Missouri Supreme Court to Hear St. Charles County Probate Case

A St. Charles County probate court's 2009 decision to deem James Brasch -- a repeated sex offender who suffers from schizophrenia and other mental illnesses -- a "sexually violent predator" is a violation of Brasch's constitutional rights, his lawyer planned to argue before the Missouri Supreme Court today.

According to court documents, Brasch's lawyer planned to present arguments Wednesday that the jury in the St. Charles County court could have been improperly swayed by a lawyer from the Missouri Attorney General's office who said in closing arguments that it was the jurors' responsibility to ensure that Brasch did not claim another victim.   

For these reasons, Brasch argues, the St. Charles County court should have thrown out the case.

Under Missouri's Sexually Violent Predator Act -- which went into effect in 1999, a few years after other states had put similar laws on their books -- a sex offender is taken into custody by the Missouri Department of Mental Health after a prison sentence if they suffer from a mental condition that could lead the offender to commit another sex crime.

While in the hands of the Department of Mental Health, the offenders receive treatment for their mental illnesses, and are brought up for an annual review to determine if they are eligible for release.

The law provides a chance for offenders to receive treatment after they have repaid their debt to society, while potentially keeping the public safe from past offenders who could strike again, supporters of the law contend.

But critics of the law say that turning prisoners over to the custody of the Missouri Department of Mental Health after they have been released from prison adds up to a second jail sentence where no crime has been committed.

Since the law has been in effect, there have been 162 sex offenders committed to Department of Mental Health facilities as sexually violent predators, and 153 of those offenders remain in those facilities, according to the Missouri Attorney General's office. Of those, 19 offenders were committed this year.

According to the Missouri Department of Mental Health, 26 offenders are currently being held in county jails throughout the state awaiting review by the department to determine if they qualify for commitment under the sexually violent predator law.

Brasch's case is not the first pertaining to this law to be brought before the high court.

In a 2004 opinion on a case from Clark County that involved the law, the court upheld the constitutionality of the sexually violent predator law, as well as the state's interest in protecting the public from potentially dangerous criminals through additional confinement.

But Missouri Supreme Court Judge Michael Wolff wrote in a concurring opinion that, in the years following the case the actions of the state will show whether or not it is taking "meaningful" steps to treat those who are deemed to be "sick and dangerous," or if offenders will "simply be warehoused without treatment and without meaningful efforts to re-integrate them into society."

Brasch argues that his situation is an example of the latter. He has been on the same medication since 1996, he argues, despite the fact that his schizophrenic symptoms continue. For him to be committed involuntarily, there must be "adequate and effective" attempt at treatment to help him be well enough for release.

He argues that there are medications available to help him cope with his symptoms that the state has not attempted to use, and that the state has given Brasch medications to keep him calm while he is in custody, but not to cure his symptoms.

Brasch also argues that a lawyer from the Missouri Attorney General's office played upon the "passion" of the jury in the St. Charles County court when the lawyer commented that "this type of behavior is goingto repeat itself" and that Brasch is "more likely than not he is going out and make another victim."

According to court documents, the Missouri Attorney General's office, which will clash with Brasch before the Supreme Court Wednesday, defends the decision by the St. Charles County court to uphold the verdict, and argues that Brasch's claims that he will not receive adequate treatment in the hands of the Department of Mental Health are based on speculation, and that Brasch's motion to dismiss the case was not the best way to take issue with the treatment of his schizophrenia.

The Missouri Attorney General's office will also argue that the lawyer's comments to the jury were not a reason to declare a mistrial, as Brasch suggests, because they were proper based on evidence that Brasch would commit another sex offense if he is not confined to a secure facility.

The Missouri Supreme Court's docketed arguments began at 9:30 a.m.