Seventh Circuit questions whether sex offender was improperly confined post-sentence

CHICAGO (CN) — A Seventh Circuit panel seemed leery Thursday over whether an Illinois sex offender's habeas petition was improperly denied.

William Walls, who was convicted of aggravated sexual assault of a minor in 1993, described a Sisyphean struggle he's waged through state and federal courts to prove that he was wrongfully confined after he'd already served his prison sentence.

In Illinois, the Sexually Violent Persons Commitment Act allows the Illinois Department of Human Services to indefinitely confine someone if they determine that they're sexually violent. Under the statute, a sexually violent person is someone convicted, adjudicated delinquent or found not guilty by reason of insanity of a sexually violent offense and who has a mental disorder making it substantially probable he will commit future sexual violence.

Just before Walls' scheduled release in 2003, the state successfully filed a petition to confine him indefinitely pursuant to the SVPCA. Although Walls appealed the petition, he languished in Department of Human Services custody for 12 years before the matter went to trial.

His attorney, Christopher Keleher, maintained before the Seventh Circuit panel Thursday that not only was his client's trial improperly delayed, but it also improperly used juvenile records to establish probable cause for his confinement.

"Soon before he was released from prison, Walls was questioned by a state-employed psychologist to build the state’s case for indefinite confinement of Walls. No Miranda warnings were given. After initially declining to speak, Walls made statements subsequently used against him in the SVPA proceedings," Keleher wrote in the appellant's brief.

Keleher argued the state improperly treated the SVPA proceedings as civil, when in fact they are criminal proceedings and, as such, should grant the defendant Fifth and Sixth amendment protections. Walls tried to call expert witnesses during his 2015 trial, but the state denied the motion and ruled it was irrelevant to determining whether he's an SVP.

Regardless of the constitutional violations, the panel of judges appeared skeptical about what Walls was actually challenging.

"I have a fundamental question about what is under review in this case. The appeals in state court challenge both the 2015 order and the 2018 order. Is Walls being detained pursuant to either order today?" U.S. Circuit Judge Frank Easterbrook asked.

"Your Honor, I would say to both, I would say both orders," Keleher said.

"How? There's yearly review under the statute," the Reagan appointee said, and Keleher concurred. "Why isn't the detention, if any, under a more recent order?" Easterbrook continued.

"Our position essentially is that his current habeas challenge, including this appeal here, encompasses basically everything," Keleher responded.

"I don't think you can file a writ of habeas corpus challenging things that have yet to happen. Right? There's no challenge so far as I can see, to any post 2018 order," Easterbrook said.

"A contention in this case is that there was a violation of a self-incrimination clause because evidence that Walls was forced, was compelled to give while he was in prison, serving his penal sentence, was used under the Sexually Violent Persons Act," he continued. "Do we know that that evidence was used in 2018?"

Keleher said he doesn't know, which Easterbook loudly reiterated.

"You see the problem," Easterbrook said. "The evidence was used apparently in 2015, but we don't even know in this record whether it was used in 2018. Makes it very hard for a constitutional challenge in 2018, let alone all the years since."

Though the delay in litigation wasn't directly before the Seventh Circuit panel, U.S. Circuit Judge Michael Scudder admonished the state and said he was immensely bothered that Walls had to wait so long to go to trial.

"Mr. Walls should not have had to wait 12 years for a trial on the determination about whether he should be committed to this program. State law required that the trial happen within 120 days," the Donald Trump appointee said. "Civil commitment is about as serious a constitutional business as there is. The deprivation of liberty to civilly commit somebody is very, very serious. Him waiting 12 years is not acceptable."

"Absolutely. And if I can be candid with the court, I think the underlying issue here is the one of his self-representation," Erin O'Connell, an attorney on behalf of Illinois, responded.

"It may well be, and I understand he could be a very difficult customer. I got it, but somebody has to be keeping an eye on this program and the right for this trial, or the need for this trial, to go forward," Scudder said. "And if he's throwing in all kinds of barriers, well, that's on him, but something has got to happen. That trial has got to occur. And 12 years is just beyond the pale, given the constitutional gravity of what is at stake here."

O'Connell agreed with Scudder and said the issue in this case was that most of the pro se motions Walls litigated were repetitive.

"So our court has had some issues with this. A couple of members of this panel have been involved in it, not in your state in Wisconsin, with extraordinary delay with direct criminal appeals, and it doesn't sit well, given the constitutional rights that are at stake," Scudder replied. "So you can do without what you want. That issue is not before us to review, but I got to tell you, I mean, it leaps off the pages of these briefs as problematic."

In the appellant’s brief, Keleher argued the review shouldn't be foreclosed since Walls was largely pro se.

"In fact, the Illinois Appellate Court noted that Walls was hindered by inadequate representation," according to the appellant's brief. "It did not mince words: '[U]nless and until the adversary process is functioning fully, however, we can have no real confidence Walls is an SVP."

Alongside Easterbrook and Scudder sat U.S. Circuit Judge Amy St. Eve, a Trump appointee. The panel did not indicate when it might rule.

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