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Protecting the public or infringing on rights? Tracking the movements of pedophile released from mental hospital

A little more than one week ago, authorities said 59-year-old Cary Jay Smith — an admitted pedophile — was released, to the ire of many, after decades in a state mental hospital.

Since then, his movements have been tracked by police and the public. Almost as soon as he checked into a health care facility or motel, police announced on social media to their communities that Smith was among them.

Typically, hours later, he would leave for another city.

While authorities have said that shadowing Smith is meant to protect the community, his unusual case gives rise to questions about the surveillance of a free man, who is not required to register as a sex offender, and who faces no pending charges.

“I wouldn’t think anyone would have compassion for him, but if you’re violating his rights, what’s to stop you from violating my rights?” asks former prosecutor and criminal defense lawyer Rudy Loewenstein, who’s not involved in Smith’s case.

Police scrutiny

Immediately after his release, law enforcement agencies sounded the alarm to residents via social media. They all pretty much stated the same thing: Smith was in the area and police were watching him.

The first agency to announce Smith’s whereabouts was the Orange Police Department. Smith had checked into a residential facility on Tustin Street and Chapman Avenue at the recommendation of the Orange County Health Care Agency, said Orange police Sgt. Phil McMullin.

Police officers showed the facility administrator an advisory from the District Attorney’s Office about Smith.

“Against the public safety warnings from the officers, the administrator accepted Cary Smith into their facility,” police said at the time. In turn, officers set up a surveillance detail to watch Smith, adding they’d “do everything we can to have Cary Smith relocated.”

In an interview this week, McMullin acknowledged that Smith is not wanted for any crime and isn’t on probation. When asked if the surveillance could be seen as an invasion of Smith’s privacy, he maintained officers chose to perform surveillance because Smith could be a threat to the community.

McMullin said most residents voicing their concerns were appreciative that police were watching the man.

“By and large the majority (of) people were supportive,” he said. “And they were upset that he was released to begin with.”

Hours after checking in, Smith left the Orange facility.

“He’s a free person and left on his own,” McMullin said. “He can go live where he wants.”

Since then, Smith has also had brief stays around Orange, Riverside and San Diego counties, sometimes in motels. It’s unknown why he moved, or if he intends to stay long-term anywhere.

Dangerous history

Court records show Smith did have to register as a sex offender after he was convicted in 1985 of a child annoyance misdemeanor for trying to pay a young boy to run through a sprinkler naked. But it wasn’t the offense that got him hospitalized.

Smith had been held against his will at Coalinga State Hospital, and before that, Patton State Hospital in San Bernardino County since 1999. His then-wife gave authorities a letter Smith wrote about his desire to kidnap and molest a 7-year-old boy in his Costa Mesa neighborhood.

In the past, Smith admitted to fantasizing about molesting boys and disclosed he’d written letters about having sex with and torturing minors. He referred to himself as “Mr. RTK”, an acronym for rape, torture and kill.

At the time of the 1999 incident, he was not convicted of a crime but was locked up under a rarely applied state law that allowed authorities to hold people, who are established to be dangerous and have a mental defect or disorder, in a hospital if a court agrees every six months.

Since then, a judge or jury has repeatedly deemed him too dangerous to be released to the public.

In 2005, the requirement to register as a sex offender was ended. It’s unclear why.

Release in question

During each civil trial where Smith was allowed to argue for his freedom, medical officials and Orange County counsel fought for the renewal of the hold that kept him detained since 1999.

But this time, Deputy County Counsel Robert Ervais told the Register shortly before Smith’s release that the state hospital did not send a petition to renew the “5300 hold” against Smith, allowing it to expire on Saturday, July 11, and making his release imminent.

When asked about the circumstances surrounding Smith’s release, a spokesman for the California Department of State Hospitals replied in an email only: “Federal and state law prohibits DSH from acknowledging that an individual is or ever has been a patient in a state hospital.”

Over the past 20 years, Ervais said, Smith kept meeting the criteria of the 5300 statute, which says a person be held if they have “demonstrated danger of inflicting substantial physical harm upon others” due to a mental disorder.

In a July 14 letter to Gov. Gavin Newsom, District Attorney Todd Spitzer and Supervisor Michelle Steel raised concerns that Smith could not manage his “deviant sexual impulses” and added that he is not required to register as a sex offender.

But Smith was released, and District Attorney spokeswoman Kimberly Edds said prosecutors have not received a response from the governor’s office. Members of the public started an online petition calling on the governor to require Smith to register as a sex offender. It’s garnered tens of thousands of signatures.

Smith’s attorney, Staycie Sena, said in a statement that in not renewing the agreement, the hospital determined he’s no longer a danger.

“He has received decades of treatment. We must trust the rehabilitative process,” Sena said. “Mr. Smith is under constant police surveillance, is cooperating fully with various law enforcement agencies, and is working with mental health professionals to ensure the safety of the community.”

‘He’s got rights, too’ 

Loewenstein understands the public’s outrage over the man’s release. But he says law enforcement is invading Smith’s privacy rights.

“It’s a difficult situation when you’ve got a guy that has such deep-seated issues. Part of me wants to keep an eye on him, but the lawyer part says he’s got rights, too,” he said.

Loewenstein mused that many people would not be compassionate of Smith’s rights given his admitted inclinations.

“But if the government says he’s no longer a danger then you have to respect that. You have to follow the law and you don’t have the right to violate his privacy,” he said.

Loewenstein fears that the surveillance may drive Smith “underground” and away from the watchful eyes.

Media outlets, including the Orange County Register, wrote about Smith’s moves as law enforcement agencies posted their alerts.

While the story is newsworthy and of public interest, it needs to be reported with informative context, said Jason Shepard, chair of communications at Cal State Fullerton.

“Journalists have to be balanced in their coverage of letting people know where he’s living and … they also have a responsibility to convey that for everything we know, he has a legal right to be free and has to live somewhere,” Shepard said.

“At some point, journalists can become complicit in his harassment,” he said.

Social media can also create an environment of heightened alert. Most police departments have shared the news of Smith’s presence via social media to throngs of followers and friends.

“I don’t want to minimize people’s right to be concerned or upset … In this case social media can add to the sense of fear and panic,” Shepard said. “In reality, there are registered sex offenders living near all of us.”

As of Friday afternoon, Smith was at a healthcare facility in Costa Mesa. He was not reachable for comment.

When pondering how long police would continue to watch Smith, attorney Loewenstein figured it would be as long as they had the resources.

“They don’t want to be the ones who lost him if he commits a crime,” he said.

Staff writer Jonah Valdez contributed to this story. 

Source: Orange County Register

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