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  • April 29, 2022

    Change to Special Verdict Question Confused Jury Considering Re-Commitment

    A trial judge’s modification of a special verdict question confused a jury considering whether to extend a woman’s involuntary commitment, the Wisconsin Court of Appeals has ruled.
    Black-Robed Judge Reviewing A Sheaf of Papers

    April 29, 2022 – A trial judge’s modification of a special verdict question confused a jury considering whether to extend a woman’s involuntary commitment, the Wisconsin Court of Appeals has ruled.

    In Outagamie County v. C.J.A., 2020AP2032 (April 12, 2022), the Court of Appeals District III held that the modification asked the jury to consider the woman’s future dangerousness, when the relevant statute required the jury to consider the woman’s current dangerousness.

    Threat Against Judge

    In 2016, C.J.A. was committed under Wis. Stat. ch. 51, after she exhibited paranoia, mania, and delusions that frightened her mother and sister.

    Jeff M. Brown Jeff M. Brown is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6126.

    A social worker testified that she asked that C.J.A. be detained after C.J.A. had threatened a judge.

    The circuit court concluded that C.J.A. was dangerous under chapter 51 because of the substantial probability of harm to persons in the legal system whom C.J.A. had threatened.

    The circuit court recommitted C.J.A. in 2018 and 2019, concluding that she was still dangerous because of behavior similar or identical to that which led to her commitment in 2016.

    Change to Special Verdict Question

    With C.J.A’s commitment set to expire on May 8, 2020, Outagamie County moved on March 4, 2020 to extend her commitment for one year.

    The proposed special verdict question, which was based on the standard jury instruction, read “[I]s the subject dangerous to herself or to others?”

    During the jury instruction and verdict conference, the judge told the parties that he had added the words “if not committed” to the end of the proposed special verdict question, so that it read “Is [C.J.A.] dangerous to herself for others if not recommitted?”

    C.J.A. objected to the special verdict question, arguing that it failed to describe the statutory dangerousness standard. The circuit court overruled the objection.

    The jury concluded that C.J.A. 1) was mentally ill, 2) was dangerous to herself or others if not recommitted, and 3) was a proper subject for treatment, and decided that she be recommitted

    C.J.A. appealed.

    Case Not Moot

    Writing for a three-judge panel, Presiding Judge Lisa Stark explained that the court would consider C.J.A.’s appeal even though it was moot because the recommitment order had expired on Aug. 18, 2021.

    C.J.A.’s appeal fit two of five exceptions to the mootness doctrine, Judge Stark noted: it presented an issue of great public importance, and the issue presented was “‘likely of repetition and evades review.’”

    No Due Process Violation

    C.J.A. argued that the county violated her constitutional right to procedural due process by not providing her with advance notice of the specific standard of dangerousness that the county intended to prove at trial.

    Without such notice, C.J.A. argued, she was unable to prepare a defense. But the county provided C.J.A. with the notice required by statute, Judge Stark explained.

    Additionally, Judge Stark pointed out, C.J.A. received notice of the dangerousness standard that the county would try to prove at trial because C.J.A. and her lawyer were aware of 1) the recommitment process, 2) C.J.A.’s diagnosis, 3) her prior and current behavior, and 4) the dangerousness standards under which she had been previously committed.

    “Because [C.J.A.’s] recommitments were all based on substantially similar or identical dangerous behavior caused by her mental illness, she would have been aware that the County would likely seek her recommitment on the same or similar grounds to those that provided the basis for her previous commitments,” Judge Stark wrote.

    Furthermore, Judge Stark noted, C.J.A. didn’t show: 1) how the claimed lack of notice hampered her ability to defend against the recommitment petition; and 2) what she would have done differently had she received more specific notice.

    Constitutional Error

    C.J.A. argued that the judge’s modification to the proposed special verdict question improperly shifted the jury’s focus from whether she was currently dangerous to whether she would become dangerous if not recommitted.

    That shift constituted an error of constitutional magnitude, C.J.A. argued.

    For the county’s recommitment petition to succeed, Judge Stark, explained, the county was required to prove that C.J.A. was currently dangerous under section 51.20(1)(a)2..

    The wording added by the judge to the proposed special verdict question, wrote Judge Stark “plainly modified the question by directing the jury to consider future events—

    i.e., whether [C.J.A.] would become dangerous in the future if she were not recommitted.

    “We agree with [C.J.A.]  that his language gave the jury conflicting and confusing information about whether it was supposed to consider [C.J.A.’s] present status or to conduct a forward-looking analysis, the latter of which could be based on any number of considerations divorced from the statutory focus on current dangerousness.”

    Confused Rather Than Clarified

    The U.S. Supreme Court has ruled that any finding of mental illness upon which a commitment is based “must be current, not retrospective,” Judge Stark wrote.

    Because the modified special verdict question asked to jury to assess C.J.A.’s future dangerousness, it confused rather than clarified the ultimate question, Judge Stark explained.

    The county argued that the court could infer that the jury understood the special verdict question because it submitted no questions to the judge during its deliberations.

    But “the special verdict question was misleading and an incorrect statement of the law,” Judge Stark wrote, “even if the jury was unaware that it was performing a misguided analysis.”

    The court of appeals remanded the case to the Outagamie County Circuit Court for a new trial.

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    WisBar Court Review, published by the State Bar of Wisconsin, includes summaries and analysis of decisions from the Wisconsin Supreme Court, the Wisconsin Court of Appeals, and the U.S. Court of Appeals for the Seventh Circuit, as well as other court developments. To contribute to this blog, contact Joe Forward.

    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

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