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SVP – Pretrial: Evaluation — Prosecutorial Meddling in Process

State v. Jonathan Bell, 2006 WI App 30
For Bell: Leonard D. Kachinsky

Issue: Whether intervention of the local prosecutor to obtain a second DOC evaluation, which resulted in a referral for SVP commitment after the first DOC evaluation determined insufficient likelihood of reoffending, violated ch. 980 or due process.


¶11      Our supreme court defined the scope of the district attorney’s authority in Byers. …¶12      Our supreme court held that pursuant to Wis. Stat. § 980.02(1), a request from the agency with jurisdiction, in that case the DOC, and a subsequent decision by the DOJ not to file are prerequisites to a district attorney’s authority to file a Wis. Stat. ch. 980 petition. …

¶15     The threshold decision of whether a petition should be filed remains in the experienced and able hands of the agency with jurisdiction and outside of the political process.  A district attorney may contact the agency to seek clarification of the Wis. Stat. ch. 980 evaluator’s determination, to correct factual mistakes, to provide new or additional information, or to ask for a second opinion with a different evaluator.  However, as the trial court recognized, the agency can independently exercise its judgment and choose to ignore the district attorney’s efforts or to decline the district attorney’s request for a second evaluation if the agency determines that these efforts and requests are improperly politically motivated.  Further, even if the agency accepts an invitation to obtain a second evaluation, the agency can thereafter refer the case to the DOJ for commitment proceedings or it can adhere to its original decision not to request that the DOJ file a petition.


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