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.

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.

---

Sex Offender Loses Adam Walsh Civil Commitment Appeal

12-10-2013 North Carolina:

U.S. v. SAVAGE
737 F.3d 304 (2013)

The United States Court of Appeals for the Fourth Circuit affirmed, on December 10, 2013, the judgement of the District Court for the Eastern District of North Carolina civilly committing appellant Richard Savage to post-incarceration confinement with the Federal Bureau of Prisons (BOP) at their Butner, North Carolina facility. Savage was convicted in 2006 of distributing heroin in the District of Columbia and sentenced to three years imprisonment with the BOP. Reflective of Savage’s history of sexual offenses, though unrelated to his charge of incarceration, Savage was certified a “sexually dangerous person” and caused per the Adam Walsh Child Protection and Safety Act (18 U.S.C. §4248) to remain in the custody of the BOP after completion of his sentence.

Savage appealed, arguing that the district court lacked jurisdiction under the Adam Walsh Act in that he was not “in the custody of the BOP” as required by §4248(a). He also asserted that in not releasing him to the supervision of the District of Columbia Court Services and Offender Supervision Agency Authority (CSOSA), the district court erred by not following the provisions of §4248(d).

Savage relied on a Fourth Circuit case wherein the prisoner, an ex-army officer, argued that under the Uniform Code of Military Justice (UCMJ), the military and BOP had a contractual agreement where the BOP housed military prisoners and that based on this contractual agreement, he was exempt from the strictures of the Adam Walsh Act because he was not under the legal custody (i.e. release, parole authority, etc.) of the BOP, but rather he belonged to the military for the final disposition. Savage maintained that D.C. code, under which he was incarcerated, was like the UCMJ, a separate body of law from Title 18, and that BOP maintained physical, but not legal, custody as required by §4248 to adjudicate a civil commitment. The district court denied Savage’s argument.

The Fourth Circuit Court of Appeals held that Savage’s legal posture was dissimilar to the case which he claimed was “virtually indistinguishable” to his. The court pointed out that District of Columbia offenders are statutorily, as opposed to contractually, as is the case with military offenders, placed under BOP control, and that the BOP does have legal authority over the final disposition (parole, release, etc.) of District of Columbia prisoners, and that the BOP is the Attorney General’s designee in matters of confinement. The court also noted that because Savage never raised the issue of §4248(d), mandating his release to CSOSA, rather than civil incarceration, he effectively waived his right to do so in the high court. See: United States v. Savage, 737 F.3d 304 (4th Cir. N.C. 2013).

---

In the matter of Civil Commitment of L.M.R.

3-20-2013 New Jersey:

In the matter of Civil Commitment of L.M.R.
No. A-1200-12T2.

The State appeals from an October 18, 2012 order declining to continue L.M.R.'s civil commitment pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to-27.38, and ordering his release from the Special Treatment Unit (STU). By order dated November 15, 2012, we stayed L.M.R.'s release and expedited this appeal. Having reviewed the record, we now affirm the order on appeal.

I.
In 2003, L.M.R. (defendant) pled guilty to second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. He was sentenced to seven years in prison, half to be served without parole, plus community supervision for life (CSL) pursuant to Megan's Law. See N.J.S.A. 2C:43-6.4d. The guilty plea was based on a 2002 incident in which defendant, who was intoxicated at the time, attempted to sexually assault his paramour's fourteen-year-old daughter. L.M.R. desisted after the victim's younger brother came into the room and interrupted the assault. Defendant was evaluated at the Adult Diagnostic and Treatment Center (ADTC), but was found not to be a repetitive and compulsive sex offender, in part because he had no prior arrests or convictions for sexual offenses.1

In his ADTC report, Dr. Mark Frank discounted defendant's explanation of the incident. Defendant claimed that he did not attempt to have sex with the victim but only entered her bedroom in the hope that she would tell her mother, who in turn would "call the police and have him arrested." Defendant said he wanted to get arrested because he needed substance abuse treatment. Dr. Frank noted defendant's long history of substance abuse; he recommended intensive treatment for that problem, plus psychotherapy to help L.M.R. understand why he committed the offense and avoid a recurrence. ... ... ...

Further, a sexually violent predator is one who "suffers from a mental abnormality or personality disorder that makes the person [highly] likely to engage in acts of sexual violence if not confined in a secure facility for control, care and treatment." N.J.S.A. 30:4-27.26 (emphasis added); W.Z., supra, 173 N.J. at 133-34. Nothing in that definition suggests that a judge cannot consider a sex offender's entire situation in determining whether he needs to be confined in the STU or can be released following an initial commitment hearing. In fact, the State's reply brief concedes that "external factors like CSL may be considered by experts among the many factors examined in determining whether an offender is capable of controlling his sexually violent behaviors." We conclude that is what happened in this case. On this record, we find no error in the judge considering CSL as one of an array of factors bearing on whether L.M.R. can live in the community without being highly likely to commit additional sexual offenses.

As L.M.R. himself acknowledged to Dr. Stewart, it is very important that he refrain from drugs and alcohol when released, because those are dis-inhibitors that may make him more likely to relapse into offending. The parole supervision available through CSL is one mechanism to require regular drug testing, as well as outpatient sex offender therapy. CSL also allows the State to place appropriate limitations on where L.M.R. lives and works. And it is a particularly powerful form of supervision because failure to comply may result in L.M.R.'s arrest and incarceration. See N.J.S.A. 2C:43-6.4d.4 Moreover, as we were advised at oral argument, the same parole officers supervise offenders paroled on CSL and persons released from the STU on conditional discharge. We find nothing inappropriate in Judge Mulvihill, having found that L.M.R. was not highly likely to re-offend, nonetheless making some sensible recommendations as to the conditions of his parole supervision.

Accordingly, we vacate the stay previously entered in this matter, and order that L.M.R. be released from the STU no later than ten days after the date of this opinion. We extend the stay for that limited period to (a) permit L.M.R.'s assigned parole officer to meet with L.M.R. at the STU prior to his release, should the officer choose to do so; and (b) permit the orderly disposition of a stay application to the Supreme Court, should the State decide to promptly file such a motion. We do not, however, recommend that any further stay be granted.

Affirmed. ..Source..

---

In re Commitment of Knott

Take note, this commitment is based on "ATTEMPTED" sex crimes. This is now the third one we have found using "attempted" as the state's basis.

2-7-2013 Arizona:

In re Commitment of Knott
No. 2 CA-MH 2012-0010-SP.

In July 2012, a jury found appellant Derek Knott to be a sexually violent person (SVP) pursuant to Arizona's Sexually Violent Persons Act, A.R.S. §§ 36-3701 through 36-3717. The trial court committed Knott to the custody of the Arizona Department of Health Services for placement in a licensed facility under the supervision of the Arizona State Hospital. On appeal, Knott challenges the court's denial of his motion for directed verdict, arguing there was insufficient evidence he had been convicted of a sexually violent offense or that he had a mental disorder that made it highly probable he would engage in future sexually violent acts, and argues the court erred when it committed him in the absence of a unanimous jury verdict. He asks that we reverse the judgment that he is a SVP and order his release. We affirm for the reasons stated below.

In re Commitment of Allen

Take note, this commitment is based on "ATTEMPTED" sex crimes. This is now the third one we have found using "attempted" as the state's basis.

1-17-2013 Arizona:

In re Commitment of Allen
No. 2 CA-MH 2012-0007-SP.

Pursuant to a plea agreement, appellant Charles Allen was convicted of two counts of attempted sexual conduct with a minor and sentenced to a fourteen-year prison term. Before the prison term was completed, the state filed a petition pursuant to A.R.S. § 36-3704 and, after a two-day trial in May 2012, a jury found Allen a sexually violent person (SVP), see A.R.S. § 36-3701(7), and the trial court ordered him committed to the Arizona Department of Health Services for placement and treatment in a licensed facility under the control of the Arizona State Hospital. Allen filed a motion for new trial, which the court denied. This appeal challenges the trial court's denial of the motion.

In Re Commitment of Derek Knott

2-7-2013 Arizona:

In July 2012, a jury found appellant Derek Knott to be a sexually violent person (SVP) pursuant to Arizona's Sexually Violent Persons Act, A.R.S. §§ 36-3701 through 36-3717. The trial court committed Knott to the custody of the Arizona Department of Health Services for placement in a licensed facility under the supervision of the Arizona State Hospital.

On appeal, Knott challenges the court's denial of his motion for directed verdict, arguing there was insufficient evidence he had been convicted of a sexually violent offense or that he had a mental disorder that made it highly probable he would engage in future sexually violent acts, and argues the court erred when it committed him in the absence of a unanimous jury verdict. He asks that we reverse the judgment that he is a SVP and order his release.

We affirm for the reasons stated below.

... ... ...

..Source.. by Court of Appeals of Arizona, Division Two, Department A.

---

Court orders release of sex offender who didn't get trial in civil case following prison term

11-29-2013 Arizona:

PHOENIX — A man accused of being sexually violent must go free because authorities violated his rights by failing to timely schedule a trial, an Arizona appellate court ruled Friday.

The state Court of Appeals said Steven Lane Fuller was entitled to have a trial within 120 days and that a delay of more than a year means he went without treatment that might have resulted in his release.

Fuller was discharged from the state prison system in January 2012 after serving sentences for Pima County convictions for public sexual indecency and indecent exposure.

He was immediately transferred to the state mental hospital in Phoenix. That was after a Pinal County Superior Court judge granted prosecutor's request that Fuller be committed for civil proceedings on whether Fuller should receive treatment for sexual violence.

NH high court upholds violent sexual predator's conviction

6-30-2013 New Hampshire:

The New Hampshire Supreme Court on Friday upheld the convictions of a violent sexual predator who argued prosecutors did not definitively identify him as the culprit because he did not attend his own trial.

William Ploof, 53, also contended a mistrial should have been called when a witness made a comment that, "This guy is a multiple offender," indicating he had a criminal record.

The Supreme Court rejected both arguments.

According to the decision, Ploof was convicted of aggravated felonious sexual assault and conspiracy to commit aggravated felonious sexual assault in Coos County Superior Court. He was accused of sexually assaulting a 12-year-old boy between August 1982 and April 1983, at a time when the child and his friend sometimes associated with a group of men, which included Ploof, who gave them alcohol and marijuana.

On one of those days, after the friend left with another man and headed toward the bathroom, Ploof sexually assaulted the 12-year-old.

How 'civil commitment' enables indefinite detention of sex offenders

9-26-2013 National:

Many sex offenders are held indefinitely past their sentence on a recidivism assessment that's almost impossible to challenge

Most people would think that once you have served a jail sentence, you are free to go. But that's not always the case.

When it comes to sex offenders, a number of states and the federal government have laws that allow them to keep you in jail, simply because they consider you a potential recidivist. Through a legal procedure called "civil commitment", you can be classed as a sexually violent predator based solely on the subjective opinion of a state-employed psychologist or sex expert.

Once placed under a civil commitment, you are essentially in prison indefinitely. This can quickly become a nightmare, particularly in instances such as an "agreed disposition'' – similar to a plea bargain in a criminal trial – where a person may have been pushed to waive his right to appeal (pdf) during negotiations.

No one knows for sure how many sex offenders there are in the US, but well over 747,000 people are listed on registries. Some are, indeed, pedophiles, but one third of offenders have committed their crime as children. The recidivism rate for sex offenders in general is low, with government statistics showing the rate at around 5%, versus 60% for all criminal activity.

Priest who assaulted boys to be released on supervision

6-25-2013 Illinois:

A former Catholic priest who sexually assaulted two boys in the 1980s will be released from a state mental health hospital after a judge approved of a conditional release plan.

He was committed to a secure treatment facility in 2012 after he was classified as a sexually violent person. He was recently re-evaluated and Winnebago County Circuit Court Judge Daniel Bissett approved a conditional release plan on Tuesday that would allow him to be released from the secure facility.

Details of the supervised released plan were sealed by the court under an agreement by the attorneys to keep the plan confidential, but it calls for him to be released on or before Aug. 2.

The former associate pastor at Our Lady of the Ridge parish in Chicago Ridge, Ill., was convicted of sexually assaulting two altar boys while on a church outing to Father Carr’s Place 2B in Oshkosh in 1986. He was sentenced to 20 years in prison on two second-degree sexual assault convictions in 1994.

Prosecutors filed the petition to classify him as a sexually violent person in October 2007, less than one month before his scheduled release from Stanley Correctional Institution. ..Source.. by Local News

---

'Sexually dangerous' man sent to mental facility

11-2-2013 Illinois:

A Jacksonville man has been found to be a sexually dangerous person and is being committed indefinitely for mental treatment.

Circuit Judge John Schmidt on Friday ordered James G. Howe, 34, be taken to an Illinois Department of Corrections facility for civil commitment under the Sexually Dangerous Persons Act, Scott County State’s Attorney Michael Hill said in a press release.

Earlier, the judge had found probable cause to proceed with a trial to determine whether Howe was a sexually violent person who should be committed to a treatment center until he is no longer considered a danger to the general public.

Howe had been charged with an aggravated criminal sexual assault on June 12, 2012, stemming from an incident that occurred Dec. 11, 2011, in Manchester. Hill then filed a petition to proceed under the act on Oct. 2, 2012, to have Howe evaluated by psychiatrists to determine if he was a sexually dangerous person. Special Assistant State’s Attorney Lorinda Lamken of the Illinois State’s Attorney’s Appellate Prosecutor’s Office worked with Hill throughout the proceedings.

Russell v Texas

2-21-2013 Texas:

Russell v Texas
No. 02-11-00478-CR.

JUDGMENT
This court has considered the record on appeal in this case and holds that there was no error in the trial court's judgment. It is ordered that the judgment of the trial court is affirmed.

In two points, Appellant Edward Lynn Russell appeals his conviction on eleven counts of violating a civil commitment requirement as a sexually violent predator. See Tex. Health & Safety Code Ann. § 841.085(a) (West 2010). We will affirm.

In February 2008, Russell agreed to a final judgment identifying him as a sexually violent predator as defined in health and safety code section 841.003 and ordering him to be civilly committed for outpatient treatment and supervision in accordance with chapter 841 of the health and safety code. See id. §§ 841.001-.151 (West 2010 & Supp. 2012).

In addition to addressing Russell's treatment and supervision, the order of civil commitment required him to "reside in supervised housing at a Texas residential facility under contract with the Council on Sex Offender Treatment (Council) or at another location or facility approved by the Council"; to "submit to tracking under a global positioning satellite (GPS) monitor or other monitoring system provided"; to "exactingly participate in and comply with the specific course of treatment provided by the Council"; and to "comply with all written requirements of the Council and case manager."2 The commitment order also contained the following notice: "EDWARD RUSSELL shall strictly comply with the commitment requirements of Health & Safety Code § 841.082 and this Order of Commitment, or will be charged with a felony of the third degree, which may be enhanced to a more severe punishment."

At the outset of his commitment and treatment, Russell reviewed and agreed to abide by all of the rules and requirements contained in the following documents: "Civil Commitment Requirements: Standard Requirements of the Treatment Program"; "Council on Sex Offender Treatment Supervision Requirements"; "Council on Sex Offender Treatment Additional Supervision Requirements"; and "Council on Sex Offender Treatment Global Positioning Tracking Service Requirements for MTD." In 2009 and 2010, Russell signed additional documents evidencing his agreement to abide by various requirements of his commitment.

... ... ...

Further, the case managers did not have the power to determine or define what did and did not constitute "criminal conduct," as Russell argues. That responsibility lies with the legislature. Exercising that authority, it has determined that "[a] person commits an offense if, after having been adjudicated and civilly committed as a sexually violent predator under this chapter, the person violates a civil commitment requirement imposed under Section 841.082." Id. § 841.085(a). Subsection four of section 841.082 requires the sexually violent predator's "participation in and compliance with a specific course of treatment provided by the office and compliance with all written requirements imposed by the case manager or otherwise by the office." Id. § 841.082(a)(4). Russell's order of civil commitment included this requirement.

Nor could Russell's case managers have unilaterally determined whether he "violated" the civil commitment order for failing to comply with a civil commitment requirement. Although the case managers were tasked with reporting Russell's violation of a commitment requirement, and the indictment accused Russell of violating a commitment requirement, it was the jury that had the ultimate responsibility of determining whether Russell committed a "violation" of his commitment order. See Tex. Code Crim. Proc. Ann. art. 21.01 (West 2009) (providing that the indictment accuses the person named therein of some act or omission which, by law, is declared to be an offense), art. 36.13 (West 2007) (providing that the jury is the exclusive judge of the facts); see also Tex. Health & Safety Code Ann. § 841.085(a). According to the record, including the trial court's charge to the jury at the guilt phase, that is precisely what happened in this case. Russell had both notice of the charges against him and an opportunity to be heard. See, e.g., Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 902 (1976) (addressing due process argument).

We overrule Russell's first point and affirm the trial court's judgment.

---