Joe Daus listened carefully, but he just didn’t get it.
He sat in a St. Louis city courtroom, one of 60 potential jurors called last month to Judge David Dowd’s division. Even after rounds of questioning from the prosecuting attorney, Daus couldn’t figure out what kind of trial this was.
The lawyer, a Missouri assistant attorney general, explained that the man at the center of the proceeding had confessed to raping and sodomizing girls. David Brown already had completed an eight-year sentence for those crimes. Yet here he was, back in front of a jury.
“I didn’t know why we were there,” said Daus, a retired energy analyst for Union Electric. “Perhaps it was a legal thing to put him in a hospital. I didn’t know you could do that.”
In Missouri and 18 other states, you can.
Daus had ended up in a jury pool for a civil commitment proceeding, a trial to determine whether Brown met the definition of a sexually violent predator. Such a finding would commit Brown indefinitely to the Missouri Sexual Offender Treatment Center in Farmington, a town 70 miles south of St. Louis.
This much was definite, although unknown to the jury: If they decided Brown was a sexually violent predator, he would join 123 other men who’d been civilly committed to the state hospital over the past decade.
Not one has completed the program and been released.
Critics of Missouri’s commitment process say it throws already despised sex offenders in front of juries and chips away at their constitutional rights. The trials rehash every past conviction, every juvenile record and every confession uttered to prison therapists.
The U.S. Supreme Court has ruled that, once offenders are committed, the confinement can’t be an extension of punishment. But residents report life at the Farmington facility is stricter than prison. Those who refuse treatment — or maintain their innocence — sit idly.
In prison, these men could count each passing day of their sentence. In civil commitment, no end is in sight.
A high hurdle
Daus never was picked for the final jury. He suspects the attorneys counted him out after they learned his son was a psychologist and that he had granddaughters. They might also have detected his simmering rage for convicted child molesters: “There’s no way this guy’s gonna walk if I’m on that jury.”
Missouri Supreme Court Judge Michael Wolff once feared that same rage would taint the civil commitment process for sex offenders, now in place in Missouri for 10 years.
“What juror wants to set free someone who may someday molest another child?” Wolff asked in a 2003 concurring opinion in In the matter of the care and treatment of Michael G. Norton.
At the time, Missouri’s sexually violent predator law had been on the books for less than five years. Both the U.S. Supreme Court and the Missouri Supreme Court had upheld civil commitment for sexual predators. Wolff wrote it was too early to determine whether Missouri’s process satisfied his constitutional concerns.
But one of his major worries, that civil commitment potentially could amount to a life sentence, seems to have been validated.
The Missouri Department of Mental Health, which runs the facility, hasn’t recommended a single resident for release. In several other states that commit sexual predators, including Minnesota and Iowa, the same is true: After years of commitment, no resident has been released.
“It does present a big problem to people who think that if you’ve committed the crime, you do the time,” said Peter Joy, a law professor and director of the Criminal Justice Clinic at Washington University. “Now if you’ve committed the crime, not only do you do your time, but you’re confined for the rest of your life.”
What’s more, few offenders prevail at civil commitment trials. When the state of Missouri tells a jury that the offender must be confined for the safety of the community, it makes for a high hurdle, Joy said.
David Brown, 44, the offender who faced trial last month in St. Louis Circuit Court, secured a surprising result. After over four hours of deliberation, the jury decided he was not a sexually violent predator. Brown walked out of the courtroom a free man.
Of the 80 civil commitment trials handled by the Public Defender’s Office since the law’s inception, Brown was the fifth client to avoid civil commitment.
‘Worst of the worst’
Juries do not hate the sex offenders who face commitment. Their attitude is quite the opposite, said Greg Canuteson, a former state assistant attorney general who tried sexually violent predator cases for three years. He left in 2004 to open his own business litigation practice in Liberty.
Jurors feel sympathy, he said.
“At the end of the case, that was universally the response we got from jury members,” said Canuteson, who was elected mayor of Liberty in April. “Not hatred, not anger, not vindictiveness. It was sympathy for their mental abnormality and the hope they would get the help they needed.”
A “mental abnormality” — that’s the condition juries or judges need to find before declaring an offender is a sexually violent predator. To meet the statutory definition, they must find first, that an offender previously pleaded guilty or was convicted of a sexually violent offense, and second, that the person suffers from a mental abnormality that makes him more likely to offend again.
The first part of the definition already is met by the time the Attorney General’s Office gets the civil commitment cases. Canuteson described the office’s caseload as “the worst of the worst,” the most persistent and dangerous sexual offenders in the state.
Past sex offenders civilly committed as sexually violent predators included men who raped multiple women, sodomized young boys and exposed themselves to children.
Only one woman has faced civil commitment in Missouri. Angela Coffel pleaded guilty in 1996 to charges of performing oral sex on two boys, ages 11 and 13. A Lincoln County judge ruled she met the criteria of a sexually violent predator. But the Missouri Supreme Court overruled that decision in 2003, deciding Coffel was not a sexual deviant and noting there was scant research about female sex offenders and their chances for reoffending.
Mental health professionals at the state Department of Corrections evaluate hundreds of soon-to-be released sex offenders each year. Of those, the department flags about 5 percent as potential sexually violent predators and passes their cases to the Missouri Attorney General’s Office.
From there, a team of psychologists from the Department of Corrections and the Department of Mental Health evaluates the cases. Next, a team of state prosecutors makes its own determination on whether the person meets the definition of a sexually violent predator.
The teams of prosecutors and psychologists can, and sometimes do, disagree about whether an offender qualifies as a sexually violent predator.
But even when lawyers at the Attorney General’s Office get a “no” determination from the team of psychologists or a “no” determination from the top psychologist at the Department of Mental Health, they can still move forward with civil commitment.
The ability to bring a case without the backing of state psychologists is a major sticking point for critics of Missouri’s sexually violent predator system.
“Most of the time when the Department of Mental Health said ‘no,’ the Attorney General’s Office has gone out and hired somebody who’s able to say ‘yes,’” said Ellen Blau, the director of the civil commitment unit for the State Public Defender’s Office.
In a case the Missouri Supreme Court decided in June, the attorney general brought a commitment case against Richard Closser, a man convicted of child molestation and sexual abuse three times since 1990. A multidisciplinary team of psychologists evaluated Closser and determined he was not a sexually violent predator.
But the attorney general pursued the case by relying on an evaluation from a Texas psychologist, Dr. David Suire. At the time, Suire was an employee of the Department of Corrections but not licensed in Missouri.
The Supreme Court ruled the psychologist’s licensure was a technical error that didn’t prejudice Closser’s case. But Judge Wolff used a concurring opinion to again question the state’s civil commitment process, asking, “With more than 1,700 psychologists licensed to practice in Missouri, why does the state need to go elsewhere to find an expert?”
Steven Reed, another former assistant attorney general who tried sexually violent predator cases, said when the office received a “no” answer from psychologists at the Department of Mental Health, the cases frequently would be sent to multiple expert witnesses in and out of the state.
“It seems to me that after a second or third expert looked at a case, it would generally be a ‘yes,’ ” said Reed, now an attorney with the Missouri Public Service Commission.
According to the Attorney General’s Office, the office spent $88,751 last year on professional fees for expert witnesses for 20 civil commitment trials. In the same fiscal year, the Public Defender’s Office spent $93,746 on experts for about 28 cases.
“Our office is careful in its judgment in large measure because the consequences of incorrectly assessing an offender’s likelihood of committing future sexual crimes are so high,” the Attorney General’s Office said in a statement.
Attempts to interview lawyers in the attorney general’s sexually violent predator unit were denied.
Nanci Gonder, a spokeswoman for the attorney general, says one offender, Eddie Thomas, is a success story, “someone who successfully completed treatment.”
Thomas served 17 years in prison for forcible rape and sodomy. In 2000, a jury committed him as sexually violent predator. The Missouri Supreme Court later reversed the jury’s verdict, citing a 2002 U.S. Supreme Court opinion that changed the definition of “mental abnormality.” The court ordered a new trial for Thomas.
A new trial didn’t happen. Department of Mental Health psychologist Dr. Richard Scott evaluated Thomas and determined he was no longer a sexually violent predator. A St. Louis city judge released Thomas from the Farmington facility.
“It wasn’t so much that he completed treatment and the department said, ‘Let’s let him go,’” Scott said. “Instead, he had an opportunity for a new trial, and his level of risk changed.”
Can a man change?
Lujuan Tucker held it together until his attorney asked about the cancer.
At the mention of his leukemia diagnosis two years ago, Tucker ducked his head behind his hand, his shoulders shaking. He looked up and wiped his eyes, continuing his testimony about how cancer changed his life.
“I have a lot to lose,” he said. “It’s like playtime’s over.”
Doctors diagnosed Tucker’s cancer at the tail end of his five-year prison sentence for first-degree statutory rape. Tucker was 17 when he sneaked into the North St. Louis County home of a 12-year-old girl and had sex with her. Prosecutors originally charged him with forcible rape, alleging he forced himself on the girl, but the charge was scaled back to statutory rape for his guilty plea.
Tucker sat in a St. Louis County courtroom in early June, trying to convince a jury that if they let him walk free, he wouldn’t commit any sex offenses.
The prison had identified Tucker as a possible sexually violent predator after considering his juvenile conviction for groping girls on the school bus when he was 14 and allegations that he solicited sex from prison inmates and tried to rape his cellmate.
Tucker denied he solicited sex in prison. He was kicked out of the prison’s Missouri Sex Offender Program twice for making inappropriate sexual comments. He said his comments helped to distance himself from the pedophiles and homosexuals in the program. It was a survival technique for prison, he said.
“I’ve actually learned to respect people,” Tucker said.
He also racked up conduct violations during his yearlong detention in St. Louis County Jail before the commitment trial. But Tucker, neatly dressed in a blue collared shirt and a red paisley tie, offered the jury an explanation.
“Of course I’ll be rebellious of the rules — because I’m supposed to be free,” he said, his voice rising in anger. “I’m facing life. This is the rest of my life.”
Monty Platz, the assistant attorney general on the case, quickly objected and asked Judge Gary Gaertner Jr. to strike Tucker’s comments from the record.
Juries are not supposed to consider how long a sexually violent predator might be committed, said Canuteson, the former assistant attorney general.
Gaertner allowed the testimony to stand, but in the end the jury in Tucker’s case decided he was a sexually violent predator.
Scott, the Department of Mental Health psychologist, testified in Tucker’s case that Tucker suffered from an antisocial personality disorder and likely would commit more crimes.
Scott testified on the other side of the case for David Brown, the offender set free by a St. Louis jury. That official testimony from the Department of Health helped Brown escape civil commitment, his public defenders said.
It also helped that his victims were 11- and 13-year-old girls, not small children or boys.
“The prejudice against those who act against small children, especially boys, is the strongest of any,” said Randy J. Schlegel, Brown’s Kansas City-based public defender.
Schlegel said his defense strategy came down to one question: “Do you believe a man can change?”
Brown took the stand and talked for more than an hour about his religious conversion in prison and his successful completion of thousands of hours of treatment in the Missouri Sex Offender Program, Schlegel said.
Schlegel is new to the public defender’s civil commitment unit. He spent most of the past 20 years as a public defender in murder cases. Schlegel said he made the jump to sexually violent predator cases a year ago because they represent the ultimate defense challenge.
“Coming to this work was like being Edmund Hillary and looking at Mount Everest before anyone gets to the top,” he said.
The drive to win
Canuteson, the Liberty attorney and former assistant attorney general, said it’s no accident the attorney general wins the majority of civil commitment trials.
During Gov. Jay Nixon’s tenure as Missouri’s attorney general, he created a small unit of assistant attorneys general who worked on nothing but civil commitments, Canuteson said. The unit now employs three full-time assistant attorneys general who share about 44 cases.
Canuteson said the team constantly discussed trial strategy, perfected voir dire questions and interviewed dozens of jurors after they handed out their verdicts.
“We got very good at our jobs,” he said. “I spent 50 hours a week trying to win those cases.”
Canuteson said he took the lead on about 15 civil commitment trials and assisted on another 25. He never lost a case.
Reed, another former assistant attorney general, said he tried close to 40 cases. He lost one.
The offender who walked free in that 2001 case, Shane A. Vorhees, was picked up a few years later for another sex crime, Reed said. Vorhees is awaiting a second trial in Crawford County Circuit Court on charges of sexually assaulting his stepdaughter when she was 13.
The original victims of the sex offenders constantly fear the day their attackers walk free, said Palle M. Rilinger, president and CEO of the Kansas City-based Metropolitan Organization to Counter Sexual Assault.
“That is always there with you, always nagging, always that question of what if that person does come back,” she said.
“If they are leaving Missouri prisons and these are red-flag cases, there is not an iota of doubt in my mind that these are very, very high-risk offenders, and society and the victims need all the protection they can get,” Rilinger said.
After every trial, the assistant attorneys general in the unit gathered to analyze the proceeding and figure how they could do better. It was tough work. Because civil commitment trials are held in the court where the sex offender was last convicted, the attorneys traveled to circuits around the state. They returned to those circuits for every motion hearing and every deposition of an expert or a past victim, Reed said.
“It’s probably not the type of subject you’d want to do for 20 years, especially when you have kids,” Canuteson said. He was raising two daughters while trying the cases.
Despite the difficulties, Canuteson said he enjoyed the job.
“I slept very well at night knowing I protected the public from some of these folks,” he said.
“We had a saying in the SVP unit: ‘It’s a mistake to believe that releasing any of these guys into the public helps either the public or the individual.’”
An unbreakable system
Dr. Delaney Dean is a Kansas City forensic psychologist who spent almost two years in the Missouri Attorney General’s Office as an assistant attorney general in the civil litigation unit. She spent the next decade prosecuting murderers for the Jackson County Prosecutor’s Office.
As a psychologist, Dean reviewed and testified in dozens of sexually violent predator cases as an expert witness for the offender facing commitment.
Dean said the attorneys in the civil commitment unit are driven by intense internal pressure to win cases and commit sex offenders to the Farmington facility. She experienced that pressure firsthand.
Every attorney knows the unspoken directive, she said. “Go get them. Don’t back down. You’re on a holy crusade.”
“You’re not respected unless you’re a hard-ass, and you don’t last long unless people respect you,” Dean said. “You’re battling against sexually violent predators. What could be a more wonderful thing to do?”
That same attitude will likely keep Missouri’s sexually violent predator statute on the books, despite dozens of appeals challenging nearly every word of the statute.
“Who’s going to stand up and say sex offenders need to be freed?” said Eric Selig, a St. Louis criminal defense attorney with Rosenblum, Schwartz, Rogers & Glass.
It’s a politically unpopular stance that no lawmaker wants to take, Dean said.
“They’ve essentially cut their own throats by designing and creating a program that uses language that makes it practically impossible for them to back away from the monster they’ve created,” she said.
The lawmakers who created the process saw the measure not as a monster but as way to keep monsters — the most dangerous sexual predators in the state — off the streets and in treatment.
Craig Hosmer isn’t surprised that no resident has been set free from the facility in Farmington.
“To me, that demonstrates the law is working,” he said.
The Democrat from Springfield was an eight-year veteran of the Missouri House when he sponsored the bill that would enable the state to civilly commit sexually violent predators. Hosmer wrote the bill after he heard reports of a soon-to-be-released sex offender who boasted he had every intention of attacking again.
“I don’t think some of these people will ever be cured,” said Hosmer, now a civil litigator with Hosmer King & Royce in Springfield. “I don’t think you can cure them. They’re wired wrong.”
Hosmer, the current chairman of the Missouri Democratic Party, says the process is fair for sex offenders. The risk assessments used in the trials aren’t speculation, he said. They’re solid predictions about future behavior. The offenders who face civil commitment already proved they have the ability to assault children and adults, he pointed out.
“When you deal with people day in and day out, you can make a pretty good prediction,” Hosmer said. “They know it’s going to happen. To me, it’s not very good public safety if you just put those people back on the street.”
A low-slung maroon brick building trimmed with a 12-foot fence topped with concertina wire stands just off the freeway among the rolling hills of Farmington. This is where every sexually violent predator in Missouri ends up.
The 146 beds at the maximum security facility are divided among two buildings, called Hoctor Building and Blair Building. Residents share rooms with one to three other men. The average resident at the Missouri Sex Offender Treatment Center has lived there for more than four years.
Residents can receive cognitive-behavioral therapy designed to help them “identify the cycle of offending” and learn ways to prevent future offending, according to the Department of Mental Health. But not every resident chooses treatment.
Of the 123 residents, 27 men refuse treatment. The options for them are limited. The facility offers residents board games, a pool table, a library, 14 computers and a basketball court.
Many residents discover the atmosphere at the facility is much more regimented than life in prison, said Schlegel, the Kansas City public defender.
“It’s a prison,” he said. “It’s worse than prison. These guys are watched and monitored every 15 minutes. It’s a very restrictive way of life.”
Jason Sapp spent 10 years in prison before the Department of Corrections flagged him as a potential sexual predator and sent him to Farmington. Sapp, 32, had served the 10 years for a 1996 conviction in Jackson County on two counts of statutory sodomy with a 7-year-old boy. At his first civil commitment trial last year, five jurors refused to label him a sexually violent predator, resulting in a hung jury.
But last November, a second jury committed him. Sapp refuses to consent to treatment because he completed the extensive Missouri Sex Offender Program in prison, he said in a telephone interview from Farmington. He worries that what he might say to the therapists could be used against him later.
“I didn’t get the chance to go on parole and prove myself using the tools I learned in MOSOP,” he said.
Sapp said he’s depressed and scared that no one has been released from the center. An 84-year-old man who had lived there for years died recently, and the death shook Sapp.
“I’m going to die here,” he said.
‘Take another look’
Public defender Schlegel praised the quality of the treatment and said some clients who chose to participate made astounding progress in understanding their offenses.
“But the issue is, will they ever be released?” he asked.
To Dean, the psychologist and former attorney, the sexually violent predator statute itself stands in the way of any possible releases.
The law allows for a conditional release when a resident’s mental abnormality changes or is eliminated, she said.
“That’s not going to happen,” Dean said. “They’re being subjected to what is essentially a sham treatment … that lasts for years, ostensibly to change someone’s psychiatric diagnosis.”
In his six-page critique of Missouri’s sexually violent predator law in Norton, Judge Wolff saved the last sentence to make a sort of promise.
“If this statute is used simply to impose life sentences of confinement based upon the labeling of the inmates’ thoughts, this court will have a constitutional duty to take another look,” Wolff wrote.
But the promise may ring hollow for Sapp and the dozens of men in Farmington who spent years in prison and look to spend years more in civil commitment.
“Is this law really serving its purpose? We might not know that for 20 years,” said Selig, the St. Louis criminal defense attorney.
“It’s sad if people lost their liberty for 20 years to test out if something was going to work or not.”
Civil commitment across America
Twenty jurisdictions have the power to civilly commit sex offenders: Arizona, California, Florida, Illinois, Iowa, Kansas, Massachusetts, Minnesota, Missouri, North Dakota, New Hampshire, New Jersey, New York, Pennsylvania, South Carolina, Texas, Virginia, Washington, Wisconsin and the federal government.
Here is a glimpse of civil commitment in some states:
As of April, 79 sexual predators are civilly committed. No one has been recommended for release. But a few have been set free after the Iowa Supreme Court determined they were not properly detained in the first place.
More than 500 sex offenders are either committed as sexually violent predators or detained awaiting trial. Once committed, no one has been released. One resident received a provisional discharge from the facility, but the state’s Department of Human Services revoked it.
There are 217 sex offenders committed and 144 others awaiting trial. The state’s Department of Human Services has released 31 residents into the community since the civil commitment process began in 1998.
Texas maintains a unique outpatient program for civilly committed sexual predators. Offenders return to the community but participate in mandatory supervision and treatment.
Sources: Iowa Department of Human Services, Minnesota Department of Human Services, Illinois Department of Human Services, Texas Department of State Health Services