The following is a real-time transcript taken as closed captioning during the oral argument proceedings, and as such, may contain errors. This service is provided solely for the purpose of assisting those with disabilities and should be used for no other purpose. These are not legal documents, and may not be used as legal authority. This transcript is not an official document of the Florida Supreme Court.
Donald Dean Kasischke v. State of Florida
SC07-128
>>> ALL RISE.
IN THE GOOD MORNING, GOOD
MORNING.,,
R.
>>> SUPREME COURT IS BACK IN
SESSION PLEASE BE SEATED.
>> THE FINAL CASE ON OUR
CALENDAR THIS MORNING IS --
KASISCHKE.
>> KASISCHKE VERSUS STATE OF
FLORIDA.
>> MAY IT PLEASE THE COURT
TOM ON BEHALF REGNIER ON
BEHALF OF -- THIS INVOLVES
INTERPRETATION OF PORTION OF
STATUTE HAS TO DO WITH
CONDITIONS OF PRACTICALS FOR
SEXUAL OFFENDERS THE STATUTE
SAYS THE -- HOUSES PROHIBIT!!$$!!!!!!!!!!!!!!
PROHIBITED FROM VIEWING
OWNING POSSESSING OBSCENE
PORNOGRAPHIC SEXUALLY
STATING MATERIAL INCLUDING
TELEPHONE ELECTRONIC ME KWOM
POULTER PROGRAMS SERVICES
THAT ARE RELEVANT.
>> WHY SHOULDN'T THE PHRASE
THAT A RELEVANT -- MODIFY,
THE WORDS FOLLOWING,
INCLUDING.
>> WELL YOUR HONOR THAT IS
THE ARGUMENT THAT THE STATE
MADE IN THE APPELLANT!!$$!!!!!!!!!!!!!!!!COURT USING
DOCTRINE OF THE LAST
ANTECEDENT THE DOCTRINE OF
THE LAST ANTECEDENT IS NOT
NECESSARILY!!$$!!!!!!!!!!!!!!!!!!!!
NECESSARILY, ANY INFLEXIBLE
RULE, AND IT -- IT DOESN'T
APPLY!!$$!!!!!!!!
APPLY, IT IS U.S. SUPREME
COURT HAS SAID, WHEN IT
WOULD NOT MAKE SENSE IN THE
WOULD SEEM TO BE SOME
CONTRARY INTENTION.
>> WHY NOT MAKE SENSE.
>> WELL, IN THIS CASE, THIS
WOULD MEAN THAT THE PERSON
WOULD BE PROHIBITED FROM
VIEWING ANY ELECTRONIC
MATERIALS!!$$!!!!!!!!!!!!!!!!
MATERIALS, THAT ARE RELEVANT
TO DEVIANT BEHAVIOR PATTERN
BUT WOULD NOT BE PROHIBITED
FROM VIEWING BUT IF IT WERE
OTHER PRINT MATERIALS FOR
EXAMPLE PRINTED MATERIALS,
THEN THAT RESTRICTION
RELEVANT TO DEVIANT BAIFSHER
WOULDN'T SFLOOI THAT IS
COVERED BY THE FIRST THE
FIRST PHRASE WITH REGARD TO
THE OBSCENE OR HE
PORNOGRAPHIC IF IT IS A
PROBLEMATIC PIECE OF
SOMETHING, WOULD IT NOT?
>> WELL, WHAT IT MEANS IS
YOU COULD HAVE THE SAME
PICTURE IN PRINTED FORM, AND
THAT RESTRICTION RELEVANT TO
DEVIANT BEHAVIOR PATTERN
WOULD NOT APPLY TO IT BUT IF
THE PERSON SAW THAT SAME
PICTURE SAY ON A COMPUTER
SCREEN BECAUSE IT IS NOW IN
ELECTRONIC FORM WOULD IT
HAVE TO BE RELEVANT TO HIS
DEVIANT BEHAVIOR PATTERN FOR
IT TO BE PROHIBITED, THE
STATE HASN'T REALLY GIVEN
ANY EXPLANATION, WHY WOULD
YOU HAVE THAT DIFFERENT
DIFFERENCE, WHY A DIFFERENT
RESTRICTION ON ELECTRONIC
PRODUCT AS OPPOSED TO TO
PRINTED PRODUCT TO COULD YOU
MAKE A MINUTE TO FRESH OUR
MEMORY ABOUT OUR
JURISDICTION IN THIS CASE
WHAT THE BASIS OF
JURISDICTION IS.
>> YES YOUR HONOR, THE BASIS
FOR JURISDICTION THAT IS
CONFLICT WITH THE SECOND
DISTRICT'S OPINION, IN
TAYLOR, AND IN TAYLOR, THE
COURT WAS FACED WITH A
QUESTION OF THERE WAS A
OPERATIONER -- A PRO
OBLIGATIONER GIVEN
RESTRICTION CONDITION 29 OF
HIS CONDITION, IT SPRIED!!$$!!!!!!!!!!
SPRIEDHIBITED HIM FROM
VIEWING OWNING POSSESSING
OBSCENE PORNOGRAPHIC OR
SEXUALLY EXPLICIT MATERIAL
APPARENTLY WHAT HAPPENED IN
THAT CASE PROBABLY HANDED A
COPY OF THE 1959 A VERSION
OF THE STATUTE -- 1995
VERSION DID NOT APPLY IN
THIS CASE THE COURT AGREED
THAT ENTIRE CONDITION 29
WHICH DID INCLUDE OBSCENE
AND PORNOGRAPHIC HAD TO BE
RELEVANT TO HIS DEVIANT
BEHAVIOR PATTERN, NOW THE
THIRD DISTRICT.
>> NOW SKBT IT REALLY FOUND
JUST TOLD THE TRIAL COURT TO
MAKE SURE THAT THE
CONDITIONS STATED IN THE
ORDER AS CONSISTENTED WITH
WHAT IS STATED -- CONSISTENT
STATED IN SUBSTITUTE DIDN'T
INTERPRET JUST SAID THEY
NEED TO BE CONSISTENT.
>> I DISAGREE WITH AT A
RE13EKFULLY YOUR HONOR IT
SAYS WE AGREED, WITH TAYLOR
THAT CONDITION 29 IN WRITTEN
ORDER PROBATION SHOULD BE
MORE SPECIFIC RELATE TO $$
TAYLOR'S ADMINISTRATOR
DEVIANT BEHAVIOR PATTERN
THEN GOES ON TO SAY, THAT
THAT IS -- TO CONFORM WITH
THE LANGUAGE OF THE STATUTE,
SO WE ARE TALKING ABOUT
EXACTLY THE SAME SECTION OF
THE STATUE THAT IS IN
QUESTION HERE, AND THE COURT
IS SAYING THAT IN ORDER TO
TRACK WITH THE STATUTE, THAT
PHRASE RELEVANT TO HIS
DEVIANT BEHAVIOR PATTERN HAS
TO AFLY CONDITION 29 IT
DOESN'T SAY JUST SOME PART
OF CONDITION NINE.
>> IS THIS A DUE -- JUST
ASSUMING WE GET PAST
JURISDICTION!!$$!!!!!!!!!!!!!!!!!!!!!!
JURISDICTION.
>> YES.
>> IS THIS A -- YOU ARE
MAKING A DUE PROCESS CLAIM
THAT BECAUSE THE STATUTES
CONFUSING!!$$!!!!!!!!!!!!!!!!
CONFUSING, THAT YOUR CLIENT
WOULDN'T BE ON NOTICE, IS
THAT ONE OF THE, AT?
>> YES YOUR HONOR.
>> WHAT ABOUT WHAT DO WE DO
WITH THE FACT IN THIRD
DISTRICT OPINION THAT SAYS
THAT IN ADDITION THE
DEFENDANT WAS ADVISED BY HIS
COMMUNITY!!$$!!!!!!!!!!!!!!!!
COMMUNITY OFFICER WOULD HE
NOT VIEW OWN POSSESS ANY
PORNOGRAPHIC MATERIALITY ON
COMMUNITY CONTROL ISN'T THAT
WE HAVE THAT OFTENTIMES,
SOMETHING MAY BE, MAYBE A
LITTLE BIT UNCLEAR, BUT
THEN, THE COMMUNITY, IS THAT
-- A DISPUTED FACT OUR EVEN
IF DISPUTED SINCE THE THIRD
DISTRICT OPINION SAYS IT,
YOU ARE NOT TAKING ISSUE
WITH THE FACT IT IN COULDN'T
BE A CONDITION OF COMMUNITY
CONTROL, THAT IS NOT
POSSESSING HE PORNOGRAPHIC
MATERIAL JUST THAT THIS
STATUTE GIVE A BROAD BANNED
BUT -- US DOENT GIVE A BROAD
BANNED BUT IF COMMUNITY
CONTROL OFFICER EXPLAINS IT
DOESN'T THAT TAKE AWAY ANY
CONFUSION AT LEAST AS TO
YOUR CLIENT?
>> YOUR HONOR, PROBATION
OFFICERS ARE NOT IN A
POSITION TO INTERPRET
STATUTES!!$$!!!!!!!!!!!!!!
STATUTES.
AND IN THIS CASE, THE --
>> YOU DIDN'T DISPUTE THAT
HE WAS TOLD THAT.
>> NO THAT IS NOT DISPUTEED
IN THE RECORD.
>> AND ON TOP OF IT, FOR
THIS CASE, THIS WOULD BE A
STRONGER CASE, SEEMS TO ME
IF YOUR CLIENT WAS IN
POSSESSION OF PLAYBOY, BUT
WHAT HE WAS IN POSSESSION OF
SEEMS DIRECTLY RELEVANT TO
THE OFFENDER'S DEVIANT
BEHAVIOR PATTERN, I MEAN --
I GUESS WE HAVE THEM IN
EVIDENCE BUT, THESE ARE MEN
ON MEN, AND THERE'S --
THINGS THAT I WOULD THINK
WOULD BE TO SOMEONE TO
COMMITTED HIS CRIME, SEXUAL!!$$!!!!!!!!!!
SEXUALLY STIMULATING KINDS
OF -- MATERIAL, SO DON'T YOU
YOU KNOW EVEN IF WE TRERPT
INTERPRET AS NARROWER I
DON'T SEE HOW YOU ARE IN
THIS CASE -- THAT THAT THE
KIND OF MATERIAL THAT WAS
POSSESSED ISN'T RELEVANT TO
HIS DEVIANT BEHAVIOR.
>> WELL YOUR HONOR, MY
CLIENT!!$$!!!!!!!!!!
CLIENT, FEELS THAT BECAUSE
THE HISS CRIME WAS AGAINST A
PERSON UNDER 16 YEARS OF
AGE, THAT ANY PORNOGRAPHY TO
BE RELEVANT TO DEVIANT
BEHAVIOR PATTERN --
>> HE MIGHT BELIEVE THAT
EVEN IF WE INTERPRET STATUTE
MORE NARROWLY WOULD I THINK
THAT 18-YEAR-OLD VERSUS A
15-YEAR-OLD!!$$!!!!!!!!!!!!!!!!!!!!
15-YEAR-OLD, IS -- I MEAN I
DON'T -- I DON'T THINK THAT
THEY GOT TO GET SIGN
ACTIVELY INTO WHAT MAKES
YOUR CLIENT PREY ON 15 YEAR
OLDS, IT IS THE FACT THAT HE
-- DID SOMETHING TO IS NOT A
CHILD, IT WASN'T A -- HE
WASN'T A PEDOPHILE, IT WAS
-- ADOLESCENT BOY, THE FACT
THAT HE IS VIEWING OTHER
THINGS THAT INVOLVE MALE ON
MALE PORNOGRAPHY TO ME IS --
CLOSE ENOUGH TO THE
OFFENDER'S DEVIANT BEHAVIOR
PATTERN.
>> YOUR HONOR WOULD I
DISAGREE WITH THAT, BECAUSE
WE ARE INTERPRETING A PEENLT
STATUTE HERE I FEEL WE NEED
MORE PRECISION THAN THAT,
ALSO IT IS AN IMPORTANT
DIFFERENCE, BECAUSE, IF HE
HAD SEX WITH A PERSON OF
AGE, THERE WOULD BE NO CRIME
AT ALL.
SO --.
>> I THINK THAT WHEN YOU ARE
LOOKING AT IN KEEPING WITH
JUSTICE PARIENTE$$'S QUESTION
YOU ARE LOOKING AT RELEVANT
BEHAVIOR!!$$!!!!!!!!!!!!!!
BEHAVIOR, AS -- A YOUNG BOY,
AND ADULT, BUT DON'T WE HAVE
VARIOUS ASPECTS OF THIS,
MALE ON MALE, IT WAS ORAL
SEX, IT WAS MASTURBATION SO
AREN'T ALL OF THOSE RELEVANT
CONDUCT TO YOUR CLIENT IF
ANY OF THEM DEPICKET ANY OF
THOSE ASPECTS OF IT.
WOULDN'T THAT BE RELEVANT TO
YOUR CLIENT$$'S DEVIANT
BEHAVIOR!!$$!!!!!!!!!!!!!!
BEHAVIOR?
>> WELL, YOUR HONOR, WOULD I
I WOULD SAY THAT IT WOULD
HAVE TO BE THAT WE HAVE TO
HAVE MORE OF THESE ASPECTS
TOGETHER NOT JUST TAKING
THEM ALL SPRAIL --
SEPARATELY.
>> BUT THE STATUTE SAYS
RELEVANT TO THE DEVIANT
BEHAVIOR DOESN'T SAY HAVE TO
BE DEVIANT BEHAVIOR.
SO I THINK AND EVEN IF WE
ACCEPT YOUR READING AND I
BELIEVE THAT THAT YOUR
INTERPRETATION OF THE
STATUTE REALLY IS A
REASONABLE INTERPRETATION OF
THE STATUTE, BUT EVEN IF YOU
GET THERE, I THINK YOUR
BIGGER HURDLE IS GETTING
BEYOND THE RELEVANT TO YOUR
CLIENT!!$$!!!!!!!!!!
CLIENT'S DEVIANT BEHAVIOR.
>> YOUR HONOR IF WE
INTERPRETED IN THE BROAD WAY
YOU ARE TALKING ABOUT THEN
ANYTHING DEPICTING SEX WOULD
BE RELEVANT TO HIS DEVIANT
BEHAVIOR PATTERN I THINK.
>> NOT A WOMAN ON A WOMAN?
I MEAN, IF IT IS TO A WOMAN
WON'T BE RELEVANT TO YOUR
CLIENT BAIFSHOR BECAUSE IT
HAD NOTHING DO WITH WOMEN.
>> EXCUSE ME, I IT THIS HAS
TO BE RELEVANT TO WHAT IS
DEVIANT ABOUT THE BEHAVIOR,
AND WHAT IS DEVIANT ABOUT
THE BEHAVIOR THAT IS IT WAS
WITH UNDER AGED PERSON THE
FACT THAT IT IS -- MALE ON
MALE DOES NOT MAKE ITS
DEVIANT ACCORDING TO THE LAW
THE FACT THAT IT IS ORAL SEX
DOES NOT MAKE IT DEVIANT
ACCORDING TO THE LAW.
>> WHAT IS YOUR VIEW THAT
THE PURPOSE OF THIS STATUTE
IS?
>> THE PURPOSE OF THE
STATUTE IS IF WE LOOK AT THE
NATIONAL INSTITUTE FOR
JUSTICE STUDY THAT THE
LEGISLATURE RELIED ON, THE
PURPOSE IS THAT THEY DON'T
WANT SEXUAL OFFENDERS TO BE
TOO STIMULATED INTO
REPEATING THE -- KINDS OF
OFFENSES THAT THEY REPEATED
BEFORE AND ONE OF THE POINTS
THAT THE STUDY MAKES IS THAT
THE CONTAINMENT POLICIES FOR
SEXUAL OFFENDERS, HAS TO BE
TAILORED!!$$!!!!!!!!!!!!!!
TAILORED, TO THE OFFENDERS'S
DEVIANT BEHAVIOR PATTERN
THAT IS WHY, THIS PARTICULAR
PHRASE ABOUT RELEVANT TO THE
DEVIANT BEHAVIOR PATTERN,
SHOULD EYE PLY TO -- SHOULD
APPLY TO ALL THE ITEMS THAT
ARE LISTED OF HE
PORNOGRAPHIC --
>> THEY HAVE TO BE OH --
>> IN PROBATION HEARING --
>> EXCUSE THE WAS THIS -- IN
OTHER WORDS, IF WE AGREE
WITH YOU.
>> YES?
>> -- WE WOULDN'T SAY BUT WE
WE ARE NOT GOING TO MAKE A
FINDING OF FACT, AS TO WHEN
THESE ARE OR AREN'T, I MEAN
WHEN YOU DID THE JUDGE
ASSUME THAT IT WAS JUST ANY
PORNOGRAPHIC MATERIALS
DIDN'T LOOK AT THAT WOULD BE
SOMETHING WANT YOU TO
PRESENT EVIDENCE ON OR DID
YOU TRY TO PUT EVIDENCE ON,
AT THE PROBATION VIOLATION
HEARING?
TO SAY THAT IT WASN'T REALLY
SFLANT AND YOU DIDN'T -- IT
WASN'T RELEVANT --
>> THE ATTORNEY AT THE
PROBATION VIOLATION HEARING
MADE THE POINT THAT THESE
DID NOT APPEAR TO BE WERE
NOT CLEARLY UNDER AGED
PEOPLE, AND THEREFORE THIS
WAS NOT RELEVANT TO MY
CLIENT!!$$!!!!!!!!!!
CLIENT'S DEVIANT BEHAVIOR
PATTERN, THE JUDGE SIMPLY
SAID, IT WAS VERY CLEAR THE
JUDGE WAS USE YEEG STANDARD
THAT HE WAS NOT TO HAVE ANY
PORN WHATSOEVER,$$!!!! --
PORNOGRAPHY DIDN'T MIKE FIND
WHETHERING CHILD PORNOGRAPHY
WHETHER PEOPLE UNDERAGE WHEN
THIS CASE WAS IN THIRD
DISTRICT THE FIRST PANEL
DECISION!!$$!!!!!!!!!!!!!!
DECISION, HAD O A MAJORITY
AND -- OPINION BOTH SIDES
AGREED WHOEVER THAT IT WAS
IMPOSSIBLE TO TELL IF PEOPLE
IN PICTURES WERE UNDER AGE.
>> JUSTICE BELL HAS A
QUESTION.
>> NOW, YOU AGREE THAT THE
PRIOR STATUTE BEFORE THE
AMENDMENT PROHIBITED ANY AND
ALL PORNOGRAPHIC OR SCENE OR
SEXUALLY STIMULATING
MATERIAL.
>> THAT IS CORRECT.
>> EXPLICIT -- SEXUALLY
EXPLICIT EXCUSE ME IT WAS
MODIFIED TO ADD THIS --
CLAUSE IN QUESTION HERE.
>> THAT IS CORRECT.
>> AND WHAT EVIDENCE DO YOU
HAVE FOR ARGUMENT THAT THAT
LIMITS FROM ANY MATERIAL TO
JUST THIS MORE NARROW
MATERIAL?
>> WELL, THERE'S THE
EVIDENCE IS THE WORDING OF
THE STATUTE ITSELF, IF
RAISED WITH -- PHRASE WAS
ADDED.
>> THEY DIDN'T DELETE ANY
THOUGH SO YOUR ARGUMENT
MAKES THE WORD ANY REDUNDANT
OR -- IRRELEVANT.
>> WELL THE WORD ASK THE
ANY" DOES NOT ME GAIT KWAFG
LANGUAGE THAT COMES AFTER
IT, MIAMI CLAIMING ALL PAPER
CLIPS THAT FALL ANY PAPER
CLIPS THAT FALL ON THE
FLOOR, THAT DOESN'T MEAN ALL
PAPER CLIPS EVERYWHERE JUST
MEANS ANY PAPER CLIPS THAT
FALL ON THE FLOOR.
>> BUT IT SAYS ANY -- SUCH
MATERIAL AND THEN IT SAYS
INCLUDING --
>> YES.
>> THAT ARE RELEVANT.
>> YES.
>> SO IT IS A OR IN NARROW
CLASS THAN THE ASK THE ANY".
>> YES -- THE AS SAID BEFORE
IT IS ANY OBSCENE
PORNOGRAPHIC SEXUALLY
STIMULATING MATERIAL, THAT
ARE RELEVANT, TO HIS DEVIANT
BEHAVIOR PATTERN, THAT IS
THE WAY I'M READING IT.
>> OKAY AND WHAT IS THE
SUPPORT FOR THAT -- WHY
WOULD THEY LEJS!!$$!!GISLATE TO DO
THAT.
>> O THE REASON WOULD BE IN
THE NATIONAL INSTITUTE FOR
JUSTICE STUDY WHICH TALKS
ABOUT TAILORING CONTAINMENT
POLICIES TO OFFENDER'S
DEVIANT BEHAVIOR.
>> WHY IS THAT WHY WOULD
YOU --
>> WELL, I -- I'M NOT A
PSYCHOLOGIST NOT EXACTLY
QUALIFIED TO EXPLAIN THE
WHOLE REASONING BEHIND IT
BUT IT DOES GO INTO A VERY
GENERALLY STATEMENT THAT
ONE-SIZE-FITS-ALL TIEPDZ OF
TREATMENTS!!$$!!!!!!!!!!!!!!!!!!
TREATMENTS, DO NOT WORK FOR
SEEKSUAL OFFENDERS.
>> WE ARE NOT TALKING ABOUT
TREATMENT HERE, IN PROBATION
WE ARE99TALKING ABOUTING
PROTECTING THE PUBLIC FROM
FURTHER HARM BECAUSE SEX
OFFENDERS ARE VIEWING
MATERIAL THAT STIMULATES
THEM.
>> YES.
IT ALSO USES THE WORD
CONTAINMENT!!$$!!!!!!!!!!!!!!!!!!!!
CONTAINMENT, PROCEDURES,
CONTAINMENT POLICIES
PROBABLY MORE APPROPRIATE
FOR WHAT IS HAPPENING HERE
IS THAT CAREFUL CONTAINING
HIS --
>> PUTT BUT IF WE ACCEPT
YOUR ARGUMENT THIS GUY COULD
HAVE A COUPLE OF THINGS THAT
TURN HIM ON, BUT BECAUSE HE
WAS JUST FOUND WITH THE ONE
MINOR INSHE DIDN'TED ON A
MALE THAT IF HE HAD SIMILAR
INCIDENT WITH A MINOR FEMALE
OR WHATEVER IT WOULD NOT BE
A VIOLATION OF THE OF THIS
PROBATIONRY CONDITION?
>> -- OR IF IT WAS
18-YEAR-OLD.
>> IF HE HAD IF HE HAD --
SOME KIND OF MATERIALS --
>> RIGHT.
>> NOTE ACTION, OKAY.
-- NOT AN ACTION, OKAY.
IT IS WE ARE TALKING ABOUT
PENAL STATUE HERE REAL
SHOULD BE CONSTRUED AS
NARROWLY AS POSSIBLE.
SO THAT THE DEFENDANT HAS
CLEAR WARNING ABOUT EXACTLY
WHAT HE IS DOING, I WOULD --
I WOULD.
>> SO IF HE HAD BEEN CHARGED
WITH A 17-YEAR-OLD MALE BUT
HAD A VIDEO THAT HAD
18-YEAR-OLD MALE THEN WOULD
IT NOT BE VIOLATION OF THIS
CONDITION UNDER YOUR
INTERPRETATION.
>> THAT IS CORRECT, BECAUSE
-- THERE IS NOTHING ILLEGAL
ABOUT SEX WITH AN 18 AREA
OLD SEX WITH A 17-YEAR-OLD
MALE IS OF COURSE ILLEGAL.
>> HOW WOULD THE STATE EVER
APPROVE THAT IN A -- --
MATERIAL --
>> OF COURSE, THE WILL BE
SOME CAUSE THE OUT BE
MATERIAL THAT IS FOUND --
MIGHT BE MATERIAL THAT IS
FOUND INHERENTLY IT IS
OBVIOUS, THAT THE PERSON IS
YOU UNDER AGE.
>> YOU ABOUT YOU ADMIT IF IT
IS GENERALLY PUBLICLY
AVAILABLE INTERNET
PORNOGRAPHIC YOU ARE NOT
GOING TO KNOW WHO THE
PARTIALS -- PARGSPANTS ARE
OTHER PARTICIPANTS ARE WE
ABLE TO PROVE AGES.
>> MY NOT BEEES TO APPROVE
IF NOT SELF-EVIDENT FROM
PICTURES THEMSELVES WOULD I
ALSO LIKE TO POINT OUT
THOUGH THAT THE STATE DOES
LIGHTER VERSION HERE CAUSES
IT IS A PROBATION VIOLATION
AND PREPONDERANCE OF THE
EVIDENCE SO THE DOES EASY
THE $$STATE'S BURDEN SOMEWHAT
BUT ALSO -- THE U.S. SUPREME
COURT IN IN CHILD
PORNOGRAPHY CASES SAID EVEN
THOUGH IT MAY BE DIFFICULT
TO PROVE IN SOME CASES
VIRTUAL PORNOGRAPHY FOR
SOMETHING WHETHER SOMETHING
IS VIRTUAL PORNOGRAPHY OR
EXPLOITING LIVE CHILD ACTORS
THAT IT IS STILL THE $$STATE'S
BURDEN, TO PROVE.
THAT AND THAT THAT IS YOU
KNOW THAT IS BASIC OF THE
LAW STILL THE $$STATE'S BURDEN
IF IT IS DIFFICULT TO --
>> THAT IS TO PROVE THE
CRIME NOT A CONDITION OF
PROBATION!!$$!!!!!!!!!!!!!!!!
PROBATION, OF WHETHER OR NOT
THIS MATERIAL STIMULATES A
PERSON SO THAT THEY ARE IN
OTHER $$SO THEY ARE MORE
LIKELY TO GO OUT COMMIT
ANOTHER OFFENSE ISN'T THAT
CORRECT?
THE CASES YOU ARE TALKING
ABOUT WHEN IS FOR THE
ACTUALLY CHARGED WITH A
CRIME NOT VIOLATING A
CONDITION OF PROBATION
INTENDED TO PREVENT, FURTHER
CRIMINAL BEHAVIOR.
>> THAT IS THAT IS CORRECT.
>> BASICALLY MY ARGUMENT IS
THAT THERE HAVE BEEN,
SEVERAL INTERPRETATIONS --
HE THE STATUTE BECAUSE THE
STATUTE IS -- SO AMBIGUOUS
THAT MY CLIENT$$'S DUE PROPOSE
RIGHTS ARE VIOLATED BY
BECAUSE HE IS NOT -- A FAIR
WARNING ABOUT EXACTLY WHAT
KIND OF BEHAVIOR WAS
PROHIBIT!!$$!!!!!!!!!!!!!!
PROHIBITED.
AND IF NO FURTHER QUESTIONS
I RESERVE THE REST OF MY
TIME FOR REBUTTAL.
>> TIFRNGS YOU!!$$!!!!!!!!!!!!!!!!!!HANK YOU, SIR.
>> GOOD MORNING MAY IT
PLEASE THE COURT LINDA KATZ
THE ATTORNEY GENERAL'S
OFFICE.
>> THERE YOU GO.
>> ON BEHALF OF THE STATE OF
FLORIDA!!$$!!!!!!!!!!!!
FLORIDA.
>> THEY CONCERN WITH THE $$
STATE'S POSITION IT SEEMS TO
ME THIS IF THE $$STATE'S
POSITION IS CORRECT, THAT
THIS PARAGRAPH IS REALLY
CONTRADICTORY!!$$!!!!!!!!!!!!!!!!!!!!!!!!
CONTRADICTORY, BECAUSE IF IT
IS INTENDED TO PROHIBIT ALL
PORNOGRAPHY THE LAST FRAY
RELEVANT TO $$DEFENDANT'S
DEVIANT BEHAVIOR PROP IS SUE
PURCHASE FLEWES PROHIBITED
FROM VYING ANY PORNOGRAPHIC
MATERIAL.
PUT A PERIOD AFTER SERVICES
DON'T YOU HAVE TO PUT THAT
ARE REALLY -- RELEVANT ON
THE OTHER HAND IF YOU SAY
THAT ARE RELEVANT MODIFIES,
STIMULATING VISUAL AUDITORY
MATERIAL, MODIFIES INCLUDING
TELEPHONE OR ELECTRONIC
MEDIA AND THAT THAT MEANS
THAT YOU CAN'T VIEW
PORNOGRAPHIC MATERIALS ON
PAIB BUT YOU CAN VIEW
PORNOGRAPHIC MATERIAL
COMPUTER PROGRAMS OR EXTRA
SERVICES AS LONG AS THEY ARE
NOT RELEVANT TO YOUR -- TO
THE DEVIANT BEHAVIOROR
PATTERN, WHICH, TO ME
CONTRADICTS!!$$!!!!!!!!!!!!!!!!!!!!
CONTRADICTS, THE TERM
INCLUDING, BECAUSE INCLUDING
MEANS EVERYTHING FOLLOWING
IS A SUBSET OF PORNOGRAPHIC
MATERIALITY BUT YOU'RE NOT
CONCLUDING!!$$!!!!!!!!!!!!!!!!!!
INCLUDING EVERYTHING IT IS
ONLY THOSE THINGS IF
RELEVANT TO $$DEFENDANT'S
DEVIANT BEHAVIOR PATS
SOUTHERN IT IS NOT A SUBSET.
>> CLEARLY BASED ON THE
ARGUMENT THAT HAS BEEN PUT
FORTH THUS FAR, THIS IS A
CONFUSING STATUTE, THE
WORDING IS AMBIGUOUS AND
THIRD DCA REASONBLY AGREED
TO DISAGREE.
>> THEN IF YOU ARE CONCEDING
THAT IT IS AMBIGUOUS THEN WE
HAVE TO INTERPRET IT IN THE $$
DEFENDANT'S FAVOR.
>> I -- RESPECTFULLY BEG TO
DIFFER ON THAT, WHAT WE DO
THEN INDEPENDENCE WE PLY THE
RULES OF START CONSTRUCTION.
>> THE RULE OF LENITY IS ONE
OF THOSE RULES.
>> HOWEVER THE RULE OF LAW
LENITY WOULD NEVER PERMIT,
OR SUGGEST THAT AN
UNREASONABLE RESULT SHOULD
BE THE --
>> WHY UNREASONABLE RESULT
TO SAY THAT TO SAY ONLY
RELEVANT ANY PORNOGRAPHIC
FEDERAL RELEVANT TO $$
DEFENDANT'S DEVIANT BEHAVIOR
PATTERN YOU AGREE IS A
REASONABLE CONSTRUCTION OF
THE STATUTE IF NOT ABSURD TO
CONSTRUE IT THAT WAY SO WHY
COULDN'T YOU CONSTRUE IT
THAT WAY.
>> BECAUSE THE RULES OF
STATUTORY CONSTRUCTION ONCE
THERE IS AN ESTABLISHED
AMBIGUITY AS THIS COURT HAS
ACKNOWLEDGED!!$$!!!!!!!!!!!!!!!!!!!!!!
ACKNOWLEDGED, WOULD THEN GO
TO THE LEGISLATIVE HISTORY,
AND THE INTENT OF THE
LEGISLATURE!!$$!!!!!!!!!!!!!!!!!!!!
LEGISLATURE, FIRST LOOK AT
THE HISTORY, AND IT IS VERY
IMPORTANT, WOULD I ENCOURAGE
THE COURT TO LOOK AT THE
EARLIER VERSION AS IT
EXISTED IN 1959 SIDE-BY-SIDE
-- 1995 WITH AMENDED VERSION
IN 1997, THERE ARE VERY --
UNDERSTANDABLE REASONS, FOR
THE CHANGE, AT FIRST THERE,
WAS A TOTAL BAN, AND THAT
TOTAL BAN HAS NEVER BEEN
REMOVED IT HAS NEVER BEEN
INDICATED IN ANY OF THE
LEGISLATIVE HISTORY THAT IT
WAS THE INTENT TO REMOVE THE
TOTAL BAN.
>> LET ME STOP YOU RIGHT
THERE IF INTENT IS A TOTAL
BAN WHY DO YOU NEED THE
PHRASE AT ANY POINT IN THIS
PARAGRAPH THAT ARE RELEVANT
TO THE OFFENDERS DEVIANT
BEHAVIOR PATTERN WHY DON'T
YOU JUST SAY INCLUDING,
TELEPHONE ELECTRONIC MEDIA
COMPUTEER PROGRAMS OR
COMPUTEER SERVICES, PERIODS,
THEREFORE EVERYBODY KNOWS
THAT DEFENDANT CANNOT SEE OR
HAVE ANY PORNOGRAPHIC
MATERIAL WHETHER IN HAND, OR
VIA COMPUTEER OR MEDIA.
>> THEREINLIZE THE
DIFFERENCE WHEN YOU ARE
DEALING WITH A SOEKS FENDER
WHAT IS HE PORNOGRAPHIC AND
OKAY SCENE TO A POERN WHO IS
NOT A SOEKS FENDER IS
DIFFERENT, THAN SOMETHING
THAT IS SEXUALLY
STIMULATEING TO A PERSON WHO
IS A SEX OFFENDER.
>> THAT IS TRUE WITH A
COMPUTER PROGRAM OR A PIECE
OF PAPER THEY THINK THE
COMPUTEER PROGRAM, PART,
WERE AN ATTEMPT AS ON THE
PART OF THE LEGISLATURE TO
ADDRESS ELECTRONIC AGE WE
LIVE IN NOW WE KNOW THERE
ARE CHAT ROOMS WHICH HAVE IN
FACT BEEN THE VEHICLE FOR
WHICH PREDATORS HAVE BEEN
ABLE TO MAKE CONTACT WITH
VICTIMS!!$$!!!!!!!!!!!!
VICTIMS.
>> I'M CONFUSED LET ME ASK
YOU JUST SOME -- EXAMPLES
AND TELL ME WHETHER IT IS
PRO OBLIGATIONER COULD HAVE
THIS OR NOT -- PRO
OBLIGATION ROAR -- P$$!!!!
PROBATIONER COULD HE PLAY
PLOY MAGAZINE.
>> NO A TOTAL BAN ON
PORNOGRAPHIC THAT WOULD NOT
BE ILLEGAL TOO PERSON NOT A
SEXUAL -- OFFENDER.
>> NOBODY.
>> HOB CONVICTED OF ANY
SEXUAL OFFENSE CAN HAVE
PLAYBOY EVEN IF IT SO WHERE
IS
>> --
>> YOU CAN WATCH PLAYBOY ON
LINE ACCORDING TO YES
BECAUSE -- IF NOT IF IT IS
NOT RELEVANT TO THE
OFFENDER'S DEVIANT BEHAVIOR
PART EARN ACCORDING TO THE
STATE YOU CAN SEE PLAYBOY ON
LINE JUST CAN'T HAVE THE
MAGAZINE.
>> THE ONE ASPECT THAT THE
STATE MAIN CONTAINS IS
ALWAYS IN EFFECT IS THE
TOTAL BAN.
PERHAPS THAT IS AN
INCONSISTENCY AS YOU POINT
OUT, THAT SOMETHING IS
AVAILABLE ON LINE AND MAYBE
LEGISLATURE DIDN'T PROPERLY
CONSIDER THE VAST ARRAY OF
MATERIALS THAT ARE AVAILABLE
ON LINE.
BUT THE FIRST -- THRESHOLD
ARGUMENT THAT IS THE TOTALLY
BAN WAS NEVER REMOVED, THIS
STATUTE WAS IN FACT INTENDED
TO BECOME MORE EXPANSIVE,
NOT NARROW.
AND.
>> WHAT WAS IT INTENDED --
IT WAS INTENDED TO THEN
COVER THE COMPUTERIZE AGE IS
THAT WHAT YOU ARE SAYING.
>> COMPUTER AGE AND BENIGN
INNOCUOUS MATERIALS WOULD
NOT BE PORNOGRAPHIC OR
OBSCENE BUT WOULD BE SEXUAL!!$$!!!!!!!!!!
SEXUALLY SOMETIME
LATELIEDING TO A PERSON WITH
ANY ONE OF SEVERAL PARPHILIA!!$$!!!!!!!!!!!!!!!!
PARPHILIAS!!$$!!!!!!!!!!!!!!!!!!
PARPHILIAS.
>> THAT WOULD HAVE TO ON A
CASE-BY-CASE BASES HAVE TO
BE FACTS DRIVEN --
>> YES AND --
>> BUT HOW IS THE DEFENDANT
THEN -- AND MAYBE IT DOESN'T
MATTER IN THIS CASE HOW IS
THE DEFENDANT TO KNOW IN
ADVANCE WHETHER IT IS
SOMETHING THAT IS
PERMISSIBLE THAT IS ON LINE,
OR NOT PER MISS I BELIEVE?
.
>> HE PERMISSIBLE?
>> THE DEFENDANT HAS NOTICE
BASED ON DEFINITION OF
OBSCENE A LEGAL DEFINITION
GIVEN BY THE UNITED STATES
SUPREME COURT, IN THE --
VCALIFORNIA AND DEFENDANT
ALSO HAS NOTICE HIS TR ACTS
AS CONTAINED IN HIS
INFORMATION!!$$!!!!!!!!!!!!!!!!!!!!
INFORMATION.
>> COULD YOU GIVE ME AN XHL
OF EXAMPLE OF WHAT WOULD BE
PROHIBITED IN AND INCLUDED
THAT WOULDN'T BE IN THE
FIRST PART?
>> AND --
>> THERE COULD BE A PICTURE
OF TEENAGERS, WEARING
BATHING SUITS AT THE BEACH,
WHICH WOULD BE TOTALLY
INNOCUOUS TO A A PERSON WHO
WASN'T A SEXUAL OFFENDER
WITH THIS PARTICULAR DEVIANT
BEHAVIOR PATTERN, HOWEVER.
>> THAT WOULD BE PROHIBITED
UNDER THIS STATUTE?
>> YES WOULD IT.
>> TEENAGERS IN BATHING
SUITES!!$$!!!!!!!!!!
SUITES.
>> YES WOULD IT.
>> HOW IS THAT HOW IS THAT
OBSCENE OTHER PORNOGRAPHIC.
>> THAT IS THE WHOLE THRUST
OF THE ARGUMENT THAT PART
OBSCENE AND PORNOGRAPHIC IS
TOTAL PAN PART ONE.
>> FOLD WHICH BY INCLUDING
US DOENT SAY AND I THINK YOU
WANT TOUS INTERPRET
INCLUDING AS AND NOT
INCLUDEING.
>> YES IT WAS AESHL PART.
>> AS MANY HAVE SAID AND
WHEN THEY SAID INCLUDING
THEY MEANT WHETHER OBSCENE
OR PORNOGRAPHIC SO THE FACT
THAT THEY SAID INCLUDING
INSTEAD OF AND YOU THINK WE
SHOULD DISREGARD THAT JUST
PUT AND THERE INSTEAD.
>> IN TERMS OF STATUTORY
CONDUCTION!!$$!!!!!!!!!!!!!!!!!!
CONSTRUCTION THIS COURT IS
NOT TO NECESSARILY GO AHEAD
TAKE A STATUTE WITH CLEAR
INTENT MAYBE NOT VERY CLEAR
ON FACE BUT AFTER
CONSTRUCTION SEEMED TO BE
CLEAR AND MERELY THROW IT
INTO THE HEAP PILE OR ALLOW
DEFENDANT TO REAP WINDFALL
FROM UNREASONABLE
INTERPRETATION!!$$!!!!!!!!!!!!!!!!!!!!!!!!!!
INTERPRETATION.
>> SO YOUR ARGUMENT BEFORE
IT SAID SEXUALLY EXPLICIT
NOW THE PICTURE OF YOUNG
GIRLS IN SKIMPY BATHING
SUITS MAY NOT BE SEXUALLY
EXMRS. TO IT REASONABLE
PERSON BUT BY CHANGING TO
SEXUALLY STIMULATING
MATERIAL, WOULD IT BE MORE
EXPANSIVE!!$$!!!!!!!!!!!!!!!!
EXPANSIVE, BECAUSE FOR THE
PERSON WHO HAS DESERVE
YANCEY FOR YOUNGER GIRLS,
DESERVE YANCEY IT WOULD
ININCLUDED PROHIBIT THAT THE
PRIOR STATUTE WOULD NOT HAVE
PROHIBITED CAUSES IT WASN'T
SEXUALLY EXMRS. INSIGHT
ABSOLUTELY THAT WAS --
>> THE INTERPRETATION, THAT!!$$!!!!!!
THAT -- THAT THE DEFENDANT
PROPOSES IS NOT INCONSISTENT
WITH THAT AT ALL, BECAUSE IF
WE SAY THAT THEY ARE
PROHIBITED FROM POSSESSING
ANY SEXUALLY STIMULATING
MATERIAL, THAT IS RELEVANT
TO THE DEVIANT BEHAVIOR
PATTERN IT INCLUDES BOTH
ONLINE PICTURES AND A
MAGAZINE SHOWING TEENAGEERS
IN BATHING SUITS DOESN'T
SEEM TO ME LOGICAL TO SAY
THAT THE LEGISLATURE
INTENDED TO PROHIBIT
SOMEBODY FROM GOING ON LINE
TO SEE SOMETHING, BUT NOT
PROHIBITED IF IT IS IN A
MAGAZINE, AND VICE VERSA.
>> IT WOULD APPEAR THAT THAT
MAY MAYBE WAS A LOOSE
WRITING ON THE PART OF THE
LEGISLATURE!!$$!!!!!!!!!!!!!!!!!!!!
LEGISLATURE, HOWEVER THE
INTENT TO KEEP THE TOTAL BAN
INTACT BY LOOKING AT THE
HISTORY, AND STATUTORY
INTEBT CLEARLY STILL EXISTS
WOULD I LIKE TO JUST PUT
ANALOGY BEFORE THE COURT TO
SHOW THE UNREASONABLE NATURE
OF THE $$DEFENDANT'S
INTERPRETATION IF A
DEFENDANT HAD A CONVICTION
FOR DRUG PROCESSION WAS IN A
TREATMENT -- PROCESSION WAS
IN TREATMENT PROGRAM THAT
DRUG HE HAPPENED TO BE
CONVICTED OF OF WAS COCAINE
I DON'T THINK THERE WOULD BE
A CONDITION THAT WOULD SAY
YOU ARE NOT PERMITTED TO
HAVE ANY COCAINE, BECAUSE
THAT IS TAILORED TO YOUR
CONVICTION, HOWEVER, WE HAVE
NO PROBLEM WITH HEROIN
MARIJUANA ALCOHOL --
>> DON'T.
>> NO BUT EVEN ALCOHOLIC
SUBSTANCES THE POINT IS IT
IS ADDICTIVE NATURE THAT
GOES TO SEE YOUCHOLOGICAL
ASPECT --
>> LET ME JUST GO BACK TO A
QUESTION, SEXUALLY
STIMULATING VISUAL MATERIAL,
DOES -- THAT PHRASE IS THAT
PHRASE MODIFIED BY A
RELEVANCY OFFENDERS DEVIANT!!$$!!!!!!!!!!!!
DEVIANT --
>> YES, SO IT IS NOT SO --
>> SO YOU WOULD BECAUSE I
THOUGHT YOU WERE SAYING IT
WAS ONLY THE INCLUDING
TELEPHONE ELECTRONIC MEDIA,
SO IT IS THE SEXUALLY
STIMULATING VISUAL MATERIAL
SO THAT AGAIN PLAYBOY WHICH
I DON'T THINK IS HAS BEEN
FOUND TO BE OBSCENE OR
PORNOGRAPHIC!!$$!!!!!!!!!!!!!!!!!!!!!!
PORNOGRAPHIC.
>> PORNOGRAPHIC IS NOT
ILLEGAL FOR A PERSON WITHOUT
A SEXUAL DEVIANT --
>> LET'S JUST TAKE THIS IS
THE -- "SPORTS ILLUSTRATED"
SWIMSUIT ISSUE WHICH A LOT
OF PEOPLE SEEM TO LIKE TO
BUY.
THAT ONE FOR SOMEBODY THAT
WAS DEVIANT IN TERMS OF
THEIR FEMALE LIKE MOLESTING
YOUNG CHILDREN WOULD THAT
POSSIBLY BE SEXUALLY
STIMULATE!!$$!!!!!!!!!!!!!!!!
STIMULATING FOR THEMP?
WHEREAS BATHING SUITS FOR
BOYS --
>> THAT WOULD HAVE TO TAKE
SOME PROGRESSIVE WOULDN'T
IT.
>> THAT WOULD -- PROVE, THAT
WOULD HAVE TO TAKE APPROVE
HOW EACH -- O P$$ROOF, THE
MATERIALS INVOLVED IN
VIOLATION OF COMMUNITY
INVOLVE WERE, SO CLEARLY
WITHIN THE REALM OF THE
FIRST PORTION WHICH IS STILL
INTACT THAT THERE IS NO
QUESTION.
>> I GUESS THAT IS --
>> ANOTHER ISSUE BECAUSE
THAT IS BEYOND THE -- WE
HAVE TO RESOLVE THE CONFLICT
ISSUE HERE YOU MAY BE RIGHT
ON THAT, I'M CONFUSED ABOUT
WHAT YOU JUST SAID BECAUSE
IT -- I THINK IN RESPONSE TO
JUSTICE PARENT HE$$E'S --
PARIENTE!!$$!!!!!!!!!!!!!!
PARIENTE'S QUESTION YOU SAID
THE TERM SEXUALLY
STIMULATING VISUAL AUDITORY
MATERIALS IS MODIFIED BY
THAT ARE RELEVANT TO.
>> CORRECT.
>> THEN, NOW WE ARE WAY
BEYOND THE DOCTRINE OF LAST
-- ANTECEDENT WE ARE IN
PENULTIMATE ANTECEDENT OR
SOME OTHER ONES, WHAT --
DOCTRINE OF SFRAUCH
CONSTRUCTION TO USE TO GET
STATUTORY CONSTRUCTION TO
USE TO GET BEYOND THOSE
TERMS AFTER INCLUDEING TO
GET TO THE OTHER ONE WITHOUT
GETTING TO THE VERY
BEGINNING.
>> THE MOST GENERAL DOCTRINE
PROVIDED BY THIS COURT IN
TULMAN, COLEY BELFAST WE
LOOK AT LEGISLATIVE HISTORY
WE LOOK AT INTENT OF THE
LEGISLATURE!!$$!!!!!!!!!!!!!!!!!!!!
LEGISLATURE.
>> THE LIFE HISTORY IF GOING
TO LOOK AT THAT SEEMS
PERFECTLY CONSISTENT WITH
THE $$DEFENDANT'S POSITION
WHICH IS THAT LIKE HE SAID,
ALL THESE UMBRELLA KIND OF
PROHIBITIONS DON'T WORK WE
WANT TO TAYLOR TO IT THE
SPECIFIC PROBLEM THAT THE
DEFENDANT IS HAVING AND
SEVERE GOING TO PROHIBIT
DEFENDANTS FROM -- FROM
POSSESSING PORNOGRAPHIC
MATERIALS!!$$!!!!!!!!!!!!!!!!
MATERIALS, THAT ARE RELEVANT
TO THE OFFENDER'S DEVIANT
BEHAVIOR SEEMS TO ME
LEGISLATIVE HISTORY IS
PERFECTLY CONSISTENT WITH
THAT CONCLUSION.
>> THE STATE MAINTAINS IN
ALL DUE RESPECT THAT THE
LEGISLATIVE HISTORY IS TO
THE CONTRARY THE LEGISLATIVE
HISTORY IS IN FACT VESTED
WITH THE $$STATE'S INTEREST IN
PROTECTING BOTH THE VICTIMS
AND SOCIETIES AT LARGE
AGAINST THESE TYPE OF
OFFENSE!!$$!!!!!!!!!!!!
OFFENSES --
>> YOUR POSITION IS WANTED
TO BE MORE EXPANSIVE
PROHIBIT EVERYTHING.
>> ABSOLUTELY.
>> WITH THAT -- REGARD TO
THAT POSITION THEN THE TERMS
THAT ARE RELEVANT TO
OFFENDER'S DEVIANT BEHAVIOR
PATTERN, SHOULDN'T HAVE BEEN
INCLUDE NEED STATUTE BECAUSE
THAT LIMITS THE PROHIBITION,
AND THEY WANTED TO BE AS
EXPANSIVE AS POSSIBLE.
>> NO.
I -- WOULD LIKE TO CLARIFY.
AND PERHAPS WOULD IT BE
HELPFUL TO HAVE A BIFURCATED
APPROACH TO LOOK AT THE
STATISTIC IN TWO -- STATUTE
IN TWO PARTS FIRST PART THE
TOTAL BAN AS IT EXISTED IN
1959, THE SECOND PART IS THE
ADDITIONAL PROHIBITION AS TO
SEXUALLY STIMULATING
MATERIALS BECAUSE WE ARE NOW
IN LIGHT OF THE ANTI-- STUDY
REALIZING A TAILORED
APPROACH WILL ALSO HELP
EFFICIENCIES OF RE--
EFFICACY REHABILITATION HE
AND REINDIVIDUAL RESID
ADVISE$$!!!!ISM -- RECIDIVISM,
BEFORE ANY OUR QUESTIONS ARE
POSE I HAD JUST WANT TO ALSO
ADDRESS, THE THRESHOLD ISSUE
OFFON CONFIGURE TO CLARIFY
OR CORRECT SOMETHING IN THE
COURTS SUM REES FOR THE
PRESS, THERE WAS STATEMENT
THAT THE THIRD DCA UPHELD
THE COMMUNITY CONTROL
VIOLATION, BUT CERTIFIED
CONFLICT WITH TAYLOR, IN
FACT, THERE WAS NO SUCH
CERTIFICATIONS!!$$!!!!!!!!!!!!!!!!!!!!!!!!!!
CERTIFICATIONS, AND AS A
MATTER OF FACT THE THIRD DCA
JUST REFERRED TO TAILOR AS
MERELY, STATING THE LANGUAGE
HAD TO BE TRACKED BECAUSE
THERE WAS BASICALLY AN OLD
FORM IN THE PROBATION
CONDITION, THAT TRACKING THE
95 LANGUAGE AS ITS EXISTED
BEFORE THE AMENDMENT, AND
THE TELL YOU STATUTE WASN'T
CORRECTLY IN THAT CONDITION.
THE COURT SAID AND I QUOTE
AS THE SECOND DISTRICT ONLY
REQUIRED THAT THE PROBATION!!$$!!!!!!!!!!!!!!!!
PROBATIONRY CONDITION TRACK
THE STATUTERY LANGUAGE
SECTION 948.03587 THE COURT
DID NOT ADDRESS WHETHER OR
NOT THE PHRASE RELEVANT TO
THE OFFENDER'S DEVIANT
BEHAVIOR PATTERN MODIFIED
THE BAN ON VIEWING OR
POSSESSING PORNOGRAPHIC
MATERIAL.
>> THAT IS TRUE BUT THE
COURT IN TAYLOR DID SAY, WE
AGREE WITH TAYLOR THAT
CONDITION 29 IN THE WRITTEN
ORDER OF PROBATION, SHOULD
BE MORE SPECIFIC AND RELATE
TO $$TAYLOR'S PARTICULAR
DEVIANT BEHAVIOR PATTERN.
>> I'M AWARE OF THAT
LANGUAGE AND I UNDERSTAND
YOUR POINT WHOEVER I THINK
WHEN YOU LOOK AT THE FACT
THAT WE HAVE TWO DIFFERENT
STATUTES!!$$!!!!!!!!!!!!!!
STATUTES, VERY OFTEN, THE
COURT DOES REMAND FOR WORKED
TO BE -- WORDING TO BE
PRECISE!!$$!!!!!!!!!!!!
PRECISELY TRACKED TO
APPROPRIATE STATUTE IT
APPEARS IN CONTEXT THAT IS
WHAT THE TRUE INTENTION WAS,
NEVERTHELESS!!$$!!!!!!!!!!!!!!!!!!!!!!
NEVERTHELESS, EVEN ASSUMING
THAT JURISDICTION DOES EXIST
IN THIS CASE, THE STATE
MAINTAINS THAT THERE WAS NO
DUE PROCESS VIOLATION THERE
WAS CERTAINLY CLEAR NOTICE
AND THE COURT HAS MADE IT
CLEAR THAT THE LEGISLATIVE
INTENT JUSTICE CANTERO, USED
THE NARROWING PORTIONSES OF
LEGISLATIVE INTENT, HOWEVER,
IT HAS TO BE VIEWED AS A
POHL WHOLE WHEN YOU LOOK AT
THE LEGAL LANDSCAPE AS IT
EXISTED AT THE TIME THAT
THIS 1997 AMENDMENT WAS IN
EFFECT, THE COURT AND THE
LEGISLATURE WERE REPEATEDLY
MAKING EFFORTS TO STRICTLY
ENFORCE AND STRENGTHEN THE
LAWS THAT PERTAIN TO SEXUAL
OFFENSE!!$$!!!!!!!!!!!!
OFFENSES, WE HAVE JIMMY RYCE
ACT WHICH ALLOWED CIVIL
COMMITMENT, THE DEFENDANTS
-- WHO ARE CONVICTED OF THIS
TYPE OF -- OFFENSE ARE NOT
PERMITTED TO LIVE OR WORK
ANYWHERE NEAR WHERE CHILDREN
PLAY, GO TO SCHOOL, ET
CETERA.
WE HAVE ACKNOWLEDGED THAT AS
A STATE THAT THIS IS AN
IMPORTANT INTEREST FOR US TO
PROTECT THE PUBLIC.
AND WE HAVE SEEN IN THE
NI.J. STUDY WHICH WAS OI NIJ
STUDY WHICH WAS IN FACT
EXPRESSE EXPRESSLY MADE
CONSIDERATION BY LEGISLATURE
THAT THESE TYPE PARPHILIAS,
ARE VERY FREQUENTLY, BASED
ON MORE THAN ONE SEXUAL
DESERVE YANCEY MORE THAN --
DEVIANCY.
>> HOW DID YOU ACCOMMODATE
IN EDITOR ARGUMENT IF WE
ACCEPTED THAT PARTICULAR
TYPES ELECTRONIC TELEPHONIC,
THOSE -- THAT APPEAR TO BE
NOT THE BLANKET TYPE OR,
BROAD, THEY SEEM TO BE, VERY
SPECIFIC, WOULD YOU ADDRESS
HOW THOSE ARE CONSISTENT
WITH YOUR ARGUMENT, THAT
THIS IS AN ADDITIONAL
GROUPING OF THINGS, TO MAKE
IT MORE STRINGENT?
>> BECAUSE WE KNOW, AND ALL
TOUGH DO IS LOOK IN THE
PAPER, DOUBTS HAVE TO READ
CASORS STATUTES, CASES OR
STATUTES!!$$!!!!!!!!!!!!!!
STATUTES, THAT THERE IS -- A
RISE BECAUSE OF THE ACCESS
TO THE INTERNET IN ADULTS
ATTEMPTING TO CONTACT --
>> BUT IN DOING THAT DOESN'T
THAT LEAVE SOME SOME TYPES
OR SOME MEDIUMS OUT?
>> PERHAPS IT DOES, AND WE
KNOW THAT IN FACT STATUTES
ARE NOT PERFECT THEY SHOULD
BE WRITTEN WITH COMMON SENSE
MORE IMPORTANTLY SHOULD BE
READ WITH COMMON SENSE.
AND -- THE COMMONWEALTH
CITED BY THIRD DCA WHICH IS
A -- APPELLATE CASE OUT OF
KENTUCKY STUMD UP THE
CONCERN OF THE LEGISLATURE
AND I BELIEVE THIS STRAIGHT
SUCCINCTLY SAID REDUCING
ACCESS TO OBSCENE
PORNOGRAPHIC OR SEXUALLY
STIMULATING MATERIALS,
FURTHER THE GOALS OF
REHABILITATION!!$$!!!!!!!!!!!!!!!!!!!!!!!!!!
REHABILITATION, DETERRENCE,
AND PUBLIC SAFETY, IN
CONNECTION WITH SEXUAL
OFFENDERS!!$$!!!!!!!!!!!!!!!!
OFFENDERS.
AND ANY OTHER
INTERPRETATION, I.E., THE $$
DEFENDANT'S INTERPRETATION,
WOULD DEFEAT THE GOALS OF
REHABILITATION!!$$!!!!!!!!!!!!!!!!!!!!!!!!!!
REHABILITATION, AND
PREVENTION OF RECIDIVISM IT
MAKES NO CITIZENS THE
STATUTE SHOULD BE INTERPRET!!$$!!!!!!!!!!!!!!!!
INTERPRETED IN A WAY THAT
WOULD FURTHER THE INTENT OF
THE LEGISLATURE.
THE INTENT OF THE
LEGISLATURE WAS TO EXPAND
THIS CONDITION, NOT TO
NARROW IT.
WOULD IT SEEM TO FLY IN THE
FACE OF REASON TO ADOPT THE $$
DEFENDANT'S ARGUMENT.
>> WHEN YOU LIMIT THEED ME
YUNS WITHIN WHICH ARE
PROHIBITED IN THAT LAST YOU
ARE REALLY NOT EXPANDING IT
ARE YOU?
>> WE ARE EXPANDING -- FROM
THE TOTAL BAN, AS BEING THE
FIRST PART.
>> TO EVERYTHING --
>> TO ITEMS THAT ARE SEXUAL!!$$!!!!!!!!!!
SEXUALLY STIMULATING, BASED
ON THE NIJ STUDY, TO
RECOGNIZE THAT PEOPLE WITH
CERTAIN DEVIANT BEHAVIOR
PATTERNS MAY REO FEND
BECAUSE OF STIMULATION THAT
IS CAUSED BY SOMETHING THEY
VIEW --
>> BASICALLY, BEFORE AGAIN
IT WAS JUST OBSCENE
PORNOGRAPHIC OR SEXUALLY
EXPLICIT MATERIAL.
>> CORRECT.
>> BUT WHAT YOU ARE SAYING
NOW BECAUSE OF CHAT ROOMZ,
PHONE SERVICES, AND,
COMPUTEER SERVICES,
CONNECTING AND NETWORKING
MYSPACE, A YOU WILL THESE
OTHER THINGS THAT THERE ARE
OTHER AFTERNOON NEWS BEYOND
THE SEXUALLY EXPLICIT
MATERIAL THAT MAY BE
STIMULATING TO SOMEBODY WITH
A PARTICULAR PARPHILIA.
>> YES AND THINK THERE IS A
DIFFERENT AGE WE LIVE IN
PERHAPS LEGISLATURE HAS
GRAPPLED WITH THIS, IN LESS
THAN THE MOST PRECISE WAY
BUT THAT DOES NOT MEAN THAT
THE STATUTE SHOULD BE DEFEAT!!$$!!!!!!!!!!
DEFEATED OR INTERPRETED,
ACCORDING TO THE DEFENDANT'S
SUGGESTION!!$$!!!!!!!!!!!!!!!!!!
SUGGESTION, LENITY IS A RULE
OF LAST RESORT, WHEN YOU
DELVED INTO ACCORDING TO THE
UNITED STATES THE RENO V.
CAN CORREA YOU LOOKED AT
EVERYTHING YOU COULD
POSSIBLY LOOK AT FOR
GUIDANCE THERE IS STILL
AMBIGUITY CONFUSION,
ALTHOUGH THERE MAY BE, A
CONFUSION AS TO WHAT TAIRMS!!$$!!!!!!!!!!
MATERIALS APPLY TO BAN THERE
CAN BE NO CONFUSION THERE
WAS A TOTAL BAN ADDITIONAL
EXPANSION TO STATUTE INTEND!!$$!!!!!!!!!!
INTENDED BY THIS LEGISLATURE
TO HAVE SEXUALLY STIMULATING
MATERIALS RELEVANT TO THIS
PARTICULAR DEVIANT BEHAVIOR
INCLUDED IN THE PROHIBITION,
AND UNLESS THERE ISSUE NO
FURTHER QUESTIONS THE STATE
MAIN CONTAINS THAT --
MAINTAINS THAT THE
CONVICTION!!$$!!!!!!!!!!!!!!!!!!
CONVICTION, FOR THE
VIOLATION OF COMMUNITY
CONTROL SHOULD IN FACT BE
AFFIRMED AND MOST
IMPORTANTLY, THAT THIS
STATUTE SHOULD NOT BE
INTERPRETED IN AN
UNREASONABLE WAY, WHICH
WOULD ENCOURAGE SEXUAL
OFFENDERS!!$$!!!!!!!!!!!!!!!!
OFFENDERS, TO REOFFEND.
THE RATE OF RECIDIVISM IS
SKYROCKETING THERE IS
EMPIRICAL EVIDENCE IT
BEHOOVES THE COURT TO DO
WHATEVER IN ITS POWER AID!!$$!!!!
ACCORDING TO MANY CASES TO
PREVENTED IT.
IT IS THE INTEREST OF THE
COURT TO MAKE SURE THAT ANY
STEPS BE TAKEN TO PREVENT
FUTURE RECIDIVISM AND
ATTACKS ON CHILDREN AND
SOCIETY.
>> THANK YOU VERY MUCH.
>> ZBLEES REBUTTAL?
-- REBUTTAL?
>> THANK YOU YOUR HONOR, YES
AS FAR AS THE LEGISLATURE
INTENDED!!$$!!!!!!!!!!!!!!
INTENDEDING TO MAINTAIN
TOTAL BAN ON OBSCENE
PORNOGRAPHIC MATERIALS THE
LEGISLATURE WANTED TO DO
THAT COULD HAVE LEFT THE
STATUTE AS IT WAS.
ALSO, THAT.
>> THE ARGUMENT BY THE STATE
IS IS NOT THAT THEIR
ARGUMENT IS THERE MAY BE
SOME THINGS THAT ARE SEXUAL!!$$!!!!!!!!!!
SEXUALLY STIMULATING, GLAD
TO THOSE WITHIN THE FIRST
CATEGORY THAT THERE MAY BE A
SUBSET, THINGS THAT ARE
SOCIALUALLY STIMULATING
DEPOSTPONEDING UPON THE --
DEPENDING UPON CONDITION
THAT IS WHAT IT IS DIRECTING
TO NOT TO MODIFY ALL OTHERS
THAT IS THEIR ARGUMENT COMRP
THAT IS INCORRECT.
>> UNDERSTAND, WELL, PART OF
THE REASON IT IS INCORRECT
IS IT DOESN'T FIT IN WITH
THE LEGISLATIVE HISTORY
WHICH THAT IS THE IDEA IS TO
TAILOR THESE TO SPECIFIC
DEVIANT BEHAVIOR PATTERNS OF
THE OFFENDER ALSO, JUST THAT
READING OF THE STATUTE,
WHICH IS THE READING THAT
THE THIRD DISTRICT GAVE,
JUST DOESN'T MAKE SENSE
GRAMATICALLY!!$$!!!!!!!!!!!!!!!!!!!!!!
GRAMATICALLY, WHAT WOULD BE
SAYING THAT HE IS PROHIBITED
FROM POSSESSING OBSCENE.
OR PORNOGRAPHIC.
>> WELL, WOULD -- THE FACT
THAT YOU HAVE INCLUDED,
CHATROOMS ALL THE ELECTRONIC
THINGS THAT YOU CAN -- YOU
KNOW, CITE USING THOSE, THAT
YOU WILL NOW YOU IF THAT HAD
BEEN INCLUDED UNDER PRIOR
STATUTE --
>> I THINK IT WOULD HAVE
HAVE YES PORNOGRAPHIC
MATERIAL --
>> MATERIALS.
>> --
>> MATERIAL IT IS A VERY --
>> WE SEE IT ALL THE TIME
WHERE YOUNG GIRLS ARE GO HIS
DOOR MEETING THIS LOVER THEY
MET ON LINE IT IS IN THE
NEWSPAPER ALMOST DAILY, THEY
MAY HAVE HAD CONVERSATIONS
IN CHATROOMS.
>> YES.
>> THAT WERE NEITHER
PORNOGRAPHIC!!$$!!!!!!!!!!!!!!!!!!!!!!
PORNOGRAPHIC, OBSCENE OR
SEXUALLY EXPLICIT NOW NOW
WHEN WOULD OLD STATUTE HAVE
PROHIBITED THOSE DEFENDANTS
ON PROBATION WHO HAVE THE
PROCLIVITY TO GO AFTER YOUNG
GIRLS IN CHATROOMS, WHERE
WOULD THAT CONDITION HAVE
PROHIBITED THAT THAT
ACTIVITY.
>> I BELIEVE THAT THAT WHAT
YOU ARE DESCRIBING, IS
ILLEGAL BEHAVIOR, IF YOU ARE
TALKING ABOUT PERSON WHO IS
OF AGE, MAKING SOCIALUALLY
EXPLICIT EXCELLENT TO
SOMEBODY WHO IS UNDER AGE,
I'M NOT SURE BUT --
>> I'M TALKING ABOUT THIS
CONDITION, YOU AGREE THAT
THAT CONDITION IS PREVIOUSLY
SUMMITED WOULD NOT HAVE BEEN
BIAS TO VIOLATE $$SOMEBODY'S
PROBATION BECAUSE WAS
NEITHER PORNOGRAPHIC OBSCENE
SEXUALLY EXMRS. INSIGHT I
WOULD SAY THAT IS POSSIBLE
DEPEND!!$$!!!!!!!!!!
DEPENDING ON THE CONTENT OF
THE COMMUNICATE$$!!ION SO IF
VIOLATION OF THE LAW.
>> STILL A VIOLATION OF THE
LAW DOESN'T NEED TO BE
INCLUDED IN THIS PROVISION,
THAT IS.
>> IS INCLUDING NECESSARILY
A LIMITING WORD?
AND IT SEEMS TO ME THAT
WHERE YOU ADD INCLUDING,
THAT DOESN'T NECESSARILY
MEAN THAT IT IS INCLUDING --
NOT LIMIT TO -- COULD IT BE
IT COULD BE IN ADDITION TO
SPECIFY SPECIFIC ITEMS THAT
THE LEGISLATURE IS INCLUDING
WITHIN THE TOTAL BAN,
COULDN'T IT?
>> WELL, YES, IT IS NOT --
NECESSARILY COMPLETELY LIMIT
BUTH WITH THE LEGISLATURE
SEEMS TO BE DOING THOUGH IS
MAKING ITS CLEAR THAT WE ARE
REFERRING NOT JUST TO --
PRINTED MATERIALS BUT TO ALL
KINDS OF ELECTRONIC --
>> BUT IN THE REAL WORLD,
WHERE WE LIVE, WE KNOW THE
LEGISLATURE IS NOT TRYING TO
LIMIT WHAT CAN BE LOOKED AT
BY SEXUAL DEVYANTS THEY ARE
TRYING TO EXPAND IT ARE THEY
NOT.
>> WELL, EXCEPT THAT THEY
ADD IN THIS PHRASE ARE
RELEVANT TO THE DEFENDANT --
OFFENDER'S DEVIANT BEHAVIOR
PATTERN DOES SEEM TO NARROW
IT FITS WITH LEGISLATIVE
HISTORY.
AS I SAID IN MY BRIEF, YOU
CAN'T BAN OBSCENE, WOULD YOU
HAVE TO BAN OBSCENITY OR
OBSCENE MATERIALS, SO THE $$
STATE'S INTERPRETATION THAT
THERE IS STILL A BAN ON
OBSCENITY DONATES QUITE FWIT
IN GRAMATICALLY WITH THE WAY
THE LEGISLATURE HAS WORDED
THIS.
>> WITH OUR QUESTIONING WE
HAVE EXHAUSTED ALL OF YOUR
TIME WE THANK YOU BOTH OF
YOU FOR YOUR QUALITY
ARGUMENTS!!$$!!!!!!!!!!!!!!!!
ARGUMENTS, AND WE WILL TAKE
THE CASE UNDER ADVISEMENT.
>> THANK YOU.
>> THAT YOU YOUR HONOR.
>> COURT WILL STAND IN
RECESS UNTIL 9:00 TOMORROW
MORNING.
>> ALL RISE.,,,,,,,,,,,,,,