Judge denies release for man awaiting second trial on sexual predator status

6-26-2013 Kansas:

A Sedgwick County District Court Judge has denied a request to release a man awaiting his second trial to determine whether he is a sexually violent predator.

An attorney for Rafe Jay Davis argued Tuesday that because his client’s first trial ended with a hung jury the state did not sufficiently meet its burden of proof and Davis should be freed.

“The jury was asked the question: ‘Was Mr. Davis a violent sexual predator?’,” defense attorney Gerald Domitrovic said of the five-day trial, which left jurors deadlocked 9-3 in April. “... If it’s less than unanimous, the state did not meet it’s burden and he should be released.”

He added that the state should have only “one shot” to prove its case, regardless of a verdict is reached.

According state statute, a person deemed a sexually violent predator must have prior violent sex crime charges or convictions and suffer from a mental illness or personality disorder that increases the likelihoood he or she will reoffend.

Convicted sex offender won rare judicial reprieve

2-27-2012 Kansas:

When convicted sex offender Christopher J. Saemisch, 54, went to trial earlier this month in Douglas County contesting his classification as a sexually violent predator, he was facing long odds.

Saemisch was the 38th Kansas sex offender since 2008 to go to trial under the state’s Sexually Violent Predator Act.

Until last week, only two offenders had been successful in contesting their indefinite commitment to Larned State Hospital, according to a Journal-World investigation.

“It’s very rare that there’s a win,” said local defense attorney Carl Folsom, who unsuccessfully defended Lawrence sex offender Dale Patterson in November. “It’s an uphill battle.”

But Saemisch, convicted of aggravated indecent liberties with a 5-year-old child in 1999, won his case Wednesday when Douglas County Judge Michael Malone ordered his release from custody.

Merryfield v State

10-22-2010 Kansas:

Merryfield v State

For more than a decade, Dustin Merryfield has been confined at the Larned State Hospital under the Kansas Sexually Violent Predator Act, K.S.A. 59-29a01 et seq. He has filed a habeas-corpus petition under K.S.A. 60-1501 raising claims that go to the core of the Kansas treatment program for sexual predators: Merryfield claims that the program is run so poorly that it doesn't offer a realistic opportunity to cure or improve the mental abnormality for which he has been involuntarily confined. We must reverse the district court summary dismissal of Merryfield's petition because it raises constitutional claims of potential merit.

We also reverse the district court's decision refusing to appoint counsel to represent Merryfield in this habeas action. While there is no general right to counsel in civil habeas cases, the constitutionality of the Kansas Sexually Violent Predator Act depends upon the procedural rights given to those who are involuntarily committed under its provisions.

The Kansas Legislature has explicitly provided a right to counsel to such persons during annual review hearings and has explicitly provided a right to counsel in K.S.A. 60-1501 proceedings to those involuntarily committed under other similar statutes.

We therefore conclude that in the case of habeas actions brought by persons confined pursuant to the Kansas Sexually Violent Predator Act, those persons have a constitutional right to counsel if the district court determines that their petitions cannot be summarily dismissed.

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Appeals court orders sex offender freed

1-28-2016 Texas:

Appeals court finds defendants no longer qualify for supervision

AUSTIN - A state appeals court in Beaumont ordered the state to immediately free an 83-year-old man from Texas' civil commitment program for sex offenders Thursday, the first person given complete freedom in the controversial program's 16-year history.

Hours later, a Conroe judge took steps to free a second man from the program that allows the state to keep repeat sex offenders under supervision following their release from prison if officials believe they possess a "behavioral abnormality" that would make them likely to re-offend.

State officials and attorneys representing other men in the civil commitment program said the appeals court's decision could spark a review of other cases in which offenders have been kept in the program despite being deemed free of the behavioral abnormality, a term conceived and defined by Texas legislators.

In its two-page decision, the appeals court said that without the behavioral abnormality, Paul Vincent Keen Jr., who uses a walker and has been living in an Austin boarding home with an ankle monitor that continually tracks his movements, no longer qualified to be in the civil commitment program.

In re Zishka

3-6-2015 Kansas:

In re Zishka

Paul Dale Zishka appeals the district court's decision at his annual review hearing to maintain his status in treatment in the Sexual Predator Treatment Program. On appeal, Zishka argues that the district court violated his rights when it failed to hold a hearing and failed to appoint an attorney to represent him. We agree.

Persons involuntarily committed as sexually violent predators are entitled to an annual review hearing at which they are represented by counsel. Here, the district court gave no hearing notice and simply signed a proposed order—submitted by the State— finding that Zishka should remain in the treatment program. In addition, although Zishka twice asked in writing to have counsel appointed to represent him, the district court did not do so. We therefore reverse the district court and remand to hold Zishka's review hearing after appointing counsel to represent him.

With that summary, let's review Zishka's appeal in greater detail. In 2008, Zishka was involuntarily committed as a sexually violent predator under the Kansas Sexually Violent Predator Act (the Act), K.S.A. 59-29a01 et seq. Since that time, he has been in state custody at the Larned State Hospital. He must remain in state custody until he makes sufficient progress in treatment that he qualifies for transitional release and, potentially, final discharge from the Sexual Predator Treatment Program. See In re Burch, 296 Kan. 215, 219-20, 291 P.3d 78 (2012).

Chadwick v Gillmore

7-10-2013 Kansas:

Petitioner proceeds pro se and in forma pauperis on a petition seeking a writ of habeas corpus under 28 U.S.C. § 2254. Petitioner is held in the Larned State Hospital following his civil commitment pursuant to the Kansas Sexually Violent Predator Act (KSVPA), K.S.A. 59-29a01 et seq.

Having reviewed the record which includes respondents' Answer and petitioner's Traverse, the court finds petitioner has not demonstrated any basis for federal habeas corpus relief.

... ... ...

CONCLUSION

For the reasons stated herein, the court finds petitioner has not presented any claim that suggests constitutional error in the state civil commitment proceedings against him, or in the denial of petitioner's motion for relief from that 2001 judgment. The Kansas courts adjudicated his claims on the merits, and there is no showing of any decision that was contrary to clearly established federal law or of any unreasonable determination of the facts. Moreover, the rulings of the Kansas courts rest upon their interpretation and application of state law, which are matters outside the province of this court's review in habeas corpus. Finding no cognizable ground for habeas corpus relief, the court denies the petition.

IT IS THEREFORE ORDERED that this matter is dismissed and all relief is denied.

IT IS SO ORDERED. ..continued.. by United States District Court, D. Kansas.

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Pew v Sullivan

4-1-2014 Kansas:

Floyd W. Pew and 66 other members of the Kansas Sexual Predator Treatment Program (collectively referred to as Residents) appeal the district court's summary dismissal of their writ of habeas corpus challenging the program's decision to restrict their right to purchase consumable items to only three vendors.

Management of the Kansas Sexual Predator Treatment Program has failed to show its restricted vendor policy has a treatment or security-related basis.

We therefore remand for the appointment of counsel and for further proceedings consistent with this opinion. ..Source.. by Kansas Court of Appeals

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Judge: Sex offender must remain under supervision

12-11-2014 Wisconsin:

A judge determined after a 4½-hour court trial Wednesday that Kerry Abbott, deemed a sexually violent person in 2001, will remain under supervision.

Abbott, 56, who has lived alone at a rural Arkansaw residence since July 2012, petitioned for discharge from supervision. A handful of psychological reports in recent years recommended he be released because he was abiding by conditions of his release and was not likely to reoffend.

Trempealeau County Judge John Damon, after reviewing Abbott’s lengthy list of sexual assaults and hearing a psychologist say Abbott was about 30 percent likely to reoffend if released, was not persuaded to release him.

“It’s a tool,” Damon said, referring to an actuarial (statistical calculation) that indicated Abbott would not likely reoffend. “This assessment tool isn’t meant to replace the judgment of the court as to what the risk is in the future. There would be no need for this hearing if all we had to do was spit this into an actuarial.”

Damon said the severity of Abbott’s offenses, along with a statement he made while under supervised release in 1994, that he may kill his next victim, factored into the judge’s decision.

“A 30 percent chance of recidivism that he might commit another sexual assault ... is a pretty high percentage,” he said.

Jamaal Ali Bilal v Florida

This is insane, held for practicing law w/o a license in civil commitment? Unbelievable!

See also: Jamaal Ali Bilal v Geo Care (Order)

1-23-2016 Florida:

Jamaal Ali Bilal v Florida

Petitioner Jamaal Ali Bilal, a resident at the Florida Civil Commitment Center ("FCCC") who is civilly detained under the Sexually Violent Predators Act, initiated this action by filing a Petition for Writ of Habeas Corpus (Doc. #1, Petition) on October 14, 2014.[2] The Petition challenges Bilal's plea-based conviction for practicing law without a license entered on March 23, 2012 in the circuit court located in Desoto County, Florida.

Pursuant to the Court's Order, Respondent filed a "Limited Response" to the Petition (Doc. #8, Response) and attached supporting exhibits (Doc. #8-1, Exhs. 1-9). Respondent argues that the Court lacks jurisdiction to consider the Petition because Bilal is no longer "in custody" on the practicing law without a license conviction.[3] Bilal filed a "Limited Reply" (Doc. #11, Reply). This matter is ripe for review.

... ... ...

ORDERED:

1. The Petition for Writ of Habeas Corpus (Doc. #1) is DISMISSED.

2. Petitioner's motion for preliminary injunction, restraining order motion to compel (Doc. #10) is DENIED.

3. Petitioner's objections to the Magistrate Judge's Order (Doc. #18) are duly noted, but nevertheless DENIED.

4. The Clerk of Court shall terminate any pending motions, enter judgment accordingly, and close this case.

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Jury quickly rules man sexual predator

1-23-2016 Kansas:

It took a Reno County jury about 40 minutes Friday to find a one-time Hutchinson man a sexually violent predator who should be placed in the state’s sexual predator program at Larned State Hospital.

Charles Smith, 29, waited for members of the six-woman jury to leave the courtroom, then jumped up and shouted that he objected. Ordered to sit down by District Judge Trish Rose, he continued to rant.

“When I first came here, all I wanted to do was leave,” Smith said. “I just want to go home. I’m not trying to do anything crazy.”

Rose then ordered him committed to the program at Larned.

As deputies escorted him from the courtroom, he unleashed a profanity-laced tirade that included suggestions for prosecutor Keith Schroeder.

The six-woman jury got the case for deliberation at 11:12 a.m., and signaled it had a verdict by 11:50 a.m.

Childress v Hankins

1-8-2016 Illinois:

Plaintiff is civilly detained in the Rushville Treatment and Detention Center pursuant to the Illinois Sexually Violent Persons Commitment Act, 725 ILCS 207/1, et seq. He alleges that he is a paraplegic, needing frequent daily catheterizations to empty his bladder, a wheelchair, a wheelchair-accessible room and toilet, grab bars by the toilet, and a shower seat. For years Plaintiff has allegedly received these accommodations, per order of the doctor on site.

On June 18, 2015, Plaintiff was allegedly removed from his room and placed in a segregation cell without the necessary accommodations or any written notice of any rules he had broken. Handcuffs were allegedly placed too tightly on Plaintiff intentionally during the transport, and Plaintiff was wheeled to segregation in an aggressive manner intended to frighten him.

All of the Defendants allegedly ignored Plaintiff's pleas for a room that would accommodate his medical condition, remarking that Plaintiff should have thought of that before pursuing lawsuits against them. For six days Plaintiff was allegedly kept in the cell with no way to safely use the toilet or to clean himself. He was not permitted to send out any correspondence, including legal mail. He was allegedly forced to sit and lay in his own urine and feces, with no change of clothes, soap, toothpaste, toothbrush, or other necessities during this entire time.

Jury decides to keep Skagit County sex offender in custody

1-22-16 Washington:

MOUNT VERNON — Jurors decided Tuesday to keep Gregory Coley in custody at the state’s Special Commitment Center on McNeil Island, determining that Coley is a dangerous sexual predator and should remain confined in the interest of public safety, according to the state Attorney General’s office.

A trial began Jan. 11 in Skagit County Superior Court to determine if Coley, 36, still meets the criteria to be deemed a sexually violent predator.

State law says a person convicted of a sex offense and found by a judge or jury to be a sexually violent predator can be civilly committed into state custody after he or she has completed a criminal sentence.

A sexually violent predator must have been convicted of a sexually violent crime and suffer from a mental abnormality or personality disorder that makes future criminal sexual conduct likely, according to state law.

Brown v Dept of Health and Human Services

9-29-2015 Nebraska:

Brown v Dept of Health and Human Services [2015] (See also: 2014 Memorandum and Order)

This matter is before the court on a Motion to Dismiss (Filing No. 39) Plaintiff Cornelius Brown's Amended Complaint. When Brown filed his Amended Complaint, he was confined to inpatient treatment at the Norfolk Regional Center ("NRC") in Norfolk, Nebraska. The Motion to Dismiss was filed by Bob Gibson, the director of the Nebraska Department of Health and Human Services ("NDHHS"), and the following staff of the NRC: TiLnne Bouer, a facility operating officer; Kristine Simmons, an associate facility operating officer; John Kroll, the director of nursing, and Lori Strong, Dianna Mastny and Nancy Wragge, nurses at the NRC (together, "State Defendants").

State Defendants argue Brown's claims for damages against them in their official capacities are barred by sovereign immunity. In addition, they argue Gibson, Bouer, Simmons, and Kroll are entitled to qualified immunity. Finally, they argue Brown failed to state cognizable constitutional claims against Wragge, Mastny, and Strong. (Filing No. 40.) For the reasons that follow, the court will dismiss all of Brown's claims except his retaliation claims against Strong and Mastny in their individual capacities.

BACKGROUND

Brown filed his original Complaint (Filing No. 1) on September 30, 2014. He filed two Supplements (Filing Nos. 14 and 15) to his Complaint on November 4 and December 2, 2014. Brown, a black male, alleged staff at the NRC failed to address patients' use of racially derogatory language. In addition, he alleged two NRC staff, Strong and Mastny, retaliated against him by taking steps to ensure he could not advance in his sex-offender treatment program when they learned Brown had filed a civil action in this court.

Violent sex offender detained indefinitely

1-14-2016 Florida:

A man due to be released from prison after serving time for raping multiple elderly women will instead be detained indefinitely after being deemed a sexually violent predator.

In a three-day civil trial in Pensacola, Assistant State Attorney Jay Williams successfully made the case to a jury that Michael Degerald Mosley, 52, should be involuntarily detained in a treatment center for sex offenders because he would pose a danger to the community if released into society.

While on probation in 1984, Mosley broke into homes in a Palm Beach retirement community and sexually assaulted two elderly female residents, according to the State Attorney's Office. After serving approximately a decade on a 22-year sentence, he was released and moved to Escambia County to live with relatives. Six months after his release, he broke into the home of an elderly woman across the street and sexually assaulted her.

Mosley was due for release again in December, but two of three psychologists who interviewed and assessed Mosley determined he was a high risk to re-offend.