WA Legal Roundup - Washington Supreme Court
Chimo (that's short for child molester...though I probably wouldn't use it in a brief...probably) goes into the funny farm due to a little problem with raping children. While there, he decides that its a good pick up spot, and gets into little trysts with, evidently, quite a few people (don't look at me, the court used the term "numerous"). He tries to get out of Western, and the state maneuvers to have him committed as an SVP.
Those familiar know that the SVP requires a recent overt act. The trial court found his little trysts were indeed recent
pervert overt acts and had him committed. The trial court also appointed Anderson an expert, and denied Anderson's request to be appointed a new expert.
As to the recent overt acts, the court had no problem with overt. He was engaging in sexual acts with vulnerable patients. Just a tad predatory. As to the recentness, two months is recent (shocker!):
Anderson's overt acts were recent. This court has held in the SVP context that overt acts occurring up to five years before the petition's filing may be "recent." In Marshall, the defendant committed the act in November 1995, and the State brought the petition in November 2000. Marshall, 156 Wn.2d at 153. We held it to be a recent overt act. Id. at 159. In In re Detention of Henrickson, 140 Wn.2d 686, 2 P.3d 473 (2000), one of the defendants committed his act in 1996, and the State filed the petition in 1999. Id. at 691. We held that this act was sufficiently recent. Id. at 696. Here, only two months before the State filed this petition, Anderson was reported having sex with a vulnerable copatient, the most recent reported act in a long string of such acts.
The more interesting issue involves the failure to appoint a new expert. Anderson asked for the new expert two years before trial, and renewed his request to use that expert a week before trial, and offering to continue the case to allow the State time to interview the expert. The trial court denied the request. The supreme court, agreeing with the court of appeals, granted remand to retry with the expert:
A sufficient showing was made that Dr. Wollert would provide distinctly meaningful expert testimony in Anderson's defense. Dr. Wollert would have challenged Dr. Phenix's conclusion that Anderson is likely to commit predatory acts of sexual violence if not confined in a secure facility. Anderson additionally cites Dr. Wollert's availability, the early notice that he was a possible expert witness, and difficulty in engaging another doctor as good cause for the appointment.
No significant countervailing interests undermined Anderson's request. As the Court of Appeals observed, any additional delay would not be in Anderson's best interest because he was confined. The State would not have been unduly prejudiced as a result of any delay. Dr. Wollert offered to be available to the State for discovery at any time. Anderson was also willing to waive his trial date to accommodate the State's need to interview Dr. Wollert prior to his testimony. Under these circumstances, we agree with the Court of Appeals that there was good cause to appoint Dr. Wollert as an additional expert witness at public expense under former WAC 388-885-010(3)(c).
We recognize that among the exceptional protections provided by the legislature for SVP trials,8 multiple experts at state expense are not included. Thus, our holding should not be read as an open-ended entitlement for indigent SVP respondents to an unlimited number of experts at state expense. Under the specific circumstances of this case, however, the trial court acted on unreasonable grounds in denying the motion and, therefore, abused its discretion.
Two dissents were filed by Justice Fairhurst (who garned two additional votes) and Justice Sanders (on his own). The dissent (Fairhurst) would find that the acts did not meet the definition of recent overt acts because they were not related to his proclivities towards inappropriate behavior towards women and proclivity for buggering little boys. The concern is valid, that reading any overt acts may lead to a constitutional challenge of the definition of recent overt acts as not satisfying due process:
"To satisfy due process the legislature's addition to the recent overt act requirement demands a causal relationship between the person's diagnosed mental or personality disorder and his conduct." Dissent at 14. Justice Sanders presented this same theory in his concurrence in In re Detention of Lewis, 163 Wn.2d 188, 177 P.3d 708 (2008). . . .
Although Anderson's partners are characterized as "vulnerable," CP at 187, neither the State nor Anderson's partners claimed that any actual harm of a sexually violent nature resulted from these relationships. . . .
The relationships were with men and do not have any reasonable relation to Anderson's history of inappropriate behavior toward women. Because Anderson's consensual relationships with adults did not
cause sexually violent harm and do not create a reasonable apprehension of sexually violent harm in light of his history and mental condition, the Court of Appeals' finding that he is a sexually violent predator should be reversed.