A great deal of attention was paid this week to an opinion issued by Attorney General Dan Morales regarding what a judge can and cannot do. Specifically, Morales said that it is legal for district judges to require a defendant who is on probation for a sexually related offense to post a sign at his place of residence informing those who read it about his criminal status. In the specific case ruled upon by Morales, Judge Sharen Wilson of Fort Worth "required" a defendant to place a sign that read: "A person on probation for a child sex offense lives here."
"Good for the judge!" you say. "All the perverts should have signs!" the crowd might cheer. And then, after a moment's pause, you may begin to question why the defendant is not residing where the only sign visible reads "Huntsville".
And now for the rest of the story. The defendant in that case was not just on probation, he was on deferred adjudication probation. This special type of community supervision allows the defendant's case to be dismissed if he does not violate the terms and conditions of probation. On the other hand, if he violates his probation and the prosecutor can prove it to a judge (no jury trial is allowed), the defendant is subject to the full range of punishment. That means a minimum of 30 real years in prison in the case of aggravated sexual assault. Deferred adjudication is, therefore, what we call a two edged sword: it has a tremendous benefit for a defendant, but he can be crushed in the blink of an eye for his subsequent errors.
Why would any defendant receive deferred adjudication in a sexually related offense? The answer, of course, varies depending on particular facts and circumstances. However, in general, a deferred adjudication offer would be made by the State if the prosecution had serious doubts that it could prove its case. Understand that I said serious doubts about proving the case, not serious doubts about whether the defendant committed the crime. As an example, perhaps a crime involved a moment of touching, leaving no physical evidence, and the child victim is under five years of age and frightened at the prospect of testifying. Instead of risking a not guilty verdict and putting the guy back on the street with no supervision, deferred adjudication may work as a solution. It's not the greatest option, but it's better than nothing.
Which brings me back to the sign. In that situation, the defendant, who was on deferred adjudication probation, violated his probation when he picked up his own child from day care because of a broken down car belonging to the child's mother. I assume that one of the defendant's terms of probation was to have no contact with children, even his own. But instead of sending the man to the pen, Judge Sharen Wilson allowed him to remain on probation if he would agree to post the sign. According to the man's attorney, "I wasn't crazy about it and my client wasn't, but he's accepted it and hopefully learned to live with it".
Do I find the requirement of a sign troubling? Yes. If the man is a danger to children and he committed the initial crime, then send him to the penitentiary for violating the terms and condition of his probation. On the other hand, if he is not a danger and the violation of probation was due to a reason which is excusable, reinstate his probation if it is the right thing to do. The requirement of a sign, however, serves no legitimate purpose. It will certainly get you headlines, but I find it hard to justify.
As AG Morales said, the requirement of a sign identifying a person as a sex offender is "novel" and "somewhat bizarre". However, I'm not prepared to say that such a measure would never be appropriate. Nevertheless, if a defendant is so dangerous that a sign is needed to protect us, he doesn't need to be among us in the first place. The fact that we have been forewarned is not particularly comforting.
Barry Green is the District Attorney for the 271st Judicial District.