i'm going to address the two most important arguments that i believe are and laid out in the brief specifically i will trust why the state violated the implied covenant of good faith and fair dealing with regards to the underline plead of the sexually violent persons case here in back in two thousand and one in addition to your honor's i will address why the state's rule to thirteen violation production of information and opinion and medical the trial court judge i'm prepared to answer questions on any of the other substantive arguments as well but i'm going to try to focus my argument on the first and first argument as well as the third argument specifically in the underlying case with mr erlich mr erlich pled guilty in a case he was offered what amounted to essentially at the time a deal which was a sweetheart deal for him at that time which would have been essentially impossible for him to not go along with because of the amount of time that he was going to have to serve that the state's got to act in good faith in the state has to negotiate in good faith in order to assure that due process is complied with i think it's very important to take a look at is this is extremely unusual in any of these cases where you've got an instance where it's clear from the record that there was at the time that the individual pled guilty in the underlying case it wasn't just that it wasn't just a possibility it was definitely contemplated by the state that mr erlich was going to be the subject sometime in it in mid one nine hundred eighty nine that's correct because they have to wait until he's within a certain amount of time from release from the department of corrections before they can file the s v p titian pursuant to the statute but it's clear that when they feel when they when they filed the statement of facts which i did which i attached in my motion previously in front of judge wood in the circuit court the specific statement of facts says this offender clearly qualifies under the sexually violent persons commitment act and be required and whether or not they whether or not those were necessary i think that's one of the things they're trying to say that's not the issue here we're not arguing that mr erlich had to be notified and it managed in the in the circuit court when he pled guilty to the criminal cases that specifically he used the word sandbag and i think more than once that he viewed this as extremely troubling that the state in an instance like this could offer mr erlich a deal like this knowing that they're going to do something to possibly indefinitely confine him in the department of human services at the time that they're going to do this they obvious if you take this it's logical conclusion the state could do this could make a routine habit of doing this kind of conduct and please somebody who's got multiple prior sex convictions to the minimum on up to the minimum on a charge knowing that at the time that they do that it's extremely likely that he's going to get sexually he's going to be the subject of  no i don't but i do know that when the deal c does their screening of all the master files what happens is they screen the master files to determine whether or not somebody should be the subject of a such lee valley person's commitment petition let the screeners and precipitated this s p p filing when they knew that they had offered him a deal that he couldn't refuse and they knew that he had entered into a plea agreement and it's just it's not fair so mr erlich for what happened that's correct and i think even if he was properly admonished by the circumstances that they could still act in bad faith how be it would be more difficult maybe under these circumstances he wouldn't have been he wouldn't have been able to argue this this position if he had been admonished but that's not what happened and it was clear that the state intended at the time that they entered into this plea agreement that he was going to be the subject of a sexually violent persons commitment this no i'm saying they have to i'm saying what they have to do is they have to exercise their discretion and to enter into this plea with the intention that under that with no other side deals knowing that they're going to actually extend his indefinite incarceration capeci will leave because they're going to they're going to file this petition if if the state's attorney was it good to do this and they w essentially what they gave him at the time of the cleargreen that in the criminal case was practically a turnaround he practically went to the public corrections and came right back out even though he had been a medical time convicted criminal sex offender and the reason totally different city oh by the way maybe subject to immigration consequences the results of their plea but they don't have to have any knowledge at all under these circumstances that not only are they going to be subject to very serious well and again that's not really the substance of my argument is the admonishment thing but however i will point out that at the time that he pled guilty this is a brand new statute in illinois this statute was in its complete infancy and most people don't even know  underlying please green it is shown it the violation of fundamental fairness is shown because this is a this is a very very unusual circumstance because the statement of facts in this case makes it clear that it's a different circumstance now with regards to the rule two thirteen argument they make in my brief specifically these are supposed to be civil cases they're supposed to be treated like civil cases civil rules are supposed to apply in the civil discovery rules apply that's not what happened in this case what happened in this case is that the state six days before this case had been ready to go to trial and this case had been pending for seven years so we're talking about a case that have been pending for seven years mr erlich had been trying to get to trial at this point he had been he had been one of his prior experts had passed away so that was one of the delays but at the time this case and been set for trial for months and six days before the case was set to go to trial counsel for the petitioner the state counsel tendered an updated report from dr levitt and additional information from a treating doctor at the department human got six days before we were going to get going to go to trial he should have been allowed to testify that any of that stuff that was contained in the new report were doctored if they did and that's that that's the state's  and that's the state's counter to my argument but we're ready to go to trial for months and months and months and if this is supposed to be governed by the rules and rule two thirteen there's an obligation on them to justify why they're producing the so late and there's a case out of the second district called we're going to recess no sop which is three or four eleven thirty to sixty which addresses a situation in a civil case almost exactly like this where they produced information and doctor and doctors adopt an expert report eleven days before they were going to go to trial and that and the defendant in that case specifically argued well he was given the opportunity to take a continuance and he could have he could have he could have continued his day in court and the court inec a said no the court neck a said that is not fair that is not compliance with the rules and if you are going to produce this information before you should have done it we're going to make you comply with the rules because we're doing violates the spirit of the rules and if truly what we're doing in these cases and he says he cases is that we are civilly committing these people in these cases make sure that what we're doing here is appropriate out of the statute inappropriate on the supreme court directed switch the supreme court says that these cases are supposed to be civil and they say that we're supposed to be committing these people under civil proceedings and these are not supposed to be chanted cases well if we're not supposed to then we need to follow the rules in these types of cases and we need to make sure that a stay complies with these rules and understands that it's not just lip service when we call these because one of my my doctor at the trial this case was in indiana he was extremely difficult to extremely difficult to get these cases scheduled for trial because you have doctors to come from all over illinois to doctors in this case a my doctors from indiana fact that i think that undermines what i'm saying here is the it should have been our responsibility to have to take time first of all the state didn't explain why they didn't get this stuff to do to us before  or for all this time and there was really no good explanation as to why the engaged in this kind of behavior this is this is not proper for them to do this at this point time in the trial when we were ready to go i had a witness that for whether the people acted in good faith at the time of response guilty plea his his response his commitment his eventual commitment was anything but a certainty all that was guaranteed at that point was that his master absolutely not today of course he was going to be five love the statute come into effect in january one thousand nine hundred ninety eight by law he was going to be have his file review if the process just does not work that way  sexually violent persons and he perhaps misunderstood the nature of the commitment because i said it is eventually committed was anything but a certainty he will see reviews to file some subset of those people who files a review are referred for an additional in person interview save face on the result of that some subset of those people every third to the attorney general for possible commitment at that point and the element of discretion of course comes in the part of the attorney general whether to seek commitment or pursue commitment or not any any argument that they put his commitment was a certainty and that the people knew they were going to go out and get him simply does not hold water in light of the statutory and procedural process here the only thing that was guaranteed this  process would always take place as you describe it so i would just add just the initial file review there's no guarantee beyond that initial filing in your honor that that particular defendant will be referred for an in person interview there's no guarantee based on that interview that he will be referred for commitment and there's no guarantee that even once he is referred for commitment that the state will seek or pursue commitment proceeding so the only thing that's guaranteed is that initial file review and that's guaranteed because underlying not the fact of the offense but the facts surrounding the fact that he molested little children etc it's looking at those facts a psychologist looking at those facts to make a mental diagnosis to determine whether this particular respondent suffers from  objective at this point in reviewing the file that the legislature is intended that this procedure go forward with respect to certain individuals updated information dr love it's last reports from two thousand and four when you i need to have this updated information so here's what i'm going to to counsel i will allow dr levy to be read just read a post and this is some page one twenty three of the record i will well doctor left me read a post if you're willing on the basis of whatever information you can gather we can move forward if you want to do that way if you want to do it that way to take the element of surprise out of it he says look this is judge people the report and he chose not to do so but my question was a little different when they basically the state really gave them this with your real leads and do you feel that you have any responsibility for complying with their grant the trial court and a remedy but i mean you get a free pass because you know it will give you life if you don't want to continue it that's your problem is that what you know you're running no invited avoid commitment and so to say that this is the state delaying these proceedings would be inaccurate and this one aspect of it  being was meant in this case by judge would is we're going to do something and we're going to keep something hid and then we're going to spring something on you at the last minute after we've convinced you to do something otherwise and that's what he  trial counsel i'm not going to let you have mr erlich rely on what the state tells him they're going to do no way we're going to do just the opposite of that and then file an s t p petition that's what sandbagging means and extremely troubling with regards to whether or not if a state's attorney entered into an agreement with with a with a defendant where they would agree not to do this they would agree not to file a six a gallon persons commitment petition says that question i think the obvious conclusion has to be of course they would be barred from filing s t p petition we're not talking about a different sovereign here the people of the state of illinois are the ones that a criminal case in this case when it filed this filed in the criminal division in the petitioner is the people of the state of illinois and not only that in cook county but the state's attorney in the attorney general's office of the ones who handle these cases it's not like we're talking about the department of immigration filing something against these people and if you put that in the police agreement you can't force that for purposes of the department of immigration it's it if the fries the logic if the state's attorney would be able to say to  defendant in a criminal case you know it is part of your criminal case deal we are not going to file a sexually violent persons petition against you and then turn around at their release date at the time that they're going to be released and serve them with a summons this actually bound person's case for seen it but i haven't done a sex case other than these cases of twenty six three for years so i don't know the answer to that judge but i do know that when the and another thing i wanted to point out was when when when the psychologist from d o c do the report and they do an evaluation they take the statement of facts that are in the statement of facts for the last conviction that the person was sent the department of corrections on and they literally cut and paste everything that's in the statement of fa into their evaluation into their report so the statement of facts is an absolute integral and essential part of that report and the doctors in those cases rely on the statement of facts to a very high degree when they write these reports have the doctors are going to go through documents and the master file but if the state's attorney puts into a statement of facts that that this offender clearly qualifies under the sexually violent persons commitment act necessarily testify that that was in there but that's always in their evaluation is what happened so my point about that isn't that i thought about that is that it's not just that there's that this is a line somewhere in a thousand page master file but this is something that specifically would file a regular civil case they do the evaluation and then the prosecutors sometimes you'll get it sometimes you'll get an evaluation it'll come back in these cases in the same number of for and the state's attorney a look at all the stuff and they'll say oh yes send us back to process that the government would make you think happens in these cases it really is you saying on one hand you're going to do something and doing something different in a case yes if you know anything anything else again we would