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Admission of damaging hearsay a recommitment trial wasn’t plain error

Rock County v. H.V., 2021AP1760-FT, 1/13/22, District 4 (1-judge opinion, ineligible for publication); case activity

This appeal concerns a recurring problem in Chapter 51 cases: the lack of objection to damaging hearsay at the final hearing. If the appellate lawyer raises ineffective assistance of counsel in the circuit court, the case will become moot before the issue is finally resolved. Here, the appellate lawyer when straight to the court of appeals, admitted the issue was forfeited, and argued “plain error.”  The court of appeals rejected the argument based on a significant error of constitutional law.

H.V. has been diagnosed with schizophrenia and under continuous commitment since 2014. At his 2021 recommitment trial, the examiner said that there had been no change since the year before (when he was also on commitment). H.V. has ongoing delusions that haven’t responded much to treatment. He needed to be recommitted again because in 2016 he assaulted someone believing that the person was having sex with his ex-wife and because he doesn’t think he has a mental illness and does not want to take schizophrenia medication.

The court recommitted him under the 3rd standard of dangerousness–i.e. if treatment were withdrawn he would show impaired judgment leading to a pattern of acts or omissions showing a substantial probability of physical impairment or injury to himself or others. Wis. Stat. §51.20(1)(am) and (1)(a)2.c.

On appeal, H.V. argued that the alleged 2016 assault was hearsay and asked the court of appeals to reverse based on the plain error doctrine. See § 901.03(4)State v. Jorgensen, 2008 WI 60, ¶21, 310 Wis. 2d 138, 754 N.W.2d 77. The first step in a plain error analysis is for the appellant to identify an error that is fundamental, obvious, and substantial. Id., ¶23.

H.V. argued that the admission of hearsay satisfied this requirement because it denied his constitutional right to confront and cross-examine the out-of-court declarant who claimed that he committed the 2016 assault.  The court of appeals rejected his argument:

To the extent H.V. means to assert a Sixth Amendment confrontation clause violation, I reject this argument, as a civil proceeding does not implicate this right. See Walworth County v. Therese B., 2003 WI App 223, ¶10, 267 Wis. 2d 310, 671 N.W.2d 377. Opinion, ¶21.

H.V. doesn’t have a 6th Amendment right to confront and cross-examine witnesses because he has a civil case. But he does have a 14th Amendment right to confront and cross-examine witnesses, which the court of appeals ignores. SCOTUS acknowledged this right in Vitek v. Jones, 445 U.S. 480, 494-495 (1980). In Jorgenson, SCOW held that a 6th Amendment confrontation violation satisfied the plain error doctrine’s  “open, obvious and substantial” requirement. Presumably, a 14th Amendment confrontation violation does too. Milwaukee County v. K.M, Appeal No. 2019AP1166 raised this issue and pointed out that Therese B. and several other Wisconsin cases conflict with Vitek. K.M.’s petition for review is still pending.

The court of appeals rejection of H.V.’s plain error argument doomed his insufficient evidence claim. It held that without medication his delusional thinking would become more intense. He would become more paranoid about people harming him or people he cares about. He would act on his delusions again. According to the examiner, “there is a 100 percent likelihood that H.V. would eventually . . . engage in behaviors that would lead him . . . have hospitalized again.” Opinion, ¶27.

Really? 100% certain?



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