Metropolitan News-Enterprise


Friday, November 17, 2006


Page 3


Lawyer Has Final Say Whether Sexually Violent Client Testifies—C.A.


By a MetNews Staff Writer


A convicted sexually violent predator has no due process right to testify over his attorney’s objection during a recommitment trial under the Sexually Violent Predators Act, the Fourth District Court of Appeal ruled yesterday.

Div. Two upheld a judgment committing Tony L. Allen for up to two additional years at Atascadero State Hospital. San Bernardino Superior Court Judge Kenneth G. Ziebarth entered the judgment after a jury found that Allen continued to be a sexually violent predator under the act.

Allen had two convictions for offenses that occurred in 1990. In both crimes, he entered the victims’ cars as the women were in or getting in, and told them to drive to a secluded location, where he raped and/or sodomized them.

After serving a prison term, Allen was found to be a sexually violent predator under the SVP Act, and was committed to the state hospital for a two-year term.

During a recommitment trial, three mental health experts testified that Allen still presented a danger, and should not be released. One testified that Allen had committed other offenses for which he was never charged, and that he had made inappropriate sexual overtures to female staff members at the hospital on several occasions.

Another expert diagnosed Allen with paraphilia with a desire for nonconsensual sex. He testified that Allen had an erotomanical delusion that women were strongly attracted to him. He said Allen had made no progress in his treatment, and had refused to take various medications intended to deal with his delusions about female staff members.

Allen presented no evidence on his behalf. But his counsel informed the court that Allen wished to testify over the attorney’s objection.

The attorney informed Ziebarth that Allen intended to testify that his victims consented to the charged and noncharged offenses that he refused to take medication because of potential side effects and that, as to the reported incidents of his alleged inappropriate sexual behavior at Atascadero, the staff was flirting with him and making advances toward him.

Ziebarth ruled that since the proceedings were not criminal in nature, but rather quasi-civil, he would defer to defense counsel’s opinion that Allen’s testimony would be counterproductive, and that he therefore should not testify. He excluded Allen’s testimony, explaining that he believed it would not be in Allen’s best interest to testify.

After a jury found that Allen remained a sexually violent predator and Ziebarth ordered him recommitted, Allen appealed, contending that Ziebarth violated his constitutional right to testify.

He argued that he had the right to override his attorney’s decision and that the Fifth and Fourteenth Amendments’ guarantees of due process entitled him to testify, even if it was a civil proceeding.

Justice Barton C. Gaut, writing for the Court of Appeal, disagreed, saying:

“[W]e conclude defendant does not have a constitutional right to testify in an SPV proceeding over his attorney’s objection under the Due Process Clause.”

Noting that the case was one of first impression, Gaut analogized from a case which held that the admission of hearsay evidence in an SVP Act trial did not violate due process rights. Gaut considered four factors used by the court in that case, including whether there were other indicia of reliability of the proffered evidence.

Gaut said:

“[T]he reliability of defendant’s testimony is highly questionable. Not only was there strong incentive for him to fabricate but, in addition, defendant’s own attorney advised defendant against testifying, thus indicating that his testimony would not be beneficial to defendant’s defense.”

San Diego attorney Christopher J. Blake, who was appointed to represent Allen on appeal, said the analogy was inapplicable.

“‘Indicia of reliability’ is . . . for hearsay, this is not hearsay,” he said.

“I just think the decision should be made by the client, and not the attorney, because he has a human dignity right to look the jurors in the eyes and say the allegations—which are very serious—are not true,” Blake added. “His life’s on the chopping block, not the court’s, not the attorney’s.”

Gary W. Schons, a senior assistant attorney general who heads the Criminal Division in San Diego, said the decision was in the mainstream of SVP Act jurisprudence. He said that right of a client to overrule his attorney’s decision that the client not testify has only been found in criminal cases.

The case is People v. Allen, 06 S.O.S. 5565.


Copyright 2006, Metropolitan News Company