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Saying that prosecuting people for crimes they believed were behind them is unfair, the U.S. Supreme Court on Thursday struck down a California law used to punish child molesters whose crimes have only recently been revealed. With a 5-4 decision, the high court set free 75-year-old Arizona resident Marion Stogner, whom the state tried to prosecute for abusing his two daughters over an 18- year span, even though the statute of limitations expired more than two decades earlier. “In sum, California’s law subjects an individual such as Stogner to prosecution long after the state has, in effect, granted an amnesty,” wrote Justice Stephen Breyer. “It retroactively withdraws a complete defense to prosecution after it has already attached, and it does so in a manner that allows the state to withdraw this defense at will and with respect to individuals already identified. ‘Unfair’ seems to us a fair characterization.” Justice Anthony Kennedy, joined by Chief Justice William Rehnquist and Justices Antonin Scalia and Clarence Thomas, dissented. They argued that there is a compelling reason for the law — most victims, especially very young victims, don’t report the crimes until years later. There should be a remedy, he wrote, “when the victim at last can find the strength, and know the necessity, to come forward. When the criminal has taken distinct advantage of the tender years and perilous position of a fearful victim, it is the victim’s lasting hurt, not the perpetrator’s fictional reliance, that the law should count the higher.” In 1993, California law was amended to allow the prosecution of child sexual abuse within one year of when it was reported, even if the abuse occurred years earlier. Along with accused molesters like Stogner, the change has enabled the prosecution of priests who were alleged to have molested members of their clergy years ago. The California attorney general’s office said 800 alleged child molesters have been prosecuted since 1993, but said it didn’t know how many of those might be affected by the ruling. The San Francisco district attorney’s office has four pending cases against priests involving long-ago abuse. Whether those already convicted under the law can get their convictions overturned on habeas corpus review is the next question. If courts interpret the decision as a new rule, convicted molesters may not be eligible for release. But Stogner’s attorney, Contra Costa County Alternate Public Defender Roberto Najera, doesn’t see it that way. “I thought that the Supreme Court was simply reinforcing the law, not just what it had been in California, but pretty much in every jurisdiction, anywhere,” Najera said. The decision also apparently invalidates portions of the USA Patriot Act, which repealed statutes of limitation on certain kinds of prosecutions, including terrorism. The Justice Department, which filed a brief in the case, declined to comment on the case. The majority and dissent differed over the meaning of 1789′s Bull v. Calder, 3 Dall. 386, where the court first wrote out the four categories encompassing the scope of the Constitution’s ex post facto prohibitions. Breyer wrote that Stogner v. California, 03 C.D.O.S. 5575, fell under the second category, which bars a law which “aggravates a crime, or makes it greater than it was, when committed.” The majority also cited 2000′s Carmell v. Texas, 529 U.S. 513, where the Supreme Court struck down the prosecution of a man charged with molesting his stepdaughter because the state of Texas retroactively changed the rules of evidence. Though Thursday’s ruling dealt specifically with California’s extension of the limits in abuse cases, defense lawyers said it had the potential to affect all types of prosecutions. Had the court upheld the change, “there would not be a lot to limit the legislature from wholesale elimination of statutes of limitation,” said Sacramento Assistant Federal Public Defender David Porter, who filed a brief on behalf of the National Association of Criminal Defense Lawyers. Breyer acknowledged that concern. “A constitutional principle must apply not only in child abuse cases, but in every criminal case. And, insofar as we can tell, the dissent’s principle would permit the state to revive a prosecution for any kind of crime without any temporal limitation,” he wrote. Or, as Najera said, “Had it gone the other way, we could have kissed off statute of limitations for all crimes.” “It has always been the rule that you just cannot prosecute someone after the statute of limitations has run,” said Arthur Wachtel, who represents a priest recently accused of child molestation alleged to have happened years ago. “More than that, the legal system is not equipped to get into something that’s 50 or 100 years old.” Hasting College of the Law professor Vikram Amar said the limits on criminal liability are in place more for administrative reasons than a sense of fairness. “I don’t think we have statutes of limitation to exonerate defendants,” he said. Amar said Carmell was wrongly decided. The Texas Legislature didn’t change the crime, just made it easier to prove by retroactively giving greater weight to victim testimony. “Once they made that mistake, it was easy to make this one,” Amar said. “I think [California's change] is more like evidence and not like changing the definition of a crime. The crime was wrong when committed. Everyone agrees that molesting a child is a crime.” In another decision Thursday, the court voted 7-2 to overturn a death sentence, saying a Maryland man was denied his Sixth Amendment right to effective counsel when his lawyer failed to conduct a reasonably thorough investigation into his background. Kevin Wiggins’ childhood was a horror of privation, physical torment, hunger and sexual abuse. But his defense lawyers investigated few of the details of his childhood and presented none of it to the jury as mitigating evidence in the penalty phase. Writing for the majority in Wiggins v. Smith, 03 C.D.O.S. 5586, Justice Sandra Day O’Connor explained that the court’s principal concern in deciding whether Wiggins’ defense lawyers exercised reasonable professional judgment “is not whether counsel should have presented a mitigation case. Rather, we focus on whether the investigation supporting counsel’s decision not to introduce mitigating evidence of Wiggins’ background was itself reasonable.” Justice Scalia penned a blistering dissent, which Justice Clarence Thomas joined, stating that the court’s reasons for its interpretation of the facts “range from the incredible to the feeble.” Legal Times reporter Siobhan Roth contributed to this story.

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