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Archive for Sunday, July 7, 1996

KU PROFS WRANGLE BOTH SIDES OF SEX PREDATOR LAW

July 7, 1996

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KU law faculty are helping resolve constitutional questions about the state's sexual predator statute.

Two professors at Kansas University are embroiled in a U.S. Supreme Court fight regarding a 2-year-old state law that targets "sexual predators."

Participation in the case by law faculty Stephen McAllister and David Gottlieb is all the more compelling since they're on opposite sides of the debate.

It is a textbook case marked by complex constitutional issues, political posturing and human tragedy.

"It's a very important case for many reasons," said Gottlieb, who will contribute to a legal team, led by Wichita lawyer Tom Weilert, representing a Sedgwick County man fighting the sexual predator statute.

As a special assistant attorney general, McAllister will help Atty. Gen. Carla Stovall appeal a Kansas Supreme Court ruling in March that struck down the law as unconstitutional.

The state court's 4-3 decision was stayed pending U.S. Supreme Court action. That means people classified as sexual predators -- seven men, so far -- remain in custody.

Under the contested law, individuals declared sexual predators in a civil proceeding can be held in a state hospital indefinitely after their release from prison. These people can be freed only if the Kansas Department of Social and Rehabilitation Services determines they are unlikely to commit more sexually violent crimes.

The appeal was filed by Leroy Hendricks, convicted in 1984 of one count of taking indecent liberties with a child. He received a five- to 20-year sentence. He was categorized a sexual predator and transferred in October 1994 to an SRS treatment unit at Larned State Hospital.

While Hendricks was passing time in a Kansas prison, a calamity in southeast Kansas was shaping his destiny. Stephanie Schmidt, a Pittsburg State University student, was raped and murdered in August 1993.

Schmidt's killer, Donald Ray Gideon, had previously been convicted of rape and released from prison. The crime captured headlines statewide.

At the urging of Schmidt's parents, the sex predator statute was passed by the Legislature -- 101-23 in the House, 40-0 in the Senate -- and signed into law by then-Gov. Joan Finney.

Rep. Don Smith, D-Dodge City, a retired judge, predicted the law wouldn't pass constitutional challenge. Politicians more interested in votes than good law ignored that conclusion, he said last week in an interview.

"The hounds were braying. They wanted raw meat," he said.

McAllister will attend oral arguments in November when the U.S. Supreme Court is expected to hear the case. Gottlieb may go to Washington, D.C., as well.

At this point, McAllister is more involved in the case. He plans to set aside this entire month to focus on the appeal.

There's a ton of legal work ahead. The list of research topics is lengthy, given the Hendricks case raised so many constitutional issues.

Attorneys must address due process, equal protection, double jeopardy, ex post facto punishment and self incrimination (compulsory SRS counseling) issues.

Lawyers will study civil and criminal precedent, write lengthy legal briefs, coordinate friend-of-the-court briefs by organizations and states, compile a record of key testimony and documents, and conduct moot court sessions.

"It's a fascinating process," McAllister said. "What people don't realize is there's so much more involved than simply writing a little brief that digs up cases about your issues."

Gottlieb said the appeal would cover new legal terrain. Officials in 33 states filed briefs urging the U.S. Supreme Court to review the Kansas appeal.

Although McAllister and Gottlieb have strong feelings about the case, they have maintained a good relationship.

McAllister said the project made him better friends with Gottlieb.

"It's an advantage," Gottlieb said. "On a personal level, it's not even a small problem."

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