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Petition for (NGI) Conditional Release, § 971.17(2) (1987-88): Dangerousness, Review

State v. Alan Adin Randall, 2011 WI App 102 (recommended for publication); for Randall: Brian Kinstler, Craig S. Powell; case activity; prior historyState v. Randall, 192 Wis. 2d 800, 532 N.W.2d 94 (1995) (“Randall I”); State v. Randall, 222 Wis. 2d 53, 586 N.W.2d 318 (Ct. App. 1998) (“Randall II”)

Petition for (NGI) Conditional Release, § 971.17(2) (1987-88) – Finding of Dangerousness, Standard of Review

The standard of review for a finding of dangerousness on a § 971.17(2) petition for release is the sufficiency of evidence test; deference is therefore assigned the trial court’s conclusion, ¶¶11-17.

Sufficiency of Evidence, Dangerousness

The trial court’s finding that Randall remains dangerous, therefore not entitled to conditional release, is sustained in light of: “(1) the brutal nature of Randall’s crimes; (2) Randall’s behavior while institutionalized, and (3) the mental health experts’ testimony,” ¶18.

Randall was found NGI, for multiple offenses including the intentional murder of two police officers. Hence the court’s observation, “Such brutal criminal acts, for which Randall was found guilty, are evidence of dangerousness,” ¶21. His institutional behavior included some infractions, and ultimately the court isn’t impressed that none were assaultive: “Randall’s devious, secretive and intentional rule-breaking behavior, similar to his behavior at the time of his crimes, demonstrates that he continues to be dangerous,” ¶29. Facts are stubborn things; Randall couldn’t hope to change history, but he had reason to think that the expert opinions would turn the tide. Indeed, they appeared to provide formidable support for release, in that all three testified Randall wasn’t currently mentally ill and presented a low risk of dangerousness. But precisely because opinions aren’t immutable, the experts ironically prove Randall’s undoing.

Start with Foucha v. Louisiana, 504 U.S. 71, 76-77 (1992), which holds that someone under commitment “may be held as long as he is both mentally ill and dangerous, but no longer.… Even if the initial commitment was permissible, ‘it could not constitutionally continue after that basis no longer existed.’” Does this mean that if the person is subsequently found sane, he must be released? No.  Randall I construes Foucha to allow continued confinement if the person is now sane but dangerous. 192 Wis. 2d at 807 (“we read Foucha to permit the continued confinement of dangerous but sane acquittees in a mental health facility, so long as they are treated in a manner consistent with the purposes of their commitment, e.g., there must be a medical justification to continue holding a sane but dangerous insanity acquittee in a mental health facility”). But surely a determination that Randall is presently sane supports the idea that he is no longer dangerous. After all, if he was dangerous because he was insane, his return to sanity would mean he could now control his behavior. Not quite. Turns out the experts believe not merely that he is now sane, but he never was insane; in other words, the experts concluded that he’d been misdiagnosed at the time of his commitment, ¶31. Instead of advancing Randall’s cause, the experts undermined it, because the trial court then “was left without any explanation for Randall’s original violent behavior,” id. Therefore, the trial court determined, nothing had changed except the passage of time. But the experts also thought, to a person, that  Randall presents a low risk of dangerousness, ¶39, and whatever else Foucha might mean, it means that you can’t hold someone on a civil commitment if he’s not dangerous. The experts’ unanimously held opinion of low risk must count for something, right? Not really.

¶40      However, as we noted in Randall II, the trial court is not obligated to reach the same conclusion that the experts reached, even if those opinions were uncontroverted.  See id., 222 Wis. 2d at 63.  Indeed, in Randall II we affirmed the trial court’s finding of dangerousness despite the fact that there, just as here, the experts testified that Randall could be safely conditionally released.  See id. at 58, 67. We found credible evidence in the record from which the jury could have reasonably concluded, contrary to the experts’ opinions, that Randall was still dangerous:

the jury could have concluded that Randall had been misdiagnosed as a paranoid schizophrenic at the time of the initial trial, in which case his dangerousness is independent of that mental illness diagnosis, and therefore, his lack of current symptoms of that mental illness was of marginal relevance to the issue of whether he might become violent again.

Id. at 63.  Similarly here, the trial court properly rejected the experts’ opinions on dangerousness after conducting its own balancing test based on all of the evidence.

¶41      In sum, the absence of any mental-illness explanation for Randall’s brutal and violent crimes and his secretive rule-breaking behavior that was so similar to his behavior at the time of the original crimes, reasonably led the trial court to find that Randall remained dangerous.[7]

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