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SVP Commitments – Evidence – “Screening Process” for 980 Candidates

State v. Owen Budd, 2007 WI App 245
For Budd: Steven P. Weiss, SPD, Madison Appellate

Issue: Whether the trial court erred in admitting evidence as to the “screening process” for referring SVP cases, which had the effect of informing the jury that fewer than 5% of eligible sex offenders are selected for commitment proceedings.


¶16   We need not conclude, as Budd urges, that the DOC’s screening process for potential Wis. Stat. ch. 980 cases is irrelevant as to the determination of whether a defendant is a sexually violent person as a matter of law. The problem with the screening evidence admitted in this case is that it did not establish why Budd was selected for ch. 980 proceedings. [6] The evidence only explained that most sex offenders scheduled for release are not selected for ch. 980 proceedings, without explaining why a select few are so chosen. [7] There was no testimony as to the qualification of the ECRB or its chairman, or explanation of the evaluation process used by either. From the record, the ECRB’s process could be random, or based on irrelevant criteria. As Budd points out, all the evidence served to do in this case was to inform the jury that Budd was selected as one of the 4.5% of sex offenders recommended for ch. 980 proceedings. Without explaining why, we do not see how that information is relevant to whether Budd is a sexually violent person under our analysis inMark. [8]

¶18   Here, the State’s expert testified that Budd was among only 4.5% of sex offenders selected for Wis. Stat. ch. 980 proceedings, stating that the chairman of the ECRB screens 75% of sex offenders out of the potential ch. 980 pool, the ECRB screens out another 50%, and that she refers only about a third of the cases she receives. The State referenced that testimony in closing to rebut the defense’s implication that Marsh was biased, stating that her recommendations are conservative. One expert testified that Budd met the criteria of a sexually violent person and three experts testified that he did not. The screening evidence did not duplicate any properly admitted evidence. This is a close case. We conclude that the impact of telling the jury that the respondent was one of only 4.5% of sex offenders selected for ch. 980 proceedings, where three of the four experts testified that the respondent did not meet the criteria of a sexually violent person, contributed to the jury’s finding that Budd is a sexually violent person. Accordingly, we reverse and remand for proceedings consistent with this opinion.

 [6] The “screening evidence” at issue is Marsh’s testimony as to the process the DOC uses to screen sex offenders scheduled for release before referring certain sex offenders to her for special evaluations. We recognize that Marsh explained the methodology she uses to select certain sex offenders for Wis. Stat. ch. 980 proceedings from the group referred to her. [7] Budd argues that the percentage of sex offenders referred for Wis. Stat. ch. 980 proceedings is in itself irrelevant to the issue of whether the respondent is a sexually violent person. He asserts that the outcome for other sex offenders has no bearing on whether he is a sexually violent person. However, because we conclude that the evidence presented in this case was irrelevant due to the lack of explanation as to the screening process used to refer Budd for ch. 980 proceedings, we need not reach the question of whether the percentage of sex offenders referred would ever be relevant.

 [8] The State argues that the screening evidence is admissible under Wis. Stat. § 907.02 as specialized knowledge necessary to assist the jury in understanding the expert testimony. Again, we fail to see how the mere fact that a screening process takes place, without explaining the basis for the screening, provides specialized knowledge for the jury.

Thus, the court doesn’t hold that the screening process can never be relevant, it’s just that it’s irrelevant in this particular case because it wasn’t specifically linked to Budd. Once the “experts” figure out the right mumbo-jumbo they’ll be talking up a linkage festival. Great. Still: it’s not as if the actuarials themselves are linked in any meaningful way to the particular subject; just a thought — see, though, In the Matter of Murrell, MO SCt No. SC87804, 2/13/07 (admissibility of Static-99 and MnSOST-R upheld against argument they relect only results of group analysis and are therefore irrelevant on whether this particular respondent is likely to reoffend).

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