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Committed sex offender entitled to discharge hearing based on re-evaluation with updated actuarial

State v. Herbert O. Richard, 2014 WI  App 28; case activity

Richard is entitled to an evidentiary hearing on his petition for discharge because the independent psychologist’s opinion that amendments to the Static-99 show Richard’s risk to reoffend is below the legal threshold constitutes a fact on which a court or jury may conclude that Richard does not meet the criteria for commitment as a sexually violent person, thus satisfying the standard for getting a discharge hearing under § 980.09(2) (2011-12).

Richard was committed in 2008 after a trial in which the state’s experts relied on actuarial instruments including the Static-99. In 2009 he filed a petition for discharge, citing research that ultimately led to revision of the Static-99 and arguing he would have a lower risk of reoffense under the revised instrument. The court of appeals held the revision of the Static-99 by itself did not support a full discharge hearing in the absence of a new evaluation in which an expert actually applied the Static-99R to Richard. In 2012 Richard filed another discharge petition, this time supported by an expert’s evaluation that concluded, based in part on the new, lower recidivism risk tables of the Static-99R, that Richard no longer met the standard for commitment.

The circuit court denied the petition, saying Richard’s expert relied on the same facts all the previous experts relied on. The court of appeals reverses:

¶20      …[A] petition alleging a change in a sexually violent person’s status based upon a change in the research or writings on how professionals are to interpret and score actuarial instruments is sufficient for a petitioner to receive a discharge hearing, if it is properly supported by a psychological evaluation applying the new research. See [State v.] Richard, 333 Wis. 2d 708, ¶¶13-14, 17, 19; [State v.Combs, 295 Wis. 2d 457, ¶¶25, 27, 32; [State v.Pocan, 267 Wis. 2d 953, ¶12. Richard’s petition meets these requirements.

The court rejects the state’s arguments that the data on which the new opinion was based was known before, and discussed at, Richard’s original trial and that the Static-99 was only one of three actuarial instruments used at Richard’s trial:

¶23      …[W]e are unpersuaded by the State’s piecemeal approach. The State does not tackle Richard’s broader contention that, at the time of his commitment trial, the Static–99 scoring tables had not yet been adjusted to reflect new research about the effect of aging on recidivism. See Hoffman v. Economy Preferred Ins. Co., 2000 WI App 22, ¶9, 232 Wis. 2d 53, 606 N.W.2d 590 (WI App 1999) (unrefuted arguments are deemed conceded). Indeed, Pierquet, the State’s own psychologist, stated in her April 2011 reevaluation report that the tables were first presented at an academic conference in September 2009, and publication in a peer-reviewed journal had not yet been accomplished.

A seemingly straightforward application of the settled law on what it takes to get an evidentiary hearing on a discharge petition. But that law isn’t quite so settled any more, for as the court notes (¶12 n.9), 2013 Act 84 changed the pleading standard. The standard applicable to this case specified the judge should deny the petition without a hearing unless the petition alleged facts from which a factfinder may conclude the person’s condition has changed since the date of his or her initial commitment order. As amended, § 980.09 requires the judge to deny the petition without a hearing unless the petition alleges facts from which the factfinder would likely conclude the person’s condition has changed; moreover, the relevant time period is changed to be either since original commitment or since the most recent order denying a petition for discharge after a hearing on the merits, if the person had such a hearing since original commitment.

So while this case and Pocan and Combs still help answer the question about what constitutes “new” information in support of discharge, they don’t address what it takes for new information to be enough to make it “likely” a finder of fact would grant discharge. That will be the next topic of disputation. On Point will hazard a guess that meeting the new standard will almost certainly take more evidence than Richard presented here–the report of a single expert based on changes in one actuarial instrument.

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