On Point: H. Ch. 980, SVPs

court of appeals decision (3-judge, not recommended for publication); for Oliver: Steven D. Phillips, SPD, Madison Appellate; BiC; Resp.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,

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,

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.

State v. Carl Kaminski, 2009 WI App 175
For Kaminski: Donald T. Lang, SPD, Madison Appellate

Issue/Holding: Testimony by a state’s expert to the effect that the only treatment program for psychopaths is at Sand Ridge did not require a new trial under the theory that it implicitly suggested commitment would be in the community’s and respondent’s best interest, ¶¶25-27 (court rejecting analogy to TPR procedure):

¶27      Wisconsin Stat.

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.

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,

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,

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: A parolee’s statement made under grant of immunity (per State v. Evans, 77 Wis. 2d 225, 252 N.W.2d 664 (1977)), was compelled (therefore involuntary) and inadmissible at a ch.

State v. Ronald D. Luttrell, 2008 WI App 93
For Luttrell: Steven Prifogle, SPD, Milwaukee Trial

Issue: Whether a ch. 980 SVP respondent is entitled to § 971.14 competency evaluation.

Holding:

¶8        It is true, of course, that both Wis. Stat. § 971.13 and Wis. Stat. § 971.14 once applied to Wis. Stat. ch. 980 commitments, see Smith,

State ex rel Frederick Lee Pharm v. Bartow, 2007 WI 13, affirming 2005 WI App 215
For Pharm: Jon G. Furlow, Nia Enemuch-Trammell,Roisin H. Bell (Pro Bono)

Issue: Whether, following Pharm’s release in another state prison on life-time parole and his return here under the IAD to serve a Wisconsin sentence, he was subject to ch. 980 commitment proceedings on his release from that sentence.