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SVP – Discharge Hearing

State v. Kenneth Roberts, 2012AP266, District 3, 10/11/12

court of appeals decision (not recommended for publication); case activity

Discharge hearing wasn’t required on petition, where the sole expert opinion affirmed a high risk of recividism based on “dynamic” factors, notwithstanding that revised actuarial scoring methodology yielded a lower risk for “static” factors. State v. Arends, 2010 WI 46, 325 Wis. 2d 1, 784 N.W.2d 513 (discharge petition subject to 2-step screening process before full hearing may be ordered), discussed and applied:

¶20      Stated another way, the only reasonable reading of Dr. Merrick’s report is that he concluded that Roberts’ lifetime recidivism risk exceeds fifty percent, and that the re-scored Static-99 is not, by itself, reliable evidence to the contrary.  There is simply no basis on this record, as Roberts now argues, to conclude that Dr. Merrick’s report “contains facts from which a reasonable trier of fact could conclude [that] Roberts does not pose the requisite risk to reoffend.”

¶21      It is true, as Roberts argues, that a fact finder is not necessarily bound by the opinion of any expert.  See State v. Wenk, 2001 WI App 268, ¶9, 248 Wis. 2d 714, 637 N.W.2d 417.  However, this general rule does not assist Roberts, because he presents no alternative opinion that a fact finder could reasonably rely on.  And, for reasons we have already explained, Roberts provides no support for the proposition that a fact finder could reasonably choose to rely solely on his re-scored Static-99, to the exclusion of the rest of Dr. Merrick’s report, to conclude that his risk to reoffend over his lifetime is less than fifty percent.  Such a proposition, if theoretically supportable, is not one that could be considered to be within the common knowledge of the fact finder.

¶22      It is also true, as Roberts stresses on appeal, that a petition may be based on a change in the understandings of professionals and the research results used to evaluate the person’s mental disorder or dangerousness, “not only [on] a change in the person himself or herself.”  See State v. Ermers, 2011 WI App 113, ¶31, 336 Wis. 2d 451, 802 N.W.2d 540.  Yet, this general proposition does not undercut Dr. Merrick’s more specific conclusions as to Roberts’ particular situation, especially given that Roberts acknowledges that Dr. Merrick took into account changes in research results and evaluation tools.

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