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SVP – Post-Disposition – Discharge Petition — Probable Cause Hearing

State v. Henry Pocan, 2003 WI App 233
For Pocan: Margaret A. Maroney, SPD, Madison Appellate

Issue/Holding: Pocan established probable cause for a discharge hearing where the psychologist conducting the reevaluation and using actuarial tables unavailable at the time of original commitment found no substantial probability of reoffending:

¶11. The State argues that Wis. Stat. ch. 980 thus requires the court to focus on progress or improvement in Pocan’s condition. The psychologist stated that, based on new diagnostic tools, she could not conclude that Pocan would reoffend sexually. However, the State argues the psychologist’s report contains no evidence that there was an improvement in Pocan’s condition. Instead, the State maintains Pocan is merely arguing that he was never a sexually violent person in the first place, instead of establishing that he is not “still” a sexually violent person.¶12. We agree that progress in treatment is one way of showing that a person is not still a sexually violent person. However, we conclude that is not the only way. A new diagnosis would be another way of proving someone is not still a sexually violent person. A new diagnosis need not attack the original finding that an individual was a sexually violent person. Rather, a new diagnosis focuses on the present. The present diagnosis would be evidence of whether an individual is still a sexually violent person.

¶13. The circuit court found Pocan to be a sexually violent person when it committed him in 1998. He now argues new diagnostic tools show that he is not a sexually violent person. If the court finds Pocan is not sexually violent now, that means he is not still a sexually violent person.

¶14. Pocan asks that we remand for a probable cause hearing. The State agrees that this is the best course if we do not affirm the court’s denial of the petition. We also agree that remand is necessary here. At the hearing, the circuit court should proceed under Wis. Stat. § 980.09 and determine whether facts exist that warrant a trial on whether Pocan is still a sexually violent person.

Great. Pocan, apparently, never should have been committed; the interpretive art of the witchcraft has now improved to the point where it can be said experts wrongly divined their throwing of bones the first time around. But this doesn’t mean that Pocan was never an SVP. Rather, it means that he’s not still an SVP. Sure. Nothing’s changed but the dark art of the actuarials, but that somehow means it’s the subject who’s changed. Talk about your legal fictions.

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