State ex rel. State v. Parkinson ( 2009 )

MICHAEL A. WOLFF, Judge,

concurring.

I concur with the principal opinion.

This case does, however, have two aspects that, taken together, may be worrisome. The first is that the multidisciplinary team’s initial review of the records did not find that Closser fit the definition of a sexually violent predator. The second is that the state, for whatever reason, chose to use a psychologist not licensed in Missouri to do the crucial end-of-confinement evaluation.

The function of the multidisciplinary team, I assume, is to provide an informed assessment based in part on the expertise of the team members.¹ The team’s assessment can be overridden by the prosecutors’ committee, as it was in this case.² On a practical level, an assessment by prosecutors can answer the question of whether the state can “win” a commitment of the suspected sexually violent predator. This is an important assessment and — in light of the prosecutor’s overriding duty to do justice and not just to win cases — can and should be a check to safeguard the rights of individuals against overzealous experts.

The expert’s report, prepared by Dr. Suire — who held a Texas license and was in the process of obtaining a Missouri license — was one piece of evidence on the way to a proceeding to commit Closser as a sexually violent predator.

There is no indication whether Dr. Suire will be the state’s expert at the civil commitment trial or whether the state will find another expert.

My concern is about what lawyers call “expert shopping.” To be frank, lawyers often shop around for experts, not so much by what they know, but what they will say to support the theory of the case. Other professionals, especially medical professionals, can be heard to complain about the laxity of standards that allows for such expert shopping.

I am not so provincial as to suggest that only Missouri-licensed experts can be used, but I would ask: With more than 1,700 psychologists licensed to practice in Missouri, why does the state need to go elsewhere to find an expert? Perhaps there are experts around the country who can be relied upon to label — as sexually violent predators — sex offenders even where the evidence is thin or illusory. But that is where the expert-shopping question becomes troubling. The statute does not assume that every sex offender is a sexually violent predator. But, in the choice of experts, perhaps the prosecutorial system is making that assumption. The stakes, after all, are about a person’s liberty and about the safety of our communities. These are not interests to be balanced, but are important values to be safeguarded.

The state probably now will bring before a jury an expert to say that Closser — who has a history of convictions: sex abuse (1990), child molestation and sexual misconduct (1997) — is a sexually violent predator. If the state does so, it is a fairly safe bet that Closser will not be seen at large anytime this century.

That may well be fine, if the system accurately identifies those who are permanently a risk to the well-being of children and other potential sex-offense victims. The statutes appear to be designed to protect against over-inclusion in the category of sexually violent predator. But, in practice, do the statutes function as they apparently are designed?

1 . Section 632.483.2, RSMo Supp.2003.

2 . Section 632.483.5, RSMo Supp.2003.