On Point blog, page 50 of 61
SVP: Likelihood of Future Sexual Violence Satisfies Substantive Due Process & Equal Protection
State v. Scott R. Nelson, 2007 WI App 2, PFR filed 1/22/07
For Nelson: Joseph L. Sommers
Issue/Holding:
¶15 … Even under the “more likely than not” standard, there must be a strong nexus between the person’s mental disorder and that person’s level of dangerousness. Under this standard, the likelihood that the person will engage in an act of sexual violence is more than 50%.
SVP Commitment – Expert Misstatement of Test for Commitment – Interest of Justice Review
State v. Barry L. Smalley, 2007 WI App 219, PFR filed 10/19/07
For Smalley: Donald T. Lang, SPD, Madison Appellate
Issue/Holding: State SVP expert’s unobjected-to misstatement of test for measuring reoffense risk (“more likely than not” means “any chance greater than zero” rather then more than 50%) didn’t support reversal in the interest of justice:
¶10 First, Dr. Jurek’s statement was an isolated occurrence in a three-day trial.
SVP – Trial: Evidence — Disposition Alternatives – Criminal Justice System Supervision Irrelevant
State v. Charles W. Mark, 2006 WI 78, affirming 2005 WI App 62, 2005 WI App 62
For Mark: Glenn L. Cushing, SPD, Madison Appellate
Issue: Whether evidence of probation supervision was relevant to future dangerousness, and therefore should have been admitted into evidence.
Issue:
¶41 … (T)he plain language of Wis. Stat. § 980.01(7) makes the existence of a mental disorder—not any extrinsic factors—the first step in determining dangerousness and the substantial probability of the person engaging in future acts of sexual violence.
SVP – Post-Disposition — Failure to Obtain Residential Placement on Court Order for Supervised Release
State v. Shawn D. Schulpius, 2006 WI 1, affirming, 2004 WI App 39
For Schulpius: Ellen Henak, SPD, Milwaukee Appellate
Issue/Holding1: Failure to place Schulpius on court-ordered supervised release did not “shock the conscience,” hence did not violate substantive due process, where the failure occurred despite good-faith, substantial efforts to comply with the order, ¶31.
Issue/Holding2: Failure to place Schulpius on court-ordered supervised release violated procedural due process.
Constitutionality of Ch. 980 – Absence of Proof of “Imminent” Danger
State v. Terry L. Olson, 2006 WI App 32, PFR filed 3/16
For Olson: Melinda A. Swartz, SPD, Milwaukee Appellate
Issue: Whether ch. 980 is unconstitutional because the SVP definition of “dangerousness” is not linked to imminent risk.
Holding:
¶5 We deem Olson’s reliance on Lessard misplaced. In 2002, our own supreme court considered a challenge to Wis.
SVP – Post-Disposition – Discharge Petition – Probable Cause Hearing, § 980.09(2) (2001-02)
State v. Robert L. Kruse, 2006 WI App 179, PFR filed 9/11/06
For Kruse: Donald T. Lang, SPD, Madison Appellate
Issue/Holding1:
¶2 We agree with Kruse that at a probable cause hearing under Wis. Stat. §980.09(2)(a), the role of the circuit court is to determine whether there is plausible testimony or evidence that, if believed, would establish probable cause that the petitioner is no longer a sexually violent person.
SVP – Post-Disposition – Discharge Petition – Probable Cause Hearing, § 980.09(2)
State v. Christopher L. Combs, 2006 WI App 137, PFR filed, 7/20/06
For Combs: Steven D. Phillips, SPD, Madison Appellate
Issue: Whether, on a petition for discharge of an SVP commitment, § 980.09(2)(b), the trial court can refuse to hold a hearing where, although the court-appointed expert concludes that the person was not sufficiently predisposed to sexual violence to meet the definition of a sexually violent person,
SVP – Post-Disposition – Petition for Discharge Procedure, § 980.09(2)(a) (2006) – Timely Probable Cause Hearing, Due Process
State v. Deryl B. Beyer, 2006 WI 2, on certification; prior history: 2001 WI App 167, cert. denied, Beyer v. Wisconsin, 537 U.S. 1210 (2003)
For Beyer: Donald T. Lang, SPD, Madison Appellate
Issue1: Whether due process was violated by delay of over 22 months between the time the first annual periodic examination report was provided to the circuit court under § 980.07 and the circuit court’s probable cause hearing under § 980.09(2)(a).
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.
Holding:
¶11 Our supreme court defined the scope of the district attorney’s authority in Byers.
SVP – Supervised Release Determination, Standard of Review on Appeal
State v. Richard A. Brown, 2005 WI 29, reversing 2004 WI App 33, 269 Wis. 2d 750, 767 N.W.2d 555
For Brown: Steven P. Weiss, SPD, Madison Appellate
Issue/Holding:
¶8. The issue presented by the parties in the instant case is whether a circuit court’s denial of a chapter 980 petition for supervised release should be classified as a determination of a question of law or as an exercise of circuit court discretion.