|Civil Commitment (SORTS)|
By Jesse Bogan
STE. GENEVIEVE COUNTY - There is a special wing here at the county jail that holds nine detainees who were convicted long ago for sex crimes. They already served their time in prison.
Still, they wear bright orange jumpsuits as they await another kind of trial.
Flagged as possible sexually violent predators, the Missouri attorney general’s office wants them held indefinitely at a secure state mental institution called Sex Offender Rehabilitation and Treatment Services, or SORTS.
But first, in most of their cases, juries will be asked to make a rare decision in the American legal system — keep them locked away on the expectation of another crime.
“Somebody with a crystal ball believes I may commit a crime in the future. And they want to lock me up for the rest of my life in a mental institution out of fear,” detainee _____ said from jail last week.
_____, 49, who had a condo in Ballwin before going to prison in 1997, compared the civil commitment legal procedure to throwing a DWI offender in prison before getting pulled over for a repeat offense.
“To me, it makes no sense,” he said.
The U.S. Supreme Court assured in a 5-4 decision that it does.
But few have seen the civil commitment process play out the way it has for _____ — or for as long. He’s been detained and awaiting trial — mainly at the Ste. Genevieve County Sheriff’s Department Detention Center — since he finished his prison sentence at the end of 2006.
Since then, three juries have failed to agree on a unanimous verdict needed to commit him to the care of the Missouri Department of Mental Health.
- Why is it even going to three juries? After the first, if they failed to say he needed commitment, then he should've been released. Seems to me like they want him committed regardless of what "experts" say or a jury.
A fourth jury was selected Tuesday in St. Louis County.
- Really? So I guess you will continue to get new juries until you get what you want, in the mean time wasting a ton of money!
“I am going to my fourth trial now after six years, and I am hopeful that I’ll go home,” _____ said from jail.
The jury for _____’s latest case won’t be told about the mistrials, nor SORTS, a facility that has been criticized by civil libertarians for being a prison disguised as a mental hospital. A civil lawsuit against SORTS leaders that has been crawling through U.S. District Court says there is little evidence showing that SORTS residents can progress through treatment and be released back into the community.
But _____’s situation is a different kind of limbo.
He’s found himself tangled in a legal web that isn't holding him at SORTS, nor in prison, but rather in jail, where he’s been playing board games and watching television the past six years.
As the mistrials rack up, he has no idea when it will end.
“It could go on the rest of my life,” he said.
Part of the challenge is there are few absolutes about _____’s case, other than he hasn't been on the streets of St. Louis County for a long time, which is the way some officials want to keep it. They see a pattern in his behavior.
_____ was first arrested in 1983, at age 18. He got caught sticking his hand in the pants of a 5-year-old girl playing in a yard. _____ pleaded guilty to sexual abuse and was sentenced to probation. He underwent sex-offender treatment.
_____, at 5 feet tall, stands out for his size. After graduating from Parkway South High, he earned an associate degree from St. Louis Community College at Meramec. But he was never able to land the career in business that he wanted.
By 1997, he’d been arrested again for molesting a 7-year-old girl. Her hearing-impaired parents used sign language and tears at the criminal trial to describe what their family had been put through by their former friend.
“He seemed such a nice person,” the father testified. “He was so friendly, like family to us. He was taking advantage of us, and that makes me very angry.”
_____’s attorney asked for probation. Prosecutors wanted 25 years.
St. Louis County Circuit Judge Robert S. Cohen sentenced _____ to 10 years in prison.
“I have to be concerned about protecting this little girl and other little girls like her from the likes of you,” Cohen said.
_____ is essentially on trial again in St. Louis County for that same concern, even though he hasn't committed another crime.
While in prison, _____ was admitted to the Missouri Sex Offender Program. Participants are encouraged to explore empathy for victims and develop a plan to prevent a relapse. Graduates have some of the lowest reoffense rates compared to other criminals released from prison.
_____ was kicked out of the program for lack of progress. The second time around, he completed it.
In a 2006 report, evaluators recommended that _____ transition to community supervision, rather than “prolonged incarceration” that could “erode progress made in treatment.” The report asked that he continue therapy after being released from custody. He was instructed to stay away from children and to participate in polygraph testing to ensure compliance with parole.
_____ was never released.
A different evaluator flagged his file near the end of his sentence for possibly meeting the criteria of a sexually violent predator (another evaluator didn’t). A corrections report says _____ self-reported molesting other victims. _____ told an evaluator that he made up victims to satisfy a demanding therapist, according to records in the case.
Actuarial testing tools, similar to those insurance companies use to predict future damage, also showed an increased risk to reoffend.
A panel of mental health professionals agreed that _____ fit the criteria of a predator. So did a collection of prosecutors. A judge was convinced there was probable cause to hold him for evaluation.
Then _____ got a break.
It came in the form of a Department of Mental Health report that said _____ does not belong in the SORTS program. Although he “suffers a mental abnormality,” he isn't “more likely than not” to reoffend if he was free.
Richard G. Scott, who wrote the 13-page report, continues to testify on _____’s behalf.
St. Louis County jurors in his previous civil commitment hearings were surprised to hear _____ is still on trial.
Kimberly Zeman, 57, was in the jury box in 2010. That jury deadlocked 6-6, according to the court file.
“I don’t think anybody on the jury thought he wouldn’t do it again if he got out,” Zeman said in an interview. “But if we went based on the law, he passed every test, and I think that was a problem for a lot of people. We had to go by the law, not by what we thought.”
The second trial was closer. Nine wanted to turn _____ over to mental health authorities; three voted to free him, including Richard Herbert, 76, a retired trucking company supervisor.
“He served his time. He should be released,” Herbert said. “Of course all the females, they said he should be incarcerated. They all had kids.”
Herbert said the jury wanted to know more about what commitment would entail, but those details weren't shared.
Dan Kapsak, 40, was the jury foreman of that trial. Before he agreed to be interviewed, he said his comments were not associated with his job as a federal prosecutor in Illinois. He said the three dissenters on the hung jury seemed to base their decision on public policy arguments, not the evidence.
He was in disbelief that the third jury also failed to get a verdict and that a new one was being seated.
“That speaks to how serious of a threat the state thinks _____ is,” Kapsak said. “They are willing to spend the taxpayer money and keep moving forward.”
- So tell me again, what is the purpose of a jury?
Over the past six years, _____ has spent about $75,000 trying to defend himself.
“I’ve had to sell my house, my car. All my finances are gone,” he said.
His adoptive father, a retired price analyst at McDonnell Douglas, died while _____ was in jail. Now, _____ would like to care for his 85-year-old mother in Des Peres.
“I really just want to get back out in society and prove myself, let people know that I am a changed person,” he said. “The mistakes I made in my past are not who I am.”
On Tuesday, at the first day of his fourth trial, he’d swapped the orange jumpsuit for a blue button-down shirt. Leg shackles were hidden by gray dress pants.
He sat near his lead attorney, Eric Selig, and jotted notes about potential jurors.
“It’s the most important part,” he said during a break in jury selection.