by Matt Clarke

The Supreme Court of Wisconsin held that a Wisconsin Department of Corrections (“DOC”) database of persons the DOC evaluated for civil commitment as a sexually violent predator (“SVP”) is subject to discovery in SVP commitment proceedings.

In 2016, the State petitioned a circuit court to commit Anthony James Jendusa as an SVP. DOC psychologist Dr. Christopher Tyre testified that he had evaluated Jendusa’s likelihood of committing future acts of sexual violence, and he met the statutory definition of an SVP. Tyre had used four assessment tools, including the Static-99 and Static-99R.

All four risk assessment tools were created by researchers who observed several groups of sex offenders after their release to see whether they were arrested or convicted for a new sex offense within five, ten, or 15 years. Researchers used the proportion who recidivated as a “base rate” for the general likelihood of re-offense across the studied population.

The Static-99 and Static-99R researchers studied groups of Canadian and Danish sex offenders. They observed a small subset of those groups who had similar risk factor scores to the others yet recidivated at a higher rate. Therefore, they designated two “norms”: “high-risk/high-needs” for those with the higher recidivism rate and “routine” for all others. The researchers calculated separate base rates for each norm.

To assess a sex offender using one of those instruments, the examiner determines the norm, and thus the base rate, then develops a numerical score based on the presence and severity of certain recidivism risk factors. The score determines a risk category that is cross-referenced with the norm’s base rate to calculate a range of “absolute” recidivism rates.

Tyre testified that he assigned Jendusa the high-risk/high-needs norm, and his score placed him in the abode-average risk category on the two Static-99s. The Static-99s showed Jendusa’s absolute recidivism rates at 17 - 25% over five years, 33 - 37% over ten years, and 52% over 15 years. Tyre testified he believed Jendusa was more likely than not to engage in future acts of sexual violence.

During cross-examination, Tyre revealed that the DOC maintained a Wisconsin-specific database of persons it evaluated for SVP commitment, and he was in the beginning stages of analyzing it. A colleague had emailed him a preliminary analysis two years earlier, but he had not yet read the email.

Based on Tyre’s testimony, the circuit court found probable cause to believe Jendusa was an SVP and ordered him bound over for trial pursuant to Wisc. Stat. ch. 980. Jendusa then moved the court to order disclosure of the database, so he could have an expert analyze it and determine whether the Wisconsin base rate was lower than that of the Danish and Canadian groups used by the Static researchers.

At a hearing on the motion, Tyre testified that he had reviewed the email and determined that the preliminary Wisconsin base rate was about one-third of the base rate he relied on to predict Jendusa’s recidivism rate. The court then ordered the database disclosed so that a court-appointed psychologist could analyze it. The State petitioned for leave to appeal, which the appellate court denied. The Wisconsin Supreme Court granted review.

The Supreme Court started by ruling that the court of appeals did not err in denying the petition for interlocutory appeal. It nonetheless addressed the discoverability of the database.

The Court engaged in a thorough statutory interpretation of § 980.036(5), which reads: “Testing or Analysis. On motion of a party, the court may order the production of any item of evidence or raw data that is intended at the trial for testing or analysis under such terms and conditions as the court prescribes.” After a detailed discussion of the subsection, the Court concluded that “Jendusa’s intent to introduce an analysis of the DOC’s raw data at trial satisfies the requirement in subsec. (5) that he intend to introduce the raw data.” Thus, the Court held that, according to the plain language of subsec. (5), the DOC database in question “is discoverable.”

Accordingly, the Court affirmed the order of the court of appeals and remanded the case to the circuit court for further proceedings consistent with its opinion. See: State v. Jendusa, 955 N.W.2d 777 (Wis. 2021). 

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