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6. The referee's findings and conclusions
tracked the OLR's complaint which alleged
Attorney Dumke's misconduct relating to his
representation of a client, Robert P., who
had been convicted in 1986 of first-degree
sexual assault and sentenced to 16 years in
prison. On October 1, 1996, before Robert
P. had reached his mandatory release date,
the state filed a petition under Wis. Stat.
ch. 980 alleging that Robert P. was a
sexually violent person. Robert P. then
retained Attorney Dumke to represent him in
the sexual predator proceedings. Robert
P.'s mother paid Attorney Dumke a retainer
fee of $5000.
7. After a probable cause hearing on the
ch.
980 petition, Robert P. was placed in secure
custody at the Wisconsin Resource Center.
Attorney Dumke requested a lengthy
continuance of the matter asserting that he
wanted an expert to review the state's
report supporting the ch. 980 petition
concerning his client. Attorney Dumke
stated that he would inform the court when
he was ready to proceed in the matter. His
request for a continuance was granted on
November 15, 1996.
8. Circuit court records reflect that no
further activity in the ch. 980 proceedings
against Robert P. occurred during the first
half of 1997. Subsequently the Robert P.
matter was assigned to Dane County Circuit
Judge Sarah O'Brien and scheduled for trial
to commence on October 30, 1997. On that
scheduled trial date Robert P. appeared
represented by Attorney Dumke. Robert P.
then waived his right to trial and admitted
the allegations in the sexual predator
petition. As a result, Robert P. was found
to be subject to commitment under ch. 980.
At a subsequent dispositional hearing,
Robert P., again represented by Attorney
Dumke, stipulated to being confined at a
secure mental health facility for treatment.
9. In November 1998 Attorney Dumke
withdrew
from the Robert P. matter. Successor
counsel was appointed and an appeal was
filed. Robert P.'s new counsel also filed a
motion asking the appellate court to remand
the matter to the circuit court for a
hearing on a claim of ineffective assistance
of counsel against Attorney Dumke. That
remand motion was granted and an evidentiary
hearing on that claim was held in the
circuit court at which Attorney Dumke,
Robert P., and two experts testified.
10. The OLR disciplinary complaint
against
Attorney Dumke in this matter alleged, and
the referee so found, that before being
retained by Robert P., Attorney Dumke had
not previously represented a ch. 980 client
or otherwise handled a ch. 980 case.
Attorney Dumke knew, however, that his
client was entitled to an expert witness in
the ch. 980 proceedings and also knew that
his client was entitled to a court-appointed
expert. The OLR's complaint against
Attorney Dumke alleged, and the referee so
found, that Robert P.'s mother told Attorney
Dumke that she would be willing to hire an
expert on her son's behalf if one were
needed. Attorney Dumke, however, never
arranged for an expert to testify on Robert
P.'s behalf in the ch. 980 proceeding.
11. The referee also found that Attorney
Dumke was unfamiliar with the testing
methods and risk analysis on which the
state's experts in the ch. 980 proceedings
had based their opinions that Robert P. was
a sexually violent person. Furthermore, the
referee determined that Attorney Dumke had
no experience in cross examining experts on
those subjects and that he never reviewed
with Robert P. the risk factor analysis or
other instruments used by the state's
experts in ch. 980 cases. Also, the referee
found that Attorney Dumke never obtained an
expert or submitted any documents or reports
to an expert to review either for evaluative
or testimonial purposes, or to help him
prepare for cross examination of the state's
experts.
12. The OLR disciplinary complaint
against
Attorney Dumke further alleged, and the
referee so found, that Attorney Dumke had
failed to adequately investigate the sexual
predator petition against his client, Robert
P. In this respect, at the hearing on the
ineffective assistance of counsel claim,
Judge O'Brien ruled that given the nature of
the ch. 980 evidence and in light of
Attorney Dumke's inexperience with that kind
of evidence, he could not have performed an
adequate investigation or preparation
without hiring an expert for the ch. 980
proceeding.
13. In addition, the OLR alleged, and
the
referee so found, that Attorney Dumke's
rationale for not hiring an expert in the
Robert P. matter——i.e. that it was "too
risky" because the expert might provide an
unfavorable opinion——was flawed because if
Attorney Dumke had retained an expert on
behalf of his client, that expert would not
be required to disclose unfavorable results
unless the expert testified.
14. Furthermore, the referee in this
matter
determined that Attorney Dumke had failed to
adequately advise Robert P. of the
advantages and disadvantages of proceeding
to trial on the ch. 980 petition. The
referee noted that at the hearing on the
ineffective assistance of counsel claim,
Robert P. asserted that if he had been
informed by Attorney Dumke that there was a
basis upon which to challenge the state's
experts' opinions and reports at trial,
Robert P. would have elected to have a trial
on the ch. 980 petition.
15. The referee also observed that
following
the evidentiary hearing on the ineffective
assistance of counsel claim, the state filed
a post-hearing brief in the circuit court
conceding that Robert P. should be granted a
new dispositional hearing in the ch. 980
matter in the interest of justice.
16. In addition, the referee noted that
in
August 1999, Judge O'Brien ruled that
Attorney Dumke's performance in representing
Robert P. in the ch. 980 proceedings had
been deficient and that Robert P. had been
prejudiced by the ineffective
representation. Accordingly, Judge O'Brien
vacated the finding that Robert P. was a
sexually violent person under ch. 980 and
set the matter for trial. However, before
that trial commenced, the circuit court
reviewed the entire record in the ch. 980
proceeding against Robert P. and determined
that the evidence failed to establish that
Robert P. was a sexually violent person. As
a result, the state's ch. 980 petition
against Robert P. was dismissed and he was
released from custody. Robert P.'s release
occurred more than three years after his
mandatory release date on his sentence
imposed on the underlying criminal
conviction.
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