In the Matter of the Mental Commitment of J.M.
J. M., Respondent-Appellant-Petitioner. Winnebago County, Petitioner-Respondent,
ARGUMENT: November 7, 2017
CIRCUIT COURT WINNEBAGO COUNTY, L.C. NO. 2015ME617 KAREN L.
OF A DECISION OF THE COURT OF APPEALS Reported at 372 Wis.2d
834, 890 N.W.2d 49
the respondent-appellant-petitioner, there were briefs and an
oral argument by Colleen D. Ball, assistant state public
the petitioner-respondent, there was a brief and oral
argument by James A. Kearney, assistant corporation counsel.
SHIRLEY S. ABRAHAMSON, J.
This review involves a Chapter 51 commitment-extension
proceeding. The unpublished decision of the court of appeals
affirmed an order of the circuit court for Winnebago County,
Karen L. Seifert, Judge, denying J.M.'s motion for
post-disposition relief. J.M. seeks relief, claiming ineffective
assistance of counsel.
Three questions are presented to this court: ¶3 First,
does J.M. have a statutory right to effective
assistance of counsel at a Chapter 51 commitment-extension
proceeding, and if so, what standard should apply in
evaluating a claim of ineffective assistance of counsel?
Second, did the failure of J.M.'s trial counsel to object
to, prevent the admission of, or request a curative
instruction regarding evidence presented to the jury of
J.M.'s status as a prisoner (including J.M.'s wearing
prison garb) constitute ineffective assistance of counsel?
Third, is J.M. entitled to a new Chapter 51
commitment-extension proceeding in the interest of justice
because the jury was repeatedly exposed to evidence of
J.M.'s status as a prisoner and the circuit court gave
conflicting jury instructions?
We respond as follows to these questions: ¶7 First, J.M.
had a statutory right to effective assistance of counsel in
his Chapter 51 commitment-extension hearing. The legislature
has provided that the subject of every civil commitment
proceeding is entitled to be "represented by adversary
counsel." Wis.Stat. § 51.20(3)
(2015-16). When the legislature provides the right to
be "represented by counsel, " the legislature
intends that right to include effective assistance
of counsel. In re M.D. (S) ., 168 Wis.2d 995, 1004,
485 N.W.2d 52');">485 N.W.2d 52 (1992) . The standard set forth in
Strickland v. Washington, 66 U.S. 668');">466 U.S. 668 (1984), is
the correct standard for evaluating a claim of ineffective
assistance of counsel in a commitment-extension hearing.
Second, given the overwhelming evidence presented by
Winnebago County at the commitment-extension proceeding, J.M.
has not shown that a reasonable probability exists that the
result of the proceeding would have been different had his
trial counsel's performance not been allegedly deficient
regarding J.M.'s appearance in prison garb.
Third, J.M. has not established that he is entitled to a new
trial under Wis.Stat. § 751.06 on the ground that his
wearing of prison garb during the trial so distracted the
jury "that the real controversy [was] not  fully
tried, " and justice was miscarried. Moreover, the
circuit court's conflicting jury instructions likewise do
not entitle J.M. to a new trial in the interest of justice.
Accordingly, we affirm the decision of the court of appeals.
The facts are undisputed for purposes of this
review.On November 20, 2014, J.M. was
involuntarily committed for a period of one year pursuant to
Wis.Stat. § 51.20. In 2015, Winnebago County filed a
petition to extend J.M.'s commitment. J.M. requested and
received a jury trial on the petition.
Prior to trial, J.M.'s counsel asked the Wisconsin
Resource Center (where J.M. was being held) to ensure that
J.M. wore civilian clothes on the day of the trial on his
petition. Despite his counsel's request and for reasons
not in the record, J.M. appeared at his jury trial dressed in
prison garb, shackled, and accompanied by two uniformed
guards from the Department of Corrections. J.M.'s trial
counsel did not seek a continuance when J.M. appeared in his
prison garb but did persuade the circuit court to have
J.M.'s shackles removed.
During voir dire, J.M.'s trial counsel drew attention to
J.M.'s prison garb:
The kind of apparel that [J.M.'s] wearing, he's an
inmate of the Wisconsin Correctional system, but this
isn't a criminal case, as the judge had advised you, this
is one involving a mental commitment for him.
Does anyone feel because of the fact that he's an inmate
with the correctional system that they wouldn't be able
to give a fair opinion or evaluate things fairly?
J.M.'s trial counsel once again addressed J.M.'s
prison garb during opening statements:
As I mentioned earlier, [J.M.] is an inmate of the Wisconsin
correctional system. He was transferred to the Wisconsin
Resource Center right next to the Winnebago Mental Health
Institute and he's receiving treatment and care there.
It's my understanding that he's likely or they
developed plans to try to transfer him back into the regular
community of prisoners in one of the facilities here in the
state, that's the goal they try to reach and that's
what he's in prison for or what he's involved in,
that's really not our affair, but should commitment be
imposed upon [J.M.]
After opening statements, the County called two expert
witnesses to testify. Both had met with and evaluated J.M.
First, the County called Dr. Marshall Bales, a medical doctor
board certified in general psychiatry. Dr. Bales based his
testimony on the following: (1) an examination of J.M. that
took place on November 11, 2015; (2) a review of J.M.'s
treatment records; and (3) a discussion with correctional
officers who had interacted with J.M.
Dr. Bales testified at trial that J.M.'s diagnoses were
schizophrenia and antisocial personality disorder. Further,
Dr. Bales testified that "[i]t was abundantly
clear" after meeting J.M. for a brief time that J.M. is
severely mentally ill.
During his testimony, Dr. Bales twice reiterated that he
terminated the evaluation of J.M. early because J.M.'s
behavior made Dr. Bales fear for his safety. Dr. Bales also
testified that it was his opinion, based upon J.M.'s
treatment records, that if J.M.'s involuntary commitment
expires, J.M. will stop taking his medication and will become
more delusional and dangerous.
Second, the County called Dr. Barbara Waedekin, a
psychiatrist employed by the Wisconsin Resource Center. Dr.
Waedekin had served as J.M.'s treating psychiatrist since
March 28, 2014, and saw J.M. approximately 19 to 20 times
before the instant Chapter 51 commitment-extension
proceeding. Dr. Waedekin based her opinions on the following:
(1) her interactions with J.M.; (2) a review of his treatment
records; and (3) communications with other staff at Wisconsin
Resource Center who interacted with him.
Dr. Waedekin testified that J.M. has a substantial disorder
of thought, mood, and perception that grossly impairs his
behavior, judgment, and capacity to recognize reality. She
testified that J.M. believes that he is the "Lord God
Jesus Christ Omnipotent" and that he wants his records
at the Department of Corrections to reflect that identity.
Dr. Waedekin further testified that J.M. denies having
hepatitis despite a positive blood test because he claims his
blood is mixed with Jeffrey Dahmer's.
Dr. Waedekin offered several examples of J.M.'s violent
behavior, including charging doors, attempting to grab staff
through the trap door in his cell, spitting at staff, and
throwing things. She described one particular instance when
she met with J.M. to advise him that an extension of his
commitment was being requested. When she brought up
J.M.'s medication during that meeting, he became agitated
and began yelling at her:
He stated that he was my Lord, God Jesus Christ, he addressed
me by my first name and he kept saying he was damming [sic]
me. He also was yelling that I was lying.
He continued to get more and more agitated, stood up, and was
approaching me such that the PCT [patient care technician]
told him he had to leave, that he had to go through the door
with him and out of the office.
Dr. Waedekin further testified that during this interaction,
J.M. was very menacing and threatening towards her and that
J.M. had been deemed one of the most dangerous individuals at
the facility by one of the guards because he had a volatile
anger that could erupt without warning. Dr. Waedekin
explained that although J.M. was responding well to
treatment, he would "become more violent" if he did
not take his medication and that J.M. was unlikely to take
his medication without an order to do so.
In contrast, J.M. testified that he had calmed down and that
the instances Dr. Waedekin described had happened when he was
"still very angry." J.M. stated his belief that he
was not mentally ill or dangerous and that the experts'
conclusions were "opinions, not facts."
Furthermore, J.M. confirmed on the stand that he was
"Jesus the Lord" and elaborated on this belief,
claiming, "I was born from the house of the Lord,
it's the house that I came from and that's who I
am." He also testified that he had the ability to damn
Pursuant to Wis.Stat. § 51.20(1) (a), the jury was
instructed to determine (1) whether J.M. was mentally ill;
(2) whether J.M. was a danger to himself or others; and (3)
whether J.M. was a proper subject for treatment by
"clear, satisfactory and convincing
evidence." Following deliberation, the jury
unanimously found that J.M. was mentally ill, a danger to
himself or others, and a proper subject for treatment. Based
upon these findings, the circuit court ordered a 12-month
extension to J.M.'s commitment.
J.M. then filed a post-disposition motion for a new
commitment-extension hearing based on ineffective assistance
of counsel, or alternatively, in the interest of justice.
J.M. contended that his trial counsel was ineffective because
his trial counsel failed to arrange to have J.M. appear in
civilian clothing and failed to request a jury instruction
directing that J.M.'s status as a prisoner had no bearing
on the commitment-extension proceeding. Alternatively,
J.M. requested a new trial under Wis.Stat. § 751.06
because his appearance in prison garb distracted the jury
from the real controversy at hand.
The circuit court concluded that J.M. had not satisfied the
two-prong test set forth in Strickland v.
Washington, 66 U.S. 668');">466 U.S. 668 (1984), to establish
ineffective assistance of counsel. Also applying the
Strickland test, the court of appeals affirmed the
order of the circuit court, holding in part that even if his
trial counsel's performance was deficient, J.M. was not
prejudiced by ...