the use of DNA evidence many years after the fact and invasions of privacy.

New York's statute of limitations has been one of the shortest in the nation. According to NOW New York City, as of 2005, there were 690 rape cases that could not be prosecuted because of the time limit. The change in law, the group says, will "finally bring justice to some victims of rape."]]> STATUTE OF LIMITATIONS ON SEXUAL ASSAULT ELIMINATED http://www.yourlawyer.com/articles/read/11916 Fri, 23 Jun 2006 00:00:00 -0700 http://www.yourlawyer.com/articles/read/11916
"The mental trauma of sexual violence can last much longer than the physical trauma a survivor endures. Particularly with the major advances we have seen in DNA technology, perpetrators may be identified and caught after five years, and some survivors may have been unable to come forward at an earlier date due to trauma or fear of further attacks." Krueger stated.

The legislation was successful in passing because of support from all three branches of state government, the Senate, Assembly and the Governor.

Krueger went on to say, "This is one example of the good legislation our state can produce when we put aside political tit-for-tat and have a serious discussion about what kind of state we want to be and what kind of example we want to set for the rest of the country."

Unlike current law, which provided a 5-year limitation period on the criminal prosecution of crimes such as rape in the first degree, criminal sexual act in the first degree, aggravated sexual abuse in the first degree, and sexual conduct against a child in the first degree, S.8441 opens the door on the option to prosecute sex-related crimes regardless of when those crimes were committed.

“When first elected in 2002, I introduced legislation to repeal the Statute of Limitations on rape and other sexual assaults, and I am pleased that we have finally taken action on this important issue,” said Senator Krueger. "Under the old law, survivors could be traumatized twice—first by the perpetrator and then again by a legal system that provided a greater time frame for prosecuting property damage than for sexual assaults."

The legislation guarantees that survivors are granted the opportunity to pursue a civil claim against those who commit the same first-degree offense, extending the statute of limitations from one year after the commission of the sex act, to five years after the conclusion of criminal proceedings. Survivors whose right to pursue such action had expired under current law, will now be entitled to a new five-year window in which to seek relief in the civil justice system.

"While this is an important step for bringing justice to survivors of sexual assault, there is still more to do,” Krueger declared.  "We must now pass legislation that ensures that all survivors have immediate access to trained rape crisis counselors, regardless of where they live in New York State."]]> 'Top Gun' sicko guilty in '96 rapes http://www.yourlawyer.com/articles/read/11866 Tue, 13 Jun 2006 00:00:00 -0700 http://www.yourlawyer.com/articles/read/11866
Ex-con Leroy Johnson, 39, showed no emotion as the jury found him guilty of the shocking 1996 attack, which prosecutors solved after linking his DNA to genetic evidence.

The two victims wept and clapped their hands when the jury foreman read the verdict, which could send Johnson to prison for 50 years.

One juror, who refused to give his name, said the genetic evidence convinced the panel that Johnson was guilty.

The former roommates testified that Johnson was the man who forced his way into their apartment on Waverly Place on Nov. 18, 1996. He tied the women up and raped them at knifepoint - after taunting them with claims they would enjoy the attack.

Johnson was only 15 when he and a pal raped McGillis, then a young Juilliard student, at knifepoint in her apartment in 1982. The predators threatened to kill her, bombarding her with racial slurs before fleeing after someone called the police.

McGillis, who went on to star in "Top Gun," "Witness," and "The Accused," identified the rapists from mug shots. "I wanted those guys caught," she said later. "I wanted to hurt them as much as they hurt me."

After serving three years in prison for the McGillis rape, Johnson was convicted of threatening to kill former Presidents Ronald Reagan and George H.W. Bush.

Yesterday's conviction led Manhattan District Attorney Robert Morgenthau to renew his call for expanding the state's DNA database and abolishing the statute of limitations on rape.

"The Leroy Johnson case shows the power of DNA in solving cases," Morgenthau said. "It shows that rapists commit a lot of other crimes."
]]> Abused children may get more time to sue http://www.yourlawyer.com/articles/read/11788 Tue, 30 May 2006 00:00:00 -0700 http://www.yourlawyer.com/articles/read/11788
The bill, sponsored by Rep. Greg Lavelle, R-Sharpley, and Sen. Karen Peterson, D-Stanton, would extend the time from two years to six years after the abuse occurs or to six years after the abuse is discovered to be the cause of a victim's emotional or physical damage.

The bill also would give new life to claims of abuse that have been barred by Delaware's civil statute of limitations, granting a two-year window in which such claims could be filed.
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"That would be awesome," said Valerie Marek, executive director of Survivors of Abuse in Recovery, which supports the recovery of many abuse victims. "A lot of kids are threatened into keeping their mouths closed. By the time they are strong enough to confront it, it's years later and major damage has been done."

California passed a similar law, some states revised their statute of limitations, and other states are debating the issue, which gained prominence after the scandal of child sexual abuse by priests emerged nationally in 2002.

Navy Lt. Cmdr. Kenneth Whitwell urged Delaware lawmakers to change the state's statute of limitations last fall, when he filed suit claiming he was sexually abused by a priest who taught at Archmere Academy in the mid-1980s. Some of the abuse occurred during ski trips to Vermont, Whitwell said.

Delaware's statute of limitations would have barred Whitwell's suit, so it was filed in federal court to leverage the Vermont statute of limitations, which is six years past the time of the abuse or six years after the damage caused by the abuse is recognized.

"A civil window is the single most effective step we have toward preventing future abuse," Whitwell said Friday. "It exposes the predators now and it exposes people who enable the abuse, who protect those people, who shield molesters, who destroy documents. We know there are people out there who don't want this to get out into the open."

The legislation is meant to address abuse by individuals and the institutions that employ them. It does not target the Catholic Church or any other group, said Lavelle, who is Catholic.

"It's much broader than that," he said. "This impacts anyone whose charge it is to be responsible and watch over children; Boy Scouts, Girl Scouts, the YMCA, day cares, private schools."

Split support

Tony Flynn, lawyer for the Catholic Diocese of Wilmington, which includes parishes throughout Delaware and the Eastern Shore of Maryland, said the diocese generally supports changing the civil statute.

"We think whatever clock runs against a victim of sexual abuse should not begin to run until they are an adult," Flynn said. "If you create a period of time long enough, you can deal with the valid concern that victims of sexual abuse as minors have difficulty coming to grips with the abuse and its effects."

But, he said, the diocese sees problems in the "discovery approach," in which the time limit does not begin until the victim remembers the abuse or realizes that emotional or physical difficulties were the result of the abuse. And it would "vigorously oppose" any effort to revive claims already barred by the statute of limitations.

"There are a number of ways to deal with this, so I'm not drawing a line in the sand for this particular solution," Lavelle said. "I view this as the beginning of a public discussion."

Extending the two-year civil limit has broad support, Lavelle said. Addressing old claims with a retroactive bill is likely to face tougher debate.

Retroactive problems

Delaware lawmakers removed the statute of limitations for criminal prosecution of child sexual abuse a few years ago, including a window of opportunity during which older cases could be revived and prosecuted. But shortly after that bill was signed into law, the U.S. Supreme Court ruled on a similar case, striking down the retroactive window as unconstitutional.

"But the average age of an abused child is 9 years old," Peterson said. "What child is going to hire an attorney and file suit before he or she is 11? And with a lot of older cases people from my generation didn't talk about it. If you did, you got spanked and sent to your room. It was a whole different mentality in those days. You didn't cause problems in the family."

Reviving old cases raises many problems, Flynn said.

"Somebody abused 50 years ago could file suit," he said. "The evidence is lost, the witnesses are lost, dead or unavailable, documents are difficult to find in my view that is a denial of due process. Once a claim is barred by operation of a statute, a defendant has the right to rely on that and clear the books of the claim. Insurance programs and risk management are all predicated on what the statutes of limitation are. If you buy insurance and the rules change, you're stuck."

Ed Burke, a member of St. John's-Holy Angels parish near Newark who was abused by a priest as a boy in Iowa, said the law would give children justice and additional protection. He works with the northern Delaware chapter of Voice of the Faithful, formed to support survivors of priest abuse.

"My hope is that the state legislators will take the high ground and force the spiritual leaders to offer some form of justice to the abused, who in many cases have suffered from years of neglect," he said.

Flynn doubts legislators have enough time to devote to such a significant issue before their June 30 deadline.

"There are only 16 legislative days left in June," he said. "I doubt they can have the kind of discussion and analysis that's required for a bill of such sweeping scope. It's something that deserves more reflective consideration."

And, Flynn said, the bill still doesn't address another arena of abuse.

"If the aim of the bill is to prevent abuse, which is a major priority of the church, we're leaving untouched in this legislation a place where abuse occurs the public school system," he said. "It is immune from these suits."]]> Victim's father lauds state for DNA law http://www.yourlawyer.com/articles/read/11783 Fri, 26 May 2006 00:00:00 -0700 http://www.yourlawyer.com/articles/read/11783
Roger Kemp of Leawood came to the Statehouse for a brief ceremony marking the law's approval. Gov. Kathleen Sebelius re-enacted her signing of the bill, which occurred earlier this month.

Kemp's interest in such legislation stems from the June 2002 death of his daughter, Ali, a 19-year-old Kansas State University student. He found her body in the pump room of a Leawood pool where she worked, and 30-year-old Benjamin Appleby faces a November trial on charges of first-degree murder and attempted rape.

"The citizens of the state of Kansas will be so impressed with the impact that this makes in getting these predators off the streets," Kemp said after the ceremony. "It's a huge bill."

Starting Jan. 1, DNA samples must be collected from any adult arrested or juvenile taken into custody for a violent felony, such as murder or rape. Starting in July 2008, samples will be taken in all felony cases. Currently, DNA samples are not collected until after someone is convicted of a felony.

The delayed starting date will permit the Kansas Bureau of Investigation to upgrade its DNA testing laboratory.

Backers of the legislation believe law enforcement agencies will collect an additional 12,000 samples each year, making it more likely they'll find matches with evidence in unsolved cases.

"Using the technology that we now have just makes sense," Sebelius said. "It's been out there, but we just haven't made the best use of it."

Kemp said rapists and some other offenders often aren't arrested until they've committed numerous crimes.

"They're getting smarter all the time in what they do to try to cover up their crimes, so we have to get smart in using DNA," he said.

Joining Sebelius and Kemp for the ceremony were several Johnson County law enforcement officials and Rep. Pat Colloton, R-Leawood, who sponsored the measure.

California, Florida, Louisiana, Texas and Virginia already take DNA samples along with fingerprints at the time of arrest. The Kansas law expects that samples would be taken by wiping a cotton swab inside the mouth.

The sample would be analyzed by the KBI to come up with a DNA profile. Supporters of the law say that while the 14 chromosomes used to construct a profile don't contain personal information, they are enough to make a match with another sample.

If charges are dismissed, a person is acquitted or a conviction is expunged, the person could ask the KBI to destroy the sample, but the DNA record would remain in the database like a fingerprint.

The same request also could be made if charges haven't been filed by the time the statute of limitations expires on the crime. If a sample links a person to another crime, the subsequent charges could stand, even if the original charges were dismissed and the sample destroyed.

"It's probably one of the most powerful tools that we're going to add to crime fighting in a long, long time," Johnson County Sheriff Frank Denning said.
]]> Senate plan would end time limits on child sex abuse cases http://www.yourlawyer.com/articles/read/11789 Fri, 26 May 2006 00:00:00 -0700 http://www.yourlawyer.com/articles/read/11789
Some victim advocates say the plan doesn't go far enough because it doesn't specifically include incest and some sex crimes against older teens.

And defense attorneys say eliminating statutes of limitations is generally a bad idea because it lets alleged victims lob allegations sometimes decades after the fact, when memories have faded and potential witnesses may be hard to track down.

Sen. Steven Tolman, the sponsor of the budget amendment, said the crime of child sexual abuse is so heinous, the change is justified.

"Too many of these predators have been able to hide behind the veil of a technicality," said Tolman, D-Boston. "There should be no leeway for that type of crime."

The state has to maintain a delicate balance between giving alleged crime victims enough time to bring accusations and the needs of those being accused to have a chance to mount a fair defense.

The greater the time between the alleged crime and the accusation, the harder that job becomes, according to John Reinstein, legal director for the ACLU of Massachusetts.

"A statute of limitations is in some respect an arbitrary figure, but one that is rooted in real concerns about the fairness of the proceedings," he said. "These things ought to be brought in a timely manner."

Tolman said he understands those concerns, but said child sex abuse is a unique kind of crime. Many children who are abused can suppress those memories well into adulthood.

The amendment deals with narrow group of crimes, including indecent assault against a child under 14, indecent assault against a mentally retarded person, and rape of a child under 16.

Jetta Bernier of Massachusetts Citizens for Children said she was disappointed senators narrowed the scope of the original bill, which had included other crimes such as incest.

"A third of a loaf is not enough," she said. "As far as we're concerned we want the whole loaf."

The push to lift the statute of limitation comes in the wake of the clergy sex abuse scandal in the Catholic Church in Massachusetts.

An investigation by Attorney General Tom Reilly found in 2003 that at least 1,000 children were likely victimized by more than 235 priests and church workers from 1940 to 2000.

But since the scandal first erupted in Boston in 2002, only handful of priests have been prosecuted in Massachusetts criminal courts in many cases because the statute of limitations had run out.

Carmen Durso, a Boston lawyer who has settled dozens of sexual abuse lawsuits against the Boston Archdiocese, said the statute of limitations should also be lifted for sexual assault against children over 14 because some sexual predators will deliberately wait until a child is older.

"We are giving perpetrators a way of avoiding prosecution," he said.

Tolman defended the narrower language, saying it improved the chances that the changes would become law.

"We wanted to keep it clean and crisp," he said.

Middlesex District Attorney Martha Coakley, whose office won a high-profile conviction last year against former priest Paul Shanley for rapes that occurred in the 1980s, said she also supports lifting the statute of limitations. She said due to the nature of the crime, some victims cannot come forward until later in life.

She downplayed concerns that the change would bring a flood of criminal prosecutions.

"We look at these cases very thoroughly," Coakley said. "If it's a questionable case, or there isn't enough evidence, the district attorney isn't going to bring the case in the first place."

The amendment now heads to a six-member House and Senate conference committee charged with hammering out differences between the House and Senate versions of the state budget. The House hasn't debated the statute of limitations bill and didn't include it in their budget.

Gov. Mitt Romney's communications director Eric Fehrnstrom said the governor supports stronger laws against child sex abusers, but hasn't seen this legislation.]]> Bill would expand DNA data bank http://www.yourlawyer.com/articles/read/11744 Mon, 22 May 2006 00:00:00 -0700 http://www.yourlawyer.com/articles/read/11744
Called the All-Crimes DNA Bill, anyone convicted of a felony, misdemeanor or youthful offense under the state penal code would be required to submit a sample of their Deoxyribonucleic Acid, commonly known as DNA. After collection, officials would enter the information into a statewide databank that could be used to link suspects to a crime.

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According to the New York State Division of Criminal Justice Services, only 20 crimes listed in the state's penal code require a DNA sample under current law. Expanding the databank could reduce the amount of time necessary to find possible suspects.
“For example, someone is arrested for burglary, and we run it against an unsolved crime, and we find this person was involved with a rape,” said Chauncey Parker, director of DCJS. “A number of crimes were probably prevented. Right now, we're limited to how we can collect DNA.”

Tompkins County District Attorney Gwen Wilkinson said the proposed legislation would cast a wide net, and its implications need to be weighed before it is implemented. Wilkinson, who is still researching the bill's potential effects, said she is concerned about the sweeping inclusiveness of the legislation.

“You have to balance the legitimate need to keep the community safe against the individual privacy rights guaranteed under our state and federal constitutions,” she said in an interview Saturday.

“And I think people need to be aware that the collection of DNA would significantly expand the amount of information the government possessed about people who had committed any type of crime. The question has to be asked, ‘Does the person who steals a pack of gum forfeit the same right of privacy extended to a person who commits crimes like rape, murder or other violent crimes?' These are important questions, and people who are concerned about the issue need to be aware of the kinds of liberty interests and right-to-privacy interests at stake here.”

Between 1999 and 2002, similar Senate bills have been introduced three times, each time approved by senators but not introduced in the Assembly. From the 2003 through 2006 terms, Assembly bills were also introduced, only to die or stall in committees. According to the New York State Senate Web site, Bill S.1018 remains in the Senate Finance Committee while A.8676 has been referred to the Assembly Codes Committee.

State Sen. Michael Nozzolio, R-54th District, and a member of the finance committee, called DNA “the technology of today.”

“DNA is the most technologically current identifying tool that's available,” Nozzolio said. “We should utilize that as aggressively as possible.”

Provisions of the legislation include creating an “innocence project” using DNA to free the wrongfully convicted, and another provision to eliminate the statute of limitations on crimes with DNA evidence.

“It cuts both ways,” Nozzolio said. “On the one hand, we're using DNA to solve rape cases that have long been in the cold case files. At the same time, we're seeing convictions that were questionable and freeing individuals convicted unfairly.”

At $25 per sample for processing, expanding the collection could prove costly for New York taxpayers. Criminal labs located throughout the state process and catalogue the samples sent from local law enforcement agencies. In Tompkins County, most of the sample collection takes place at the county jail on Warren Road. Nozzolio did not identify additional revenue sources for the proposed DNA databank expansion.

“There has been increasing support from the Senate and the governor's office,” Nozzolio said.

Parker said Pataki has pledged more resources to the project, though its impact on county government spending remains unclear.

“The governor added $20 million to enhance the labs' ability to process DNA, hire the best chemists, and make sure law enforcement and prosecutors have the best training for it,” Parker said. “When people talk about cost, what is the cost of something we could do to solve crimes and protect people this is going to save money. Imagine if we could protect people after the first crime.”

Parker said the larger databank project could be eligible for increased federal funding.

“We will also get grants with the federal government's help,” he said.

On May 15, the New York Civil Liberties Union came out against the expanded project, citing local medical examiners who could collect DNA from people not labeled crime suspects, and “rogue databases.” The NYCLU did not specifically state where the facilities could be found.

In a prepared statement, Robert A. Perry, legislative director for NYCLU, said problems have cropped up across the country with expanded databanks like the one proposed by lawmakers.

“Adding many thousands of DNA samples to state databanks can and has compromised the integrity, efficiency and accuracy of DNA labs,” Perry said. “The Legislature needs to understand the susceptibility of DNA science to human error and abuse before it contemplates the data banking of persons convicted of shoplifting, vandalism or trespassing.”]]> Prosecutors: DNA evidence clears inmate of 1982 Key West rape http://www.yourlawyer.com/articles/read/11748 Mon, 22 May 2006 00:00:00 -0700 http://www.yourlawyer.com/articles/read/11748
Orlando Bosquete, who escaped from prison twice, once for 10 years, has been serving a 55-year sentence after he was convicted of breaking into the victim's home in 1982 and raping her. More than 175 inmates have been released nationally in recent years after being cleared by DNA evidence.

Bosquete, 51, was arrested shortly after the assault when the victim, from 20 feet away, identified him as her attacker and another man as his accomplice as she sat in the back seat of a police car. They had been picked up at a convenience store.

Matthew Helmerich, spokesman for Monroe County State Attorney Mark Kohl, said prosecutors will go to court in Marathon on Tuesday and ask that the conviction and sentence be dismissed. Bosquete would then be released. He said DNA tests not available two decades ago show Bosquete was not the rapist.

"He'll be a free man," Helmerich said.

Bosquete is being represented by the Innocence Project, a nonprofit group is based in New York. Spokesman Eric Ferrero declined specific comment on the case.

U.S. Immigration and Customs Enforcement spokeswoman Barbara Gonzalez said the federal government has a detainer on Bosquete, which means there is a question as to whether he is in the country legally. She said the government would have further comment on the case Tuesday.

Under current U.S. policy adopted in the 1990s, almost all Cuban immigrants who reach dry land are allowed to remain.

The other man, Pablo Cazola, pleaded guilty to burglary and state prison records show he was paroled in 1985.

Helmerich said victims and witnesses are usually asked to pick suspects from a lineup and he doesn't know why it wasn't done in this case. Kirk Zuelch, who was the state attorney when Bosquete was prosecuted, said Monday he doesn't remember the case well enough to comment.

Becky Herrin, spokeswoman for the Monroe County sheriff's office said nobody else will be sought in the case because the statute of limitations has expired. Officials haven't released the name of the victim, nor would they say whether she's been notified that Bosquete wasn't her attacker.

Bosquete first escaped in 1985 from Glades Correctional Institution in Palm Beach County. He was re-arrested in 1995, only to escape again three months later from a Miami-Dade County jail. Officials recaptured him a year later. Charges surrounding Bosquete's first escape will probably be dropped, and Bosquete has served the time he got for his second getaway, Helmerich said.

DNA testing has been used to free at least five prisoners in Florida and another 172 across the nation, Ferrero said.

Bosquete's case marks the second wrongful conviction in Florida this year. In January, 45-year-old Alan Crotzer went free after serving more than 24 years in prison for armed robbery and rapes that he didn't commit.

In 2000, 11 months after he died of cancer, DNA evidence cleared death row inmate Frank Lee Smith of the 1985 murder of an 8-year-old girl.

In 2004, 44-year-old Wilton Dedge of Port St. John was released from a life sentence after a test proved he didn't commit a 1981 rape. Dedge received $2 million from the Florida Legislature as compensation for 22 years he spent in prison. A bill to authorize compensation for innocent prisoners failed in the Legislature this year.

Legislators did pass a bill eliminating deadlines for when prisoners can request new DNA testing, but it has not yet been signed by Gov. Jeb Bush.]]> Four Oregonians indicted in 1998 Vail fires http://www.yourlawyer.com/articles/read/11749 Fri, 19 May 2006 00:00:00 -0700 http://www.yourlawyer.com/articles/read/11749
The Earth Liberation Front claimed responsibility for the blaze, considered at the time to be the worst in American history.

The indictment handed up identifies Chelsea Dawn Gerlach, 29, Stanislas Gregory Meyerhoff, 28, Josephine Sunshine Overaker, 31, and Rebecca Jeanette Rubin, 33, as responsible for the blaze. All were Oregon residents.

Rubin and Overaker remain at large, while Gerlach and Meyerhoff are being held by federal authorities in Oregon.

The four were indicted in January by an Oregon federal grand jury that said they conspired to set the Vail blazes as part of a wave of violence across the West.

The indictment handed up late Thursday marks the first time they were charged directly with the fires in Vail and is the consummation of “seven years of hard investigative work,” said Bill Leone, U.S. attorney for Colorado.

Even though the case was difficult, local and federal investigators never had any doubt they would make arrests in connection with the case, said Greg Morrison, Vail police chief at the time of the blaze.

The suspects were involved in a “closed little circle of ongoing criminality,” Morrison said. “There was no doubt in our minds that given the lifestyle of this particular criminal element that someday we would get a break and we would catch them.”

It’s to the FBI’s credit, he said, “that they have never let it die.”

Morrison, who most recently served as Grand Junction police chief, said officials were expecting some kind of activity around Vail as the world skiing championships approached the next January and February.

“We were anticipating some kind of protest,” such as having people chain themselves to trees, he said.

When he got a call the morning of the fires, “I knew exactly what was going on,” Morrison said.

There were so many fires that it was “pretty apparent it was not a random act,” said Joe Russell, then Morrison’s operations commander and now police chief in Silverthorne.

The Two Elk Lodge was destroyed in the blaze, as were four other buildings, including the Ski Patrol headquarters.

The Earth Liberation Front claimed responsibility for the fires and a Web site for the loose-knit organization featured a photo of the lodge in flames long afterwards.

The ELF said in anonymous e-mails the fires were set because a proposed 600-acre ski-area expansion would encroach into lynx habitat.

Each of the defendants faces eight counts of arson, and each charge carries five to 20 years in prison.

William C. Rodgers, who was identified by federal prosecutors as the mastermind of the Vail arson, committed suicide in an Arizona jail after he was indicted by the Oregon grand jury.

Although the Vail fires were listed among the acts in the Oregon indictment, they face no conspiracy charges in connection with the blazes because the five-year statute of limitations on conspiracy has expired.

There is a 10-year statute of limitations on the arson charges.

“The community in general is relieved” with the indictments, Vail Police Chief Dwight Henninger said.

In the Oregon indictments, Gerlach was accused of toppling an 80-foot electrical transmission tower outside Bend, Ore., in December 1999.

She also was charged in a fire at a Eugene, Ore., meat company that year.

Meyerhoff was accused of setting fires at a Glendale, Ore., lumber company and Clatskanie, Ore., tree farm in 2001.

Leone said the indictments make it clear that political violence won’t be tolerated.

“No matter how strongly we feel about any issue or cause, there are peaceful ways to express our views.” Leone said.

“We simply cannot capitulate to the use of violence as a means of political discourse.”]]> Man charged in kidnapping attempt pleads guilty http://www.yourlawyer.com/articles/read/11750 Fri, 19 May 2006 00:00:00 -0700 http://www.yourlawyer.com/articles/read/11750
John Regan, 49, of Waterbury, Conn., pleaded guilty to felony attempted kidnapping and is expected to be sentenced in July to 12 years in prison, Saratoga County District Attorney James Murphy said Friday.

Murphy did not offer him a plea bargain or reduced charge.

"Basically, we achieved the highest conviction without having to put the victim on the stand," he said in a statement.

Regan attempted suicide at the Saratoga County Jail after he was arrested for trying to overpower the teen, a member of the girls' cross-country team, in the Saratoga Springs High School parking lot on Oct. 31. She fought him off and the team coach followed Regan's car until police were able to stop and arrest him.

Unrelated kidnapping charges against the married father of three are still pending in Connecticut.

In October 2004, Regan was charged in a decade-old sexual assault case in Waterbury. The statute of limitations on sexual assault had run out, so he was charged with kidnapping because he allegedly bound the victim after slipping into her home while she was sleeping.

Police started looking at him in connection with the 1993 case after he was accused of assaulting a 21-year-old co-worker at the building supply company where he worked.

Another kidnapping charge was filed against Regan in Waterbury in December. That case involves a woman who said she was assaulted in 1981.]]> Judge tosses bulk of harassment suit http://www.yourlawyer.com/articles/read/11745 Thu, 18 May 2006 00:00:00 -0700 http://www.yourlawyer.com/articles/read/11745
In her lawsuit filed in the Ohio Court of Claims, Cathy Sloane, 49, claimed that starting around spring 2004, OUPD Lt. Steve Noftz, who supervises Sloane's husband Greg Sloane, subjected her to "severe sexual harassment, gross sexual imposition, and sexual assaults in the form of inappropriate sexual comments, sexual touching and acts, and repeated requests for sex."

The harassment allegedly included phone calls to Sloane, a visit to her Albany home in which she claims Noftz tried to have sex with her, and an incident in an Athens retail store in which she accuses Noftz of touching her between her legs. She claims that when she resisted Noftz's advances, he threatened to retaliate against her husband at work.

An outside attorney hired by OU to investigate Sloane's case concluded in a report in March that the available evidence does not support her allegations against Noftz.

In a ruling issued May 11, Judge J. Craig Wright of the claims court agreed with OU's argument that Cathy Sloane cannot make a civil claim of sexual harassment by Noftz because she is not a university employee.

Sloane's attorney, had argued in an earlier memorandum to the court that though Sloane never worked for OU, this is not sufficient reason to dismiss her legal claims.

Sloane's attorney maintained that the claims are based on the legal principle of respondeat superior ("let the master answer"), which holds an employer liable for harms done by employees acting within the scope of their jobs.

Sloane's called it "abundantly clear" that in allegedly sexually harassing Sloane, Noftz was actually trying to strike at her husband. "Lt. Noftz sought to manipulate (Cathy Sloane) in order to interfere with and destroy the employment of (her) husband," he alleged. This brings OU into the suit as Noftz's employer, he contended.

Wright didn't buy it. Citing Ohio Revised Code section 4112.02(A), which designates sexual harassment an illegal discriminatory practice, the judge noted that "implicit in the statute is the requirement that the plaintiff be an employee of the defendant in order to bring a claim of sexual harassment. Here, plaintiff cannot meet this requirement because she admits that she was not an employee of (OU). Rather, her husband was the employee."

Based on Cathy Sloane's non-employee status, Wright dismissed counts 1 and 2 of her lawsuit, which alleged quid pro quo sexual harassment (in which tolerating sexual harassment is made a condition of employment, raises or promotions); and sexual harassment in the form of a sexually abusive work environment.

He used the same grounds to dismiss count 7 of the suit, which claimed that OU's actions constituted a breach of the state's public policy.

Wright then went on to consider counts 3 and 6 of Sloane's complaint, in which she alleges sexual imposition and battery. The judge dismissed both those claims because he said Sloane did not file them within the one-year statute of limitations deadline for the related criminal offenses.

The incidents in which Sloane alleges Noftz committed sexual imposition and battery against her were in summer 2004 and December 2004, giving her until the end of last year to file claims on the later one. She filed suit in late February 2006.

Sloane's attorney had argued that Noftz's "unlawful and abusive actions" were part of "a pattern and practice that did not end until March 2005," which would have given Sloane until March 2006 to file her suit on the assault and imposition counts.

OU had also asked Wright to dismiss count 5 of Sloane's suit, in which she alleges that Noftz assaulted her with allegedly threatening phone calls. The judge let this count stand, however.

Noting that the assault offense also has a one-year statute of limitations, Wright said he was "unable to determine from the complaint when Lt. Noftz last made a (an alleged) threatening phone call to (Sloane). For this reason, it does not appear beyond a doubt that (she) can prove no set of facts entitling her to recovery for a claim of assault."

Wright's ruling leaves Sloane's lawsuit with two counts, the assault claim and count 4, which alleges intentional infliction of emotional distress.]]> Detectives Call 1976 Polk Slaying Solved http://www.yourlawyer.com/articles/read/11746 Thu, 18 May 2006 00:00:00 -0700 http://www.yourlawyer.com/articles/read/11746
Johnnie Sullivan Schell, 66, was shot to death by a stranger as he and his wife were driving on Old Combee Road shortly after 2 a.m., heading toward their retirement property in Chiefland.

For 30 years, the death remained an unsolved mystery and a heartache to his family.

As the years rolled on, Schell's wife and two of his four sons died, never knowing who killed him, or why.

Schell's 70-year-old son Bobby Schell, who was 41 when his father died, had given up expecting an answer. Then about a week ago, a sheriff's detective knocked on the door of his Auburndale home.

"He said he had some good news and some bad news," Bobby Schell said, settled in an armchair in his living room. "The good news was, they had found my dad's murderer. The bad news was, the statute of limitations had passed, and they couldn't charge him with anything."

Detectives think Ronald Mitchell, 54, is the man who shot Johnnie Schell. He wasn't a sniper, detectives say. Rather, Mitchell killed Schell unintentionally during a night of gunplay, according to the Polk County Sheriff's Office.

Mitchell denies the shooting, according to sheriff's spokeswoman Carrie Rodgers.

The State Attorney's Office determined the killing, which is described as a dangerous and malicious prank that turned deadly, was manslaughter. The statute of limitations for manslaughter is four years.

Mitchell is currently in state prison on charges of violating his probation by committing burglary, Rodgers said. He was on probation for a 2003 conviction for leaving the scene of a crash where personal injury was caused.

The crime was solved when two eyewitnesses to the crime came forward recently, detectives said.

One of them, Dennis Harris, 48, of Crystal River, was arrested on drug charges in Polk County and told sheriff's deputies that he had information about the 1976 shooting. His sister, Denise Harris Wood, 52, of Lakeland, confirmed the information he provided.

Both said they were with Mitchell on the night of the shooting, detectives said.

The brother and sister gave the following account of what happened, according to detectives:

They were driving around the Lakeland area with Mitchell in the early morning hours of Dec. 12. Mitchell was shooting at street signs with a .22 caliber pistol. Everyone in the vehicle was intoxicated.

About 2:30 a.m., Mitchell saw a pickup truck coming towards them on Old Combee Road and said he was going to shoot the tires out. After he fired at the truck, the truck pulled off the road.

Everyone fled the scene, not knowing that anyone had been shot.

A sheriff's detective in 1976 told The Ledger that a bullet penetrated Johnnie Schell's arm and lung as he was driving, and he managed to pull off the road and stop before he slumped over the steering wheel and died.

To this day, Bobby Schell remembers how he felt when a sheriff's deputy woke him up at 3 a.m. 30 years ago to tell him his father had been shot to death.

"It just rips your heart out. It was devastating. It was one of the worst shocks I've ever had," he said.

He was an assistant pastor at the time.

"It was weeks before I could function at all as a pastor," he said.

Johnnie Schell was a truck driver who struggled in lean times to provide for his family. "He was a hard-working man. He never had a lot of education," Bobby Schell said.

"Times were real hard. When we were young "Bobby Schell paused for a moment, overcome, near tears. "He was a real sacrificing person. I know there were times that my daddy went hungry, trying to make sure his four boys had something to eat," Bobby Schell said, blinking very hard.

Johnnie Schell also suffered a devastating loss, when his wife, Bobby Schell's mother, died of cancer when she was only 41 years old. But he remarried and had been married 24 years when he was killed.

After all those years of hard work, Johnnie Schell finally planned to retire, spend time with his wife on his property in Chiefland and start drawing social security, his son said.

"But he never got to draw his first check," Bobby Schell said.

Bobby Schell thinks the man who killed his father should be punished for it.

"I'm relieved in one sense, that we know who it is, but it creates a new burden in a way," he said. He wants to find out whether Mitchell could be tried for wrongful death in civil court.

"My one consolation that I always use is, `Vengeance is mine, I will repay,' saith The Lord," Schell said. "One way or another, he'll pay for what he did."]]> Child rape case from 1976 dismissed http://www.yourlawyer.com/articles/read/11747 Wed, 17 May 2006 00:00:00 -0700 http://www.yourlawyer.com/articles/read/11747
Cheryle Dillard, 51, was to have gone on trial Tuesday at Dudley District Court, in Southbridge, Mass., on charges of rape of a child and indecent assault and battery on a person 14 or older, stemming from incidents dating back to 1976.

The policy of the Rocky Mountain News in most cases is to not print the names of sexual assault victims unless they waive their anonymity. But the alleged victim in Dillard's case, 45-year-old Sheila Benzer, of Provincetown, Mass., broke her silence in the case in January 2005, when her father, Lawrence Dillard - facing the same charges in the same case - died at age 77.

Karen Foley, an administrator in the office of John Conte, district attorney for the Middle District of Massachusetts, said Benzer "did not come to court today, and she had expressed that she did not want to proceed."

Cheryle Dillard, prior to Lawrence Dillard's death, said in a 2004 interview that the accusations against the couple were without foundation and that they were innocent.

Benzer had claimed her father sexually abused her regularly from the age of 3. But the acts for which he and Cheryle Dillard, his second wife, were charged allegedly occurred in 1976, when Sheila Benzer was about 15 and the family lived in Southbridge.

The statute of limitations in Massachusetts at the time of the Dillards' alleged crimes was six years. However, because Benzer's father and stepmother moved from that state in about 1978, that froze the statute-of-limitations clock at the two-year mark.

The Dillards moved to Colorado several years after leaving Massachusetts. The charges against them were filed in October 2003.

When Benzer's father died before the case reached a courtroom, Benzer, an artist and political activist, expressed frustration.

"I had the chance of a lifetime. I tried to do it the right way," Benzer said then. "Now, the rest of my life, I have to sit with this. I'm angry beyond words."

On Tuesday, she attributed her decision to a range of factors, including a sense that the district attorney's office did not truly support her and that serious health issues suffered by the lead detective on the case could limit his ability to testify effectively.

"Another reason," Benzer said, "is that because I started this four years ago, I'm so tired of getting all geared up and all prepared for what the defense attorney throws at me and then having it be continued.

"Keeping this so raw, for so long, I just couldn't muster it, this time."]]> Molestation charge is filed nine years after alleged incident http://www.yourlawyer.com/articles/read/11751 Sat, 13 May 2006 00:00:00 -0700 http://www.yourlawyer.com/articles/read/11751
Arciles "A.J." Lucas Jr., 37, faces aggravated criminal sexual assault charges and criminal sexual assault charges for molesting a then 4-year-old boy.

"I'm very proud of the investigation that was done that allowed this case to be charged," Caseyville Police Chief J.D. Roth said.

Lucas molested the boy, with whom he lived from November 1996 to March 1997, at the family's Caseyville home.

At the time, the boy wasn't able to provide an adequate statement to police or Illinois Department of Children and Family Services caseworkers.

Recently, the victim, now 14, sought mental health counseling and revealed the abuse, Roth said. Detective Steve Epps then began investigating the allegations.

The statute of limitations expires on felony cases in three years, but a provision in the law allows the statute to be extended because the victim is still a minor, said Wayne LaFave, a University of Illinois law professor.

But such cases are difficult to prosecute because physical evidence usually doesn't exist, LaFave said.

"It's rare that cases like this are charged, but it does happen," State's Attorney Robert Haida said.

Haida declined to comment on the specifics of the case.

"I think that it sends an important message that crimes of this type effect victims for the rest of their lives, so prosecution is important," Roth said.

Lucas remains in the county jail with bail set at $300,000.

If convicted, he could face up to 30 years in prison.]]> 3 accused in 2001 UW arson http://www.yourlawyer.com/articles/read/11752 Fri, 12 May 2006 00:00:00 -0700 http://www.yourlawyer.com/articles/read/11752
With just 10 days to spare before the five-year statute of limitations ran out, authorities obtained a grand jury indictment in U.S. District Court in Seattle on Thursday that identifies three suspects by name and refers to two other unnamed conspirators.

Accused of torching the center in the May 21, 2001, attack were Briana Waters, 30, of Berkeley, Calif., Justin Solondz, 26, of Jefferson County in Washington and William Rodgers, who killed himself in an Arizona jail after his arrest in December.

The indictment accuses the trio, along with two unnamed co-conspirators, with setting the facility ablaze under the belief that genetically engineered plants that they considered dangerous to the environment were being grown there. The fire destroyed years of botanical research. The UW spent $7 million to rebuild the facility.

One of the targeted scientists who worked at the center told the Seattle P-I that his research into poplar trees did not involve genetically altering them. Rather, Toby Bradshaw, whose lab was ground zero for the firebomb, was studying the genetics of hybrid trees that had been created through standard grafting techniques.

He said the most damning irony is that many endangered Northwest plants that a colleague had been growing at the center for reintroduction into the wild were destroyed by the fire.

Waters had previously been charged in the arson. Thursday's indictment brings a count of conspiracy to use firebombs to commit a series of arsons including the one at the UW center against Waters and adds Solondz, Josephine Overaker, 31, and Kevin Tubbs, 37, as co-conspirators.

Solondz, who is a fugitive and believed to be abroad, allegedly built a firebomb in Olympia the day before the UW blaze, according to a statement from the U.S. Attorney's Office in Seattle. Waters is accused of possessing a firebomb on the day before the UW arson.

Overaker also is a fugitive and thought to be out of the country.

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The indictment alleges that Rogers and his co-conspirators decided in 2000 to recruit more members and held secret meetings in Washington, Oregon, California and Arizona, where they decided to focus on fighting genetic engineering.

After selecting targets and providing instruction on how to build firebombs, Solondz is alleged in July 31, 2000, to have destroyed 5 acres of canola being grown by the Monsanto Corp. in Dusty in Eastern Washington.

In the winter of 2001, they allegedly held a secret meeting in Olympia and shortly thereafter, Solondz is alleged to have girdled the bark on 800 hybrid poplar trees at Oregon State University sites.

Tubbs and Overaker already have been charged in connection with an alleged eco-terrorist conspiracy in Oregon. Solondz already has been indicted in California in connection with the Oct. 22, 2001, arson of a federal wild horse and burro corral in Susanville, Calif.

If convicted, Waters and Solondz face a mandatory minimum term of 35 years behind bars.]]> Senate Re-Approves Sex Abuse Bill http://www.yourlawyer.com/articles/read/11756 Wed, 03 May 2006 00:00:00 -0700 http://www.yourlawyer.com/articles/read/11756
They had to vote on the proposal again because the House refused to go along with changes made by the Senate last week.

Representatives of both chambers voted Tuesday to stick with that version of the bill with just a few small changes.

The real test will come when the House takes up the bill which could come as early as Wednesday.

The Colorado Catholic Conference said it may be unconstitutional to allow old cases to move forward and is opposing the bill.

The bill now said that if any part of it is overturned in court, the rest of the bill would remain in effect. The bill also removes the statute of limitations for filing sexual abuse lawsuits from now on.

People now only have until age 24 to sue. The proposal would give plaintiffs until the age of 53 to take action.

Victims said most people don't come to terms with abuse until their 40s and 50s.

People who have already missed their deadline for suing would be given one year to file a lawsuit if the abuse occurred during the past 35 years.]]> Sex-abuse coalition pushes legal change http://www.yourlawyer.com/articles/read/11599 Tue, 25 Apr 2006 00:00:00 -0700 http://www.yourlawyer.com/articles/read/11599
"To this day, I still shudder inside," Guarino, 42, said in a 15-minute DVD recording that was shown yesterday during a forum organized by a coalition of advocates for victims of alleged sexual abuse by Catholic priests, along with other advocacy groups.

The DVD, which includes accounts from alleged victims and their family members, will be sent to state lawmakers to encourage them to adopt reforms recommended last fall by a grand jury that investigated alleged abuse by Philadelphia priests.

"To get people's attention and help them really understand the issue, it's really important to hear from survivors," said John Salveson, a spokesman for the Philadelphia chapter of the Survival Network of Those Abused by Priests and Other Clergy.

The coalition, PA Child Abuse Reporting and Enforcement Systems supports a bill that would lift the statute of limitations on criminal charges for sexual offenses against children, currently a victim's 30th birthday. The coalition also wants lawmakers to waive, for one year, the statute of limitations on civil lawsuits, which generally must be filed within two years of an alleged incident.

The Pennsylvania Catholic Conference, which lobbies on behalf of Pennsylvania's Catholic churches, has opposed the one-year window for civil lawsuits, arguing that it would be unfair and costly to churches. The conference has not taken a position on lifting the criminal statute of limitations.

Sister Maureen Paul Turlish, of New Castle, Del., an advocate for clergy sex-abuse victims, said it was "imperative" for victims seeking redress for abuse that occurred many years ago to have a limited opportunity to seek civil damages.

"It's not an anti-Catholic thing - if it were, I wouldn't be here," Turlish said. "It's for all the children."

In an interview after the forum, Guarino, who now lives in Laurel, Md., said he sometimes gets discouraged that lawmakers have not acted on either bill, but he still feels it is important for him to make his voice heard.

"It's an important cause, and people need to stick with it," said Guarino, who sued the Greensburg Diocese in western Pennsylvania last year, alleging the abuse almost 30 years earlier. "I feel, over time, we will gain more support."

The bills were recommended in the grand jury report released in September.]]> Bishops back bill for future sex-abuse prosecution cases http://www.yourlawyer.com/articles/read/11466 Mon, 06 Mar 2006 00:00:00 -0800 http://www.yourlawyer.com/articles/read/11466 As state lawmakers consider whether to allow victims of childhood sex abuse to sue over cases from 30 and 40 years ago, they’re also deciding whether to get rid of a time limit for prosecuting child molesters from now on.

Currently, victims of childhood sex abuse have until they turn 33 to sue the alleged abuser and until age 28 to pursue criminal charges.

Victims advocates say that such statutes of limitations favor abusers because they can make their young victims afraid to ask for help and those victims may only come to terms to what happened to them when the current deadlines have passed.

Rep. Rosemary Marshall and Sen. Paula Sandoval want to lift those limitations on criminal prosecutions for any abuse that occurred after July 1, 1996. Cases that occurred before that date could still be prosecuted under the bill as long as the statute of limitations won’t be reached by July 1, 2006. The measure (House Bill 1088) also originally would have done away with the statute of limitations for future civil lawsuits but that has now been eliminated.


Colorado’s three Catholic bishops announced Friday that they support the amended proposal, which is set to be reviewed Wednesday by the Senate Judiciary Committee.

The bishops oppose another bill (Senate 143) sponsored by Senate President Joan Fitz- Gerald which would open the church and other private institutions to lawsuits over old sex abuse cases because government institutions, like public schools, wouldn’t be open to the same kinds of lawsuits. State law protects government agencies from being held liable for more than $150,000 per claim although they sometimes can be sued in federal court under civil rights law.

]]> New bill extends law for polluters http://www.yourlawyer.com/articles/read/11425 Tue, 28 Feb 2006 00:00:00 -0800 http://www.yourlawyer.com/articles/read/11425
The move would end what critics call a roadblock to prosecuting polluters: Environmental crimes often come to light years after they were committed and longer to come to trial, while state law now gives authorities just 10 years.

Included under its provisions would be improper disposal of toxic waste, failing to report spills and lying to the Department of Environmental Protection would

"Environmental crimes are often very difficult to discover and prosecute. So extending the statute of limitations is entirely appropriate," said David Pringle, campaign director of the New Jersey Environmental Federation.

Currently, the statute stands at 10 years from the date of discovery.

Also Monday, the Environment Committee cleared a separate bill authorizing the state's 566 towns and cities to petition the DEP to force polluters to clean up contaminate sites to a higher degree after the state has already certified clean up complete.

Both initiatives, sponsors said, are aimed at forcing the clean up of contaminated brownfields sites to either industrial standards or levels that permit future residential development. Environmentalists and urban revivalists contend the sites are an attractive alternative to accommodate future growth without destroying open space and farmland.

Both next head to a vote in the full Assembly.

"Unless the Good Lord is going to make some more ground and put it in New Jersey, everything is going to be precious," said Assemblyman John Burzichelli, D-3 of Paulsboro, sponsor of the clean-up law.

He said the bill would force the clean up of a 19-acre former gypsum landfill at the site of the future port of Paulsboro. While not delaying the port project, Burzichelli said the borough could use any available space]]> State Could Allow Suits Over Old Sex Abuse Claims http://www.yourlawyer.com/articles/read/11409 Fri, 24 Feb 2006 00:00:00 -0800 http://www.yourlawyer.com/articles/read/11409
State Sen. Joan Fitz-Gerald, a Democrat and a Catholic, wants to suspend the statute of limitations for two years a year longer than California and allow people who say they were sexually abused at private institutions to file suit even if the alleged abuser is dead.

In California, a one-year statute suspension led to about 800 lawsuits against the Catholic Church, including more than 500 against the Archdiocese of Los Angeles.

"I'm personal witness to lives being saved because of this law, which allowed victims to have recourse through the courts," said an attorney representing dozens of people who filed claims in California. Many of her cases were settled -- including 33 in a $38 million deal with the Diocese of Orange in Orange County but others against the Archdiocese of Los Angeles are still pending.

She said the settlements have helped victims by giving them money to get treatment for addictions to drugs and alcohol that sometimes follow abuse, as well as a chance to help prevent abuse in the future.

A spokesman for the Los Angeles archdiocese did not respond to requests for comment. Ned Dolejsi, executive director of the California Catholic Conference the church's lobbying arm criticized California lawmakers for passing what he called "irresponsible and punitive legislation" aimed against the Catholic Church.

There was no discussion about capping attorneys' fees to make sure victims benefited from the suits and no benchmarks set to weed out meritless claims, he said.

"The reality tends to be that it ends up penalizing, in order to respond to the victims, all the people who support the church now and the leaders," Dolejsi said.

In Colorado, Fitz-Gerald said she has been surprised by the church's strong opposition, because no lawmakers in California voted against the measure in 2002. She said she began thinking about changing the statute of limitations when she read newspaper reports last summer about Colorado men who said they were abused by a priest.

Denver Archbishop Charles Chaput has urged Catholics to push lawmakers to change or defeat Fitz-Gerald's bill and two others related to sexual abuse.

Fitz-Gerald, who said she contributed to the construction of Christ on the Mountain Catholic Church in Golden, said she isn't targeting the Catholic Church but said "if the shoe fits, you've got to wear it."

"The protection of children comes before the protection of assets," she said.

Dolejsi said that church officials have a difficult time defending themselves against cases from 20 and 30 years ago, with some of the alleged abusers and witnesses dead.

"It's pretty much throw it out and there see what happens," he said of the lawsuits.

Dolejsi also criticized the California law because it didn't also open state government to lawsuits for past sexual abuse in public schools a criticism also made against the Colorado proposal.

During a long and emotional hearing in Colorado this month, an attorney for the Colorado Catholic Conference presented lawmakers with files on 85 teachers who had been disciplined since 1997 for everything from sexual assault to showing pornography to students.

One of the other sex abuse bills has been changed to lift the statute of limitations for both public and private institutions and, if that becomes law, Fitz-Gerald believes that would mean her bill would open up both private institutions and public schools to lawsuits.

Through his assistant, state education commissioner William Moloney declined comment, saying he doesn't discuss pending legislation.

Denver archdiocese spokeswoman Jeanette De Melo said it's difficult to predict what would happen if the law is changed, noting that Colorado's proposal would allow lawsuits to be filed for two years instead of just one in California but that Colorado is a smaller state with fewer Catholics. But if there were a lot of lawsuits filed, she said it could affect the church's ministry.

"This could in the long run could affect the people in the pews because it affects the church they support and the services they use," she said.

No dioceses in California have filed for bankruptcy protection because of sex abuse cases, although three dioceses in other states have Spokane, Wash., Tucson, Ariz., and Portland, Ore.

Earlier this month, the Spokane diocese reached a $45.7 million settlement with 75 people and Bishop William Skylstad head of the U.S. Conference of Catholic Bishops agreed to push for the abolition of the statute of limitations on sex crimes and give victims a chance to speak to parishioners, among other conditions.

David Clohessy, national director of the Survivors Network of those Abused by Priests, said he thinks far fewer suits would be filed in Colorado than California because its population is smaller and because some victims may think it's not worth suing after church promises to reform.

Claims that the church will be financially hurt are a red herring aimed at scaring Catholics, Clohessy said.

"Bishops don't fear this legislation because of the money. They fear it because of the secrets," he said.]]> Expert testifies diocese kept sexual abuse a secret http://www.yourlawyer.com/articles/read/11376 Fri, 17 Feb 2006 00:00:00 -0800 http://www.yourlawyer.com/articles/read/11376
A judge will continue to hear arguments today that could sway him to rule the statute of limitations has expired in a civil suit against the Diocese and the Society of Jesus. A trial is scheduled for Feb. 27.

If the case of Jane Doe 2 gets to trial, it would be the first of more than 90 civil suits filed in Alaska to make it to a jury. Nome Judge Ben Esch recently severed the Rev. James Poole from the suit. Attorneys for the diocese and Jesuits argue Esch also should throw out the claims against church leaders.

Jane Doe 2 and her attorneys argue the diocese and Jesuits knowingly allowed Poole to prey on children in Nome and other western Alaska parishes.

"A smoking gun" is how Doe attorney described a 1986 letter from the late Bishop Michael Kaniecki found in documents only recently turned over the plaintiffs by the diocese.

The letter is a response by Kaniecki to another woman's sexual abuse complaints about Poole, which occurred 20 years earlier. One of Jane Doe's attorneys argued the letter confirmed that Poole's sexual abuse practices were known to go back to the mid 1960s.

Another of Doe's attorneys, said the church had a secret policy and system in place to keep such charges secret.

An expert witness with an extensive background in canon law and church administration, including serving for five years in the Vatican embassy, testified that church officials cast a cloak of secrecy around the sexual practices of the priesthood.

The Rev. Thomas P. Doyle, a Dominican priest, said canon law is "the internal regulatory system used by the Catholic church" since the fourth century and to his knowledge the first civil case ever filed against a priest for child sexual abuse was in 1984, in Lafayette, La.

Doyle said the church did have rules regarding clergy engaging in misconduct with children that included how to conduct preliminary investigation and procedures. However, in March 1962, the Vatican installed a code dealing with four types of clergy malfeasance that was issued in secrecy to bishops around the world.

Doyle said that secrecy code wasn't replaced until 2001.

If anyone involved with a clerical complaint--plaintiff or defendant--broke the silence, they were automatically excommunicated, Doyle said.

Diocese attorney Robert Groseclose objected several times during the proceedings, saying canon law should be set aside.

"We are dealing with the law of the state of Alaska," he said. "A person needs to bring a lawsuit within a certain length of time."

The evidentiary hearing allows lawyers an opportunity to introduce trial evidence and witness testimony to determine whether or not Jane Doe 2 could or should have reported the abuse before the statute of limitations.

For criminal offenses against children 16 and under, Alaska law says the statute of limitations runs out three years after discovery of the injury. For crimes committed against children after the age of 16, charges must be brought within two years of the victim's 18th birthday.

According to Doe's deposition, she told of reporting the sexual abuse by Poole and a subsequent abortion to two different priests in the confessional, one in 1977 and another in 1991, and received no direction.

Doyle said the priests acted inappropriately.

"Given the gravity of what she was confessing, they should have instructed her to make a report to a proper superior, and all she got was some prayers," Doyle said.

Frederick Wise of the University of Washington, a clinical psychologist and defense expert witness, said Doe has a number of impairments, including substance abuse and borderline personality disorders. But he concluded she was capable of advocating on her own behalf.

And when asked if she understood the causal effect a certain action incurs, Wise said Doe understood the concept, pointing out she attempted suicide "to get her parents to quit drinking, among other things."

David J. Sperbeck, a licensed forensic psychologist with more than two decades of experience in Alaska and the plaintiff's expert witness, said Doe has "significant psychological problems, including early onset chronic depression since childhood, post traumatic stress syndrome, alcohol and cannabis abuse and a probable social disorder."]]> No Statute of Limitations for sexual abusers of children http://www.yourlawyer.com/articles/read/11377 Wed, 15 Feb 2006 00:00:00 -0800 http://www.yourlawyer.com/articles/read/11377 Those who abuse children will no longer be able to use the mists of time to escape justice, if bill winning approval yesterday becomes law.

Rep. Gwyn Green's, D-Golden, bill to lift the statute of limitations for the sexual abuse of children successfully passed the House Judiciary Committee today and was favorably recommended to the Committee of the Whole. In addition, an amendment was unanimously agreed to that would equally apply the provisions of the bill to both public and private entities.

After the vote, Rep. Green released the following statement:

I do not believe that any institution, public or private, should be above the law when it comes to protecting our kids. We have now further clarified my legislation to ensure that any organization will be held accountable for conspiring to protect a sexual predator.

We voted today to help heal victims of past sexual abuse and to protect our children and grandchildren from sexual predators. As a mother and a grandmother, I will always choose to go after those who abuse our children and ruin their lives.

I will remain focused on that goal, despite repeated attempts to divert attention, change the conversation, and undermine our efforts. Our children and our children?s children deserve no less.

]]> Conn. Court Rejects Wrongful Death Claims Against Pratt & Whitney http://www.yourlawyer.com/articles/read/11378 Wed, 15 Feb 2006 00:00:00 -0800 http://www.yourlawyer.com/articles/read/11378 The Connecticut Supreme Court has upheld a trial court ruling that bars wrongful death claims over the deaths by brain cancer of more than 60 workers in Pratt and Whitney's jet engine manufacturing plant.

The court agreed that the families of the victims missed the two-year deadline under the statute of limitations for bringing such claims against the company, which is a division of United Technologies Corp.

The manufacturer claimed that the action was time-barred under state law because it was brought on behalf of decedents who either had died more than two years before the action was filed or had ceased to remain employed with Pratt and Whitney more than five years before the action was filed.

The families claimed that the applicable statute of limitations was not the wrongful death provision claimed by defendants but rather another law which provides that an action to recover damages for personal injury ''caused by exposure to a hazardous chemical substance or mixture or hazardous pollutant released into the environment'' must be brought within two years of the date on which the injury was discovered or reasonably should have been discovered.

Brain cancer, known as glioblastoma multiforme, can develop for years before it is diagnosed. The plaintiffs argued that the decedents did not exhibit any symptoms of their alleged exposure to hazardous chemicals and pollutants until after the wrongful death limitation period had expired.

But the court ruled that, even if the result is unfair, the wrongful death statute of limitation law still applies.

"Although we acknowledge that applying the limitation period of � 52- 555 to the present case leads to what reasonably may be characterized as a harsh, and even unfair, result, we disagree with the plaintiffs that the result in this case requires a different construction of the relevant statutory provisions," the court wrote.

Plaintiffs had also claimed that the federal Comprehensive Environmental Response, Compensation, and Liability Act preempted the state statute of limitations. However, the court rejected that argument as well.

"I'm very disturbed," Carol Shea, whose husband, John, died in 2000 at age 56, told The Associated Press. "It's kind of a last hope to do something. I don't understand how the decision went against us."

The case is Kathleen E. Greco, Et Al. v. United Technologies Corporation Et Al. (SC 17231) and was released on Feb. 14.

Pratt & Whitney has commissioned a medical study of employees who worked at its plants between 1952 and 2001.

]]> Families relate impact of crimes http://www.yourlawyer.com/articles/read/11379 Fri, 10 Feb 2006 00:00:00 -0800 http://www.yourlawyer.com/articles/read/11379 It was a bittersweet reunion for a gathering of Pocatello families on Thursday.

Driven to the state Capitol by the power of their collective memories and a desire to toughen the state's laws on prosecuting sex offenders, the group bared their souls to members of a House committee.

Some, like Paul Steed, have become champions of the rights of molested victims. Others had never told their stories publicly before.

And for nearly three hours, they poured out.

“A lot of things I know now, I really didn't want to know,” said Hannah Bird, the wife of a Rexburg man who was allegedly raped by Dennis Empey, a former Boy Scout counselor. “We're here for the kids who's stories haven't happened yet.

“We're here for the little girl who just got hurt last night and isn't sure why it happened.”

After the House Judiciary and Rules Committee voted unanimously to approve the proposal to remove the statute of limitations on reporting sexual abuse, family members and victims embraced and seemed in little hurry to leave the committee room.

“This is a great day,” said Steed, whose two sons were repeatedly molested at an Eastern Idaho Boy Scout camp in 1997. “It's a wake-up call.”

Perhaps the day's most moving testimony came from Jeff and Joyce Underwood, the parents of Jeralee Underwood, an 11-year old who was murdered in Pocatello in 1993 by James Edward Wood.

“Some days I wish there aren't people out there (that molest minors),” said Joyce Underwood as she fought back tears. “But there are and we have to protect our children.”

A total of 19 different people gave testimony on the proposal, all in support.

R. David Moore, the Blackfoot chief of police, pledged the support of the Idaho Chiefs of Police Association and testified counseling helped him confront the events he himself went through some 20 years earlier.

The emotional testimony of Moore and others cast light on a deep, dark secret, the severity of which is only now becoming clear in Southeast Idaho.

One man, Richard Scarborough of Idaho Falls, said he had his dogs poisoned and his windows shot out after his 13-year old son went public with the sexual abuse he'd endured.

“It is a much bigger problem in Southeast Idaho,” Scarborough said, alluding to the region's well-defined religious and social hierarchies.

“They are there to harm our children.”

Although Idaho currently has no statute of limitations on rape and murder, sexual abuse cases must be reported within five years of an individual's 18th birthday.

Bear Lake County's mental health director said Fred Willie, 67, a Bear Lake County resident awaiting sentencing on three counts of lewd conducts with teenage boys, could have been arrested in 1979 if the statute of limitations hadn't been in effect.

Yet only 11 states currently have no statute of limitations on reporting sexual abuse and some lawmakers fear doing away with the time limit could open the door to frivolous lawsuits.

Sen. Denton Darrington, R-Declo, the chair of the Senate Judiciary and Rules Committee opposes removing the statute of limitations and could run a much different hearing when the proposal advances to the other side of the statehouse.

But the overwhelming public sentiment Thursday contended it's time for the state to not only get tough on the perpetrators, but stand up for victims as well.

“Being told that nothing can be done to the perpetrators of such crimes only reinforces this sense of worthlessness (that many victims feel),” said Ross Ruchti of Pocatello, the father of at least two abuse victims.

“We can't support a law that's meant solely to protect the offenders,” added Steed's daughter, Christallyne.

Following the vote, Bannock County lawmakers gathered with the Steeds, Underwoods and others - who vowed to return once the bill reaches the Senate - on the fourth-floor rotunda.

Rep. Donna Boe, D-Pocatello, one of the measure's sponsors, said the legislation would send a message to the perpetrators of sex crimes.

“That abuser, that perpetrator, will fear for the rest of their life that one of their victims is going to come forward,” she said.

Other lawmakers expressed similar sentiments, with Rep. Mack Shirley, R-Rexburg, expressing his displeasure with local officials in the Boy Scouts of America, who initially helped cover up the reported abuse.

“I'm not happy with them,” he said. “That's not right.”

]]> Victims ask bishop to track abusers http://www.yourlawyer.com/articles/read/11302 Tue, 07 Feb 2006 00:00:00 -0800 http://www.yourlawyer.com/articles/read/11302
"Since the Diocese of Paterson has been responsible for recruiting, teaching, ordaining, promoting, enabling, transferring, covering up for, defending, and continuing to provide for their former priest, shouldn't its current leader, Bishop Arthur Serratelli, notify families about the criminal threat that Hanley poses?" asked the letter's authors, Paul Steidler and Marc Serrano, both of whom allegedly were abused by Hanley years ago.

The two men sent their plea to newspapers Friday and to 16 Paterson parishes during the weekend.

Technically, only offenders convicted of sex crimes must adhere to the provisions of Megan's Law, which mandates that sex offenders register with local authorities upon moving to a new residence. However, many clerical sex offenders, including Hanley, have never been charged because their crimes came to light after the statute of limitations barred prosecution.

"There is very little, if anything, we can do for people who have not been charged," said Passaic County Prosecutor James F. Avigliano.

Until a new law is passed, he said, peaceful protest may be the only legal recourse communities have to protect themselves and their children.

"There would have to be new civil laws, which would open up the statute of limitations and open them up retroactively," said attorney Greg Gianforcaro, who represented 25 of 26 alleged clergy-abuse victims in a civil case against the diocese last year.

That case eventually was settled for $5 million.

A spokeswoman for the diocese said last week it was not responsible for tracking ex-priests who molested children.]]> Molest victims' mother tells of her trust for accused priest http://www.yourlawyer.com/articles/read/11303 Tue, 07 Feb 2006 00:00:00 -0800 http://www.yourlawyer.com/articles/read/11303
"Did you love him deeply?" a prosecutor asked Margaret Percival as retired priest Michael Wempe sat just a few feet from her in court Monday.

"Deeply," she replied. "Like a brother. I did. He was part of my family. He was always there."

Asked by Deputy District Attorney Todd Hicks how she feels about Wempe now, she bit her lip and said through tears: "I despise him for what he has done to my children."

Wempe, his face flushed, mopped his eyes with a handkerchief as Percival broke down in sobbing.

He has admitted molesting her two older sons but denies the youngest man's allegation, which is the only claim that could send him to prison. The statute of limitations for crimes committed against the older two has expired.

Percival, 64, a native of Yorkshire, England, who lives in Thousand Oaks, told jurors about her two unhappy marriages and her delight when the charismatic priest took an interest in her sons.

"Wempe would spend more time with my boys than anybody else," she said. "He would pick them up on his motorcycle and take them to do everything a father would do.

"I felt proud that he wanted to spend time with my boys," she said.

She said she never suspected the priest, not even when he was sent away from their parish for a long time. One day, she said, a letter arrived from Wempe announcing he was back as chaplain of Cedars-Sinai Hospital in Los Angeles.

"I was just glad he was back and a few weeks later he came to my house," she testified.

She said he told her he had been in New Mexico on church business but did not disclose he was undergoing treatment as a pedophile.

By then, Percival said, her two older sons had left home but she suggested that perhaps Wempe would like to spend time with her youngest child, identified in court as Jayson B. He was then 8 years old.

"It was my idea," she said, adding the priest seized the opportunity to take the boy on visits to his office at the hospital. It was there Jayson said he was abused.

Although the mother is not a witness to the molestations, she corroborated Jayson's account of his visits with the priest and said she saw the boy undergo a personality change.

"He was a lovely little boy, my little ray of sunshine," she said, weeping. "But as he got older he grew more distant from me. He wouldn't talk to me."

Jayson's 36-year-old brother, Lee B., testified earlier, denying that he was "obsessed" with trying to put Wempe behind bars at any cost.

Wempe's lawyer, Leonard Levine, has suggested that Lee and his brother Mark urged Jayson, now 26, to falsely accuse Wempe of molesting him after the U.S. Supreme Court rejected prosecution of cases such as theirs because they were beyond the statute of limitations.

Wempe, 66, had been charged with crimes against 13 boys, all of which he now admits, but all of those fell outside the statute of limitations.]]> Bishops seek parity in application of protection http://www.yourlawyer.com/articles/read/11285 Sat, 04 Feb 2006 00:00:00 -0800 http://www.yourlawyer.com/articles/read/11285
Pueblo's Bishop Arthur Tafoya joined Denver's Archbishop Charles Chaput and Colorado Springs' Bishop Michael Sheridan for the statement, issued Monday.

Proposals by state Reps. Rosemary Marshall, D-Denver, and Gwyn Green, D-Denver, along with state Sen. Joan Fitz-Gerald, D-Golden, and state Rep. Alice Madden, D-Boulder, "would eliminate or modify statutes of limitation so that a childhood sexual abuse victim could wait 30 years, 40 years, or even longer before filing a suit for damages against Catholic institutions and other private entities in Colorado," the bishops said.

But, the bishops complained, the proposed legislation would not affect public entities such as public schools and there appears to be unequal applications of justice - "a soft version when the sexual offender works for a public entity, and another, much harder version, when the offender works for a Catholic or private institution."

The House Judiciary Committee unanimously approved a measure Thursday (House Bill 1088) that would remove criminal and civil limits on the statute of limitations for sex offenses against a child.

The proposed law would apply to private institutions, including churches and private colleges, but would not include public institutions, including schools or police.

Rep. Rosemary Marshall, D-Denver, said her bill is not directed at any specific organization, but some lawmakers disagreed.

‘‘This was intended to be about the Catholic Church,’’ said Rep. Cory Gardner, R-Yuma.

The Roman Catholic Church, nationwide, has been driven to extreme fiscal difficulties by virtue of a seemingly endless series of lawsuits filed against dioceses for sexual abuse of children by priests, brothers and others.

Nationwide, more than $1 billion has been paid by dioceses to settle claims that number in the thousands.

In the Pueblo diocese, headed by Tafoya, more than a dozen lawsuits have been filed in connection with allegations of abuse against William Mueller, a Marianist brother who taught in the late 1960s at Roncalli High School.

The Denver archdiocese also faces scores of lawsuits in connection with allegations against a now-resigned priest, Robert White.

The Colorado lawsuits were filed over charges of molestation allegedly perpetrated decades ago.

‘‘We now have a lot of victims coming forward who have no way to seek any justice,’’ said Fitz-Gerald, a Catholic. ‘‘I’m trying to give people who have been abused their day in court and let juries sort it out.’’

Said the trio of bishops in response: "We all agree that the sexual abuse of a minor is a serious crime and a grave sin. The proposed pieces of legislation, whatever their final form, and whether they’re pulled from consideration or move forward, have sparked an important discussion (about) Colorado's public policy on civil lawsuits arising from such sexual abuse."

The three bishops said that, "Nationally, the evidence is now irrefutable that sexual abuse and misconduct against minors in public schools is a serious problem - in fact, more serious than anywhere outside the home, including churches. Since most Catholic children in Colorado attend public schools, this should seriously concern the whole Catholic community."

The bishops said that the state’s sovereign immunity protection limits a family’s ability to sue a public school or public institution for sexual abuse of a child. Even without such immunity, the bishops said, the victim of a public school teacher's misconduct must begin a claim by filing a formal notice within 180 days after the incident and damages are capped at $150,000.

"Why can a victim of teacher or clergy abuse in a Catholic school or parish wait a lifetime before initiating such litigation, while the victim of exactly the same and even more frequent abuse in a public-school setting loses his or her claim by waiting 181 days?” the bishops asked.

And, they asked, "Why should a Catholic institution that is sued for such conduct be liable for massive, community-crippling damages, while guilty public institutions - even if sovereign immunity were waived - would face a mere $150,000 damages?”

The statement did not make it clear whether it sought harsher liabilities and extending a statute of limitations for the civil institutions or whether it was seeking the same protections a "soft version" for churches, priests and dioceses.

There was, however, an indication of regret about the multiple abuses that have rocked the church, locally and nationally: "Catholics have learned about the national scope and human impact of sexual abuse the hard way. As bishops, we are wholeheartedly committed to helping victims heal and doing everything we can to protect our families in any Church-related environment.

"But the facts clearly show that the sexual abuse of minors is in no way a uniquely - or even disproportionately - ‘Catholic’ problem."]]> Statute of limitations for sex crimes targeted http://www.yourlawyer.com/articles/read/11279 Fri, 03 Feb 2006 00:00:00 -0800 http://www.yourlawyer.com/articles/read/11279
"We are usually in our 40s before we can even begin to speak about it," said Marilyn Van Derbur Atler, a former Miss America who has spent years speaking out about the sex abuse she said she suffered from her father from the age of 5.

"I urge you to remove any statute of limitations because of our unique, shaming, terrorizing violations we endure as children," she testified during the emotional three-hour hearing.

Late Thursday, the House Judiciary Committee unanimously approved House Bill 1088, which would remove criminal and civil limits that apply to private institutions, including churches and private colleges. It would not include public institutions, including schools or police.

It now goes to the House.

But, the fact the bill excluded public institutions bothered Patrick Chappell, 17, a junior at Holy Family High School in Broomfield.

"As a Catholic, I'm offended by the not-so-subtle attempt to target my faith," said Chappell, quarterback of his school's championship football team.

Chappell said he had been sexually abused by a Protestant youth leader and believes public schools should be held to the same standard as private schools.

In an evening filled with powerful testimony, the chairman of the committee, Rep. Terrance Carroll, D-Denver, added to the drama when he told the packed hall:

"I feel forced to make a personal comment. I was a victim of childhood sexual abuse.

"I think this legislation is a very important piece of legislation. It took me until I was almost 30 years old to stand up for myself. If this piece of legislation allows one person to take control of their lives," it will be worth it, Carroll said.

Rep. Rosemary Marshall, D-Denver, insisted her bill is not directed at any specific organization, but Chappell and some lawmakers disagreed.

"This was intended to be about the Catholic Church," said Rep. Cory Gardner, R-Yuma.

At least 25 cases were filed in Colorado last year by people alleging they were sexually assaulted by former priests or a Catholic school teacher when they were children, but lawmakers said many others have not come forward because the statute of limitations has expired.

Timothy Dore, executive director of the Colorado Catholic Conference, said the proposed change is unfair because it would apply only to private institutions, excluding coaches, police and teachers who have been accused of the same offenses.

"These incidents could be from 1950, the perpetrator could be dead, and they could still file a lawsuit," Dore said.

A conference spokesman said the diocese has already addressed the problem, establishing an office of child and youth protection and requiring that all reports of abuse are reported to police.]]> Utah Supreme Court Hears Argument in Priest-abuse Lawsuit http://www.yourlawyer.com/articles/read/11268 Thu, 02 Feb 2006 00:00:00 -0800 http://www.yourlawyer.com/articles/read/11268
Attorneys for the Catholic Diocese of Salt Lake City and Judge Memorial High School told the court on Wednesday that under Utah law, the statute of limitations is four years from the time the two brothers turned 18.

Ralph Louis Colosimo, 52, and Charles Matthew Colosimo, 44, claimed they were repeatedly sexually abused by a teacher, the Rev. James Rapp, at various times between 1970 and 1975.

Rapp pleaded no contest in 1999 to lewd molestation of a boy in Oklahoma and was sentenced to a 40-year prison term.

The Colosimo brothers filed their $80 million lawsuit in 2003. The lawsuit contends church and school officials knew of Rapp's pedophile tendencies, but were more concerned with protecting institutions than children.

An attorney for the Colosimos, said the brothers were taught to revere and respect priests and school officials.

Given that and the fact that Rapp was a friend of their family and the shame associated with the abuse, it was understandable that the men stayed silent until they read a newspaper article about Rapp in 2002 and realized the scope of the problem, the plantiffs attorney said.

The Colosimo attorney said that even if the brothers had inquired about Rapp's behavior, there is evidence that they would have "met with a stone wall" from the school and church.

Their attorney said letters written by a school counselor and Judge Memorial's principal at the time showed that they knew about Rapp's behavior but did not seem willing to do anything because it would look bad in a community dominated by another denomination.

He said that even if the brothers had inquired about Rapp's behavior, there is evidence that they would have "met with a stone wall" from the school and church.

Keller said letters written by a school counselor and Judge Memorial's principal at the time showed that they knew about Rapp's behavior but did not seem willing to do anything because it would look bad in a community dominated by another denomination.

A district judge and the Utah Court of Appeals have ruled against the brothers, citing the statute of limitations, but Keller called it a "legal technicality" in this case.

Defense attorney Russell Fericks said bending the statute of limitations would diminish the law.

Chief Justice Christine Durham said, "I know of no court which, in absence of repressed memories, has been allowed around the statute of limitations."]]> Witness says he wouldn't commit violence against molesting priest http://www.yourlawyer.com/articles/read/11280 Thu, 02 Feb 2006 00:00:00 -0800 http://www.yourlawyer.com/articles/read/11280
The 36-year-old witness also said he believes the accident happened when Wempe lost control of the car while assaulting him.

He acknowledged under cross-examination by Wempe's lawyer that he previously said that while he "could not rule out the possibility" Wempe was molesting him when he crashed the car, he wasn't certain.

"I am now entirely sure," said the man, identified only as Lee B. He is an older brother of the man Wempe is on trial for allegedly molesting.

Lee testified that the Catholic church paid for the accident and noted that he didn't see Wempe for a long time afterward.

"He was sent away to pedophile camp," he said, a reference to a monastery in New Mexico that Wempe was dispatched to by the Los Angeles Catholic Archdiocese. After being treated there for inappropriate behavior with boys without specific evidence of molestation, he was assigned to Cedars-Sinai Medical Center as a hospital chaplain.

The 66-year-old former priest has acknowledged molesting 13 boys in the 1970s and 1980s, including Lee B. and another of his brothers. But he has denied assaulting the youngest of the siblings, identified in court as Jayson B.

Charges could not be brought in the other cases because the statute of limitations had expired, and Wempe's lawyer has said Jayson fabricated his story in an effort to seek vengeance for his brothers.

Jayson, 26, testified previously about being in the car when it crashed, saying he still has a piece of glass lodged near his eye. He said he was in the back seat and couldn't see much of what was happening in the front seat.

Lee was the latest in a string of witnesses to testify about the molestations Wempe has admitted. All of the men said the priest's enticements included allowing them to drive a car.

At one point, he lashed out at the church saying, "I think the behavior of the archdiocese was atrocious in my case and everyone else's. They felt more about the reputation of pedophile priests than they did about children."

He was once quoted as saying Wempe's victims might be tempted to "take things into their own hands," but he testified Thursday that he would never commit violence against the priest.

"He's taken enough from me already," he said. "I'm not going to trade my life for committing a crime."

He also said he fell into a deep depression after memories he had repressed for years began to surface in 2002.

"I broke down," the witness said. "I didn't understand why I was experiencing this now, where this information was coming from. I was flooded. It was as clear as if it happened the day before."

He said his symptoms escalated as more of the repressed memories came back.

"I suffered from panic attacks and anxiety attacks," he said. "I sometimes get so overwhelmed with recall of what he did to me that I can't breathe and my body shuts down."

He said his abuse began in the 1980s and lasted nine years. His first memory of Wempe touching him inappropriately was when he was making confession at the age of 7, he said.

It did not occur in a traditional confessional, he said, but "in some sort of a room with a yellow glow."

"From the start of confession, he'd have me on his lap," Lee said. "He would get inside my head and tell me what my sins were and tell me my penance and he would be fondling me."

Lee said he was too young to know if Wempe was doing anything wrong. Later, he said, he would sleep in the priest's bed at church rectories in Ventura County.

"As I look back now, his hands were always on me in one way or another," he said.

He added he was shocked to learn of the abuse of the others, including his brothers, by a priest who had all but become a part of their family.

"This was a relationship that was very important to me and it was all based on a lie," he said. "He told me he loved me. He didn't love me. I was just a sexual object, one among many, apparently."

Lee, who eventually reported Wempe to authorities, said he was angry when the U.S. Supreme Court threw out a California law extending the statute of limitations on child sex abuse cases.

"I was angry about what I believed to be a mistake by the Supreme Court justices," he said. "I felt five of them didn't know the nature of child sexual abuse."]]> Bill Eliminates Statute of Limitations In DNA Cases http://www.yourlawyer.com/articles/read/11410 Thu, 02 Feb 2006 00:00:00 -0800 http://www.yourlawyer.com/articles/read/11410
"There is no statute of limitations on the pain and anguish constantly endured by the victims of violent crimes, and there should be no statute of limitations on prosecuting the barbaric criminals who commit these heinous crimes," said Senate Majority Leader Joseph L. Bruno. "We must eliminate the five year statute of limitations so we can ensure that criminals are prosecuted for their crimes and brought to justice.  These measures are commonsense public protection. I hope the Assembly will act on them so we can get a result from the process, prosecution for the criminals and justice for the victims."

Legislation (S.5342) passed by the Senate, sponsored by Sen. Dean Skelos (R, Rockville Centre), would eliminate the statute of limitations period in criminal cases where the identity of the offender is established by means of DNA evidence. Under current law, rapists and other violent criminals can escape prosecution when charges are not formally brought up within five years. Presently, only prosecutions for murder and other violent class A felonies are exempt for any statute of limitations.

"Rape and sexual assault are violent crimes committed by violent people," said Sen. Skelos. "If DNA evidence is available, there is no reason why these criminals should escape prosecution merely because they were lucky enough not to get caught. These crimes have a lifelong impact on their victims and an arbitrary five year period should not dictate the administration of justice."

"Since 1996, the Senate has passed 10 different bills that would extend or eliminate the statute of limitations, but Assembly leadership has failed to allow these bills to the floor for a vote," said Skelos. "With the remarkable advances in DNA technology, there is no sound reason to allow these dangerous criminals to use a loophole to evade justice. I urge the Assembly to join with us to get this legislation enacted."

The bill would also:

1) require offenders adjudicated as youthful offenders to provide a DNA sample for inclusion in the State DNA Databank;

2) make it a crime when a designated offender fails to provide a DNA sample; and add the new crime of aggravated perjury.

The Senate also passed legislation (S.6524), sponsored by Skelos that would eliminate the statute of limitations for certain class B violent felonies.]]> On Point: Not-so-secret target http://www.yourlawyer.com/articles/read/11257 Wed, 01 Feb 2006 00:00:00 -0800 http://www.yourlawyer.com/articles/read/11257
Now, skeptics might point out that the only allegations Fitz-Gerald or anyone else seems to mention in relation to her legislation involve the church. And that the only organization already targeted by a smoothly functioning coalition of high-powered plaintiffs' attorneys and victim groups is the church.

But such facts are mere coincidence. Or that is what we are supposed to believe.

The statute of limitations exists for a very good reason, as it happens, having to do with the diminishing reliability of evidence and especially testimony after 20, 40 or 50 years. As a result of such statutes - and every lawmaker has always understood this - there are people free today from every walk of life who sexually abused or molested someone decades ago but who were never held accountable because no one accused them or raised an alarm in time.

Many similar predators undoubtedly thousands who committed crimes have died. As obvious as this reality has always been, Fitz-Gerald and House Majority Leader Alice Madden, her co-sponsor, never before proposed lifting the statute of limitations for sex-abuse suits, let alone authorizing them against an institution when the alleged perpetrator is deceased.

No, the two lawmakers only concluded that justice demands such radical revision in civil law within months of accusations surfacing against two former priests - one dead and one long retired - in the Denver archdiocese involving events from 25 years to a half-century old.

But remember, their bill in no way targets any particular organization. And pay no attention to that man behind the curtain, either.

Road-rage roulette

"It takes chutzpah to say he had the intent to kill," declared the lawyer for Jason Reynolds at a hearing Monday regarding two counts of first-degree murder lodged against his client in an Arapahoe County courtroom.

The attorney, H. Michael Steinberg, is of course only doing his job. He may even be right that Reynolds did not mean to endanger Kelvin Norman when he allegedly pulled in front of Norman on E-470 and slammed on his brakes. This set off a chain reaction that ended up taking the lives of Norman and Greg Boss, who was driving in the other direction, but it's just possible this was a huge surprise to Reynolds. But if so, he is the type of fellow who would also be shocked if someone died after a man loaded a revolver with a single bullet, spun the cylinder, and fired into a crowd.

Forcing someone to take evasive action at high speeds amounts to just another form of Russian roulette.

According to news reports, Reynolds was a road-rage regular, with a history that included several incidents in which he first tailgated another driver and then pulled in front of the vehicle and slammed on the brakes. He even came close to hitting an unmarked patrol car on the evening of his arrest.

"I hope it doesn't seem mean, but he (Norman) got what he deserved and what he had coming," an arrest affidavit said Reynolds told a tow-truck driver after the fatal accident.

Yes, it does seem "mean" to express such sentiments. And criminal. And maybe even homicidal.]]> Shady collection practices claimed http://www.yourlawyer.com/articles/read/11267 Wed, 01 Feb 2006 00:00:00 -0800 http://www.yourlawyer.com/articles/read/11267
It was the first of half a dozen calls from Security Credit Systems Inc. of Buffalo, N.Y., the collection agency hired by County College of Morris (CCM) in Randolph Township to collect on a tuition bill from 1997.

The situation has shed light on the laws governing collection agencies and the tactics used to collect debts, tactics that sometimes skirt or violate federal consumer protection laws.

Pinado, 27, a former Berkeley Heights resident, now lives in Saddle Brook. He claimed that the collection agency threatened to put a lien on his home and further legal action if he didn’t pay.

He said the agency and the college never told him that he didn’t even have to pay the bill because the six-year statute of limitations on payments had run out.

Pinado was a student at County College of Morris in 1997 before he transferred to Fairleigh Dickinson University in Madison. He signed a promissory note to pay CCM if the college did not receive payment through a $2,100 grant he expected from the N.J. Higher Education Student Assistance Authority.

Pinado transferred from CCM and said that for eight years, he heard nothing from the college, believing the bill had been paid by the state grant. He has since learned that the grant was not provided because the wrong college code was listed.

The first call for collection came on Dec. 30, 2005, when an individual spoke with Pinado’s wife and allegedly used profane language, demanding the payment and claiming to be calling from CCM.

“He first called my wife and threatens to put a lien on my home, take legal judgment where I would be charged attorney fees,” Pinado said. “My wife was so frightened and badgered that she gave the man my work number.’’

The collection agent proceeded to call Pinado at his job as a pharmacy manager in Bergen County. It was the first of about a half dozen calls so far to his home, workplace and cell phone.

Pinado said the same person would call using different names and threatened that Pinado’s credit would be damaged if he didn’t pay. The most recent call came on Thursday, Jan. 19.

“The big thing was when they threatened to ruin my credit,” said Pinado. Diane Zitek, a CCM spokeswoman, said the college tries to collect student debts without forwarding them for collection.

“We spend years sending letters and reminders and then we turn it over to a collection agency,” said Zitek. “We have a promissory note that he (Pinado) agreed to pay if the financial aid did not come through.”

Zitek also said there is no statute of limitations on payments that are forwarded to collection agencies.

“He’s not dealing with the college anymore,” she said. “He’s dealing with the collection agency.”

But Glenn Chulsky, a Succasunna attorney who specializes in representing consumers complaints about collection agencies, said there is a six year statute of limitations for collecting bad debts in New Jersey.

Zitek said the Pinado case was unusual because the college has no deferred payment plan for tuition and has a “very small rate of default.”

Robert Dixon, vice president for sales and marketing for Security Credit Systems, said he would investigate Pinado’s claims that the collector had allegedly acted improperly.

Dixon said his company has many major college accounts and that colleges are sensitive to public criticism about collecting bills.

“You have to act in a normal, civilized way,” said Dixon. “When there is smoke and a student complains, colleges don’t like it.”

Dixon said there was more abuse by collection agents in years past.

“Things have really been cleaned up a lot,” he said.

Chulsky also said that in cases he has represented, the problems were not typical of the companies but usually involved “rogue employees.”

Dixon said the statute of limitations may have expired on Pinado’s bill but that did not bar the collection agency or the college from continuing efforts to collect on the owed bill. He also said the collection agency has no legal ability to force anyone to pay and that ability lies with the college.

Karen Vanderhoof, vice president for finance at CCM, said on Monday, Jan. 23, that the college was pulling Pinado’s bill for collection until the college can verify the facts.

“Until we pull all our records and validate what happened to the student, we’re putting collection on hold,” said Vanderhoof.

Pinado said he will pay the bill if it does not have a bad impact on his credit rating.

The Federal Trade Commission’s (FTC) 2005 report said that in 2004, the total number of complaints received about third-party debt collectors increased to 58,687, from 34,565 in 2003, a 70 percent increase.

A 1999 study conducted for the American Collectors Association, the trade association representing collectors. reported that collectors make an estimated 87 million consumer contacts every month – more than a billion annually. A 2004 report showed that collectors make 3.375 billion consumer contacts a year. At this rate, the complaints received by the FTC represent about 1 in every 58,000 contacts.

The collection business is big business in the U.S. In 2002 there were 5,215 collection agencies employing 445,000 collectors in the United States, according to a 2005 report by the American Collectors Association.

U.S. collection agencies earned $16.5 billion in 2004, annually, having tripled in the past 10 years.

The industry report also said the collection industry saves the typical American family $331 a year. This represents money they would have spent if businesses raised their prices to cover losses to bad debt instead of recovering the revenue through a collection agency.

“The debt collection industry is out of control,” said Steve Tripoli, a consumer fraud investigator with the National Consumer Law Center in Washington, D.C. “There is an aggressive new group of collectors who are evading the letter and spirit of the law.”

Tripoli said the maximum $10,000 fines imposed by the Federal Trade Commission are considered part of the cost of doing business by large collection agencies.

“For the past decade there has been a new breed of agencies who realize you can basically step on the law and get away with it,” said Tripoli. “You pay your fines and get on with your business. There is a gzillion rogue operators. Flaunting the law is standard practice for debt collectors.””

Nate Thompson, a spokesman for the Association of Credit and Collection Professionals, said all collections agencies must be registered with the secretary of state of their home state. He also said unethical or illegal collections practices aren’t effective in colleting payments.

“The most effective collectors are the ones who work with the consumer and not threaten or invoke fear,” said Thompson. “If you bring in emotions, you’re not working toward a resolution.”

Security Credit Systems Inc. of Buffalo, N.Y., was formed in 1983. Dixon said the company is one of the largest in the nation in representing colleges and universities. Among the clients are Duke, Princeton, Cornell and Purdue.

Dixon said his company’s collectors are careful to act ethically and legally because colleges are sensitive to any public criticism.

“You don’t fool around with business like this,” said Dixon. “If you don’t serve students’ accounts correctly, you won’t keep the business.”

Dixon said many complaints regarding outstanding college bills are unfounded and are by people who simply don’t want to pay.

“There are very few innocents out there,” he said. “Students don’t expect schools to come after their money and they’re upset about it. There is a lot of nonsense spewed out by people who owe money.”

Dixon also said his company assigns experienced collectors to larger accounts and has ongoing training and seminars. He said new collectors train for about two weeks.

And while there are statutes of limitations on payments, Dixon said it is perfectly ethical for a college or collection agency to keep seeking payment.

“It’s still a moral obligation to repay,” he said. “There is nothing immoral or unethical about asking for repayment.”

Dixon said collection agencies were the target of significant bad press in the mid- to late-1980s. But he said since the late 1990s, the public perception has changed.

“Now, it seems the public has turned against debtors in general,” said Dixon.

There were no complaints on file with the state Division of Consumer Affairs against Security Credit Systems Inc., according to consumer affairs spokesman Jeff Lamb. He said the state requires that credit agencies file a $5,000 bond to do business in New Jersey.

Consumer advocate Budd Hibbs also said he had no record of complaints against Security Credit Systems Inc. Hibbs hosts a consumer radio show in Texas. His website, www. Budhibbs.com, tracks complaints about collection agencies in addition to offering information to consumers.

Hibbs said Buffalo is known as the “debt collection of the world” and that in the debt collection industry, a particularly egregious collector is known as a “Buffalo-style debt collector.”

Hibbs said the successful collection agencies usually use tough tactics to collect.

“Most people don’t respond to “please pay,”” said Hibbs. “They respond to “we’ll take you to court if you don’t pay.””

Chulsky, the Succasunna lawyer, said he does not charge for lawsuits against collection agencies because he accepts only those that are obvious violations. As part of the settlements or court decision, the legal costs are paid by the collection agency.

“It’s usually clear and easy to show a violation,” said Chulsky.

Collection agencies are regulated by the Federal Trade Commission (FTC) and the federal Fair Debt Collection Practices Act.

The act prohibits “abusive, deceptive, and otherwise improper collection practices by third-party collectors.”

The FTC 2005 report says the most frequent complaint was harassment. Many consumers said a debt collector called too often, others complained of collectors calling several times within a very short period, “screaming obscenities and racial slurs, or even threatening violence to the consumers or their family members.”

Another common complaint was that consumers did not receive the required written notice that lists the debt and other information.

The FTC reported that some collectors send consumers nothing in writing and illegally refuse to reveal the name of their collection agency, thereby preventing the consumer from registering a complaint about the collector.

The law also provides that if the consumer disputes the bill in writing, the collector must cease collection efforts until it has provided written verification of the debt.

Another common complaint involved calling a consumer’s place of employment: A debt collector may not contact a consumer at work if the collector knows that the consumer’s employer prohibits the consumer from receiving such contacts.

Another complaint was that collectors illegally revealed the alleged debts to third parties such as employees, relatives, children, neighbors and friends.

The act also requires debt collectors to cease all communications with a consumer about an alleged debt if the consumer communicates in writing that he wants all such communications to stop or that he refuses to pay the alleged debt.

This doesn’t stop collectors from filing suit but it does prevent them from calling the consumer.

Another source of complaints involves the use of false or misleading threats of what might happen if a debt is not paid. These include threats to institute civil suit or criminal prosecution, garnish salaries, seize property, cause job loss, have a consumer jailed, or damage or ruin a consumer’s credit rating.

The act prohibits such threats unless the collector has the legal authority and the intent to take the threatened action.

Debt collectors may not state that the consumer will be arrested if he doesn’t pay a debt; that they will seize, garnish, attach, or sell the consumer’s property or wages, unless the collection agency or creditor intends to do so, and it is legal to do so; or take actions, such as a lawsuit, when such action legally may not be taken, or when they do not intend to take such action.

An FTC report to consumers said a collector may contact in person, by mail, telephone, telegram, or fax but may not contact at inconvenient times or places, such as before 8 a.m. or after 9 p.m.

Consumers who believe a debt collector has violated the law has the right to sue in a state or federal court within one year from the date the law was violated. The consumer can recover money for the damages plus an additional amount up to $1,000. Court costs and attorney’s fees also can be recovered. A group of people also may sue a debt collector and recover money for damages up to $500,000, or 1 percent of the collector’s net worth, whichever is less.]]> Roman Catholic Bishops Bill Deals With Child Sexual Abuse http://www.yourlawyer.com/articles/read/11248 Tue, 31 Jan 2006 00:00:00 -0800 http://www.yourlawyer.com/articles/read/11248
"On a matter as ugly and grave as the sexual abuse of minors, exactly the same civil and criminal penalties, financial damages, time frames for litigation and statutes of limitations should apply against both public and private institutions and their agents," the statement said issued Monday said.

It was signed by Archbishop Charles Chaput of Denver, Bishop Michael Sheridan of Colorado Springs and Bishop Arthur Tafoya of Pueblo.

Senate President Joan Fitz-Gerald and House Majority Leader Alice Madden introduced their measure Friday making it easier for victims to sue the church and other private groups by extending the statute of limitations in cases in which an institution or another person could be held "vicariously liable" for a perpetrator's acts.

The bill would not affect sex-abuse complaints against employees of public schools or government entities -- which is unfair, the Catholic Archdiocese of Denver argues.

More than two dozen lawsuits have been filed alleging sexual abuse by a priest whom the victims claim the the church knew had molested other children.

"We now have a lot of victims coming forward who have no way to seek any justice," said Fitz-Gerald, D-Coal Creek Canyon, who is Catholic. "I'm trying to give people who have been abused their day in court and let juries sort it out."

Hundreds of cases were filed against the Catholic church in California after lawmakers recently opened a one-year window suspending statutes of limitations for child sexual abuse lawsuits.

With some exceptions, child sex-abuse victims in Colorado must file by the time they're 24.

Under the proposal, some damage limits would be lifted and lawsuits could be filed even if the alleged abused has died.

Other bills in the House would abolish the statute of limitations for child sexual abuse in criminal cases and in some civil cases, including those involving any future incidents of abuse.]]> Diocese caught off guard by furor http://www.yourlawyer.com/articles/read/11249 Tue, 31 Jan 2006 00:00:00 -0800 http://www.yourlawyer.com/articles/read/11249
"I believe we do have a moral obligation to look into this," said the Rev. James T. Mahoney, the vicar general and No. 2 official in the Roman Catholic diocese. "I know of no family that would be comfortable with a sexual abuser living near them."

But as the diocese mulled the issue, some of James T. Hanley's victims began taking matters into their own hands. Mahoney's statement came one day after the victims blanketed Hanley's Paterson neighborhood with leaflets describing his case. They said Monday that was just the beginning.

"He will be looking over his shoulder as long as he is still alive," Ray Skettini said. "Someone has to do it. The church has washed their hands of this."

Hanley said Monday that all the attention -- including an angry confrontation with the victims near his apartment Sunday -- had prompted him to consider moving.

"No matter what I do, I'm dead in the water," Hanley said. "They're going to come after me."

The 69-year-old Paterson native said he spent most of Monday "just wandering around," away from his home, including a visit to a park in Hunterdon County.

Hanley admitted in a sworn statement that he molested at least 15 boys from 1968 to 1982 at parishes in Mendham, Pompton Plains and Parsippany and was removed from the priesthood nearly three years ago.

Because victims waited years before coming forward, the statute of limitations barred prosecution, so he was never charged and did not have to register as a sex offender under Megan's Law.

But a news article in The Record, in which Hanley told his story publicly for the first time, prompted the victims to go to Hanley's neighborhood Sunday to warn people that a sex offender was living among them.

While they were doing so, Hanley showed up, sparking a tense showdown.

He said Monday that he "was moved by the Holy Spirit" to confront his victims.

Despite his admissions, Hanley insists some of the accusations against him have been exaggerated. He said he molested about 12 boys, but was sick with alcoholism and bipolar disorder. He says he hasn't molested anyone since the early 1980s.

"I feel really at peace with what happened Sunday," Hanley said. "I had to let them know what was on my mind."

But the showdown only infuriated the victims.

Skettini, for example, said it convinced him Hanley was still dangerous.

"At first, I was wondering whether we were going too far," said Skettini, who said he was molested as a 12-year-old at Our Lady of Good Counsel Church in Pompton Plains. "But when he showed up, he certainly showed me this is what exactly has to happen."

The 49-year-old Sussex County man added: "He still has that charisma. And if somebody doesn't know about him, he could find a way to get children on his lap."

Victims say the diocese should have monitored Hanley after removing him from the priesthood in 2003. Church officials conceded Monday that they did not know Hanley had recently moved from South Paterson to another part of the city.

"Our first inkling was watching him on TV," Mahoney said.

The victims also lambasted the church for paying Hanley a stipend of around $2,100 a month. The diocese questioned Monday whether that amount was accurate, but Hanley provided The Record with a 2003 letter from church officials promising him $2,060 a month.

Mark Serrano, who said he was abused for seven years by Hanley, called on Paterson Bishop Arthur Serratelli to meet with residents of Hanley's neighborhood and to require Hanley to undergo periodic evaluations.

"We are talking about an admitted child molester who takes a paycheck from the bishop," Serrano said. "Isn't there a minimum standard of responsibility here?"

Serratelli and other church officials said the diocese has no legal standing because Hanley is no longer a priest and doesn't live on church property. They argue the church can't act as a law enforcement officer.

"The obligation for any surveillance would fall to the state and not the diocese, because Jim Hanley has been severed from the diocese of Paterson," Serratelli said in a prepared statement.

Nevertheless, by day's end, Mahoney said the diocese had decided to rethink the matter. He said the diocese would soon hold discussions with priests, its lawyer and the board that reviews accusations against priests.

"We have to be so careful that we protect the rights of everyone," Mahoney said. "Both the victims and the accused."

An official with the Passaic County Prosecutor's Office said the Hanley case is one of many cases that fall through the cracks. The statute of limitations on sex assault already was revoked in 1996, but that action didn't affect older cases.

"I think this case highlights the limitations of the sex offender registry program," said Joseph Del Russo, chief assistant prosecutor. "The requirement for community notification is you have to have been convicted."

Del Russo said victims could petition the Legislature to amend Megan's Law to force offenders like Hanley to register.

He said it would be highly unusual if the diocese, or any other employer, sought to monitor former employees.

"You don't hear of Verizon or Merrill Lynch having any obligation," he said. "It would open a real Pandora's box of liability for employers."]]> Statutes of Limitations State by State Guide http://www.yourlawyer.com/topics/overview/statutes_of_limitations Tue, 31 Jan 2006 00:00:00 -0800 http://www.yourlawyer.com/topics/overview/statutes_of_limitations Statutes of Limitations

State by state guide to statutes of limitations. Statutes of limitation determine how long you have to file a lawsuit. In the case of personal injuries, the type of injury as well as the state the injury occurred in are some of the factors used to determine the length of time you have in which to file a lawsuit.

If you have been injured in an accident please complete a case evaluation. Our attorneys will analyze your states' statutes of limitation and determine if you can proceed with a lawsuit. Statute of limitations (SOL) – Is the time in which a law suit must be commenced by the injured party. In almost all cases, unless there is some special circumstance, the SOL begins to run from the date of the occurrence that caused the injury. This is referred to as the date on which the cause of action accrued.

Statute of repose (SOR) – A statute of repose is quite different from a statute of limitations. SORs usually apply in products liability cases and are designed to limit the exposure of manufacturers and sellers. A statute of repose begins to run from some specified time or event regardless of whether any claim has accrued or any injury has occurred. Thus, a SOR may actually bar claims before they even accrue.

As stated in (4 American Law of Products Liability 3d §47:55):"Unlike statutes of limitation, that are designed to prevent plaintiffs from sleeping on their legal rights to the detriment of a defendant, repose statutes applicable in products liability cases focus on the age of a product, rather than on the plaintiff's conduct. The repose period serves as an absolute barrier that prevents a plaintiff's right of action. In other words, the period of repose has the effect of preventing what might otherwise have been a cause of action from ever arising." Personal injury statutes of limitations.

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