State v. Robert M. Fowler, 2005 WI App 41, PFR filed 3/9/05For Fowler: Randall E. Paulson, SPD, Milwaukee Appellate
¶30 Dr. Harasymiw’s report concludes that Fowler still is a sexually violent person. This was sufficient to support the trial court’s conclusion that it was substantially probable that Fowler would engage in acts of sexual violence. …¶31 … Although Dr. Maskel disagreed with certain conclusions, she did not recommend discharge. Rather, she indicated that given Fowler’s improvement with treatment, “supervised release (outpatient) setting, given that there is sufficient structure to the program” would be appropriate.
¶32 In Thiel, we held that supervision and restrictions were not the appropriate issues to be considering at the probable cause stage. 275 Wis. 2d 421, ¶17. Rather, we concluded that the question at the probable cause stage was black and white: is it substantially probable that the person will engage in acts of sexual violence or is it not. Id. Applying this rule to the review standard, we must conclude that the trial court did not err in denying Fowler’s request for a discharge hearing. Our review demonstrates that the trial court had “substantial ground for the exercise of judgment” and competent evidence exists in the record for the trial court’s decision. Dr. Harasymiw’s assessment failed to provide probable cause for this court to conclude that the facts warrant a hearing on whether Fowler is still a sexually violent person. Accordingly, we affirm.
Read broadly, this result could have significant ramifications for post-commitment procedure. But to whose benefit? Keep in mind that the court explicitly borrows the probable cause standard from bindover procedure, ¶11. Importantly, probable cause is little more than a rubber stamp. State v. Anthony M. Cotton, 2003 WI App 154, ¶12 (“A defendant may be bound over for trial when the evidence presented at the preliminary hearing is sufficient to support a reasonable inference that the defendant probably committed a felony. State v. Dunn, 121 Wis. 2d 389, 393, 359 N.W.2d 151 (1984). All that is needed is a believable or plausible account of the defendant’s commission of a felony. Id. at 398.”). In other words, when there are competing, plausible inferences, one supporting probable cause and the other not, the court has no choice but to bind over. What does that mean in the present context? A Dunn-type regime is beneficial to an SVP: where one expert supports release and another doesn’t, you take the inference in favor of probable cause and pass to the next stage. Nothing in Fowler is inconsistent with that approach. Instead, the beneficial impact of Dunn doesn’t quite come into play because: under State v. Thiel, 2004 WI App 140, you need a recommendation for discharge to get beyond the § 908.09(2) petition stage; and, in this case, there was no such recommendation, ¶31. You’re left, then, with a decent argument that under a Dunn-type regime, the court must find probable cause where there’s at least one expert favoring discharge, even in the face of opposition. Dunno where, or how often, you’ll get a favorable expert but that’s a different problem. For now, we’re simply putting the best face on a nominally adverse decision.