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Change in evaluator’s opinion based on change in research merits ch. 980 discharge hearing

State v. Kerby G. Denman, 2014AP2133, District 4, 7/9/15 (not recommended for publication); case activity (including briefs)

Denman is entitled to a hearing on his petition for discharge from his ch. 980 commitment because an expert changed her opinion about Denman’s risk to reoffend based on a new risk assessment scale that hadn’t been relied on by any of the experts at Denman’s previous discharge proceeding.

Denman petitioned for discharge based on a favorable 2011 evaluation of an expert who concluded Denman didn’t meet the risk-to-reoffend criterion. The expert based her conclusion on an assessment of Denman’s Static-99R score interpreted in light of dynamic risk factors. Despite this opinion, the petition was denied after a hearing held in 2012. In 2013 the same expert prepared another report reaching the same conclusion, but this time her assessment of Denman’s risk was based on new research about using the Violence Risk Scale-Sex Offender version (VRS-SO) to assess dynamic risk. Using that new research, and applying the VRS-SO to Denman for the first time, the expert concluded Denman’s reoffense risk was lower than what she testified to in 2012 and, as she concluded in 2012, didn’t meet the ch. 980 risk-to-reoffend criterion. (¶¶4-12, 20-21). Denman filed a new discharge petition based on the expert’s 2013 report, but the circuit court denied the petition on the grounds that the report wasn’t based on new research because the VRS-SO was in existence in 2011 and 2012 and therefore was previously “available” to the expert. (¶¶13-14, 23).

The court of appeals reverses. It concludes that by offering only conclusory assertions to the contrary, the state conceded Denman’s argument that while the VRS-SO existed in 2011 and 2012, the relevant research about using the VRS-SO to assess dynamic risk factors was not actually “available” to the expert in 2011 or 2012. The court of appeals therefore rejects the circuit court’s “availability” rationale for denying the petition. (¶26).

Denman argued that circuit court’s “availability” rationale violated the rule from the line of cases running from State v. Pocan, 2003 WI App 233, 267 Wis. 2d 953, 671 N.W.2d 860, through State v. Combs, 2006 WI App 137, 295 Wis. 2d 457, 720 N.W.2d 684, State v. Kruse, 2006 WI App 179, 296 Wis. 2d 130, 722 N.W.2d 742, State v. Richard (I), 2011 WI App 66, 333 Wis. 2d 708, 799 N.W.2d 509, State v. Schulpius, 2012 WI App 134, 345 Wis. 2d 351, 825 N.W.2d 311, and finally State v. Richard (II), 2014 WI App 28, 353 Wis. 2d 219, 844 N.W.2d 370. The rule is this: When a discharge petition relies on a change in professional knowledge or research, the question is whether the knowledge or research was considered by any of the experts (and thus the fact-finder) at the last proceeding that addressed whether the respondent was a sexually violent person, not whether the research was “available” to the expert. Denman also noted (brief-in-chief at 16-19) that the circuit court’s use of an “availability” (rather than a “considered”) rationale raised various nettlesome logical and practical questions, but the court of appeals doesn’t address those questions in light of its conclusion the state conceded the relevant research wasn’t available to the expert at the last hearing. (¶¶24-26).

The court also rejects the alternative argument the state offers to defend the denial of Denman’s petition: That the expert’s use of the VRS-SO didn’t add significant new information, given that the substance of her 2013 report was essentially the same as that of her 2011 report. The court makes it clear that when a petition is based on new research or knowledge, it does not matter that the facts about the committed person have not changed:

¶28     In making this argument, the State does not contest that the new risk assessment scale incorporates dynamic risk factors in a manner that the evaluation process used in 2011-12 did not. The State’s argument is that the facts that inform those dynamic risk factors “were considered by past examiners and by the court at Denman’s 2012 discharge trial,” and therefore the new risk assessment scale adds no new facts to consider. It is true, as summarized in the background section above, that Subramanian apparently based her 2011-12 evaluation of Denman’s lifetime risk if discharged on Denman’s Static-99R score, when considered in light of dynamic risk factors that involve the same facts that come into play in using the new risk assessment scale as part of the 2013 evaluation. However, we have consistently rejected variations on the argument that new psychological research alone, as opposed to new facts, cannot constitute a change justifying a discharge hearing. See Richard II, 353 Wis. 2d 219, ¶¶9, 15, 20; [State v.] Ermers, [2011 WI App 113,] 336 Wis. 2d 451, ¶34[, 802 N.W.2d 540]; State v. Pocan, 267 Wis. 2d 953, ¶¶12-14. …. Here, the 2013 evaluation relied on a new risk assessment scale that was not relied upon when Subramanian conducted her 2011-12 evaluation. It does not matter that the facts evaluated through use of the risk assessment scale were not significantly changed.

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