Sexually Violent Predators

Facts of the Case

After serving about one-fourth of a 40-year prison sentence for multiple sexual assault convictions, Joseph Lombard was paroled in March 1992. Two and half years later, Mr. Lombard’s parole was revoked, and he was returned to prison. Five years later, in 1999, Mr. Lombard’s mandatory release date was approaching. The state sent Anthony Jurek, PhD, a psychologist from the Department of Corrections, to interview Mr. Lombard to determine whether a petition should be filed for a hearing under Chapter 980 of the Wisconsin State Statutes, concerning the commitment of sexually violent persons.

On December 1, 1999, the first of the three-day interview, Dr. Jurek presented Mr. Lombard a disclosure form, part of which stated the following: “You have the right not to participate in the examination or to answer any of the questions posed to you, but this refusal to answer will be used as part of the evaluation.” Mr. Lombard signed and dated the form. Dr. Jurek proceeded to examine Mr. Lombard. Based on the examination, Dr. Jurek recommended that Chapter 980 proceedings be pursued. Dr. Jurek assessed Mr. Lombard as a sexually violent person who met the diagnostic criteria for sexual sadism and who also had antisocial personality disorder.

The jury trial to determine whether Lombard should be committed as a sexually violent person began on October 16, 2000. Three expert witnesses testified for Mr. Lombard. Dr. Jurek was the only expert witness for the state and the only witness to conclude that Mr. Lombard was substantially likely to reoffend. On October 20, 2000, the jury found Mr. Lombard to be a sexually violent person, and he was committed to an institution.

Mr. Lombard filed a series of motions and appeals. The first set of motions claimed, among other things, that Mr. Lombard did not give informed consent to be interviewed by Dr. Jurek during the pre-petition evaluation. The court denied these motions. Mr. Lombard appealed the denial of his motions, the finding that he was a sexually violent person, and the subsequent commitment. The court of appeals remanded to the circuit court to determine whether Mr. Lombard received ineffective counsel at trial. Mr. Lombard filed a motion for a new trial on the basis of ineffective counsel at trial, because his counsel had not objected to the admission of Mr. Lombard’s statements to Dr. Jurek. Mr. Lombard also asked for an evidentiary hearing.

Once again, Mr. Lombard’s requests were denied. The circuit court held that Mr. Lombard’s Fifth Amendment rights were not violated, because he had signed the advisement form prior to his interview with Dr. Jurek. The court noted that, as part of the form, Mr. Lombard was informed that Dr. Jurek would consider a refusal to participate when reviewing the evaluation.

Again, Mr. Lombard appealed the determination that he was a sexually violent person and the subsequent commitment under Chapter 980. Mr. Lombard asserted that his Fifth Amendment rights were violated because his statements to Dr. Jurek during the pre-petition psychological evaluation were used at trial. The Court of Appeals held that Mr. Lombard was not entitled to a Miranda warning during Dr. Jurek’s evaluation. In its decision, the court referred to its previous holding in State v. Zanelli (Zanelli II), 589 N.W.2d 687 (Wisc. Ct. App. 1998) that Chapter 980 “is a civil commitment proceeding, not a criminal proceeding.” Because statements made during Chapter 980 proceedings do not subject an individual to future prosecution, Miranda warnings are not required.

In Mr. Lombard’s case, the lack of requirement for Miranda warnings was extended to pre-petition psychological evaluations used to determine whether Chapter 980 proceedings should be pursued. The court acknowledged that its decision “may appear contradictory” to its holding in State v. Zanelli (Zanelli I), which acknowledged that, in a pre-petition evaluation for Chapter 980 proceedings, the respondent has the right not to participate and the state cannot comment on a respondent’s refusal at the time of trial. Dr. Jurek’s advisement form to Mr. Lombard had stated that “refusal to answer will be used as part of the evaluation.” However, the court held that, as Mr. Lombard was not entitled to Miranda warnings in a pre-petition evaluation in the first place, Mr. Lombard did not suffer any prejudice as a result of his counsel’s failure to object to Dr. Jurek’s testimony and report.

Mr. Lombard sought review of the court’s decision by the Supreme Court of Wisconsin.

Ruling and Reasoning

The court upheld the decision made by the court of appeals. The court concluded that Mr. Lombard was not entitled to Miranda warnings prior to his pre-petition evaluation and that his counsel’s failure to object to pre-petition evaluation findings introduced at trial did not constitute ineffective counsel.

Wisconsin Statute Chapter 980.05(1m) states that, “At the trial to determine whether the person who is the subject of a petition under § 980.02 is a sexually violent person, all rules of evidence in criminal actions apply.” In interpreting the statute, the court focused on the phrase “at the trial” to determine that Miranda warnings are not required for respondents prior to state evaluations whose purpose is to see whether a Chapter 980 petition should be filed.

The court concluded that a “reasonable interpretation of the plain language of the statute” would provide for constitutional rights, such as Miranda warnings, at the respondent’s trial, but not in the pre-petition phase before trial. Because Chapter 980 is a civil commitment process rather than a criminal proceeding, affording respondents the same constitutional protections given to criminal defendants would undermine the intent of Chapter 980.

Although Mr. Lombard claimed that he felt compelled to speak because the advisement form indicated that failure to do so could be used against him, the court noted that, throughout the pre-petition evaluation, Dr. Jurek reminded Mr. Lombard of his right to participate or not to participate, and Mr. Lombard explicitly stated that he wished to continue. Thus, there was no finding of coercion.

Because Mr. Lombard was not entitled to Miranda rights during the pre-petition evaluation, failure to object to pre-petition evaluation findings introduced at trial did not constitute ineffective counsel.

Dissent

In a vigorous dissent, it was argued that individuals at a pre-petition examination have the right to remain silent and should be informed that their silence will not be used against them at any stage of the Chapter 980 commitment proceedings. The warning of a right to remain silent is necessary for fundamental fairness and for protection of the privilege against self-incrimination. By providing an incorrect and inherently coercive warning at a pre-petition evaluation that respondents’ silence may be used against them, the state in effect is free to mislead individuals to induce them to speak.

Discussion

The subject of consent is a cornerstone of the American Academy of Psychiatry and the Law (AAPL) Ethics Guidelines. The guidelines note that: “[I]t is important to appreciate that in particular situations, such as court ordered evaluations for competency to stand trial or involuntary commitment, consent is not required. In such a case, the psychiatrist should so inform the subject and explain that the evaluation is legally required and that if the subject refuses to participate in the evaluation, this fact will be included in any report or testimony.”

The incorrect pre-petition warning in this case was not viewed as grounds for appeal. However, to maintain the highest ethical standards of practice, forensic examiners would be advised to be aware of the level of consent governing a particular evaluation.

This case follows in the tradition of other appellate cases over the past decade that have remarked on the rights of respondents facing commitment hearings under sexually violent predator laws. Because courts have held that sexually violent predator laws are civil rather than criminal, respondents in SVP hearings are not afforded the same protections that apply in criminal proceedings. Given the high-profile cases surrounding reoffenses by individuals who have been convicted of sexually violent crimes, it is reasonable to foresee that the emphasis on police power in the civil commitment aspects of SVP laws will continue.