In the Matter of the Civil Commitment of: Thomas Ray Duvall.
Judicial Appeal Panel File No. AP16-9042 Hennepin County
District Court File No. 27-P1-91-034113
Swanson, Attorney General, Michael Everson, Noah A. Cashman,
Heather Kjos, Assistant Attorneys General, St. Paul,
Minnesota (for appellant Commissioner of Human Services)
Michael O. Freeman, Hennepin County Attorney, Theresa Couri,
Managing Assistant County Attorney, John L. Kirwin, Assistant
County Attorney, Minneapolis, Minnesota (for appellant
William L. Lubov, Golden Valley, Minnesota; and Michael C.
Hager, Minneapolis, Minnesota (for respondent Thomas Ray
Considered and decided by Schellhas, Presiding Judge; Reyes,
Judge; and Randall, Judge.
appeal, we review a judicial appeal panel's order
granting provisional discharge for clear error. We will not
reverse the panel's provisional discharge unless the
party opposing discharge proves by clear and convincing
evidence that the provisional discharge should be denied.
RANDALL, JUDGE [*]
1991, Thomas Ray Duvall was civilly committed as a
"psychopathic personality" under what was then
Minn. Stat. § 526.09 (1990). In 2014, Duvall requested a
provisional discharge from his commitment. A judicial appeal
panel granted his request. The commissioner of
human services and Hennepin County appeal. We conclude the
panel did not err by finding that Duvall satisfied the
statutory requirements for provisional discharge.
1991, Duvall was civilly committed to the Minnesota Security
Hospital as a psychopathic personality under what was then
Minn. Stat. § 526.09 (1990). Duvall's commitment was
based on repeated sexual assaults that occurred over thirty
years ago. Duvall's first known sexual offense occurred
in May 1975, when he and two other males raped a 17-year-old
girl. On September 4, 1978, Duvall again raped a 17-year-old
girl. He pleaded guilty to criminal sexual conduct in the
third degree. Duvall attended treatment for approximately
three months, left treatment, and was sent to prison. Duvall
was released from prison in September 1980. He was later
arrested on February 25, 1981, after he attempted to force a
woman into his car and threatened her with a knife. Based on
this offense, Duvall was convicted for assault and making
terroristic threats. Duvall was imprisoned and released on
March 21, 1982.
March 24, 1982, Duvall sexually assaulted three girls. Duvall
was imprisoned for these assaults until December 4, 1987.
Following his release, Duvall was placed on supervised
release at a sexual-offender treatment program. On December
26, 1987, shortly after his release from prison, Duvall
violently sexually assaulted a 17-year-old girl in her
apartment over a three-hour period. Duvall was sentenced to
240 months of incarceration.
on Duvall's history of sexual misconduct, a detective
petitioned the district court to judicially commit Duvall on
January 23, 1991. On April 4, 1991, the Hennepin County
District Court granted the petition for civil commitment and
committed Duvall to the custody of the Minnesota Security
Hospital following his prison sentence. The district court
held another hearing pursuant to Minn. Stat. § 253B.19,
subd. 2 (1990), and indeterminately committed Duvall to the
Minnesota Security Hospital to receive treatment for his
sexual aggression. Duvall appealed the district court's
commitment order on September 13, 1991, and we affirmed.
In re Duvall, No. C5-91-1799, 1991 WL 276194
(Minn.App. Dec. 31, 1991), review denied (Minn. Mar.
has received treatment at his current treatment location at
the Minnesota Sex Offender Program (MSOP) in St. Peter since
May 3, 2001. Duvall has been in the community preparation
services (CPS) portion of the program since April 8, 2009.
CPS provides treatment for clients who have successfully
progressed through all three treatment phases at MSOP, and
includes three stages that provide the client with an
increasing level of accountability while remaining under
supervision. Duvall has been in the final stage of CPS since
April 22, 2010.
final stage of treatment requires Duvall to follow his
individual treatment plan, maintain a community-based support
system, demonstrate leadership skills, and prepare for his
provisional discharge and transition into the community.
Duvall has achieved all of the privileges that he can obtain
during treatment, regularly participates in supervised,
off-campus visits, and has had no reported issues or
incidents from his time in the community. Duvall also
participates in a men's support group at Project
Pathfinder that helps him develop healthy sexual boundaries.
on his success in the last stage of his treatment, Duvall
petitioned the SRB for a provisional discharge from his
commitment on June 25, 2015. The SRB conducted a hearing and
recommended provisional discharge on March 3, 2016. The
Commissioner of the Minnesota Department of Human Services
(commissioner) and Hennepin County (county) objected to the
recommendation and requested a hearing before a judicial
appeal panel. The panel held a five-day hearing in April
2017. Duvall called 18 witnesses. Four MSOP security
counselors, two MSOP reintegration specialists, MSOP's
operations supervisor and MSOP's reintegration director
all testified that Duvall never engaged in behavior when he
was interacting with others in the community that led them to
be concerned for Duvall's or others' safety. The MSOP
employees' testimony demonstrated that Duvall has
participated in hundreds of community outings throughout his
treatment and none of the MSOP employees ever witnessed
Duvall engage in concerning behavior when he was in the
community. Kristin Dehrkoop, Duvall's therapist from May
2015 to December 2016, testified that she supported
Duvall's petition based on her experience as his
therapist. Kristi Mike, Duvall's therapist from December
2016 to the time of the hearing, testified that she also
supported his petition because he has successfully completed
every phase of treatment offered by MSOP. Timothy Benesch,
the director of CPS at MSOP, testified that Duvall was
transparent and had no reported incidents of behavioral
issues. Benesch also stated that he supported Duvall's
petition for provisional discharge.
within the community also testified about their interactions
with Duvall throughout his time in treatment. Duvall's
Alcoholics Anonymous sponsor testified that he had worked
with Duvall on his sobriety since 2004 and would continue
serving as his sponsor if he were provisionally discharged.
Thomas Jones, a community volunteer at Project Pathfinder,
testified that Duvall has come to "Choosing Healthy
Sexual Boundaries" meetings for three years and
facilitates meetings, provides positive feedback, and does
not act with excessive control or leadership during the
meetings. Duvall's manager at the thrift store where he
volunteers testified that Duvall made a positive impact and
was respectful, courteous, reliable, helpful to others, and
diligent when volunteering. Duvall's brother, Scott
Duvall, testified about his relationship with Duvall. He
explained that they speak at least once per week and he
intends to stay in Duvall's life if he is provisionally
discharged. Christopher Onken, the owner of a group home,
testified that the group home could provide treatment and
housing services to Duvall if he were provisionally
discharged. Duvall also testified about his past treatment,
current treatment setting, and how he intends to treat his
sexual issues if he is released. Duvall also called Dr.
Lauren Herbert, the director of the forensic evaluation
department in the Department of Human Services. She testified
that she supports Duvall's petition for provisional
discharge based on her psychosexual evaluation of Duvall.
commissioner called four witnesses. Jerome Brown, a polygraph
examiner, testified that Duvall did not pass polygraph exams
that asked him about his transparency in his sexual fantasy
logs. The commissioner also called Dr. James Alsdurf, the
court-appointed examiner at the hearing. Dr. Alsdurf
concluded that Duvall needed continuing treatment and
supervision in his current setting. The state also called two
clinical psychologists as expert witnesses, Dr. Mary Kenning
and Dr. Harry Hoberman. They did not interview Duvall. They
conducted "psychosexual evaluations" based on
Duvall's treatment records and then recommended that his
petition for provisional discharge be denied.
January 2018, the judicial appeal panel issued a 40-page
order and memorandum of law granting Duvall's petition
for provisional discharge. The panel concluded that Duvall no
longer required treatment in his current setting and that the
provisional discharge plan provided a reasonable degree of
protection to the public. The commissioner and county appeal.
the panel err by concluding the county and commissioner did
not prove with clear and convincing evidence that
Duvall's petition ...