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Demosthenes Lorandos is an attorney, forensic psychologist, lecturer and author.  He is in constant demand across the country for his authoritative and tireless advocacy on behalf of the falsely accused.   In defense of his clients Dr. Lorandos brings to bear his extensive expertise in the science of coerced confessions, shaken baby syndrome, battered women’s syndrome, parental alienation syndrome, recovered memories, false accusations, repeated question effects, interviewer bias, behavioral indicators of abuse and other related subjects.  Dr. Lorandos is a member of the California, Michigan, New York, Tennessee and Washington, D.C. bars, and a member of the bar of the United States Supreme Court.   He is also the co-author of such works as Cross Examining Experts in the Behavioral Sciences, Benchbook in the Behavioral Sciences and The International Handbook of Parental Alienation Syndrome. Dr. Lorandos may be recognizeable from his appearances on The Today Show, The View, Larry King Live and Court TV, and from his extensive online catalog of free legal advice videos.

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Sex Offender Petition Case Law
Posted On July 2nd, 2012  By Dr. Lorandos    

We at Falsely-Accused.net note that in 2010, the United States Supreme Court decided U.S. v. Comstock.[1] This case dealt with the constitutionality of the Adam Walsh Child Protection and Safety Act, which allowed  “sexually dangerous” mentally ill federal prisoners to be held in civil commitment beyond what would have been their release date from prison.[2] While the bulk of this decision was devoted to the propriety of the passage of this act under the Necessary and Proper Clause, the Court briefly evaluated the merits of the Act itself. In so doing, the Court found pursuant to Congress’ power to act as a reasonable federal custodian:

Congress could have reasonably concluded that federal inmates who suffer from a mental illness that causes them to “have serious difficulty in refraining from sexually violent conduct,” § 4247(a)(6), would pose an especially high danger to the public if released.[3] And Congress could also have reasonably concluded (as detailed in the Judicial Conference’s report) that a reasonable number of such individuals would likely not be detained by the States if released from federal custody, in part because the Federal Government itself severed their claim to “legal residence in any State” by incarcerating them in remote federal prisons.[4] Here Congress’ desire to address the specific challenges identified in the Reports cited above, taken together with its responsibilities as a federal custodian, supports the conclusion that § 4248 satisfies “review for means-end rationality”…[5]

It relied on its own poorly decided Kansas v. Hendricks[6] to avoid discussing the due process concerns this scheme raises.[7]

In U.S. v. Carta,[8] Federal District Court Judge Joseph Tauro completed an excellent analysis of the plight of one Todd Carta. Judge Tauro held a three day bench trial and determined that Mr. Carta was sexually abused early in life. When Mr. Carta was seven years old, a fifteen year old male neighbor ordered Mr. Carta to perform sex acts on another seven year old. Between the ages of eight and ten, a fifteen- to sixteen year-old family acquaintance sexually abused Mr. Carta on at least three occasions. Beginning at age fifteen, a sixty-five-year-old man had sex with Mr. Carta weekly for a period of three to four years.[9]

Mr. Carta stopped attending school around eighth or ninth grade and claims that his parents did not care. When he was fifteen, he set fire to an abandoned shack and later pleaded guilty to “reckless burning”. Judge Tauro noted that Mr. Carta committed numerous sex offenses over the course of his adult life. When he was twenty-one, he performed oral sex on his sixteen-year-old nephew on multiple occasions. Mr. Carta later committed multiple sex offenses while following the band The Grateful Dead from age twenty-eight to age thirty-four. At age twenty-eight, Mr. Carta offered a thirteen-year-old boy concert tickets in exchange for oral sex. At another point during this period, noted Judge Tauro, Mr. Carta encountered a seventeen- to eighteen-year-old male passed out from drug use in Mr. Carta’s van. Mr. Carta began fondling the young man and masturbating himself until the young man woke up and yelled at Mr. Carta.[10]

Mr. Carta spent the first three years of his prison term at Allenwood Federal Prison in Pennsylvania. There, he participated in and completed CODE, a one-year treatment program focusing on risk management, criminal thinking, and relapse prevention. Judge Tauro noted that Mr. Carta also obtained his GED and participated in other occupational programs and substance abuse treatment while at Allenwood.[11] At FCI-Butner, Mr. Carta participated in the Sex Offender Treatment Program for seven months.[12] 

Court-appointed expert Dr. Bard interviewed Mr. Carta for two hours and testified on Mr. Carta’s behalf at trial. Judge Tauro noted that Dr. Bard is licensed as a psychologist in Massachusetts. He has published five peer-reviewed articles, and he acted as a qualified examiner in sexually dangerous person evaluation proceedings for the Commonwealth of Massachusetts from 1987 to 1999.[13]

The Government’s expert, Dr. Phenix, conducted an evaluation from Mr. Carta’s psychological records on September 14, 2008, but she was prohibited by court order from examining Mr. Carta in person. Judge Tauro noted that Dr. Phenix holds psychology licenses in California, Florida, and Washington. She has been involved in treatment or evaluation of sex offenders since 1989 and has published two peer-reviewed articles and a chapter in Innovations in Clinical Practice: A Source Book. Dr. Phenix also coauthored the coding rules for the Static-99 actuarial instrument.[14]

Judge Tauro noted that the focus of Dr. Phenix’s testimony, and the key issue in this case, was her diagnosis of “paraphilia NOS: hebephilia.”[15]. Tauro’s opinion noted that the term “children,” as it appears in the paraphilia NOS diagnostic criteria, includes post-pubescent teenagers who have not attained the age of majority.[16]

We at Falsely-Accused.net note that the Court’s appointed expert Dr. Bard, testified that neither “hebephilia” nor “paraphilia not otherwise specified” with a descriptor of “hebephilia” is a valid diagnosis. Dr. Bard described problems with the diagnosis Dr. Phenix assigned in that adolescents do not qualify as “children or non-consenting persons” within the meaning of the paraphilia diagnostic criteria. He maintained that the DSM-IV-TR makes clear that “children” refers to prepubescent youths and that “non-consenting” does not refer to legal consent.[17]

Dr. Bard also testified that normal adults with no sexual offending histories find sexually mature adolescents arousing. Finally, Dr. Bard testified that the articles proffered by the Government in support of Dr. Phenix’s hebephilia diagnosis do not qualify as legitimate, peer-reviewed research.[18]

Judge Tauro noted that Dr. Phenix’s second diagnosis for Mr. Carta was “personality disorder not otherwise specified with antisocial and borderline traits.” The Judge noted that, “antisocial personality disorder is a pattern of disregard for, and violation of, the rights of others.”[19] The court went on to note that Dr. Bard concluded that Mr. Carta may have met the criteria for antisocial personality disorder in the past, but does not currently meet the criteria for either personality disorder.[20]

The Court also noted that The United States Probation Office for the District of Connecticut contracts with The Connection, Inc. to provide sex offender treatment to all sex offenders on supervised release in the state of Connecticut, where Mr. Carta would be released. Mr. Carta presented testimony from Dr. Randall Kent Wallace, a psychologist and administrator at The Connection. Dr. Wallace testified that The Connection uses a cognitive behavioral treatment model with specific interventions to address sex offender risk factors.[21]

Judge Tauro took notice that Mr. Carta also called United States Probation Officer Paul Collette, an officer responsible for supervising sex offenders in Connecticut. Officer Collette testified that, if released, Mr. Carta would be subject to rigorous conditions of supervised release, including sex offender registration, “passive GPS” monitoring, prohibitions on computer access, and unannounced visits to his residence.[22]

Weighing this and instructions from the Supreme Court, Judge Tauro noted that, “[the] distinction between criminal conduct and pathological illness is relevant not only under the Act but under the Constitution.”[23] At the end of his excellent analysis, Judge Tauro simply concluded: “the Government has failed to show by clear and convincing evidence that Mr. Carta currently suffers a serious mental illness, abnormality, or disorder within the meaning of the Act. Accordingly, this court concludes that Mr. Carta is not a sexually dangerous person and orders his RELEASE from BOP custody.”[24]

We at Falsely-Accused.net point out that in an extensive review of its civil commitment procedures for sex offenders, the Supreme Court of Rhode Island recently instructed its bench and bar:

This case also impresses upon us the need for more extensive plea colloquies in cases involving crimes that trigger sexual offender registration and community notification. As the case at bar vividly illustrates, a brief plea colloquy that sets forth few facts can lead to substantial confusion at the board of review level. It is incumbent upon the state and the plea justice to secure a clear and unequivocal factual basis that supports the defendant’s admission of guilt. Finally, while we recognize the wisdom in the maxim that “even Homer nods,” we nonetheless feel compelled to exhort the board of review to be far more meticulous in its submissions in the future. Given the gravity of the board of review’s responsibilities, it should at all times strive for maximal accuracy-especially in setting forth the factual bases for its conclusions.[25]

The Supreme Court of Virginia completed an excellent analysis of their trial judge’s refusal to automatically follow statistics, as the Commonwealth desired in the commitment of Frankie Squire. It seems that Judge Allan Sharrett listened to all of the proofs and found:

There’s no question that the defendant has been convicted of a sexually violent offense. There is no question in the Court’s mind that he has a mental abnormality or a personality disorder. And there’s no question in the Court’s mind that that makes it difficult for him to control his predatory behavior. The nub of this case in the Court’s opinion is whether all of that makes him likely to engage in sexually violent acts. The standard of proof is clear and convincing evidence…[S]o for almost six years [the defendant] has been at large in the community…[H]e has not sexually reoffended either by charge, conviction or institutional infraction. And when the Court looks at that conduct of the defendant…it simply cannot say that it is convinced that he will probably offend sexually.[26]

The occasion for the Supreme Court’s review was the Commonwealth’s appeal. In its analysis, the Court determined that while experts testified that Squire was a sexually violent predator and was likely to commit violent sexual acts, the opinion of experts was not dispositive. Their trial court specifically stated that it “listened carefully to the reports” of the experts but that it also considered “the chronology of the defendant’s life.”  The Supreme Court noted that as shown by the record, Squire had no incidents of a sexual nature for almost 10 years, since 1999, whether he was in the community or incarcerated. The Court reasoned that the evidence suggested that Squire’s actions were, not consistent with the statistical predictors of re-offending and stood in contrast to the experts’ opinions on the likelihood of Squire committing future violent sexual acts. In a triumph of common sense over statistics, the Court concluded with its trial judge that, “the mere use of the phrase mental abnormality or personality disorder does not automatically invoke a conclusion that a respondent is likely to engage in sexually violent acts.”[27] The Commonwealth’s appeal was denied.

The State appellate courts also chastise their trial judges in this area frequently. One notable example comes from a Kansas Court of Appeals panel, which noted the behavior of their trial judge Kathleen Lynch and reversed her summarily. In the In re Miles case,[28] Jimmy Miles was a patient serving time in a sexual predator treatment program.  He petitioned for discharge and asked for a competent attorney and an independent evaluator. Judge Lynch basically told Jimmy to forget about it and he appealed. The appellate panel reversed and sent the case back to her with stiff instructions.[29]

At Falsely-Accused.net we emphasize that there are several additional cases that are valuable resources for cross examiners when working on these particular types of cases. In U.S. v. Shields,[30] Federal District Judge Patti Saris undertook a detailed analysis of the federal sex offender statutes.[31] In Shields, releases of persons in the custody of the Bureau of Prisons were stayed with regard to certification as “sexually dangerous persons” under the Adam Walsh Act. The Government requested hearings to determine whether each person was a “sexually dangerous person” subject to civil commitment and to the custody of the Attorney General. The prisoners brought motions to dismiss.

Judge Saris noted that the Act is the first federal statute to provide for the commitment of sexually dangerous persons. She noted that many states have statutes allowing for the civil commitment of sexually violent predators and that the Supreme Court has rejected a constitutional challenge to one such statute.[32] Judge Saris went on to note that at the time of her review, three federal courts had undertaken their own reviews of Section 4248.[33]  While the statute met a legitimate public concern, Judge Saris was troubled by the arbitrary nature of its procedures:

The failure of the Act to mandate a probable cause hearing raises serious constitutional concerns under the Fourth Amendment. An individual certified under Section 4248 is subject to detention based solely on the submission of a certificate by the Attorney General, the Director of the BOP, or their designee. The Act does not establish an evidentiary standard for the certificate, although the proposed regulations allow certification only whenever there is “reasonable cause” to believe an individual is “sexually dangerous.”[34]

For these reasons, Judge Saris found, “I therefore conclude that the Act’s failure to explicitly mandate any sort of probable cause determination and hearing before or within a reasonable time after a person is detained beyond his scheduled release date raises serious constitutional questions with respect to well-established Fourth Amendment protections.”[35]

We at Falsely-Accused.net teach that the importance for the cross examiner of this procedural issue is that the arbitrary nature of sexually violent person determination should be attacked on both a scientific as well as a procedural basis.

Sometimes even a sex offender’s earnest attempts to get treatment can’t help them. Recently, In re Dentention of Post[36] found Charles Post one day from release from his 15 year sentence for burglary and rape when the state of Washington filed a petition to classify Post as a Sexually Violent Predator and civilly commit him. This commitment was granted by the superior court.[37] While in prison, Post had voluntarily participated in sex offender treatment, and continued to do so while civilly committed pending trial. At trial, Post presented in his own defense his voluntary treatment plan to show that he would be unlikely to reoffend if released,[38] while the state presented information about the treatment Post would receive were he to be civilly committed.[39] On Post’s appeal from his commitment, the Court examined whether it had been appropriate to present evidence of the treatment plan available through state civil commitment. The Court agreed with the state that this evidence could be used to discredit the treatment plan presented by Post himself, “by highlighting elements of treatment the State’s experts believed were necessary…but not present in his treatment plan”.[40] Unfortunately for Post, his cross-examiner did not demonstrate the validity or reliability of his plan as opposed to the state’s plan.

At Falsely-Accused.net we find that in their zeal to confine sex offenders and protect the public, state law enforcement figures sometimes cross the line. In re Commitment of Mark,[41] had a tortured history of commitment, appeal, reversal and re-commitment and additional reversal. On a second remand, the Circuit Court determined that the offender’s written statement to his parole officer was admissible, and that admission of offender’s oral statement was harmless error. When the offender appealed again, the reviewing court reversed and remanded with new directions.

The record made by the various cross examiners found that Mr. Mark pled guilty to three counts of first-degree sexual assault of a child in 1994.  Mark was sentenced to eight years of confinement, followed by two fifteen-year terms of probation. Mark was released on parole in 1999, but his parole was revoked in 2000 because of an incident involving a woman in the residential hotel where Mark lived. Mark was sent back to prison to serve the rest of his confinement. In June 2002, just before his scheduled release, the State filed a petition alleging that Mark was a sexually violent person under the Wisconsin state statute.[42]

The record developed demonstrated that Mark’s parole officer coerced Mark into giving a written and an oral statement that he wanted to have sex with the woman he saw at his residential (parole secured) hotel. The two statements were repeatedly used against him and formed a significant part of the basis for two state behavioral sciences professionals’ recommendations for commitment. This reliance upon the coerced statements by the State’s experts was the tipping point for the reviewing court. Commitment reversed and remanded again.

The treatment of sex offenders is unique in the American legal system…even the most heinous murderers are not subjected to the harsh consequences (registration, limits on where they can reside, notification requirements) that await a sex offender after release. In New York, the consequences now include subjection to ex post facto adjudication. In State v. Nelson,[43] Harold Nelson was the subject of a petition for sex offender civil management under New York’s sexually violent predator law, the Sex Offender Management and Treatment Act (SOMTA). He had been convicted 15 years prior for kidnapping and promoting prostitution and was serving his sentence for that crime,[44] when a sex offender civil management petition was filed. SOMTA, enacted in 2007, was written to not only apply to activity taking place after its enactment, but contained a provision making it applicable to persons whose crimes were committed before its enactment.[45] A first year law student could tell you that a law penalizing conduct that occurred prior to the enactment of that law is the very definition of an ex post facto law. Even more outrageously, the standard used to determine whether crimes were “sexually motivated” was “beyond a reasonable doubt” for those committed after enactment, but merely “clear and convincing evidence” for those committed before![46] The New York court, analyzing Nelson’s claim that SOMTA’s provision allowing retroactive designation of crimes as “sexually motivated” engaged in some goofy logic. In New York, SOMTA makes the offender eligible for civil commitment for such crimes by violating the ex post facto clause. Here, because another cross-examiner was asleep at the switch, the panel found that ex post facto provisions did not apply because, “the Legislature clearly did not intend that second designation to be criminal. It intended that classification to define which non-sexual felony offenders could be subject to SOMTA”.[47] The state’s machinations to pretend that the law was civil rather than criminal were rewarded, as the court found that, “[SOMTA] is contained in a civil statute (the Mental Hygiene Law) as part of what the Legislature designated as a civil proceeding with a potential consequence (civil management) which the United States Supreme Court has held is civil rather than criminal”.[48] The New York court’s analysis of whether the statute was effectively criminal also failed, as its artificial civil designation trumped all other considerations:

[T]he statute has a number of the attributes of a criminal proceeding. It imposes confinement. It applies only to convicted felons. It incorporates many of the protections and procedures of the criminal law. It is designed to protect public safety. But it was also intended by the Legislature and indeed in fact is an essentially civil procedure. As noted, supra, only the “clearest proof” is sufficient to construe a statute which the Legislature intended as civil into a criminal proceeding. That standard has not been met here. For all of these reasons, the Respondent’s motion to dismiss the petition on ex post facto grounds is denied.[49]

Here again we at Falsely-Accused.net find an illustration of no cogent record blow upon which to base a constitutional claim.

But not all New York cases end so badly. In State v. Flagg,[50] an appellate panel affirmed a decision holding that just because a jury found that Daniel Flagg suffered from a mental abnormality did not mean he was a Dangerous Sex Offender requiring confinement. The trial court had heard testimony from an expert witness from each side, and had:

[D]iscounted the testimony of petitioner’s expert, concluding that she lacked the same level of education and experience as respondent’s expert and that she relied exclusively on actuarial data without incorporating any clinical judgment. It is well settled that “[t]he extent of an expert’s qualification is a fact to be considered by the trier of the fact[s] when weighing the expert testimony” (Felt v. Olson, 74 A.D.2d 722, 722, 425 N.Y.S.2d 686, affd. 51 N.Y.2d 977, 435 N.Y.S.2d 708, 416 N.E.2d 1043).[51]

The appellate panel found that this action was within the trial court’s discretion and upheld their decision.

In another recent sex offender civil commitment case, the committee challenged the use of the Static-99.[52] In this case, the committee argued that the Static-99 only predicts group risk, not individual risk, and argued that this would confuse the jury.[53] The reviewing court noted all of the assessment procedures used by the State’s doctors and noted that the State conducted an independent review of the committee’s risk factors, including anti-social personality disorder, alcoholism, offense pattern of sexually deviant behavior, and the fact that he offended while under supervision.[54]

With respect to the scientific basis of these determinations, the recent Martineau v. State[55] from Missouri is instructive. In Martineau, a sex offender appealed from an order of the Circuit Court civilly committing him under the State’s sexually violent predator (SVP) law. The State had a two-pronged burden at trial: 1) mental condition and 2) likelihood of re-offense.[56] Martineau’s mental abnormality was uncontested. The whole case came down to future dangerousness.[57] In order to meet its burden, the State called a psychologist and then, in cross examination, used Martineau’s own witness against him. Quoting from her books, the State got Martineau’s expert to admit:

60 out of 100 sex offenders would still re-offend after the most effective treatment available today, and that means we’re a long way from curing pedophilia or rape. Note also, these results are for the short run. No one really knows the impact of treatment in the long run…The Canadian research of Karl Hanson found that those offenders that were never married, had boy victims, that had previous offenses, demonstrated a detected re-offense rate of 77 percent in the long run. Any group with a detected rate of re-offense that high means that virtually all offenders in those groups are likely to re-offend, given what we know about undetected offenses.[58]

We at Falsely-Accused.net find this was a fantastic demonstration of the cross examiner’s art.

A number of additional cases describe the intersection of law and behavioral sciences in this difficult area. For example, in In re G.R.H.,[59] the Supreme Court of North Dakota faced a circumstance where the State filed a petition seeking involuntary civil commitment of a sex offender as a sexually dangerous individual. When the District Court granted the petition, the offender appealed. The Court noted that in a supplemental evidentiary hearing on remand, the State’s two expert psychologists testified that G.R.H. suffered from a serious lack of ability to control his behavior. The cross examiner should note that four psychological tests were used to determine whether G.R.H. would have a likelihood of recidivism. Only one of the four tests indicated a recidivism rate that could logically be denoted as “likely” to re-offend.[60] Nevertheless, as this data went to the judge without real explication, the petition was granted and upheld on appeal. This is partly because the State’s psychologists testified that within a five-year period, the RRASOR showed a 14% chance of recidivism, the Static-99 showed a 39% chance of recidivism, and within a six-year period, the MnSOST-R showed a 78% chance of recidivism. According to the record, a PCL-R test was also done on G.R.H. The State’s expert reported that G.R.H.’s score on the PCL-R test was “not clearly indicative” of a finding that G.R.H. was high risk for sexual recidivism[61]. Her report stated that, “such a finding would seem to require, based on existing research, the combination of this PCL-R score range with some type of relevant deviant sexual interest. Such a condition was not diagnosed for [G.R.H.].”[62] Nevertheless, G.R.H. languishes in State mandated treatment. We at Falsely-Accused.net must ask what would have happened if the cross examiner had brought the following to the court’s attention?

In Detention of Marshall v. State[63], the Supreme Court of Washington took up a “sexually violent predator” case. In this matter, the Court reiterated that a sexually violent predator is a person who “suffers from a mental abnormality or personality disorder which makes the person likely to engage in predatory acts of sexual violence if not confined in a secure facility.”[64] They explained that their law requires that mental abnormality must be “tied directly to present dangerousness.”[65] The Court went on to explain that this tie to present dangerousness is constitutionally required, because due process requires that an individual must be both mentally ill and presently dangerous before he or she may be indefinitely committed.

In Washington’s In re Detention of Pouncy, the definition of “personality disorder” was at issue.[66] In this case, Washington’s Sexually Violent Predator law, and what a “personality disorder” actually is, impacted an uniformed jury and Mr. Pouncy. In Washington State, the state must prove that the individual in question has both been charged with a sexually violent crime and has a mental abnormality or personality disorder making them likely to reoffend.[67] There was no instruction given to the jury to define “personality disorder”,[68] and Pouncy was found to be an SVP by the jury. On appeal, the Supreme Court of Washington realistically appreciated the scientific psychological knowledge of juries and found that:

The phrase “personality disorder” is not one in common usage and is beyond the experience of the average juror. It is a term of art under the DSM that requires definition to ensure jurors are not “forced to find a common denominator among each member’s individual understanding” of the term. State v. Allen, 101 Wash.2d 355, 362, 678 P.2d 798 (1984)…if the jury agreed Pouncy suffered from a personality disorder, we have no way of knowing what definition the jury used in reaching this conclusion. It is not sufficient that counsel were able to argue to the jury their respective understandings of the term based on expert testimony; lawyers have a hard enough time convincing jurors of facts without also having to convince them what the applicable law is.[69]

V.L.Y. v. Board of Parole and Post-Prison Supervision[70] found the Supreme Court of Oregon instructing its Board of Parole and Post-Prison Supervision on science and due process. It seems that when the board first took on the task of identifying predatory sex offenders, it adopted a decisional process that relied, in part, on the SORAG[71]. Curiously, the Board did not allow for input from the potential designees. However, in Noble v. Board of Parole,[72] the Oregon Supreme Court held that the board violated a parolee’s due process rights by designating him as a predatory sex offender under that procedure. The Court in Noble further held that due process required the board to give a potential designee notice and an evidentiary hearing before the designation takes place.[73] The Board developed a new rule for assessment that took up the STATIC-99.[74]  Examining the new scheme, the Oregon Supreme Court reasoned that a detainee facing such a designation, whatever the reasons for that designation, must be accorded the basics of due process.[75] The Court reasoned that the board is not at liberty to substitute a purely documentary exercise for the hearing that any person faced with such a designation is entitled to receive.[76] Finally, the Court held that, “…under the present statutory scheme, the board erred in using a procedure that permitted it to rely exclusively on the sex offender risk assessment scale in making its predatory sex offender designation.”[77] 

The Static-99 underwent another court review in the last few years in In re care of Kapprelian.[78] In this case, the Missouri appellate court explained that the Static-99 is an actuarial instrument that is widely used and accepted in the field of psychology to make statistical predictions about the likelihood of a sex offender being reconvicted of another sexual offense within five, ten and fifteen year periods after being released from confinement. It measures 10 risk factors for reconviction, wrote the court, and according to this appellate panel is generally accepted as a reliable instrument for predicting future sexually violent behaviors by professionals who evaluate sexually violent predators.[79]

Commonwealth v. Dube[80] represents one of the rare cases where the State’s experts don’t line up to say “he didn’t admit it so he must be dangerous…”[81] While in prison, Dube steadfastly refused to admit that he had committed the offenses for which he was found guilty and refused to take part in sexual offender counseling and treatment. His “…course of incarceration was entirely incident free. Consequently, the parole board voted to release him on parole…” [82]

However, before Mr. Dube was scheduled to be released, the county district attorney filed a petition to commit him as a sexually dangerous person. The Superior Court dismissed the petition at a preliminary stage and the Commonwealth appealed. The appeals court held inter alia that the evidence was insufficient to support a finding of probable cause.  During the process, as the Commonwealth cast around for experts to testify that the defendant was dangerous at trial, the appellate court impressed upon them that: “…[a]s the Supreme Court of the United States put it: ‘[w]hether the individual is mentally ill and dangerous to either himself or others and is in need of confined therapy turns on the meaning of the facts which must be interpreted by expert psychiatrists and psychologists…”[83]

In State v. Gibson,[84] an Oregon Court of Appeals panel faced an individual suffering from what one psychiatrist described as “multiple paraphilias”.[85] In Gibson, the defendant appealed from the judgment that adjudicated him to be mentally ill and involuntarily committed him to the State’s mental health division. Relying on evidence of past acts, the court of appeals ruled that “past acts,” if they form the foundation for a prediction of future dangerousness, can support a finding required to establish that an individual is a mentally ill person subject to involuntary commitment. [86]

In this case, we at Falsely-Accused.net find that  a psychologist with experience in assessing sanity and evaluating sex offenders was among the mental health experts who evaluated the defendant to determine insanity years before.[87] This same psychologist opined that the length of time that defendant had suffered from paraphilia (as evidenced by defendant’s professed overwhelming urge to rape beginning at age 19) created an especially high likelihood that his paraphilia remained active.[88]

Another witness, a psychiatrist who evaluated the defendant for Depo-Provera treatment, at the request of the Department of Corrections[89] diagnosed him as having “multiple paraphilias.” This psychiatrist concluded that the defendant “had some measure of sadism,” as well as a history of voyeurism and frotteurism.[90] Other mental health professionals who evaluated the defendant’s current condition diagnosed him as suffering from paraphilia as well. For example, a psychiatrist who examined him at the time of the involuntary commitment proceeding concluded that Gibson’s paraphilia involved “compulsions to engage in sadistic and violent behavior towards particularly women.”[91]

The appellate panel properly noted that the evidence to support the defendant’s commitment should not turn on the existence of evidence that he committed sexual acts in the past and did so with sufficient volition to be criminally responsible for his conduct. The central question, wrote the panel, was whether his mental disorder was characterized by, “sufficiently impaired impulse control to distinguish him from the ‘dangerous but typical recidivist’ sex offender.”[92]

In two “Boyer” cases the Massachusetts courts distinguished themselves. The problems of the potentially dangerous recidivist and creeping hearsay were joined in Commonwealth v. Boyer.[93] After the lower court found defendant to be a sexually dangerous person and committed him for an indefinitely, an appeal was taken. The record reveals that Boyer pled guilty to two counts of rape of a child and to four counts of indecent assault and battery on a child. The children involved were three of his nephews. He received a sentence of eighteen years and the Commonwealth filed a petition for commitment of Boyer as a sexually dangerous person a day before his release from prison. Two examiners filed written reports of their examinations, diagnoses and recommendations. The judge found the defendant a “sexually dangerous person”, and committed him to a treatment center for an indeterminate period of time.[94]

The appellate court noted the problem of creeping hearsay in the various reports and its effect on the trial judge. The appellate panel noted that, “…[i]f there is not an exception for each statement, the hearsay is not admissible substantively…However, it may be admissible if used for an alternative purpose, i.e., by an expert in forming his opinion.”[95]

The appellate panel went on to point out that, “…hearsay contained in a report may be used for one purpose–here, as a basis for the expert’s opinion–does not necessarily mean that it may be used for all substantive purposes by a factfinder who has to make a finding beyond a reasonable doubt.”[96]

Calling the hearsay upon hearsay in the various reports “totem pole hearsay”, the appellate panel went on to specify that its additive effect can be quite difficult for the trier of fact:

Assuming independent admissibility, if the admission of the totem pole hearsay contained in the report was for the purpose of ascertaining the basis of the examiners’ opinions, and not for the substantive facts set forth, there is no error. However, it is error where, as here, the judge, over objection, relied upon the statement as proven and substantive.  It was improper for the judge to consider it in the manner he did.[97]

This “totem pole hearsay” caused the appellate court to remand the case with instructions to its trial courts.[98]

In the second but unrelated Boyer case, Commonwealth v. Boyer,[99] a convicted sex offender faced continued confinement as a sexually dangerous person. The State retained psychologist Paul Zeizel to evaluate the detainee and testify against him. Relying on what he candidly described as “nominal” information, Zeizel reported that the defendant had symptoms consistent with pedophilia and that he remained a sexually dangerous person.[100] Based on that report, a Judge of the Superior Court found probable cause to believe that the defendant was sexually dangerous and temporarily committed him to a treatment center for examination and diagnosis.[101] During the ensuing sixty-day commitment, Mr. Boyer was examined and interviewed by two qualified examiners, Dr. Niklos Tomich and Dr. Michael Murphy. In lengthy and detailed reports filed with the court, they each concluded that the defendant was not a sexually dangerous person under the statute.[102] At the jury trial that Mr. Boyer demanded, the Commonwealth called Zeizel as an expert witness. Over Mr. Boyer’s objection, the written report that Zeizel had prepared the previous year was admitted into evidence. However, under close examination, Zeizel recanted the opinion that the defendant remained sexually dangerous and agreed with Tomich and Murphy that the defendant failed to meet the criteria for indefinite commitment to the treatment center.[103] 

Boyer then called Dr. Leonard Bard, a licensed psychologist, who had performed several hundred evaluations regarding sexual dangerousness.  Based upon Dr. Bard’s interview and a review of pertinent records, he too concluded that Mr. Boyer was not a sexually dangerous person.  Nevertheless, the jury returned a verdict that the defendant was sexually dangerous as defined by the statute. Thereafter, the judge ordered him committed to the treatment center.[104] The appellate court carefully reviewed the record and relied on their holdings in Commonwealth v. Dube.[105] The panel determined that although Mr. Boyer could be said to be suffering from a paraphilia (pedophilia), the expert testimony offered by the Commonwealth was not sufficient to define Mr. Boyer as a sexually dangerous person.

We at Falsely-Accused.net feel that the following case illustrates the essential point that the cross examiner must be aware that the State may try to hide critical data.  In People v. McCurdy,[106] the California Attorney General and staff at California’s Atascadero State Hospital tried hard to hide actual recidivist data on over one hundred detainees released from the sex offender treatment program without completing the program. Where Hanson and Bussiere and Thornton’s data would have likely predicted 33% to 39% recidivism risk over five years, actual recidivism calculated on 93 non completing offenders was 6% and one of these was only arrested for indecent exposure.[107]

[1]  130 S.Ct. 1949 (2010).

[2]  Id. at 1954.

[3]  H.R.Rep. No. 109-218, at 22-23.

[4]  H.R.Rep. No. 1319, at 2; Committee Report 7-11, App. 69-75; cf. post, at 1968 (KENNEDY, J., concurring in judgment).

[5]  130 S.Ct., supra, at 1961-1962.

[6]  521 U.S. 346 (1997).

[7]  130 S.Ct., supra, at 1954.

[8]  U.S. v. Carta, 620 F.Supp.2d 210 (D. Mass. 2009).

[9]  Id. 620 F.Supp.2d at 212-213.

[10]  Id. 620 F.Supp.2d at 213.

[11]  Id. 620 F.Supp.2d at 214-215.

[12]  Id. 620 F.Supp.2d at 215.

[13]  Id. 620 F.Supp.2d at 216.

[14]  Id. 620 F.Supp.2d at 216.

[15]  Id. 620 F.Supp.2d at 217.

[16]  Id. 620 F.Supp.2d at 217.

[17]  Id. 620 F.Supp.2d at 218.

[18]  Id. 620 F.Supp.2d at 218.

[19]  Id. 620 F.Supp.2d at 218.

[20]  Id. 620 F.Supp.2d at 219.

[21]  Id. 620 F.Supp.2d at 220.

[22]  Id. 620 F.Supp.2d at 220-221.

[23]  Id. 620 F.Supp.2d at 227 Citing to Kansas v. Hendricks, 521 U.S. 346, 358, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997) “A finding of dangerousness, standing alone, is ordinarily not a sufficient ground upon which to justify indefinite involuntary commitment. We have sustained civil commitment statutes when they have coupled proof of dangerousness with the proof of some additional factor, such as a mental illness or mental abnormality. These added statutory requirements serve to limit involuntary civil confinement to those who suffer from a volitional impairment rendering them dangerous beyond their control.”

[24]  Id. 620 F.Supp.2d at 229.

[25]  State v. Germane, 971 A.2d 555, 594 (Supreme Court of Rhode Island, 2009).

[26]  Commonwealth v. Squire, 278 Va. 747, 749; 685 S.E.2d 631 (Supreme Court of Virginia 2009).

[27]  Id. Commonwealth v. Squire, 278 Va. 747, 752.

[28]  In the matter of the Care and Treatment of Jimmy W. Miles, 42 Kan.App.2d 471; 213 P.3d 1077 (Kansas App. 2009).

[29]  Id. 42 Kan.App.2d 471 at 480: “we must vacate the district court’s order of January 30, 2008, and remand with directions as follows: (1) the court is ordered to appoint new and different counsel for Miles; (2) the court is to permit Miles to file an amended motion for transitional release or final discharge with assistance of counsel; (3) based upon that amended motion, the court is to determine whether an independent examination of Miles is “necessary” under K.S.A. 59-29a06; and (4) if and when such examination is completed the court is to make all requisite findings and a determination under K.S.A. 59-29a11 whether a hearing is warranted, and, if so, to conduct such a hearing.”

[30]  522 F.Supp.2d 317 (D. Mass. 2007).

[31]  Judge Saris was nominated by President Clinton on October 27, 1993.  She was previously in the U. S. Attorney’s office, and a U.S. Magistrate, for the U.S. District Court for the District of Massachusetts.  She was confirmed by the Senate on November 20, 1993.

[32]  522 F.Supp.2d 317, at 323; citing to Kansas v. Crane, 534 U.S. 407, 409, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002); Kansas v. Hendricks, 521 U.S. 346, 350, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997).

[33]  522 F.Supp.2d 317, at 323; citing to United States v. Comstock, 507 F.Supp.2d 522, 526, 2007 WL 2588815, at *1 (E.D.N.C. Sept.7, 2007) Holding the Act unconstitutional because it is “not a necessary and proper exercise of Congressional authority and … [because] the use of a clear and convincing burden of proof violates the … due process rights of those subject to commitment under the statute”); United States v. Carta, 503 F.Supp.2d 405, 407 (D.Mass.2007) (Tauro, J.) Upholding the Act as to all facial challenges but denying respondents’ motions to dismiss without prejudice to the court’s consideration of an “as-applied” challenge; and United States v. Harnden, No. 06-6960 (C.D.Cal. Dec. 27, 2006) Rejecting respondent’s facial and as-applied challenges but finding that Section 4248 “must be read to afford persons certified under it an opportunity for a probable cause hearing within a reasonable period of time”.

[34]  522 F.Supp.2d 317, at 332-333.

[35]  Id.

[36] 170 Wash.2d 302, 241 P.3d 1234 (Wash. 2010).

[37]  Id. at 1236-1237.

[38]  Id. at 1237.

[39]  Id. at 1237-1238.

[40]  Id. at 1240.

[41]  308 Wis.2d 191 (Wis.App. 2008).

[42]  308 Wis.App. 191, 195.

[43]  911 N.Y.S.2d 594 (2010).

[44]  Id. at 596.

[45]  Id. at 597.

[46]  Id.

[47]  Id. at 599.

[48]  911 N.Y.S.2d at 600.

[49]  Id. at 604.

[50]  71 A.D.3d 1528, 898 N.Y.S.2d 747 (2010).

[51]  Id. at 749.

[52]  In the matter of the care and treatment of John R. Van Orden, 271 S.W.3d 579 (2008).

[53]  271 S.W.3d  579, 587.

[54]  271 S.W.3d 579, 588.

[55]  242 S.W.3d 456 (Mo.App. S.D., 2007).

[56]  The State had to prove beyond a reasonable doubt that Martineau (1) has a congenital or acquired condition affecting his emotional or volitional capacity that predisposes him to commit sexually violent offenses to a degree that causes him serious difficulty controlling his behavior; and (2) is more likely than not to engage in predatory acts of sexual violence if not confined. 242 S.W.3d 458 citing to In re Care and Treatment of Spencer, 171 S.W.3d 813, 816 (Mo.App.2005).

[57]  Id. 242 S.W.3d 458. “Viewing the evidence accordingly, and without belaboring his sexual deviancy, Martineau molested at least eight boys in the ten years before his imprisonment. He started molesting five-year-old Craig in Rhode Island, then followed Craig’s family’s move to California to continue molesting the child there. He molested Craig about 100 times. He also molested Craig’s brother. Martineau’s other victims were boys from four to 14 years old. He molested them, in many cases, 10-15 times. Sometimes he plied his young victims with alcohol to break down their inhibitions. Virtually all such evidence of Martineau’s sexual history was admitted without objection…Craig, now an adult, testified in person at trial.”

[58]  Id. 242 S.W.3d 459.  The expert was Dr. Anna Salter.

[59]  711 N.W.2d 587 (Supreme Court of North Dakota 2006).

[60]  711 N.W.2d at 600.

[61]  Id.

[62]  711 N.W.2d at 600.

[63]  156 Wash.2d 150, 125 P.3d 111(Supreme Court of Washington 2005).

[64]  156 Wash.2d at 154.

[65]  Id.

[66]  168 Wash.2d 382, 229 P.3d 678 (Wash. 2010).

[67]  Id. at 679-680.

[68]  Pouncy’s proposed instruction was denied and none other was given. Id. at 681. 

[69]  Id. at 682.

[70] 388 Or. 44 106 P3d. 145 (2005).

[71]  The Sex Offender Risk Assessment or SORAG, was developed by Quinsey and his colleagues based on their many years of work in the Ontario correctional system.  See: Quinsey, V.L., Harris, G.T., Rice, M.E. & Cormier, C.A. (1998). Violent offenders: Appraising and managing risk. Washington, D.C­., American Psychological Association.  Please also see CHAPTER NINE in the main text for a fuller discussion of the SORAG.

[72]  327 Or. 485, 964 P.2d 990 (1998).

[73]  Id. at 498, 964 P.2d 990.

[74]  V.L.Y. v. Board of Parole and Post-Prison Supervision, 388 Or. 44,47; 106 P3d. 145,146 (2005).

[75]  106 P3d. 145,150-151 (2005).

[76]  Id.

[77]  388 Or. 44,55; 106 P3d. 145,150 (2005).

[78]  168 S.W.3d 708 (Missouri App 2005).

[79]  168 S.W.3d  712. The appellate panel went on to accept at face value, the

witnesses’ sense that the Static-99 “has been validated and cross-validated approximately 15 times, and it has been tested for inter-rater reliability approximately five times. Validation means the instrument is actually able to measure what it purports to measure in a test population.  Cross-validation means the instrument measures what it is supposed to measure when applied to a different population of test subjects.  Inter-rater reliability means different psychologists using the instrument would arrive at the same score when evaluating the same test population…” 168 S.W.3d  712.

[80]  59 Mass.App.Ct. 476; 796 N.E.2d 859 (2003). Dube  involved two petitions on two defendants convicted of sexual offenses. In the case of Rubin Sepulveda, the psychological report describing him as dangerous was withdrawn. 

[81]  On the issue of “admit it or else – no privileges – no parole – etc.” please see also: Johnson v Fabian, 735 N.W.2d 295 (Sup. Ct. Minnesota 2007) for a cogent discussion of the McKune and Sandin standards.  Also see: People v Palladino, 46 A.D.3d 864 (2007 N.Y. Slip Op. 10521); James v State, 75 P.3d 1065; 2003 WL 21854474 (Alaska App 2003) and Bender v New Jersey Dept. of Corrections, 356 N.J. Super. 432; 812 A.2d 1154 (2003); as well as the “admit it or else!” section of CHAPTER TEN’s update.

[82]  796 N.E.2d 859,862.

[83]  796 N.E.2d 859, 868 citing inter alia:  in Addington v. Texas, 441 U.S. 418, 429, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979).

[84]  187 Or. App. 207; 66 P.3d 560 (2003).

[85]  66 P.3d at 563.

[86]  66 P.3d at 566.

[87]  66 P.3d at 562.

[88]  66 P.3d at 563.

[89]  66 P.3d at 563: Depo-Provera is a “medicine to lower sexual drive.”  In addition to reducing sexual drive, it is said to reduce aggression generally.

[90]  66 P.3d at 563.

[91]  66 P.3d at 563. Both of the county mental health investigators who examined him agreed that he suffered from paraphilia as well.

[92]  66 P.3d 560, 567 – 568.

[93]  58 Mass. App. Ct. 662; 792 N.E.2d 677 (2003). This is the Peter Boyer case.

[94]  92 N.E.2d 677, 676 – 679 internal citations omitted.

[95]  92 N.E.2d 677 internal citations omitted.

[96]  92 N.E.2d at 682.

[97]  792 N.E.2d at 682 internal citations omitted .

[98]  Id.

[99]  61 Mass.App. Ct. 582, 812 N.E.2d 1235 (2004) This is the Ronald Boyer case.

[100]  812 N.E.2d at 1237 (2004).

[101]  Id.

[102]  Id.

[103]  812 N.E.2d at 1238 (2004).

[104]  Id.

[105]  “We repeat what we said in Commonwealth v. Dube, 59 Mass.App.Ct. 476, 482, 489, 796 N.E.2d 859 (2003), that expert testimony is required to prove sexual dangerousness.  See Commonwealth v. Bruno, 432 Mass. 489, 510-511, 735 N.E.2d 1222 (2000).”  61 Mass.App. Ct. 582,587; 812 N.E.2d 1235,1239 (2004).

[106]  Superior Court of California, County of Napa, Case No. CR8096 Honorable Robert A. Barclay.

[107]  Data, information and materials on People v McCurdy, Superior Court of California, County of Napa, Case No. CR8096 Honorable Robert A. Barclay; obtained with the kind assistance of the California Public Defender’s Office – Jim McEntee, Esq. and psychologist Ted Donaldson, Ph.D. Morro Bay, California.


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