Sexually Violent Predators Have a Right to Competent Counsel

Facts of the Case

In 1983, Mr. Ontiberos was convicted of the attempted rape of a casual acquaintance, and in 2001, he was convicted of the aggravated sexual battery of his mother-in-law. He received sex offender treatment in prison after both of these offenses. In 2007, just before his scheduled release on parole, the state filed a petition for civil commitment for treatment under the Kansas Sexually Violent Predator Act (KSVPA) (Kan. Stat. Ann. § 59-29a01 (2007)).

At the civil commitment trial, a jury heard evidence from two experts: Dr. Deborah McCoy for the state and Dr. Robert Barnett for the defense. Dr. McCoy was a clinical psychologist who evaluated Mr. Ontiberos by reviewing his prison records and prior psychological evaluations, conducting a personal interview, and administering two actuarial risk assessments: the Static-99 and the MnSOST. Dr. McCoy diagnosed Mr. Ontiberos with “paraphilia not otherwise specified, with themes of exhibitionism and non-consent” (Ontiberos, p 859), as well as a personality disorder not otherwise specified and polysubstance dependence. Dr. McCoy testified that, based in part on his Static-99 result, Mr. Ontiberos had a high risk of recidivism and could be deemed an SVP. In contrast, Dr. Barnett, also a clinical psychologist, stated that Mr. Ontiberos was at high risk only when intoxicated. He based this conclusion on an interview of Mr. Ontiberos, a review of his clinical history, and a mental status examination. Dr. Barnett diagnosed polysubstance abuse and dependence and a mild cognitive disorder. He stated that he did not consider the Static-99 or the MnSOST to be valid risk assessment tools, saying instead that penile plethysmography was the most accurate predictor of risk (although, to his knowledge, the test had not been performed on Mr. Ontiberos).

In reaching their conclusions, both experts had reviewed approximately 3,500 pages of documents about Mr. Ontiberos, identified during the trial as Exhibit 1. Both attorneys stipulated that Exhibit 1 could be used to cross-examine the experts but would not be given to the jury or entered into evidence. However, the prosecutor asked Dr. Barnett about an alleged knife incident in 2003 for which Mr. Ontiberos was disciplined in prison, despite there being no documentation of the incident in Exhibit 1. Mr. Ontiberos was also cross-examined using information in the exhibit, including police reports of additional sex offenses for which he was never charged. His attorney did not object to these questions.

At the conclusion of the trial, the jury found that Mr. Ontiberos was an SVP, and he was committed to state custody for treatment until determined to be safe for release. He then appealed his commitment to the Kansas Court of Appeals, arguing prosecutorial misconduct and ineffective assistance of counsel. The court of appeals held (among other things) that his counsel had been ineffective and that he therefore did not receive a fair trial. The court further held that the state's attorney had committed misconduct, as the knife incident had been seriously mischaracterized and had prejudiced the outcome of the trial. The case was remanded to the trial court for rehearing.

Both parties then appealed to the Supreme Court of Kansas. In his appeal, Mr. Ontiberos made three claims: first, that the KSVPA was unconstitutional, because it did not provide a specific mechanism for challenging the effectiveness of trial counsel; second, that he received ineffective counsel; and third, that the state's attorney committed egregious misconduct.

Ruling and Reasoning

The court held that Mr. Ontiberos had a constitutional and statutory right to effective counsel, that his counsel was ineffective, and that the prosecutor had committed misconduct. The court affirmed the judgment of the court of appeals and remanded the matter to the district court for a new trial.

Regarding Mr. Ontiberos' first claim, the supreme court noted that, although SVP trials are civil rather than criminal, Mr. Ontiberos had a statutory right to counsel made explicit by the KSVPA. The court held that the right to counsel is necessarily a right to effective counsel, as otherwise the provision of an attorney would be a meaningless formality. Although the KSVPA itself does not articulate a specific procedure to contest the competence of counsel, the court identified several methods by which one could do so and concluded that these mechanisms are constitutionally adequate. The court further reasoned that SVP hearings are similar enough to criminal proceedings that the same standard for ineffective assistance of counsel can be applied: counsel's performance must be deficient and the resulting harm sufficiently serious to deprive the respondent of a fair trial.

The court then addressed Mr. Ontiberos' second claim, that his counsel had been ineffective. He argued that his counsel was incompetent in four ways: failure to object when the state used Exhibit 1 documents; failure to object when the state referenced a nonexistent disciplinary report involving a knife; failure to introduce evidence that a Static-99 assessment in 2006 yielded a low-risk result that directly contradicted Dr. McCoy's Static-99 findings; and failure to provide the defense expert (Dr. Barnett) with data from a penile plethysmograph test performed in 2005. The court agreed with Mr. Ontiberos' arguments, stating that the attorney should have been more familiar with elements of Mr. Ontiberos' history and previous testing, as well as evidentiary rules governing expert testimony.

Finally, Mr. Ontiberos argued that the state's attorney committed misconduct by improperly using portions of Exhibit 1 to cross-examine him. The court agreed, stating that documents not in evidence can be used only for the limited purpose agreed on by the attorneys—in this case, to examine the expert witnesses. In addition, the court held that the prosecutor committed misconduct by mischaracterizing evidence of the 2003 knife incident, which was later determined to have occurred in 1991 and involved only a pen covered in duct tape. The court reasoned that, as a result, the jury was deprived of the chance to decide the facts and properly assess credibility.