The Bureaucrat and the Boogeyman

Patrick Henry Ghilotti, known as the Lincoln Avenue Rapist for attacking nearly a dozen women in the wealthy Marin County town of San Rafael, was looking forward to Christmas 2001. It promised to be the first holiday that the 46-year-old sex offender would spend as a free man in almost two decades.

From the time he was 22, the son of a prosperous construction magnate had been in prisons and mental hospitals more than he had been out. He’d been convicted of breaking into homes in the early morning hours and sexually assaulting women in a misguided quest to find his “soul mate.”

Since 1997, Ghilotti has been locked in Atascadero State Mental Hospital, where California keeps its 345 sexually violent predators, or SVPs, those who have served their time and are no longer in jail. Upon finishing their sentences, the state recommends them for civil commitment for mental illness to the high-security facility near San Luis Obispo. Many SVPs claim the law is just a one-way ticket into an animal factory.

But Ghilotti accepted the treatment, perhaps believing the state department of mental health’s tough rhetoric that completing the program was the quickest way out of Atascadero. So, after finishing four years of intensive therapy and having served 12 years in his most recent prison term, Ghilotti felt he was no longer a danger to society. Well within his legal rights, he petitioned the court to let him out. He hoped he would be the first sexually violent predator to be released, albeit conditionally, into the liberal Northern California enclave of Marin County.

Marin prosecutors objected, but the judge claimed his hands were tied. Politicians chimed in their concern, and Ghilotti’s past victims began to speak out. Still the court remained on Ghilotti’s side, and a release date was put on the calendar for late last year. Stephen Mayberg, head of California’s Department of Mental Health, saw a loophole in the law that gave him one last chance to keep Ghilotti at Atascadero. His plan was a legal long shot, but he knew it was the state’s only hope for keeping in custody a man that Mayberg feels may still pose a threat to the public.

Mayberg’s interpretation of the law put him at the center of a debate that quickly traveled to the California Supreme Court. At issue is how the state’s rapidly growing population of sexually violent predators should be handled--and who decides when they are ready to go free. To supporters, Mayberg’s gambit could make him a last line of defense in keeping some serial sex offenders off the streets until they no longer pose a danger. To detractors, he’s nothing more than an overreaching bureaucrat, bending laws to suit his purposes and cater to political expediencies.

When the court rules in the next few weeks, Mayberg will either gain important power or be forced to rubber-stamp release recommendations for sexually violent predators. In the meantime, arguments continue about whether Stephen Mayberg is just being vigilant--or a vigilante.

With a round frame, balding pate and vibrant blue-green eyes that crinkle when he laughs, Mayberg resembles an out-of-season Santa. It is Valentine’s Day, and the 55-year-old clinical psychologist is lunching at Patton State Hospital in San Bernardino, where he is visiting for a quarterly meeting. The staff has prepared the kind of dismally festive fare that doesn’t try to disguise its institutional origin: A pile of potato salad vaguely shaped into a heart, trays of supermarket sandwich fixings, crudites surrounding a decorative duck made of squash, and red “hospital punch” in plastic pitchers.

Known for his ability to put others at ease, Mayberg is jovial and smiling, determined to charm, until the subject of sexually violent predators arises. Then his eyes take on a harder, flatter edge and you can see the stalwart side of his personality. “They are the high school seniors of the institutionalized population,” he says between bites of a roast beef sandwich. He calls SVPs some of the most “manipulative” patients in the state system because they are often intelligent, highly functioning individuals who don’t believe they need mental care.

“We’re really clear that at this stage there is not a cure for sexually violent predators,” he adds later. “I don’t know that I’m necessarily the last line of defense, but I think I have an obligation to be honest and objective, and if I think that there are risks, I have an imperative to articulate that. I sort of have two clients here. I have to figure out how to deal with the sexually violent predator, and also how to prevent traumatization of innocent folks. The toll this kind of inappropriate behavior takes on everyone is huge. And if I’m really a mental-health clinician at heart, we need to look at how we prevent people from being traumatized.”

If SVPs are the high school seniors of mental patients, then Patrick Henry Ghilotti is their valedictorian. Since the SVP law was enacted in 1996, he is one of only two SVPs to complete all four levels of the state’s inpatient treatment program, and the first to qualify for the coveted level five--community release. When Ghilotti reached phase four last year, he petitioned the courts to allow him to return to the streets of Marin County, where he committed his crimes. Last Aug. 1, the Marin County courts acquiesced and ordered the department of mental health to draw up a list of rules for Ghilotti’s impending discharge. But no one was sure what those rules should be because no SVP in California has ever been admitted into a “conditional release,” or CONREP program.

“We spent four or five months developing a community release plan that was really comprehensive,” Mayberg says. “Some people thought it was too comprehensive, but we thought each of the decisions we made was important.”

The plan required Ghilotti to wear an ankle bracelet connected to a global positioning system, restricted him from using the Internet and forbade him from seeing his wife without supervision. Evaluators feared that she added too much stress to his life. It also stipulated that Ghilotti would continue to use a Lupron implant, a drug that lowers his testosterone level to prepubescent levels, in effect giving him a chemical castration. “It’s nothing more than naked punishment under a therapeutic guise,” Ghilotti’s public defender, Frank Cox, says of the plan. “When the terms of the CONREP program were more restrictive than [what he faced in] prison, Patrick said it’s time to talk to the evaluators about whether I need to be in this program at all” after his release.

Understanding Patrick Ghilotti’s past is critical to understanding why he might need restrictions in the future, and why Mayberg chose this case to make his stand when about a dozen SVPs already have been released.

Ghilotti began his adult criminal career prowling along Lincoln Avenue, a residential street just north of San Rafael in Marin County. He committed his first crime around 3 a.m. on July 21, 1977. Armed with a knife, he broke into a house where three female roommates slept, according to court records. He woke them up, one at a time, and ordered them into a bedroom, where he assaulted them.

Three days after Christmas that year, Ghilotti broke into an apartment in his own complex and raped a woman. Ghilotti’s third known offense didn’t go as well. In an August 1978 incident, the victim grabbed his wrist, got him in a hammerlock and bit his hand. When her screams summoned a roommate, Ghilotti fled.

Six days later, he attacked a woman at night in her home, forcing her to masturbate him. Eight days after that, he crawled through a bedroom window, holding a knife and wearing a bandanna to cover his face. He found the woman in her living room watching TV and attempted to force her into a sex act. Court records show that she asked him why he was attacking her, when he was handsome enough to attract a woman without force. He replied, “This is how I get my kicks.”

At the time of the attacks, Ghilotti was married to his high-school girlfriend and had an infant daughter. He told evaluators that his wife’s decision to get a job put him under too much stress, triggering his crimes. “She was changing into someone who was completely different from who I married,” Ghilotti told psychologists. “She wanted to go out and get a job and not devote herself totally to the family and raising our daughter. She knew what I wanted when we got married. We had an understanding. When she changed, I felt rejected.”

A fingerprint at a crime scene and various victim identifications led to Ghilotti’s first conviction in March 1979. Found guilty of three counts of forcible oral copulation from his first offense, he was sent to Atascadero State Hospital as a mentally disordered sex offender. That’s the term for prisoners with mental disorders that may have contributed to their crimes.

Ghilotti didn’t last long during his first stay at Atascadero. By 1983, he was deemed “not amenable to treatment,” according to court records, and sent to Solano State Prison to serve the remainder of his sentence. Records show that Ghilotti felt that he “got nothing out of” his stay at Atascadero because he “wasn’t a rapist anyway.”

One thing the now-divorced Ghilotti did get out of his time at Atascadero was a new wife. He had met psychiatric technician Janet Frankhouser and begun a friendship. Frankhouser and Ghilotti began dating after his parole in 1984. Within months, Ghilotti was living with her. But when that relationship began to get tense, he moved out. “She put her foot down and I reacted badly to that,” Ghilotti told an evaluator.

Within weeks of that breakup, Ghilotti began his second crime spree. In April 1985, a Marin woman awoke to find Ghilotti pinning her to the mattress. He told her, “You can do this willingly or you can do this by force.” He ended up fondling her breasts and leaving.

A month later, a Marin woman was awakened as Ghilotti reached across her bed to unscrew a lightbulb. He molested her, but did not rape her, perhaps because the woman’s daughter returned home and scared him off. He was again arrested, tried and convicted--this time for forcible genital penetration.

Frankhouser, who had reunited with Ghilotti and married him after his second arrest, testified that her husband had been under emotional strain since his parole. His father had suffered a stroke and one of his brothers had pressured him to work long hours at the family construction business. She said that pressure, combined with the increasing stresses from their relationship, had triggered his second wave of attacks.

Ghilotti returned to prison and was due to be freed in 1997. But in 1996, lawmakers created the “sexually violent predator” designation and mandated that when a sex offender finishes prison time, the state can recommend that the offender be sent to a mental hospital for two years if two independent psychologists find him or her likely to commit sexual crimes again, and a jury agrees. That hospitalization can be extended indefinitely if, during an evaluation every two years, two independent evaluators continue to find the patient at risk and prosecutors successfully petition to extend the commitment. Ghilotti became one of the first to get the SVP designation--and lose his chance for freedom.

This time at Atascadero, however, he joined the treatment program after his second sentence ended and excelled, even voluntarily taking a second two-year commitment to finish the four steps. He began to examine why he attacked women, and what his motivations were. Ghilotti told an evaluator, “It makes me feel powerful, in control, to do this amazing thing of waking up a woman who should be screaming and making her calmly have sex with me. . . . What I was after was to do the coercion thing, and then get them to reach out to me in an emotional way. . . . By reaching out to me emotionally, it would mean that it is the kind of person who could see what was going on with me. . . . And if that person would reach out to me, that would be something real. What I did in retrospect was a cowardly and sick thing, but when I get into this frame of mind, I get beyond that.”

Ghilotti claims that his mother beat him with a rolling pin and his father with a bullwhip, and that the childhood abuse by his now-deceased parents left him unable to relate to women. He says his rapes, triggered by stress with family members, were really a search for understanding, a quest for a woman who, by submitting, could see the person he really is.

Negotiations for Ghilotti’s conditional release fell apart late last fall, when Ghilotti refused to accept the restrictions. Stephen Mayberg was in a bind.

His department believed that with Ghilotti’s history, each of the rules was imperative in keeping him away from emotional and psychological triggers, thereby preventing him from repeating his crimes. But Ghilotti’s commitment was set to expire Dec. 1, with or without an agreement.

The state had been prepared for Ghilotti’s conditional release to fall through, and had hired psychologists to evaluate Ghilotti for recommitment before negotiations broke down. It expected evaluators to rule that Ghilotti still qualified as an SVP and should remain at Atascadero for another two years. But all of the evaluators found that Ghilotti’s seemingly sincere dedication to treatment and rapid progress through the program steps demonstrated that he no longer qualified as a sexually violent predator. That meant that even if he continued to refuse the requirements of the conditional release program, he would walk out of Atascadero on the first Saturday in December with absolutely no restrictions and no supervision.

However, Mayberg saw room for interpretation in the SVP law. As it’s written, the psychologists who evaluate a sexually violent predator give their reports to the director of the department of mental health--Mayberg, in this case--who then recommends to prosecutors that they petition to either continue to hold the felon, or decide the person is no longer a threat. Usually, the director simply echoes the opinion of the evaluators. But Mayberg interpreted the wording of the law to mean that he was not required to agree with the examining doctors. Even though three independent psychologists had concluded that Ghilotti no longer was a sexually violent predator, Mayberg decided that he could, in essence, evaluate the evaluators and draw his own conclusion. That interpretation would allow him to act as an overseer of the SVP program, ensuring that a cohesive standard--his--applies across the board. His conclusion: Patrick Ghilotti remains a dangerous man.

Critics say Mayberg’s maneuver was based as much on politics as ethics. To allow a sexually violent predator to walk back into the rich, Democratic enclave of Marin during an election cycle was not a possibility that Gov. Gray Davis or any other elected official was happy to contemplate.

“For the attorney general, for the governor, it is, of course, highly political,” says attorney Ron Boyer, who helped present Ghilotti’s defense arguments on behalf of the California Public Defenders Assn. and California Attorneys for Criminal Justice. “It’s a hot-button issue in its way.”

Cox, Ghilotti’s defense attorney, says: “It surprised me to hear on the radio statements directly from Gov. Davis that he wanted Patrick Ghilotti locked up. Somehow there is a political dimension to this case that I didn’t create. It came from the press, it came from politicians and it’s hard to cope with that. Patrick Ghilotti should not have to bear the burden of being someone’s campaign platform.”

“Was I ordered to do this?” counters Mayberg. “Absolutely not. Were [Davis’ staff] engaged in what was going on? Absolutely.”

That position is seconded by Davis’ staff. “Clearly the governor was aware that there was some fear in the community,” says spokesman Steve Maviglio. But as for Davis influencing Mayberg’s position, he says, “It was the other way around.”

Mayberg is a gubernatorial appointee, but he has the rare distinction of having survived a party change without losing his position. He was appointed by Republican Gov. Pete Wilson in 1993, when the state Department of Mental Health suffered from constantly changing leadership--14 directors in 20 years--and criticism both from those it served and the state’s legislators. Some had recommended abolishing the department and leaving mental health care in control of the counties.

As director of the Yolo County mental health program, Mayberg had been one of the department’s harshest critics. “What they said was, ‘Put up or shut up,’ ” he recalls. “And I realized that that was a legitimate criticism. Too often in our system, it’s too easy for people to be Monday morning quarterbacks. So I took the challenge.”

During his nine-year tenure at the Department of Mental Health, the Minnesota native, whose father and grandmother were respected mental-health professionals, is credited with creating a system that goes out of its way to accommodate those it serves, and has built strong relationships with officials in law enforcement and other areas of government. He also helped secure approval for a new $365-million, 1,500-bed mental hospital being built in Coalinga to house sexually violent predators. The state’s SVP population grows by three each month.

“He listens to all sides. He doesn’t always agree, but you know you have a fair hearing,” says Darlene Prettyman, a psychiatric nurse who serves on numerous mental health committees. She adds that Mayberg is nicknamed the “Rhinoceros” because he’s “got an armor around him, but he’s got a soft heart.”

In fact, Mayberg critics are few and far between. “He’s the kind of guy who can tell you no and make you feel good about it,” says Andrea Jackson, chief of staff to Assemblyman Darrell Steinberg (D-Sacramento), who works on mental-health issues. “He’s not a pushover. Steve Mayberg has the ability to be both pleasant and firm at the same time.”

Mayberg credits that to his ability to empathize. As a clinical psychologist, he has treated patients one-on-one, even spearheading Yolo County’s suicide-prevention program. On the personal side, he was born with a deformed right hand, something he says is “part of who I am. It’s something that most of the time I forget about, but certainly something I didn’t forget about growing up.” The experience of being different from other kids taught him “we need to find those areas where we have strength.”

When it comes to sexually violent predators, Mayberg says he draws on that empathy to consider what is best for the patient, and how to best reintroduce that person in a way that will assuage community fears and give the patient the best chance of staying crime-free. Supervised therapy is the only safe long-term solution, he says, adding that Ghilotti’s chances of success are slim without supervised therapy outside of Atascadero. “I try to explain to people it’s sort of like cancer,” says Mayberg of SVP treatment. “If you went into the hospital with a tumor, you’d have whatever procedure, a lumpectomy or a mastectomy, but then you would be discharged from the hospital. But there is an expectation that you would continue some treatment. You can’t just say it ends at the inpatient stage. That’s only for the acute state of treatment.”

Time was running out for Ghilotti’s inpatient stay. Last Nov. 28, the Marin County district attorney filed a recommitment petition, using Mayberg’s argument that he had final authority on release recommendations.

Mayberg also wrote in a letter to the court: “[It] is my opinion that each evaluator makes a threshold case in the body of each report that Mr. Ghilotti is ‘likely’ to re-offend. Accordingly, I am recommending extension of commitment because I believe that Mr. Ghilotti, as a result of his mental disorder, is likely to engage in sexually violent criminal behavior, and thus continues to meet the legal requirement for sexually violent predator civil commitment.”

Ghilotti protested, and two days later the court denied Mayberg’s argument. Prosecutors appealed, but the appeals court also refused to stay Ghilotti’s release. At 6:30 p.m. on Nov. 30--one day before Ghilotti’s unconditional release--the California Supreme Court agreed to hear the case and decide on the scope of Mayberg’s power. The court also added two more issues to the debate--whether the courts have the right to review the evaluators’ reports, and what “likely” means when it comes to committing people “likely to re-offend.” The court ordered Ghilotti to remain at Atascadero until its ruling, which is expected within the next few weeks.

Ghilotti was “confused and he was speechless,” Cox says of his client. “He had been preparing for months for a return to the community, and to have this happen at the last hour was confusing and deeply disheartening. Patrick doesn’t belong in the justice system. He finished his prison term over four years ago.”

But Ghilotti’s disappointment was Mayberg’s victory--for now. When the court gives its verdict, most legal experts believe Mayberg will lose on his position.

“That would be an extraordinary way to read the statute,” scoffs attorney Boyer of Mayberg’s stand. He adds that the state Supreme Court seemed unimpressed by the state’s position during oral arguments, with Justice Kathryn Werdegar telling the state attorney presenting Mayberg’s case that she found it “hard to read” the law in his favor. The additional issues raised by the court may still keep Ghilotti in Atascadero for a while. However, few, including Mayberg, think California’s mental hospitals should be permanent warehouses for the most fearsome sex offenders.

“I don’t think my job is to be locking someone up forever,” Mayberg says. “That’s why I think sexually violent predators represent a unique challenge. They don’t engender any empathy from anybody. What they’ve done is egregious. But people forget that I’m only recommending based on my expertise and knowledge. It’s still a court decision, a jury decision. I’m just saying, ‘Please, listen to me.’ ”

*

Anita Chabria is a freelance writer in Los Angeles. She last wrote about a Berkeley landlord’s exploitation of young Indian women.