Sexually Violent Preditor
In re Detention of Rogers, No. 20181-3-III, decided 6-17-2003
Division III of the Washington State Court of Appeals ruled that if
a person who has been committed as a SVP requests it, the Court must
appoint him a qualified expert and authorize funds to pay that expert’s
fee at each annual review at which conditional release or SRAs are considered.
A committed SVP is entitled to such an annual review, and in this case
the Court refused to appoint an expert for an annual review because
the Court concluded he had not shown any improvement from his four earlier
evaluations. The Court of Appeals reversed, holding that the trial court
had abused its discretion by requiring some threshold showing of improvement
before authorizing funds for a psychologist. It also said that if that
psychologist felt that there had been sufficient improvement for release
under an LRA, then a full hearing must be held. In re Detention of Rogers,
No. 20181-3-III, decided 6-17-2003.
In another Division III Court of Appeals case, State v. Woods, No.
21008-1-III, decided June 17, 2003, the defendant wished to present
testimony from a sexual offender treatment provider who had completed
a psycho-sexual evaluation, and would have testified that Woods had
no indication of sexual impulsivity, and no predisposition to sexual
attraction to children. The trial court refused to allow the testimony,
and Woods was convicted of raping two children. Upon appeal the Court
of Appeals affirmed, adding that opinion evidence is not admissible
as proof of character. In a footnote the Court indicated a defendant
is permitted to present evidence regarding his reputation in the community
for sexual activity. Washington’s courts do rely on evidence from
psycho-sexual evaluations to determine an offender’s amenability
to treatment under the Special Offenders Sentencing Alternative, RCW
9.94A.670(3), and in child custody disputes, if one parent has a history
of sexual offenses, then that parent may be required to undergo a psycho-sexual
evaluation. In re Marriage of Ricketts, 111 Wn. App. 168 (2002).
In re Detention of Thorell (69574-1; decided 7-10-03)
The Washington Supreme Court held “that proof that a person facing
commitment under Chapter 71.09 RCW lacks behavioral control is not a
new element of SVP commitment and a jury need not make a separate funding
regarding ‘lack of control’. However, the jury’s finding
that an SVP suffers from a mental illness, defined under our statute
as a ‘mental abnormality’ or ‘personality disorder’,
coupled with a person’s history of sexually predatory acts, must
support the conclusion that the person has serious difficulty controlling
behavior, although this evidence need not rise to the level of demonstrating
the person is completely unable to control his or her behavior.”
The Court therefore upheld the standard “to commit” jury
instruction which has no express element of “lack of control”,
explaining, “We hold that although Crane did not impose a new
element in SVP commitments, Crane did require SVP commitments to be
supported by proof beyond a reasonable doubt of serious difficulty controlling
behavior.” In a footnote, however, the Court also stated, “Although
not constitutionally or statutorily required, including an instruction
on the serious lack of volitional control in future SVP commitments
will assist appellate review and is therefore the better practice.”
The Court then reviewed each of six cases consolidated for review in
In re Detention of Thorell to analyze whether enough proof of “lack
of behavioral control” had been provided. In the case of Thorell
no evidence of lack of control was in the record, but the Court felt
that Thorell’s modifying children’s pictures, writing pornographic
stories about children, keeping store advertisements involving children,
and under-reporting his deviant fantasies, somehow showed proof that
“allowed the jury to conclude, beyond a reasonable doubt, that…serious
lack of control, led to a likelihood Thorell would engage in future
predatory acts if not confined.” In other words, the fact of the
deviant behavior alone was proof beyond a reasonable doubt of lack of
control. In Ross, a State’s expert had testified, “when
you have this stance to the world, this set of attitudes, you have difficulty
looking at the law as applying to you. You don’t see how it protects
other people. If you want something, you want it for yourself, and nothing
will stand in your way. If you are told that something is illegal and
you still have a strong compulsion to do it, for example, drug or sexual
offenses, you will continue to do it and use whatever resources you
have to hide your behavior and to con, manipulate, get around a lot.”
Again, this testimony did not even address the issue of volitional control,
but the Washington Supreme Court cited that testimony as having been
sufficient proof of lack of volitional control beyond a reasonable doubt.
Two other experts testified, but they also did not address the volitional
control issue.
In Gordon the State’s expert testified that Gordon was schizophrenic
and heard voices, and he had told a counselor, “I’m going
to rape again.” Again, that evidence did not address any volitional
impairment, but the Washington Supreme Court found it had been sufficient
beyond a reasonable doubt. In Bishop the respondent himself had said
he was likely to re-offend within nine months, and he had solicited
sex from other inmates. Again, the volitional issue was never addressed,
but the Court found the evidence had been sufficient beyond a reasonable
doubt. In Strauss the evidence showed he had re-offended 39 days after
his release, and he had not sought counseling. When asked if he could
control his impulse to rape, he testified he had never been in a position
to attack somebody and refrained from doing so. Again, the issue of
whether he attacked of his own free will or because of lack of volitional
control was not addressed, but the Court found sufficient evidence of
lack of control beyond a reasonable doubt. Finally, in Johnson the State’s
expert testified that Johnson’s lack of remorse reduced Johnson’s
interest in controlling his impulses, again avoiding the issue of whether
he could control his behavior but chose not to as opposed to an inability
to control it. Again, the Court found sufficient evidence beyond a reasonable
doubt of lack of volitional control.
One can only conclude that in any case in which the alleged sexual
predator has engaged in numerous instances of dangerous deviant sexual
behavior, the Court will conclude that constitutes “lack of behavioral
control”. As Chief Justice Alexander stated in his lone dissent,
“Inextricably, our majority in this case follows the Crane dissent
rather than the holding embraced by a majority of the United States
Supreme Court.”
The Supreme Court also reversed its earlier holding in In re Detention
of Brooks, 145 Wn. 2d 275 (2001) that the jury must be instructed as
to less restrictive alternatives (LRAs) at initial commitment, based
on subsequent statutory amendments which precluded consideration of
LRAs during the commitment hearing. Instead, LRAs may only be considered
for the first time at the annual review and may be limited to the LRAs
provided for under the Act, although placement at a “secure facility”,
apparently a “residential facility for persons civilly committed
and conditionally released to a less restrictive alternative”
under the SVPA can still be considered at the time of commitment. The
Court explained that SVPs must spend time in treatment that occurs after
commitment, since before commitment individuals are pre-occupied with
their legal dealings, and thus may limit their participation in treatment,
so it is only after commitment that LRAs can accurately be evaluated.
The Supreme Court also ruled that so-called “actuarial”
instruments developed scientifically through research to weigh various
factors in a quantifiable fashion to predict future dangerousness do
meet the Frye test of admissibility (i.e., they are accepted in the
relevant scientific community), and are therefore admissible in SVP
commitment hearings. Examples would be Hare’s Psychopathy Check-List-Revised
(PCL-R) and the SORAG developed in Canada by Vernon Quinsy, et al. The
Court held that such actuarial approaches do not constitute inadmissible
profile evidence, as the probative value of such evidence is high, outweighing
its prejudicial impact. Indeed, the Court held that clinical evidence
on future dangerousness based on clinical assessment (unquantified opinion
evidence based merely on a clinician’s experience and training)
is also automatically admissible, citing In re Detention of Campbell,
139 Wn. 2d 341 (1999) and the U.S. Supreme Court case Barefoot v. Estelle,
463 U.S. 880 (1983). Thus, in the future all expert opinions about future
dangerousness, whether based on clinical or on actuarial analysis, will
automatically meet the Frye test, in SVP commitment hearings, and (presumably
by the same reasoning) in all other types of court cases as well.
Confessions
Miranda v. Arizona 384 U.S. 486 (1966)
Suspects in custody must have "intelligently, knowingly, and willingly"
waived their rights to remain silent and to have an attorney, or their
confessions will not be admissible at trial.
Colorado v. Connelly 479 U.S. 157 (1986)
A confession cannot be successfully challenged under an "involuntariness"
standard unless there was some form of police coercion or bad conduct.
Wainright v. Greenfield 474 U.S. 284 (1986)
If a defendant remained silent upon his arrest and asks for an attorney,
and then later enters an insanity plea, the fact he remained silent and
asked for an attorney cannot be used against him to prove he was sane.
Death Penalty
In re matter of the personal restraint petition of
Brett No. 63835-7 (Wash. 1/25/2001)
Washington State Supreme Court ruled that Brett's attorney rendered "ineffective
assistance" in this death penalty case when he did not hire mental health
experts in a timely fashion.
Duty to Warn
Tarasoff v. Regents of the Univ. of Calif. 529
P. 2d 533 (Cal.1974) Tarasoff II 551 P. 2d 334 (Cal. 1976)
A therapist and a client have a special relationship, out of which arises
a special duty on the therapist, such that once the therapist realizes
(or should realize) that a client is a serious risk of danger or violence,
he has a duty to warn foreseeable victims.
McIntosh v. Milano, 403 A. 2d 500 (N.J. Sup. Ct.
Law Div. 1979)
When therapists determine (or should determine) that a client presents
a likelihood of danger, they have a duty to take reasonably necessary
actions to protect potential victims.
Jablonski v. U.S. 712 F. 2d 391 (9th Cir. 1983)
VA Hospital case, in which patient had previously raped and abused his
wife, and indications were he was likely to be violent towards women close
to him. The duty to warn was held when the patient killed the woman he
was living with.
White v. U.S. 780 F. 2d 97 (CD.C. Cir 1986)
Patient at St. Elizabeth's Hospital had told psychologist about his thoughts
of killing his wife. Nonetheless, he was allowed to leave the grounds,
and he killed his wife. Duty to warn upheld.
Hedlund v. Super Ct. of Orange Cty. 669 P. 2d 41
(Cal.1983)
The longer statute of limitations for personal injury is the one that
applies in a failure to warn case.
Davis v. Chin 335 N.W. 2d 481 (Mich. App. 1983)
Without notifying her of his dangerousness, patient was discharged to
his mother. When the patient killed his mother duty to warn was upheld.
Recent Washington Cases
State v. Cheatam (73079-2 Washington Supreme Court)
decided 12-11-03
New test trial courts use in deciding whether to admit expert
eyewitness testimony: trial court should “carefully
consider whether expert testimony on the reliability of eyewitness identification
would assist the jury in assessing the reliability of eyewitness testimony.”
The Washington Supreme Court disapproves of State v. Moon, 45 Wn. App
692 (1986).
State v. Pickett, 95 Wn.App 475 (1-99)
Homeless and transient sex offender not required to register under former
R.C.W. 9A.44.1309: has no "residence." Accord, State v. Bassett, 97 Wn.App
737 (11-99).
State v. Graves, 97 Wn.App 55(1-99)
Juvenile not precluded from claiming self defense just because provoker
(and alleged victim) is parent claiming parental discipline. Where parent
initiated contact, State didn't disprove self-defense by juvenile assailant.
State v. B.P.M, 97 Wn.App 294 (1-99)
JuCR 7.6(e) requires that capacity hearing be held within 14 days of filing.
Violation of rule is not jurisdictional: should give State opportunity
to show good cause for enlargement of time and if good cause shown, court
to decide whether juvenile materially prejudiced.
Evidence
State v. Cheatam, (73079-2) decided 12-11-03
New test trial courts use in deciding whether to admit expert eyewitness
testimony: trial court should “carefully consider whether
expert testimony on the reliability of eyewitness identification would
assist the jury in assessing the reliability of eyewitness testimony.”
The Washington Supreme Court disapproves of State v. Moon, 45 Wn. App
692 (1986).
State v. Hirschfield, 99 Wn.App. 1 (I-99).
Child Hearsay, Unavailable Witness, Confrontation: Child
molest. Child testified pretrial, said she would not discuss the abuse,
even if judge ordered her to testify. Court did not abuse discretion in
finding witness unavailable. Rejects 2nd Cir. Rule requiring judge to
order witness to talk and threaten contempt if won't. Confrontation clause
satisfied by unavailability and reliability.
State v. Linares, 98 Wn.App. 397 (I-99).
Photo Montage: Re-affirms 2 step due process analysis
of out-of-court identification: only if courtt finds that procedure was
suggestive, go to 2nd step of determining whether it created substantial
likelihood of irreparable misidentification. Reliability of identification
only examined if procedure found to be suggestive. (Disapproves Shea.)
State v. Greene, 139 Wn.2d 64, 984 P. 2d 1024
(9/30/99), cert. Denied, 120 S. Ct. 1726 (2000):
The diagnosis of dissociative identity disorder (DID) is generally accepted
in the scientific community. Such evidence is nonetheless inadmissible
absent generally accepted evidence as to how the condition affects culpability.
State v. C.J., 63 P.3d 765 (Wash Sup. Ct., Feb
6, 2003)
Admission of unavailable child victim's hearsay statements did not
require proof that three-year-old child victim was competent to be witness
at the time of the hearsay sattements, over-ruling State v. Karpenski,
94 Wash. App. 80 (1999).
State v. Smith, No 71787-7 (Wash. Sup. Ct., Dec 12, 2002)
Trial court abused its discretion in admitting hearsay statements of a
five-year-old victim without determining that the child could not have
testified via closed-circuit television where there was testimony that
the child may have been able to testify by that method. Fact that closed-circuit
television was not installed in the courtroom in this case does not affect
state's burden under the "good-faith" requirement.
Transfer from Jail to State Hospital
Oregon Advocacy v. Mink, No. 02-35530 (9th Circuit decision,
March 6, 2003)
The plaintiffs, an advocacy group, sued Mink, the director of Oregon's
Department of Human Services and the superintendent of the Oregon State
Hospital (OSH). The plaintiffs alleged that OSH was violating mentally
incompetent defendants' due process rights by having a "waiting list",
thus unreasonably delaying such defendants' transfer from county jails
to OSH for treatment. 9th Circuit held that since OSH is the only state
hospital designated to treat defendants found incompetent to stand trial,
the defendants have a due process right to "reasonably timely transport
to a treatment facility", and thus cannot be held for more than seven
days in jail after a judicial finding of incompetence.
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