State v. Bush (In re Bush)

1

In re the commitment of Jerry L. Bush:

State of Wisconsin, Petitioner-Respondent, v. Jerry L. Bush, Respondent-Appellant.

No. 2022AP711

Court of Appeals of Wisconsin, District II

April 5, 2023

This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.

APPEAL from an order of the circuit court for Waukesha County, No 1997CI1 PAUL BUGENHAGEN, JR., Judge. Reversed and cause remanded for further proceedings.

Before Gundrum, P.J., Neubauer and Grogan, JJ.

Per curiam opinions may not be cited in any court of this state as precedent or authority, except for the limited purposes specified in Wis.Stat. Rule 809.23(3).

PER CURIAM

¶1 Jerry L. Bush appeals from an order denying him a discharge trial relating to his Wis.Stat. ch. 980 (2021-22)^[1] commitment. We conclude the Record contains facts from which a court or jury would likely conclude he no longer meets the criteria for commitment as a sexually violent person. See Wis. Stat. § 980.09(2). Specifically, the Record includes a report by an expert psychologist concluding Bush no longer has a qualifying mental disorder. The report also applies new or revised actuarial instruments developed since Bush's last discharge trial in 2004 to conclude that his risk of committing a future act of sexual violence no longer meets the legal standard of "more likely than not." See Wis. Stat. § 980.01(1m), (7). Accordingly we reverse and remand for further proceedings.

BACKGROUND

¶2 Bush was adjudged a sexually violent person and committed to the care and custody of the Wisconsin Department of Health Services in 2002. In 2004, he refused to waive his right to petition for discharge. The circuit court held a discharge trial at which it heard testimony from three psychologists and one psychiatrist. Following the hearing, the court concluded Bush remained a sexually violent person and ordered his commitment continued. Bush has been re-examined annually most recently for purposes of this appeal in 2020, at which time the examining psychologist concluded Bush still suffered from a predisposing mental disorder (i.e., antisocial personality disorder (ASPD)) and that his risk of committing a future act of sexual violence exceeded the legal "more likely than not" threshold.

¶3 Bush filed the present discharge petition in 2020, at age sixty-two.^[2] The petition was supported by an eighteen-page report from psychologist Courtney Endres.^[3] Endres chronicled Bush's history of sexual offending preceding his 1980 conviction for two counts of second-degree sexual assault and one count of incest. She also chronicled his time in the prison system his transfer to federal custody, and his 2012 parole revocation during his term of commitment at Sand Ridge Secure Treatment Center (Sand Ridge). Bush was readmitted to Sand Ridge in 2017, where he has remained.

¶4 Endres, evaluating Bush's recent conduct under the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders, concluded that Bush no longer met sufficient criteria for a diagnosis of ASPD. Nonetheless, Endres attempted to develop a risk profile for Bush by applying two actuarial instruments: the Static-99R, which scores the offender using unchanging historical facts and identifies the rate at which individuals with similar scores reoffended over designated periods of time; and the VRS-SO, which considers dynamic risk factors to assign a "change score" that helps clarify the person's risk. Those instruments estimated Bush's reoffense risk at 32% and 44% over five and ten years, respectively. There was no dynamic risk model available for a period of twenty years, but considering solely static factors, Bush's reoffense risk was estimated at 28% or 37%, depending on which risk group Bush was compared to. Endres appears to have opined that any risk assessment beyond twenty years was unreasonable given Bush's age and "significantly reduced" life expectancy due to his medical history. Ultimately, she concluded that even if Bush had a qualifying mental disorder, Bush was not likely to commit a future act of sexual violence.

¶5 The circuit court held a nonevidentiary hearing on the petition pursuant to Wis.Stat. § 980.09(2). The district attorney argued the circuit court should not take Endres's report at face value because the doctor had, in the district attorney's words, "minimiz[ed] … many of the behaviors and conduct that have been seen [in] Mr. Bush over the years." In response, Bush argued that the State was merely arguing about inferences and opinions that could be drawn from the report without challenging any of the basic facts underlying it.

¶6 The circuit court denied the petition. It noted that Bush continued to make highly offensive statements regarding sexual conduct. Though Endres's report had addressed these statements by opining that Bush had not acted-and was not likely to act-on them, the court determined Endres's report did not adequately explain her basis for that conclusion. Similarly, the court concluded Endres's analysis of the criteria for ASPD had "ignore[d] and downplay[ed] the issues that past institutions and now Sand Ridge Secure Treatment Center note in the records." The court concluded that Endres's opinions were based on a recent "snapshot of Mr. Bush" and could not withstand "careful consideration of the entire record[.]" Bush now appeals the denial of his discharge petition without a trial.

DISCUSSION

¶7 Among other things, a Wis.Stat. ch. 980 commitment is predicated upon the State demonstrating that the person subject to the commitment is a "'[s]exually violent person'"-that is, a person with a mental disorder that makes it likely he or she will commit a future act of sexual violence. Wis.Stat. § 980.01(7). A person may petition for discharge from a commitment at any time. Wis.Stat. § 980.09(1). At the discharge trial, the State bears the burden of proving by clear and convincing evidence that the person is still a proper subject for commitment. Sec. 980.09(3).

¶8 A discharge trial is not automatic upon the filing of a discharge petition. Rather, the statute contemplates a two-step process for weeding out meritless petitions, which is described in detail in State v. Arends, 2010 WI 46, ¶¶3-5, 23-43, 325 Wis.2d 1, 784 N.W.2d 513. The first step involves a paper review of the petition itself under Wis.Stat. § 980.09(1). See Arends, 325 Wis.2d 1, ¶25. A circuit court "shall deny the petition under this section without a hearing unless the petition alleges facts from which the [factfinder] would likely conclude the person's condition has changed" since the last discharge trial, such that the person no longer meets the criteria for commitment as a sexually violent person. Sec. 980.09(1).

¶9 The court here apparently regarded the petition to be facially sufficient as it held a hearing pursuant to Wis.Stat. § 980.09(2). Under a subsec. (2) review, the court may, at a hearing, assess whether the factfinder would likely conclude the person no longer meets the criteria for commitment in light of the entire record. Although courts are to make a predictive assessment on the merits of the case, our supreme court has made clear that "when they review petitions for discharge, courts are to carefully examine, but not weigh, those portions of the record they deem helpful to their consideration of the petition, including facts both favorable as well as unfavorable to the petitioner." State v. Hager, 2018 WI 40, ¶30, 381 Wis.2d 74, 911 N.W.2d 17 (plurality opinion). "If the court determines that the record contains facts from which a court or jury would likely conclude the person no longer meets the criteria for commitment, the court shall set the matter for trial." Sec. 980.09(2). We review de novo whether a person has satisfied the burden of production necessary to obtain a discharge trial. See Hager, 381 Wis.2d 40, ¶32 (plurality opinion).

¶10 The State argues an examination of the complete Record demonstrates Bush has not met his burden of showing that a factfinder would likely conclude he no longer meets the criteria for commitment. The State argues Bush's condition has been "stable over his lifetime[,]" and it argues Endres's opinion was based on information that existed in 2004 and was considered at his last discharge trial.

¶11 Specifically, as to Bush's ASPD diagnosis, the State concedes that, "[s]tanding alone, Endres's report … suggests that Bush has changed." However, the State argues a discharge trial is unnecessary because Endres considered the same facts as the psychologists at Bush's 2004 trial and merely reached a different conclusion.^[4] "[T]he rule is that an expert opinion based solely on facts or professional knowledge or research considered by the experts who testified at the commitment trial is insufficient to warrant a discharge hearing." State v. Richard, 2014 WI.App. 28, ¶16, 353 Wis.2d 219, 844 N.W.2d 370.

¶12 Endres's report does not fall within the ambit of this rule. If anything, her report suggests entirely the opposite: that her conclusion regarding Bush's mental condition was based primarily on Bush's recent history at Sand Ridge, a matter which has not been before any previous factfinder. Importantly, Endres did not opine that Bush has never had ASPD. Rather, she made the assumption that "he once met the full criteria for ASPD[,]" but she concluded that his conduct at Sand Ridge between 2017 and 2020 suggested that he no longer met six of the seven criteria for that disorder. In reaching this conclusion, she focused on research showing that "ASPD is not an unchanging diagnosis" and "often remits beginning around the fourth decade of life[.]"

¶13 Endres's opinion that Bush no longer suffers from a qualifying mental disorder, considered in the context...