The M.H.L. Article 10 Trial: The Experts

In our last blog entry, we discussed jury selection as it relates to the trial of a matter brought pursuant to article 10 of the New York State Mental Hygiene Law. This entry will focus on the nature of the evidence in an M.H.L. 10 trial and more specifically, the experts who are called to testify regarding the issue to be decided by the jury (or the judge if the respondent decides to waive his right to a jury trial).

Mental Hygiene Law Article 10 cases are always brought after a criminal defendant has served his sentence. Based upon the analysis of somebody in the office of the New York State Attorney General, certain defendants are chosen for civil commitment proceedings pursuant to Article 10.

As mentioned in our last entry, the jury must decide whether or not the respondent being charged suffers from a mental abnormality that made it likely that he would be unable to resist the compulsion to commit further sex offenses. This issue is decided by the jury based upon the opinions of the experts called by the attorneys for the petitioner and the respondent.

It is known buy all in the field that an M.H.L. 10 trial is a battle very heavily stacked against the respondent. Nobody likes sex offenders. While people facing regular criminal charges in a regular criminal case are accorded a theoretical presumption of innocence that surrounds him until the prosecutor has proven the defendant's guilt beyond a reasonable doubt, there is no such right in a Mental Hygiene law Article 10 proceeding. Rather, the case deals with a convicted felon who generally has been previously found guilty of a horrendous sex offense. Even though the prosecution (called a petitioner in an M.H.L. 10 case) has the burden of proving the case against the respondent by clear and convincing evidence, it is a walk in the park for the prosecution.

As we said NOBODY likes sex offenders, especially convicted sex offenders. In the back of the minds of each of the jurors(maybe even in the front of their minds) is the thought that if they do not find for the petitioner that there will be one more horrible sex offender out on the street, not a very comforting thought, especially for those of us who have wives, daughters, girl friends or little boys indeed!

Sometimes, the respondent does suffer from a mental abnormality that made it likely that he would be unable to resist the compulsion to commit further sex offenses. IN those cases, the prosecution has a very easy time indeed. Al their experts have to do is to tell the truth and no matter how expert the defense lawyer or inept the prosecutor, the respondent will be found to suffer from a mental abnormality that made it likely that he would be unable to resist the compulsion to commit further sex offenses. In these cases, it is the job of the respondent's expert to poke such holes as exist in the case of the petitioner to try and free the respondent. The effort is rarely successful.

If the respondent does not suffer from a mental abnormality that made it likely that he would be unable to resist the compulsion to commit further sex offenses, then the prosecution experts help to convict the respondent by feeding on the fears of the citizens that if they let the respondent loose they will be exposing the public to a horrible sex offender who is going to rape and sodomize every person they meet until they are caught and re-incarcerated. In cases such as this, the petitioner's experts rely on fear and voodoo science. In these cases, the respondent's expert clearly and concisely explains why the petitioner is wrong.

In any case, the respondent frequently has to deal not only with a true-believing prosecutor who views himself as being on a mission to save the world from a vicious sexually violent predator who is just waiting to get out of jail so that he can inflict pain and perdition on the world. And many of the judges are no better. While some judges will give a fair trial to all that appear before them, the truth is that a large percentage of the judges sitting on criminal cases are former prosecutors who refuse to forget that they are no longer employed by the office of the local district attorney. Sadly for the implementation of justice, such judges frequently view their mission in life as to help the prosecution convict as many people as possible.

In conclusion, trying Mental Hygiene Law Article 10 cases is difficult work indeed.