Sexual Predator Law-the Nightmare in the Halls of Justice

• Publication year: 1992
• Citation: Vol. 15 No. 03

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 15, No. 3SPRING 1992

Sexual Predator Law-The Nightmare in the Halls of Justice

Robert C. Boruchowitz(fn*)

K. lived in a country with a legal constitution, there was universal peace, all the laws were in force; who dared seize him in his own dwelling?(fn1)

I. The Story

It is 1992. You Eire the defense attorney representing a client, B., who has been arrested by the state as a potential "sexually violent predator."(fn2) For the four months prior to his arrest, B. lived and worked in the community, reporting to the Department of Corrections as required after serving his full prison sentence for two 1987 second degree rape convictions.(fn3) He was employed and had just obtained a new job to go fishing in Alaska when he was arrested.(fn4) The state does not accuse B. of committing a new offense. Yet the state does seek to lock him up indefinitely in a "treatment facility" located inside a prison.

B. is taken to this facility to await trial. Inside the facility, he has fewer rights than he did in prison as a convicted criminal. On the outside, the media swarm like locusts, grasping the prosecutors' statements about the newly accused "sexual predator."(fn5)

As you begin work on B.'s case, you first discover that when the state obtained the arrest order for your client, in an ex parte proceeding, it failed to tell the judge that the only psychologist who actually interviewed B. concluded that B. did not meet the statutory criteria for a "sexually violent predator."(fn6) The state also failed to tell the judge that the two psychologists it did rely on disagreed on an element of the diagnosis.(fn7) But when you attempt to challenge the probable cause determination in court, the judge refuses your challenge because you have not made a sufficient showing. You also attempt to have B. considered for pretrial release, but the judge finds that no bail or release hearing is possible and that your client may not attend any pretrial hearings.(fn8)

At some of these pretrial hearings, the state argues that the trial will be a civil proceeding. The state seeks to classify the trial as civil for several reasons; one reason is that the state argues that it can commit the accused with a nonunanimous jury if the trial is classified as civil.(fn9) The judge rules that even though B. faces an indeterminate term in the prison treatment facility, the proceeding is civil; therefore, a unanimous jury is not required. Further, the jury may not be told that the commitment will be indefinite or that the facility is in a prison; nor may the jury be told that the burden will be on B. to prove that he should be released, if he is committed.(fn10) At other hearings, the prosecutor argues that the trial will be "akin to" a criminal case to prevent the jury from hearing about the consequences of their verdict.(fn11)

Further, in another unreported ex parte proceeding, the judge rules that B. has no Fifth Amendment protections relating to the trial and may be required to talk to the state's "expert" witness about his most secret thoughts and feelings. The state lists a psychologist as its key witness, but it does not produce the psychologist's report until a month after the state received the report. When challenged, the prosecution says it had no obligation to produce the report because "this is a civil case." The state also resists your efforts to depose its psychologist. You advise B. not to talk to the state's witnesses.

At the trial, however, the judge allows into evidence B.'s refusal to talk to the state's psychologist; the judge also allows the state to argue that B.'s refusal to talk supports the state's allegation of his dangerousness. In a separate evidentiary issue, the judge allows into evidence the accused's eleven-year-old juvenile assault offense record, despite the fact that it was not a conviction and that the evidence would not be allowable under relevant evidence rules and case law.(fn12) The judge even allows into evidence B.'s twenty-year-old misdemeanor "threat to bomb" conviction, stemming from a college campus meeting in 1972, to show B.'s "sexual dangerousness."(fn13)

The state calls as witnesses two police officers who took a statement from the client in 1962 and fails to disclose that one of the officers has a criminal trespass conviction and was demoted from chief of police in a controversy over misfeasance in the vice squad. The other officer was removed from the vice squad. None of this was disclosed to the defense, and in fact one of the officers, questioned before the trial by the defense, said he had never been charged or convicted of a crime and had had no disciplinary problems while a police officer. When you discover this history from a reporter, the judge does not permit you to recall the witnesses to inquire about it.(fn14)

When you seek to call B. in his own defense, the judge rules that he may not testify until after he has been deposed by the state. The judge allows the state's psychologist to witness the testimony and to testify about it. The state's psychologist is allowed to testify that B. meets the statutory definition of "sexual predator,"(fn15) thereby performing the jury's job. When you ask for time and money to fly your own expert back to testify about her interview with the client, the judge denies the motion.

At the appropriate time, you submit proposed jury instructions on the presumption of innocence under the statutorily mandated(fn16) beyond a reasonable doubt standard. The judge refuses your instructions, however, and instead admits into evidence a jury instruction from B.'s 1963 rape trial: "The rule of law ... is not designed to aid one who is in fact guilty of crime to escape, but it is a humane provision of law intended, so far as human agencies can, to prevent any innocent person being unjustly punished."(fn17)

Under this instruction, the jury in effect is told that the reasonable doubt protection is a humane provision that is not applied to one guilty of crime. B.'s prior convictions already have been admitted, so the reasonable doubt standard does not seem to apply to B. under this instruction. Instead, the presumption of innocence slides toward a presumption of guilt. The instruction makes the presumption of innocence seem like a charitable provision applied only once the jury has found the person to be innocent, rather than the bedrock of the law. The Ninth Circuit Court of Appeals held this instruction to be prejudicial error in 1956.(fn18)

Impossible? Can't happen in America? Combinations of these unimaginable events happened in sexual predator cases in Washington in 1991 and 1992. These trials might as easily be occurring in the fictional world of Franz Kafka, where innocent people are arrested, tried, and executed without ever knowing why, without their advocates ever knowing the information against them. Was help at hand? . . . Where was the Judge whom he had never seen? Where was the High Court, to which he had never penetrated?(fn19)

II. The Introduction

The hysteria that produced the statute authorizing commitment of persons found to be sexually violent predators has spawned legal procedures used against the accused that are unlike any others in Washington's jurisprudence. The accused faces a nightmarish procedure that begins with the highly publicized and emotionally charged labeling of his alleged status, and then proceeds to exclude him from hearings, handicaps his lawyer, and allows into evidence against him irrelevant and prejudicial material that would not be permitted in other cases. The accused has fewer protections than a defendant in a shoplifting case or a parent in a dependency case. He has fewer rights than a mentally ill person being detained in a civil commitment case because the state labels him not mentally ill, but "mentally abnormal." Further, the prosecutor's arbitrary application of the labels "civil" or "akin to criminal" creates an artificial, hybrid proceeding in which labels are used to deny fundamental rights.

The legislatively created definition of a "sexually violent predator," relying as it does on the nonscientific term "mental abnormality," is unique. It is unsupported by medical research or testimony. The term "mental abnormality" is not recognized by mental health professionals. Using this legislatively created status of mental abnormality to detain preventively people who have completed their original court imposed criminal sentences has led to a distorted judicial proceeding in which the most basic individual protections have been sacrificed.

Part of this distortion has been the result of reliance on contrived psychological speculation as a purported scientific basis for the state's commitment action. It is contrived in part because it adjusts to a nonscientific concept of mental abnormality. One might expect that when a new concept like mental abnormality is developed and applied to a person on trial for his freedom, the courts would ensure that expert testimony interpreting that concept would meet the same standard of evidence that any new and unproven concept must. Yet the trial courts have been unwilling to subject this novel approach to the same basic evidentiary test applied to fingerprints, radar guns, breath machines, and DNA testing.

The carte blanche provided to prosecutors to proceed as they choose under the...