John Albert Gardner 111 has been charged with murdering 17-year-old high school student Chelsea King

 

John Albert Gardner III was scheduled for release on parole in 2005 for his sexual conviction.  He was not subject to Jessica’s Law for evaluation as a potential Sexually Violent Predator (SVP) because the SVP law in effect then required at least 2 victims[1].  Instead, Gardener was referred for psychological evaluation under the Mentally Disordered Offender (MDO) Law[2], as he had a documented history of mental symptoms and a violent crime.  Under the MDO law, an offender can be civilly committed to state mental hospital for a period of time after serving their criminal sentence if they meet certain criteria and are determined to pose a substantial danger of physical harm to others.

 

Before being paroled from prison Gardner underwent four psychiatric evaluations: two by Board of Parole Hearing (BPH) psychologists who felt he was dangerous and should be locked up; two by Department of Mental Health (DMH) psychiatrists who thought he was not dangerous and should be paroled. The DMH low-bid contract evaluators found Gardener not to meet the criteria as a MDO, and so he was released on parole instead of being held in a locked hospital. 

 

The following is a summary of information each evaluators had access to in evaluating Gardner:

Š      Prior psychiatric pre-sentencing evaluation on Gardner by  a BPH MDO who concluded Gardner was a danger and recommended the maximum sentence.

Š      Not long before his scheduled release in 2005, Gardner was admitted to the prison infirmary (like a mental hospital). He’s been off of his medicine for bipolar symptoms for about 5 days. He was having symptoms of mania, paranoia and intrusive thoughts.  He said he wanted to be by himself or someone would get hurt.

Š      Had a history of fire-setting (a well-known risk factor for violence in forensic evaluations).

Š      Reported a history of being bullied until his freshman year.

Š      Gardner reported that he suffered from ADHD. The BPH MDO evaluator had previously concluded Gardner did not have ADHD and that he had predatory traits toward underage girls.

Š      He stated that he did have an aggressive streak in the past.

Š      He said that he’d known the 13-year-old sexual victim for about a year.

Š      The victim reported that Gardner took her to his residence where he invited her to watch movies. He tried to massage her but she declined. He then became forceful.  She resisted and he eventually stopped, at least temporarily. He subsequently asked her if she was scared. When she replied yes, he became very aggressive, humping her and putting his finger in her. (It is a well-known risk factor for violence when someone gets aroused under situations where the victim is scared.) He covered her mouth and she said she couldn’t breathe. She thought she was going to die. She told him she would do anything to get him to stop. Afterward, he hugged her. She managed to escape with one shoe and ran to a neighbor’s who called the police.

Š      Gardner blamed the victim’s mother for beating her.

The BPH MDO psychologist found him to meet all six criteria required to trigger civil commitment:  Gardner had a severe mental disorder; he used force or violence or caused serious bodily injury in the commission of his crime; the severe mental disorder was one of the causes of or was an aggravating factor in the commission of the crime for which he was sentenced to prison; his severe mental disorder is not in remission or “cannot be kept in remission without treatment"; he had been in treatment for the severe mental disorder for ninety (90) days or more within the year prior to his parole or release; and as a result of the severe mental disorder, Gardner represented a substantial danger of physical harm to others.

 

The time-line for Gardener’s evaluation was as follows:

 

1st BPH Evaluator:  Yes.  In Gardener’s case, the Board of Parole Hearings (BPH) MDO contract psychologist found him to be a mentally disordered offender who should not be paroled. That opinion was that Gardener had a severe mental disorder, that his severe mental disorder was a factor in his offence, that his severe mental disorder was not in remission and that his severe mental disorder made him a substantial danger of physical harm to others.

 

1st DMH Evaluator: No. No. A Department of Mental Health (DMH) low-bid contract evaluator found Mr. Gardner not to meet criteria as an MDO; therefore he was not dangerous and could be released.

 

If there is a difference of opinion between the BPH and DMH MDO doctors, which is the case most of the time, then the individual is sent for two independent or “difference-of-opinion” evaluators. Both of them need to find the inmate positive before the inmate would be referred for commitment to a mental hospital for treatment until no longer deemed a danger to others (when their mental symptoms are in sufficient remission).

 

3rd BPH evaluator: Yes. This contract BPH evaluator concluded he met the MDO criteria.

 

4th DMH evaluator: No.  Another DMH low-bid contract evaluator concluded Gardner did not meet the MDO criteria.

 

Gardner was released on his scheduled parole date.  If Gardner had been found to be dangerous by DMH psychologists he would have been sent to a locked forensic hospital and would have stayed there for the entire period of his parole. Gardner could also have been extended for two year periods after the parole stopped. In other words, had Gardner been found to be dangerous by either DMH evaluators, he would still be locked up and Chelsea would be alive today.



[1] California Welfare and Institutions Code 6600 et seq. was subsequently changed under Jessica’s Law to mandate SVP review after the first victim. 

[2] Penal Code Sections 2960-2981