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SVP – Postdisposition: Expert – Right to, Re-exam

State v. Dennis R. Thiel (III), 2001 WI App 32, 241 Wis. 2d 465, 626 N.W.2d 26
For Thiel: John D. Lubarsky, SPD, Madison Appellate

Issue: Whether the trial court properly exercised discretion in refusing the indigent’s request for an independent expert on a § 980.07(1) (1997-98) reexamination.

Holding:

¶25 The first use of the word ‘may’ in WIS. STAT. § 980.07(1) (‘the person who has been committed may retain ….’) affords Thiel the option of requesting a second expert. Thus, it is within Thiel’s discretion whether to ask for an independent examination. However, if Thiel is indigent, as he alleged, and requests assistance from the court to obtain the second examination, the second use of the word ‘may’ in § 980.07(1) is not discretionary, but mandatory. The second use of ‘may’ does not offer the discretion to refuse such a request, but instead the latter “may” simply endows the circuit court with the authority to honor Thiel’s request. The new language of the statute, obligating the court to appoint an expert upon an indigent patient’s request, demonstrates that the legislature intended for the latter ‘may’ to be mandatory. Thiel’s § 980.07(1) request for the appointment of an expert was erroneously denied.

The holding seems self-explanatory: all SPD Ch. 980 clients are entitled, because they are by definition indigent, to mandatory appointment of an expert upon request. The more interesting question is how to square this case with State v. Glenn Allen Thayer, 2001 WI App 51, 241 Wis. 2d 417, 626 N.W.2d 811, which holds, ¶15, that the SVP has to request the expert at the time of reexam or the right is waived. Thiel’s reexam “was held on May 4, 1999”; he didn’t request an independent expert until he wrote a letter to the court on August 9, 1999. ¶3. But Thayer  has doubtful validity on this point. The right to an expert attaches when the person is “the subject of the petition.” § 980.03(3) (which is cross-referenced in § 980.07(1)). And the person doesn’t become a “subject of the (supervised release) petition” unless and until s/he refuses to waive the right to file a petition, something that at least arguably doesn’t occur until after the department’s examination has been prepared and filed with the court. § 980.09(2). In other words, the right to an independent examination hasn’t even attached “(a)t the time of the reexamination,” if that temporal limitation is taken literally, and it would therefore work an absurd result to impose a literal construction. The right attaches when you go to court, after the examination has been filed, and refuse to waive. That said, it still wouldn’t be clear what temporal limitation might apply. Thiel certainly made his request for an independent expert after that point, and the court held it viable, without discussing the problem. (Denial of counsel possibly entered into it.) Thayer was given counsel, and apparently never requested an expert, which might explain the different result, if not the reasoning. The lesson, certainly, is to make the request as soon as possible.

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