The MSOP...

The MSOP...

Monday, November 5, 2012

Defense Resources

This Post is for the Minnesota attorneys tasked with defending these difficult cases. It is also for anyone who is interested in "Respondents" in these sex offender commitment cases in Minnesota receiving their constitutionally-required right to adequate, effective assistance of counsel in these cases wherein the consequences for losing is a life/death sentence of daily mental anguish and abuse at the hands of the State. Read MSOP Whistleblower testimony:

The conditions of confinement are much worse at the MSOPrison than regular prison (I should know: I have been firced to live in all of these state cages) and the punishment is exponentially worse. In prison the guilty are there for crimes they committed and they have a release date. At MSOP men are locked up in worse conditions than prison due to the fear the state has the offender may be dangerous and might reoffend. For the offenders in MSOP who know they would not reoffend if released, the life sentence constitutes cruel and unusual punishment. 

Any attorney, evaluator, concerned resident, loved one or MSOP "client" can obtain SVP defense assistance/consultation by contacting me here:


Always argue on appeal: SDP ACT/LAW/COMMITMENT:

A) Due Process Violations--Procedural & Substantive:
     1) Right to Trial By Jury...MN & US Constitution (;
     2) Ex Post Facto
     3) Double Jeopardy
     4) MSOP Use of Prohibited DHS 1035 Progress Notes on Judicial Hold Order Status
     5) MSOP Use of Prohibited Medical Progress Notes on Judicial Hold Order Status
     6) MSOP Use of Prohibited Nursing Flow Charts on Judicial Hold Order Status
     7) DOC Referral Process...DOC Referred Low, Moderate and High Risk and CC same
     8) Pre-Petition Process: No attorney--no ability to defend; No interview offered in many cases; No ability to select unbiased, neutral evaluator prior to State-Retained "Expert" saying commit despite not qualifying as a commitment case; No ability to rebut selective inculpatory, prejudicial "evidence" sent to state paid and controlled puppet, er doctor; No ability to present exculpatory, mitigating and/or rebuttal evidence to state's commitment "case", brought to state paid doctor by the state; No statutory mechanisms/safeguards to prevent the obvious, rampant abuse of this unconstitutional railroading of any alleged sex offender the state wants to incapacitate via Involuntary Civil Commitment.
     9) Void for vagueness
    10) Equal Protection

These friendly suggestions are just off the top of my head. If I focus on this one issue for a couple of hours, I could flesh these arguments out considerably and apply similar analysis in the Hearing (Bench Trial), SRB, SCAP, Rule 60, Habeas, and/or other contexts. 

One of the many reasons MN is leading the US SVP Civil Commitments in total population and per capita population is that the defense for the Respondents in these cases is often inadequate. There is not nearly enough training for these attorneys in this very highly specialized area of law. The resources of these solo practitioners is extremely limited in most instances, especially when compared to the limitless resources of the state.

The attorneys have also as a Group, appeared to not be interested in utilizing available and offered resources that would assist exponentially in defending these cases. This is true of most Minnesota SDP/SPP counsel in the State that I have spoken with SOCDA, with the exception of Michael C. Hager and Brian Southwell of the Hennepin County Commitment Defense Project, and Attorney Adam Dowd. These three attorneys are at least trying.

The sad truth is that despite the vigorous, zealous advocacy by a few attorneys in this area in Minnesota, there has been little interest in defending these cases. That is not the case in the other 19 states which also have these laws. The difference in defense in every state but MN with these SVP statutes is dramatic. For example, in Washington State and California these cases are defended like Capital Cases, with 3 weeks of jury trial, not 2-day "hearings".

I have specifically offered some of the MN attorneys (including Rochester/Olmsted County attorneys Tedman Heim and Jacob Allen the HUGE DEFENSE RESOURCE of the Sex Offender Commitment Defense Association (SOCDA), which has been met with egos, ignorance and apathy. In fact, when I offered this extremely valuable defense resource, their secretary informed me that these two "defense" attorneys do not want to have access to this SVP DEFENSE GOLDMINE. That makes me wonder who is making sure these lawyers get these SDP/SPP cases? It seems clear to me WHY they are getting them, and it is not for the Respondents' benefit. These guys won't check their ego at the office door for clients.

These MN [SVP] "defense" attorneys have let their egos trump their clients and their oaths. I tried to establish a MN-based SOCDA, but the attorneys wouldn't lower themselves to accept my invitation. It seems that the clients are going to have to demand that their attorneys man up. When there is email in MSOPrison, as in regular prison that will be easy.

In addition to the obvious cash cow that the boom in business has brought Allen & Heim, here is the predictable result of this hubris and incompetence from the attorneys being paid to defend these SVP Petitions raining out of Olmsted County according to Paul Demko: An SVP Constitutional Crisis in Olmsted County:

Olmsted County shows difficulties
But even the initial piece of the puzzle — creating less restrictive alternatives to civil commitment — is likely to prove vexing. Olmsted County currently has 35 individuals enrolled in the MSOP; only Ramsey and Hennepin counties have more civilly committed sex offenders. Another dozen potential detainees are currently under review. “Olmsted County, for whatever reason — and I can’t figure it out, honestly — has a huge number of referrals that are made to us all the time,” said Olmsted County Attorney Mark Ostrem, who is serving on the civil commitment task force. “It just seems like an inordinate amount, given our population.” Even before the court ordered action, Olmsted County officials had sought to find alternative settings for potentially dangerous individuals. But they’ve determined that no existing facility provides adequate public safety.
“Social workers can’t supervise ingrained criminal sex offenders,” Ostrem noted. “It takes a different level of supervision, and we don’t have those people in place right now.”
That leaves Olmsted County, and other jurisdictions across the state, with a high-stakes choice: Seek indefinite detention — heretofore a de facto life sentence — or release the individual to the streets. Not surprisingly, prosecutors have typically erred on the side of caution.
Olmsted County is also wrestling with another thorny situation presented by the MSOP: individuals enrolled in the program who have no adult criminal convictions. As detailed in Capitol Report in a lengthy investigative report in October, there are more than 50 such individuals currently detained in the program. In recent years, the United States Supreme Court has issued a series of rulings indicating that juvenile offenders must be treated differently from their adult counterparts, in part because they are still developing emotionally and mentally. Earlier this year, it prohibited mandatory life sentences for juveniles. Given the MSOP’s lack of success at rehabilitating and releasing clients, enrolling individuals with only juvenile offenses would seem to raise more constitutional concerns.
Olmsted County currently has two juvenile offenders who recently turned 19 and have been referred for possible civil commitment. Ostrem characterizes the two individuals as among the most potentially dangerous that he’s ever handled, with length histories of egregious offenses. But he also recognizes that, owing to changes in brain chemistry and emotional development, those juvenile offenses might not necessarily be predictive of adult criminality.
“We don’t know what they’re capable of,” Ostrem said. “Their history suggests that they’re extraordinarily dangerous. But at the same time, the idea of sending somebody to MSOP when they’re a teen, conceivably for the rest of their life, is not at all appetizing.”
How to handle juvenile offenders who are candidates for civil commitment will likely be a topic for future consideration by the civil commitment task force. It’s just one difficult aspect of a program that’s been allowed to fester for years as legislators avoided recognizing the need to make changes.
“There’s been a breakdown in the way in which people are evaluated for commitment and in the way that they are evaluated to get out of commitment,” Janus said. “The juvenile offenders are just one group, and it’s a particularly egregious group.”

Read more:

It is not difficult to see why the odds are so overwhelmingly stacked up against these "Respondents"/Defendants when even their defense attorneys have no interest in best practices, most current literature, and/or accessing the Think Tank of all the attorneys who practice in this area in the other 19 states. Every other state that does these SVP commitments has strong represenation on SOCDA, with MN being the clear exception.

Respondents have the right to effective assistance of counsel in SVP Proceedings:

My view is that the attorneys being allowed (selected by the state/county trying to commit(Conflict of interest)) to handle these life sentences need to get on board with the concept of zealous defense and utilizing resources or they need to resign and let other attorneys who are interested in vigorously defending these cases and using offered and available resources step in and take over [SVP] Defense in this State. I could establish a National SOCDA Panel to train the attorneys properly and the state evaluators that are on the "Court Appointed" List/Panel. The State Courts need to start allowing outstate evaluators in. That will make their job much easier and give them the political cover they need.

All of the attorneys in this state who handle these complex cases need more resources, as stated. If the State was really serious about making any real effort to level the adversarial playing field, they could begin with providing help with staffing resources these attorneys need and don't have. The State could provide one paid, full-time salaried position for me (or someone else who is QUALIFIED) as Legal Assistant/Paralegal Support Staff, specifically for Consultation and Resources for all of the attorneys in this state doing SDP/SPP. I have unique knowledge relating to these cases, and I would be an invaluable asset for any client of SDP/SPP counsel in Minnesota. Remember I was a Respondent myself for two years thinking my way out of being Burned at the Stake:

Here is my business website which relates to this area of my expertise:

There have been several recent important state appellate decisions of late worth reporting on and I will do that as I have time. Look at In re Lingl, from MN Ct App Oct 22, 2012. Reversal on "Course"/SDP. Kudos and great job by Ryan Magnus and his support staff!

Also Lonergan, Hogy, and Kunshier are informative re Rule 60.02 Motions & Adequacy of Treatment  Arguments. Speaking of Adequacy of Treatment, here is a must read:

Send me an email at: if you want an invite to Minnesota & National SOCDA listserve(s), and/or my new MSOP/MN SO CC Task Force Listserve. Thanks In Advance (TIA)


Much more to come here...

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