The Parole Board Giveth, the Montgomery County Jury Taketh Away

The left hand of the State of Texas doesn't know what the right hand is doing when it comes to paroling sex offenders. Norman Lewis Evers was convicted of six counts of burglary with intent to commit rape. There was evidence each of these burglaries had culminated in a rape, and that, additionally, he had  raped another woman in California during the time of the Texas offenses. Evers came up for parole and obtained it under a super-intensive supervision program. The Sexually Violent Predator Multidisciplinary Committee, a screening expert, and the Special Prosecution Unit- Civil Division caused a petition to be brought against him that he was a sexually violent predator and should be civilly committed. Now in order to get parole, the parole panel must believe that the offender "is able and willing to fulfill the obligations of a law-abiding citizen." The trial jury committed him in spite of the panel's belief. He challenged the trial court's jurisdiction and the sufficiency of the evidence to support the jury's verdict. Justice David Gaultney wrote for a panel of the Ninth Court of Appeals sitting in Beaumont including Chief Justice Steve McKeithen and Justice Charles Kreger affirming the trial court judgment. Evers's goose was basically cooked by a holding in the prior case  In re Commitment of Nicholas (Tex. App.--Beaumont, pet. denied, 2010) that the sexually violent predator statute covered parolees as well as those about to be released from prison. Still, if Evers can jump through all the hoops to get a habeas corpus petition before a federal judge in this matter, that the jury found that he was, beyond a reasonable doubt, likely to re-offend despite a contrary belief of the parole panel, he might well prevail.
In re Commitment of Norman Lewis Evers, No. 09-11-00430-CV (Tex. App.--Beaumont, Dec. 13, 2012)

Texas Supreme Court Says Anna Shursen Can Testify in SVP Case

Five months ago, I discussed the reversals of Texas sexually violent predator civil commitment trials by the court of appeals for such cases, this blog's court, the Ninth in Beaumont. At that time, one of those cases-- In re Commitment of Michael Bohannon-- had been taken up on petition for review to the Texas Supreme Court by the Special (Prison) Prosecution Unit for the State, accepted by that court, argued, but then not yet decided. The decision came down yesterday.
Justice Nathan Hecht wrote for a unanimous court, holding that an expert in a sexually violent predator civil commitment case need not be a physician or a psychologist, that Anna Shursen was struck merely because she was neither of those, that she was otherwise an expert, and that the Supremes respected Beaumont's finding that excluding her was harmful.
Yesterday's opinion assumed without deciding that a physician's testimony was not needed to civilly commit a sexually violent predator. The statute says it's not necessary. The Texas constitution requires physician testimony to commit a person. The point won't need to be decided unless the State was foolish enough to try to commit someone without physician testimony, which I have no reason to think they've ever done. The agency that represents respondents (defendants) in these cases doesn't have as much budget to pay for expert witnesses as the State does. Because of that, it is very rare that a respondent can get a physician to be an expert witness. To complain about that would have to be in an application for writ of habeas corpus, which the Antiterrorism and Effective Death Penalty makes difficult and for which one does not generally get a free lawyer. They'd have to complain about their own trial counsel.
Congratulations to Kenneth Nash and Andrea Medley, my old colleagues at the prison public defender office State Counsel for Offenders.

Beaumont Passes Along to Seiler what SCOTX Told Them

Under Texas law, a person convicted of a sex crime or sexually motivated murder, who has a behavioral abnormality: a paraphilia, a sexual weirdness, can be civilly committed and held interminably. The State was unsuccessful in committing the first person it tried to commit. After that, though, every respondent was either committed or there was a hung jury, and on retrial the person was committed. In the first few years, I knew of one case that had been reversed and remanded. That was the only one , except for one case that got sent to the Corpus Christi court of appeals instead of Beaumont's and was judged by a visiting justice instead of a regular justice (and which was reversed in favor of the trial court by the Texas Supremes). Other than that,
the appeals court always affirmed.
Last March I wrote about a string of reversals of the SVP trial court in Conroe by the Beaumont COA. There was another reversal in May that I wrote of here.
Now there's another--In re Commitment of James Anthony Miller, No. 09-11-00450-CV (Tex. App.--Beaumont (July 26, 2012, no pet. h.)   The trial judge appears to have been Michael Seiler. After the State and the defense had each taken a turn at questioning the panel from which the jury would be selected, the defense wanted to ask either: (1) “Can you set aside any bias if you find there’s an offense against a child?  Can you listen to all the evidence and follow the law?” or (2) “Is anyone unable to hear topics about children?  Can you listen to the evidence and follow the law?”  The trial court  refused Miller’s request to pose such questions to the jury panel.
Chief Justice McKeithen joined by Justice Charles Kreger held that a trial court’s refusal to allow proper questions during voir dire denies a party’s constitutional right to trial by a fair and impartial jury and is harmful, i.e., probably caused the rendition of an improper judgment, following In re Commitment of Hill, 334 S.W.3d 226 (Tex. 2011) (per curiam) and Babcock v. Nw. Mem’l Hosp., 767 S.W.2d 705 (Tex. 1989). The third panelist, Justice David Gaultney, argued in dissent that the trial judge was in his sound discretion not to allow additional questions after voir dire had been closed once, and that there was no indication that the trial judge's failure to allow the question or questions caused any biased veniremember to get on the jury. That is, the trial judge's action was either not error or was harmless error.

Another Reversal for SVP Cases; Gaultney Dissents

The case is In re Commitment of Mohammad Reza Kalati. This is the fifth in the recent series of reversals of  the sexually violent predator trial court, although this time the trial judge being reversed is not Michael Seiler, but Putnam Kaye Reiter. The appellate court for SVP matters is the Ninth Supreme Judicial District Court of Beaumont.  As has been written in this blog before and in the Montgomery County Courier, Beaumont's Ninth Court has been holding that the SVP trial judges have been overly restrictive of the defense in this kind of cases.
There's another surprise here, though, beside the difference in trial judges. Justice David Gaultney, a scholarly and independent-minded jurist, usually a little more open to defense arguments than his fellows on the Beaumont Court, dissented.
In jury selection, the defense asked the venire panel, the group of people from which the jury would be selected, if they could be fair to a person an expert had diagnosed as a pedophile. The prosecution objected that the question was a commitment question, a question seeking to bind one or more jurors to a particular position before the juror had been given the evidence, and also that it made reference to a specific diagnosis. The trial judge sustained the objection. Justice Hollis Horton, writing for himself and Chief Justice Steve McKeithen, overruled the objection and granted Kalati a new trial. They felt bound by In re Commitment of Hill, 334 S.W.3d 226 (Tex. 2011).
Justice Gaultney dissented. He said that the question of the effect of a specific diagnosis might be objectionable, an inquiry into the weight that a panelist would give a specific piece of evidence, and the trial judge was never offered a clearly unobjectionable question.
Some observations: I don't hear any request for or implication of commitment in the defense's question. It's not weird for the petitioner to complain that the error as to specific diagnosis is not properly preserved, but I don't see that unclarity there undoes the improper sustaining of the commitment question.
I like how the Beaumont Court just attached the dissent to the end of the majority opinion, less work for the clerk and more convenient for the reader.
I made a mistake earlier today. I thought that this was a fifth reversal for Judge Seiler, but my friend and old colleague Brian Lacour, second chair for the defense at trial, corrected me.

A Phone Call from a Southern Gentleman

Ninth Court of Appeals Justice Hollis Horton called today. In our wide-ranging conversation, he was curious about some of the background of the sexually-violent-predator civil-commitment system that he didn't have interaction with in his part of the process. He was surprised by the relative inexperience of lawyers working on both sides of the SVP docket. He said that he had not seen the 48 Hours piece on the best known SVP trial, that of Wesley Miller (I was Miller's trial counsel.). Justice Horton said that he had visited this blog, looking at the post about Judge Seiler's reversals (It's the second one below here.), and he and I agreed that we valued the work of Nancy Flake, Managing Editor of the Montgomery County Courier. His undergraduate degree, he told me, was in economics. He said he had to get off the phone because of the Beaumont courthouse shooting.

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.

Minnesota and Texas Have "Roach Motel" Sexually Violent Predator Programs

In 1981, the Black Flag Roach Motel was introduced. "Roaches check in, but they don't check out."
The Duluth News Tribune reports that of all the states that have civil commitment of sexually violent predators, Minnesota is the only one that has never released anyone from civil commitment. This is not quite true; Texas has never released anybody either. The story seems to envision committed sexually violent predators "mov[ing] . . . through the community." Except to go to doctor's and dentist's appointments, it's extremely difficult for them to do anything but hang out at the halfway house. The story says that Washington state's program- generally, the model program- was held to be unconstitutional ten years ago. What was needed to make it constitutional was real treatment structured so that SVPs could earn their freedom. Texas doesn't meet that standard.