99-0635 In Re: the Commitment of Richard A. Brown, Jr.

By: dmc-admin//September 30, 2002//

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“Thus, even if Brown is correct in asserting that, despite his objection at the beginning of the trial, the trial court should have employed the Kienitz standard from the beginning, its failure to do so did not, as he claims, ‘undercut [his] defense strategy … to argue to the jury that “substantial probability” was a very high standard, and one which the jury would define for itself.’ After all, following the court’s supplemental instruction incorporating the Kienitz definition, counsel was able to continue his same percentile argument. And why not? After all, ‘considerably more likely than not’ may indeed suggest something in ‘at least’ the seventy-to-eighty percent range counsel argued.”

Judgment and orders affirmed.

Recommended for publication in the official reports.

Dist I, Milwaukee County, Flanagan and DiMotto, JJ., Schudson, J.

Attorneys:

For Appellant: Steven P. Weiss, Madison

For Respondent: Robert D. Donohoo, Milwaukee; Sally L. Wellman, Madison

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