Sex Offender Civil Commitment Defense Attorneys Need to Be Sent Back to School

The below quotes came from “The Legal Pad” Volume 3, Issue 10, (October 10, 2019) published by Cyrus P. Gladden, II from the gulag in Mooselake, Minnesota.  All quotes came from the Cucolo & Perlin 2017 pdf link below.

 

Heather Ellis Cucolo  & Michael L. Perlin, “Promoting Dignity and Preventing Shame and Humiliation by Improving the Quality and Education of Attorneys in Sexually Violent Predator (SVP) Civil Commitment Cases,University of Florida Journal of Law and Public Policy, Vol. 28, Issue 2 (August 2017), pp. 291-328

 

at pp.292

This Article examines the quality of attorneys who litigate Sexually Violent Predator Act (SVPA) cases, and concludes that a failure to apply a higher standard-beyond what was set out in Strickland-results in humiliation, shame, and lack of dignity for clients.

 

at pp. 293

Without specialized training and expert collaboration, attorneys cannot provide even remotely adequate or effective  representation.7

 

at pp. 293-294

II. STRICKLAND AND SVPA CASES

Post-Strickland cases involving mental status issues outside the ken of most lawyers 10 have re-enforced what Judge David Bazelon characterized some forty years ago as “walking violations of the Sixth Amendment,”11 and, in many instances, have
produced “appalling results.” 12 […] Writing about Strickland some years ago, one of the co-authors (MLP) noted that the availability of organized, specialized, and aggressive counsel in civil commitment is largely illusory, and the level of representation remains almost uniformly substandard.14

 

Then, fifteen years ago, in In re Mental Health of K.G.F., 15 the
Montana Supreme Court acknowledged that the Strickland standard
might not be a sufficient test of adequacy in cases involving involuntary
civil commitment.16 The court eschewed the Strickland standard of
effectiveness and instead found that the standard insufficiently protected
the “liberty interests of individuals such as K.G.F., who may or may not
have broken any law, but who, upon the expiration of a 90-day
commitment, must indefinitely bear the badge of inferiority of a once
‘involuntarily committed’ person with a proven mental disorder.” 17
Importantly, one of the key reasons why Strickland was seen as lacking
was the court’s conclusion that “reasonable professional assistance”-the
linchpin of the Strickland decision-“cannot be presumed in a proceeding
that routinely accepts-and even requires-an unreasonably low standard
of legal assistance and generally disdains zealous, adversarial
confrontation.” 18

 

at pp. 296-296

Such cases are, following the Supreme Court’s decision in Kansas v.
Hendricks,21 classified as “civil” rather than “criminal,” because they
involve “involuntary civil confinement of a limited subclass of dangerous
persons.”22 Such persons are not only considered dangerous but are
universally deemed to be the most despised and heinous population of
individuals. 23 Society’s general revulsion toward this population is shared
by judges, jurors and lawyers. 24 Although the bar pays lip service to the
bromide that counsel is available for all, no matter how unpopular the
cause, the reality is that there are few volunteers for the job of
representing these individuals, and that the public’s enmity has a chilling
effect on the vigorous of representation in this area.
Compounding the stigma associated with individuals who fall under
the SVPA is the complex evidence often produced at SVPA
proceedings. 25 Expert witnesses commonly utilize and interpret several

controversial psychometric tests, 26 and in order to effectively combat
such evidence lawyers must have familiarity with and a working
knowledge of these instruments and with the literature about their validity
and reliability.27 In many instances, counsel would need to consult with
an independent expert to adequately defend his or her client’s case.
Without a guaranteed right to such expertise, it is even less likely that
counsel will be able to ably launch a defense in such cases. 28

 

at pp.296-297

III. SHAME, HUMILIATION AND LACK OF DIGNITY IN THE LAW

“Criminal justice policy regarding serious offenders is no longer focused on what was previously ‘. . . a progressive sense of justice, an evocation of what “decency” and “humanity” required, and a compassion for the needs and rights of the less fortunate.”‘ 29 Instead, sex offender treatment in the United States is influenced by legislation that increasingly characterizes sex offenders as “lifelong predators who will seek out new victims as long as they live.” 30  […] Shame forces a downward redefinition of oneself;34 “the thrust of [shame’s] aggression is to dehumanize.”35 It is bordered by “embarrassment, humiliation, and mortification, in porous ways that are difficult to predict or contain,” 36 and is “one of the most important, painful and intensive of all emotions.”37 Shaming is public; its dehumanization and social demotion occurs when a shameful trait or act becomes “visible, and is exposed to others.” 38  According to Professor Martha Nussbaum, when “shame is a large part of their problem … expos[ing] that person to humiliation may often  shatter the all-too-fragile defenses of the person’s ego. The result might be utter collapse.” 39 By marginalizing the rights of those who are shamed and humiliated, such individuals are treated as less than human.40

 

at pp.298-299

[…P] proponents of shaming sanctions fail to recognize that shaming sanctions convey the message that offenders are less than human and that offenders deserve our individual and collective contempt. 43 “Sending this kind of message, even about criminal offenders, is, and should be, jarring in a political order that makes equality a cultural baseline.”” It is hard to imagine how shaming penalties that are crude and degrading will foster respect for the law.45 It is more likely that they are frequently counter-productive. 46  “Three common maladaptive responses to shame are depression, hiding/avoidance, and anger.” 47 Hiding/avoidance can often lead to a denial of the problem.48 Anger may lead to acts of revenge.49  These behavioral responses to shame are likely to undermine the goals of shaming. 50  It is no wonder, since “the natural response to shame is to cover the source of the shame[.]” 51 1 And, the all-too-frequent “response to sexual shame seems to be: more shame.” 52

 

at pp.305-306

IV. LACK OF COMPLIANCE WITH STRICKLAND GUARANTEES AND THE
RESULTING HARM

Courts have held that the adversarial protections of cross-examination and rebuttal witnesses would sufficiently allow the defendant the opportunity to challenge actuarial instruments’ validity.100  This, of course, is only effective if the defendant is afforded an opportunity for a rebuttal witness, and has been assigned effective counsel who is knowledgeable and able to dispute the assigned level of risk. 101  In a thorough and probing analysis of these tests, Professors Eric Janus and Robert Prentky have concluded that, “to a greater or lesser extent, all ARA [“actuarial risk assessment”] instruments have shortcomings, and these shortcomings detract from the reliability of the instruments.”102 The authors note that there are three potential sources of prejudice from ARA testimony: first, that the scientific and statistical nature of actuarial assessments will unduly influence the fact-finder into giving it more weight and credibility than it deserves, and that the principle of “actuarial superiority” will exacerbate this tendency; second, that juries will ignore the lack of “fit” between the actuarially-derived risk and the legally relevant risk, thus giving ARA too much weight; and third, that the reality that the “incriminating significance” of statistical probabilities is “obscure.” 103

A  Psychometric Tests: The Scarlet Number.

B. Evidence-Induced Humiliation

Hearsay evidence, otherwise inadmissible, will be considered as long as an expert accurately testifies that the relied upon materials are the types of materials reasonably relied on to diagnose future dangerousness of sex offenders.113 The Kansas court in In re Crane 114 held that: […P]rior acts that never in fact occurred or occurred differently from what is detailed in police and/or experts’ reports-are presented in open court to further compound the “evil” or “bad” image of the defendant.  Examples of hearsay that have been accepted in SVPA proceedings include: Evidence that was never adjudicated in a court of law; 118 Consideration of criminal charges that were acquitted;119

 

C. Shame in and out of Treatment
1. In Treatment

Some states require eligible sex offenders to participate in treatment. 123

In other states, where treatment is “voluntary,” heavy penalties, sanctions and the threat of incarceration directly influence and individual’s decision to participate. 124 Many of the practices common in the treatment of sex offenders elicit shame, but this reality is often not recognized or dealt with in treatment. 125 The coercive environment of sexual violent predator treatment cannot be overstated, 126 and “the stakes for refusing to [participate] are so high that participation in treatment is almost compulsory.” 127 Many clinicians believe that an offender must take responsibility and admit to all offenses (charged and uncharged) in order for treatment to be beneficial and effective.128 During treatment, participants must confess to any crimes listed in previous documents and admissions may be used against the participant in future court proceedings.129 If someone’s potential liberty is dependent upon taking responsibility for crimes or events that never happened, he or she would most certainly experience shame through the “downward redefinition of oneself.” 130 Furthermore, being forced to agree with inaccurate or untrue portions of an offending history could elicit behavioral responses to shame, such as hiding, avoidance and masking the source of shame 131 — that might very well prevent the beneficial goal of getting to the “truth of the matter” in offending behaviors. 132

 

pp309-10

Examples of treatment protocols that have the potential to elicit shame are:
1. the preparation of a detailed timeline and autobiography,
2. the detailed processing of crimes through the construction of a behavior chain,135
3. the requirement that offenders confront their own history of abuse.
4. phallometric assessment,136 and
5. the requirement that offenders write, but not send, letters to victims. 137

 

pp310-311:

Even if participants fully immerse themselves in the treatment process, completion of treatment does not correlate with release from commitment. 142 Being denied the rewards of treatment success would undoubtedly result in a lack of dignity and a reduction in intrinsic worth. 143 When the supposedly holistic and therapeutic goal of treatment is infused with shame, humiliation and lack of dignity, the prevalence of treatment-inhibiting mental health concerns such as depression, paranoia, violence, anxiety, and suicide, can be especially strong and pervasive. 144 A limited right of privacy attaches to psychiatric evaluations and statements made in the course of treatment. 147 “[Slexually violent predator evaluations fall within two established exceptions to the confidentiality of medical communications: the exception for public health and safety, 148 and the exception for communications made to a physician for a potential adversary’s purpose rather than for curative treatment.”149 Some courts have held that the psychotherapist-patient privilege never attaches in sex offender treatment, because medical examinations are not intended to be confidential.150

 

pp.311-12:

…[C]ourts have found that information elicited during treatment could be used in involuntary civil commitment proceeding, and that information garnered during treatment while in prison was admissible in initial hearing to determine SVP status.152

 

D. Absence of Dignity in the Courtroom

pp.314-15:

Judges have by and large, “bought into” myths about the high recidivism rates of sex offenders, 167 and the need for sex offender laws in order to protect the general public. 168 An individual facing sex offender civil commitment, will probably experience some lack of dignity due to the circumstances that brought them before the court, but the improper conduct of judges, based primarily on their disgust and/or misconceptions of those labeled sexual predators, can contribute to that person’s complete loss of dignity.  Pretextual devices such as condoning perjured testimony, distorting appellate readings of trial testimony, subordinating statistically significant social science data, and enacting purportedly prophylactic civil rights laws that have little or no “real world” impact dominate the mental disability law landscape. 169 Judges in mental disability law cases often take relevant literature out of context, 170 misconstrue the data or evidence being offered, 171 and/or read such data selectively, 172 and/or inconsistently. 173 Other times, courts choose to flatly reject this data or ignore its existence. 174 In other circumstances, courts simply “rewrite” factual records so as to avoid having to deal with social science data that is cognitively dissonant with their view of how the world “ought to be.”‘ 175 A proceeding that is fundamentally unfair and heavily weighted against the defendant due to erroneous rulings by the fact-finder, will have a negative effect on dignity and potentially provoke feelings of hopelessness, unworthiness, and being regarded as “less than human.” 176  This pretextual behavior by judges mocks constitutional requirements of dignity and is of no benefit to either the offender or the community. 177

 

E. How Attorneys can Combat Client Feelings of Shame,
Humiliation and Lack of Dignity
1. The Sanist Attorney

Sanism is an irrational prejudice of the same quality and character of other irrational prejudices that cause (and are reflected in) prevailing social attitudes of racism, sexism, homophobia, and ethnic bigotry. 178 It infects both our jurisprudence and our lawyering practices. Sanism is largely invisible and largely socially acceptable. 179 It is based predominantly upon stereotype, myth, superstition, and deindividualization, and is sustained and perpetuated by our use of alleged “ordinary common sense” (OCS) and heuristic reasoning in an unconscious response to events both in everyday life and in the legal process. 180 It reflects the assumptions that are made by the legal system about persons with mental disabilities-who they are, how they got that way, what makes them different, what there is about them that lets society treat them differently, and whether their condition is immutable.181 These assumptions-that reflect societal fears and apprehensions about mental disability, persons with mental disabilities, 182 and the possibility that any individual may become mentally disabled 183 -ignore the most important question of all-why do we feel the way we do about people with mental disabilities? 184  “Sanist attitudes lead to pretextual decisions.” “Pretextuality” means that courts accept (either implicitly or explicitly) testimonial dishonesty and engage similarly in dishonest (and frequently meretricious) decisionmaking, specifically where witnesses, especially expert  witnesses, show a high propensity to purposely distort their testimony in order to achieve desired ends. 185 “This pretextuality is poisonous; it infects all participants in the judicial system, breeds cynicism and disrespect for the law, demeans participants, and reinforces shoddy lawyering, blas6 judging, and, at times, promotes perjurious and/or corrupt testimony.”186 The issues are compounded when we consider the component of sexual offending. Lawyers have their own opinions, prejudices, emotional responses and personality conflicts that might no doubt be tested in the representation of individuals who committed a sex crime.  although scholarly studies of the effects of “disturbing media” on this population are “relatively recent,”187 researchers have established some very clear findings that have direct relevance to attorney representation. 188 Litigation in sex offender cases is inherently stressful and emotional,189 involving certain identified “emotion-evoking” factors.190 In other areas of practice, a lawyer who is unable to gain control over emotional responses to a client might refer the client elsewhere for representation.191 But in sex offender commitment cases, referral may be less viable. Clients represented by Legal Aid lawyers or Public Defenders may have nowhere else to go, unless they can be transferred to a different staff attorney in the same office. Thus, in these circumstances, attorneys must insure that the competency of the representation is not compromised by the emotional interference in the lawyer/client relationship.192 It is necessary to stress that competency of representation is not a simple definitional phrase. If attorneys allow their emotional responses to interfere in their representation, they are further contributing to the lack of dignity for their client and an undignified legal system. 193

3. Judgment is for the Court, not the Attorney

Although the specific facts involved in these types of cases may elicit
opinions and feelings, an attorney needs to refrain from judging their
client as either “good” or “bad” and contributing to further humiliation of
the individual. It might be necessary for the attorney to have the capacity
to separate the act from the individual in order to render competent and
effective representation. Value judgments on an individual’s character
hold no benefit in the analytical processing of the merits of a case and
will only further an antagonistic relationship that has the potential to
interfere with rigorous representation.

5. “Nothing in the World is More Dangerous than

Sincere Ignorance and Conscientious Stupidity.” 206

at pp.319-20:

How important is it to retain an independent expert in a SVPA
proceeding? In order to be an effective advocate at an SVPA hearing,
counsel must demonstrate a familiarity with the psychometric tests that
are regularly employed at such hearings, 207 and collaborate with relevant
expert witnesses who could assist in the representation of the client,
experts who would be appointed by the court at no cost to the person
facing sex offender adjudication in the same manner envisioned by the Supreme Court’s Ake v. Oklahoma decision in insanity cases. 208
The complexities involved in an SVPA trial-mental health
determinations, scientific underpinnings, actuarial tests and other scoring
tools used by psychologists-all have an impact on whether the quality
of representation afforded to individuals facing sexual offender civil
commitment is sufficient to protect their liberty interests. 209 These cases
are truly like no other in the justice system, and require a heightened
standard of representation. 210 To meet this heightened standard, counsel
must use every resource and tool at his or her disposal in order to be
effective and to offer ethical and rigorous representation. Counsel must
seek out and have access to expert instruction and opinion on the
psychiatric, social and political elements of each case-skills that are most
likely beyond most attorneys’ schooling and legal education. Without
such access, counsel has little hope of understanding the opinions and
expertise that he or she will confront.211
An independent expert will minimize the effects of shame and
humiliation that often accompany these proceedings by (1) showing the
client that counsel is taking the case seriously; (2) empowering the client
by offering another perspective in a trial that is otherwise weighted so
heavily in favor of the prosecution; (3) minimizing the attorney’s role as
sole confidant and pseudo-therapist;212 and (4) educating the attorney so
that he or she can be a better advocate for the client in court.213

 

V. ON THERAPEUTIC JURISPRUDENCE 214

Therapeutic jurisprudence (TJ) “asks us to look at law as it actually
impacts people’s lives” 215 and focuses on the law’s influence on
emotional life and psychological well-being. 216 The ultimate aim of
therapeutic jurisprudence is to determine whether legal rules, procedures,
and lawyer roles can or should be reshaped “to enhance their therapeutic
potential while not subordinating due process principles.”217 There is an
inherent tension in this inquiry, but David Wexler clearly identifies how
it must be resolved: The law’s use of “mental health information to
improve therapeutic functioning [cannot] impinge upon justice
concerns.”218

At p. 325:

VI. How SHOULD COUNSEL BE TRAINED?

A. The “Back Story”

Lawyers must be trained in the “back story” that led to the creation of
actuarial instruments, and, must understand that, notwithstanding the fact
that such instruments do lead to far more accurate results than do
unstructured clinical interviews, such instruments often assume facts-not-in-evidence as to the individuals being assessed. For example:
(a) Individuals are penalized for never having been married. 244 This
scoring has a disparate impact on those who are intellectually disabled
who, for multiple reasons, marry at a far lower rate than do those not so
disabled.
(b) Tests are normed on certain groups of individuals (e.g., Canadian,
Caucasian males).245 There is a serious question as to the reliability and
validity of the studies that led to this norming population if the individual
in question is, say, an African-American.
This training will optimally lead lawyers to contest the validity of the
actuarial instruments on voir dire, and at the least, raise the inference with
the judge that the resulting numbers are not “magic” or a “gold
standard.”246

At pp. 325-26

B. Sanist and Pretextual Myths

Lawyers must be trained in the sanist and pretextual myths 247 that lead
fact finders to make gross misassumptions about persons who are subject
to the SVPA process (e.g., that “no treatment works”; that “they all
recidivate”; that the stranger-in-the-parking-lot scenario is the most
common fact pattern), in the ways that heuristic reasoning dominates
fact-finders’ thought process (including, not limited to, the vividness
heuristic), 248 and in the ways that fact-finders’ false “ordinary common
sense” leads them to make fatally erroneous assumptions as a result of
pre-reflective thinking, and observations based disproportionately on visual cues and clues (“he looks creepy”). 249 As one of the co-authors
(MLP) has recently written, “attorneys representing [persons with mental
disabilities] need not only effective advocacy skills training, but also
training in the realm of TJ to directly rid them of conscious or
unconscious sanist biases.” 250

D. A Second Witness?

Lawyers must be trained so that they understand when a second expert
witness is needed-not solely the one who examines the client, but a
second to offer empirical research to rebut the assumptions regularly
made by the fact finder.253 In this specific context, lawyers must be
trained so that they can raise arguments urging the expansion of the
Supreme Court’s decision in Ake v. Oklahoma, so as to mandate expert
availability in this cohort of these cases as well.254

At p. 327:

E. Trauma-Informed Training

The Trauma Myth: The Truth About the Sexual Abuse of Children-and Its Aftermath,
Dr. Susan Clancy asserts that many professionals do not really understand
how, why, and when child sexual abuse is harmful, and that imputing
trauma when it is not present might actually introduce secondary harm. 258
Making judgments about the degree of harm suffered by a victim and/or
justifying criminal behavior because of previous victimization can be
detrimental to client relations and subsequently the ability to effectively
represent a case. 259  We believe that lawyers assigned to represent individuals at SVPA
hearings must undergo rigorous and ongoing training so as to provide
authentically effective counsel, effectiveness that, as we noted before,
“cannot be presumed in a proceeding that routinely accepts-and even
requires-an unreasonably low standard of legal assistance and generally
disdains zealous, adversarial confrontation.” 260

 

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