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SVP – Postdisposition – Right to independent expert

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 commitment subject has a right to present an independent medical report at a petition for discharge probable cause hearing, § 980.09(2)(a).

Holding:  Although a Ch. 980 patient does have the right submit an independent medical report to the court, ¶¶6-13, Wis Stat.. § 980.07(1) requires that the expert be requested or retained at the time of reexamination. ¶15.

The issue arises in the context of an ineffective assistance challenge to counsel’s failure to present an independent medical report at the probable cause hearing. The court seems to hold that, given the requirement that the patient must assert the right to an expert at the time of the reexamination, coupled with his failure to do so, counsel’s belief that he was prohibited from presenting and evidence was reasonable. To the extent that the court thereby binds counsel to the patient’s failure to assert a right, the holding is extremely problematic: the patient certainly has the right to counsel at this stage, and it is hard to believe that an uncounsleed waiver of the right to present evidence without an accompanying waiver of the right to counsel can be countenanced.

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