Who bears the burden of proof in a criminal case?

By Larry . . . NARSOL is excited to announce the filing of an amicus brief in the United States Supreme Court in support of Stephen May’s Petition for a Writ of Certiorari. It is important to understand that the Supreme Court declines to hear most cases in which review is sought, which means all petitioners face very long odds. As a result of this reality, very few organizations dedicate resources to supporting such petitions. NARSOL recognizes that this issue is of great public importance and that a positive ruling from the Supreme Court would have nationwide impact.

The case is May v. Shinn; this is NARSOL’s brief.  It focuses on Petitioner May’s third question presented: “Whether trial counsel’s failure to challenge the constitutionality of the Arizona child molestation statute was ineffective assistance of counsel warranting relief under the Sixth Amendment based on application of Strickland v. Washington, 466 U.S. 668 (1984).” This case is crucial and impacts so many for the simple reason that the state of Arizona has chosen to shift the burden, requiring the accused to disprove intent for the touching rather than requiring the prosecution to prove criminal intent.

In 2007, Stephen was convicted by a jury of child molestation for briefly touching children over their clothing in public and in full view of numerous adults and other children. Unfortunately, Stephen suffers from a neurological condition called ataxia which makes him appear odd and causes him to be clumsy. The most troubling aspect is that Arizona stands alone amongst the states in requiring a defendant accused of certain sexual crimes to prove their innocent intent for the touching rather than requiring the state to carry that burden of proving guilt.

Stephen, who has maintained his innocence from the beginning, has been fighting to reverse his conviction since 2007. In what can only be described as a tragedy, Stephen had woefully inadequate representation which only exacerbated the numerous errors in his case. As eloquently stated in our brief by Professor Sullivan, “NARSOL represents members of a particularly unpopular or hated group in American society who deserve effective representation by counsel in order to protect their right to due process of law, a right long recognized by this Court.”

After exhausting appellate review in the Arizona courts Stephen filed a habeas petition in the United States District Court for the District of Arizona, the Honorable Neil V. Wake presiding; Stephen May was granted relief based on trial counsel’s ineffective assistance.  May v. Ryan, 245 F. Supp. 3d 1145 (D. Ariz. 2017). On appeal, the Ninth Circuit Court of Appeals initially sustained the grant of relief on an alternative ground asserted in May’s petition, but rejected by the District Court, 766 Fed. Appx. 505, 509 (9th Cir. 2019). On rehearing, the panel reversed its decision and denied relief on all claims. May v. Shinn, 954 F.3d 1194, 1208 (9th Cir. 2020). The Ninth Circuit relied on that single decision of an intermediate state court to rationalize that trial counsel’s failure to challenge the burden shifting statutory scheme was acceptable in terms of reasonable practice by defense counsel. It then deferred to the state post-conviction courts’ finding that counsel’s failure did not demonstrate deficient performance under Strickland to avoid consideration of the merits.

When all of the legal terms and court references are stripped away, this case is simple and extremely critical. For decades, as long as our nation and our Constitution have stood, when a person is accused of a crime, the state must prove he is guilty before a conviction can be had. The state of Arizona has shifted that burden, ignoring the Constitution, and in an unprecedented reversal is requiring the accused to prove he is innocent.

It is for all of these important reasons and more that NARSOL committed the resources necessary to help fight this important case. This is the second time NARSOL has filed an amicus brief in this decades old case. We are hopeful that the Supreme Court will recognize the significance of this case and grant review.

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Larry Neely

Larry serves as NARSOL'S treasurer, publisher of the Digest, and co-chair of the conference planning committee. He also hosts the "NARSOL in Action" and "Can They Do That?" webinars and is a regular on the "Registry Matters" podcasts.

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    • #81814 Reply
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      The Criminalized Man

      I’m surprised Arizona’s law even acknowledges intent. If shifting the burden to prove intent is “ignoring the constitution”, laws enacted without any intent provision at all (presuming intent!) should be even more vulnerable to review. I really, really hope this brief succeeds!

      • #81927 Reply
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        Casper

        In Michigan your guilty by association! If you are accused by anyone your already guilty. Now you face a very expensive trial that one can not afford or take a plea. The attorneys don’t practice law just procedure. Those who take it to trial face harder and longer sentences as well as paying having to mortgage your soul only to find out that the only ones benefiting from the trial are the attorneys, judge and state if placed in prison in michigan!

    • #81819 Reply
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      A Mistake They Made

      This should be a no brainier win for America, since it is the foundation of our legal system that the burden is not on the defendant. If they lose escape this country if you can it is over for men!

      • #81899 Reply
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        Jim

        A Mistake They Made. Your right it has been over for a long time. We lost the fight before it started. Its called a TKO. The wimpy pathetic people in the UNITED SOCIALIST STATES OF AMERIKA are glad to give up their rights for the illusion of safety. The government is the Circus Ring Leader and the Wimpy Pathetic Citizens are the Chickens standing on the hot plate that dance when the Ring Leader turns up the heat. Just remember to tread on those who tread on you!!!

    • #81821 Reply
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      Benjamin T

      I wholly support Stephen. I met him on a few occasions, and I do believe he is innocent. Furthermore, I’m tired of States creating and applying laws in a way the violates constitutional rights in order to get their man. They are able to do it because SOs are a hated group of individuals, so no one cares what happens to them or if their rights are violated. I pray for Stephen’s exhonoration.

      • #81905 Reply
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        Thomas

        It is also important to note, that by allowing both the Constitution and Human Rights to be violated in this way, they pave the way for other groups to be violated as well in such a way. This country has already fallen to the ways of communism. Most states are now run like a dictatorship. If you can go from a requirement of 25 years to register, to life-time simply by moving to another state, then have additional restrictions and requirements piled on for the same, plus a financial cost added, and you know Michigan’s Supreme Court actually declared this as punishment and unconstitutional. The bar as been set. You now have a precedence. I was a teenager when I got in trouble. So was the girl, “who found me”. I simply was stupid to meet her. And you know what? I didn’t even have sex with her. I met her, it was termed petting. She even refused to cooperate with the DA. And my idiot court appointed drug it out past my 20th birthday, almost to my 21st. I was scheduled by michigan for my registration period to end in 2023. But that won’t happen now. All because I moved to Florida.

        I may get trolled for this next statement, but you know, wwg1wga! It’ll happen to you next. Just saying.

        Facebook already set the tone. They can ban any group for life, for any reason. Next will be supermarkets and other type stores. If you think they can’t, Facebook has it’s own market. I payed real money into those services. I sold things on there. I had pictures I took, scenic, that I can never recover. And access to friends and family member profiles who passed away, that I kept for remembrance. All gone! Poof!

        My crime was 23 years ago. But that matters not. Forgiveness is not possible, neither is moving on. One more thing, what incentive do I personally have to not commit a crime at this point? It’s not like finding work is easy. I got 2 registry hits on my background check. That looks like 2 crimes.

        Apologies for the bit of a rant up there, but sometimes you must vent.

      • #81966 Reply
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        Jann Patterson

        I agree that persons accused of any form of sex offense deserve not only adequate representation but prosecutors should have to prove their cases and stop the practice of shoving pleas at every accused person. I wonder if the way to help rectify this would be by having all sex offender cases be processed by federal courts rather than states. I know many prosecutors make defendants believe that they will be better off if their case is left with the state but I wonder if that is true. Of course the federal courts would have to get rid of required minimums to make this even a possibility. My point is that there is such a difference in how SO cases are handled in different states.

    • #81835 Reply
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      Larry

      I find this interesting as when I was charged and indicted I asked where was the proof of intent and actual knowledge of the crime. The court appointed attorney said that the federal prosecutor didn’t need to prove anything. It was our responsibility to prove innocents and that was impossible so take the plea and cut the losses. He actually told me on numerous occasions that he knew I was innocent but we couldn’t prove it. I asked about the burden of proof and he said with the feds it fell on us.

      • #81873 Reply
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        H n H

        “he knew I was innocent but we couldn’t prove it”

        Exactly what got me convicted. And everyone involved in making it happen laughed and laughed and laughed (literally). The entire thing destroyed me as an individual. I learned intent is just automatically assumed in anything sex related, for if it weren’t, then I’m sure there wouldn’t be as many easy convictions as there are. The burden of proof of intent is bent in any way possible to secure a conviction because people love to hate.. it’s an easy emotion and one that once it’s released then anyone and everyone in its path bears the brunt of its wrath. So intent is just automatically coupled with any criminal chargessex related. I know full well fighting it is useless.

      • #81951 Reply
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        Tim in WI

        @Larry,
        One approach to gauge your representative’s ( lawyer) disposition toward your case is to make him sign a statement stating he told you those facts ” that the burden is on you. ” When public defenders start ducking a trial and the effort involved in promulgating a defense I simply put it to the judge in writing. I always had trouble getting the public defenders office to file motion for discovery detailing the persons and processes used to ” make lawful” the new obligation ” to register”. This is justified because that process typically MUST happen with documentation in a court of law. Not the case however in ex post scenario. That happened in the dark.

        I’ve used the same tactic, a signed statement of facts, when the PD Lawyer refused to call a witness( public official) I knew would help different case. First, he refused my requests but in open court on the very next date I told judge about the “potentially exculpatory testimony” I may get out of it and my lawyers reluctant disposition. Judge had a back and forth colloquially with ADA & PD office and ended up setting up a “deposition hearing” pretrial. Turned out judge ruled his testimony “probative of guilt” and therefore admissible for jury trial!

        My main point is use the system provided and get it in the record when your lawyer fails to meet your expectations. If the lawyer refuses to sign a statement saying he refused and his ground for doing so, then get it into the transcript in open court. The last problem a lawyer wants is for the office of lawyer regulations to get involved. Informing a defendant of untruth ” that the burden of proof is on defendants ” is a violation.Obviously!

    • #81901 Reply
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      Thomas Fritz

      2012-12-17 in a bond hearing before the Judge Mathis, 5th circuit court southern district of texas, (where the federal prosecutor lied directly to the judge knowing full well, proof beyond any doubt that I was a victim of fbi special agent jeffrey m. allovio, human rights task force
      commander when he found proof that Jenna Fritz was being cat fished online) the Honorable Judge stated on the record “In cases like these, you are presumed guilty until proven innocent in this court.”

      With research, discovered that it is not a u.s. constitutional law, nor has it been ever passed in the federal system, comes from the Magna Carta Libertatum, (commonly called Magna Carta, is a royal charter of rights agreed to by King John of England at Runnymede, near Windsor, on 15 June 1215) to which we inherited some of their laws, but the law to be presumed innocent until proven guilty in court, is not one of them.

    • #81898 Reply
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      Perry

      It never has been, nor will it ever be a surprise to me, that this went on in the first place. Everybody knows that DA’s. Judges, and the entire collective of the people that make up the ‘Injustice System’, are all themselves far more Corrupt than any of Us will ever be. They’ll apply The Constitution when they feel like it or when it suits them for their Nefarious Purposes, but won’t even acknowledge it when WE try using it Ourselves where truly applicable…especially AFTER we’ve Done our Time and Completed Our Sentences! Mark My Words: There WILL come a day when there will be New DA’s and Judges, that will recall the multiple wrongs placed against a Parent, Grandparent, Uncle, Aunt, Sister or Brother or even Son or Daughter by this self-same ‘System’…and THEY, will be the ones to finally Force a Future Congress to finally get rid of the Evil known as The Registry For Good! Hey, anything’s possible, even if I’m long dead!
      Nuff Said!!

    • #81896 Reply
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      freedomman

      I asked my attorney why don’t they just drop the charges when they dropped it from 1st degree felony to a misdemeanor and my attorney said it would not look good if they just let me go! Innocent until proven guilty is just a nice slogan we all want to believe in. It is not real. Regardless of how laws read, the burden is always on the accused.

    • #81894 Reply
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      John

      “Innocent until proven guilty”, like “guilty beyond a reasonable doubt” and, of course, “burden of proof is on the prosecution” are anachronisms of an America that no longer exists.

      Ask the million people currently in prison – not jail, sorry, it’s prison – awaiting trial. The “innocent” prisoners I met while ‘inside’ had it worse than those of us serving our sentences. Prosecutors & overworked public defenders delay and delay while “innocent” citizens suffer in prison and ignore their “right to a speedy trial” until many years go by and either their conditions become so intolerable OR the length of time served exceeds their expected sentence. At that point prosecutors get to offer “timed served” release in return for a plea of guilty. Is this justice? No. But it explains how a so-called adversarial system has outcomes that favor one side by 95%+ win rate. It’s all enough to make a Las Vegas Casino boss blush.

      There is no justice in America. I appreciate NARSOL and Larry et al for trying – please don’t ever stop – but the Court has turned its back on the Constitution. Public opinion must be won first, IMO.

    • #81884 Reply
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      Howard Woodworth

      This is a known thing. You have to prover you are innocent. They presume you guilty as soon as you are accused. This is a known fact. Been there Done that

    • #81915 Reply
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      William Hart

      While it may not be actually written into the law anywhere else, the fact is the burden of proof has fallen on the accused in sex crimes for many years. This has been going on for so long that it has become acceptable in today’s society

    • #81920 Reply
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      Kurt

      I wonder (guessing, but have done no legal research into this) if a state CAN list a certain kind of specific intent AND THEN demand that the defendant disprove it (this treating the absence of that intent as an “affirmative defense” if, AND ONLY IF, that element is not constitutionally required, and the State could have, if it wished, simply written the law without mentioning intent. EXAMPLE: “It shall be a 2nd degree felony for an adult to touch a child’s private area, except as necessary to fulfill parental duties as to health or hygiene.” COMPARE WITH THIS: “It shall be a 2nd degree felony for an adult to touch a child’s private area with the intent to sexually arouse either the adult or the child, except as necessary to fulfill parental duties…”

      Could the government just write the law the first way? If the can do that, and it’s not a violation of anyone’s constitutional rights (the law is not vague or otherwise violative of Due Process, then why can’t the government write-in an exception but say it’s up to the defendant to show the exception doesn’t apply?

      Notice that some “crimes” as the legislature might write them MUST have exceptions in order to be constitutional. Example: “It shall be a crime to yell or shout at a member of Congress.” cannot be a valid, enforceable law. But “It shall be a crime to yell or shout at a member of Congress with the intention of terrorizing said person into changing how they are inclined to vote on pending legislation.” Clearly, only the second law could pass constitutional muster, so that element of the offense — intent to terrorize and affect job duties– cannot be something that’s shifted to the defendant. That must remain on the State to both allege in the indictment and prove with evidence in court.

      • #81987 Reply
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        Tim in WI

        Kurt,
        You have identified the mens rea imparted in respect to culpability in malicious intent of an act. Wisconsin Congress avoided that parental conflict – rights abuse by excluding parents from registration by exception in staute. Obviously that was a work around ” normal non expressed common law parental rights” that was sure to get in the way of upholding the database driven regime down the line. The socialist demands the right to raise your children by their way of thinking and no other. By doing so the purveyors of big data bought themselves some time.

    • #81921 Reply
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      R.Arens

      Who bears the burden of proof? … It doesn’t matter if you’re a rapist, murderer, purse snatcher, drug dealer, embezzler, or tax cheat. The burden will always be on the defendant. Our justice system reversed itself decades ago. It’s guilty until proven innocent and it shows. Look at the bail scheme they got going. Here in Iowa I look up the jail roster in my county just to see if anybody I know got busted for something dumb and I see people with little infractions like trespassing sitting in jail with 2 thousand dollars cash only in defendants name only bail. Since when does setting foot someplace where you don’t belong equate to a person being so dangerous to the public that they require so much money to get out? Guilty until proven innocent. Says it all right there.

    • #81934 Reply
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      Tim in WI

      @NARSOL,
      Why did the founders give the citizen facing indictment the powers of a King?
      When you answer that question you will understand the best path forward.

      A failure to register case brings with it the opportunity to confront them under direct scrutiny. Obviously not everyone is similarly situated, but nonetheless if you know its unconstitutional it is your duty as a citizen to confront the corruption even if it comes with time behind bars.

      MLK AND Ms. Parks both experienced jail time for their confrontation with corrupt authority. Finally the people are attacking those responsible for the institutionalised corruption- THE US CONGRESS.

    • #81937 Reply
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      Mary

      I am so done with this country! I’m sorry-I should have a better attitude about fighting to the death. BUt that is what it will be. A lifelong struggle until death do us part! As soon as possible…we will vacate and find a more humane place to live!

    • #81943 Reply
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      Jim

      Hey Everyone! It is better to Die On Your Feet than to live on our knees!! The most important thing we need to do is go after these corrupt police and sheriffs like the bully so called sheriff Billy in Florida that thinks he’s tough by picking on a 70 year old man. What a wossie looser that shouldn’t be in office. Pursue the DEFUNDING of these criminal police bullies. The police departments need defunded. Period. Contact your governor and ask for the defunding of the police. Many Governors are actually in favor of this. Also remember to Tread On Those Who Tread On You! Fight back!

    • #81967 Reply
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      linda shedlock

      I wish the best of luck to NARSOL and Stephen . I have met Stephen and never felt anything from him except that he was innocent . Narsol needs to win this for him and others going through similar situations . Arizona s laws and most other states throw people in one pot and charge them according to what is believed their crime to be . Prosecutors in arizona just go for the juggler . My experience in arizona , the prosecutor was a very pregnant woman . With all those hormones flying how can she make a sound judgement on anything ! The proof needs to be there , not the prosecutors opinion or emotions . !

    • #81979 Reply
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      allie

      I don’t think the law will ever change when it comes to so’s. I have a friend whose son was accused of raping his daughter many years ago. She later came forward and said her dad never touched her but she was just angry at him for not letting her spend the night with her boyfriend. She was 16 years old. It didn’t matter to the judge that she admitted this to the court under oath and to this day her dad is still in state prison. It’s been about 30 years now and they still won’t let him out. I don’t have much faith in our justice system.

      • #82030 Reply
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        H n H

        Well Allie, thqt should provide the proof anyone needs that te entire system isn’t built upon what’s right or wrong or harm done, but rather a monetary incentive to the state. I feel bad for that guy, I wonder how prisonhas treated him? I know it isn’t easy…. An understatement.

    • #82035 Reply
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      Jim

      Thanks for trying NARSOL but the Innocent until Proven Guilty thing was eliminated decades ago. Not just for sex offenders but each and everyone convicted of a crime. If your innocent until proven guilty why does everyone have sit in jail or have to be bonded out of jail and be on bond before you are convicted. The reason for this is to prove beyond a shadow of doubt that you are innocent. The innocent until proven guilty thing went down the crapper a LONG time ago. Now on to sex offenders. If someone even HINTS they might have been sexually assaulted, The person being blamed HAS to be convicted beyond a shadow of a doubt evidence or not. If not they say the ” Victim” gets assaulted again if everyone does not agree with their accusation and have the person accused screwed for LIFE. If any Judge, Supreme Court or anyone. sees the evidence and sides with the accused Sex Offender they will be seen as just as bad or worse than a Sex Offender and be abolished like we are. So why in the Hell would any court side with us???? Just Remember To TREAD on those who Tread on You and its better to Die on Your Feet Than to Live on Your Knees. We all have many ways to protect ourselves.

    • #82624 Reply
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      Larry

      I have spoken of this before but not in this forum.
      An associate and I have proof that Title 18 of the United States Code Service is a fraud. This is certified by both secretaries of the house and senate, the librarian of the Library of Congress and The National Archives.
      Public Law 80-77 which enacted the revision of the Federal Criminal Code was never voted on and passed by either house and was fraudulently presented to then President Truman.
      Even the authenticity of the presidential signature is questionable.
      The reason I bring this up now and here is because last week my associate spent four days with the committee on finance discussing the legalities that they are running into with the Canibus legalization issues that they are trying to work out.
      You may ask what this has to do with sex offenders?
      Well, we to are charged under Title 18. As the statutes are unlawful on the whole, then there is no law. If there is no law, there can be no crime.
      The response to this was at first, disbelief followed by denial. The committee poured over the 17 plus years of research that we have done, called in the various secretaries and librarians and were astounded and came to the realization of the truth of what was before them in certified proof.
      There was a lot more said over the four days as you can imagine. But what it came down to, was, the Senators and Representatives refused to do anything about it because it would undermine our current justice system and it would take years if not decades to sort it all out and make it right.
      My associate was taken aside by one of the representatives from New York and told that the only option we had was to take it to the public and public forums and get a lower court to take it to an actual jury trial where the jury actually sends down a verdict and the judge is just the referee. The chances of winning with a jury trial should be very good, but the chances of it being overturned on appeal are very high as this would directly effect the power of the courts and the judges themselves.
      As we have researched this, we’ve had to delve through a very convoluted and tangled web of fraud and deceit.
      At this time we have calculated that over eight million Americans have been illegally incarcerated for crimes that do not exist as a matter of law. But even knowing this the leadership of this country is continuing to purpotrate this fraud upon the people.
      I do not reveal these things lightly as there are many in our prisons that should be there, but they need to be put there both legally and lawfully, and this has not occurred since 1948. That’s seventy three years.
      This has also been before the United States Supreme Court and they have refused to address the argument and in each case have ruled the individual innocent due to the fact that they were charged under the wrong statute, not mentioning that the statute doesn’t exist at all.
      I won’t go into the convoluted way that the federal government has thrown the 10th amendment out the window and inserted itself into every aspect of our daily lives controlling us from cradle to grave.
      We are also in possession of a letter from a congress woman from Wisconsin who stated basically that she was interested but sorry nothing could be done to correct this great injustice.
      I figure that this may not get by the censors, but it is worth a try as we are following the advice of one of our alustrious leaders.
      Just a bit of food for thought.

    • #82657 Reply
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      Jim S

      If I have learned anything about the court system it is, if you are accused you are guilty!! It is up to you to prove otherwise. If you can’t afford to make bond which in sex cases can be completely unreasonable or no bail! Then if you can’t afford to hire an attorney you will most certainly get a dump truck from the public defenders. He or she will bring a plea deal from the DA, it really doesn’t matter if you are innocent nobody seems to be interested, it just isn’t considered important, it’s not about guilt or innocence or even what’s right or wrong it’s about who has the best courtroom appearance, best voice, better knowledge, etc. Plus the judge will most certainly lean in favor of the prosecutor! The prosecutor in my case said she did not need proof that she could convict on circumstancial evidence, guess I missed something somewhere, always thought it was guilt beyond a reasonable doubt, guess not?? That you really just can’t make up a case just because someone said so, but then again, in sex cases, yes they can & they do & make it stick & then put you on the registry for life!!! Welcome to America the land of the un-free!! I am a Viet Nam vet, no brag just fact, thing is, I am ashamed of what this county has become, how the courts continue to say it’s ok to not follow the constitution, that it’s ok to pick one group of people & continue to punishment them & there families & worse call it something else!!! The english dictionary says about 80% of our words come from latin, pain comes from the latin word poena, which means punishment or penalty!! Let that sink in!! Once again, the courts can call it whatever, but the truth is, it is pain, it is punishment!!!!!!!

    • #82703 Reply
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      Nu Bing

      Ask any defender. Innocent until proven guilty is a myth when it comes to sex laws.

      Another interesting thing is that in New York you can be flashed a fake id from a 17 year old at a club and there’s no defense against that, despite intent to make sure he/she wasn’t a minor.

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