By John DiMotto
While will contests may be among the most dramatic matters in Probate Court, the most gut wrenching may well be mental commitment cases.
Ordinarily, there are two hearings that are held by the court. The first hearing is the probable cause hearing. In Milwaukee County, these hearings are conducted by our Probate Court Commissioner, Patrice Baker, at the Behavioral Health Division on Watertown Plank Road in Wauwatosa. The burden is on the Corporation Counsel, Milwaukee County's "law firm" which is the agency that brings these cases, to establish that it is probable that the subject in interest is mentally ill, treatable and dangerous. There are usually two witnesses: one to the act of dangerousness and a psychologist or psychiatrist to the issue of mental illness and treatability. If probable cause is established, then the case is set for a final hearing before either myself or Judge Mel Flanagan who is the second probate judge in Milwaukee County. This hearing is either a court trial or a jury trial. At the final hearing, the burden of proof is on the Corporation Counsel to establish the three elements by clear, convincing and satisfactory evidence. Most of the final hearings are court trials. Jury trials are rare. In my three and one half years in Probate court, I have only done two jury trials. They can be very challenging. It is not unheard of that the subject of the action may take the stand and "sing" his or her testimony. Now you may wonder if the jury thinks this is humorous. I can assure you they do not. Jurors are extremely attentive and focused on making a decision based on the evidence in light of the law. They recognize that this is not a joke but a person's life being put before the jury.
In the courtroom, we see the best side of people and the worst side of people. In mental commitment cases, it is usually seeing people at a very troubling time in their lives and our focus is on doing justice for them.