After seventeen years of legal wrangling in the state and federal courts, Loren Huss was found not guilty by reason of insanity for the murder of his girlfriend, Marilyn Sheets. We recently affirmed that verdict on appeal.
State v. Huss,
Because we are convinced the record supports the court’s finding that Huss is still mentally ill, but the same record provides insufficient proof of present dangerousness, we reverse and remand with directions.
I. Background Facts and Proceedings.
It is not the facts — but the inferences to be drawn from them — that are at the heart of this controversy. Huss argues strenuously that the district court erroneously focused on his past, “ignoring his entire recent record.” One of the court’s crucial tasks, however, was to make a prediсtive judgment about Huss’s future behavior based on his prior conduct.
In re J.P.,
By any measure, much of Huss’s prior conduct is horrifying. The following two paragraphs from the district court’s ruling accurately summarize the assault wrought by an insane Huss on Marilyn Sheets:
In the early hours of May 19, 1986, Des Moines police responded to a domestic disturbance at the apartment of Defendant and Ms. Sheets. The apartment was virtually demolished. Broken furniture was strewn about. The walls were smeared with blood and peppered with holes. Defendant, soaked in his victim’s blоod, was yelling scripture and kicking and pouncing on the nude, spread-eagled body of Ms. Sheets when police ■ arrived. It took five officers to subdue Defendant, who continued to chant variations of the verse from John 3:16.' 1
Ms. Sheets had been struck, kicked, bitten, and strangled. She suffered a lacerated liver, bite marks of the head and neck, a crushed upper and lower jaw, and a brain hemorrhage in addition to the numerous contusions, lacerations and abrasions of the body, face, and throat. Dirt was found in her vagina which Dеfendant had repeatedly kicked. He had bitten off her nosé and gouged out her eyes. He had scooped blood from the sockets and smeared it over the doorway in some reference to Passover. These injuries were inflicted ante-mortem.
Two other assaults, also shocking, predated Huss’s attack on Sheets. In 1981, Huss — then eighteen years old- — received a suspended sentence for second-degree robbery after committing a brutal, late-night assault on a woman in a parking lot. The victim was found unconscious, her clothes torn from her body, with multiple wounds including severe injuries to her eyes. A year later, Huss and several companions gang-raped a teenage girl. Huss, who was arrested at the scene, pleaded guilty to third-degree sex abuse. His prior probation was revoked and his ten-year sentence ordered to be served concurrently with his robbery conviction. It was while on parole for these convictions that he murdered Marilyn Sheets.
*156 According to psychiatric experts who examined Huss following the Sheets murdеr, Huss’s pre- and post-assault behaviors were symptomatic of the onset and culmination of bipolar affective disorder in manic phase: Huss had tried out for the Iowa Cubs, envisioning himself as a major league baseball player; he planned a gambling trip to Las Vegas as a way of earning money to feed Des Moines’ homeless; his thinking and speech patterns were disorganized and marked by hyperreligiosity and hypersexuality; and he was dehydrated and' weak after the killing. Based on the prior assaults, Huss was also diagnosеd with an Axis II antisocial personality disorder.
By the end of 1986, Huss’s bipolar condition had gone into remission. The State and defense counsel agreed Huss was insane at the time of the Sheets murder but Judge Jack Levin, who heard the matter on a stipulated record, disagreed and set the case for jury trial.
See State v. Huss,
Two psychiatrists and one psychologist testified at the hearing on Huss’s “present mental condition.” See Iowa R.Crim. P. 2.22(8)(b). Dr. Michael Taylor, who twice evaluated Huss in 1986, explained that bipolar affective disorder is a genetically-based neurochemical disorder of the central nervous system characterized by at least one episode of mania and one or more episodes of depression. The illness is, by definition, episodic and, statistically speaking, is likely to last five weeks. Between episodes of mania or depression, the patient is, in Dr. Taylor’s words, “completely asymptomatic, completely normal.” When asked whether a medical expert could predict with accuracy when future psychotic episodes might occur in an individual with bipolar affective disorder, the doctor replied:
If we have an individual who has had a manic episode every spring for the last eight years, it becomes relatively easy. But in an individual such as Mr. Huss who experienced what sounded to be his first manic episode in 1986, it is totally impossible to predict if or when Mr. Huss might experience a future manic episode or episode of depression.
As for a current diagnosis, Dr. Taylor testified Huss has bipolar affective disorder, in remission, along with an antisocial personality disorder. He made plain that mental illness in remission is not the same as the absence of mental illness, as the patient is at a “significantly greater risk than the general population” to experience a future manic episode. In his expert opinion, Huss continues to be dangerous because, in Dr. Taylor’s words, “[t]he best predictor of future behavior is past behavior.” He acknowledged that he knows of no treatment that would be helpful to Huss.
Dr. Curtis Fredrickson, staff psychiatrist at IMCC since 1979, has been acquainted with Huss since 1983. Huss worked as an aide on the psychiatric unit while awaiting discharge from prison in 1984 for his assault conviction. Then, in 1987, Fredrickson performed Huss’s com *157 petency evaluation in connection with the Sheets murder trial. His current diagnosis (which essentially mirrors the diagnosis given in 1987) is bipolar disorder, in remission, with one manic episode with psychotic features in 1986.
Dr. Fredrickson’s written evaluation, which formed the basis for the rule 2.22(8) hearing that followed, reported this summary:
[W]e are dealing with an individual' of average intelligence with good academic abilities. He does not suffer from any major Axis I disorder at this time. He has not been on any psychiatric medications for 13½ years. His adjustment to the Department of Corrections has been good and he has been in general population with no difficulties.
TREATMENT/EVAL UATION:
The patient has not required any treatment on this admission. He was involved in our routine program. Besides the unit milieu he was involved in some group therapy sessions, activities, social rec., and physical recreation activities, and individual counseling as needed. He hаd a job assignment along with the other patients helping clean the unit once a day.
CLINICAL COURSE:
No signs or symptoms of mental illness or psychosis or mania were noted.
* * * *
[CJurrently the patient ... is not seen as a danger to himself or others.
Dr. Leonard Welsh, a psychologist with IMCC, diagnosed Huss with Axis I poly-substance abuse history and Axis II antisocial personality disorder. Welsh testified that he could not rule out Axis I psychosis or bipolar disorder in remission but had not personally observed the symptoms in Huss. When asked whether Huss presently posed a danger to himself or оthers, Welsh stated that “in terms of his profile you’d have to say that he is certainly more of a danger to others than the average citizen because the best predictor of future behavior is past behavior.”
The court also heard brief testimony from Dorothy Wallace, the victim of Huss’s first assault, and from Huss himself. Huss described, as best he could, the events surrounding Marilyn Sheets’ death. Mindful that he was, at that time, totally out of control of his senses, he expressed concern over the potential for recurrence of that mental state. He explained that he has told his family and “friends in prison ... everybody” that he expects them to take action if he ever begins displaying such “bizarre” behavior again. After describing how he has managed over the past fifteen years to coexist peacefully with inmates, correctional officers and others in a prison setting, he acknowledged his willingness to accept a conditional release, summing up by saying “I’m not trying to rattle society. I — I would do everything that the Court ordered just so everyone is safe, yes.”
Furthеr facts will be detailed as they relate to the issues on appeal.
II. Scope of Review.
A threshold question concerns the scope of our appellate review which, of course, turns on the nature of the case on review.
Matter of Oseing,
It is true, as the State contends, that the Supreme Court has upheld the constitutionality of a Washington, D.C., statute that placed the burden on the insanity acquittee to prove by a preponderance that he was no longer mentally ill and no longer a danger to himself or others.
Jones v. United States,
Huss concedes a presumption of insanity attends a verdict of acquittal on that ground and continues until the contrary is shown.
State v. Allan,
Thus we hold, as did the district court, that once the IMCC report indicated Huss was no longer mentally ill and dangerous, the burden shifted to the State to prove the contrary, by clear and convincing evidence, to justify retaining him in custody. This is consistent with the burden resting on the applicant in a chapter 229 involuntary civil commitment.
See
Iowa Code § 229.12(3) (2001);
In re J.P.,
That brings us back to the question of our appellate review. Huss has no quarrel with the constitutionality of rule 2.22(8). He merely challenges the sufficiency of the record to sustain the court’s mandate under it. Proper application of the rule .has constitutional implications, given the liberty interest at stake.
See State v. Stark,
III. Issues on Appeal.
Both parties agree that, under Iowa Rule of Criminal Procedure 2.22(8)(e), the court must “order the defendant released” unless the court finds the
*160
defendant is
both
(1) mentally ill
and
(2) dangerous to himself or others.
Accord Stark,
Huss contests the court’s findings on two grounds. He claims, first, the court “erred in concluding that mental illness in remission is the same as mental illness.” Second, he challenges the court’s finding on the issue of dangerousness, focusing on the record’s lack of proof regarding a “recent overt act, attempt, or threat.” We shall consider the arguments in turn.
A. Mental Illness.
Although Huss vigorously contests the court’s finding that he is presently mentally ill, his argument cannot withstand close scrutiny. All of the mental health experts who testified agreed that mental illness in remission is not the same as absence of mental illness. Other courts addressing the question have concluded that a person whose mental disorder is in remission is still mentally ill.
Johnson,
Because Huss presently displays no symptoms of his disorder, аnd is receiving no treatment for it, he claims his situation is “radically different” from the cases just cited. He also argues that a finding to the contrary under this record would “condemn a person who was formerly mentally ill to a lifetime in prison.” Such a fate, Huss argues, contravenes the holding of
Foucha v. Louisiana,
Moreover, the factual record made before the district court more than adequately supports the court’s conclusion that Huss, despite being asymptomatic, still suffers from bipolar disorder. By its very nature, the disease is episodic and recurrent. The record reveals that ninety percent of individuals who, like Huss, experience a single manic episode will suffer a repeat episode in the future. Accord American Psychiatric Association, Diagnostic and Statistical Manual IV at 353 (4th ed. 1990) (hereinafter DSM-IV); see generally Paul E. Keck, Jr., Long-term Therapy of Bipolar Illness, The Journal of Family Practice, March 2003 Supp., at 18 (dеscribing long-term therapies for bipolar disorder, “a persistent, severe, sometimes lethal, and lifelong illness”). In short, the record supports, by clear and convincing proof, the district court’s finding that Huss is mentally ill, even though that illness appears to be in remission.
B. Dangerousness.
That brings us to the tougher issue on appeal— whether the record supports the district
*161
court’s conclusion that Huss continues to present a danger to himself or others. Huss concedes, as he must, that prior criminal conduct is relevant and probative on the point.
Stark,
The State urged in the trial court, and argues on appeal, that the court should regard dangerousness in the criminal context differently from the question of dangerousness in the civil context. Our cases do not support this distinction. “The purpose of commitment following an insanity acquittal
like that of a civil commitment
is to treat the individuals’ mental illness and protect them and society from their potential dangerousness.”
Stark,
To meet constitutional muster in the civil commitment context, we hаve long held the dangerousness element “requires that the threat the patient poses to himself or others be evidenced by a ‘recent overt act, attempt or threat.’ ”
Mohr,
To confine a citizen against his will because he is likely to be dangеrous in the future, it must be shown that he has ■actually been dangerous in the recent past and that such danger was manifested by an overt act,’ attempt or threat to do substantial harm to himself or to another.
Id. (quoting Lynch v. Baxley, 386 E.Supp. 378, 391 (M.D.Ala.1974)) (emphasis,added).
Requiring proof of a “recent overt act” in the criminal as well as civil, commitment arena dovetails , neatly with rule 2.22(8)(b)’s focus on the defendant’s
“present
mental condition.” (Emphasis added.) Proof of dangerousness calls for a predictive judgment based on past- conduct but must be ultimately grounded on future, not past, danger.
In re J.P.,
In stark contrast to the record before the New York Court of Appeals in
In re George L.,
the record before us reveals nearly seventeen
years
— rather than
months
— since Huss’s most “recent overt act.” The State counters that because “Huss has been in a controlled environment since 1986, recent acts are less relevant to the question of dangerousness.” There are two reasons to give this argument little weight. First, expert testimony in this case — confirmed by one of our recent cases and others — demonstrates that even a structured environment like a prison will not prevent a person from having a psychotic episode or engaging in violent behavior.
See, e.g., State v. Polly,
Second, by focusing solely on a history of mental illness and resulting past conduct, to the exclusion of current evaluations and recent patterns of conduct over a course of years, the State renders pointless the review and assessment provisions of rule 2.22(8). Other courts have rightly rejected the perpetual confinement to which such analysis inevitably leads.
See, e.g., United States v. Bilyk,
We are not unsympathetic to the district court’s expressed concern that Huss’s history “portends a future fraught with danger to women” if he is released. Indeed, Huss himself appears to share the same concern over his troubled past and the unpredictability of his illness. But, as this court observed in
Stark,
“it is a violation of due process for a state to confine a harmless, mentally ill person.”
The nagging factual question is “Will he do it again?” But because we are judges, not oracles, we are obliged to fix our focus on the statutory and constitutional criteria guiding commitment decisions. In the absence of a finding by the district court that Huss has committed a recent overt act of substantial harm to himself or another, continued commitment under rule 2.22(8) can simply not be justified.
Gonzales,
REVERSED AND REMANDED.
Notes
. The rule states, in pertinent part:
b. Commitment for evaluation. Upon a verdict of not guilty by reason of insanity or *158 diminished responsibility, the court shall immediately order the defendant committed to a state mental health institute or other appropriate facility for a complete psychiatric evaluation аnd shall set a date for a hearing to inquire into the defendant's present mental condition.... The chief medical officer shall report to the court within 15 days of the admission of the defendant to the facility, stating the chief medical officer's diagnosis and opinion as to whether the defendant is mentally ill and dangerous to the defendant's self or to others....
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e. Hearing; release or retention in custody. If, upon hearing, the court finds that the defendant is not mentally ill and no longer dangerous to the defendant's self or to others, the court shall order the defendant released. If, however, the court finds that the defendant is mentally ill and dangerous to the defendant’s self or to others, the court shall order the defendant committed to a state mental health institute or to the Iowa security and medical facility and retained in custody until the court finds that the defendant is no longer mentally ill and dangerous to the defendant's self or to others. The court shall give due consideration to the chief medical officer's findings and opinion along with any other relevant evidence that may be submitted.... [Within 30 days, and every 60 days thereafter, the chief medical officer shall report the defendant's condition and prognosis to the court.] If the chief medical officer reports at any time that the defendant is no longer mentally ill and is no longer dangerous to the defendant’s self or to others, the court shall, upon hearing, order the release of the defendant unless the court finds that continued custody and treatment are necessary to protect the safety of the defendant’s self or others in which case the court shall order the defendant committed to the Iowa security and medical facility for further evaluation, treatment, and custody.
Iowa. R.Crim. P. 2.22(8).