Sex Offender Takes On Megan’s Law

For the past decade, Ventura County child molester Robert Henry has waged one court battle after another to overturn his conviction.

Even after his release from prison four years ago, the once-prominent Episcopal minister has continued to contest a jury’s finding that he repeatedly fondled a 7-year-old boy in his Ventura church office in the mid-1980s.

As far as the state of California is concerned, Henry is no longer in custody, has exhausted his state and federal appeals, and has no rights to continue his legal odyssey.

But Henry doesn’t see it that way.

In his latest court fight, he is arguing that because he is required to register as a sex offender with local authorities, he still remains, in effect, a prisoner of the state.

Henry contends that the registration requirement has restricted his freedom and, perhaps as important, given him the grounds to continue his appeals in federal court.

“You are subject to something the general public is not subject to,” Henry said Monday, standing outside a courtroom of the U.S. 9th Circuit Court of Appeals in Pasadena, where a three-judge panel heard arguments in his case.

“It is custody because you don’t have freedom,” he said. “You’re behind locked doors all over again.”

Deputy Atty. Gen. David Glassman, who has been the state’s prosecutor on the case for eight years, maintains that Henry has no grounds on which to bring his latest appeal.

After exhausting other state and federal appeals, Henry then filed a habeas corpus petition, which is typically filed by inmates contesting their imprisonment.

Glassman contends that Henry has no right to bring such a petition.

“The threshold issue is whether the requirement places him in custody,” he said. “In our view, it does not.”

But at least one court has disagreed with that assessment.

Last year, a federal judge denied Glassman’s motion to dismiss Henry’s petition after concluding that the convicted child molester had met the custody requirement. Glassman has asked the appeals court to overturn that decision.

If it does, Henry’s case could land before the U.S. Supreme Court for a second time.

The high court affirmed Henry’s conviction in 1995 after the 9th Circuit Court had overturned it on the grounds that judicial errors from the Ventura County trial had prejudiced the case.

The chances of the high court considering the case again are slim, legal experts say. But Henry’s petition deals with a hot-button issue in the legal community.

Just six months ago, the Supreme Court rejected a constitutional challenge to Megan’s Law, the New Jersey measure that requires sex offenders to register with police after release from prison.

The law was named for Megan Kanka, a 7-year-old girl who was abducted and murdered in 1994 by a paroled sex offender who had moved into her neighborhood. Her death triggered new legislation in several states, including California, to establish registration requirements.

In refusing to hear offenders’ claims in the New Jersey case, the justices cleared away most legal doubts about the legality of such requirements. Offenders had argued that forcing them to register amounted to a second, after-the-fact form of punishment.

Henry’s petition turns on similar issues.

As he sees it, the requirement stomps on his constitutional rights, because he must re-register with the state each year. If he moves, he also is required to register.

“It’s just like being arraigned all over again,” he said.

Henry was rector of St. Paul’s Episcopal Church in Ventura and dean of the church day school from 1969 to 1987. In October 1987, he was charged with molesting two boys during private counseling sessions at the school and in his church office.

After a trial in Ventura County Superior Court, Henry was found guilty of molesting one of the boys and ordered to serve six years in state prison. Henry was paroled after serving roughly half his sentence. He was released from parole in December 1994.

After the conviction, Henry seized on the testimony of one witness--the father of a former student at an Episcopal school in Pomona who told the jury that Henry had been suspected of molesting another child 20 years earlier.

Jumping on the unproven allegation, Henry appealed the conviction in state court arguing that his due-process rights had been violated. A state appeals court agreed that the trial judge had erred but did not consider it serious enough to overturn the conviction.

Henry then brought a habeas corpus petition in federal court on the grounds that the error had violated his constitutional rights to a fair trial. U.S. District Judge Robert M. Takasugi overturned the conviction in 1991 and ordered Henry released from prison.

Two months later, the U.S. 9th Circuit Court of Appeals granted a stay of the order, returning Henry to prison.

After fully considering the case, the appeals court in 1994 reversed its previous ruling in a 2-1 vote and upheld Takasugi’s decision. That’s when Glassman appealed the case to the Supreme Court. A year later, the justices restored the conviction in an 8-1 ruling, kicking the case back to the California courts.

For Henry and his Los Angeles appellate attorney, Everett B. Clary, the core issue is still whether Henry got a fair trial a decade ago.

“The trial judge admitted evidence and gave instructions to the jury that we submit was highly prejudicial and improper,” Clary said Monday after the court hearing.

During his oral argument before the three-judge panel, Clary stressed that this was his client’s last legal remedy. A decision is expected in several months.

“This is a continuation of the proceedings that began long ago when he was in prison,” Clary argued before the judges. “[He] has a right to file the petition.”