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Recommitment based on 3rd standard of dangerousness upheld

Winnebago County v. J.D.J., 2022AP1357-FT, 11/23/22, District 2, (1-judge opinion, ineligible for publication); case activity

J.D.J. has schizophrenia. At his recommitment hearing, Dr. Monese testified that if treatment were withdrawn, he would become a proper subject of commitment under §51.20(1)(a)2.c. J.D.J. does not believe he has a mental illness, so he would stop treatment and become “violent.” Third-standard recommitments are increasingly common. This decision highlights the need for more vigorous defense strategies in these cases.

Monese based his opinion about J.D.J.’s behavior while off medicine on treatment records, discussions with his treatment team, and a call with J.D.J.’s mother. J.D.J. does not admit to having a mental illness. He thinks he has aids and wants to be treated for that. J.D.J. had a pattern of not taking medication as prescribed, and when he stopped he became “violent.” Opinion, ¶5. If Moense testified to what he meant by “violent,” it’s not in the court of appeals’ decision.

A PCT testified about an incident where J.D.J. said “fuck you,” pulled down his face mask and tried to spit at the PCT. Then J.D.J. took off his shirt like he wanted to fight and said “I’m going to fuck you up.” Opinion, ¶7. When did this incident occur–during J.D.J.’s expiring commitment or some earlier commitment? The court of appeals doesn’t say.

The 3rd standard of dangerousness allows a county to commit a person who “evidences such impaired judgment, manifested by evidence of a pattern of recent acts or omissions, that there is a substantial probability of physical impairment or injury to himself or herself or other individuals.” Wis. Stat. §51.20(1)(a)2.c.  (Emphasis supplied). The county also has to prove that there is a reasonable probability that the person won’t take treatment in the community.

For a recommitment grounded in the 3rd standard of dangerousness, the county does not have to prove a “pattern of recent acts.” Wis. Stat. §51.20(1)(am). This suggests the county could recommit a person for 12 months based on very little evidence: impaired judgment and a substantial  probability of “physical injury.” What does that mean? A bruise? And how is spitting a “physical impairment” or ” physical injury?” Literally, every other standard of dangerousness requires “serious” physical harm, except this one. The standard seems low and unconstitutionally vague–especially at the recommitment stage where even the “recent acts” requirement is eliminated.

As the court of appeals describes the evidence, it seems that much of it was hearsay. Testimony about past violence allegedly described in treatment records is hearsay unless the county has those records certified and they are admitted into evidence. Ditto for conversations with J.D.J.’s mother and caregivers. See S.Y. v. Eau Claire Cnty., 156 Wis. 2d 317, 327-28, 457 N.W.2d 326 (Ct. App. 1990) (“While experts may rely on inadmissible evidence in forming opinions, [WIS. STAT. §] 907.03, the underlying evidence is still inadmissible.”); State v. Coogan, 154 Wis. 2d 387, 399, 453 N.W.2d 186 (Ct. App. 1990) (expert may not act as a conduit for inadmissible evidence). Unfortunately, judging from the court of appeals’ opinion, there was no challenge to the hearsay that Monese based his opinion on.

 

 

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