Reversal of Oregon Parole Postponement Due to Incorrect Psychological Evaluation

by Mark Wilson

The Oregon Court of Appeals has held that a prisoner’s release was improperly postponed for two years on the basis of an erroneous psychological evaluation report.

Oregon law provides for enhanced “dangerous offender” sentences upon a finding that a defendant suffers “from a severe personality disorder indicating a propensity toward criminal activity.” The Board of Parole & Post-Prison Supervision (Board) then establishes a parole consideration hearing date rather than a parole release date.

If the Board finds at a parole consideration hearing that the condition which made the prisoner dangerous is absent or in remission, it must order the prisoner’s release. If the condition is found to still be present, the Board may postpone parole consideration for a minimum of two years and a maximum of 10 years.

To assist the Board in making this determination, prisoners are compelled to submit to psychological evaluations by Board-contracted psychologists who are paid for each evaluation. Independent evaluations typically cost $1,500 to $3,000.

Some Board-contracted psychologists interview the prisoner while others don’t. Some administer psychological testing, others don’t. Some review the prisoner’s file and some don’t. The prisoner has no right to see a particular doctor or to insist that the evaluation process meet any minimal standards for completeness or reliability. If the prisoner refuses to submit to an evaluation, the Board may postpone parole consideration for ten years or require the prisoner to serve until his or her good time date, which amounts to life without parole in some cases.

The Board does not meet with the psychological examiners or call them to testify at parole consideration hearings, “because this a hearing, not a trial,” said former Board Chairman Steven Powers. Rather, the Board simply relies upon the evaluation report.

Although the Oregon Supreme Court has held that prisoners have a protected liberty interest in their parole release dates and the postponement of release constitutes a “substantial deprivation of liberty,” the Board maintains a blanket ban on witnesses, prohibiting prisoners from calling their own witnesses or confronting or cross-examining the Board-contracted psychologists about the content of their reports.

In 1988, Nghia Gia Dam was convicted of 15 counts of first-degree robbery and sentenced as a “dangerous offender.” The Board established a September 3, 2008 parole consideration date and ordered Dam to submit to a psychological evaluation by Board-contracted psychologist F. Robert Stuckey.

Stuckey’s evaluation consisted of an interview with Dam and a review of the written record, including a presentence investigation report (PSI) and a report of Dam’s conduct while incarcerated.

The PSI that Stuckey relied upon contained numerous significant factual errors. It reported that Dam had a 1975 criminal conviction in the U.S., even though he had first entered the country in 1980. It also incorrectly listed seven prior criminal convictions and dispositions that were not a part of Dam’s criminal history, including three drug convictions, two domestic violence convictions (when he had only one), a theft conviction and a conviction for DUI.

Stuckey was not aware of the errors. Instead, in his psychological evaluation report he made several references to, and emphasized, the erroneous information as evidence that Dam was “minimizing” his criminal behavior, which supported his conclusion that Dam “did not appear to have a mature, sophisticated, or remorseful attitude regarding his criminal behavior.” Based on that incorrect information, Stuckey found “there was much blame, avoidance, and minimization, and lack of depth understanding with respect to his criminal behavior.”

Ultimately, Dr. Stuckey concluded that Dam had “a present severe emotional disturbance such as to constitute a danger to the health and safety of the community.”

The Board considered Stuckey’s report at Dam’s September 3, 2008 parole consideration hearing. Dam objected to the Board’s use of the report due to its reliance on the incorrect PSI information. Nevertheless, the Board relied on Stuckey’s report to conclude that Dam remained a danger, and postponed his release for two years.

Dam appealed, objecting to the use of Stuckey’s report because it was based on incorrect criminal history information in his PSI. The Board denied Dam’s appeal, stating, “the Board discussed your concerns about the inaccurate information used by Dr. Stuckey, and present in your presentence investigation, acknowledged the errors and disregarded that information in its own deliberations, as well as taking the matter into account when considering Dr. Stuckey’s conclusions.”

Although the Board stated it had “taken steps to ensure that the erroneous information is removed from the written record for future hearings,” it did “not find that the errors significantly prejudiced [Dam] or caused the psychological evaluation to be unreliable.”

Rather, the Board noted that Stuckey gave examples of Dam’s statements to support his conclusion that Dam minimized his criminal conduct. It also found independently of Stuckey’s evaluation, based upon its own questioning and observation of Dam, that he minimized his criminal conduct.

The Court of Appeals reversed. While it held that “the question is a close one” and there was “evidence at the hearing that supports findings that [Dam] minimizes his crimes and shows little insight into how his criminal acts affected the victims,” the appellate court noted that “Stuckey referred repeatedly to [Dam’s] criminal history.”

“It is impossible to determine the extent to which Stuckey’s ultimate conclusion was influenced by the incorrect information in the PSI and by his perception that [Dam] was not being truthful,” the Court of Appeals concluded.

“[I]t is clear that the board relied on Stuckey’s flawed evaluation,” the Court wrote. However, “it is not clear that the board would have reached the same conclusion in the absence of its reliance on the flawed report.” As such, the appellate court concluded “that the board’s affirmative determination that [Dam] continues to be dangerous is erroneous,” and remanded the case for reconsideration. See: Dam v. Bd. of Parole & Post-Prison Supervision, 258 Ore. App. 39, 309 P.3d 161 (Or. Ct. App. 2013).

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