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Court overturns Dufur child pornographer sentence

The 9th U.S. Circuit Court of Appeals has thrown out the sentence of a Dufur man convicted of child pornography charges because statements he made in treatment were used against him in a federal court.

Prosecutors will now have to seek a new sentence to replace the 20 years handed down to Richard R. Bahr Jr. down by U.S. District Court Judge Anna Brown in 2010. Bahr was convicted of possessing more than 600 images of sexual abuse of minors and Brown determined the amount of time he would spend behind bars on admissions made during treatment.

Bahr was on post-prison supervision when the child pornography charges were brought against him. Wasco County District Attorney Eric Nisley obtained a conviction against him in August 2003 for third-degree rape.

After being released from prison in July of 2008, Bahr was required to take a “full disclosure” polygraph test as part of the 36 months he would be monitored by parole officers. During the test he revealed multiple sexual encounters with minors. In a workbook used as part of his treatment, he wrote that he had sexually abused 18 children.

Federal prosecutors became involved in the case because Bahr’s crimes involving the computer crossed legal, geographical, and jurisdictional boundaries.

In determining his sentence on the child-pornography charges, Brown used the admissions Bahr made in treatment to help determine the amount of time he would be incarcerated. The appeal court ruled that was unconstitutional.

“We make clear now that the use of unconstitutionally compelled statements to determine a sentence in a later, unrelated criminal proceeding is unconstitutional,” Judge Alfred T. Goodwin wrote in the court of appeals opinion. “The Supreme Court has recognized that the Fifth Amendment’s protections (against self-incrimination) extend to the sentencing phase of a criminal case.”

During the sentencing hearing, prosecutors also called Bahr’s mother, who testified that he had confessed sexual misconduct to her in the past.

“I agree with the principle that no person should be compelled to give testimony against himself and I have declined to prosecute cases where a person was ordered as part of their probation to disclose similar types of things,” said Nisley of the court ruling. “I’m not saying I completely agree with the entire ruling but if that’s the rule, then that’s the rule and we’ll follow it.”

He said federal prosecutors could appeal the ruling to the U.S Supreme Court but, whether or not they take that action, Bahr will have to be re-sentenced because he has been convicted of a crime.

In 2011, the Supreme Court reversed or vacated 19 of the 26 decisions it looked at from the 9th Circuit, issuing especially to the court’s handling of cases involving prisoners’ rights and death row reprieves, according to the Los Angeles Times.

The 9th Circuit is based in San Francisco and considered the most liberal court in the land by multiple media sources. Although the proportion of reversals for 2011 was relatively in line with past years and the other 19 appellate circuits in the U.S., the 9th Circuit was often out of step even with the high court’s liberal justices, who joined with conservatives in 12 unanimous rulings.

In their reversals, the justices often expressed impatience with what they saw as stubborn refusal by the lower court to follow Supreme Court precedent. One of the these cases involved the 9th Circuit striking the conviction of a Sacramento rapist who claimed racial bias during jury selection in a case involving a 72-year-old female victim.

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