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SCOW reformulates “clearly erroneous” standard, renders competency findings unassailable

State v. Jimmie Lee Smith, 2016 WI 23, 4/7/16, reversing a published court of appeals decision, majority opinion by Roggensack, concurrence by Ziegler, dissent by Abrahamson (joined by A.W. Bradley); case activity (including briefs)

You can’t accuse the majority of mere error correction in this decision. Although the State never asked SCOW to rewrite the “clearly erroneous” standard of review and nobody briefed or orally argued the issue (see Ziegler’s concurrence and Abrahamson’s dissent), the majority seized the opportunity to make a tough standard even tougher. Unless SCOTUS steps in, it’s going to be virtually impossible to  challenge circuit court competency findings as well as other circuit court decisions governed by the “clearly erroneous” standard of review.

The issue in this case is whether Smith was incompetent at trial and sentencing. The court of appeals described his allocution as “bizarre and bordering on incoherent.” The excerpt quoted in SCOW’s decision at ¶8 certainly supports that description. Yet, nobody raised competency during Smith’s trial court proceedings. He was found not competent at the postconviction stage, and his postconviction lawyer moved for a new trial on the grounds that he was incompetent at the time of trial and sentencing. The postconviction court, expressing skepticism about retrospective competency exams, nevertheless held one. It then rejected 2 expert opinions, which rested in part on jail and medical records showing that Smith was mentally ill (with schizophrenia, among other things) at the time of trial and sentencing, in favor of trial counsel’s testimony about Smith’s ability to understand and assist in his defense. It should be noted that trial counsel was not aware of the jail and medical records documenting Smith’s mental illnesses. The postconviction court found Smith competent, and the court of appeals reversed. SCOW now reverses the court of appeals, applying this standard of review:

[W]e review a circuit court’s competency to stand trial determination under the same standard under which we review a competency to proceed pro se determination. 12 Of course, we recognize that, in making the determination of whether a defendant is competent to proceed pro se, a circuit court must consider different proofs than necessary to determining whether a defendant is competent to stand trial. State v. Imani, 2010 WI 66, ¶36, 326 Wis. 2d 179, 786 N.W.2d 40. Garfoot, 207 Wis. 2d at 225, affirmed by Byrge, 237 Wis. 2d 197, ¶45. We review a competency to proceed pro se determination and uphold that finding unless it is totally unsupported by facts in the record. Imani, 326 Wis. 2d 179, ¶19; Pickens, 96 Wis. 2d at 570; Jackson, 363 Wis. 2d 484, ¶29; Ruszkiewicz, 237 Wis. 2d 441, ¶38. Accordingly, the necessary corollary is that our review of a circuit court’s competency to stand trial determination is limited to whether that finding is totally unsupported by facts in the record and, therefore, is clearly erroneous. Byrge, 237 Wis. 2d 197, ¶33; Garfoot, 207 Wis. 2d at 224-25. See Slip op. ¶29 (emphasis supplied).

The majority explained that “the ultimate finding of competency is a judicial determination rather than a medical one.” See ¶52.  Viewing its task as simply looking for “evidence that supports the postconviction court’s finding,” and finding that evidence in trial counsel’s uninformed testimony, the majority held that the court of appeals improperly reweighed the evidence. Smith’s conviction thus stands. See ¶¶56-58.

Since Ziegler agrees with Roggensack (author of the majority) over 90% of the time, her push back here is noteworthy. She, Abrahamson and the majority all agree that an appellate court applies a “clearly erroneous” standard when reviewing a retrospective competency determination. Ziegler, however, notes that the precise formulation of the “clearly erroneous” standard was not briefed and thus should not be decided in this case. In her view, Smith would lose under either formulation. See ¶¶60-63.

Abrahamson argues that the proper formulation of the “clearly erroneous” standard is not whether the circuit court’s finding is “totally unsupported by the facts of the record.”  Instead , “[a] finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” She notes this is closely related to the formulation stating that “findings of fact are clearly erroneous when ‘they are against the great weight and clear preponderance of the evidence.'”  See ¶¶67-70.  She further explains that the “totally unsupported by the facts” formulation derived from cases addressing a defendant’s competency to defend himself pro se. See Pickens (which Garfoot mentions in one sentence). She notes multiple decisions applying the “great weight and clear preponderance formulation,” including decisions which Roggensack herself authored.  See ¶90. Abrahamson warns that under the new formulation:

[A] circuit court’s determination of competency to stand trial would survive appeal even in the face of overwhelming contrary evidence and even in circumstances such as those in the present case in which the postconviction court stands in little better position than an appellate court in determining the defendant’s competency at a point in time several years prior. See ¶100.

As you’ve probably guessed, Abrahamson would affirm the court of appeals (which reversed the postconviction decision) and remand the case for a new trial.

UPDATE: Please see Attorney Rob Henak’s comment below. He correctly points out that Justice R. Bradley did not participate in this decision, so it was decided by only 6 justices.  In light of Ziegler’s concurrence, there do not appear to be 4 votes supporting the reformulation of the “clearly erroneous” standard, which means the issue can (and should) be briefed in future appeals!!  Thank you, Rob.

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{ 1 comment… add one }
  • Robert R. Henak April 8, 2016, 10:39 am

    Your analysis misses the fact that R. Bradley did not participate and that, with Ziegler not joining Roggansacks opinion on the standard of review, there is no majority on that point.

    A more disturbing part of the decision is Paragraph 41, which appears to change Wisconsin procedural law by barring a respondent in SCOW from raising any claims that he/she/it failed to identify in the response to the petition for review. I discuss this in a blog post available at https://henaklaw.wordpress.com

    That procedural issue likewise was not raised by the parties (with good reason) and the Court’s procedural comment in Paragraph 41 reflects an unfortunate tendency of this Court to reach out and decide (usually wrongly, as here) procedural issues that have wide impact and were not briefed or even raised by the parties. The mess that State v Starks created regarding the proper court in which to raise claims of post-conviction ineffectiveness, and the Court majority’s failure to correct its error on reconsideration, is another example.

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