In the Matter of the Detention of ZACHARY SHANE NELSON, Petitioner. In the Matter of the Detention of LOUIS BROCK, Petitioner.
linked appeals are before us on discretionary review to
address a recurring issue in the procedure for determining
whether a person committed as a sexually violent predator may
have a trial for release. We hold that at a show cause
hearing under RCW 71.09.090(2)(b), the prosecuting agency is
free to rely on experts of its choosing rather than relying
exclusively on annual evaluations prepared under RCW
issue involves two distinct sections of chapter 71.09 RCW.
The first is the requirement for an annual evaluation. Each
person committed as a sexually violent predator "shall
have a current examination of his or her mental condition
made by the department at least once every year." RCW
71.09.070(1). The second is the procedure for a show cause
hearing, which is set forth in RCW 71.09.090(2).
committed person may petition the court once a year for
conditional release to a less restrictive alternative or
unconditional release. The court then sets a show cause
hearing to determine whether probable cause exists for a
trial on release. RCW 71.09.090(2)(a). The court performs
"a critical gate-keeping function" at the show
cause hearing; the court "must assume the truth of the
evidence presented" but at the same time "must
determine whether the asserted evidence, if believed, is
sufficient to establish the proposition its
proponent intends to prove." State v.
McCuistion, 174 Wn.2d 369, 382, 275 P.3d 1092 (2012).
cert, denied. 568 U.S. 1196(2013).
show cause hearing, the prosecuting agency for the state
"shall present prima facie evidence establishing that
the committed person continues to meet the definition of a
sexually violent predator and that a less restrictive
alternative is not in the best interest of the person and
conditions cannot be imposed that adequately protect the
community." RCW 71.09.090(2)(b). If the state does not
make this initial showing, the court "shall" set a
release trial. RCW 71.09.090(2)(c).
state does make this initial showing, the committed person
will still be allowed to have a release trial if probable
cause exists to believe that the person's condition has
"so changed" that
(A) the person no longer meets the definition of a sexually
violent predator; or (B) release to a proposed less
restrictive alternative would be in the best interest of the
person and conditions can be imposed that would adequately
protect the community.
RCW 71.09.090(2)(c)(ii); see In re Det, of Petersen,
145 Wn.2d 789, 798, 42 P.3d 952 (2002) (two statutory ways
for a court to determine there is probable cause to proceed
to an evidentiary hearing: "(1) by deficiency in the
proof submitted by the State, or (2) by sufficiency of proof
by the prisoner.") Proof that the prisoner has "so
changed" must be shown by current evidence from a
licensed professional of a physiological change or a
treatment-induced change to the person's mental
condition. RCW 71.09.090(4); McCuistion, 174 Wn.2d
contend that the prosecuting agency's prima facie
evidence required by RCW 71.09.090(2)(b) is limited to the
annual evaluation. The objective of petitioners is to proceed
to a trial. If the state fails to make its prima facie
showing at the show cause hearing, the committed person will
be granted a full trial even if there is no evidence that the
person has "'so changed.'"
McCuistion, 174 Wn.2d at 380 ("The court must
order an evidentiary hearing if the State fails to meet its
burden"); In re Det, of Marcum, 189 Wn.2d 1, 8,
403 P.3d 16 (2017). Thus, if the prosecuting agency's
evidence at the show cause hearing were limited to an annual
evaluation, and that evaluation did not meet the State's
burden stated in RCW 71.09.090(2)(b), the matter would
proceed to trial.
Zachary Nelson was committed as a sexually violent predator
in 2011. Nelson's commitment was based on acts he
committed as an adolescent.
annual evaluation in 2015 was performed by Pr. Robert Saari,
a psychologist employed as a forensic evaluator by the
Pepartment of Social and Health Services. An annual
evaluation must include "consideration of whether... the
committed person currently meets the definition of a sexually
violent predator." RCW 71.09.070(2)(a). According to Dr.
Saari's report, he does not think Nelson currently meets
the definition. He said that his opinion was based not on any
clear change in Nelson's mental condition but on a
fundamental disagreement with his initial commitment.
Saari's evaluation was sent to the King County Superior
Court and the King County Prosecuting Attorney's Office
as required by RCW 71.09.070(1). Citing Dr. Saari's
acknowledged lack of expertise with adolescent sex offenders,
the prosecutor's office contacted the department and
requested a second evaluation. The department retained Dr.
Christopher North to complete a second evaluation of Nelson.
Dr. North has experience with juvenile sex offenders and had
previously evaluated Nelson. According to Dr. North's
evaluation, Nelson currently meets the definition of a
sexually violent predator.
court scheduled a show cause hearing to determine whether
Nelson was entitled to an unconditional release trial. Nelson
moved to strike Dr. North's evaluation, arguing the state
was required to rely exclusively on the annual evaluation
performed by Dr. Saari. The trial court denied the motion to
strike. If the only professional evaluation before the court
had been Dr. Saari's report stating that Nelson does not
meet the definition of a sexually violent predator, the state
would not have carried its ...