On the Reversals of Sexual Violent Predator Commitments

In In re Commitment of David Dodson, the 435^th District Court of Montgomery County, Texas struck the testimony of Dr. Anna Shursen, Dodson’s only witness, after she had begun to testify. In only the second reversal I am familiar with of a sexually-violent-predator trial on the merits by  the Ninth Appeals Court of Beaumont, it overturned Dodson’s commitment. It appears from the filing number of the case of the commitment of Michael Bohannon that Bohannon’s case was likely tried later than Dodson’s. The district court in that case also struck Dr. Shursen’s testimony—again she was the defense’s only witness—but it struck her this time after a pretrial hearing, before the beginning of the trial. Nine days after Beaumont had reversed Dodson, Beaumont reversed Bohannon. The State appealed, and Bohannon is currently pending before the Texas Supreme Court. The Texas Supremes heard oral argument in Bohannon November 8, 2011.

 

In re Commitment of Raymond Scott Hinkle appears to have been tried after Bohannon. The State called Hinkle's designated expert psychiatrist Dr. Charles Tennison as a hostile witness in its case-in-chief. Hinkle reserved his questions of his expert for his case-in-chief. The trial court struck Tennison as a expert after his adverse questioning by the State. Beaumont reversed and remanded the commitment.

In re Commitment of Larry White looks like it was next in line, but it's not a reversal. His appellate lawyer told Beaumont that there weren't any grounds for reversal. The trial court struck Tennison here, too.

Yesterday, In re Commitment of Lester Winkle came down. The trial court had stricken Tennison—again, the defense’s sole expert—in a pretrial hearing. The appellate court panel in the case was made up of Justices David Gaultney, Charles Kreger, and Hollis Horton. Gaultney dissented on the ground, basically, that the defense had not preserved the error in the trial court by not requesting a continuance or asking for another expert evaluation, after the trial court had stricken the expert’s testimony there.

Observations:

1. Four reversals out of 103 trials is not a lot. The newspaper story about Judge Seiler's record would make an uninformed person think that he's reversed a lot, which is not the case.
2. I'm not aware of the trial court ever striking a State's expert witness in an SVP case. I'm not aware that Beaumont has ever overruled a trial court for admitting a State's expert's testimony over objection in an SVP case, even though, I don't believe that the State's expert witnesses in SVP cases are any better than plaintiff's expert witnesses in personal injury cases who are routinely struck by trial and appellate courts (SVP case are civil cases, as personal injury cases are.).
3. Beaumont appears to me to be signalling Judge Seiler that he should be slower to strike defense witnesses in SVP cases, and it is not clear to me that Judge Seiler is listening to them.
4. State Counsel for Offenders, the agency of the Texas Criminal Justice board that is the public defender office for SVP cases, does not have as much money for expert witnesses as the prosecutors do. The State always has at least one psychiatrist expert, but because SCFO does have as much money, respondents are much less likely to have a psychiatrist in the battle of the experts.
5. Larry White needs to file an application for a writ of habeas corpus directly.
6. Trial lawyers: if your only expert witness gets struck, ask for a continuance, and ask for leave to seek another expert.
7. Notwithstanding my observation number number one above, Nancy Flake's article in the Montgomery County Courier was a fine piece of journalism. The subject was recondite and the deadline came quickly, but she appears to have gotten the facts right.