Imprisoning Sex Offenders Past Their Terms

Great Debates
41

Using your theory, any time a law is misused by a prosecutor it is the law that is at fault, and it must be changed. And what kinds of changes would you make? If your real problem is with the inability of somebody who has been committed to get released, I would suggest you advocate that the State must meet it’s burden of proving somebody is a sexually violent person every year. That way, the burden remains on the State to establish the future dangerousness of the offender.

One quote from one newspaper regarding one case where something “might” happen at a preliminary part of the case, and you’re extrapolating to widespread collusion? And, in Illinois at least, the fact one psychiatrist did not recommend commitment would be discoverable evidence and made available to the sexual offender. In almost every case, the defendant has an expert who says he should not be committed, and that evidence is presented, along with the other clinical psychologists who recommend commitment, to the judge or jury for decision.

If you’re that ready to impute evil motives to the fact a Doctor did not completely remember on the stand every part of a volumonous case report, I think I have a better understanding of your initial starting point. Unless you are arguing, without any evidence, that Dr. Kern completely fabricated the part of the rape involving a flashlight, it appears he was going from what one of the charges (which require probably cause) was. The mere fact that there was no physical evidence that she was anally raped by a flashlight doesn’t mean it didn’t happen, and the fact he admitted to raping the girl, despite the lack of this physical evidence, makes your allegations even more tenuous. In addition, the Judge in the case HEARD all this evidence, and had a chance to consider it in making her deliberations.

And you’re at it again. Taking a possible mistaken reading by a witness, on a tangential issue, and calling it prosecutorial misconduct. If your allegations weren’t so serious, they’d be laughable. And, once again, the judge heard ALL the evidence, not just a couple sentences of little or no relevance. The newspaper report, as they are wont to do, takes one mistake made, in one case, on one issue, and tries to blow it out of proportion. And you grab onto it hook, line and sinker, and proclaim the entire system as faulty and unfair. Please excuse me if I don’t find that too convincing.

42

OK, for only the fifth time in this thread, I will state that THERE IS A TRIAL. The trials and the rights the sexual offender has, have ALREADY BEEN POSTED. I’ve also posted, that this is not a return to prison, the offender is sent to a separate treatment facility where he can get inpatient treatment.

There is a huge chasm between insanity and having a mental disorder that effects your volitional capacity.

Care to elaborate?

43

Reread my response: “If the law is so broad that it can easily be manipulated, it needs to be changed.”

I purposely specified that the law must be “broad” and “easily manipulated” in order to be changed. I did not say that any time it is misused is cause for it to be changed. The changes would entail specifying the conditions and ways in which it can be used so that this kind of abuse does not occur.

I would think that he would be familiar enough with the case not to make such a gross error. Of course the lack of evidence doesn’t mean that it didn’t happen, but a person has to be convicted on evidence supporting the prosecution, not a lack of refuting evidence. The medical examiner found no vaginal lacerations, leading to the charge being dropped. Our legal system works on evidence. If there is no evidence, you can’t convict a person. Why didn’t Kern read the report? Why did he say something that was so far removed from the facts of the case without having first consulted the relevant information? It would be one thing if he accidentally added a charge of anal rape that had never happened. But it’s hard to see how he could have given such a statement out of confusion. One would think that anal rape with a flashlight would be unusual enough for him to remember it if it was actually documented (I’m not saying that rape with objects is so unusual, but it is more unusual than ordinary rape) but he should have remembered such basic elements of the case anyway.

44

Once again, what kind of concrete changes would you make to the statute? That the State’s witnesses are not allowed to make any mistakes? That prosecutor’s can only ask the opinion of one psychiatrist and be bound by their determination. That every report regarding the sexual offender be typed and spell-checked so there are no possible mistakes in reading? Are these the problems you have with the statute?

Maybe I’m confused, but I thought the newspaper account was dealing with the hearing regarding the sexual offender’s risk to reoffend, and not the trial on the charge on which he was convicted. At these hearings to determine whether a convicted sexual offender is subject to commitment, part of the evidence that is presented is the factual circumstances surrounding his prior offenses, usually because they aid the expert in their determinations. It is not a retrial or a “conviction”, and it is not a complete recounting of the offense.

I would be willing to bet you are wrong, as to the lack of lacerations being the reason the charge was dropped. Much more likely, the charge was dropped as a result of the plea bargain, a very common occurence. Remember, he pleaded guilty to raping her, even though there was no vaginal or anal tearing. As I said before, unless you think the Dr. pulled this flashlight occurence out of thin air, there was a record, most likely in the victim’s report of the crime, that a flashlight was used.

Once again, HE PLED GUILTY. Secondly, this wasn’t a trial to determine his guilt or innocence of that charge, but rather to determine whether a twice convicted sexual offender should be committed.

You seem to be alleging, without any evidence, that he made the whole flashlight issue up. However, the fact that there was a charge involving the flashlight that was dropped clearly indicates that there was at the very least, probable cause to believe it occurred. The fact that Dr. Kern did not remember on the stand that a doctor reported that there were no physical lacerations is not in any way, an indication that he was lying. And remember, cause this is important: THE JUDGE HEARD THIS EVIDENCE. The sexual offender’s attorney got the evidence that there were no lacerations before the Judge, and the Judge still ruled that Anderson was a sexual predator in need of commitment. I know it makes for a compelling story for a newspaper that, out of hundreds of pages of documents, a witness on the stand forgot one page, but it is making a mountain out of a molehill.

45

Hamlet, asking of sleeping, not me:

Well, sleeping may well have a different take on it, but how about the prosecution has to present concrete evidence? A psychiatrist may testify as a qualified expert but should have to limit testimony to interpretation of specific evidence, which must in and of itself be compelling to the jury – but not blanket statements about whether or not the defendant is likely to commit crimes of sexual violence if released, because that’s what the trial itself exists to determine.

If you have a “trial” in which you swear in qualified experts who testify concerning the matter that the entire trial is about, and the jury is instructed to accept the witness as an expert on the subject, that’s not much of a trial. It would be like having a murder trial and swearing in a forensics and criminal justice expert who testified as follows:

46

An expert cannot quite testify as you describe, because the expert generally does not tesify concerning a matter of fact that is the ultimate province of the jury to determine.

However, an expert can testify that the fingerprints on the murder weapon were those of the accused, and that no other fingerprints were found. The inference to be drawn, obviously, is that the accused is the murderer. The expert cannot tesify that the accused is a rapist, but he can testify that the seminal fluid recovered from the victim matches DNA in the accused, and that the probability of a random person matching that DNA profile is 10 billion to 1. The jury draws the inference that the accused is the rapist.

The distinction can get blurry. In a prosecution for child sexual assault, an examining psychiatrist cannot testify that the child was abused by the defendant: that would invade the province of the jury. He may testify, however, that the child exhibits signs of behavior that are consistent with victims of sexual abuse.

  • Rick
47

Fair enough, and already done. An expert is generally not allowed to offer an opinion as to the final determination to be made by the jury. Of course, the expert can be asked if based on his review of all the evidence: “within a reasonable degree of scientific certainity, he is of the opinion of whether or not the sexual offender has a substantial probability to reoffend.” The jury is, of course, instructed that this is opinion evidence, and the determination must be made by them.

Additionally, the expert may not just make a blanket statement, he must provide concrete reasons for his determination. In most of these SVP cases, that involves covering the multitude of evidence I spoke of in my earlier post, including his histories and actuarials. Usually this kind of expert’s testimony takes about two days, if not more. He is, of course, subject to cross examination by the attorney for the sexual offender. The jury will likely, although not always, here from an expert for the offender. But, as I said, neither expert is allowed to offer an opinion as to the final determination to be made by the jury.

And I see Bricker made these points for me already. Damn him!!!

48

:slight_smile: don’t you hate it when that happens?

What I am familiar with is plain-vanilla psychiatric commitment and retention hearings. The ones I’ve observed take place in front of a judge, not a jury, and the expert (psychiatrist) testifies that the patient is a danger to self or other people and is in need of being held for treatment, which is of course what the trial is supposed to determine.

Do you have a specific link (including one that I, in my boneheadedness, missed despite you having already posted it, perhaps?) backing up the claim that in commitment hearings for convicted sex offenders who have served their time, they do get jury trials and they do get all these due process considerations that people facing normal civil psych commitment do not have?

49

The Statutes vary from state to state, but here is the one from Illinois. I suppose I could track down the other 15 (I think) state statutes that have them, but I’ll leave that to that little show-off Bricker. He’s good at that.

50

It’s interesting to me that when discussions like these come up, it’s easy for me to tell when it’s a lawyer talking, and, further, when it’s a lawyer with criminal trial experience. Just as with the Batson discussion earlier, there are some things that any lawyer can look up, but one with criminal trial experience has ingrained (or perhaps “deeply scarred”) into him.

  • Rick