Angry judge forced to free man who killed wife in 2003

Angry judge forced to free man who killed wife in 2003 | Seattle Times Newspaper, Sept. 13, 2008.

A man who killed his wife five years ago in a psychotic rage must be set free, a judge ordered Friday, because prosecutors presented no proof he is a danger to the community.

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While the state said it opposed his release, Senior Deputy Prosecuting Attorney Ethan Rogers did not present any evidence or witnesses as prosecutors had in past hearings where Gergen was ordered held.

"It is the burden of the prosecutor to provide substantial evidence that Mr. Gergen presents a substantial risk to the community. What evidence have you given me? ... You presented no proof," Hayden said.

"I'm not the one who makes the rules on psychiatric issues, it's the Legislature," [Pierce King County Superior Court Judge Michael Hayden said.

Rogers explained the failure to present evidence by saying that it is difficult to find independing forensic psychologists to testify.

When I read the judge's remark about the legislature making the rules, I naturally wondered what the statute provides. It's RCW 10.77.150:

(1) Persons examined pursuant to RCW 10.77.140 may make application to the secretary [of DSHS] for conditional release. The secretary shall, after considering the reports of experts or professional persons conducting the examination pursuant to RCW 10.77.140, forward to the court of the county which ordered the person's commitment the person's application for conditional release as well as the secretary's recommendations concerning the application and any proposed terms and conditions upon which the secretary reasonably believes the person can be conditionally released. Conditional release may also contemplate partial release for work, training, or educational purposes.

(2) The court of the county which ordered the person's commitment, upon receipt of an application for conditional release with the secretary's recommendation for conditional release, shall within thirty days schedule a hearing. The court may schedule a hearing on applications recommended for disapproval by the secretary. The prosecuting attorney shall represent the state at such hearings and shall have the right to have the patient examined by an expert or professional person of the prosecuting attorney's choice. * * * The issue to be determined at such a hearing is whether or not the person may be released conditionally without substantial danger to other persons, or substantial likelihood of committing criminal acts jeopardizing public safety or security. The court, after the hearing, shall rule on the secretary's recommendations, and if it disapproves of conditional release, may do so only on the basis of substantial evidence. * * *

(Thanks to Anonymous for correcting the county!)