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SVP – Postdisposition: Supervised Release – Procedure – Appointment of Expert for Subject, §§ 980.08(3)-(4)

State v. Dennis Thiel, 2004 WI App 225
For Thiel: Suzanne L. Hagopian, SPD, Madison Appellate

Issue1: Whether the court must appoint an examiner for the subject under § 980.08(3) when it has already appointed one under § 980.08(4).

¶17. The parties agree that the language of Wis. Stat. § 980.08(3) requires the circuit court to appoint an examiner for the court, and we concur. Unlike the examiner for the court, Thiel’s examiner reports directly to him or, as in this case, his attorney, and his examiner’s opinions are not discoverable unless the examiner is called to testify. See State v. Rachel, 224 Wis. 2d 571, 575-76, 591 N.W.2d 920 (Ct. App. 1999). Also, a petitioner’s examiner participates in the proceeding “on the person’s behalf.” Wis. Stat. § 980.03(4). Because the two examiners clearly serve different purposes, we conclude that the appointment of Thiel’s examiner under § 980.03(4) did not satisfy the mandate of § 980.08(3); therefore, the circuit court erred when it refused to appoint an examiner for the court.

Issue2: Whether an indigent commitment subject seeking supervised release is entitled to an examiner of choice under § 980.08(4).

¶23. We conclude that the plain language of Wis. Stat. § 980.03(4) affords Thiel the right to a “qualified and available expert or professional person” who will be appointed by the court and paid for by the county. The court’s refusal to adopt Thiel’s broad reading of the right to an expert of choice was a proper interpretation of the statute.

The court rejects, ¶¶21-22, an equal protection argument based on the rights of NGI and ch. 51 commitment subjects to examiner-of-choice. Ch. 980 may share “fundamental similarities” with those other commitment procedures but it “ultimately is unique and distinct from other civil commitment chapters.” The critical distinction in this instance is that 980 procedure requires the expert to give the report directly to the examiner (or to counsel), but in the other commitment procedures the expert files the report directly with the court.

Issue3: Whether the trial court erroneously exercised discretion in appointing under § 980.08(4) an expert unqualified with respect to a critical instrument (PCL-R).

¶28. Sand Ridge, an agency of the Wisconsin Department of Health and Family Services, revised the scoring threshold for the PCL-R test while Thiel was pursuing discharge and supervised release. Sand Ridge’s new scoring policy and its consequences for Thiel are clearly key issues in his supervised release proceeding. Yet, on appeal, the State argues that Thiel does not require the benefit of an expert who is certified in the PCL-R test. We must disagree. Dr. Kotkin’s lack of PCL-R training and certification in the PCL-R evaluation tool is directly related to his “technical and scientific expertise” in the “precise question” of this case. See Tanner, 228 Wis. 2d at 370. In particular, the circuit court should have considered Dr. Kotkin’s competence to comment on the significance of the revised scoring threshold implemented by Sand Ridge. Because there is no record evidence that the court exercised its discretion in this regard, we remand the matter with instructions for the court to appoint a qualified expert for Thiel under Wis. Stat. § 980.03(4).

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