Opinion
20-P-1374
04-06-2022
Sean MILLIKEN, petitioner.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After committing a litany of sex offenses, Sean Milliken, the petitioner, was found to be a sexually dangerous person (SDP) and was civilly committed. Years later, a jury denied his G. L. c. 123A, § 9, petition for release. On appeal, the petitioner argues that, under Commonwealth v. Lanigan, 419 Mass. 15, 26 (1994), it was error for the judge to exclude portions of expert testimony related to his recidivism risk. We affirm.
Background. From 1984 to 1999, the petitioner committed multiple sex offenses against numerous child victims. He repeatedly reoffended despite arrest, conviction, incarceration, and supervised probation. In 2010, a jury found the petitioner to be a sexually dangerous person and he was civilly committed to the Massachusetts Treatment Center. During his incarceration and civil commitment, the petitioner received numerous disciplinary sanctions, including some for sexual misconduct. In September 2014, the petitioner sought release from civil confinement pursuant to G. L. c. 123A, § 9.
Prior to his § 9 trial, the petitioner was evaluated by five doctors, including Dr. Angela Johnson, who assessed the petitioner's recidivism risk. All but one of these doctors employed the Static-99R, an actuarial tool commonly used to measure recidivism risk based on "static risk factors." These doctors used the numerical score generated by the Static-99R as a factor in their assessment of the petitioner's recidivism risk. They agreed that the petitioner scored a nine on the Static-99R, a score that corresponded with a forty-three percent rate of sexual recidivism within five years.
"Static risk factors are non-changeable (on the whole) life events that relate to risk for sexual recidivism. Generally historical in nature, once these facts are present they remain an indicator of risk for the rest of the person's life. These include things such as having a history of sexual offences or having offended against a male child." Y. Fernandez, A.J.R. Harris, R.K. Hanson, & J. Sparks, STABLE-2007 Coding Manual, at 7 (rev. 2014). This is not to suggest that one's Static-99R score never changes; the offender's age is the first factor. The Static-99R is commonly used to assess recidivism risk and the components of the tool used here have been deemed admissible under Lanigan. See Commonwealth v. George, 477 Mass. 331, 341 (2017).
All the doctors also considered relevant "dynamic risk factors," and all but Dr. Johnson applied their clinical judgment to determine whether those factors aggravated or mitigated the petitioner's recidivism risk. Instead of relying on her clinical judgment, Dr. Johnson employed the STABLE-2007 to weigh the impact of the petitioner's dynamic risk factors on his recidivism risk. Dr. Johnson combined the Static-99R with the STABLE-2007 in a "composite assessment" that produced a risk level associated with a significantly lower recidivism rate, fourteen percent within five years.
Dynamic risk factors include "personality characteristics, skill deficits, personal predilections, and learned behaviours that relate to risk for sexual recidivism." STABLE-2007 Coding Manual, at 8. Importantly, these "factors can be changed or altered ... by making concerted efforts to learn new patterns of doing things or thinking about things and adopting these new ways or habits over the long term." Id.
Dr. Johnson's composite assessment placed the petitioner at "Level III, Average Risk," a risk level associated with a twelve percent sexual recidivism rate within three years and a fourteen percent sexual recidivism rate within five years.
The petitioner's counsel filed a motion in limine seeking to admit "evidence regarding the STABLE-2007 and the results of that assessment at trial." After a hearing on the admissibility of the STABLE-2007, the judge denied the motion and excluded reference to Dr. Johnson's use of the STABLE-2007 from her written report and testimony. In 2019, after a ten-day trial, a jury found that the petitioner remained a sexually dangerous person. The petitioner appealed.
The long period between the petition and trial was due, in part, to a mistrial in 2018.
Discussion. The petitioner argues that the "judge's reasons for excluding the STABLE-2007 were not supported by the evidentiary record" and that the STABLE-2007 should have been admitted under the principals set forth in Lanigan, 419 Mass. at 25-26. The "ultimate test" of admissibility of expert testimony "is the reliability of the theory or process underlying the expert's testimony." Id. at 24. When determining reliability, judges should consider
"whether the scientific theory or process (1) has been generally accepted in the relevant scientific community; (2) has been, or can be, subjected to testing; (3) has been subjected to peer review and publication; (4) has an unacceptably high known or potential rate of error; and (5) is governed by recognized standards."
Commonwealth v. Powell, 450 Mass. 229, 238 (2007), citing Lanigan, supra at 25-26. "[G]eneral acceptance in the relevant community of the theory and process on which an expert's testimony is based, on its own, continues to be sufficient to establish the requisite reliability for admission in Massachusetts courts regardless of other [Lanigan ] factors." Powell, supra, quoting Commonwealth v. Patterson, 445 Mass. 626, 640 (2005). The additional factors provide "an alternate method of establishing reliability" when general acceptance has not been established. Powell, supra. The party seeking admission bears the "burden of proof to demonstrate the reliability of the expert opinion ... by a preponderance of the evidence." Commonwealth v. Camblin, 478 Mass. 469, 476 (2017).
Admissibility under Lanigan "often will hinge on the presentations made by the parties in a particular case. A trial judge is required to assess the credibility of various expert witnesses in determining whether proposed scientific testimony is reliable." Canavan's Case, 432 Mass. 304, 312 (2000). Thus, we apply "an abuse of discretion standard," allowing judges "to conduct th[is] inherently fact-intensive and flexible ... analysis." Id.
First, there was no error in the judge's conclusion that the petitioner had not demonstrated that the STABLE-2007 was generally accepted in the relevant scientific community. At the Lanigan hearing, the petitioner presented evidence suggesting that "[t]he STABLE-2007 can help [practitioners] treat, monitor, and supervise sexual offenders." The literature presented by the petitioner showed that the STABLE-2007 was used by practitioners for that purpose. However, acceptance of the STABLE-2007 as an actuarial tool to assess recidivism risk was less widespread, with only about twenty percent of practitioners believing that research supported the STABLE-2007 as the best tool to assess recidivism risk based on dynamic risk factors.
A 2018 study introduced by the petitioner reported that 50.4 percent of forensic evaluators used the STABLE-2007 to assess criminogenic needs in the past year and forty-two percent used it regularly.
Only 19.3 percent of forensic evaluators identified the STABLE-2007 as the dynamic risk factor assessment tool with "the best research support to measure a reduction of sexual recidivism risk as a result of treatment gains," while 36.1 percent reported that none of the dynamic risk factor assessment tools "had any research support to measure sexual recidivism risk as a result of treatment gains."
Further, as discussed infra in greater detail, the petitioner presented no evidence that the STABLE-2007 was generally accepted when applied to individuals who have been incarcerated for long periods. Notably, the STABLE-2007 Coding Manual (STABLE-2007 manual), which provides guidance to practitioners on how to score offenders using the STABLE-2007, states that "[r]esearch has yet to examine the extent to which STABLE-2007 provides accurate assessments ... among offenders still in prison while serving long sentences." Even assuming arguendo that the STABLE-2007 was generally accepted as a measure of recidivism risk, the petitioner presented no evidence that it was generally accepted as applied to individuals who -- like the petitioner here -- were serving long sentences of incarceration. See Patterson, 445 Mass. at 645 ("[T]he evidence can only be admitted if, in addition to the reliability of the theory and process in general, the process is reliable when applied to the specific issue about which the expert is proposing to testify").
One of the STABLE-2007 manual's authors, Dr. Karl Hanson, is one of the original developers of the STABLE-2007.
In addition, the judge was not persuaded by the expert witness's presentation of the evidence. The judge found it "troubling" that Dr. Johnson argued that "something was better than noting" when assessing the petitioner's dynamic risk factors. This consideration was warranted where the admission of expert testimony "often ... hinge[s] on the presentations made by the parties," Canavan's Case, 432 Mass. at 312, and the judge is charged with determining the credibility of an expert witness at a Lanigan hearing. See Patterson, 445 Mass. at 647-648. Thus, the judge did not abuse his discretion by concluding that the petitioner had not met his burden of showing the STABLE-2007's general acceptance for the purpose it was used for here. See Ready, petitioner, 63 Mass. App. Ct. 171, 173 (2005) (no abuse of discretion in exclusion of actuarial device generally accepted for different purpose than how petitioner sought to use it). Contrast Patterson, 445 Mass. at 636 (unanimous acceptance by specialists and "overwhelming" support among general scientific community sufficient to show general acceptance among scientific community).
During the Lanigan hearing, Dr. Johnson was questioned about the validity of the STABLE-2007 as applied in the context of a sexually dangerous person hearing for an incarcerated individual. She responded,
"Would it be great to have a tool that's normed on a[sexually dangerous person] population ...? Sure, it'd be great. We don't have that. What we have is [sic ] tools that have been normed on sex offenders, some of whom have recidivated, some of whom have not, some of whom have been in the community, some of whom have been incarcerated. And it is the best tool that we have that is comparable to what we're doing here. We are evaluating a sex offender who is wanting to go back into the community, and we are trying to determine the risk that he poses to return to the community.
"So, again, it's not a perfect tool but it is better than just using my clinical judgment to determine what I think is the right answer."
The petitioner introduced case law from other jurisdictions where the STABLE-2007 was admitted. However, the petitioner recognizes that "there are no reported cases in Massachusetts which speak to [the STABLE-2007]’s admissibility."
Second, there was no abuse of discretion in the judge's application of the additional Lanigan factors. The evidence presented by the petitioner suggested that, when combined with the Static-99R, the "STABLE-2007 added incrementally to Static-99R in the prediction" of recidivism risk. However, the same study acknowledged that further research was "needed on how best to integrate and interpret tools measuring static and dynamic risk factors into an overall judgment on risk."
Further, as noted supra, the evidence raised questions regarding the STABLE-2007's predictive validity when applied to individuals who were incarcerated at the time of the evaluation, especially those who -- like the petitioner here -- had been incarcerated for long periods of time. The STABLE-2007 manual cautions evaluators about the "change in controlled environments" when assessing incarcerated individuals, and notes that "items are primarily scored based on expected behaviour ... which may or may not be consistent with the individual's current or recent behaviour in prison." While encouraging practitioners to utilize the STABLE-2007 when assessing incarcerated individuals, the STABLE-2007 manual recognized the absence of research assessing its validity when applied to individuals serving long sentences.
The manual noted a 2012 study validating the STABLE-2007 on a group of prisoners. However, the study subjects had undergone short periods of incarceration, such that the subjects had recent "experience in the community." The manual distinguished this validity from cases where prisoners had served "sufficient time that it is reasonable to expect that previous community behaviour would no longer be a valid indicator of future community behaviour."
Without relevant peer-reviewed publication on the subject, the judge was also not compelled to conclude that the STABLE-2007 had an acceptable error rate. To the extent the evidence showed testing of the STABLE-2007 and standards governing its application, the judge did not err by concluding these Lanigan factors were insufficient to demonstrate reliability of the STABLE-2007 as applied here. See Patterson, 445 Mass. at 645. See also Commonwealth v. Rintala, 488 Mass. 421, 438 (2021) ("judge has broad discretion to weigh" Lanigan factors [quotations and citation omitted]).
Ultimately, the judge was unpersuaded that "the [p]etitioner ha[d] demonstrated the reliability of [the STABLE-2007] for this type of a proceeding." Where evidence raised doubts about the STABLE-2007's reliability as applied to the circumstances in this case and the judge did not find the expert's presentation of the evidence compelling, it was not an abuse of discretion for the judge to conclude that the petitioner had not met his burden. See Commonwealth v. Soares, 51 Mass. App. Ct. 273, 281-282 (2001) ("The judge correctly determined, in the exercise of a traditional fact-based inquiry, that in the circumstances of this case the test would not be reliable"). We discern no error in the exclusion of the STABLE-2007 on this record.
To be clear, we do not hold that evidence of the use of and results from the STABLE-2007 are per se inadmissible. Rather, we hold that in this specific case, on this specific record, we cannot say that the judge abused his discretion in the exclusion of the STABLE-2007.
Judgment affirmed.