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.

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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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.