Washington Supreme Court Holds Insanity Acquittee Must Be Found Dangerous before Conditional Release May Be Revoked; Preponderance of Evidence Is Appropriate Standard

State v. Bao Dinh Dang, 178 Wash.2d 868, 312 P.3d 30 (2013)

The Washington Supreme Court has upheld the trial court’s revocation of an insanity acquittee’s conditional release based upon its finding of dangerousness. In so doing, it reversed the decision of the Washington Court of Appeals holding that an acquittee’s failure to adhere to the terms and conditions of his conditional release is sufficient alone to justify revocation. The Supreme Court also determined that a preponderance of the evidence standard of proof is sufficient to support revocation. Finally, the Court held that the trial court must find good cause to admit both documentary and testimonial hearsay evidence in a limited due process rights hearing such as conditional release revocation.

In November 2006, Bao Dinh Dang walked up to a gas pump at a Chevron station in Seattle, set fire to a newspaper, and attempted to pump gas in order to ignite the gas supply. The station attendant successfully knocked the newspaper out of Dang’s hand with a windowwashing squeegee while a customer called the police. Dang was arrested and charged with attempted arson. At trial, Dang raised the insanity defense. The trial court acquitted Dang by reason of insanity, and in the same order, released him on conditional release. As part of his conditional release, the court required Dang to report to a Department of Corrections community corrections officer, live with his mother in Washington, not possess explosives, break additional laws, or drink alcohol, and seek psychiatric treatment at Harborview Medical Center and follow all treatment recommendations. Dang’s conditional release was further contingent on his mental illness being in a state of remission and on his having no significant deterioration in his mental condition.

Dang’s conditional release proceeded without incident until the summer of 2008 when the trial court permitted him to travel to Vietnam for one month. Following his return from Vietnam, Dang’s community corrections officer and Harborview case manager noticed he was exhibiting signs of depression and paranoia. Dang’s case manager reported that Dang stated he was not taking medication and felt like setting a gas station on fire. He told his community corrections officer he wanted to “do something big.” The corrections officer and case manager also noticed that Dang was experiencing delusions concerning his mother’s power and control over him. When Dang was taken to Harborview Mental Health Services, he recanted his statements and was released.

The State then moved the court for a bench warrant for Dang’s arrest and commitment pending a hearing on his conditional release. The court issued the warrant, ordering Dang’s commitment to Washington’s Western State Hospital for evaluation and treatment. During this period, several reports were issued concerning Dang’s mental health outlining his treatment and recommending he not be released due to his risk for future violence and criminal behavior.

After extensive evaluations, the State moved to revoke Dang’s conditional release. At the hearing, the court heard testimony from the community corrections officer, case manager, a Department of Social and Health Services psychologist, Dang’s mother and Dang. Several of the witnesses testified that his mental health had deteriorated and he should remain hospitalized. The trial court also permitted Dang’s case worker and a community corrections officer to testify about statements made by Harborview Medical Center’s mental health providers about his desire to blow up a gas station. Following the hearing, the court revoked Dang’s conditional release and while his appeal was pending, issued findings of fact and conclusions of law finding, among other things, that Dang’s mental disease had not remained in a state of remission and his release would present a substantial danger to others and jeopardize public safety.

The Court of Appeals affirmed the revocation of Dang’s conditional release based on Dang’s non-adherence to the terms and conditions of his release but found a specific finding of dangerousness was not required. That Court also determined that preponderance of the evidence was the appropriate standard of proof in a conditional release revocation hearing. The Court of Appeals also held that in cases limiting due process rights to confront and cross-examine witnesses, such as parole revocation hearings, only documentary hearsay evidence was prohibited but hearsay could be admitted through live testimony.

The Washington Supreme Court affirmed the Court of Appeals, holding that Dang’s conditional release was properly revoked by the trial court based upon its finding of his actual dangerousness. But the Supreme Court found that failure to adhere to the terms and conditions of conditional release alone are not sufficient to revoke conditional release. A specific finding of dangerousness before an acquittee may be confined is required. In so holding, the Court relied on prior United States Supreme Court cases, including O’Connor v. Donaldson, 422 U.S. 563 (1975), that held a finding of mental illness alone is not sufficient to confine a person against his will if he is not dangerous to anyone and can live safely in freedom. Similarly, Foucha v. Louisiana, 504 U.S. 71 (1992), held that an insanity acquitted may continue to be confined as long as he is both mentally ill and dangerous, but no longer. The Court reasoned that the same dangerousness criteria that applies in the context of civil commitment and continued commitment of insanity acquittees should also apply in the context of conditional release revocation.

The Supreme Court next determined that a preponderance of the evidence standard is appropriate in conditional release hearings even though Dang argued that a clear, cogent and convincing evidentiary standard should be applied. The court found that there are significant differences between civil commitment and commitment following an insanity acquittal. In Jones v. United States, 463 U.S. 354 (1983), the United States Supreme Court found that the insanity acquittee himself raises the insanity defense and therefore a diminished concern for a risk of error in confining the acquittee exists. The criminal conduct which the acquittee acknowledges is also not within the range of generally accepted conduct. Because there is less risk of error in confining an individual in the insanity acquittee context than in the civil commitment context, the lesser standard of proof of preponderance of the evidence is sufficient.

In reviewing the issue of whether hearsay evidence may be introduced at a conditional release revocation hearing, the Court considered various cases involving limited due process hearings where there was good cause to limit the individual’s due process rights to confront and cross-examine witnesses, such as Morrissey v. Brewer, 408 U.S. 471 (1972), involving parole revocation. Other similar cases involved sentencing modification hearings due to violations of community custody terms and conditions, and revocation of special sex offender sentencing alternatives. Similarly, a trial court’s revocation of an insanity acquittee’s conditional release implicates a conditional liberty interest dependent on the observance of special terms and conditions. Under these situations, hearsay evidence may be considered if the trial court finds good cause to forgo live testimony.

In this case, the trial court permitted Dang’s case manager and community corrections officer to testify about statements made by other Harborview mental health providers about his desire to blow up a gas station. The trial court did not engage in a good cause analysis of the difficulty and expense of procuring live witnesses or the reliability of the evidence, which the Supreme Court found was error. The Court, however, found that this was harmless error because there was enough direct evidence in the record to support its finding of dangerousness. Nonetheless, the Supreme Court found no distinction between documentary evidence and live testimony evidence as the court of Appeals did, and held in both instances that the trial court must articulate a good faith basis for considering either type of evidence.

Found in DMHL Volume 33 Issue 2