Texas District Judge Michael Seiler abused his position for years, and only now is he "coming under fire"

How this judge remains on the bench is beyond me. He's obviously biased and has been reprimanded numerous times. Yet, this judge is still allowed to sit on the bench.

http://www.houstonchronicle.com/news/houston-texas/houston/article/Judge-in-controversial-sex-offender-program-under-5986273.php

Judge in controversial sex offender program under fire

Critics say Montgomery County jurist's version of Texas justice crosses the line

By Anita Hassan and Mike WardDecember 30, 2014 Updated: December 31, 2014 6:43pm

CONROE - Sixteen times in the past four months, defense attorneys have petitioned to have him removed from hearing cases because of perceived bias. Eight times he has gotten the boot. Seven times in six years, appeals courts have found he abused his discretion in rulings.

But state District Judge Michael Seiler, who campaigned as "a prosecutor to judge the predators," remains the chief enforcer in Texas' troubled civil-commitment program, a treatment program designed to keep dangerous sex predators off the streets and from which no one has ever graduated.

Now, the jurist who has publicly described the offenders who face him in court as "psychopaths" and once suggested treating sex offenders with castration from the neck up, has become a flashpoint for criticism over whether his version of Texas justice has crossed the line.

Some attorneys and legislative leaders are suggesting that Seiler should be stripped of his role as sole arbiter of the sex-offender cases and are calling for sweeping reforms that could redefine the entire program.

"The statute needs to be changed so that all the cases do not happen in Montgomery County," said Barbara Corley, who retired last month from the State Counsel for Offenders, the state-funded office that represents convicts in court, where she once supervised civil-commitment hearings. "Everything shouldn't be concentrated in one judge."

Seiler refused repeated requests to explain his position. A court aide said he would not discuss his courtroom business.

For a program already facing state audits and investigations over contract irregularities and operational mistakes, the controversy over how Seiler dispenses justice in his Montgomery County courtroom has become the newest legal challenge amid numerous pending federal lawsuits that are questioning its constitutionality.

Key issues include why is it officially deemed an "outpatient" program, when all of the offenders in it are confined in jails and halfway houses, and whether officials have systematically sent offenders back to prison for minor violations of rules as a way to ensure that no one ever graduates...

Program started in 1999

Texas' civil-commitment program was created in 1999 as a way to keep sexually violent predators in state custody and was part of a national movement designed to prevent new victims.

In order to be committed, an offender must have committed at least two violent offenses and be deemed to have a "behavioral abnormality."

But because the offenders had already served their prison sentences and paid their debt to society, civil-commitment programs nationally have faced continuing legal challenges over whether states can deny those offenders their freedom.

The U.S. Supreme Court has ruled that the programs are constitutional because they serve as treatment programs.

Since he was appointed to the court in 2008 by Gov. Rick Perry, Seiler, a former Montgomery County assistant district attorney, has signed more than 200 civil-commitment orders and holds about 50 new trials a year, records show. Under a state law approved in 2007, Seiler's is essentially the only court in Texas designated to officiate over the civil-commitment cases.

In all, more than 360 men are currently in the program, more than half of them in prison or jail for violating the treatment-program rules.

In addition to signing the original commitment orders, Seiler also ultimately decides who gets out of the program. In addition he presides over trials that determine who goes back to prison for violating program rules.

Texas is the only state in the nation to make those violations - which range from yelling, to being late for appointments and not taking medication - a felony crime.

Facing the jury

In a mid-November trial, Andre Vittroni Johnson, who was nearing the end of his 24-year sentence in prison for raping four women in Houston, sat in Seiler's Conroe courtroom as a jury considered whether he should be placed in the civil-commitment program.

He had already spent more than half of his life behind bars.

State prosecutors argued that he posed a continuing danger to society, and was likely to re-offend. As in all civil-commitment cases, Johnson, 40, had been brought to court by the state's Special Prosecutions Unit that handles prison crimes after he was screened for inclusion into the program by a so-called MDT - short for Multi-Disciplinary Team - made up of prison officials, state police and treatment professionals, among others.

Johnson's attorneys disputed their determination, offering the testimony of an expert witness who insisted he posed no continuing threat.

As that testimony began, Seiler leaned back in his large, leather chair and swiveled 180 degrees to the left, facing the jury with his eyes closed. Johnson's sister, Nicoya Waits of Houston, watched the crucial testimony that would determine whether her brother would ever see freedom again.

By the end of the day, the jury had decided that Johnson was a sexually violent predator. Seiler ordered him into civil commitment.

While higher courts have repeatedly upheld the legality of civil commitments, defense attorneys complain that Seiler's actions in and out of court are improper. And they have made that clear by filing in increasing numbers to have him removed from hearing those cases.

Chief among the complaints against Seiler is that his court has a predisposition against convicted sex offenders.

"Judge Seiler makes apparent that he views his position as prosecutorial rather than impartial," attorney Zachary Lee, with the State Counsel for Offenders, wrote in a motion for Seiler's recusal in the case of convicted sex-offender Troy Plaisance. "Judge Seiler's labeling of all sex offenders before him as 'predators,' before they are adjudicated as such connotes a bias."

That motion, and five others for recusal, were granted on Dec. 11.

Since September, attorneys have filed at least 16 motions calling for Seiler to be recused. Eight have been granted so far, by three different judges.

Those motions cite Seiler's 2008 election campaign slogan that claimed he was a "prosecutor to judge the predators," as well as a March 2013 speech to a Woodlands tea party organization in which he referred to offenders in the civil commitment program as "psychopaths."

In that same speech, a video of which was posted on YouTube, he suggested juries take a long time deliberating cases in his court because "they just want to make it look official."

The video was removed from YouTube in November, after several recusal petitions were filed.

Attorneys also referenced a news article about an appearance Seiler made to a Montgomery County Republican Women meeting in 2011 where, in response to a question about whether castration is successful in stopping predators, Seiler said it would be ineffective because sexual offending is a mental illness.

"The castration would have to kind of occur at neck level," he was quoted as saying.

Slippery slope for attorneys

Nancy Bunin, a Houston attorney who successfully had Seiler removed from hearing the cases of two of her clients, said filing for a removal is a slippery slope for attorneys, because if they lose, they may still have to try cases before that same judge. But she felt she had to take the step because "I just didn't feel he could be fair," she said

Of the 16 who filed recusals, eight were denied by two judges, with one of them saying during a hearing he felt Seiler's campaign slogan was not showing bias, but was merely referencing his résumé as a prosecutor.

An attempt in 2013 to remove Seiler from a civil commitment case was denied on appeal by judges on 9th Court of Appeals in Beaumont, who nevertheless found that Seiler's campaign slogan and reported comments "may raise a serious question about his fairness as a judicial officer."

Seiler's courtroom demeanor and decisions also have drawn scrutiny.

At Johnson's trial, for instance, Seiler repeatedly overruled his attorneys' objections, sometimes before they had even stated the grounds of the objection. Seiler also berated Johnson's attorney when he objected in the middle of a prosecutor's closing argument.

"He didn't treat the prosecution that way," said Nicoya Waits, Johnson's sister. "It all seemed really unfair."

During a 2012 hearing on housing options for about 40 men in the program, Seiler blocked the offenders from speaking and told Barbara Corley, their attorney, to "be quiet" when she tried to object and threatened to "throw her out of the courtroom," according to a transcript.

"He effectively denied me the right to represent my clients," Corley said.

Seiler has also come under fire by attorneys for his casual conversations with prospective jurors, particularly about his love for his 10-year-old daughter, Rachael, who suffers from Rett syndrome, an incurable genetic neurological disorder that causes difficulty with speech and muscle control.

Curtis Barton, an attorney with the Harris County Public Defender's Office who formerly tried civil-commitment cases in Seiler's court, said although the judge's conversations with jurors appear casual, he finds them troubling, because many of the defendants have been convicted of sex crimes involving children.

"When he gets up there and just starts pontificating to the jury about his daughter who has a disability, it might make them feel even more bad about something the person might have done in the past, and could influence their decision, " Barton said. "It's just an improper conversation to be having with people who could be on the jury."

A series of problems

The questions about Seiler's court represent just the latest in a series of issues that surfaced during a Chronicle investigation into contract and operational irregularities in the Office of Violent Sex Offender Management, the tiny agency that supervises offenders in civil commitment.

Those issues range from a botched attempt to secretly place offenders in residential neighborhoods in Houston and Austin, to a lack of treatment programs for mentally ill and disabled offenders.

Two separate investigations and a state audit are currently underway. Most of the top officials at the agency have resigned under fire.

Marsha McLane, a veteran parole and prison official who took over as executive director of the troubled agency in May, has initiated a series of policy changes to correct many of the problems.

When she introduced herself to Seiler for the first time in July, the meeting did not occur, as she expected, at his office, but in the courtroom - with him sitting on the bench and a court reporter making an official transcript of the proceedings.

According to the transcript obtained by the Chronicle, when McLane asked if Seiler would consider requiring some offenders to spend at least some time in a state hospital, where their needs might be better met, he declined, saying their mental health could be determined at a criminal trial after they violated program rules.

"Once they hit the criminal part of it, then they can be - have a mental competency evaluation and be sent off to the state hospital, where they are then kept there with the charge pending," Seiler said.

Attorney Barbara Corley said this was tantamount to criminalizing disability.

Decisions reversed

In at least seven cases, appellate courts have sided with defense attorneys, reversed Seiler's decisions in civil commitment cases and ordered new trials. Almost all civil-commitment cases are sent for appeal.

In four of those reversed cases, court records show, Seiler granted prosecutors' motions to exclude testimony of the defense's expert witness, who are the only witnesses in those trials who could dispute prosecutors' claims.

In a 2012 appellate opinion reversing Seiler's judgment in the civil commitment of Lester Winkle, Justice Charles Kreger wrote that by excluding the defense's expert testimony, Seiler blocked the only evidence the defendant had favoring a finding that he would not, beyond a reasonable doubt, likely re-offend. But in a dissenting opinion, now-retired Justice David Gaultney stated that the expert's opinion lacked sufficient evidence and his testimony would not have changed the trial's outcome.

In addition, jurors are often not advised what civil commitment is, attorneys said.

They also contend Seiler routinely does not allow the words "civil commitment" to be used in the courtroom. When that has happened, he has excused the jury from the room and reprimanded whoever used the phrase.

That is what happened to Carolyn Esparza, a 73-year-old social worker, when she testified during Johnson's trial and made a reference to his civil-commitment petition. Seiler's actions left her confused and angry, she said.

"Doesn't the jury have a right to know what the consequences of what they are doing?" she said later. "They should know that they are sending someone into a treatment program that no one has been released from in 15 years. That's 100 percent failure."

Echoing the opinion of other legal experts, Melissa Hamilton, a visiting criminal-law scholar at the University of Houston Law Center who specializes in the civil commitments, said an explanation of the program is not specifically prohibited and could be allowed by a judge.

Not doing so, she said, could be "about crafting a message."