On Point

State v. Stanley A. Samuel, 2001 WI App 25, 240 Wis. 2d 756, 623 N.W.2d 565, affirmed, other grounds, 2002 WI 34
For Samuel: Robert R. Henak

Issue: Whether the defendant waived objection to the sentencing court’s reliance on information sealed from the defendant’s inspection.

Holding:

¶42 We accept the State’s waiver argument. First, just because the trial court was in its “imposing sentence” phase, that did not prevent Samuel from objecting. He had as much right to object then as at any other time during the proceeding. Second, while we acknowledge that there are times when we will reject the State’s waiver argument if it was not made at the postconviction stage, there is no iron-clad rule. A waiver analysis depends, in part, not on whether an issue was raised at the postconviction stage, but on whether the trial court could have taken some type of preventive action had the issue been timely raised. We agree with the State that had the issue been timely raised before the sentencing court, a solution could likely have been arrived at.

Court stresses, though, that the material at issue “is of little consequence,” and wasn’t “important to the integrity of the result”; court implies that otherwise waiver bar might not have been  imposed. ¶43.

State v. Michael W. Carlson, 2001 WI App 296
For Carlson: Steven L. Miller

Issue/Holding: Erroneous impaneling of a juror who, because he could not understand English, should not have been seated, wasn’t harmless beyond a reasonable doubt.

¶46. The harmless error rule adopted last term by this court in State v. Harvey, 2002 WI 93, 254 Wis. 2d 442, 647 N.W.2d 189, and State v. Tomlinson, 2002 WI 91, 254 Wis. 2d 502, 648 N.W.2d 367, is one that is applicable for evaluating an error’s harmlessness, whether the error is constitutional, statutory, or otherwise. Harvey, ¶40; State v. Dyess, 124 Wis. 2d 525, 543, 370 N.W.2d 222 (1985). Application of that rule here does not change our conclusion in this case, since we cannot conclude beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error. The circumstances here preclude such a conclusion.¶47. An ability to understand the English language is necessary in order to satisfy the statutory requirements of Wis. Stat. § 756.02 and § 756.04. If a juror cannot meet the statutory requirements, then the entire trial process may be nothing more than an “exercise in futility.” Coble, 100 Wis. 2d at 216. It is clear that Vera did not meet those requirements and, therefore, he was not qualified to serve as a juror. The error here in failing to follow the statutory provisions and to apply them to the facts established at the postconviction motion hearing was not harmless. Here Carlson was prejudiced when a juror who was not qualified under the statutes, and who did not have sufficient understanding of English so that he could meaningfully participate in the trial process, was allowed to serve as a juror.

The court comes awful close to uttering the dread words, “structural error” – necessarily harmful error – though not explicitly so. But that does seem to be the import: seating a juror who should have been disqualified necessarily taints the result, without regard to harmless-error analysis. Nonetheless, the majority does pay lip service to that analysis, disagreement over which is the subject of the Chief Justice’s concurrence. ¶¶56-60. The dissent points out that the majority’s harmless error analysis is “conclusory”; so much so in fact that it may actually mean that the “error is per se prejudicial,” ¶84.

County of Milwaukee v. Edward S., 2001 WI App 169, PFR filed
For Edward S.: Richard D. Martin, SPD, Madison Appellate

Issue: Whether the 14-day deadline set by § 51.20(7)(c) for final hearing is extendible when delay is caused by the respondent’s own action.

Holding: The otherwise mandatory deadline for final commitment hearing is waivable when the delay is caused by the respondent — here, firing his attorney. State ex rel. Lockman v. Gerhardstein, 107 Wis. 2d 325, 320 N.W.2d 27 (Ct. App. 1982), distinguished.)

State v. Thomas Wenk, 2001 WI App 268, PFR filed 10/31/01
For Wenk: Michael K. Gould, SPD, Milwaukee Appellate

Issue: Whether trial court denial of a petition for conditional release from an NGI commitment was an erroneous exercise of discretion.

Holding: Although the state expressed doubt that it had met its burden of proof, the trial court was free to disregard that view. And, although the experts recommended release upon certain conditions, the trial court was free to reject those opinions, especially given that “the reasons underlying their opinions that Wenk could be released despite [drug addiction] were either wrong or based on shaky grounds.” ¶¶9-13. The trial court’s concern, that the pattern of drug use when unconfined posed too great a danger, was supported by the record, and the order denying release is therefore sustained.

State v. Isaac H. Williams, State v. Willie Hogan, 2001 WI App 263, PFR filed 11/23/01
For Williams: Donna L. Hintze, SPD, Madison Appellate
For Hogan: Donald T. Lang, SPD, Madison Appellate

Issue¹: Whether the § 980.08(1) requirement that the SVP wait 18 months after initial commitment before petitioning for supervised release violates substantive due process.

Holding:

¶7. … (N)o one can be committed as a sexually violent person under chapter 980 unless he or she is a clear and present danger to others in society-shown not only by a prior conviction (or the equivalent) but also by a significant current risk to commit more crimes of sexual violence. Thus, as we pointed out in Ransdell, the initial mandatory commitment-‘requiring that the person first undergo initial evaluation and initial treatment in an institutional setting before any decisions are made as to whether that person is suitable for supervised release’-directed by Wis. Stat. § 980.06, passes strict-scrutiny due-process muster. Ransdell, 2001 WI App 202 at ¶8. We also believe that adding twelve months to the time before which a person committed as a sexually violent person can formally petition for supervised release similarly survives constitutional challenge.¶8 … Although someone committed as a sexually violent person must now wait eighteen months before formally petitioning the committing court to be placed in the community on supervised release, Wis. Stat. § 980.08(1), rather than the six-month period under the earlier version of that section, the committing court can always consider supervised release whenever the committed person seeks discharge, Wis. Stat. §§ 980.09(1)(c) and 980.09(2)(c), and the committed person may file an initial petition for discharge ‘at any time.’ Wis. Stat. § 980.10 (emphasis added). One of three things happens after the person files a petition for discharge:
·the person shall be discharged from custody if he or she petitions ‘the committing court for discharge,’ and the State does not carry its burden of ‘proving by clear and convincing evidence that the petitioner is still a sexually violent person.’ Wis. Stat. §§ 980.09(1)(a) and 980.09(1)(b).

·the person shall be placed on ‘supervised release’ if the State carries its burden of proving by clear and convincing evidence that the person is still a sexually violent person, but the court determines, applying the criteria under Wis. Stat. § 980.08(4), that the State has not proven-again, by clear and convincing evidence-‘that it is still substantially probable that the person will engage in acts of sexual violence if the person is not continued in institutional care,’ Wis. Stat. § 980.08(4).·the person remains in institutional care if the State carries its dual burden of proving by clear and convincing evidence that the person is still a sexually violent person and that he or she will commit acts of sexual violence unless he or she is ‘continued in institutional care.’ Wis. Stat. § 980.08(4).

The Department must also ‘conduct an examination’ of the ‘mental condition’ of the committed person ‘within 6 months after an initial commitment under s. 980.06.’ Wis. Stat. § 980.07. The person being examined under § 980.07 must be told of his or her ‘right to petition the court for discharge over the secretary’s objection.’ Wis. Stat. § 980.09(2)(a). Further, the committing court ‘may order a reexamination of the person at any time during the period in which the person is subject to the commitment order’ Wis. Stat. § 980.07(3) (emphasis added).

¶9. In light of all the safeguards and alternative methods by which a person committed under Wis. Stat. ch. 980 can obtain supervised release, we cannot say that Hogan and Williams have carried their burden of showing beyond a reasonable doubt that the marginal impediment to supervised release created by the amendment to Wis. Stat. § 980.08(1) (1997-1998) violates their right to substantive due process because § 980.08(1) now requires an additional twelve months before they may formally file a petition for supervised release.

Issue²: Whether the requirement in § 980.08(1) that the SVP wait 18 months after initial commitment before petitioning for supervised release violates equal protection.

Holding: Though a ch. 51 initial commitment order lasts 6 months, equal protection isn’t violated by an 18-month ch. 980 initial commitment, because 980 commitment subjects are more dangerous as a class than ch. 51s. ¶¶13-16. Nor does the eligibility for conditional release on an NGI initial commitment violate equal protection: an NGI finding represents a mere inference of current mental illness and dangerous, while a an SVP finding represents proof beyond reasonable doubt that the person is now mentally disordered and dangerous. ¶¶17-18.

This seems to split an awfully fine hair. Though the supposition of present mental illness and dangerousness in an NGI finding may be inferential, it is no less binding for that. It remains true, as a constitutional matter, that the subject is committed precisely because of this inference “that, at the time of the verdict, the defendant was still mentally ill and dangerous, and hence could be committed.” On the other hand, when the subject is not presently mentally ill or danger, he or she must be released. Foucha v. Louisiana, 504 U.S. 71, 76-77 (1992). In short, inference or not, automatic NGI confinement is based on current mental illness and dangerousness. Just like SVP.

Reuben Adams v. Macht, 2001 WI App 10, 241 Wis. 2d 28, 623 N.W.2d 215

Issue: Whether the Wisconsin Resource Center policy prohibiting former employees from visiting the institution is enforceable against a patient seeking visits from a former employee who is also the mother of his child.

Holding: The policy is reasonable and based on legitimate security concerns.

The court pays lip service to the idea that 980 inmates are patients, not prisoners, but cases dealing with challenges to prison regulations are the first and only source of guidance sought by the court. Because review of prison regulations is so deferential, the outcome is predetermined. Visits from prior employees are counter-therapeutic, and the former employee’s knowledge of security protocols increases the danger of security breaches. Does it matter that the visitor is the mother of Adams’ child? Would that relationship inhibit the potential for danger? Would family visitation actually advance rehabilitation? No. The former employee blurred the appropriate boundaries between employees and inmates; she’s damaged goods; staff morale suffers from such fraternization. Besides, visitation would be contrary to policy.

State v. Dennis R. Thiel (III), 2001 WI App 32, 241 Wis. 2d 465, 626 N.W.2d 26
For Thiel: John D. Lubarsky, SPD, Madison Appellate

Issue: Whether the standard for waiver of right to counsel in a criminal proceeding applies to Ch. 980.

Holding: “… (B)ecause WIS. STAT. § 980.09(2) guarantees the right to counsel at the probable cause hearing, the same standards and procedures for resolving right to counsel issues in a criminal context should apply to the § 980.09(2)(a) probable cause hearing.” ¶12.

Thiel, already committed as an SVP, petitioned for discharge after a § 980.07 reexamination. He ended up representing himself. The court of appeals determines that the standards for validity of waiver of counsel in a criminal case, State v. Klessig, 211 Wis. 2d 194, 564 N.W.2d 716 (1997), apply to Ch. 980, because: 1) constitutional rights of a criminal defendant are incorporated into Ch. 980 proceedings. ¶15; patient’s rights in Ch. 51 civil commitments — which includes Klessig standards for waiver of counsel — also apply to Ch. 980. ¶¶16-18. The trial court didn’t conduct an adequate colloquy, and the matter is therefore remanded for an evidentiary hearing at which the state will be required to prove by clear and convincing evidence that the presumption of nonwaiver should be overcome. ¶¶19-20