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Court’s reliance on inaccurate information re juvenile’s risk of reoffending was harmless

City of Milwaukee v. D.S., 2015AP1634, 2/2/16, District 1 (one-judge opinion; ineligible for publication); case activity

D.S., a juvenile, was ordered to register as a sex offender for life. On appeal, he argued that the circuit court relied on two types of inaccurate information: (1) a report, prepared by Dr. Paul Hesse, regarding the recidivism rate for juvenile sex offenders at Lincoln Hills, and (2) misinformation about the meaning of D.S.’s JSOAP-II scores.  He lost on both counts.

To win a new sentencing hearing, a defendant must show both that information presented at the original sentencing was inaccurate and that the sentencing court actually relied upon the inaccurate information. State v. Tiepelman, 2006 WI 66, 291 Wis. 2d 179, 717 N.W.2d 1.

D.S. sought a new “sex offender registration” hearing. He claimed that Hesse’s report regarding his risk for recidivism was inaccurate because it was based on an informal study that Hesse had been conducting at Lincoln Hills, which showed a 20% recidivism rate for youth sex offenders, whereas formal, statewide and nationwide studies conducted by Prof. Michael Caldwell at UW-Madison showed a recidivism rate of only 10%. The court of appeals rejected this argument because Hesse’s study “is arguably more relevant to this case since it focuses solely on juvenile offenders like D.S. who were treated and then released from Lincoln Hills.” Slip op. ¶14.

Re the JSOAP-II scores, the court of appeals does not explain them in detail. Suffice it to say that some of the scores are expressed as percentages. At sentencing, the DA referred to those percentages as a “level of risk” when they are really a “means of comparing the total number of items in a particular category of risk factors to the number of factors present for the juvenile being analyzed.” Slip op. ¶16.  Because the sentencing court referred to the DA’s misstatements, D.S. established both that the information was inaccurate and that the sentencing court relied upon it.  The burden thus shifted to the State, which had to prove harmless error. Naturally, the State won. The court of appeals held that the JSOAP-II scores played only a “small role” in its overall decision and its recidivism analysis, so the error was harmless.  Slip op. ¶21 (citing Martindale v. Ripp, 2001 WI 113, ¶32, 246 Wis. 2d 67, 629 N.W.2d 698.

The briefs are confidential, so we don’t know what the parties argued. However, the court of appeals’ comment that Hesse’s study is more “relevant” to D.S. is interesting. What explains the difference between the recidivism rate at Lincoln Hills versus the rest of the state and country? And wouldn’t a formal, academic statewide or nationwide study of juvenile sex offenders be more accurate, reliable and objective than an informal tally by a staff psychologist at the very institution holding the juvenile being analyzed? Also, it seems like courts are struggling to understand risk assessments–whether they are for juveniles (as in this case) or for adults (as in State v. Samsa or State v. Loomis, which is pending in SCOW.)

As for the “harmless error” analysis in this decision, you get the sense that the court of appeals was copying from a template that someone forgot to update (see repeated references to Martindale). State v. Travis, 2013 WI 38, 347 Wis. 2d 142, 832 N.W.2d 491 explained the “harmless error” standard in detail and showed how to apply it to the “inaccurate information at sentencing” situation. Furthermore, Travis held that State failed to demonstrate “that the error did not affect the circuit court’s selection of sentence; that there is no reasonable probability that the error contributed to the sentence; or that it is clear beyond a reasonable doubt that the same sentence would have been imposed absent the error.” Id. at ¶86. That’s the formulation the court of appeals should have applied here, yet this opinion ignores Travis entirely.

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