8-25-2013 Kansas:
WICHITA, Kan. (AP) — An attorney for a Kansas man who is among the roughly 250 sex offenders confined at a state hospital because their prison terms expired and they were deemed too dangerous to go free says the law that allows this has changed significantly over the years and needs to be re-examined.
Michael Whalen, a lawyer for 63-year-old sex offender Robert Ontibersos, Friday urged District Judge
Terry Pullman on Friday to quash subpoenas for
his client's medical and prison records, The Wichita Eagle reported (
http://is.gd/udJfzc ).
Ontibersos was convicted of attempted rape in 1983 and aggravated sexual battery in 2001. He was about to be paroled in 2008 when a jury found that he was a sexual predator, resulting in his continued incarceration under the state's Sexual Predator Act, which the U.S. Supreme Court upheld in 1997.
The Kansas Supreme Court overturned the verdict and said Ontobersos' attorney was ineffective. Whalen, who argued Friday that disclosing his client's records violates federal medical privacy laws, has taken over as Ontibersos' counsel.
Jennifer Wilbert, who represented
Larned State Hospital at Friday's hearing, said there's an exception in federal privacy law that requires confidential medical records to be provided to authorities in sexual predator cases.
Ontiberos' mental health records would be needed in order to determine whether or not he is a sexual predator, Assistant Kansas Attorney General Christine Ladner said.
"It's the heart of the issue; that's why the law provides for it," she said.
The law considered by the U.S. Supreme Court in 1997 is a far cry from what the state's Sexual Predator Act has become, Whalen said.
"The act we have today in no way resembles the act reviewed by the Supreme Court," he said. "Since that time, there have been numerous amendments and changes to the law.
The law was passed in 1994 and 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 law was passed after the 1993 death of
Stephanie Schmidt, a
Pittsburg State University student who was killed by a paroled rapist.
At the time of the Supreme Court's 1997 ruling, there were nine predators being held at Larned State Hospital. There are about 250 there today, and only four have been released from the program.
Sixteen have died in custody.
Whalen said that over the years, the Kansas Legislature has eliminated many of the rights written into the original act, including the requirement that 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.
Lawmakers eliminated that time limit more than a decade ago, he said.
One of Whalen's clients,
Todd Ellison, 44, has been in Sedgwick County Jail awaiting trial for more than four years, he said.
..Source.. by SFGate
