On Point blog, page 46 of 60
SVP Supervised Release Hearing: Petitioner’s Clear and Convincing Burden of Proof – Sufficiency of Evidence
State v. Tory L. Rachel, 2010 WI App 60; for Rachel: Donald T. Lang, SPD, Madison Appellate; BiC; Resp. Br.; Reply Br.
SVP – Supervised Release Hearing: Burden of Proof on Petitioner
Under revisions to § 980.08 wrought by 2005 Wis. Act 434 (eff. date 8/1/06), the burden of proof has been shifted from the State (to prove unsuitability for supervised release) to the petitioner (to show suitability),
Bruce N. Brown v. Watters, 7th Circuit Appeal No. 08-1171, 3/19/10
7th circuit court of appeals decision; habeas review of: Wis court of appeals decision, 03AP3252
Habeas – Supplement Record
… Although we generally decline to supplement the record on appeal with materials not before the district court, we have not applied this position categorically. See, e.g., Ruvalcaba v. Chandler, 416 F.3d 555, 562 n.2 (7th Cir. 2005) (in habeas case,
State v. John A. Wood, 2010 WI 17
Wisconsin supreme court decision; below: certification; for Wood: Kristin E. Lehker; for amicus, Disability Rights Watch: Kristin Kerschensteiner; Supp. App. Br.; Supp. Resp.; Supp. Reply
¶13 A party may challenge a law or government action as being unconstitutional on its face. Under such a challenge, the challenger must show that the law cannot be enforced “under any circumstances.”
Guardianship/Protective Placement – GAL Interview of Ward outside Presence of Adversary Counsel
Jennifer M. v. Franz Maurer, 2010 WI App 8
Issue: “(W)hether a circuit court has authority to order a represented adult ward to submit to an interview with her guardian ad litem, outside the presence of her counsel and over her attorney’s objection, where the order also requires the guardian ad litem to report the content of the interview to the circuit court,” ¶1.
Holding:
¶11 The policies underlying the no-contact rule are of sufficient importance in guardianship cases that the right to counsel guaranteed by Wis.
State v. Peter A. Oliver, No. 2008AP3050, District IV, 3/18/10
court of appeals decision (3-judge, not recommended for publication); for Oliver: Steven D. Phillips, SPD, Madison Appellate; BiC; Resp. Br.; Reply Br.
SVP – Evidence
1. Unobjected-to testimony by a state evaluator that DHS psychologists are more “conservative” in their conclusions than other SVP experts did not “cloud” the issue and therefore did not support new trial in the interest of justice,
Dodge County v. Ashley O.P., 2009AP002908-FT, District IV, 3/18/10
court of appeals decision (1-judge, not for publication); for Asley: Donald T. Lang, SPD, Madison Appellate
Mental Commitment
Trial court order of inpatient treatment supported by evidence:
¶18 Dr. Berney testified that as of the date of his examination, Ashley required inpatient treatment, but there was a substantial probability she would be ready for outpatient treatment by the time of the final hearing, which was five days later.
State v. Carl Kaminski, 2009 WI App 175
court of appeals decision; for Kaminski:Donald T. Lang, SPD, Madison Appellate
SVP: Misconduct Evidence, § 904.04(2), Reliance on by Expert
SVP expert may rely on the respondent’s unproven prior misconduct in deriving his or her opinion. The § 904.04(2) “preliminary relevance” requirement, State v. James E. Gray, 225 Wis.2d 39, 59-61, 590 N.W.2d 918 (1999); State v. Landrum, 191 Wis. 2d 107,
Notice of Appeal – Contents: Chs. 54 (Guardianship) and 55 (Protective Placement) = 3-Judge Panel – Default for Combined 1-Judge and 3-Judge Panel Appeal = 3-Judge
Waukesha County v. Genevieve M., 2009 WI App 173
For Genevieve M.: Lora B. Cerone, SPD, Madison Appellate
Issue/Holding: Although a ch. 54 guardianship appeal is decided by a 3-judge and ch. 55 protective placement by a 1-judge panel, when the 2 were commenced and decided under a single trial court case number, the appeal will be decided by a 3-judge panel:
¶5 The plain language of Wis.
Emergency Detention, § 51.15(10) – Untimely Probable Cause Hearing, Lost Competency of Court to Proceed
Dane County v. Stevenson L.J., 2009 WI App 84
For Stevenson L.J.: Ruth N. Westmont
Issue/Holding: Where Stevenson L.J. was detained on an “emergency statement” in one county (Brown), then transferred to another (Dane) before a probable cause hearing, a new emergency statement in Dane County did not establish a new 72-hour time limit for a probable cause hearing; competency over the proceeding was therefore lost:
¶12 Under the County’s argument,
SVP Commitments – Evidence – References to Post-Commitment Re-Evaluations
State v. Carl Kaminski, 2009 WI App 175
For Kaminski: Donald T. Lang, SPD, Madison Appellate
Issue/Holding: “Infrequent references to annual re-evaluation” were not “sufficiently egregious to diminish the jury’s sense of responsibility for its verdict,” ¶¶20-24.