Preparing for Sexual Predator Hearings in Ohio
By Lorin J. Zaner, Attorney At Law
Chapter 2950 of the Ohio Revised Code sets forth the definitions and the method by which the Court will determine which classification to place a sex offender. The purpose of this article is not to discuss the statute, but provide pointers in preparing for the hearings.
It’s important to realize the critical nature of these hearings, as it’s likely Ohio will pass laws mandating civil commitment for sex offender in the near future, as such actions in other states are being upheld by the U.S. Supreme Court.
Essentially, what occurs is that, shortly before the defendant has completed the incarceration time pursuant to a criminal conviction, the State commences a civil commitment hearing alleging that the defender suffers from a mental illness; and they will try to diagnose the defendant as a pedophile who needs treatment and is likely to re-offend. Any defendant labeled a sexual predator faces the likely possibility of life behind bars, fist criminally and then civilly in a mental-health facility. It is clear that we need to prepare and investigate every possible avenue to prevent our clients from being labeled as sexual predators.
It is also essential that defense counsel discuss with clients the ramifications of civil confinement. If a defendant has little or no likelihood of receiving judicial release counsel must advise their client whether or not they should become involved in sex-offender treatment while incarcerated.
No Counseling in Custody.
It is likely that the best advice to give a client is to not participate in sex-offender counseling while in custody. Further, any psychological testing the State tries to force a defendant to take also should be refused. The defendant should be advised to respectfully refuse the alleged treatment and counseling on the advice of counsel. They may be forced to go and meet with the psychologist, but they do not need to participate with any testing or discussions, group or individual.
If the defendant participates in counseling, or undergoes psychological testing, all of those results will be sued against the defendant for civil confinement. It’s wiser to have only the testing of your expert to assist you as opposed to trying to challenge the State’s expert, who usually has a strong motivation to testify against you.
For those defendants who aren’t incarcerated and have been found guilty as a result of trial, opt for a no-contest plea or an Alford plea, the Court will likely impose a requirement for sex-offender treatment. For those defendants who also claim that they are innocent, understand that they likely will not be able to successfully complete the treatment unless they admit that they are guilty.
But you are potentially setting the defendant up for failure under that scenario. If possible, petition the Court to have your client obtain sex-offender counseling through a therapist of your choosing. If the Court will not allow that, you must advise the Court ahead of time that your client maintains his/her innocence, and that they will participate in the program, but they will not likely successfully complete it without an admission. At least the Court will understand that your client is trying to be cooperative, but he or she will not lie to satisfy a program requirement.
For those defendants who have admitted their guilt and have not been incarcerated, they will likely be required to complete sex-offender counseling to be consistent in their admissions and follow through with the treatment. If they do not complete the counseling, they face going to prison for a probation violation.
What is a Sexual Predator?
A sexual predator is defined as a persona who has been convicted of, or pleaded guilty to, a sexually oriented offense and is likely to engage in the future in one or more sexually oriented offenses (See ORC 2950.01 (E)) ORV 2950.09 (B)(2) sets forth the factors to be considered by the judge in making a determination as to whether or not the defendant is a sexual predator. The list is not all-inclusive and is certainly ripe for attack by a creative defense attorney.
The key issue for attach is whether or not the defendant is likely to engage in future criminally sexually oriented offenses. The necessity of obtaining an expert to assist in said hearing is obvious. If the defendant is indigent, a motion must be filed to obtain funds to hire an expert witness to testify for the defense. The expert must be familiar with the statute and in a position to assist defense counsel’s cross-examining the State’s expert witness on propensity and the psychological testing used for classification.
There are a number of psychological tests that are commonly used to determine the risks of re-offending These include: MMPI; TAT; Rorschach, Sentence Completion; PCLR-Psychopath checklist revised; Barbaree’s Warkworth sexual-behavior clinic scale; violence-prediction scheme; risk-assessment guide; wide-range achievement test-R’ Bender Visual Motor Gestalt; and Phallometric testing-Penile Plethysmography. You must become familiar with these tests and learn how they can be used to assist in your client’s defense.
If you are representing a defendant who is incarcerated and is about to have a prerelease hearing to set a sexual offender classification, take a look at all of the underlying factors in the predicate offense. Was the defendant convicted of a sexually oriented offense? Is there any basis to challenge the conviction, e.g. DNA evidence? Was the defendant suffering from some mental disorder and/or disease and was there a misdiagnosis?
The defense must be familiar with Daubert and how it can be used to challenge the admissibility of any prediction testimony for reoffending. Presently, there are no universally recognized means by which to accurately predict recidivism for sex offenders.
A number of law review articles have been written on the subject of sexual-predator laws. Also, there are a number of articles that have been written in various scientific journals. A good place to start would be by reviewing “Sex Offender Assessment, Treatment and Recidivism: a Literature Review by Kelly Blanchette.” The review may be accessed by visiting www.csc-scc.gc.ca/text/rsrch/reports/r48/r48e_e.shtml.
A demand for discovery should be filed in order to obtain information that can be helpful in preparing for the hearing. See chart on opposite page for a partial list of items that should be requested.
Be Vigilant, Be Prepared.
After you obtain discovery materials, sit down with your expert to discuss not only their testimony, but to assist you in preparing your examination of the State’s experts. You need to be prepared to attach their credentials, the science, their methodology and anything else that you can. With the very real possibility of your client spending a lifetime behind bars, you need to be will-prepared for these hearings.
About the Author:
LORIN J. ZANER - Attorney At Law
520 Madison Ave, Ste 545
Toledo, OH 43604
Phone: (419) 242-8214
Toll Free: (800) 243-8214
Fax: (419) 242-8658
Email: lorin@ohiocriminaldefenselawyer.com
Website: www.ohiocriminaldefenselawyer.com
Zaner is a Toledo-based attorney, who has a general practice in Ohio and Michigan, handling a substantial number of criminal cases. He has particular expertise in representing defendants falsely accused of child abuse. He can be reached at lorinzaner@accesstoledo.com.
