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Prosecutors and defense attorneys in the Bay Area got to work immediately following Thursday’s U.S. Supreme Court’s decision that curtails prosecutors’ ability to pursue charges against alleged child molesters after the statute of limitations has expired. Shortly after the decision was announced, the first defendants were released or their cases dismissed in some counties. And as prosecutors and defenders strove to identify all of the cases that will be affected, there was apparent disagreement as to the scope of the 5-4 decision in Stogner v. California, 03 C.D.O.S. 5575. Marion Stogner, 75, was accused of abusing his two daughters over an 18-year span. The state — under a penal code amendment that took effect in 1994 — tried to prosecute him more than two decades after the statute of limitations had expired. The code allows prosecution within one year of the victim’s reporting child sexual abuse if the statute of limitations has otherwise expired. The high court ruled that the Constitution’s ex post facto prohibitions barred application of that law in Stogner’s case. Justice Stephen Breyer, writing for the majority, said the law “subjects an individual such as Stogner to prosecution long after the state has, in effect, granted an amnesty.” “I think it affects [child sexual abuse] cases like a tidal wave coming in,” said San Francisco Assistant District Attorney Elliot Beckelman. While some DAs said they’re concerned Stogner may bar them from using the 1994 code to prosecute cases, other prosecutors and some defense attorneys said the case would have a narrow legal impact. Stogner only applies to cases in which the statute of limitations had run out by the time the law took effect, said Danville criminal defense attorney William Gagen Jr., who has seven cases affected by Stogner. But Assistant DA Karyn Sinunu in Santa Clara County said the DA’s office there is going “to proceed with caution” when it comes to child sexual abuse crimes allegedly committed in 1988 or later. The statute of limitations for those cases was six years when the 1994 code amendment went into effect. Though the attorney general at this point believes such cases can proceed under the 1994 penal code, Sinunu said, “we’re not so sure. We think there’s going to be more litigation in that area. So we’re going to proceed with caution.” “I think everyone’s still trying to figure out the language of the Supreme Court’s decision,” said San Francisco DA Investigator Erin Gallagher. Meanwhile, some counties have already begun to act on cases. Santa Clara County dismissed nine cases almost immediately Thursday. By contrast, San Francisco prosecutors asked a superior court judge for about a week to digest the high court’s decision and explore its options before dismissals are considered for four priests accused of long-ago abuse. The San Francisco DA’s office is not objecting to the release of those defendants on their own recognizance, Beckelman said. Austin Keegan was the first released, on Friday morning. He’s scheduled to return to court July 7, said DA Investigator Gallagher. “His case will probably be dismissed,” she acknowledged. Stephen Scherr, one of the attorneys representing another of the priests, Patrick O’Shea, said he has filed a motion to have his client released on his own recognizance, but hasn’t filed a motion to dismiss. “I anticipated the DA would object to dismiss it the day after the decision,” he said. “They wouldn’t have had time to meet about it � and scratch their heads.” The Stogner decision will affect up to seven other clergy-related cases under investigation in San Francisco, Beckelman said. In the East Bay, Contra Costa County and Alameda County prosecutors say a relatively small number of pending cases will be immediately affected by the ruling. Eight pending Contra Costa cases fall under Stogner, and three or four cases are under investigation, said Dara Cashman, who heads the sexual assault unit. One defendant who was in jail was released on his own recognizance. She estimated that her office may have convicted two defendants who may be covered by the ruling. There are 10 to 15 Alameda County cases that will be affected by the ruling, including two high-profile cases that will be affected immediately, said Kevin Murphy, who oversees sexual assault cases. Yusuf Bey, a local black Muslim leader, was accused of forcing young girls to have sex as far back as 1976. Mike Phelps, a longtime Oakland high school basketball coach, was accused of abuse that took place in the ’60s and ’70s. Both will probably go free, the DA has said. In Santa Clara County, in contrast, nine cases were dismissed the same day of the high court’s decision, Sinunu said. One of those cases had even been scheduled for closing arguments that day, she noted in a statement. There are likely more cases public defenders and district attorneys haven’t yet identified. “Our focus right now is going through them and inventorying them,” said Sinunu. “We just don’t have a final count yet.” Santa Clara County prosecutors are reviewing all cases where the 1994 code was applicable, whether pending or resolved, she said. They may be able to salvage some that appear to be eligible for dismissal if there are other charges where the statute of limitations had not expired, she said. The public defender in Santa Clara is waiting for the DA’s list and asking his own deputies to identify which clients might be affected. “By cross-referencing all that data, we hope to be able to identify all the cases,” said Chief Assistant Public Defender David Mann. For clients who have already been sentenced, a habeas corpus petition is one option, Mann added, but his office will also be looking for speedier ways to get those cases dismissed in superior court, particularly if the client is still in the county system. While prosecutors voiced frustration about Stogner,defense attorneys celebrated its political ramifications. “What is important to remember is that five justices of the Supreme Court definitively rebuked the California Supreme Court and the California Legislature,” said Contra Costa County Public Defender David Coleman III. His office represented Stogner. However, many prosecutors echoed the sentiments of Contra Costa County District Attorney Robert Kochly. Kochly, whose office prosecuted the Stogner case, said it takes victims years to come to terms with abuse. “Most of the cases involved a pattern of abuse over a period of years. The victims were young,” he said, and in cases that involve priests, “the perpetrators are authority figures.”

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