Atty. Gen. Phill Kline’s office will seek a second trial for a Douglas County man whose commitment to a “sexual predator” hospital unit was overturned by the Kansas Supreme Court.

Kline spokesman Whitney Watson said the office plans to try Randy Foster a second time, seeking his commitment to a state program at Larned State Hospital. The court found last week that Foster didn’t get a fair trial the first time around, in 2003, because prosecutors made statements that prejudiced the jury.

A hearing on Foster’s case is scheduled for Tuesday in Douglas County District Court.

The program, which began in the mid-1990s, was touted as a way to rehabilitate the state’s worst sex offenders and keep them off the streets until they were safe to be at large. But costs are growing, almost no one has been released from the program and lawmakers recently have said they may abandon it in favor of longer prison sentences for sex offenders.

A sexual predator is defined as someone with a “mental abnormality or personality disorder” that makes him likely to reoffend. But critics say asking jurors to make that determination is like asking them to gaze into a crystal ball.

Foster, 46, a former Lawrence area resident, has a history of numerous sexual assaults of girls as young as 2. In 2003, he had finished serving his prison time when Kline’s office sought to have him indefinitely sent to Larned for treatment.

The assistant attorney general who prosecuted the case told jurors that Foster already had been declared a sexual predator by a multidisciplinary team and that a judge already had found probable cause to believe he was a predator. The Supreme Court found that those kinds of remarks “stacked the deck” against Foster – giving the impression that the only thing remaining was for jurors to rubber-stamp his indefinite commitment to Larned.

The Supreme Court also found that inadmissible polygraph evidence – suggesting Foster may have had contact with minors while on parole – was used as evidence at trial.

To Foster’s attorney, Jessica Kunen, the case shows that “it doesn’t seem that there are any kind of rules governing how you determine who is a sexual predator at a jury trial.”

“The prosecutor was relying so heavily on polygraph information, which they weren’t supposed to, and all those statements about prior determinations” that Foster was a predator, she said. “Other than his criminal history, for which he had already served time, they didn’t have a whole lot to continue to hold him.”