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Court of appeals: maybe 3>4

State v. Roy C. O’Neal, 2020AP1270, 6/2/21, District 3 (not recommended for publication); case activity (including briefs)

A person who’s been indefinitely committed under ch. 980 is entitled to a discharge trial if he can show … well, er, nobody really knows what he has to show. In State v. Hager, our supreme court failed to reach a majority for any view on the statute (while arguably striking down the court of appeals’ attempt at a gloss). Given the absence of an ascertainable rule, it’s not too surprising that we get incoherent decisions like this one. What is a little surprising is the court of appeals’ decision to “treat [Hager‘s] lead opinion as controlling” on one aspect of the statute’s meaning. That was a three-justice lead opinion; four other justices disagreed on the point. Arguably. Is the court of appeals here treating a supreme court minority view as binding?

As in Hager, the question here is whether O’Neal should have a discharge trial. By statute, that depends on whether he’s shown that a finder of fact “would likely conclude” that he no longer meets the criteria for commitment. Wis. Stat. § 980.09.

An issue in Hager was whether the statute permitted a judge, in deciding what a factfinder “would likely conclude,” to “weigh” the evidence for and against commitment. A case interpreting a prior version of the statute, Arends, said the judge could not. And five justices in Hager–the three in the lead opinion and two in dissent–agreed with Hager’s position that a judge’s “weighing” the evidence would amount to putting the burden of persuasion on the committed person, and that this burden would be unconstitutional. Those five justices didn’t agree that the statute required weighing though: the lead opinion said it did not and was thus constitutional; the dissenters implied that it did, and was not. Two concurring justices said the statute did require weighing and was constitutional. So it may be that without saying so, the court of appeals is here constructing a majority view–that there can’t be weighing–from two minority views: that the statute doesn’t require it (3 justices) and that it does but is therefore unconstitutional (2 judges).

This method of approaching fractured decisions appears contrary to precedent. As we’ve noted, in assessing SCOW decision with no majority, Wisconsin courts are to search for areas of agreement in the justices’ reasoning. If there is no four-plus justice majority for a particular proposition, then that proposition is not the law. And we’re not aware of any Wisconsin case permitting the counting of dissenting views to reach the four-justice threshold. In any event, this opinion is not slated to be published, so its approach–whatever that approach may be–doesn’t bind future courts.

Having thus conjured a “no weighing” rule, the court sets about applying it. Here things go still further awry:

At O’Neal’s prior discharge hearing, however, the circuit court rejected Lodl’s expert opinion—based on his distinct scoring of the actuarial instruments—that O’Neal’s risk of sexual recidivism over a ten-year period was between 26.7% and 37.9%. The court instead accepted the shared expert opinion of both Pflugradt and Thornton that O’Neal’s risk of sexual recidivism based on their scoring of actuarial instruments was about 43% over a ten-year period and about 52% over a fifteen-year period.

Pflugradt’s scoring of the actuarial instruments did not change in her updated 2019 report. Kelley’s report offered a different scoring of the same actuarial instruments, but it did not directly link that difference to the new research and additional facts about O’Neal’s performance on supervision. Instead, Kelley incorporated the theorized impact of O’Neal’s time free in the community into her assessment of his lifetime sexual recidivism risk after calculating a much lower baseline ten-year sexual recidivism risk from the actuarial instruments than the circuit court had previously accepted. Thus, her ultimate conclusion was largely based upon an already rejected premise.

By Kelley’s own analysis, O’Neal’s lifetime risk of sexual recidivism would be over one-third higher than the baseline ten-year risk established by the actuarial instruments—even taking into account O’Neal’s time free in the community. Kelley did not offer any opinion that O’Neal’s lifetime risk of reoffending would be less likely than not if starting from the ten-year baseline of the 43% risk of sexual recidivism the circuit court previously accepted rather than Kelley’s 25% ten-year baseline.

Aside from the limited utility of new research and numerical risk calculations here, we also agree with the circuit court that changes in O’Neal’s privileges and  behavior since his last hearing were insufficient to warrant a hearing. A fact finder previously concerned about the lack of a sufficient opportunity to evaluate O’Neal’s unsupervised conduct would not likely conclude that the incremental increases in O’Neal’s unsupervised privileges demonstrated that he no longer met the criteria for commitment as a sexually violent person. This circuit court determination is further supported when taking into consideration O’Neal’s poor reaction to the denial of his prior petition and his behavioral lapse involving masturbating to an aggressive sexual fantasy with a teenaged girl. Based upon the available record as a whole, we conclude that the circuit court properly denied O’Neal’s discharge petition without a hearing.


Look at that last paragraph: O’Neal’s improvements don’t merit a trial “when taking into consideration” other things that show he’s not doing so well. There’s a word for when you “consider” evidence for and against some proposition and decide that one or the other case is stronger. It starts with a “w.”

But, as we’ve said before, what else can the court of appeals, or any court, do? It’s obviously impossible to decide what a factfinder “would likely conclude”–while taking into account, as the statute says court must, all the evidence–without evaluating the persuasive force of each piece of evidence, and deciding which case is stronger. What the statute requires is very nearly a plain-language definition of “weighing.” Such weighing is concededly unconstitutional, but (a minority of) the supreme court has elected to let it stand despite this defect. So, the lower courts are in a bind. Some evasion may be inevitable.

But not this much. O’Neal’s expert said he was unlikely to reoffend based on her application of actuarial instruments combined with new research showing that offense-free time in the community demonstrates reduced risk. (O’Neal is on supervised release.) The court of appeals responds that this new research doesn’t matter because the state‘s expert doesn’t view the actuarials the same way. O’Neal’s expert’s opinion doesn’t count because it doesn’t agree with the state’s expert’s opinion? This isn’t even “weighing”; perhaps you can come up with your own term for it.

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