On Point

State v. Charles W. Mark, 2008 WI App 44; on appeal following remand in State v. Mark, 2006 WI 78, 292 Wis. 2d 1, 718 N.W.2d 90
For Mark: Glenn L. Cushing, SPD, Madison Appellate

Issue/Holding:

¶57      In summary, while the termination from the community treatment program and the rule violation were presented as conduct that, along with the hotel incident, showed Mark was at risk to reoffend, their significance without the hotel incident is not clear. The hotel incident was the dominant focus, in argument and testimony, of the conduct Mark engaged in after release on parole that showed he was still dangerous. Given the ambiguity of the conduct underlying the rule violation and the lack of testimony explaining how the community treatment termination related to Mark’ future dangerousness, particularly in view of the treatment he earlier successfully completed, we think it is speculative whether a rational jury would have decided, without the hotel incident and the experts’ opinions on dangerousness, that Mark was much more likely than not to reoffend.¶58      We conclude that the State has not demonstrated beyond a reasonable doubt that the errors—the admission of Mark’s two statements on the hotel incident, references to the statements and to the hotel incident, and the experts’ opinions that Mark was much more likely than not to reoffend—were harmless.

Also see: State v. Danny G. Harrell, 2008 WI App 37, ¶43.

State v. Ronell E. Harris, 2008 WI 15, affirming unpublished decision
For Harris: Ralph J. Sczygelskis

Issue/Holding: Various discovery and evidentiary violations amounted to harmless error, whether taken singly (¶¶41-59, ¶87-90) or cumulatively (¶¶109-113).Harmless error discussions are largely fact-specific, and this case is no exception. But it is noteworthy for its recognition that the “court has formulated the test for harmless or prejudicial error in a variety of way,” ¶42.

The court doesn’t attempt to reconcile the different wordings which include, briefly, the following tests: whether the State has proven beyond reasonable doubt that the error didn’t contribute to the conviction, or whether it is clear beyond reasonable doubt that a rational fact-finder would have found guilt absent the error, see ¶¶42-43. Presumably, you’re free to argue whichever standard you prefer. The State, as a constant, bears the burden of proof as to harmlessness, see ¶113.

State v. Paul A. Wilinski, 2008 WI App 170
For Wilinski: Jefren E. Olsen, SPD, Madison Appellate

Issue/Holding:

¶11      Wisconsin courts have not yet articulated the standard for reviewing a circuit court’s order for commitment under Wis. Stat. § 971.17(3)(a). The State proposes that courts should review such orders under a sufficiency of the evidence standard. Wilinski seems to concede this is the appropriate standard of review. We are also persuaded. As the State points out, our supreme court adopted the sufficiency of the evidence standard of review for orders under Wis. Stat. § 980.08(4), which provides for the supervised release of sexually violent persons. State v. Brown, 2005 WI 29, 279 Wis. 2d 102, 693 N.W.2d 715. Much like § 971.17(3)(a), the statute in Brown required the court to order institutional care if the State proved by clear and convincing evidence it was “substantially probable” the defendant would engage in acts of sexual violence if he was not institutionalized. ^[2] It also contained a list of factors for the court to consider nearly identical to the one in § 971.17(3)(a).¶12      The sufficiency of the evidence test asks whether a circuit court could reasonably be convinced by evidence it has a right to believe and accept as true. Brown, 279 Wis. 2d 102, ¶40. If the evidence supports multiple reasonable inferences, we will adopt the inference the circuit court adopts. Id. When applying this standard, reviewing courts give “deference to the circuit court’s strength in determining the credibility of witnesses and in evaluating the evidence.” Id., ¶44. We “draw not only on a circuit court’s observational advantage, but also on the circuit court’s reasoning.” Id.

State v. Paul A. Wilinski, 2008 WI App 170
For Wilinski: Jefren E. Olsen, SPD, Madison Appellate

Issue/Holding: NGI commitment to institutional care supported by the evidence, in that

• The nature of the offense itself (violent assault coupled with threat to kill) supported a finding of significant risk of harm if Wilinski were released (¶13);
• Wilinski failed to comply with conditional release under prior NGI commitment, thereby suggesting poor prospect for treatment compliance (¶14);
• Wilinski was dangerous when off medication and/or drinking alcohol (¶15);
• Conditional-release services available to Wilinski within the community would be adequate for only up to one year, while there was evidence Wilinski would require daily monitoring for 27 years (¶¶6, 17);

In sum:

¶18      The level of certainty required by Wis. Stat. § 971.17(3)(a) is clear and convincing evidence. Although this requires certitude greater than preponderance of the evidence, absolute certainty is not required. Kuehn v. Kuehn, 11 Wis. 2d 15, 26, 29-30, 104 N.W.2d 138 (1960). As directed by § 971.17(3)(a), the court considered the nature and circumstances of Wilinski’s crime; his mental history and present mental condition; where he would live if released; and what arrangements would be available to ensure he has access to and will take necessary medication. We conclude the court could reasonably be convinced by clear and convincing evidence that Wilinski would pose a significant risk of bodily harm to himself or others if released. The court’s order is therefore supported by sufficient evidence.

Wilinski apparently had a track record of treatment non-compliance to go along with demonstrable dangerousness, so the temptation to lock him up notwithstanding (more accurately: because of) his mental illness must have been strong. (He not only violently assaulted a female acquaintance he also attacked police when they showed up.) Still, judges are in effect required to pay lip service to least restrictive alternative placement, conditional release, when feasible. (That is, if the judge can’t affirmatively find significant risk by clear and convincing evidence, then conditional release must be ordered instead of institutional care, § 971.17(3)(a).) The kicker here is support for Wilinski’s conditional release with adequate monitoring, which one doctor thought had to be in place for 27 years (¶6), along with evidence the local community didn’t have the resources for such long-term monitoring (¶8). Not hard, then, to see why the judge would be wary of ordering release. The legal question for the court of appeals was, in effect, whether placement could be cost-driven. The court certainly didn’t phrase the problem precisely that way, but the net effect of the holding is to throw costs into the placement calculus (“what arrangements would be available to ensure he has access to and will take necessary medication”). Would have been nice, then, if the court of appeals had dealt with this problem a bit more forthrightly. For example, there is authority for the idea that where the legislature hasn’t so specified, ch. 55 protective placement may not be driven by fiscal concerns D.E.R. v. La Crosse County, 155 Wis. 2d 240, 248, 455 N.W.2d 239 (1990) (with respect to [since-amended] § 55.06(9)(a) (1987-88): “The legislature has not expressly limited the county’s responsibility in ch. 55 to make placements to the least restrictive environment to funds available from state or federal sources and county matching funds,” id., at 252). This isn’t to say that the court of appeals’ analysis was wrong. To the contrary, City of Milwaukee v. Ruby Washington, 2007 WI 104, ¶¶49-53, pretty clearly suggests that costs can be factored into placement (TB commitment in that instance). It’s just that the opinion cries out for a more refined analysis on this point. It’s one thing to say, in so many words (none, really when you get down to it), that a small, strapped county can’t reasonably be expected to pour resources into decades’ worth of monitoring. Sort of a self-evident, isn’t it? But what happens when the county doesn’t want to pay for someone facing maximum exposure of, say, 5 years (or less). Then what? Would have been nice for the court to provide some sort of analytical framework, but that will apparently have to await future litigation.

State v. Daniel Arends, 2008 WI App 184, PFR granted 2/10/09
For Arends: Leonard D. Kachinsky

Issue: Whether § 980.09 (2005-06) grants the circuit court a greater “gatekeeper role” than the prior statute in ordering an evidentiary hearing on a discharge petition.

Holding: 

¶22      The State’s premise that the new statute grants the circuit court a greater role than it played in a probable cause determination runs contrary to the development of the law. Discharge proceedings play a critical role in the constitutionality of civil commitments. Courts have repeatedly confirmed this. See, e.g.,Foucha, 504 U.S. at 71 (1992) (a person subject to a mental health commitment “may be held as long as he is both mentally ill and dangerous, but no longer”);Thiel, 275 Wis. 2d 421, ¶23 (“our supreme court has tied the constitutionality of Wis. Stat. ch. 980 to the availability of periodic reviews that reassess the person’s dangerousness to determine if a lesser restriction of his or her liberty is warranted”); State v. Rachel, 254 Wis. 2d 215, ¶66 (ch. 980 “passes constitutional muster” because confinement is “linked to the dangerousness of the committed person” and there are procedures for ending confinement when the person is no longer dangerous); Combs, 295 Wis. 2d 457, ¶28 (the periodic reexamination and probable cause hearing for discharge “are among the protections that the supreme court has considered significant in concluding that Wis. Stat. ch. 980 does not violate the equal protection clause or the right to due process”). By interpreting the discharge procedure in a way that appears more punitive, such that petitions would be less likely to merit an evidentiary hearing, we erode one of the key provisions that courts have relied upon to uphold the constitutionality of ch. 980. [5]

¶23      Furthermore, the State’s interpretation of the new standard ignores the plain meaning of the statutory language. The legislature could have retained “probable cause” as a standard, but instead required the showing of “a change” from which a judge or jury “may conclude” the person no longer meets the definition of a sexually violent person. Wis. Stat. § 980.09(1). The State’s interpretation would require a petitioner to “prove” that his or her condition has “actually changed” just to meet the threshold for an evidentiary hearing. The statute places no such burden on the petitioner. The circuit court’s role as gatekeeper, to weed out frivolous petitions, is not elevated by the revised statute. The revised statute’s petition review procedure, like the probable cause procedure before it, is not a substitute for the evidentiary hearing. SeeKruse, 296 Wis. 2d 130, ¶31.

Shorter version: Meet the new statute, same as the old statute.

State v. Daniel Arends, 2008 WI App 184, PFR granted 2/10/09
For Arends: Leonard D. Kachinsky

Issue/Holding:

¶14      Unlike the previous statutory provision, the current Wis. Stat. § 980.09 does not distinguish between petitions made with or without the approval of the DHFS secretary. Furthermore, a discharge petition no longer automatically triggers a probable cause hearing. Rather, the circuit court may review the petition without a hearing, or it may choose to hold a hearing, to determine whether a “court or jury may conclude the person’s condition has changed since the date of his or her initial commitment order so that the person does not meet the criteria for commitment as a sexually violent person.”  Sec. 980.09(1). If the court determines that a “court or jury could conclude” the person’s condition has changed, it must order an evidentiary hearing. Sec. 980.09(2). …

State v. Daniel Arends, 2008 WI App 184, PFR granted 2/10/09
For Arends: Leonard D. Kachinsky

Issue/Holding:

¶24      In his petition, Arends alleged that his condition had changed such that he no longer met the definition of a sexually violent person because (1) “the passage of time demonstrated that anti-social behavior expected under an earlier diagnosis did not occur,” (2) a lower PCL -R score showed a change in Arends’ condition, and (3) his successful progress in treatment suggested a change in his condition. ^[6] Arends contends that Dr. Fields’ reexamination report did not simply reinterpret data that was present when Arends was originally committed, but relied on new research and new facts about his current condition. He distinguishes his case from that of Combs, 295 Wis. 2d 457, ¶14, where we held that Combs could not challenge the original grounds for commitment by offering new interpretations of old data. See id., ¶34. Combs, though decided prior to the effective date of the new statute, speaks to the same issue that arises under the current version: a change in the petitioner’s condition since the time of initial commitment. To provide grounds to believe a person is no longer sexually violent, “an expert’s opinion must depend upon something more than facts, professional knowledge, or research that was considered by an expert testifying in a prior proceeding ….” Id., ¶32.¶25      Here, Dr. Fields considered new observations of Arends’ behavior and interpreted the data using existing and accepted tools of the psychology profession. Her report, which was based in part on the absence of deviant sexual arousal and anti-social behavior, also incorporated new research on the topic of predicting recidivism risk for juvenile offenders as compared to adult offenders. This is sufficient for purposes of Wis. Stat. § 980.09(1) and (2). See Combs, 295 Wis. 2d 457, ¶32 (petitioner can satisfy the standard when the expert’s opinion is “based at least in part on new professional knowledge about how to predict dangerousness”). Arends is entitled to an evidentiary hearing on his discharge petition.