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SVP – Postdisposition – Discharge Procedure – Right to counsel, timing of appointment

State v. Glenn Allen Thayer, 2001 WI App 51, 241 Wis. 2d 417, 626 N.W.2d 811
For Thayer: Jane K. Smith

Issue: Whether the lateness of counsel’s appointment, six days before the paper review probable cause hearing, violated due process.

Holding: Construing Thayer’s argument to raise a contention that due to lateness of the appointment, counsel “had insufficient time to prepare for the probable cause hearing,” ¶35, the court accepts the attorney’s assertion that he didn’t need additional time to prepare for the hearing, and concludes that Thayer therefore wasn’t prejudiced by the “timing of the appointment.” ¶37.

: The court says that “there is no specific statutory time established to appoint counsel for an indigent ch. 980 patient. Counsel must simply be appointed as soon as possible.” ¶32. The court isn’t explicit as to what triggers the right to counsel, but broadly hints that the right attaches whenever the person becomes a “subject of the petition.” Id., quoting, § 980.03(2)(a). “Petition” can mean the person’s petition, and Thayer, as the court notes, “effectively” was petitioning for discharge. ¶33. The court’s discussion on this critical point is elliptical, but this may be what the court means: § 980.09(2)(a) says that if the person doesn’t affirmatively waive the right to petition, the court shall set a probable cause hearing; Thayer didn’t waive his right to petition for discharge; he therefore “was effectively petitioning the court for discharge on that date.” Id. “¶33 By failing to waive his right to petition for discharge on August 15, 1998, Thayer was effectively petitioning the court for discharge on that date.” The department’s examination was dated August 24, 1998, ¶23, so we can infer that 8/15/98 was probably the date of the reexam. The statute indicates that the waiver form must be given to the person at the time of the § 908.07(1) exam. If, then, the court’s apparent holding is taken literally, two rights are simultaneously triggered: the right to an independent expert (waived if not affirmatively asserted) and to a petition and therefore to counsel (self-effectuating unless affirmatively waived). Which means that at the very time Thayer is held to waiver of an independent expert (discussed separately above), he was entitled to representation by counsel. The argument therefore could be — but doesn’t appear to have been made — that Thayer’s waiver of the expert wasn’t effective because it was made without advice of counsel to which he was then entitled.

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