Detention Of Robert Lough
73223-4
| Wash. Ct. App. | Nov 7, 2016Background
- Robert Lough, convicted in 1986 of first-degree rape and attempted murder, was sentenced to 30 years; the State filed an SVP petition two days before his 2009 scheduled release.
- After a probable cause finding, Lough was detained at the Special Commitment Center pending trial; in 2010 he assaulted another detainee and was charged in Pierce County.
- The trial court stayed the SVP proceedings pending the criminal case and later while Lough served his criminal sentence; he returned to the SCC after release in 2013.
- Lough moved to dismiss alleging statutory and constitutional speedy-trial violations; the court denied the motion, and a jury in 2015 found him an SVP.
- On appeal Lough challenged (1) the stays/continuances, (2) exclusion of witness presence, (3) sufficiency of evidence for mental abnormality/difficulty controlling behavior and for risk of predatory sexual violence, and (4) admission of the VRAG-R actuarial test.
Issues
| Issue | Plaintiff's Argument (Lough) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether staying the SVP trial while criminal proceedings and incarceration occurred violated the statutory 45-day trial requirement and constitutional right to timely proceedings | Stay/continuance violated RCW 71.09.050 and constitutional right to avoid unnecessary delay | Continuances were justified: Fifth Amendment concerns, pending criminal sentence could render civil case moot, custody/transport issues, and statutory provisions governing custody overlap | Court affirmed: no abuse of discretion; stays were supported by good cause and statutes; no prejudice shown |
| Whether excluding witnesses from the courtroom (and denying Lough's request to "apprise" experts of the State expert's live testimony) violated right to present a defense | Denial prevented experts from hearing and responding to State expert testimony, impairing defense | State had produced reports/depositions; experts could review those and fully testify; exclusion under ER 615 is discretionary | Court affirmed: trial court did not abuse discretion; experts were able to address State expert's opinions |
| Whether evidence supported finding Lough has a "mental abnormality" causing serious difficulty controlling behavior (Crane/Thorell standard) | Diagnoses (ASPD, PTSD, substance abuse) show only choice to offend, not inability to control; insufficient to meet due process link to lack of control | State expert explained how combined disorders (ASPD + PTSD + substance abuse) produce triggers, dissociation, disinhibition and serious difficulty controlling sexually violent behavior; jury resolves conflicting expert testimony | Court affirmed: evidence sufficient for jury to find serious difficulty controlling behavior when viewed in State's favor |
| Whether evidence showed likelihood of committing future predatory sexual violence (not merely general violence) | Risk evidence proved general violence risk, not specifically predatory sexual violence | State relied on actuarials (Static-99, VRAG-R), dynamic factors, and clinical judgment tying triggers and sexualized violence to risk of sexual reoffense | Court affirmed: combined actuarial, dynamic, and clinical evidence supported finding of likely predatory sexual violence |
| Whether admitting the VRAG-R was unduly prejudicial or irrelevant (ER 401/403 and Frey-type reliability challenge) | VRAG-R measures general violent reoffending (not sex-specific), so irrelevant/misleading and should be excluded; Frey challenge to actuarial reliability | Trial court explained VRAG-R's limits; State did not rely solely on it; expert contextualized its scope; challenges go to weight, not admissibility | Court affirmed: VRAG-R was relevant and properly admitted; limitations explained to jury; ER 403 not triggered |
Key Cases Cited
- Kansas v. Crane, 534 U.S. 407 (2002) (due process requires link between mental abnormality and serious difficulty controlling behavior in SVP commitments)
- In re Pers. Restraint of Thorell, 149 Wn.2d 724 (2003) (Washington requires proof of serious difficulty controlling behavior; contextual, case-specific analysis)
- In re Pet. of Post, 145 Wn. App. 728 (2008) (credibility of expert testimony and sufficiency review in SVP context)
- In re Pet. of Audett, 158 Wn.2d 712 (2006) (standard that evidence need not show total inability to control behavior)
- In re Pers. Restraint of Meirhofer, 182 Wn.2d 632 (2015) (experts may use clinical judgment along with actuarials when assessing reoffense risk)