Cris Barrish

The News Journal

Prosecutor and judge were adamant about extended%2C inpatient treatment at McLean Hospital near Boston as a condition of probation.

Delaware and Massachusetts never were able to arrange a transfer of Richards' probation needed for McLean Hospital admission.

A du Pont heir who raped his daughter was supposed to complete an intensive treatment program at an inpatient psychiatric clinic in Massachusetts as a condition of a sentence that allowed him to avoid prison time.

But he never did, court records show.

Superior Court Judge Jan R. Jurden ordered probation for Robert H. Richards IV in February 2009, on the condition that he be accepted for treatment at the expensive McLean Hospital near Boston, according to a transcript of the sentencing. Jurden agreed to probation only after the prosecutor argued the state typically would demand prison time in such child abuse cases, but was willing to accept probation because of the therapy Richards would receive at the out-of-state clinic.

"If the court is not inclined to send him to the Massachusetts program, then the state would be asking for some period of jail that the court would feel would be appropriate under the circumstances," prosecutor Renee Hrivnak said during the Feb. 6, 2009 hearing.

Moments after sentencing Richards to probation on the condition that he complete treatment in Massachusetts, Jurden expressed reservations about her decision to spare him prison time, referred to as Level V sentencing.

"I have concerns about this, because arguably you should be in Level V for what you did, and I hope you understand the gravity of what you did,'' Jurden told Richards.

Richards never went to McLean Hospital, Eugene J. Maurer Jr., his attorney at the time, said Tuesday. Richards instead remained in Delaware because of issues transferring his probation there and the fact that McLean did not have required security for an inmate such as Richards, Maurer said. Richards got care in Delaware under the supervision of probation officers.

Jurden has come under fire for sentencing Richards to probation and not prison, and for her notation that he "will not fare well" behind bars, one of the factors listed as a mitigating factor in her sentencing order. During the hearing, Jurden said she was willing to order probation for Richards because he planned to seek treatment at the Boston psychiatric program and had family support, two other mitigating factors also noted in her sentencing order.

"I think that you have significant treatment needs that have to be addressed, and you have very strong family support. So, unlike many other unfortunate people who come before me, you are very lucky in that regard, and I hope you appreciate that,'' she said.

Richards, 48, is the great-grandson of du Pont family patriarch Irenee du Pont and the son of Robert H. Richards III, a retired partner in the Richards Layton & Finger law firm.

The hearing transcript shows that the prosecutor and the judge cited the intensive therapy offered by the Boston clinic as the main reason they agreed to probation over prison for Richards.

"Your honor, the state does not think that this is a case that would be appropriate for flat-out probation," Hrivnak said. "Typically, we would be asking for jail time. I think that this Massachusetts program is a viable alternative to jail, if the court were willing to sentence him to successfully complete that program."

The treatment "would cover the whole range of therapy" in "more of a long-term, inpatient psychiatric institution," Maurer said during the hearing.

"I believe it's expensive, but as I mentioned before, it can be covered," Maurer said. "It can happen. It can happen quickly."

'Very long journey'

The 16-page transcript was not available in the court file at the New Castle County Courthouse. The News Journal ordered it from a court stenographer. The transcript provides further details about how Richards was able to avoid prison in a case that has gained international attention since his ex-wife filed a civil lawsuit last month seeking damages for his sexual abuse of their daughter between the ages of 3 and 5.

The lawsuit also accused Richards of sexually abusing his toddler son during the same period, although police have said they investigated such claims in 2010 and did not file charges. The lawsuit claims Richards admitted abusing his son in statements outlined in probation reports later sent to Jurden.

Richards' sentencing hearing had initially been set for August 2008, was continued to December and finally held on Feb. 6, 2009.

It was the 12th matter on Jurden's calendar that day, and began with Maurer telling Jurden that Richards had completed six weeks of treatment at the Keystone Center near Chester, Pa., which the lawyer said had cost "an inordinately large amount of money.'' The facility offers residential treatment for various addictions, including sexual compulsion, according to its website.

Maurer said during the hearing that he had not yet been able to obtain a copy of Richards' "discharge summary'' for Jurden to review.

Maurer noted Richards' "very long journey,'' saying his client first "was denying his involvement, or minimizing his involvement in this situation.'' He finally had "a bit of a breakthrough'' and underwent an evaluation at Johns Hopkins University in Baltimore, which recommended the Keystone program.

Maurer said Richards was amendable to more treatment, and suggested two programs, one in Baltimore, the other in Massachusetts. He said Richards was remorseful, and "somewhere down the road'' wanted to reunite with his daughter. Documents submitted by Maurer indicated that the program at McLean Hospital in Massachusetts was preferable to the one in Baltimore.

Richards 'not remorseful'

During the sentencing hearing, the prosecutor argued a number of factors that concerned her about Richards' behavior, including that he tried to hide what he did to his daughter, blamed his wife and pornography for abusing her, and chose a specific type of sexual abuse "because there was less likelihood of getting caught."

She also cited "the disturbing factor" of Richards' religious beliefs, "which sort of make the keeping it a secret and trying to hide this a little bit more disturbing because of the deeply-rooted religious beliefs that the defendant has." The prosecutor didn't elaborate.

Hrivnak said she also was concerned because Richards "is still not remorseful.

"And I realize Mr. Maurer says today that he is remorseful, and that might very well be at this point, since he's now had some treatment, but we haven't had that report, in and of itself," she said.

Richards was charged in Oct. 2007 with two counts of second-degree rape, punishable by a minimum 20 years of prison if convicted. A New Castle County police affidavit accused him of digital penetration of his daughter.

Attorney General Beau Biden's office indicted him on the same charges in January 2008. But in June of that year, days before a scheduled trial, Hrivnak allowed Richards to plead guilty to one count of fourth-degree rape, which carries no mandatory prison time with sentencing guidelines that recommend a sentence of zero to 30 months in prison.

Maurer has called the offer "more than reasonable.'' Biden, whose office said he did not know about the case at the time, said last week that the case was weak and based almost entirely on the word of the girl, then 5.

During the hearing, Hrivnak said the Massachusetts hospital – which "should be a five- to six-month program" – would offer Richards a therapy option that might help in the future and would protect his daughter.

"I would feel more comfortable if he had the intensive psychiatric treatment that will address whatever issues he has, in addition to the sexual issues, and hopefully protect her and other children in the future," the prosecutor said.

But Hrivnak made clear to the judge that she was proposing only two options for Richards' sentence: treatment at the Boston clinic followed by a "lengthy period of probation," or prison time.

'I feel horrible'

Asked by the judge to explain the Massachusetts program, Maurer noted that Richards has "a bit of a psychiatric issue'' and that McLean is a "long-term, inpatient psychiatric institution'' that also could help him with "the sexual disorder.''

"Do they have a bed open?'' Jurden asked.

Maurer said he didn't know. While waiting for a bed, Maurer said, Richards would agree to a higher level probation, even home confinement.

Jurden and Hrivnak did not discuss Richards' fitness for prison during the sentencing hearing, the transcript shows. Maurer raised that issue, which the judge incorporated in her order, early in the proceeding.

The defense attorney said he hoped Jurden would conclude that Richards "is not a suitable candidate for incarceration. In fact, I would not think that he would fare well there. In fact I know he would not fare well there. He is a somewhat gentle person, who has some of the limitations, as have been indicated in all the reports that have been forwarded to the court.''

A presentencing report ordered by the court, in which victims, the defendant, relatives and others are interviewed, has not been made public, court officials said, because a Superior Court directive decrees that they are private.

Jurden asked Richards if he had anything to say during the hearing.

"I feel horrible what I did to my daughter,'' Richards said. "I feel very remorseful and very sad about what, the damage that I've done to her. There's no excuse for what I've done to her. It's horrible and, and I'd like probation, like Mr. Maurer has said.''

A call to Richards' house Tuesday was answered by a woman. "Hold on. I'll give it to him,'' she said. Moments later she returned to the phone and said, "He's not available. We have no comment.''

After Richards spoke at the hearing, Jurden gave him eight years in prison but suspended all eight years for Level II probation, which requires monthly visits with a probation officer. She ordered him held at Level III, which requires at least weekly contact with a probation officer, until he was sent to McLean.

"The only reason I'm doing this is so that probation can be transferred, and I don't know what we're going to do if Massachusetts won't accept it," Jurden said. She asked the prosecutor and Maurer to inform her "if there's a problem with any of this."

"Probation can be transferred to Massachusetts in order for you to complete this Massachusetts program and you will successfully complete that. That is a condition of you being out on probation,'' she told Richards. "You understand that?''

Richards said yes and Jurden said after he returns from Massachusetts, probation officials will decide whether he needed additional treatment or group therapy. "If they do decide you do, then you'll do that,'' she said.

Before adjourning, she stressed, "The intent of the court is that you get to Massachusetts and you successfully complete that treatment as soon as possible.''

Richards' probation

Richards never went to McLean.

In June 2009, though, Maurer filed court papers that said he and Richards "have been advised that he is not permitted to leave the state to go to Massachusetts'' for treatment. Maurer wrote that he didn't know if that was because Delaware wouldn't let him leave or Massachusetts refused to supervise Richards "due to the nature'' of the crime.

To help Richards lawfully go to Massachusetts, Maurer asked Jurden to "temporarily suspend execution of the sentence."

Hrivnak objected, however, noting that she recalled from the hearing five months earlier that "a bed was either available or would be available in the near future'' and Richards would get the ordered treatment "within a short period of time.''

She asked Jurden to hold a hearing on the matter.

That September, prior to a hearing, Maurer wrote to Jurden that the program at McLean was a "two-week intensive therapy program after which recommendations are made for further treatment.'' He also noted that McLean "is not a locked setting so that there is not the level of security which might be desirable.'' The two-week program cost $49,700, according to the clinic's website, and is not eligible for insurance reimbursement.

Jurden and the lawyers held a teleconference with a psychologist at McLean in October 2009. The judge wrote afterward that she would not modify the sentence to allow him to go to McLean, but would consider allowing that when his probation was reduced to a less restrictive supervision.

Maurer said he stopped representing Richards not long after that. While on probation, Richards hired criminal attorney Kathleen M. Jennings. Jennings won't say how long she represented Richards before joining Biden's office as chief state prosecutor in November 2011.

Jurden finally modified the order in October 2012 to put Richards on Level II probation, where he remains today with a requirement to meet monthly with a probation officer.

Available records from the court file, however, show no further effort by anyone associated with the case to have Richards treated in Massachusetts, as the judge had required and Hrivnak had sought as a condition to allow him to avoid prison. Court officials have released some records, but not all.

Two probation progress reports show that Richards continued getting treatment locally, and expressed concerns about possible abuse of his son.

Richards, whose probation will be in effect until February 2017, has never been charged with violating probation, although a Sept. 2010 progress report by probation officer Stuart B. Moskowitz said Richards' ex-wife "indicated he had been harassing her on the phone'' and not abiding by an agreement to call once a week, on Friday after 9 p.m., "when the children would be in bed.'' Moskowitz wrote that Richards' progress, 19 months into his sentence, was "slow and limited.''

Moskowitz's report stated that Richards was "in individual counseling, under psychiatric care and in sex offender group counseling.'' But he also noted that during a polygraph exam ordered to get him to be more open about his sexual history, "the possibility of sexual contact with his other child, his son, came to light.''

Jurden signed off on that report, the court file shows.

A September 2012 progress report by probation officer Jeffrey R. Kay, just days before Jurden modified the sentence, noted that Richards had participated in group treatment, undergone two required polygraphs and "has maintained a positive attitude toward his supervision."

Kay's report also sounded another alarm about Richards and his son, noting that "there are concerns about Mr. Richards' past offenses concerning his son.''

That report was signed and approved by Judge John A. Parkins Jr. for Jurden, court records show.

County police have reopened the investigation into allegations in the lawsuit.

"What I did to my son,'' the lawsuit quoted Richards as saying, "I will never do it again.''

Staff reporter Sean O'Sullivan contributed.

Contact senior reporter Cris Barrish at (302) 324-2785, cbarrish@delawareonline.com or on Facebook.