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COA holds court may decide defendant’s competency without an expert’s opinion

State v. Donald L. White, 2020AP275-CR, 11/3/2022, District 4 (not recommended for publication); case activity (including briefs)

We hope SCOW reviews this decision. An examiner opined that White was competent to proceed under §971.14 but refused to give her opinion to a reasonable degree of professional certainty. In fact, she thought White should be observed longer. The trial court excluded the examiner’s report and found White competent without it. The court of appeals affirmed.

The State charged White with assault by a prisoner. He spit at a guard. White represented himself during pre-trial proceedings. A number of statements, including  his request to have Eleanor Roosevelt appointed as his lawyer, caused the circuit court to doubt his competency. Pursuant to §971.14, the court ordered a competency exam.

The examiner filed a report saying that she tried to examine White but he refused to cooperate and behaved in a theatrical and outlandish manner. Opinion, ¶11. She terminated the examination and reviewed his mental health history and prior competency examinations, all of which found him competent. She noted that White had previously been diagnosed with antisocial personality disorder and behavioral issues but he had not been diagnosed with a mental illness or placed on medication.

The examiner concluded that White was competent to proceed. She did not offer her opinion to a reasonable degree of professional certainty because (a) White refused to cooperate, (b) it is possible for mental illness and malingering to coexist, and (c) White’s last competency exam was 10 years old. The examiner thought that further examination of White on an inpatient basis “might be prudent.” Opinion, ¶13, ¶48 n.12.

White argued that he was not competent, which meant that the State had to prove that he was competent by the greater weight of the evidence. Wis. Stat. §971.14(4)(b). The circuit court excluded the examiner’s conclusion because it was not offered “to a reasonable degree of professional certainty.” However, the circuit court considered the previous evaluations detailed in the excluded report, the details of the examiner’s observations, and her hearing testimony–an “informal opinion” that White was competent to proceed.

White’s appellate lawyer raised 3 issues for appeal: (1) whether the circuit court erred in holding a competency hearing without an admissible expert opinion regarding competency; (2) whether the circuit court erred in finding the defendant competent without an admissible expert opinion on competency; and (3) whether the circuit court’s failure to follow the procedures in §971.14 violated his due process rights.

The court of appeals first dispensed with the due process argument.  A defendant has a due process right to be competent when tried.  However, White allegedly failed to explain how the lack of a decision to a reasonable degree of professional certainty violates due process. Opinion, ¶34.

Next, the court of appeals held that §971.14 does not require examiners to give their opinions to a “reasonable degree of professional certainty.” Opinion, ¶38. Furthermore, the legislature couldn’t have intended this level of certainty because the circuit court is free to reject the examiner’s conclusion stated to that degree of certainty per State v. Smith, 2016 WI 23, 367 Wis. 2d 483, 878 N.W.2d 135. Opinion, ¶40.

No statute requires a doctor in a personal injury action to give an opinion to a reasonable degree of professional certainty, but case law requires him to do so anyway. See Casimere v. Herman, 28 Wis. 2d 437, 77, 137 N.W.2d 73 (1965).

Also, as White argues, if a circuit court may decide that a defendant is mentally competent or incompetent without an admissible competency report, then what is the point of §971.14? It provides that when a circuit court has reason to doubt a defendant’s competence it must stop, order a competency evaluation, and conduct a competency hearing.

The court of appeals faulted White for confusing §971.14(3)’s requirements for an examiner’s report with §971.14(4)(b)’s burden of proof. Opinion, ¶41.

The “degree of certainty” requirement and the government’s burden of proof are indeed intertwined. See, for example, Casimere above. Another example is Addington v. Texas, 441 U.S. 418, 429-430 (1979), which rejected a “beyond a reasonable doubt” standard and held that due process requires a “clear and convincing evidence” standard for civil commitments because whether a person is mentally ill and dangerous “turns on the meaning of the facts which must be interpreted by expert psychiatrists and psychologists.” (Emphasis supplied). SCOTUS said: “Within the medical discipline, the traditional standard for ‘factfinding’ is a ‘reasonable medical certainty.'” Id.

The court of appeals also held that the circuit court did not erroneously exercise its discretion in relying on the examiner’s testimony (minus her informal opinion), the records she reviewed (which weren’t admitted into evidence), all relevant evidence contained in the examiner’s report, including her “clinical findings,” facts, and reasoning. Opinion, ¶43.

Wait a minute. The examiner testified that she couldn’t give an opinion “to a reasonable degree of certainty” because she was unable to examine White and his records were 10 years old. Wouldn’t those facts undermine her “clinical findings” and “reasoning” too?

Also, while an examiner may form an opinion based on records and earlier examiners’ reports, the circuit court many not rely upon the prior records and reports in rendering a decision. See Walworth County v. Therese B., 2003 WI App 223, ¶8, 267 Wis. 2d 310, 671 N.W.2d 377 (an expert cannot be a mere conduit for the opinion of another expert).

 

 

 

 

 

 

 

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