State v. Foster (Concurrence)

Summary

Justice Ecker concurred in part and in the judgment, agreeing that the record was minimally sufficient under deferential review to sustain the acquittee's continued commitment, while concluding that much of the lower court's reasoning was legally irrelevant or insufficiently connected to imminent dangerousness. The concurrence explains that continued confinement requires clear and convincing proof that the acquittee is currently mentally ill and poses an imminent danger causally related to that illness, and criticizes reliance on generalized societal fears, dated conduct, and non-dangerous behavioral traits. Justice Ecker also provides guidance for future proceedings concerning the evidentiary factors relevant to dangerousness. There are no separate opinions.