The Kansas Court of Appeals on Friday ordered a new trial for a man who complained he was being held illegally in the state's sexual predator treatment program at Larned State Hospital.
Instead of sticking to the facts and evidence, a Johnson County prosecutor made improper emotional appeals to jurors during a 2003 trial to determine whether Robert A. Ward was a sexual predator, the court found. For example, the prosecutor told jurors Ward was a "ticking time bomb" and said that parents should be worried for their children - an argument the court said was "highly improper" and distracted from the factual issues jurors had to decide.
"The personal fears of parents who are jurors ... are not evidence, and, as a result, should not be the subject of argument by counsel," the court wrote.
Ward, a 49-year-old Kansas City, Kan., man, was featured last year in a Journal-World article about the sexual-predator program. He refused to participate in treatment at Larned and said he had been sent to the hospital to die.
"I am the victim of an illegal campaign by the state of Kansas," he said. "I have been railroaded into a mental institution."
Ward was convicted in 2002 in Johnson County of making obscene phone calls to young female gymnasts. He posed as a reporter and asked to speak to the girls, but during the conversations he started asking them obscene questions.
Ward was convicted of making a criminal threat and initially received probation, but after his case prosecutors sought to have him civilly committed to Larned under the state's sexual-predator law.
The state's master's-level psychologist, Rex Rosenberg, diagnosed him as a pedophile, but two doctorate-level psychologists called as defense witnesses said Ward wasn't a pedophile.
Ward admitted his conduct was "disgusting," but he questioned how he could be sent to a prison hospital indefinitely, having been convicted only of a crime of words.
Ward had argued on appeal that there was insufficient evidence for jurors to find he fit the definition of a sexual predator, but the appeals court disagreed.
"(W)e hold that a reasonable factfinder, considering the evidence at trial in the light most favorable to the State, could have found Ward was a sexual predator beyond a reasonable doubt," the court wrote.
Ward likely will be transported back to Johnson County to face trial a third time. His first trial ended in a hung jury, and the prosecutors' improper comments happened during his second trial.
The state's sexual-predator law, passed in the mid-1990s, allows sex offenders to be committed to Larned for indefinite treatment if it's proven that they have a "mental abnormality or personality disorder" that makes them likely to reoffend.
The law initially was touted as a way to give a few years' additional treatment for the worst sex offenders after they finished their prison terms. But a decade after its enactment, almost no one is being released, and critics say the program is a costly prison that's being used to punish instead of rehabilitate.