Rick v. Harpstead
| Decision Date | 19 May 2022 |
| Docket Number | 19-cv-2827 (NEB/DTS) |
| Parties | Darrin Scott Rick, Petitioner, v. Jodi Harpstead, Respondent. |
| Court | U.S. District Court — District of Minnesota |
REPORT AND RECOMMENDATION
Petitioner Darrin Scott Rick has been a patient in the Minnesota Sex Offender Program since 2004, when a Minnesota state court civilly committed him as a Sexually Dangerous Person. In 2019, Rick petitioned for a federal writ of habeas corpus seeking to be released from custody and to invalidate his initial commitment based on newly discovered evidence. Rick challenges his civil commitment, arguing that research published after his commitment caused the two court-appointed examiners to recant their 2004 testimony and to state that had they known of this research at the time of Rick's trial, they would have testified he did not meet the legal standard for civil commitment.
Rick has demonstrated that the research and examiners' recantations are new and reliable evidence and that it is more likely than not that no reasonable jurist would have civilly committed Rick. He has also established the state court's substantial reliance on the court-appointed examiners' now-recanted testimony rendered his trial fundamentally unfair and Rick's commitment a miscarriage of justice. There is a reasonable probability the reliance placed on the now-recanted opinions affected the outcome of Rick's commitment trial because it is unlikely a reasonable jurist considering the new evidence would commit Rick. Therefore this Court recommends that Rick's petition for a writ of habeas corpus be granted.
The Court has previously detailed the facts and procedural history of this case and incorporates by reference its earlier summaries. Rick v. Harpstead, F.Supp.3d, No 19-cv-2827, 2021 WL 4476471 (D. Minn. Sep. 30, 2021) (accepting as modified 2d R&R, Dkt. No. 53), Dkt. No. 58.
In 1993 Rick pleaded guilty to four counts of criminal sexual conduct involving minors and was sentenced to 180 months in prison. Resp. App. 3, Dkt. No. 41. While in prison, Rick participated in a sex offender treatment program and in a faith-based therapy program, though he did not complete either. Id. at 6-7. In contemplation of Rick's scheduled release, the Minnesota Department of Corrections (MNDOC) evaluated whether to recommend Rick for civil commitment and determined it would not do so. Id. at 1-2. Instead, MNDOC planned to conditionally release Rick on an intensive-supervised basis with GPS monitoring and out-patient sex offender treatment at Project Pathfinder. Id. at 1, 10. Notwithstanding MNDOC's decision, Hennepin County petitioned to civilly commit Rick as a Sexually Dangerous Person (SDP).[1] Id. at 1.
To be civilly committed as an SDP, the state court had to find Rick (1) had engaged in a course of harmful sexual conduct, (2) had manifested a sexual, personality, or other mental disorder or dysfunction, and (3) as a result, was highly likely to engage in acts of harmful sexual conduct in the future.[2] Id. at 14, 16. As part of the commitment process, the court appointed two psychologists, Dr. Roger Sweet and Dr. Thomas Alberg, to evaluate whether Rick met the statutory criteria to be committed. Id. at 2. Both court-appointed examiners conducted in-person forensic interviews with Rick, evaluated his records, and personally visited the Project Pathfinder out-patient treatment program to determine whether it would be appropriate for Rick. Id. at 10-12. Drs. Sweet and Alberg both submitted independent written reports to the state court and testified at the 2004 commitment trial. Id. at 2.
Dr. Sweet concluded Rick had “only a moderate risk for recidivism” but met the statutory criteria for commitment as an SDP. Id. at 11. Dr. Sweet found there was a less restrictive alternative to in-patient commitment and recommended Rick follow the MNDOC intensive-supervised release plan. Id. Similarly, Dr. Alberg concluded Rick was at a low risk of reoffending but determined Rick “probably” met the statutory criteria as an SDP. Heisler Aff. 41, Dkt. No. 5. He based his conclusion, at least in part, on his understanding that:
Research has shown that people who have been in sex offender treatment programs and have failed these treatment programs or withdrawn from these programs are at a much higher risk to reoffend than people who have been untreated. Mr. Rick has been in one inpatient sex offender treatment program and he withdrew from this program. This is certainly a concern and a factor which would indicate a higher likelihood of Mr. Rick offending again in the future.
Id. Like Dr. Sweet, Dr. Alberg believed Rick did not need the intense security of the Minnesota Sex Offender Program (MSOP) to receive appropriate treatment. Id.
In support of its commitment petition, Hennepin County retained psychologist Dr. James Alsdurf. Resp. App. 13. Dr. Alsdurf's opinion was based on his review of Dr. Sweet's written report, as Dr. Alsdurf did not conduct a forensic interview with Rick. Id. In his report, Dr. Alsdurf noted Rick had not completed treatment and opined that Rick had a high likelihood of reoffending. Id. Thus, Dr. Alsdurf testified, Rick met the criteria for commitment as an SDP. Id. Unlike the two court-appointed examiners, however, Dr. Alsdurf felt the only appropriate treatment for Rick was inpatient treatment at MSOP. Id.
Penny Zwecker, MNDOC's Civil Commitment Review Coordinator, also testified at Rick's 2004 commitment hearing. Id. at 10. She stated that while she had some concerns, she did not believe Rick met the statutory criteria to be civilly committed. Id. at 10; State Tr. 324-25, Dkt. No. 43. She noted the “political climate” at the time favored civil commitment. Id. The state court found that Zwecker was experienced, professional, and thoughtful, that she had a very difficult job, and that her experience and demeanor led the court to give her opinion great weight. Resp. App. 10.
The state court also heard testimony from Rick, his current and former therapists, his mother and stepfather, his pastor, and three other witnesses. Id. at 2. Based on the trial testimony and the three experts' opinions, the state court found Rick was at a moderate risk of reoffending, noting specifically that Rick “started but did not complete sex offender treatment program while incarcerated.” Id. at 17. The court concluded his “moderate risk of recidivism combined with not completing sex offender treatment . . . proved by clear and convincing evidence that there is a likelihood of [Rick] reoffending,” and cited the SDP statutory language that a person be “likely to engage in acts of harmful sexual conduct.” See Minn. Stat. § 253B.02, subd. 18c (2002) (). The court did not reference or cite In re Linehan, in which the Minnesota Supreme Court specifically held that, despite the statute's use of “likely,” the state and federal constitutions require that a person be “highly likely” to engage in acts of harmful sexual conduct in order to be civilly committed. In re Linehan, 557 N.W.2d 171, 180 (Minn. 1996), vacated and remanded, 522 U.S. 1011 (1997), aff'd as modified, 594 N.W.2d 867 (Minn. 1999).
When someone is committed as an SDP, “the court shall commit the [person] to a secure treatment facility unless the [person] establishes by clear and convincing evidence that a less restrictive treatment program is available that is consistent with the [person's] treatment needs and the requirements of public safety.” Minn. Stat. §§ 253B.18, subd. 1, 253B.185, subd. 1 (2002) (). The state court determined MNDOC's conditional release plan was a less restrictive alternative to treatment at MSOP. Id. at 18. The court stayed Rick's commitment to MSOP so long as Rick complied with his conditional release terms. Id. at 14. Hennepin County appealed the stay. Id. at 54-55. In an Order Opinion, the Minnesota Court of Appeals reversed, reasoning that Hennepin County had not agreed to a stay as required by statute and that the record did not establish the outpatient treatment program had accepted Rick. In re Rick, No. A04-1475 (Minn.App. Jan. 25, 2005) (order op.). The Minnesota Court of Appeals remanded the matter to the trial court to determine the availability and appropriateness of the outpatient treatment program. Id.
On remand, the trial court held a hearing to determine whether a less-restrictive treatment program was available to Rick. Resp. App. 57. At the hearing, several witnesses testified including Hennepin County's retained expert Dr. Alsdurf and the court-appointed examiners Drs. Sweet and Alberg. Id. at 63-64. Dr. Sweet again testified he believed Rick could be adequately treated in an outpatient program and did not need to be at MSOP. Id. at 63. The court again found Dr. Sweet to be highly credible. Id. Like Dr. Sweet, Dr. Alberg continued to believe Rick did not need to be committed to MSOP. Id. at 63-64. Unlike the two court-appointed examiners, Dr. Alsdurf believed Rick should obtain treatment at MSOP. Id. at 63. Even so, Dr. Alsdurf stated that if Rick “had completed his sex offender treatment program [while incarcerated, he] most likely would not be before the court on this commitment proceeding.” Id. at 63. The court found Dr. Alsdurf's observation “accurate.” Id.
Based on the testimony of the experts and four other witnesses, the state court found Project Pathfinder “is not willing to accept [Rick] for treatment because of social and political pressure.” Id. It also found an outpatient sex offender treatment...
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