After eight years of litigation, the state Attorney General’s Office is dismissing a civil action aimed at classifying a former Whidbey Island man as a “sexually violent predator” and committing him to McNeil Island for treatment.
The case against Donald Herrick, 43, went to the state Supreme Court because he refused to consent to a test that would measure his arousal to different images, including rape.
But ironically, Herrick finally agreed to the penis plethysmograph last month and the “inconclusive” results are the reason he will be set free.
Herrick was convicted in Island County Superior Court of first-degree rape in 1997. He and a friend broke into a home in Scatchet Head on South Whidbey April 24, 1997, in an attempt to steal marijuana plants they thought were growing there.
Herrick discovered a woman, a stranger to him, asleep in her bed. He raped her and savagely beat her until she lost consciousness.
As a result of the injuries, the woman lost most of the hearing in one ear and suffered nerve damage in her left cheek.
A judge sentenced him to 10 years and five months in prison.
Herrick got out of prison in September 2006. Three months later, he saw a 16-year-old Shoreline girl on a bus and followed her home. The girl’s father caught Herrick peeking in the window as his daughter was undressing to take a shower; the father said Herrick was trying to remove the window screen.
Herrick pleaded guilty to one count of voyeurism in King County Superior Court and was sentenced to 22 months in prison.
Herrick was then sentenced to jail for three months for violating the conditions of his release by stalking a woman, the court documents state.
As he was about to be released from jail, the state Attorney’s General Office in 2010 filed a petition seeking the involuntary civil commitment of Herrick as a sexually violent predator.
The state alleged that Herrick suffered from paraphilia, not otherwise specified, and an antisocial personality disorder.
If a jury agreed with the state, Herrick would have been committed to the custody of the state Department of Social and Health Services for placement in a secure facility — McNeil Island — for control, care and treatment until he no longer meets the definition of a sexually violent predator.
Herrick has been held at McNeil Island for the last eight years as the court process slowly moved forward.
One of the reasons the case has taken so long, the records show, is because Herrick refused to submit to a plethysmograph, which the state’s expert, psychologist Brian Judd, said he needed to complete his psychological profile of Herrick.
Island County Superior Court Judge Alan Hancock found Herrick in contempt and ruled that Herrick’s refusal to take the test was admissible at trial.
Herrick’s attorneys appealed to the state Court of Appeals and, ultimately, the state Supreme Court, which affirmed Hancock’s decision.
Judd had concluded in a series of reports that Herrick met the criteria of a sexually violent predator, but changed his opinion after Herrick complied with the order for the testing Jan. 13.
In a letter, Judd noted that the testing was inconclusive. He wrote that he still regards Herrick as a moderate to high risk to re-offend, but he can no longer state with a reasonable degree of certainty that he meets the definition of a sexually violent offender.
In response, the Attorney General’s Office filed a motion to dismiss.
