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COA: ch. 51 jury doesn’t have to agree on whether you’re dangerous to self, others, etc.

Sauk County v. R.A.S., 2018AP2253, 10/31/2019, District 4 (one-judge decision; ineligible for publication); case activity

R.A.S. was committed after a ch. 51 jury trial. The county alleged and the court instructed on two forms of dangerousness–those in Wis. Stat. § 51.20(1)(a)2.c. and 2.d.. R.A.S. asked that the verdict form require the jury to agree on one, the other, or both to commit him, but the circuit court refused, instead submitting a form that just asked the jury if R.A.S. was “dangerous.” The court of appeals now affirms this decision, rejecting R.A.S.’s due-process claim and saying that In re Michael H., 2014 WI 127, 359 Wis. 2d 272, 856 N.W.2d 603, controls the question–though it in fact has only glancing relevance to the issue.

Michael H. was a sufficiency challenge involving a person who’d been alleged to be dangerous on two grounds. Its great significance: the verdict form there was also general. But Michael H. didn’t raise, and the court didn’t decide, a jury-unanimity question, so it’s quite a stretch to say that it contains a governing analysis of the issue (and thus renders inapplicable State v. Aimee M., 194 Wis. 2d 282, 533 N.W.2d 812 (1995), which was a unanimity case).  (¶¶16-19). The “analysis” the court of appeals relies on consists of a passing observation that the statute describes five “ways” a person can be dangerous. Seriously, that’s it: they said “ways.” (¶19).

This is a one-judge opinion, and so it’s not binding on any future litigants. Given the speciousness of its reasoning, it shouldn’t scare them away from raising similar challenges.

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