Persons Committed for Sexual Violence Must Have New
Evidence for Discharge Hearing
By Joe Forward, Legal Writer,
State Bar of Wisconsin
Nov. 28, 2012
– A state appeals court has clarified the standard required before
a person committed as sexually violent can receive a new discharge
hearing in circuit court.
Under Wis. Stat. section 980.09(2),
courts must review discharge petitions and “may” hold a
hearing to determine if the petition contains facts from which the court
or jury could conclude the person no longer meets the criteria for
commitment as a sexually violent person.
Shawn Schulpius was committed to institutional care as
a sexually violent person in 1996. After a hearing before a jury, a
court denied his petition for discharge in January 2010. Eight months
later, in August 2010, the circuit court denied his second discharge
petition without a hearing.
On appeal, Schulpius argued that he was entitled to a
second hearing before the court could deny his discharge petition. A
three-judge appeals panel in State
v. Schulpius, 2011AP2565 (Nov.
27, 2012), upheld the circuit court order and clarified requirements
under the statute.
“[W]hile the circuit court must consider all of the
evidence in the record when determining whether a discharge hearing is
warranted, the petitioner must also produce some new evidence, not
previously considered by a trier of fact, which demonstrates that he
does not meet the criteria for commitment,” wrote Judge Kitty
Brennan.
In 2010, a jury heard annual exam reports for the previous four years
and testimony from expert witnesses for the state and defense. The jury
voted against discharge. After the Department of Family Services issued
a 2010 exam report, Schulpius
petitioned again.
Schulpius said that in his 2010 report, the
doctor conducting the exam changed his opinion about whether Schulpius met the criteria to be committed as a
sexually violent person. However, the state argued that this change was
not enough to warrant a new hearing.
Under State
v. Arends, courts must review ch.
980 discharge petitions to determine whether the facts alleged could
support a conclusion that a person’s condition has changed since
initial commitment. The state argued that in Schulpius’s case, this meant a change, by
way of new evidence, since the date of his last discharge hearing. The
appeals court agreed.
The panel ruled that petitioners can’t rely on facts
“already considered and rejected by a previous trier of fact to
meet his burden for a new discharge hearing,” and the changed
opinion of the examining doctor from January 2010 to July 2010 was not
new evidence.
“Whether a changed expert opinion is enough for a discharge
hearing depends on the basis for the change, that is, the new
‘opinion must depend upon something more than facts, professional
knowledge, or research that was considered by an expert testifying in a
prior proceeding,’” wrote Judge Brennan, citing
State v. Combs, 295 Wis. 2d
457, 720 N.W. 2d 684.