Civil commitment still evolving in N.Y.
democratandchronicle.com
Rochester Democrat and Chronicle - Rochester, N.Y.
Author: Gary Craig
Date: Apr 11, 2011
Start Page: n/a
Section: NEWS
Text Word Count: 637
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Daniel Kriegman is an expert in counseling sex offenders -- and the founder of a religion called Yoism.

His expertise in sex offenses is why Kriegman was called to testify at the August 2007 civil commitment trial of a Saratoga County man who had sexually abused two different girls under the age of 8. However, the state attorney pushing to commit the sex offender decided to challenge Kriegman on the stand about Yoism -- and that challenge is at the core of a ruling from the state's highest court.

In that ruling last week, the Court of Appeals ordered a new trial for the sex offender, identified as Andrew O., because of the assistant attorney general's questions to Kriegman about Yoism.

In New York, civil commitment is still relatively young -- now in its fourth year. Cases, like that of Andrew O., are just now winding their way through regional appellate courts and laying the legal groundwork for the future of civil commitment.

The cases are often conducted out of the public eye because files can be sealed and courts can be closed. This week, two sex offenders are scheduled to be the focus of civil commitment hearings in courts in Rochester.

Under New York's program, the state targets individuals determined likely to be repeat sexual offenders who suffer from a "mental abnormality." A jury determines whether the individual does suffer from a mental defect, and a judge then can sentence the offender to commitment at a state psychiatric facility or an intensive parole program.

With a cost of $175,000 a year for facility-based treatment -- and a possibility the offender will never be freed -- New York's is the costliest civil commitment program in the country. Already, the state has likely spent close to $1 million in the case of Andrew O. -- with his treatment and court costs -- and now must return to court again to determine his future.

While the Attorney General's Office contends that the evidence is overwhelming that Andrew O. deserves civil commitment, the Court of Appeals determined that the attack on Kriegman's religion was completely out of bounds.

"The trial ... boiled down to a battle of the experts in which Andrew O's expert was portrayed as unreliable because he adhered to an out-of-the-mainstream religion," the court wrote. "It is impossible to know whether or to what extent the jury's assessment of the expert's testimony was prejudiced as a result."

In his 2007 trial, the jury determined Andrew O. did have a dangerous mental abnormality and a judge decided to commit him.

As the Court of Appeals noted, civil commitment trials can be a "battle of the experts" -- even more than criminal trials. The state uses its own experts to highlight an offender's sexual predatory history as proof of the mental defect, while the offender usually relies on experts who contend that the criminal can be safely released with supervision.

Andrew O.'s case fell into the same framework, until the state's attorney launched the assault on Kriegman's Yoism and the judge did not curb the line of questioning.

On the stand, Kriegman described Yoism as similar to Unitarianism. Its tenets, according to its website, include environmental protection, the desire to "develop democracy's untapped potential," and a belief system based largely on one's empirical experienced reality.

Kriegman said in a telephone interview Friday that he has never been questioned about the religion in "the hundreds and hundreds" of cases in which he has testified over the past 25 years.

"If a Christian Science expert testified, would you be able to question him about his beliefs?" Kriegman said.

"Or a Mormon?"

Andrew O. also challenged the evidence against him in his appeal, a challenge the Court of Appeals determined to be "without merit."

The Attorney General's Office declined comment Friday.

GCRAIG@DemocratandChronicle.com