Lawyer loses round in fight against Kansas’ sexual predator law

08/23/2013 6:21 PM

08/23/2013 6:22 PM

A Wichita lawyer who is challenging the state’s sexual predator law lost a bid Friday to keep the state from using his client’s medical and prison records against him.

But the lawyer, Michael Whalen, said he will continue to challenge the state’s Sexual Predator Act despite a 1997 U.S. Supreme Court ruling that said the law was constitutional.

“The act we have today in no way resembles the act reviewed by the Supreme Court,” Whalen said after Friday’s hearing. “Since that time, there have been numerous amendments and changes to the law.

“It’s not over and done with, not by any stretch of the imagination.”

The law, passed in 1994, allows the state to confine some repeat sex offenders to a secure building at the Larned State Hospital after they have served their prison sentences. The Legislature passed the law after the 1993 death of Stephanie Schmidt, a Pittsburg State University student killed by a paroled rapist.

It allows the state to commit a person convicted of violent sexual crimes to a state hospital to undergo treatment until psychologists determine that there is reasonable likelihood they will never commit another sex crime. Critics have argued that the law subjects a person to punishment twice for the same offense, and some contend that the state is more interested in warehousing the inmates than in treating them.

Nine predators were being held at the Larned State Hospital at the time of the 1997 Supreme Court ruling. Today there are about 250. Only four people have been released from the program, and 16 have died in custody.

Whalen said the Kansas Legislature over the years has eliminated many of the rights that were written into the original Sexual Predator Act. The law that was reviewed by the Supreme Court, for example, said a civil sexual predator trial must start no more than 60 days after a judge determines there is enough evidence to put the question to a jury.

The time limit was eliminated more than a decade ago, Whalen said. He said one his clients, Todd Ellison, 44, has been in Sedgwick County Jail for more than four years awaiting trial.

On Friday, Whalen went to court representing Robert Ontibersos, 63, who was convicted of attempted rape in 1983 and aggravated sexual battery in 2001. In 2008, as Ontiberos was about to be paroled, a jury found that he was a sexual predator. The Kansas Supreme Court overturned the verdict, citing the ineffectiveness of Ontiberos’ lawyer.

Whalen, who has since taken over the case, asked District Judge Terry Pullman to quash subpoenas for his client’s medical and prison records, arguing in part that such a disclosure would be a violation of federal medical privacy laws.

“This has been ongoing, systemic violation,” he said of the state’s use of such records.

Jennifer Wilbert, who represented Larned State Hospital at the hearing, conceded that the hospital is covered by federal privacy law.

“Absolutely it applies to us,” she said. “The exception is when we are required by law to produce the records. And we are required by the Sexually Violent Predator Act to produce the records.”

The act specifically says that records and information that are otherwise confidential shall be released to authorities for use in the prosecution of predator cases.

Assistant Attorney General Christine Ladner said Ontiberos’ mental health records would be needed in order to determine whether he is a sexual predator.

“It’s the heart of the issue; that’s why the law provides for it,” she said.

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