cc DPA Jeffrey Albert
DPD Gary Oakes
DAG Melissa Lewis
Dr. Gary Farkas
Dr. James Greene
Dr. Jarrett Ko
Hawaii State Hospital
IN THE CIRCUIT COURT OF THE FIRST CIRCUIT
STATE OF HAWAII
STATE OF HAWAII ) CR. NO. 50583
)
v. ) COUNT I:
) ATTEMPTED RAPE, FIRST DEGREE
WARREN DAVID MILLER, ) COUNT III:
) ATTEMPTED MURDER
Defendant. ) COUNT V:
) ATTEMPTED SODOMY, FIRST DEGREE
) COUNT VII:
) KIDNAPPING
) COUNTS IX, XI, XIII, XV:
) SEXUAL ABUSE, FIRST DEGREE
)
) FINDINGS OF FACT, CONCLUSIONS
) OF LAW, AND ORDER DENYING
) APPLICATION FOR
) CONDITIONAL RELEASE
)
FINDINGS OF FACT, CONCLUSIONS OF LAW,
AND ORDER DENYING
APPLICATION FOR CONDITIONAL RELEASE
Warren David Miller's [Applicant] Application for Conditional Release came on for hearing on November 9 and 10, 1998, December 3, 1998, February 17 and 19, 1999, June 7, 1999, and November 15, 1999, before the Honorable Frances Q. F. Wong, the State of Hawaii being represented by Deputy Prosecuting Attorney Jeffrey Albert and Defendant being present and represented by Deputy Public Defender Gary Oakes. The Court having received evidence, heard argument of counsel, taken judicial notice of the legal record of the case file number noted above as well as FC-CR 93-1657, FC-CR 93-1658, FC-CR 94-0012, FC-CR 94-0013, FC-S 90-1856, and FC-S 94-3444, and being fully advised in the premises, makes the following findings of fact and conclusions of law.
FINDINGS OF FACT
BACKGROUND
1. On July 10, 1978, Applicant was acquitted of the charges noted above on the ground of mental disease or disorder excluding responsibility. Applicant was committed to the custody of the Director of Health to be "held in maximum security and [to] be kept under custodial supervision because of his high degree of dangerousness, as well as being treated for his psychiatric condition." Judgment of Acquittal and Commitment, filed July 10, 1979 at 2 in case CR 50583, Vol. 3 at 229.
2. Applicant's charges arose from an incident occurring on August 9, 1977. This incident was described by the Supreme Court in its opinion affirming co-defendant's conviction on related charges. (1)
3. Applicant has petitioned the court for conditional release on many occasions. Applicant has been denied each time. The last application was made before Judge Spencer in 1992. Judge Spencer denied the application but gave the State Hospital discretion to give Applicant unescorted passes up to 48 hours. [Am. to Findings of Fact, Concl. of Law, and Order Den. Def.'s Mot. for Conditional Release, filed November 16, 1992 (hereinafter Judge Spencer's Order) at 2; Warren Miller 1998 Conditional Release Hearing Volume I, State's Exhibit 92, (hereinafter Ex. 92), at 177.]
4. In arriving at these findings, the court considered the most current psychiatric and psychological evaluations and assessments (as contained in written documents filed herein and oral testimony), read thoroughly all the previous mental health evaluations included in the legal record from the inception of the case, read transcripts of previous hearings containing testimony of various experts, and has reviewed all of the exhibits received in this latest contested hearing.(2) In addition, the court also took into account the facts of the underlying offense, the documented behaviors of the Applicant throughout his hospitalization (with special emphasis on the time between Judge Spencer's 1992 Order and the present), and the mental health and substance abuse treatment which Applicant has actually received. In truth, the court also looked at all of the suggested terms and conditions of release to ascertain, regardless of the court's ultimate findings regarding Applicant's mental illness and dangerousness, whether a safe intermediate plan of release could be fashioned.
MENTAL ILLNESS
5. The Applicant has failed to meet his burden to prove, by a preponderance of the evidence, that he is no longer mentally ill.
6. During this contested hearing (indeed, throughout the history of this case), there have been many disputes among the mental health professionals over the "ultimate issue" of whether or not Applicant is mentally ill. The most relevant and useful evaluations and opinions to the court's legal determinations have come from the experts who took the time to carefully review all previous documentation of Applicant's treatment and behaviors, who acknowledged and took seriously Applicant's crimes and infractions, who did not start and stop with Applicant's self reporting, and who had wide forensic experience.
7. In this most recent contested hearing, the court carefully considered the written reports and testimony of all the experts in context of all previous reports and findings of other judges. Because the court finds that Applicant has not been offered nor has he accepted certain necessary treatment for his mental illness (discussed below) and because the present three panel evaluators describe the Applicant's condition not unlike the status quo predating the previous judges' finding of mental illness, the court puts very little weight on the opinion that, at this time, Applicant's mental illness is either non-existent or only based on repeated criminal acts.
8. Based on the record, it is clear that Judge Spencer's succinct finding ". . . that Warren Miller currently suffers from a mental disease, disorder or defect of sexual sadism and antisocial personality" is still the case today. (Judge Spencer's Order at 2; Ex. 92, at 177.)
9. The court's finding that Applicant continues to suffer from mental illness is not based solely on the circumstances of the original crime, nor is it based solely on repeated criminal acts. Rather, the court's finding is based on the entire record with close attention paid to Applicant's behaviors and the lack of necessary and appropriate treatment since Judge Spencer's decision and order in 1992.
10. Some of the mental health professionals, including Drs. Stein and Cunningham, have been understandably frustrated since, in their estimation, Applicant did not suffer from a cognizable mental illness at the time of the offense. For instance, Dr. Stein opined that Applicant had been suffering from substance abuse psychosis but he also believed that Applicant exhibited a considerable degree of malingering and that, after Applicant's acquittal, no trace of psychosis was ever exhibited again.(3) The court respects these opinions and sympathize with the friction that can arise when the criminal justice system and the mental health system must intersect, particularly since each system has its own evolving concepts and newly developing knowledge. However, the Supreme Court in State v. Miller, 84 Hawai'i 269, 278, 933 P.2d 606, 615 (1997) plainly stated that "[t]he legal definition of the term 'mentally ill,' . . . is not necessarily the same as its definition in psychiatry or psychology."
11. Dr. Harold Hall, in his evaluation of August 17, 1981, recommended ". . . continued full-time hospitalization. Rather than attempt to change this individual's basic personality structure, which is extremely difficult in any event and especially so for antisocial personalities, therapy ought to be directed at two areas. These are: (1) violence triggers (e.g., alcohol, drugs, attacks on self-esteem) and (2) for the elimination of pain cues as reinforcers to violence for the subject."(4) (Ex. 92 at 95.) While the State Hospital has offered the Applicant treatment regarding some of the "violence triggers", the record does not indicate any meaningful work on the "elimination of pain cues". In the past seven years, when sex offender treatment was offered by the State Hospital to the Applicant, he declined it. When he had "accepted" such treatment in the past, Applicant did not meaningfully participate (see Ex. 92 at 142 for a description of Applicant's lack of participation with a certified sex therapist.)(5)
12. The two areas of necessary and appropriate treatment identified by Dr. Hall are adopted by this court.(6) Unless Applicant is able to show that meaningful treatment occurred in these areas, the court is unable to find that he is no longer mentally ill. At this time, based on the record to date, the court finds that Applicant has made strides in dealing with his abuse of alcohol and assorted drugs. He has made some progress regarding the strength of his self-esteem. He has made no significant progress with respect to elimination of pain cues as reinforcers to his violent behaviors.
13. The two areas of treatment constitute part of an important framework of factors to consider in determining the alleviation, if any, of Applicant's mental illness and the degree of Applicant's continuing dangerousness, if any. A framework regarding dangerousness is discussed below. There appears to be a perception among some of the experts who have been involved with this case that Applicant is being held merely because of the heinous nature of his actions. Consistent application of the factors discussed in this Order could alleviate that perception. More importantly, consistent application of these factors may also assist the parties to eventually fashion a plan for release consistent with public safety.
DANGEROUSNESS
14. The Applicant has failed to meet his burden to prove, by a preponderance of the evidence, that he is no longer dangerous.
15. In 1992, Judge Spencer found that Applicant "would pose a mild danger to others in the community" under a conditional release. (Judge Spencer's Order at 3; Ex. 92 at 178.) Even if there were no change in circumstances, absent necessary and appropriate treatment, this court could find that Applicant is dangerous at least at that same 1992 "mild" level. However, given the intervening events noted below, the court finds that Applicant remains highly dangerous to others.
16. The State offered the expert testimony of Dr. Robert Hare and Dr. Eric Speth regarding Applicant's possible diagnosis of "psychopathy" and his level of dangerousness. Because of the history of this case and because of the differences in the legal scheme between this State and Canada, the court does not find their testimony regarding Applicant's mental illness to be relevant. However, after hearing their testimony and reading the various exhibits regarding this subject, the court finds their opinions regarding Applicant's dangerousness to be highly relevant and instructive. Dr. Hare's testimony was instructive as background.
17. Dr. Speth's testimony was specifically relevant to Applicant. Although Applicant refused to be interviewed by Dr. Speth, Dr. Speth was able to review all of the documents included in State's Exhibits 92, 93, and 94, and 10 volumes of hospital records at the State Hospital. Dr. Speth's testimony was credible despite his inability to interview Applicant. He based his opinion on the "Hare Psychopathy Checklist-Revised" (PCL-R) which the court finds is sufficiently validated and reliable to be considered in this proceeding. Dr. Speth refrained from making any assessment regarding "glibness, superficial charm" and "shallow affect" because this would have required a face-to-face interview. He also did not consider "early behavior problems" because he did not feel there was enough information in the materials. He was able to rate Applicant on all of the rest of the measures, i.e., grandiose sense of self-worth, proneness to boredom, pathological lying, manipulative, lack of remorse, lack of empathy/callousness, parasitic lifestyle, poor behavioral controls, promiscuous sexual behavior, lack of realistic/long-term goals, impulsivity, irresponsibility, failure to accept responsibility for own actions, many short-term "marital" relationships, juvenile delinquency, behavior which would lead to revocation of conditional release, and criminal versatility. This analysis lead Dr. Speth to his opinion that Applicant remains highly dangerous.
18. The court is presenting and adopting Dr. Speth's testimony in a "layperson" narrative fashion in order to avoid any misapprehension that the court's finding regarding Applicant's dangerousness is merely based on the fancy measures and figures from "outside" experts. A close reading of the exhibits regarding the PCL-R and its empirical underpinnings will underscore its usefulness in dangerousness determinations. Moreover, a close review of the entire record will show that Dr. Speth's testimony presents, in a coherent and systematic fashion, what many other mental health professionals have offered in bits and pieces.
19. Similarly, Dr. Farkas has also compiled a list of factors to determine Applicant's level of dangerousness as well as his readiness for release into the community. These factors were listed during his testimony before Judge Spencer on October 16, 1992. Dr. Farkas' list is paraphrased by the court as follows: (1) does Applicant exhibit a longstanding remission of symptoms that does not break down under stress; (2) does Applicant get along with others/does he accept program structure; (3) is substance abuse identified as a problem; (4) has Applicant exhibited motivation for treatment; (5) is medication necessary; (6) does Applicant have insight, self-awareness regarding his needs and motivation; (7) does Applicant have an understanding of the signs of his illness; (8) does Applicant recognize environmental causes of stress and does he show competence in handling stress; (9) does Applicant show appropriate concern about his illness or does he minimize the possibility of future dangerousness; (10) does Applicant have support in the community; (11) does Applicant accept the link between his behavior and his criminality; (12) does Applicant accept responsibility for his crime; (13) does Applicant show true interest in continued treatment or is his involvement merely a way to get out of the hospital; (14) are out-patient plans achievable; (15) can Applicant adjust to rules and is he likely to do so as an out-patient. (Tr. of Proceedings before Judge Spencer, October 16, 1992 at 42-45.)
20. In order for there to be some forward movement toward possible future release of Applicant consistent with public safety, there must be consistent factors which guide both mental health experts and the court. It is reasonable to employ the two checklists noted above and the treatment requirements noted in paragraph 11 as factors to measure Applicant's present and future dangerousness, his readiness for release, and to determine appropriate conditions for his release.(7)
21. Since Judge Spencer's denial of his application for conditional release, Applicant continues to exhibit both small and large infractions. Of particular concern are: his continuing ability to manipulate the service providers surrounding him,(8) his transaction involving a handgun, his access to keys to the State Hospital, his violence towards his then spouse, and his sexual abuse of his daughters. After analyzing the record in light of the factors noted above, it is clear that the Applicant remains highly dangerous.
22. One of the most serious items in the preceding paragraph is the sexual abuse of his daughters. This finding is based on the court's review of the record and evidence in this case and the court's careful review of the two Family Court civil case files. This finding is not based on the fact that Applicant had agreed to Family Court jurisdiction in both cases since he had specifically denied the allegations in the Petitions. This finding is not based on the Family Court criminal case because the court was unable to obtain written transcripts of the trial despite attempting to for over a year (indeed, this was one of the causes of the delay in this case).(9) Nevertheless, what was available to the court is sufficient to support a finding, based on a preponderance of the evidence, that Applicant sexually abused both children in mid-1994 during unescorted leave from the State Hospital.(10)
23. The court is deeply troubled by some of the mental health professionals who appear to completely discount the sex abuse of the older daughter because that criminal trial ended in an acquittal. These same professionals surely did not require all other "facts" to be proven beyond a reasonable doubt before they acted on them or used them as a basis for their professional opinions. Further, a failure to require sex abuse treatment because of the acquittal seems curious at best, particularly since some of these same experts accept applicant's various self-reports despite his history of malingering. In contrast to the State Hospital, the Department of Human Services (DHS), despite the acquittal, confirmed that the abuse occurred and recommended treatment service plans accordingly. (Department of Human Services, Service Plan and Agreement, dated May 25, 1995 in case FC-S 94-3444, Vol. 1 of 2, at 204-05.)(11)
24. In light of Applicant's continuing behavior and lack of necessary and appropriate treatment, it remains highly dangerous for the Applicant to be in the community and it is highly dangerous for Applicant to be allowed any form of unescorted passes off the grounds of the State Hospital.
RECORDS AND EXAMINERS
25. These proceedings were delayed, in part, due to Applicant's initial reluctance to consent to access of his State Hospital files, and, in part, due to the State Hospital's denial of access for a number of reasons, including the lack of consent by Applicant.(12) In short, the State Hospital appeared to treat Applicant as if he were a voluntary patient or someone who has been civilly committed. He is neither.
26. Applicant retains some privacy interest in certain treatment records; for instance, the court would be loathe to require either Applicant or his therapist to divulge details regarding their discussions (unless they are constrained to do so under the present law regarding danger to others). However, many of these records do not even include typically protected information, i.e., statements made by Applicant to a psychiatrist or a psychologist or a doctor for the purpose of treatment. The State Hospital's hyper-vigilance regarding Applicant's "confidentiality" is misplaced where the Applicant was committed after an acquittal of a crime. (13)
27. There is a also a history of missing records for Applicant preceding conditional release hearings. A number of evaluators commented on the curiousness of the selective nature of the missing documents. Given Applicant's ability to manipulate staff, gain access to various areas of the State Hospital and his tendency to malinger, the "sub-text" in the experts' reports is an undercurrent of suspicions by the evaluators which, of course, could not be substantiated.
28. For this application, Applicant refused to be examined by Dr. Speth despite a court order to do so in 1999.(14)
29. Both the legislature and the holding in Miller, placing the burden on Applicant at conditional release hearings, recognize "that the Department of Health and the acquitted person are in the best position to produce medical records and evidence regarding the person's mental status . . . ." Id. at 276, 933 P.2d at 613 fn. 7. The law would therefore allow the trial court to construe any absence of records or any inability to access records or, in this case, inaccessibility of Applicant to an expert witness, against the Applicant and/or against the interests of the Department of Health.
30. Many of the more relevant portions of the record have been gathered by the State and included in Exhibits 92, 93, and 94.(15) Because of the sheer volume of the record and because much of the record is on microfiche and stored, future courts will find these exhibits extremely helpful.(16)
31. Early in the proceedings, the State strenuously requested that some care be given in choosing the three member panel of mental health professionals evaluating Applicant for this Application. The State did not suggest any particular names. At the time, the court denied the request primarily because of a realization that a hearing on the request would necessitate nearly as much time as "simply" hearing and deciding this Application. The court therefore applied the "standard operating procedure" of appointing the evaluators from a rotating list.
32. After this court's review of the entire record, the court is now convinced of the wisdom of the State's request. The advantage of over two decades' worth of hindsight reveals what may not have been apparent at the time the various and sundry reports were proffered to the court, that is, among the examiners and experts, there were wide differences in diligence in reviewing records, forensic experience, testing and evaluation techniques, and in understanding of the legal system and the intersection between the legal and mental health systems. One stark difference is the treatment of historical facts. Simply put, some examiners appeared to totally discount the facts of the original offense and the Applicant's subsequent sexual abuse of his daughters because the Applicant had been "acquitted." Some experts have also apparently felt very strongly that, if Applicant had been convicted, he would no longer be in custody. Other examiners have suggested conditional release because of their belief that the State Hospital has nothing else to "offer" the Applicant and there is a need to "free up a hospital bed". While these opinions have been offered in good faith by various experts, they are not relevant to the court's necessary legal determinations.
33. In future hearings on applications for conditional release, the use of certain examiners will greatly aid the court in its decision making. Those examiners are Dr. Gary Farkas, Dr. James Greene, and Dr. Jarrett Ko.(17) All three examiners have had extensive experience with this case and all three are presently available. Further, a review of their previous examinations and reports will show that they are able to avoid the pitfalls noted above. All three of these examiners are able to clearly support their various opinions and recommendations with historic, clinical, and behavioral factors in addition to the usual psychiatric and psychological terminology. A close review of the record will also reveal that these examiners were among the experts most relied upon by the various judges involved in this case. This finding is not meant to disparage the work of any other expert on this case, including those who provide such important public service at the State Hospital. The court reiterates that this finding has the benefit of the hindsight which comes after a close review of over two decades of both legal and mental health materials. This finding does not limit the ability of any party to engage the services of any other expert in future proceedings.
CONCLUSIONS OF LAW
1. Under Hawai'i Revised Statutes ß 704-415 (1998) and the holding of State v. Miller, 84 Hawai'i 269, 933 P.2d 606 (1997), the applicant, Warren David Miller, has failed to meet his burden of showing that he can be safely released into the community. Specifically, applicant has failed to prove by a preponderance of the evidence that he is no longer mentally ill and no longer dangerous.
2. Applicant had vigorously challenged the State's ability to present the testimony of experts other than the three panel examiners. The court ruled against Applicant and will adopt Judge Heely's pronouncement when this identical issue was raised before him in a prior release application by Applicant:
The Court finds that there is nothing in Chapter 704 which prohibits the allowance of an independent examination by a qualified physician or other expert, either at the request of the Defendant or at the request of the State.
Further under 704-410, although that statutory section, subsection one in particular, does not specifically apply to conditional release situations, that statue recognizes that in some situations both the Prosecution and the Defense may summon any other qualified expert to testify, and a hearing concerning the Defendant's mental status, but that the expert has to have examined the Defendant first.
In addition, the Court finds that both Rule 16 . . . of the Hawaii Rules of Penal Procedure, and Rule 35 of the Hawaii Rules of Civil Procedure allow examination of this type, and that there's no prejudice to the Defendant by ordering that he be made available for examination . . . .
(Excerpt of Proceedings, July 17, 1985 at 2-3.)
3. However, Applicant's refusal to be examined by State's expert will not preclude State's use of that expert so long as the State has exerted good faith efforts to accommodate both the Applicant's and the State Hospital's reasonable requests.
4. All findings of fact herein which are also conclusions of law shall be deemed to be both findings of fact and conclusions of law and vice versa.
ACCORDINGLY, IT IS HEREBY ORDERED that:
1. The Application for Conditional Release is DENIED.
2. The existing order allowing the State Hospital to grant unescorted passes to Applicant, granted on November 6, 1992, and suspended on August 13, 1998, is revoked.
3. Applicant may not be granted any form of unescorted off-ground passes except by court order (either after a contested hearing on a motion or after approving a stipulation entered into by Applicant, the Department of Health, and the Office of the Prosecuting Attorney). The families of Applicant's daughters must receive notice of said court order prior to its effective date.
4. Any party wishing to place Applicant in an institution other than the State Hospital must first file an appropriate motion with the court.
5. The panel of mental health professionals assigned to review subsequent Applications for Conditional Release shall be Dr. Gary Farkas as the representative of the Courts and Corrections Branch of the Department of Health, Dr. James Greene as the private psychologist, and Dr. Jarrett Ko as the private psychiatrist.
6. The parties and the Department of Health are not precluded from engaging experts in addition to the assigned three panel examiners.
7. The State shall provide the court with legible copies of the exhibits noted in footnote 15. The court will attach these copies to the original exhibits.
Dated: Honolulu, Hawaii .
FRANCES Q. F. WONG
1. The uncontested facts are as follows:
Shortly after appellant [Hernandez] had driven Warren David Miller and the victim, Jill Applebaum, to a remote area at the top
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1/(. . .continued)
of Waialae Iki Ridge, Miller, who was later acquitted by reason of insanity and committed to the Hawaii State Hospital, began an unprovoked and sustained attack against Applebaum. Miller broke a beer bottle over Applebaum's head, dragged her from the car and tore off her clothing; Applebaum bled profusely from the cuts to her head. Miller gagged the victim with her skirt sash and pushed her down a slope to an outcropping of rocks and bushes.
While appellant remained near the car and out of sight, Miller forced Applebaum to her hands and knees and attempted sexual intercourse. Unable to attain an erection, Miller entered the victim's vagina and anus with his fingers.
After further physical abuse of the victim, Miller ordered Applebaum to stay where she was, and began walking back up the slope. Applebaum, finding no other route of escape, ran past Miller in the direction of the car.
When Applebaum reached the car, appellant grabbed and held her, wrapping her with a towel to protect himself from the blood. After a few seconds, appellant pushed Applebaum aside; Applebaum fell into some scrub. Moments later, Miller reached the victim and resumed his attack.
Miller yanked Applebaum off the ground and threw her onto the front of the car; appellant yelled at Miller for bloodying the car. Miller pulled Applebaum off the car and pushed her to the ground. Applebaum was again forced to her hands and knees. Miller began repeatedly shoving a beer bottle into the victim's vagina, occasionally removing the bottle to empty out beer.
Appellant eventually yelled, "That's enough, enough, brah, let's go"; he started the car. Miller pushed Applebaum to the edge of the cliff and threw her over; Applebaum fell down a ten-foot drop. Miller climbed down to where Applebaum lay and threw her off a fifteen-foot cliff. As she saw Miller approach for the third time, Applebaum got to her feet, ran to the edge of the overhang and jumped. Although conscious after her fall, she "laid there like dead." The car left.
State v. Hernandez, 61 Hawai'i 475, 476, 605 P.2d 75, 76 (1980).
2. State's Exhibits 55 to and including 72 (duplicated in Exhibits 92 to 94), consisting primarily of police reports, were received into evidence as bases of the experts' evaluation. They were not received as substantive evidence (i.e., not as proof of the truth of the matter asserted).
3. Dr. Sim Granoff, in his July 30, 1991, evaluation, stated:
"This case presents a worst case scenario for the use of the insanity plea as a defense. . . . I have found nothing to support that the defendant lacked either substantial cognitive or substantial volitional capacity as a result of any mental disorder at the time of the alleged offenses. In fact, as I read the records, the defendant was intoxicated on alcohol and drugs . . . at the time of these offenses. When I interviewed him at HSH on 7/25/91, he referred to the conducts [sic] at the time of the offenses a [sic] having 'a good 'ol time', and he had a smile on his face and a gleam in his eye." (Ex. 92 at 164.)
4. The second factor was also elaborated upon by Dr. Farkas in his 1986 evaluation:
It is without question that during the instant offense, Miller engaged in severe acts of sexual brutality. It is also without question that in the plethysmographic assessment, Miller's response to deviant stimuli peaked when he was exposed to the stimuli demonstrating physical brutality. Miller's highest responses to deviant stimuli were to those demonstrating massive physical brutality, precisely the behavior that constituted the instant offense. Moreover, Mr. Miller showed these peaked responses under both "suppress" and "arouse" conditions, a consistency which, given his past history of actual physical brutality, suggests that Miller does find such behavior sexually arousing. It is important to note this arousal pattern has persisted over nine years since the instant offense, suggesting that Miller's "interest" in such behavior has not waned. (Ex. 92 at 142-43.)
And, again in Dr. Farkas' 1992 evaluation: "After a course of masturbatory satiation therapy that was tailored to the results of a 09/04/91 plethysmograph, Mr. Miller continued to respond to depictions of coercive sex and physical brutality as of a 04/22/92 retest." (Ex. 92 at 173.)
5. In a 1997 permanent custody proceeding involving Applicant's younger daughter, where the burden was on the State and the standard of proof was "clear and convincing", Judge Suemori found that ". . . Father [Applicant] has failed to participate in any of the services he was ordered to attend, nor did he address any of the issues identified in the numerous service plans in therapy at Hawaii State Hospital, including the issues surrounding the sexual abuse allegations of [the older daughter]." (Findings of Fact and Concl. of Law, filed July 17, 1997 in case FC-S 94-3444, Vol. 2 of 2, 59, at 527.)
6. This finding is not meant to be exclusive and does not preclude the possibility that new treatment protocols could be developed in the future which could be successfully applied to Applicant.
7. The court emphatically is not suggesting that the PCL-R be used as a dispositive instrument or measure. Drs. Hare and Speth and the journal articles in evidence make it clear that only highly trained individuals have any business administering the interview and the instrument and rendering opinions based on those procedures. The instrument and its testing procedures have been developed under and appears well accepted by Canadian jurisprudence. However, at this time, the newness of the PCL-R to our local jurisdiction would render its relative novelty more a distraction than an aid to the court's decision making.
8. A 1997 report by the Department of the Attorney General ["A.G.'s Report"] regarding an assault of a State Hospital patient was admitted as a basis for the various experts' evaluations and testimony but not for the truth of the matter asserted. [Report by the Department of the Attorney General, dated June 26, 1997, (hereinafter Ex. 70); Warren Miller 1998 Conditional Release Hearing Vol. III, State's Exhibit 94, (hereinafter Ex. 94), at 730-37.] The court has scrupulously avoided factoring in this report in its decision making. Indeed, there are so many other overwhelming factors that this report is not necessary to the court's decision. However, future evaluators should factor this report into their work with the Applicant and should use it as a cautionary tale regarding Applicant's dangerousness and manipulation of the State Hospital system. The A.G.'s Report included a report by a staff nurse that "Warren MILLER was attacked by peer (PR) in the day room while talking to peer (LK). Peer (PR) ran over to Warren and began
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8/. . .continued)
punching him in the face. Peers in day room pulled (PR) off of Warren." (State's Ex. 70 at 5; Ex. 94 at 731.) The A.G.'s Report noted that "(PR) suffered 'serious' injuries to both eyes, a contusion on his head and multiple scratches and bruises on his body." (State's Ex. 70 at 6; Ex. 94 at 732;) In stark contrast to the nurse's report, the A.G.'s Report contained this conclusion: "This investigation disclosed multiple HSH staff members failed to properly perform their duties. In addition, it appears the above information supports (PR's) theory that he was 'set-up' by Staff, MILLER, [and three other patients named]. Patient Abuse-Neglect was substantiated."
9. No substantial delays were caused by counsel who, while they diligently and vigorously litigated this case, nevertheless comported themselves in good faith and with civility.
10. Applicant enjoyed other freedoms while out in the community on unescorted passes. In January 1993, he rear-ended a car while driving a car owned by a person who was purportedly a State Hospital employee. Applicant's driver's license had a 1996 expiration date and listed an Owen Street address rather than the State Hospital as his residence. (Ex. 94 at 528.)
11. In a 1997 State Hospital "Master Treatment Plan: Individual Problem Plan" for Applicant, a "problem description" was phrased: "Mr. Miller's original charge was a serious violent crime. There is an apparent public perception that he is dangerous although his behavior within the hospital has generally been non-violent." (Ex. 94 at 785.) (emphasis added). Under "Interventions", after noting that the "Treatment Team" will counsel Applicant to his "history of dangerousness""approximately once monthly", the following rationale was noted: "The treatment team works with Mr. Miller to remind him of the reputation related to his original charge and to help him manage his behavior in such a way to decrease any potential for dangerous behavior and to help him manage his reputation within the limits of hostility [sic]." (Ex. 94 at 786.)(emphasis added). Besides apparently relegating the original crime to a problem of public relations, this plan did not include any sex abuse treatment.
12. This pattern extended to another of Applicant's major court involvement, loss of his parental rights to his younger daughter:
58. Father ["Warren Miller (formerly known as Warren Miller Best until he and Mother got divorced)" at page 8 of this document] failed to allow the release of psychological and psychiatric records and reports from the Hawaii State Hospital to the DHS [Department of Human Services] and the GAL [Guardian Ad Litem] despite the express court order for him to do so announced on October 11, 1995." (Findings of Fact and Concl. of Law, filed July 17, 1997 in case FC-S 94-3444, Vol. 2 of 2, 58 at 526-27.)
13. Cf., State v. Platt, 984 P.2d 441, 447 (Wash. Ct. App. 1999.):
Those subject to criminal commitment have been found beyond a reasonable doubt to have committed an act which, except for their insanity, would have been a criminal act subjecting them to criminal penalties. . . Past conduct is heavily indicative of the likelihood that a person will commit similar acts which will again endanger others. Therefore, it is logical that those who have reached the attention of the State because of serious antisocial acts, would be subject to more procedural burdens in obtaining their release than are those whose acts are less threatening to the public safety.
See also, Miller, 84 Hawai'i at 276, 933 P.2d at 613, ". . . a person who is found not guilty of a crime by reason of insanity does not have a fundamental right to unrestricted liberty."
14. The court granted State's Motion to Compel Petitioner to Submit to Interview by Dr. Eric Speth (Order filed February 12, 1999). However, when Applicant declined to be interviewed by Dr. Speth, what remedies were available to the court for enforcement of its order? Certainly, the
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14/(. . .continued)
traditional remedy of civil contempt proceedings would make little sense. Hence, the application of the traditional notions of "burden of proof" is wise and appropriate ". . . the Court is not willing to take a chance on what those records might or might not show." [Findings of Fact, Concl. of Law, and Order Den. Application for Conditional Discharge (by Judge Daniel Heely), filed September 25, 1985 at 5; Ex. 92 at 134.]
15. There is one portion of Exhibit 92 which contains duplicate pages. The court has noted where this duplication begins with a post-it note at the first page 102. Page 52 of Exhibit 92 is missing and must be produced to the court. Pages 71 and 109 of Exhibit 92 are barely legible and must be replaced. The following pages in Exhibit 93 are barely legible and must be replaced: 276, 289, 290, 297 to 310, 392, 398, 401, 402, 404, 408, 411, and 425. In Exhibit 94, there is a rather confusing mix up; in a small section, every other page is a duplication of an earlier page: page 829 is a duplicate of page 753, 831 is 754, 833 is 757, 835 is 759, 837 is 761, and 839 is 763.
16. However, exhibit 92 only includes primarily the "three panel" evaluators for the initial sanity hearing and the subsequent applications for conditional release. The case files contain evaluations from other experts.
17. Dr. Harold Hall would be able to offer what the other three experts offer. However, Applicant's prior counsel had expressed a belief that Dr. Hall is biased against Applicant. (Excerpt of Proceedings, July 17, 1985 at 3.) After a review of Dr. Hall's work in this case, the court cannot find such a bias working against this Applicant. Indeed, Dr. Hall's evaluations were specific and concrete and not unsubstantiated written exercises. Nevertheless, given this perception, the court wishes to avoid an unnecessary distraction from the work of the three panel evaluators.