The circuit court impermissibly weighed the relative persuasiveness of conflicting examination reports of experts when it denied Maher’s § 980.09 petition without holding a discharge hearing when it said it had “some ability apparently to assess the accuracy of the expert’s report or their qualifications” and concluded that the “wildly different conclusions” reached by the state and defense experts based on the same information “certainly I think calls into question how much [a] finder of fact might be able to rely on Dr. Wakefield [the defense expert].” (¶11).
The circuit court’s reference to assessing an expert’s accuracy or qualifications presumably referred to a passage in State v. Arends, 2010 WI 46, ¶39, 325 Wis. 2d 1, 784 N.W.2d 513; but that passage refers to an expert not qualified to make a psychological determination or whose report is based on a misunderstanding or misapplication of the law, and neither of those apply here. “Instead, the court based its decision on the idea that Wakefield’s conclusions appeared ‘wildly’ different from those of other experts.” (¶15). The question remains whether any facts support a finding in favor of Maher, and the answer is “yes”:
¶16 Our review of the record shows that Wakefield provided support for her conclusions upon which a trier of fact could reasonably rely. Relying on the Static-99R and MATS-1 instruments, the fact that Maher was now into his forties, her observations that his record of behavior and attitudes have improved at least to a degree, and his presentation in an interview, Wakefield concluded that it is not more likely than not that Maher would commit a sexually violent offense. As Maher now points out, “Wakefield’s report specifically links Maher’s current age to the methodology she employed using the [newly revised] Static-99R.” It is of course an open question whether Wakefield’s conclusions would be persuasive to a finder of fact at a discharge hearing after a full airing of her opinions and those of other experts, with the opportunity for cross-examinations. However, the circuit court cannot base its decision under Wis. Stat. § 980.09(2) on a prediction that she would likely not be persuasive. See Arends, 325 Wis. 2d 1, ¶40 (“We reject the State’s argument that the circuit court may weigh evidence favoring the petitioner directly against evidence disfavoring the petitioner.”).