PRESENT: All the Justices

JACK HARVEY
                                                            OPINION BY
v. Record No. 180015                              JUSTICE STEPHEN R. McCULLOUGH
                                                            June 27, 2019
COMMONWEALTH OF VIRGINIA

          FROM THE CIRCUIT COURT OF THE CITY OF COLONIAL HEIGHTS
                           Steven C. McCallum, Judge


JOHN WESLEY THOMAS, II,

v. Record No. 180764

COMMONWEALTH OF VIRGINIA

                FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
                              David B. Carson, Judge

       The respondents, both previously adjudicated to be sexually violent predators, were

committed to the Department of Behavioral Health and Developmental Services after a trial

court determined they had violated the terms of their conditional release. They argue that,

because they are indigent, the Due Process Clause requires the State to appoint a psychological

expert to assist them in a hearing. The purpose of the hearing is to determine whether the

respondents violated the conditions of their release and whether these violations render them

unsuitable for conditional release. Hearings must occur on an expedited basis and a respondent

will subsequently be re-evaluated, upon request, within six months of his recommitment or

sooner depending on the scheduling of the annual review. We conclude that, in this specific

context, given the temporary, expedited nature of the hearing and the other protections afforded

to the respondents, including the right to counsel, the Due Process Clause does not require the

State to appoint an expert.
                                         BACKGROUND

JACK HARVEY

         Harvey was convicted of sexual battery in 1983. In 1995, he was convicted of indecent

liberties and solicitation to commit sodomy. According to the pre-sentence report, Harvey

sexually molested three young boys over a period of several months. The boys were 8 to 14

years old. One of the victims reported that Harvey engaged in oral sex with him every other

weekend, placing a pillow over his mouth and threatening to shoot him in the brain if he told

anyone. The second victim testified that Harvey would lock him in a room and participate in

“sex games” with him. The third boy testified that Harvey would take his clothes off but he

resisted. This boy reported that he was not molested as much as the other boys because he was

older.

         Harvey was adjudicated to be a sexually violent predator (“SVP”) in 2011 and committed

for secure treatment to the Virginia Center for Behavioral Rehabilitation (“VCBR”). After

several years of treatment at VCBR, he was granted conditional release in November 2014. One

of the conditions of his release was that he “will follow the Probation and Parole Officer’s

instructions and will be truthful, cooperative, and report as instructed.” He was also instructed to

“not frequent places where children congregate.”

         On March 11, 2016, Harvey was the subject of an emergency custody order for violating

the terms of his conditional release. His probation officer reported that:

                On 8/4/15, Harvey admitted to using [a] phone service
                “MegaMate” to solicit other males for oral sex. Reported meeting
                up and exchanging oral sex with 2 different men. Harvey is
                instructed to not use any form of social networks and that he must
                disclose his sex offender/SVP status which he reported that he did
                not do. He was instructed not to use this service. On 3/9/16,
                Harvey admitted to calling [the phone service] 2-3 times since as
                well as using another similar service at least 3 times. He admitted



                                                 2
                to attempting to solicit the exchange of oral sex, however, due to
                technical difficulties with the system he was not able to set up
                these meetings. He further admitted had he been successful in
                meeting these men, he did not plan to advise them he is a sex
                offender.

Three days later, Harvey’s probation officer submitted a “Major Violation Report” detailing

Harvey’s failure to abide by certain conditions of his release, notably failing to follow the

instructions of his probation officer and frequenting a place where children congregate.

       On April 28, 2016, Dr. Glenn Rex Miller, a licensed clinical psychologist, issued a

ten-page report. In preparing his report, Dr. Miller reviewed court records, treatment notes, and

interviewed Harvey. Among other things, Dr. Miller detailed Harvey’s poor response to

community supervision and his disregard of his probation officer’s instructions. The report

concluded that Harvey did not meet the criteria for conditional release, and that outpatient

supervision and treatment “do not appear appropriate at this time.” Dr. Miller concluded that

Harvey “needs treatment in a secure environment to prevent his condition from deteriorating.”

       Harvey filed a motion for the appointment of an expert, arguing that the Due Process

Clause required the state to provide him with a defense expert. The circuit court denied the

motion. 1 Following a hearing that included testimony from his probation officer, the circuit

court concluded that Harvey had violated the conditions of his release and that he was “no longer

suitable for conditional release.” The circuit court revoked his conditional release and

committed him to the custody of the Department of Behavioral Health and Developmental

Services (the “Department”). 2




       1
           Judge Edward A. Robbins, Jr. entered an order to this effect on August 29, 2016.
       2
           Judge Steven C. McCallum entered this order on October 4, 2017.


                                                 3
JOHN WESLEY THOMAS, II

       Among other things, Thomas was convicted of carnal knowledge of a 13-year-old girl.

He was also convicted of breaking and entering and sexual battery. While incarcerated, he

received four institutional infractions for inappropriate sexual behaviors, including exposing

himself while masturbating.

       Thomas was adjudicated as an SVP in 2012. He was granted conditional release status in

May 2015. Thomas was required to comply with numerous detailed and onerous conditions in

order to be placed on conditional release:

       II. Supervision: Persons placed on conditional release will be supervised
       by the DOC Office of Community Corrections, probation and parole. As
       such, Mr. Thomas, having been found a sexually violent predator, will be
       subject to the following DOC conditions.
            Standard DOC conditions of supervision as a sex offender.
            Mr. Thomas shall abide by the laws of the Commonwealth of
               Virginia; conditions of his probation/parole and be of good
               behavior; he will follow all probation/parole/supervising officers’
               instructions and will be truthful, cooperative and report as
               instructed once released from parole/probation.
            Warrantless searches of person, vehicle, computers, or real
               property by law enforcement officers based on “reasonable
               suspicion.”
            Will register as a sex offender in Virginia and or the state of
               residence.
            Have no contact with his victims or their families, either directly or
               by third party, without the permission of his supervising officer.
            Participation in and successful completion of any sexual offender
               assessment, treatment, technological monitoring to include GPS or
               other electronic methods, and polygraphs for treatment use as
               directed by the DBHDS Office of SVP Services and the
               supervising probation and parole officer.
            Report to his assigned supervising officer on the day he is released
               from custody.
            Be seen in person by his supervising officer or designee at least
               once per week for at least six months from his release date. After
               his six month review, the number of contacts may be reduced with
               the approval of OSVP Services.
            Receive a minimum of one home visit per month from his
               supervising officer or designee.



                                                4
      Maintain a landline phone for the purpose of GPS supervision if
       required by his supervising officer.
      Payment for any fees related to these services is the responsibility
       of the individual. The Commonwealth may or may not be able to
       provide some financial support for treatment.
      Have no unsupervised contact with minors, defined as persons
       physically or mentally younger than 18 years old, unless by prior
       approval of his supervising officer, the OSVP, and the court.
      Keep a log of incidental contact with any minors to be surrendered
       to his supervising officer and polygrapher upon request; he will
       answer polygraph questions about the accuracy of his entries.

                         *       *       *

At a minimum, any home plan should meet the following minimum
conditions.
    (1) Mr. Thomas will reside at the address approved by his supervising
        officer, any moves will be approved by his supervising officer,
        who will immediately notify the office of SVP and OAG of the
        changes.

   (2) He shall live in a home in which no minors are residents, overnight
       visitors, or are left under his supervision for any period of time.

   (3) He shall not view or possess any sexually explicit or suggestive
       materials, either print, photo, or electronic in any format.
    He shall not establish nor visit any electronic networking sites.
    He shall not access pornographic or otherwise sexually explicit
       sites.
    He shall, upon instruction from his supervising officer, submit any
       and all electronic devices with data storage capability, including
       but not limited to; computers, cell phones, mp3 devices, cameras
       and gaming systems to his supervising officer for forensic
       examination.
    Mr. Thomas will have privileges to use a computer for job search,
       work, or applying for disability, banking, etc.

                             *       *       *

Treatment needs:

Sex offender treatment: To assist Mr. Thomas in maintaining abstinence
from sexual aggression, if granted SVP conditional release he will:
   (1) Mr. Thomas will participate fully with all requirements of sex
       offender treatment including attending all scheduled appointments
       and successful completion of the program, with a practitioner or



                                         5
      group practice certified by Virginia as a Sex Offender Treatment
      Provider. He shall sign a release giving his supervising officer full
      permission to communicate with the practitioner or group practice
      providing this treatment.

   (2) Mr. Thomas will be responsible for the costs of his treatment and
       medications.

   (3) He shall neither use nor possess any item which his supervising
       officer and/or sex offender treatment provider determines to be
       counter-therapeutic or possibly related to offending behaviors.

   (4) He shall comply with any recommended assessments including but
       not limited to a penile plethysmograph and/or visual reaction time
       testing.

   (5) He shall sign a release giving his supervising officer full
       permission to communicate with the practitioner or group practice
       providing this treatment.

Substance abuse treatment:

   (1) He shall abstain completely from using or consuming any and all
       illegal controlled substances and alcohol.

   (2) Mr. Thomas shall receive any and all prescribed psychoactive
       medications through one physician and one pharmacist. His
       supervising officer will have access to this individual or group.

   (3) Mr. Thomas will participate in laboratory assessment for non-
       approved substances in accordance with instructions from his
       assigned supervising officer. He shall sign a release giving his
       supervising officer full permission to communicate with the person
       or agency administering this testing.

   (4) Mr. Thomas shall enter into, actively participate in, and
       successfully complete a substance abuse evaluation and treatment
       with a practitioner or group practice certified by Virginia. He shall
       sign a release giving his supervising officer full permission to
       communicate with the practitioner or group practice providing this
       treatment.

   (5) Mr. Thomas will participate in AA meetings, attending his first
       meeting within 24 hours of release. He will attend a minimum of 2
       meetings per week for the first six months. Once he has completed
       six months of meetings he will attend a minimum of 3 meetings



                                         6
              per month until his supervising officer determines that these
              meetings are no longer necessary. He shall sign a release giving
              his supervising officer full permission to verify his attendance.

           Mental health treatment: Mr. Thomas has a history of anxiety and
           stress; he was prescribed Vistaril, a mild anxiolytic to help him sleep.
           He will be referred to a local psychiatrist to follow him and prescribe
           medications if deemed necessary.

           Regular examination: To prevent his use of illegal or other controlled
           substances that can disinhibit him to sexually abusing, and to
           encourage him to recognize and fully disclose any and all sexually
           abusive or victim-focused “grooming” behaviors:

           (1) He shall complete a clinical polygraph on questions prepared by
               his treatment provider in coordination with his supervising officer
               six months after being placed on conditional release and thereafter
               at the request of his treatment provider, supervising officer or the
               Department. He shall sign a release giving his treatment provider
               and supervising officer full permission to communicate with the
               person or agency administering this testing, with reports forwarded
               to his treatment provider, supervising officer and the Department.

           Employment: To reduce his free unsupervised time Mr. Thomas will
           seek viable employment and/or appropriate leisure time activities. Mr.
           Thomas is pursuing social security benefits. If employed his
           attendance will be verified on a regular basis and any changes will be
           reported immediately to his supervising officer. Prior to beginning or
           engaging in new activates he will consult with his supervising officer.

           Social support network: The conviction that made him SVP-eligible
           was for sexual aggression towards an adolescent and an adult female.
           To protect family, friends, and associates from his aggressive
           tendencies:

           (1) Mr. Thomas will receive approval from his supervising officer to
               attend functions where minor children will be or where his risk
               factors would be escalated. Mr. Thomas will also avoid functions
               where alcohol or drugs or other criminal activities are present,
               (Restaurants and family approved functions are excluded).

       In June of 2016, Thomas was subject to an emergency custody order after he was arrested

for driving while intoxicated. Dr. Miller conducted an SVP Conditional Release Evaluation. He

concluded in his report that, despite “a number of issues that are of concern,” Thomas may



                                                 7
remain an appropriate candidate for conditional release. In August of 2016, the Commonwealth

and Thomas agreed to amend his conditional release plan and release him under this modified

plan.

        Following another violation of the terms of Thomas’ conditional release, Dr. Miller

issued a second report in which he opined that Thomas was not appropriate for conditional

release. On March 30, 2017, the court again found that Thomas had violated the conditions of

his release. In April 2017, over the objections of the Commonwealth, the court again ordered

Thomas released, provided he first completed a substance abuse program. In August 2017, after

he completed this program, the court ordered Thomas conditionally released.

        In October 2017, after he submitted a urine screen that tested positive for cocaine,

Thomas was, for the third time, the subject of an emergency custody order for violating his

conditional release plan. Thomas, invoking the Due Process Clause, filed a motion asking for

the court to appoint Dr. Craig S. King to act as his psychological expert. The court denied the

motion for a psychologist, but granted the motion allowing him $1,000 to secure a toxicologist.

The court ultimately concluded that Thomas had violated the conditions of his release and that

his conditional release should be revoked. Accordingly, the court committed him to the custody

of the Department.

                                           ANALYSIS

        I.     THE DUE PROCESS CLAUSE DOES NOT REQUIRE THE APPOINTMENT OF A DEFENSE
               EXPERT IN EXPEDITED HEARINGS TO DETERMINE WHETHER AN SVP VIOLATED THE
               CONDITIONS OF HIS RELEASE AND SHOULD CONTINUE ON CONDITIONAL RELEASE.

        Both Harvey and Thomas argue that, because they are indigent and cannot afford to hire

an expert, the Due Process Clause requires the government to provide them with an expert to

assist them in a hearing, the purpose of which is to determine whether they violated the




                                                 8
conditions of their release and whether they are no longer suitable for conditional release. Code

§ 37.2-913(D). 3

       The Fourteenth Amendment of the United States Constitution provides that a state cannot

“deprive any person of life, liberty, or property, without due process of law.” “[D]ue process,

unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place

and circumstances.” Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 162 (1951)

(Frankfurter, J., concurring). Rather, it is “flexible and calls for such procedural protections as

the particular situation demands.” Morrissey v. Brewer, 408 U.S. 471, 481 (1972). The core of

due process is notice and the opportunity to be heard before an impartial tribunal. See, e.g.,

Pappas v. Virginia State Bar, 271 Va. 580, 587 (2006). In some circumstances, however, due

process requires more. For example, an indigent criminal defendant facing incarceration is

entitled to court appointed counsel. Gideon v. Wainwright, 372 U.S. 335 (1963); Argersinger v.

Hamlin, 407 U.S. 25 (1972).

       In Mathews v. Eldridge, 424 U.S. 319, 321 (1976), the Court articulated a three-factor

framework to determine the scope of due process protections:

               (1) the private interest that will be affected by the official action;
               (2) the risk of an erroneous deprivation of such interest through the
               procedures used, and probable value, if any, of additional
               procedural safeguards; and (3) the Government’s interest,
               including the fiscal and administrative burdens that the additional
               or substitute procedures would entail.


       3
          Thomas perplexingly argues that we should apply the demanding “strict scrutiny”
standard in interpreting the statute and hold that the statute is “facially invalid” if we do not
interpret it to offer a respondent a psychological expert. He did not raise these arguments at trial.
Under Rule 5:25, we generally will not consider an argument raised for the first time on appeal.
This rule of procedural default applies to constitutional claims. Townsend v. Commonwealth,
270 Va. 325, 332 (2005). Although Rule 5:25 permits the Court to exercise the discretion to
consider arguments raised for the first time on appeal “to enable [it] to attain the ends of justice,”
we see no reason to apply the ends of justice exception in this case and, therefore, we do not
address the argument.


                                                  9
See also Ake v. Oklahoma, 470 U.S. 68, 77-80 (1985) (applying the Mathews three-factor

framework).

       Harvey and Thomas analogize their case to Ake v. Oklahoma. In Ake, a capital murder

case, an indigent defendant asked the court to provide him with a psychiatrist for the purposes of

making an insanity defense. Id. at 72. He also requested the services of an expert to oppose the

prosecution’s expert on the question of “future dangerousness,” one of the factors relevant to a

death sentence. Id. at 72-73.

       Upon reviewing the three factors, on the question of an expert to assist the defendant in

mounting an insanity defense, the Court held that

               when a defendant demonstrates to the trial judge that his sanity at
               the time of the offense is to be a significant factor at trial, the State
               must, at a minimum, assure the defendant access to a competent
               psychiatrist who will conduct an appropriate examination and
               assist in evaluation, preparation, and presentation of the defense.
               This is not to say, of course, that the indigent defendant has a
               constitutional right to choose a psychiatrist of his personal liking or
               to receive funds to hire his own.

Id. at 83. On the question of an expert to address “future dangerousness,” the Court held that a

defendant is entitled to expert assistance to present an alternative viewpoint. Id. at 84.

       Ake, of course, was a criminal prosecution, where a defendant is presumed innocent and

where constitutional protections reach their apex. Harvey and Thomas are not defendants in a

criminal case. They are adjudicated SVPs who were released subject to certain conditions. The

Supreme Court has noted that “a civil commitment proceeding can in no sense be equated to a

criminal prosecution.” Addington v. Texas, 441 U.S. 418, 428 (1979). The fact that a respondent

in a proceeding under Code § 37.2-913 is provided “some of the safeguards applicable in




                                                  10
criminal trials cannot itself turn these proceedings into criminal prosecutions requiring the full

panoply of rights applicable there.” Allen v. Illinois, 478 U.S. 364, 372 (1986).

       Harvey and Thomas were provided with, among other due process protections, notice and

the opportunity to be heard as well as court appointed counsel. The question before us is

whether due process also requires the government to provide them with expert assistance.

Applying the three-part framework above, we conclude that the Due Process Clause does not

require the Commonwealth to provide an expert for a hearing under Code § 37.2-913.

       A.      An SVP respondent possesses a recognized, yet diminished, liberty interest.

       Turning to the first factor under Mathews, there is no question that Harvey and Thomas

have a liberty interest at stake. Vitek v. Jones, 445 U.S. 480, 491-92 (1980); Addington, 441 U.S.

at 425. Even in civil commitment proceedings, “[f]reedom from bodily restraint has always been

at the core of the liberty protected by the Due Process Clause from arbitrary governmental

action.” Foucha v. Louisiana, 504 U.S. 71, 80 (1992).

       The liberty interest in this case, however, differs materially from the liberty interest at

stake in a criminal case. A defendant in a criminal case faces the prospect of a potentially

lengthy term of incarceration or even, as in Ake, capital punishment. The potential deprivation of

liberty in a hearing under Code § 37.2-913 is not a fixed term of incarceration or death, but a

revocation of conditional release and short-term civil commitment. Even when an SVP is

committed, the commitment only lasts until the next hearing or annual review. See Code

§ 37.2-913(D) (allowing an SVP to petition for re-release no sooner than six months from his

return to custody); Code § 37.2-910 (providing for annual review). At their annual review, if

they request discharge, Harvey and Thomas are entitled to be evaluated by a second expert.

Code § 37.2-910(B).



                                                 11
       Further contrasting a civil commitment under the SVP statute with a criminal

prosecution, a defendant in a criminal case is presumed innocent. See Coffin v. United States,

156 U.S. 432, 453 (1895) (“The principle that there is a presumption of innocence in favor of the

accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the

foundation of the administration of our criminal law.”). In contrast, Thomas and Harvey have

already been found, by clear and convincing evidence, to be “sexually violent predators.” Code

§ 37.2-908. A “sexually violent predator” is

               any person who (i) has been convicted of a sexually violent
               offense, or has been charged with a sexually violent offense and is
               unrestorably incompetent to stand trial pursuant to § 19.2-169.3;
               and (ii) because of a mental abnormality or personality disorder,
               finds it difficult to control his predatory behavior, which makes
               him likely to engage in sexually violent acts.

Code § 37.2-900. Although they were conditionally released, their release subjected them to

onerous terms of release, noted above. These terms of release limit an SVP’s liberty, and thus

diminish the liberty interest at issue in Code § 37.2-913 proceedings.

       We also make note in this context of a countervailing interest. A respondent facing a

civil commitment, or recommitment to a secure facility, has an interest in receiving restorative

treatment. A respondent also benefits from not harming, or threatening to harm, third parties,

which could in turn lead to prosecution and incarceration as well as acts of self-defense or

reprisal by victims or their families.

       We recognize the respondents’ liberty interest in avoiding commitment to a secure

facility, but there is no question that an SVP’s liberty interest is a diminished one when

compared to the liberty interests under review in capital cases, like Ake, and other criminal

proceedings.




                                                 12
       B.      The State’s interest weighs against the appointment of an expert.

       The next factor in the Mathews framework is an evaluation of “the Government’s

interest, including the fiscal and administrative burdens that the additional or substitute

procedures would entail.” Mathews, 424 U.S. at 321. The cost of providing an expert, of course,

is involved, but more is at stake. We must also examine the administrative burdens that the

procedure would entail.

       The Commonwealth’s interest in a proceeding under Code § 37.2-913 is protection of the

public from individuals who have already been adjudicated as SVPs. The General Assembly

plainly contemplated expedited proceedings when an SVP has allegedly violated the conditions

of his release. The statutory sentence reports are routinely considered in criminal cases.

Therefore, we conclude that the trial courts did not err in considering the expert’s report.

                                          CONCLUSION

       The decisions below will be affirmed.

                                                                                              Affirmed.



JUSTICE MIMS, with whom JUSTICE GOODWYN and JUSTICE POWELL join, concurring
in part and dissenting in part.

       I concur with the majority that the circuit court properly considered the expert’s report in

Harvey’s proceeding. However, I must write separately because I disagree with the majority’s

conclusion that the Due Process Clause does not require the appointment of a mental health

expert on behalf of a sexually violent predator (“SVP”) in any proceeding to revoke his or her

conditional release.

       The fundamental criterion in determining whether to revoke the conditional release of an

SVP is “whether the [SVP] remains suitable for conditional release.” Code § 37.2-913(B). In



                                                 13
other words, the decision turns not on the mere fact that an SVP has violated the terms of

conditional release but “on the meaning of the fact[,] which must be interpreted by expert

psychiatrists and psychologists.” Addington v. Texas, 441 U.S. 418, 429 (1979) (emphasis in

original). That is because—unlike revoking probation or a suspended sentence under Code

§ 19.2-306, for example—the commitment of an SVP to inpatient treatment is neither punitive

nor retributive. See Kansas v. Hendricks, 521 U.S. 346, 361-62 (1997) (noting that the absence

of punitive, retributive, and deterrent motives are essential to upholding a state’s statutory SVP

civil commitment scheme from constitutional attack on double jeopardy or ex post facto

grounds); see also Senate Doc. No. 30, Virginia State Crime Commission, Report on the Civil

Commitment of Violent Sexual Offenders at 6-7 (1999) (stressing the necessity that Virginia’s

then-pending statutory SVP commitment scheme comply with this requirement).

       That does not mean that the fact or the nature of the violation are irrelevant. The fact that

the SVP has violated the terms of conditional release is a mandatory element for which there

must be probable cause before an emergency custody order may be issued. Code § 37.2-913(A).

The circuit court may not revoke conditional release without finding that the terms were indeed

violated. Code § 37.2-913(D). However, the decision to revoke conditional release must be

based not on the fact that the SVP violated the terms of release, but whether the violation is a

symptom of a relapse in the SVP’s mental health requiring that he or she be recommitted for

inpatient treatment. The nature of the violation is relevant to that inquiry, as reflected in at least

three of the statutory criteria the court may consider when answering it: the SVP’s response to

therapy or treatment; his or her present mental condition; and his or her response to treatment

while on conditional release. Code § 37.2-912(A)(iv)-(vi). But the fact of the violation is simply




                                                  14
one of several indicators that inpatient treatment is again necessary, because of the then-current

state of the SVP’s mental health.

       Having thus established that the outcome of a conditional release revocation proceeding

depends on a mental health expert’s evaluation of the SVP, I am not persuaded that Ake v.

Oklahoma, 470 U.S. 68 (1985), is so readily distinguishable as the majority holds. In Ake, the

Supreme Court of the United States recognized that mental health may be determinative in cases

where it is in question and the role mental health experts play in evaluating it is critical:

       when the State has made the defendant's mental condition relevant to his criminal
       culpability and to the punishment he might suffer, the assistance of a psychiatrist
       may well be crucial to the defendant's ability to marshal his defense. In this role,
       psychiatrists gather facts, through professional examination, interviews, and
       elsewhere, that they will share with the judge or jury; they analyze the
       information gathered and from it draw plausible conclusions about the defendant's
       mental condition, and about the effects of any disorder on behavior; and they offer
       opinions about how the defendant's mental condition might have affected his
       behavior at the time in question. They know the probative questions to ask of the
       opposing party's psychiatrists, and how to interpret their answers. Unlike lay
       witnesses, who can merely describe symptoms they believe might be relevant to
       the defendant's mental state, psychiatrists can identify the elusive and often
       deceptive symptoms of insanity and tell the jury why their observations are
       relevant. Further, where permitted by evidentiary rules, psychiatrists can translate
       a medical diagnosis into language that will assist the trier of fact, and therefore
       offer evidence in a form that has meaning for the task at hand. Through this
       process of investigation, interpretation, and testimony, psychiatrists ideally assist
       lay jurors, who generally have no training in psychiatric matters, to make a
       sensible and educated determination about the mental condition of the defendant
       at the time of the offense.
                Psychiatry is not, however, an exact science, and psychiatrists disagree
       widely and frequently on what constitutes mental illness, on the appropriate
       diagnosis to be attached to given behavior and symptoms, on cure and treatment,
       and on likelihood of future dangerousness. Perhaps because there often is no
       single, accurate psychiatric conclusion on legal insanity in a given case, juries
       remain the primary factfinders on this issue, and they must resolve differences in
       opinion within the psychiatric profession on the basis of the evidence offered by
       each party. When jurors make this determination about issues that inevitably are
       complex and foreign, the testimony of psychiatrists can be crucial and a virtual
       necessity if an insanity plea is to have any chance of success. By organizing a
       defendant's mental history, examination results and behavior, and other
       information, interpreting it in light of their expertise, and then laying out their



                                                  15
       investigative and analytic process to the jury, the psychiatrists for each party
       enable the jury to make its most accurate determination of the truth on the issue
       before them. It is for this reason that States rely on psychiatrists as examiners,
       consultants, and witnesses, and that private individuals do as well, when they can
       afford to do so. In so saying, we neither approve nor disapprove the widespread
       reliance on psychiatrists, but instead recognize the unfairness of a contrary
       holding in light of the evolving practice.
               The foregoing leads inexorably to the conclusion that, without the
       assistance of a psychiatrist to conduct a professional examination on issues
       relevant to the defense, to help determine whether the insanity defense is viable,
       to present testimony, and to assist in preparing the cross-examination of a State's
       psychiatric witnesses, the risk of an inaccurate resolution of sanity issues is
       extremely high. With such assistance, the defendant is fairly able to present at
       least enough information to the jury, in a meaningful manner, as to permit it to
       make a sensible determination.

Id. at 80-82 (internal citation quotation marks, and footnotes omitted). ∗

       The majority discounts Ake’s relevance here, noting that it was a criminal case where the

defendant was presumed innocent until convicted, but SVPs have already had their classification

adjudicated. That is true, but it is important to emphasize that the question of whether an SVP

must be committed or recommitted for inpatient treatment does not—and cannot—flow from his

or her criminal conviction, but from the civil proceeding that led to the classification. In that

respect, adjudicated SVPs on conditional release are similar to anyone who has been determined

to be in need of involuntary admission under Code § 37.2-814 and later discharged under Code

§§ 37.2-837 or -838: the only question to be decided is whether there has been a relapse in their

mental health from the improvement that justified their release from inpatient treatment. There

are three reasons why Ake should apply in this context.




       ∗
          Although the Court noted that “[a] defendant's mental condition is not necessarily at
issue in every criminal proceeding” and required “an ex parte threshold showing to the trial court
that his sanity is likely to be a significant factor” before he accrues the right to an appointed
mental health expert, an SVP’s mental condition is at issue in a conditional release revocation
proceeding, so, as with a criminal defendant who has met the threshold, “the need for the
assistance of a psychiatrist is readily apparent.” Ake, 470 U.S. at 82-83 (italics omitted).


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       First, Code § 37.2-901 affords SVPs the right to counsel and the right to present evidence

and cross-examine witnesses in a conditional release revocation proceeding. Ake explains why

mental health experts are critical for both purposes. An attorney’s legal training and experience

does not qualify him or her, without more, to evaluate a client’s mental health. Only mental

health experts may (1) “analyze the information gathered and from it draw plausible conclusions

about the defendant's mental condition;” (2) “offer opinions about how the [SVP’s] mental

condition might have affected his behavior at the time in question;” and (3) “organiz[e] a[n

SVP’s] mental history, examination results and behavior, and other information, interpret[] it in

light of their expertise, and then lay[] out their investigative and analytic process to the” fact-

finder. Ake, 470 U.S. at 80-81.

       Similarly, an attorney’s legal training and experience alone are no guarantee that he or

she will be able (1) to understand the Commonwealth’s mental health examiner’s report or

“translate a medical diagnosis,” (2) to “know the probative questions to ask of the opposing

party's psychiatrists” “to conduct a professional examination on issues relevant to the defense” or

“prepar[e] cross-examination,” or (3) “to interpret [the Commonwealth’s expert’s] answers.” Id.

at 80-82. Thus, the appointment of a mental health expert is essentially an extension of the right

to counsel. See id. at 83 (“[T]he State must, at a minimum, assure the defendant access to a

competent psychiatrist who will conduct an appropriate examination and assist in evaluation,

preparation, and presentation of the defense.”) (emphasis added).

       Although the majority stresses that the Commonwealth’s expert is independent—“not the

prosecution’s expert or the defense’s expert,” ante at 14—because he or she is designated by the

Department of Behavioral Health and Development Services, rather than the Office of the

Attorney General, that fact does not support its holding in my view. An independent expert




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cannot satisfy the role Ake requires because his or her independence limits what the SVP’s

counsel may discuss, thereby diminishing the utility of having an expert to assist the SVP in the

first place.

        In Turner v. Thiel, 262 Va. 597, 599-600 (2001), we considered a relevant scenario in the

context of reviewing a trial court’s refusal to disqualify a witness who had been designated as a

defense expert after he had reviewed a medical malpractice plaintiff’s records and discussed

treatment and care with the plaintiff’s counsel, with a focus on the questions of negligence and

proximate causation. The expert declined to serve as the plaintiff’s expert and was subsequently

designated by the defendant.

        On appeal, we reversed the trial court’s judgment. We held that the questions to

determine whether to disqualify an expert witness for a conflict of interest were (1) whether it

was objectively reasonable for the first party to conclude that a confidential relationship existed

between the party and the expert, and (2) whether the party disclosed any privileged or

confidential information to the expert. Id. at 601. In assessing what information was privileged

or confidential, we decided that it included “a party’s strategy in litigation, the kinds of experts

that the retaining party expected to employ, a party's views of the strengths and weaknesses of

each side's case, the role of each of the litigant's expert witnesses to be hired, anticipated

defenses, counsel's theory of the case, and counsel's mental impressions.” Id. at 603.

        Obviously, if the mental health expert designated by the Commonwealth for the

conditional release revocation proceeding is not the SVP’s expert, even if he or she is

independent, the SVP’s counsel cannot objectively reasonably conclude that a confidential

relationship exists between the two of them. Consequently, counsel cannot pose the questions or




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solicit the information necessary to fulfill the purpose of the expert required in Ake, because

doing so would reveal confidential information.

       Second, a non-indigent SVP would, under Code § 37.2-901, have the right to retain a

mental health expert both (1) to assist counsel with formulating litigation strategy, identifying

defenses, and assessing the strength and weaknesses of the Commonwealth’s expert’s report and

testimony; and (2) to cross-examine the Commonwealth’s expert and adduce alternative

evidence to rebut his or her credibility or evaluation. In Ake, the Court recognized the right to a

court-appointed expert expressly because failure to do so would result in unconstitutionally

disparate treatment that disadvantaged the indigent criminal defendant solely because of his or

her relative poverty. Ake, 470 U.S. at 81-82 & 82 n.8 (noting “the unfairness of a contrary

holding”). The same disparity would exist here between proceedings to determine the

confinement of an indigent SVP versus a non-indigent one.

       Third, while the liberty interest implicated by commitment to inpatient treatment is

certainly different from the interest implicated by incarceration, it is not entitled to less weight

for Ake purposes. To the contrary, in Vitek v. Jones, 445 U.S. 480, 489, 493 (1980), the Supreme

Court acknowledged that transferring an inmate between prisons does not infringe a liberty

interest when it is within the discretion of corrections officers, but a transfer from a prison to a

mental health facility does. Id. at 493-94. This is not to say that being committed is worse than

being imprisoned, but the consequences of involuntary commitment “are qualitatively different

from the punishment characteristically suffered by a person convicted of crime.” Id. at 493. “A

criminal conviction and sentence of imprisonment extinguish an individual's right to freedom

from confinement for the term of his sentence, but they do not authorize the State to classify him




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as mentally ill and to subject him to involuntary psychiatric treatment without affording him

additional due process protections.” Id. at 493-94.

        Viewed in this light, my analysis of the three factors from Mathews v. Eldridge, 424 U.S.

319, 321 (1976) differs from the majority’s. First, the private interest affected by revocation of

conditional release is significant. Although the SVP has previously been adjudicated to be an

SVP, he or she has also been found to be suitable for conditional release because, in part, he or

she “does not need secure inpatient treatment.” Code § 37.2-912(A)(i). The SVP therefore is in

the same position as immediately after having been adjudicated to be an SVP under Code § 37.2-

908(C), but before the court initially determined whether he or she needed to be committed for

inpatient treatment under Code § 37.2-908(D), or whether alternative treatment options were

adequate under Code § 37.2-908(E).

        Code § 37.2-907(A) entitles an indigent SVP to a court-appointed expert in a Code

§ 37.2-908(C) proceeding, so, by the time of the Code §§ 37.2-908(D) and (E) inquiry, the

SVP’s counsel has had the benefit of that expert’s assistance in interpreting the Commonwealth’s

expert’s report, preparing a defense, and cross-examination. Any evidence adduced from the

SVP’s court-appointed expert is also in the record for the court’s consideration when it decides

whether inpatient treatment is necessary. Thus, the statutory scheme recognizes and addresses

the Ake concerns about the uniqueness of mental health experts for the initial treatment decision,

and it must also do so at later stages when the issue arises again.

        Second, the Commonwealth’s countervailing interest is minimal. The Supreme Court in

Ake determined that the financial burden of providing a single mental health expert is

insubstantial, and it was “difficult to identify any interest of the State, other than that in its

economy.” Id. at 78-79. Although the majority succeeds where Ake failed by identifying an




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additional, administrative burden, that, too, is insubstantial. Although Ake requires that the SVP

have access to a mental health expert who may provide confidential assistance to counsel, the

Supreme Court expressly stated that this right does not include a “right to choose a psychiatrist

of his personal liking or to receive funds to hire his own.” Id. The due process concern is that

the SVP have an expert in whom counsel may confide to obtain objective assistance. The time it

takes to identify and appoint such an expert, and to allow him or her to collect the necessary

information to discharge the function envisioned in Ake, should not be substantially longer than

the time it takes the Commonwealth’s expert.

       Third, the risk of error if the SVP does not have an expert is not slight, and the value of

the added procedural safeguard of appointing one is not minimal. As Ake illustrates, depriving

the SVP of a mental health expert impairs the right to counsel. Although the independence of the

Commonwealth’s expert may insulate the proceeding from bias, independence is no guarantee

that the professionally-uncritiqued evidence adduced from a single expert will be untainted by

oversight or mistake, and counsel cannot reliably identify such oversight or mistake, if it exists,

without the aid of an expert.

       For these reasons, I conclude that the Due Process Clause may require the appointment of

a mental health expert on behalf of an SVP in a conditional release revocation proceeding. I

therefore respectfully dissent.




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