Sex Offender Commitment Challenged

If need be, Peter Erlinder, a law professor at William Mitchell College of Law, will take James Poole's cause to the U.S. Supreme Court
Tony Nelson

James Poole is unlikely ever to graduate from the Minnesota Sex Offender Program in Moose Lake. The former physician from Wheaton, Minnesota, who was convicted in 1991 of sexually assaulting 11 of his patients, was indefinitely detained there after being designated a "sexually dangerous person" and "sexual psychopathic personality." After more than three years of therapy, however, Poole remains mired in the first phase of the five-year treatment program.

Because of this utter lack of progress, the notorious physician--he was covered on TV news magazines such as 48 Hours--is convinced the only way he will ever be released is by persuading the courts to overturn his civil commitment. In 2001, having already exhausted his appeals in state court and lacking the cash to hire a lawyer, Poole wrote and filed his own legal brief in U.S. District Court, arguing that his confinement was unconstitutional because he was denied the right to a jury trial. "If they were going to lock me up for life, I thought I should at least have a jury trial," Poole says now. "Any time liberty is at issue, that's one of the fundamental rights to prevent government oppression."

Poole's amateur legal work could now have profound ramifications. In June his case was sent for review to the Eighth Circuit U.S. Court of Appeals in St. Louis, where it will be determined whether he is constitutionally entitled to a jury trial. If the federal court agrees that Poole's rights were violated, it could lead to new trials for everyone in Minnesota who is civilly committed for a variety of reasons, including aberrant sexual behavior, schizophrenia, and dementia. In fact, the vast majority of people who could be affected by the litigation are not sex offenders.

Because the case is being heard by the Eighth Circuit, the government will pick up the tab for Poole's lawyer, Peter Erlinder, a professor at William Mitchell College of Law. In recent years federal courts have repeatedly scrutinized sex-offender commitment laws, particularly statutes in Washington and Kansas. Since most other states offer sex offenders the right to have their cases heard in front of a jury, however, the issue of whether such trials are constitutionally required has never been raised in federal court. "It was just a question that no one had occasion to ask before," notes Erlinder.

In Minnesota courts, the jury issue has been broached repeatedly, then dismissed. Judges have reflexively cited a 1939 Minnesota Supreme Court case, Pearson v. Probate Court, that determined that civil commitment cases are not subject to jury trial provisions because that was not the practice when the state's constitution was adopted in 1857. In researching the Poole case, however, Erlinder believes he has uncovered proof that that decision is legally flawed: Under the Territorial Laws of Minnesota, cases in probate court (where civil commitment proceedings are held) were determined by a six-member jury. "It's one of those moments as a legal scholar when you say, 'Huh--there is some value in going through these dusty tomes,'" he laughs.

Because the right to a jury trial was explicitly provided for then, the law professor argues, it remains embedded in state law now. "There's 160 years of case law that says the way you determine whether there's a right to a jury in Minnesota is to look at the right to a jury that existed prior to the 1857 constitution. The history on this is so clear. It's not a matter of opinion anymore what the territorial laws were in 1857, and it's not a matter of opinion that their right to a jury trial was violated." Erlinder intends to take the case to the United States Supreme Court if necessary.

Hillary Caligiuri, a deputy in the Minnesota Attorney General's Office, allows that there was a period of time during which "idiocy proceedings" (conducted for people who, because of mental deficiencies, could not care for themselves) were heard by a jury, but that the practice was abandoned prior to the adoption of the state constitution. What's more, "idiocy proceedings are not psychopathic-personality hearings," Caligiuri argues. "This is a new statute that was enacted in 1939. It is simply a different type of case that can not be analogized to idiocy proceedings." She's unfazed by the argument set forth in the Poole case. "It's settled case law in Minnesota and I think the case law is right in Minnesota."

Even if Erlinder's argument proves correct, he may be in the wrong venue to make his case. Under a 1996 law intended to deter federal judges from meddling in state death penalty cases, the courts are prohibited from intervening in state matters unless there is a clear deviation from established U.S. Supreme Court precedent. Because the high court has never ruled directly on the jury trial issue, judges might shy away from getting involved.

Attorneys for sex offenders facing civil commitment have taken notice of Erlinder's discovery, however. In the coming months many will begin citing the territorial laws to make the case that their clients are entitled to a jury trial. "I can't speak for everyone, but the next time I have a case like this, that would be one of the first things that happens," says Warren Maas, attorney coordinator for the Hennepin County Commitment Defense Project, which appoints lawyers for people facing civil commitment.

Lawyers who represent sex offenders facing civil commitment say that judges have proven so unwilling to find in favor of their clients that they would risk a jury trial in some cases. "I've had a couple of cases that I think if I'd had a jury trial I would have won," contends James Dahlquist, who represented Poole in his initial civil commitment trial. Maas concurs: "It's getting to the point where I think I would have just as good of luck with a jury as a judge in numerous cases."

For Poole the stakes are extraordinarily high, since, without a victory on this appeal, he is essentially facing a life sentence. During his civil commitment trial, evidence was introduced that he abused other women who were not patients. And although Poole denies these accusations, in order to advance through the therapy program at Moose Lake he must admit to the alleged incidents--something he refuses to do. "I'd have to make up a whole bunch of bullshit," he says. "It's kind of like the Salem witch trials. The only witches they hung were the ones that denied they were witches."

Poole is not alone in failing to make much progress in treatment. In the eight years that the Moose Lake program has been in operation, only one person has been provisionally released. There are 180 men being indefinitely detained. At least one of them believes his freedom depends on a jury trial. "[Judges] are not a neutral finder of facts, because their neck is on the chopping block too," Poole concludes. "If they let the wrong guy go, and he commits some heinous crime, the judge is going to be blamed for it."

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