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Court of appeals affirms waiver into adult court of 16 year old with IQ of 63

State v. S.E.M.T., 2019AP1004, 12/19/19, District 4 (1-judge opinion, ineligible for publication); case activity

S.E.M.T., who is cognitively disabled, was accused of committing sexual assault and armed robbery (brandishing a stick) at age 16. The circuit court didn’t erroneously exercise its discretion when it waived him into adult court.

The record for this case is confidential, so the usual caveat applies: we don’t know exactly what S.E.M.T. argued, we only know the one-judge court’s characterization of what S.E.M.T. argued.

Per the court, S.E.M.T. contends the juvenile system provided better facilities and services for his treatment and for protection of the public—especially since he has suffered many injuries, has many deficits, and has the cognitive age of a 4th grader. S.E.M.T. also argued the circuit court misunderstood the maximum length of the order it could enter as well as the length of S.E.M.T.’s proposed treatment at an out-of-state facility. According to the court of appeals, the record does not support these arguments. Opinion, ¶¶12-16.

S.E.M.T. highlighted the absence of evidence showing that the treatment available in the adult system was better than treatment in the juvenile system. He noted that the juvenile court made no findings on this point The court of appeals held that the juvenile court is not required to make findings. It just has to attempt to evaluate the §938.18(5)(c) factors and give a reason for its decision. Further, S.E.M.T. failed to explain why the circuit court committed clear error in granting the waiver petition despite the absence of evidence regarding the effectiveness of treatment in the adult system. Opinion, ¶¶17-20

It’s true. Circuit courts do not have to make findings of fact—even where the “rule of law” explicitly requires them. The court of appeals is usually very accommodating in this regard. It will make findings for circuit courts even when it is constitutionally prohibited from doing so. See Wurtz v. Fleischman, 97 Wis. 2d 100, 107 n3, 293 N.W.2d 155 (1980).

S.E.M.T. also challenges the circuit courts finding that his crimes were premeditated, based on the opinion of an expert called by the state. His lawyer argued that, with an IQ of 63, he could not have engaged in premeditated wrongdoing. As for the expert opinion, it was based not on an interview of S.E.M.T., but only on a review of records, in particular an assessment done when S.E.M.T. was 12 and had a 79 IQ. Counsel also highlighted the expert’s own testimony that people with IQs in the 50s and 60s “often cannot consider future consequences of crime, they just cannot think that far ahead.”

The court of appeals says “often” does not mean “always” and an inability to consider future consequences or think ahead “is not the equivalent to an inability to plan and execute a crime.” In any event, the expert’s testimony as a whole supports the expert’s conclusion. Opinion, ¶¶21-27. Waiver affirmed.

One remarkable feature of this decision is that, aside from the paragraph stating the standard of review, it does not cite a single case in support of its analysis.

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