Rick v. Harpstead
| Decision Date | 13 August 2021 |
| Docket Number | 19-cv-2827 (NEB/DTS) |
| Parties | Darrin Scott Rick, Petitioner, v. Jodi Harpstead, Commissioner, Minnesota Department of Human Services, Respondent. |
| Court | U.S. District Court — District of Minnesota |
ORDER & REPORT AND RECOMMENDATION
Petitioner Darrin Rick has been a patient in the Minnesota Sex Offender Program since he was committed as a sexually dangerous person in 2004. In his habeas petition Rick collaterally attacks his civil commitment, arguing that research published after his commitment demonstrates the scientific unreliability of the evidence that caused his commitment. This new evidence, not discoverable at the time of his commitment hearing, has in turn led the two court-appointed experts to recant their hearing testimony and to opine that Rick did not meet the standard for commitment in 2004. He alleges that the state court's substantial reliance on faulty scientific evidence and the recanted expert testimony renders his hearing fundamentally unfair and his commitment a miscarriage of justice. Because no state process exists for Rick to raise this due process claim, he requests an evidentiary hearing here to develop the record.
Hennepin County[1] moves to dismiss Rick's petition on several procedural grounds, including timeliness, exhaustion and procedural default, and because “his petition lacks legal merit, ” Dkt. No. 40 at 2, which this Court construes to mean that it fails to state a claim on which relief can be granted. For the reasons below, the Court recommends that the motion to dismiss be denied and grants Rick's request for an evidentiary hearing.
Following a bench trial in 2004, a Minnesota court found Rick was a sexually dangerous person and civilly committed him to the Minnesota Sex Offender Program (MSOP). Over the ensuing fifteen years, Rick pursued several avenues for post-commitment relief, including direct appeal, state habeas corpus, and administrative review, none of which succeeded. Then, in 2019, a psychologist evaluated Rick, reviewed his commitment case, and determined that data used to commit Rick was no longer considered scientifically reliable. The psychologist's report was shared with the two court-appointed expert psychologists who had testified at Rick's commitment hearing in support of commitment. These court-appointed experts have now recanted their testimony and opined that Rick in fact did not meet the statutory criteria for commitment in 2004. With no state process to present that new evidence or raise his constitutional claims, Rick filed this petition for habeas relief.
In 1993, Rick pleaded guilty to four counts of criminal sexual conduct, each charge involving a minor victim. Dkt. No. 41 at 4 ¶¶ 10-13. He was sentenced to a 180-month term of imprisonment, which he served until his release in January 2004. Id. While in prison, Rick participated in both sex offender treatment and faith-based therapy programs though he eventually withdrew from both. Id. at 7-8 ¶¶ 19-20. Before Rick's scheduled release from prison, the Minnesota Department of Corrections (MNDOC) assessed Rick's recidivism risk and analyzed the appropriateness of recommending Rick for civil commitment. Id. at 2-3 ¶ 3. It declined to recommend Rick for commitment instead recommending supervised release with conditions that included that Rick complete sex offender treatment in the community. Id. Notwithstanding MNDOC's assessment, Hennepin County initiated civil commitment proceedings against Rick in December 2003 before his scheduled release. Id. at 2.
As part of the commitment process, three psychologists evaluated Rick-either in person or through a records review. During the commitment hearing, the trial court heard testimony from over a dozen witnesses, including the three psychologists, who also submitted written reports. Id. at 3. Both court-appointed psychologists, Dr. Roger Sweet and Dr. Thomas Alberg, concluded Rick met Minnesota's statutory definition for a Sexually Dangerous Person (SDP) but not for a Sexual Psychopathic Personality (SPP). See, e.g., id. at 11-13. Under Minnesota law, an SDP is one who:
Minn. Stat. § 253B.02, subd. 18c (2004) (). They also found that less restrictive alternatives to MSOP's high-security facilities would sufficiently treat Rick. Dkt. No. 41 at 12-13.
Hennepin County's retained expert, psychologist Dr. James Alsdurf, agreed that Rick qualified as an SDP and not as an SPP. Id. at 14. Dr. Alsdurf disagreed with the court-appointed psychologists, asserting the only appropriate treatment for Rick was at MSOP. Id.
In determining that Rick met the SDP criteria, each expert used psychological actuarial assessments to evaluate whether Rick was highly likely to engage in future acts of harmful sexual conduct. Those assessments evaluated certain criteria to calculate a score corresponding to a low, medium, or high risk of recidivism, which in turn correlated with a statistical recidivism risk percentage over a specific period. To illustrate, one psychologist determined Rick scored a “3” on the Static-99 test. That result signified that Rick was a low to medium risk, which predicted that Rick had a 12% chance of recidivism in five years, 14% in ten years, and 19% in fifteen years. Dkt. No. 43 at 90-91. Beyond the actuarial assessments, the experts also considered factors specific to Rick, such as his treatment history, historical victim profile, his sexual history, and his diagnoses. Even though Rick's scores generally put Rick in the low to moderate risk category, considering his risk along with these other factors[3] convinced the court-appointed experts that Rick met or, in the case of Dr. Alberg, “probably” met, the criteria for commitment as an SDP. See, e.g., Dkt. No. 43-2 at 95.
Based on the evidence at the hearing, Judge Kevin Burke found Rick met the criteria for commitment as an SDP. He committed Rick to MSOP but stayed commitment on condition that Rick comply with the terms of his conditional release and successfully complete a designated outpatient sex offender treatment program. Dkt. No. 41 at 15. Hennepin County appealed, and the Minnesota Court of Appeals reversed the stay of commitment, both because the County had not agreed to the stay, as required by state statute, and because the record did not establish that Rick had been accepted into the proposed outpatient program. Id. at 55-56.
Following the Minnesota Court of Appeals' decision, the trial court held an indeterminate commitment hearing, where it found there was no change in Rick's diagnosis but received more evidence about available less restrictive treatment alternatives. Id. at 58. Although the outpatient program the trial court had originally identified (Project Pathfinder) would no longer accept Rick “because of social and political pressure, ” id., the outpatient sex offender treatment program at the University of Minnesota Program in Human Sexuality agreed to accept him, id. at 59-61. Dakota County, however, would not approve of Rick living with his parents in Hastings, Minnesota immediately following his release, and instead required he live in a halfway house for at least ninety days. Id. at 62-63. Rick's parents testified that they would be willing to personally fund the costs-even if exceeding $100, 000-of Rick's private treatment, housing, GPS monitoring, or other expenses if the DOC would not provide that funding. Dkt. No. 41 at 10 ¶ 27; Dkt. No. 43 at 174-77, 180-81. Unfortunately, MNDOC had approved for Rick to stay only sixty days at the halfway house, and the halfway house would not accept Rick as a “private pay” client for the thirty days not approved by MNDOC. Id. at 63-64. The trial court therefore concluded Rick had not shown that the proposed less-restrictive plan was “presently available” and committed him to MSOP indefinitely. Id. at 65. As Rick's habeas counsel has aptly observed, Rick “came within an eyelash of being treated in the community.” Dkt. No. 6 at 22.
Rick appealed his indeterminate commitment, arguing that there was insufficient evidence to establish he was highly likely to reoffend and therefore did not meet the commitment criteria, and that he had proven by clear and convincing evidence that a less restrictive alternative program was available. Dkt. No. 41 at 67-92. The Minnesota Court of Appeals rejected both arguments and affirmed the commitment order. Id. at 127-29. The Minnesota Supreme Court denied further review. Id. at 130.
In 2019, Rick's counsel consulted Amy Phenix, Ph.D., a forensic psychologist. Dkt. No. 4 ¶ 4; Dkt. No. 5 Ex. 8. After reviewing records and interviewing Rick, Dr. Phenix issued a forensic report in April 2019. Dkt. No. 5 Ex. 7. In her report Dr. Phenix found that while the actuarial risk assessment tools used at the time of Rick's commitment “were appropriate for that period in time, ” subsequent research has shown those tests vastly overestimated the general probability of sex offender recidivism. The studies from which the actuarial assessments were taken consisted of samples of incarcerated sex offenders released from MNDOC custody in 1988, 1990, and 1992. Id. at 79. At that time, offenders were released with no structured, external controls on sexual behavior and no supports for pro-social behavior. These studies predicted a base rate recidivism of 23%. Low-risk offenders had...
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